Writ Petition (Crl.) Nos. 48, 185, 150, 66/2014 and 1215/2011. Case: Union of India (UOI) Vs V. Sriharan and Ors.. Supreme Court

Case Number:Writ Petition (Crl.) Nos. 48, 185, 150, 66/2014 and 1215/2011
Party Name:Union of India (UOI) Vs V. Sriharan and Ors.
Counsel:For Appellant: Ranjit Kumar, Sol. Gen. of India, V. Mohana, Sr. Adv., Binu Tamta, Dhruv Tamta, D.L. Chidananda, Movita, R.K. Verma, B. Krishna Prasad, Sushma Suri, Sinha Shrey Nikhilesh, Sarthak Sachdev, Toyesh Tewari, Jai Sahai Endlaw, Shouryendu Ray, Maanav Kumar, Harish Kr. Khinchi, Vinay Navare, Abha R. Sharma, Harshvir Pratap Sharma, Ajay ...
Judges:H.L. Dattu, C.J.I., F.M. Ibrahim Kalifulla, Pinaki Chandra Ghose, Abhay Manohar Sapre and U.U. Lalit, JJ.
Issue:Delhi Special Police Establishment Act, 1946 - Sections 3, 4, 5, 6; Explosive Substances Act, 1908 - Sections 3, 5, 6; Arms Act, 1959 - Section 25(1B); Currency Notes Forgery Act, 1899; Terrorist and Disruptive Activities (Prevention) Act, 1987 - Sections 3(3), 3(4), 5; Foreigners Act, 1946 - Section 14; Passport Act, 1967 - Section 12; ...
Citation:AIR 2015 SCW 6605
Judgement Date:December 02, 2015
Court:Supreme Court
 
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Judgment:

F.M. Ibrahim Kalifulla, J.

1. The Petitioner has challenged the letter dated 19.02.2014 issued by the Chief Secretary, Government of Tamil Nadu to the Secretary, Government of India wherein the State of Tamil Nadu proposed to remit the sentence of life imprisonment and to release the Respondent Nos. 1 to 7 in the Writ Petition who were convicted in the Rajiv Gandhi assassination case. As far as Respondent Nos. 1 to 3 are concerned, originally they were imposed with the sentence of death. In the judgment reported as V. Sriharan alias Murugan v. Union of India and Ors. (2014) 4 SCC 242, the sentence of death was commuted by this Court. Immediately thereafter, the impugned letter came to be issued by the State of Tamil Nadu which gave rise for the filing of the present Writ Petition. While dealing with the said Writ Petition, the learned Judges thought it fit to refer seven questions for consideration by the Constitution Bench in the judgment reported as Union of India v. v. Sriharan @ Murugan and Ors. 2014 (11) SCC 1 and that is how this Writ Petition has now been placed before us. In paragraph 52, the questions have been framed for consideration by this Bench. The said paragraph reads as under:

52.1 Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda(2), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?

52.2 Whether the "Appropriate Government" is permitted to exercise the power of remission Under Section 432/433 of the Code after the parallel power has been exercised by the President Under Article 72 or the Governor Under Article 161 or by this Court in its Constitutional power Under Article 32 as in this case?

52.3 Whether Section 432(7) of the Code clearly gives primacy to the Executive Power of the Union and excludes the Executive Power of the State where the power of the Union is co-extensive?

52.4 Whether the Union or the State has primacy over the subject matter enlisted in List III of the Seventh Schedule to the Constitution of India for exercise of power of remission?

52.5 Whether there can be two Appropriate Governments in a given case Under Section 432(7) of the Code?

52.6 Whether suo motu exercise of power of remission Under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in Sub-clause (2) of the same Section is mandatory or not?

52.7 Whether the term "'Consultation'" stipulated in Section 435(1) of the Code implies "'Concurrence'"?

2. It was felt that the questions raised were of utmost critical concern for the whole of the country, as the decision on the questions would determine the procedure for awarding sentence in criminal justice system. When we refer to the questions as mentioned in paragraph 52 and when we heard the learned Solicitor General for the Petitioner and the counsel who appeared for the State of Tamil Nadu as well as Respondent Nos. 1 to 7, we find that the following issues arise for our consideration:

(

  1. Maintainability of this Writ Petition Under Article 32 of the Constitution by the Union of India.

    (b) (i) Whether imprisonment for life means for the rest of one's life with any right to claim remission?

    (ii) Whether as held in Shraddananda case a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission can be imposed?

    (c) Whether the Appropriate Government is permitted to grant remission Under Sections 432/433 Code of Criminal Procedure after the parallel power was exercised Under Article 72 by the President and Under Article 161 by the Governor of the State or by the Supreme Court under its Constitutional power(s) Under Article 32?

    (d) Whether Union or the State has primacy for the exercise of power Under Section 432(7) over the subject matter enlisted in List III of the Seventh Schedule for grant of remission?

    (e) Whether there can be two Appropriate Governments Under Section 432(7) of the Code?

    (f) Whether the power Under Section 432(1) can be exercised suo motu, if yes, whether the procedure prescribed Under Section 432(2) is mandatory or not?

    (g) Whether the expression "'Consultation'" stipulated in Section 435(1) of the Code implies "Concurrence"?

    3. On the question of maintainability of the Writ Petition by the Union of India, according to learned Solicitor General, the same cannot be permitted to be raised in this Reference since the said question was not raised and considered in the order of Reference reported as Union of India v. V. Sriharan alias Murugan and Ors. (supra), and that when notice was issued in the Writ Petition to all the States on 09.07.2014 then also this question was not considered, that the scheme of Code of Criminal Procedure was to protect the interest of victims at the hands of accused which onerous responsibility is cast on the agency of the Central Government, namely, the CBI which took over the investigation on the very next day of the crime and, therefore, the Union of India has every locus to file the writ petition, that since the issue raised in the Writ Petition cannot be worked out by way of suit Under Article 131 of the Constitution since the accused are private parties, Writ Petition is the only remedy available, that after the questions of general importance are answered, the individual cases will go before the Regular Benches and, therefore, the Union of India is only concerned about the questions of general importance and lastly if Union of India is held to be the Appropriate Government in a case of this nature, then the State will be denuded of all powers Under Sections 432/433 Code of Criminal Procedure and consequently any attempted exercise will fall to the ground.

    4. Mr. Rakesh Dwivedi, learned Senior Counsel who appeared for the State of Tamil Nadu would, however, contend that the Writ Petition does not reflect any violation of fundamental right for invoking Article 32, that the maintainability question was raised as could be seen from the additional grounds raised by the Union of India in the Writ Petition itself though the question was not considered in the order of Reference. Mr. Ram Jethmalani, learned Senior Counsel who appeared for the private Respondent(s) by referring to Articles 143 and 145(3) read along with the proviso to the said Sub-article submitted that when no question of law was likely to arise, the referral itself need not have been made and, therefore, there is nothing to be answered. By referring to each of the sub-paragraphs in paragraph 52 of the Reference order, the learned Senior Counsel submitted that none of them would fall under the category of Constitutional question and, therefore, the Writ Petition was not maintainable. The learned Senior Counsel by referring to the correspondence exchanged between the State and the Union of India and the judgment reported as V. Sriharan alias Murugan v. Union of India and Ors. (supra) by which the sentence was commuted by this Court as stated in particular paragraph 32 of the said judgment, contended that in that judgment itself while it was held that commutation was made subject to the procedural checks mentioned in Section 432 and further substantive check in Section 433-A of the Code there is nothing more to be considered in this Writ Petition.

    5. Having considered the objections raised on the ground of maintainability, having heard the respective counsel on the said question and having regard to the nature of issues which have been referred for consideration by this Constitution Bench, as rightly contended by the learned Solicitor General, we are also convinced that answer to those questions would involve substantial questions of law as to the interpretation of Articles 72, 73, 161 and 162, various Entries in the Seventh Schedule consisting of Lists I to III as well as the corresponding provisions of Indian Penal Code and Code of Criminal Procedure and thereby serious public interest would arise for consideration and, therefore, we do not find it appropriate to reject the Reference on the narrow technical ground of maintainability. We, therefore, proceed to find an answer to the questions referred for consideration by this Constitution Bench.

    6. Having thus steered clear of the preliminary objections raised by the Respondents on the ground of maintainability even before entering into the discussion on the various questions referred, it will have to be stated that though in the Writ Petition the challenge is to the letter of State of Tamil Nadu dated 19.02.2014, by which, before granting remission of the sentences imposed on the private Respondent Nos. 1 to 7, the State Government approached the Union of India by way of 'Consultation' as has been stipulated in Section 435(1) of Code of Criminal Procedure, the questions which have been referred for the consideration of the Constitution Bench have nothing to do with the challenge raised in the Writ Petition as against the letter dated 19.02.2014. Therefore, at this juncture we do not propose to examine the correctness or validity or the power of the State of Tamil Nadu in having issued the letter dated 19.02.2014. It may be, that depending upon the ultimate answers rendered to the various questions referred for our consideration, we ourselves may deal with the challenge raised as against the letter of the State Government dated 19.02.2014 or may leave it open for consideration by the appropriate Bench which may deal with the Writ Petition on merits.

    7. In fact in this context, the submission of...

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