# UNION OF INDIA v. V. SRI HARAN@ MURUGAN & ORS

- **Citation:** [2015] 14 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 2015-12-02
- **Bench:** H. L. Dattu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-v-sri-haran-murugan-ors-30616
- **Pages:** 235

## Headnote

FAKKIR MOHAMED IBRAHIM KALIFULLA,
PINAKI CHANDRA GHOSE,
ABHAY MANOHAR SAPRE AND
UDAY UMESH LAUT, JJ.)
A
B
c
Penal Code, 1860 -
s. 53 r/w s.45 -
Whether
imprisonment for life in terms of s.53 r/w s.45 of /PC meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission
D
and whether as per the principles enunciated in paras 91 to
93 of Swamy Shraddananda (2) case, 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 E
fourteen years and to put that category beyond application
of remission - Held (per majority): Imprisonment for life in
terms of s.53 r/w s.45 of /PC only means imprisonment for
rest of life of the convict - The right to claim remission,
commutation, reprieve etc. as provided under Art. 72 or F
Art. 161 of the Constitution will always be available being
Constitutional Remedies untouchable by the Court - The
ratio laid down in Swamy Shraddananda case that a special
category of sentence; instead of death can be substituted by
the punishment of imprisonment for life or for a term G
exceeding 14 years and put that category beyond application
of remission is well-founded - Constitution of India, 1950 -
Arts. 72 and 161 - Sentence I Sentencing- Remission.
613
H
614
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
Code of Criminal Procedure, 1973-ss.432 and 433Whether the "Appropriate Government" is permitted to
exercise the power of remission u/ss.4321433 CrPC after
parallel power has been exercised by the President under
Art. 72 or the Governor under Art.161 or by this Court in its
B Constitutional power under Art.32- Held (per majority): The
exercise of power u/ss.432 and 433 of CrPC will be available
to the Appropriate Government even if such consideration
was made earlier and exercised u!Art. 72 by the President or
u/Art. 161 by the Governor-As far as the application of Art.32
c of the Constitution by Supreme Court is concerned, the
powers u/ss.432 and 433 are to be exercised by the
Appropriate Government statutorily and it is not for the
. Supreme Court to exercise the said power and it is always
left to be decided by the Appropriate Government -
o Sentence I Sentencing - Remission.
Code of Criminal Procedure, 1973 - s.432(7) & (6) -
Whether s.432(7) CrPC 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 coextensive
E -
Whether the Union or the State has primacy over the
subject-matter enlisted in List Ill of the Seventh Schedule to
the Constitution of India for exercise of power of remission -
Whether there can be two Appropriate Governments in a given
case u/s.432(7) CrPC - Held (per majority): The status of
F Appropriate Government whether Union Government or the
State Government will depend upon the order of sentence
passed by the Criminal Court as has been stipulated in
s.432(6) and in the event of specific Executive Power
conferred on the Centre under a law made by the Parliament
G or under the Constitution itself then in the event of the
conviction and sentence covered by the said law of the
Parliament or the provisions of the Constitution even if the
Legislature of the State is also empowered to make a law on
the same subject and coextensive, the Appropriate
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN
615
Government will be the Union Government having regard to
A
the prescription contained in the proviso to Art. 73(1)(a) of the
Constitution - The principle stated in the decision in G. V.
Ramanaiah case should be applied- Cases which fall within
the four corners of s.432(7)(a) by virtue of specific Executive
Power conferred on the Centre, the same will clothe the Union
B
Government the primacy with the status of Appropriate
Government- Barring cases falling u/s.432(7)(a), in all other
cases where the offender is sentenced or th

## Text

_Characters 0–39,968 of 457,302. This is a partial read: ask again with offset=39968 for what follows._

[2015] 14 S.C.R. 613
UNION OF INDIA
v.
V. SRI HARAN@ MURUGAN & ORS.
(Writ Petition (Crl.) No. 48 of 2014)
DECEMBER 02, 2015
[H. L. DATTU, CJI,
FAKKIR MOHAMED IBRAHIM KALIFULLA,
PINAKI CHANDRA GHOSE,
ABHAY MANOHAR SAPRE AND
UDAY UMESH LAUT, JJ.)
A
B
c
Penal Code, 1860 -
s. 53 r/w s.45 -
Whether
imprisonment for life in terms of s.53 r/w s.45 of /PC meant
imprisonment for rest of the life of the prisoner or a convict
undergoing life imprisonment has a right to claim remission
D
and whether as per the principles enunciated in paras 91 to
93 of Swamy Shraddananda (2) case, 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 E
fourteen years and to put that category beyond application
of remission - Held (per majority): Imprisonment for life in
terms of s.53 r/w s.45 of /PC only means imprisonment for
rest of life of the convict - The right to claim remission,
commutation, reprieve etc. as provided under Art. 72 or F
Art. 161 of the Constitution will always be available being
Constitutional Remedies untouchable by the Court - The
ratio laid down in Swamy Shraddananda case that a special
category of sentence; instead of death can be substituted by
the punishment of imprisonment for life or for a term G
exceeding 14 years and put that category beyond application
of remission is well-founded - Constitution of India, 1950 -
Arts. 72 and 161 - Sentence I Sentencing- Remission.
613
H
614
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
Code of Criminal Procedure, 1973-ss.432 and 433Whether the "Appropriate Government" is permitted to
exercise the power of remission u/ss.4321433 CrPC after
parallel power has been exercised by the President under
Art. 72 or the Governor under Art.161 or by this Court in its
B Constitutional power under Art.32- Held (per majority): The
exercise of power u/ss.432 and 433 of CrPC will be available
to the Appropriate Government even if such consideration
was made earlier and exercised u!Art. 72 by the President or
u/Art. 161 by the Governor-As far as the application of Art.32
c of the Constitution by Supreme Court is concerned, the
powers u/ss.432 and 433 are to be exercised by the
Appropriate Government statutorily and it is not for the
. Supreme Court to exercise the said power and it is always
left to be decided by the Appropriate Government -
o Sentence I Sentencing - Remission.
Code of Criminal Procedure, 1973 - s.432(7) & (6) -
Whether s.432(7) CrPC 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 coextensive
E -
Whether the Union or the State has primacy over the
subject-matter enlisted in List Ill of the Seventh Schedule to
the Constitution of India for exercise of power of remission -
Whether there can be two Appropriate Governments in a given
case u/s.432(7) CrPC - Held (per majority): The status of
F Appropriate Government whether Union Government or the
State Government will depend upon the order of sentence
passed by the Criminal Court as has been stipulated in
s.432(6) and in the event of specific Executive Power
conferred on the Centre under a law made by the Parliament
G or under the Constitution itself then in the event of the
conviction and sentence covered by the said law of the
Parliament or the provisions of the Constitution even if the
Legislature of the State is also empowered to make a law on
the same subject and coextensive, the Appropriate
H
UNION OF INDIA v. V. SRI HARAN @ MURUGAN
615
Government will be the Union Government having regard to
A
the prescription contained in the proviso to Art. 73(1)(a) of the
Constitution - The principle stated in the decision in G. V.
Ramanaiah case should be applied- Cases which fall within
the four corners of s.432(7)(a) by virtue of specific Executive
Power conferred on the Centre, the same will clothe the Union
B
Government the primacy with the status of Appropriate
Government- Barring cases falling u/s.432(7)(a), in all other
cases where the offender is sentenced or the sentence order
is passed· within the territorial jurisdiction of the concerned
State, the State Government would be the Appropriate C
Government- Constitution of India - Seventh Schedule, List
II/ -Sentence I Sentencing - Remission.
Code of Criminal Procedure, 1973- s.432(1) and (2)-
Whether suo motu exercise of power of remission u/s.432(1)
is permissible in the scheme of the section, if yes, whether D
the procedure prescribed in sub-section (2) of the same
section is mandatory or not- Held(per majority): No suo motu
power of remission is exercisable u/s.432(1) CrPC - It can
only be initiated based on an application of the person
convicted as provided u/s.432 (2) and that ultimate order of E
suspension or remission should be guided by the opinion to
be rendered by the Presiding Officer of the concerned Court
- Sentence I Sentencing- Remission.
Code of Criminal Procedure, 1973 -
s.435(1) -
F
Whether the term "Consultation" stipulated in s.435(1) CrPC
implies "Concurrence" - Specific prescription contained in
s.435(1)(a) CrPC read along with Arts. 72, 73(i)(a), 161 and
162 of the Constitution - Principles derived ·on how and in
what manner the expression "consultation" occurring in
s.435(1)(a) can be construed- Held (per majority): Having G
regard to the principles so culled out, it is imperative that it is
always safe and appropriate to hold that in those situations
covered by sub-clauses (a) to (c) of s.435(1) falling within the ·
jurisdiction of the Central Government it will assume primacy H
616
SUPREME COURT REPORTS
[2015) 14 S.C.R.
A
and consequently the process of "Consultation" in reality be
held as the requirement of "Concurrence"'.
Words and Phrases- Term "consultation" stipulated in
s.435(1) CrPC- Meaning of.
B
In the judgment of Kalifulla, J. (for H.L. Dattu, CJI,
c
D
E
F
G
H
himself and Pinaki C. Ghose, J.)
Swamy Shraddananda (2) alias Murali Manohar
Mishra v. State of Kamataka (2008) 13 SCC 767
: 2008 (11) SCR 93- affirmed.
G V. Ramanaiah v. The Superintendent of Central
Jail, Rajahmundry and others AIR 1974 SC 31 :
1974 (1) SCR 852- held applicable.
Supreme Court Advocates on Record Association
and ors. v. Union oflndia (1993) 4 SCC 441 : 1993
(2) Suppl. SCR 659; S.R. Bommai and others v.
Union of India and others (1994) 3 SCC 1 : 1994
(2) SCR 644 - relied on.
State of U.P. and another v. Johri Mal (2004) 4
SCC 714 : 2004 (1) Suppl. SCR 560; Justice
Chandrashekaraiah (Retired) v. Janekere C.
Krishna and others (2013) 3SCC117: 2013 (3)
SCR 987 - distinguished.
V. Sriharan alias Murugan v. Union of India & Ors.
(2014) 4 sec 242 : 2014 (1) SCR 1093; Union
of India v. V. Sriharan @ Murugan & Ors. 2014
(11) SCC 1; K. Nagaraj and others v. State of
Andhra Pradesh and another1985 (1) SCC 523:
1985 (2) SCR 579; T. Venkata Reddy and others
v. State of Andhra Pradesh 1985 (3) SCC 198:
1985 (3) SCR 509; Gopal Vinayak Godse v. The
State of Maharashtra and others (1961) 3 SCR
440; Maru Ram etc., etc. v. Union of India and
another 1981 (1) SCR 1196; Sambha Ji Krishan
UNION OF INDIA v. V. SRIHARAN @MURUGAN
. Jiv. State of Maharashtra AIR 1974SC 147; State
of Madhya Pradesh v. Ratan Singh and others
(1976) 3 sec 470 : 1976 (O) suppl. scR 552;
Ranjft Singh alias Roda v. Union Territory of
Chandigarh (1984) 1 SCC 31L; Ashok Kumar
alias Golu v. Union of India and others (1991) 3
SCC 498: 1991 (2) SCR 858; Sangeet and Anr.
v. State of Haryana 2013 (2) SCC 452 : 2012 (13)
SCR 85; Subash Chander v. Krishan Lal and
others (2001) 4 SCC 458 : 2001 (2) SCR 864;
Machhi Singh and ors. v. State of Punjab (1983)
3 SCC 470: 1983 (3) SCR 413; Bachan Singh v.
State of Punjab (1980) 2 SCC 684; Jag Mohan
Singh v. State ofU.P (1973) 1SCC20: 1973 (2)
SCR 541; Aloke Nath Dutta and Ors. v. State of
West Bengal (2007) 12 SCC 230 : 2006 (10)
Suppl. SCR 662; DalbirSingh and Ors. v. State
of Punjab (1979) 3 SCC 745 : 1979 (3)
SCR 1059; Shri Bhagwaqn v. State of Rajasthan
(2001) 6 sec 296: 2001 (3) SCR 656; Bhagirath
v. Delhi Administration (1985) 2 SCC 580: 1985
(3) SCR 743; Prakash Dhawal Khairnar (Patil) v.
State of Maharashtra (2002) 2 SCC 35 : 2001 (5)
Suppl. SCR 612; Ram Anup Singh and Ors. v.
State of Bihar (2002) 6 SCC 686; Mohd. Munna
v. Union of India and Ors. (2005) 7 SCC 417 :
2005 (3) Suppl. SCR 233; Jayawant Dattatraya
Suryarao v. State of Maharashtra (2001) 10 SCC
109 : 2001 (5) Suppl. SCR 54 ; Nazir Khan and
others v. State of Delhi (2003) 8 SCC 461 : 2003
(2) Suppl. SCR 884; Satpal alias Sadhu v. State
of Haryana and ors. (1992) 4 SCC172: 1992 (3)
SCR 898; Kehar Singh v. Union of India (1989)
1 SCC 204: 1988 (3) Suppl. SCR 1102; Bachan
Singh v. State of Punjab AIR 1980 SC 898; Machhi
Singh and Others v. State of Punjab AIR 1983 SC
617
A
B
c
D
E
F
G
H
618
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 14 S.C.R.
957 : 1983 (3) SCR 413; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
2009 (6) SCC 498 : 2009 (9) SCR 90; Prajeet
Kumar Singh v. State of Bihar (2008) 4 SCC 434 :
2008 (5) SCR 969; B.A. Umesh v. Registrar
General, High Court of Karnataka (2011) 3 SCC
85: 2011 (2) SCR 367; State of Rajasthan v. Kashi
Ram (2006) 12 sec 254 : 2006 (8) Suppl.
SCR 501; Atbir v. Government of NCT of Delhi
(2010) 9 SCC 1 : 2010 (9) SCR 993; D.K. Basu v.
State of West Bengal AIR 1997 SC 610 : 1996
(10) Suppl. SCR 284; Vikram Singh alias Vicky
& another v. Union of India & others AIR 2015 SC
3577:
2015 (10) SCR 816; Rameshbhai
Chandubhai Rathod v. State of Gujarat 2011 (2)
SCC 764 : 2011 (1) SCR 829; State of Uttar
Pradesh v. Sanjay Kumar 2012 (8) SCC 537 :
2012 (7) SCR 359; II. Sriharan alias Murugan v.
Union of India & Ors. (2014) 4 SCC 242 : 2014
(1) SCR 1093; State of Punjab v. Kesar Singh
(1996) 5. sec 495 : 1996 (3) Suppl. SCR 787 ;
Delhi Administration (now NCT of Delhi) v.
Manohar Lal (2002) 7 SCC 222 : 2002 (2) Suppl.
SCR 1; State (Government of NCT of Delhi) v.
Prem Raj (2003) 7 SCC 121 : 2003 (2) Suppl.
SCR 235; State of Madhya Pradesh v. Ajit Singh
and others (1976) 3 SCC 616; Hanumant Dass
v. Vinay Kumar and ors. (1982) 2 SCC 177 : 1982
(3) SCR 595; Govt. of A.P. and others v. M. T. Khan
(2004) 1 sec 616: 2003 (6) Suppl. SCR 490;
Lalu Prasad Yadav & Anr. v. State of Bihar & Anr.
(2010) 5 SCC 1 : 2010 (4) SCR 334; State of
Gujarat and Anr. v. Justice R.A. Mehta (Retired)
and ors. (2013) 3 SCC 1: 2013 (1) SCR 1; N.
Kannadasan v. Ajay Khose and Ors. (2009) 7 SCC
1 : 2009 (7) SCR 668; State through
UNION OF INDIA v. V. SRI HARAN @ MURUGAN
Superintendent of Police, CBI/SIT v. Nalini and
others (1999) 5 SCC 253 : 1999 (3) SCR 1 -
referred to.
In the judgment of Uday Umesh Lalit, J. (for Sapre. J.
and himselO
Union of India v. V. Sriharan @ Murugan & Ors.
Etc. 2014 (11) SCC 1; State through
Superintendent of Police, CBI/SIT v. Nalini and
others 1999 (5) SCC 253: 1999 (3) SCR 1; L.K.
Venkat v. Union of India and Ors. (2012) 5 SCC
292; Sriharan @ Murugan v. Union of India and
others 2014 (4) SCC 242 : 2014 (1) SCR 1093;
Mohd. Aslam alias Bhure v. Union of India and
oth.ers (2003) 4 sec 1 : 2003 (3) SCR 143; KM.
Nanavati v. State of Bombay (1961) 1 SCR 497;
Kehar Singh and another v. Union of India and
another (1989) 1 SCC 204 : 1988 (3) Suppl.
SCR 1102; Epuru Sudhakar and another v.
Government of Andhra Pradesh and others (2006)
8 SCC 161 : 2007 (9) SCR 599; Rai Sahib Ram
Jawaya Kapur and others v. State of Punjab 1955
(2) SCR 225; State of Madhya Pradesh v. Ratan
Singh and others (1976) 3 SCC 470: 1976 (0)
Suppl. SCR 552; State of Madhya Pradesh v.
Ajit Singh and others (1976) 3 SCC 616;
Hanumant Dass v. Vinay Kumar and others (1982)
2 sec 177 : 1982 (3) SCR 595; Govt. of A.P. and
others v. M. T. Khan (2004) 1 SCC 616: 2003 (6)
Suppl. SCR 490; V. Ramanaiah v.
The
Superintendent of Central Jail Rajahmundl'y and
others. (1974) 3 sec 531 : 1974 (1) SCR 852;
Zameer Ahmed Latifur Rehman Sheikh v. State
of Maharashtra and others (2010) 5 SCC 246:
2010 (4) SCR 1042; People's Union for Civil
Liberties and another v. Union of India (2004) 9
619
A
B
c
D
E
F
G
H
620
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 14S.C.R.
SCC 580 : 2003 (6) Suppl. SCR 860; Kartar
Singh v. State of Punjab (1994) 3 SCC 569 : 1994
(2) SCR 375; Maru Ram etc. etc. v. Union of India
& Another (1981 )1 SCC 106; Sangeet and
another. v. State of Haryana (2013) 2 SCC 452 :
2012 (13) SCR 85; Mohinder Singh v. State of
Punjab (2013) 3 sec 294: 2013 (3) SCR 90;
Yakub Abdul Razak Memon v. State of
Maharashtra through CBI, Bombay (2013) 13
SCC 1: 2013 (1) SCR 1; L& T McNeil Ltd. v. Govt.
of Tamil Nadu (2001) 3SCC170: 2001 (1) SCR
701; State of U. P. & another v. Johri Mal (2004) 4
SCC 714 : 2004 (1) Suppl. SCR 560; State of
Uttar Pradesh and others v. Rakesh Kumar
Keshari a17d another(2011) 5 SCC 341 : 2011 (5)
SCR 1060; Justice Chandrashekaraiah (Retd.) v.
Janekere C. Krishna and others(2013) 3 SCC 117
: 2013 (3) SCR 987; Supreme Court Advocateson-Record Association and others v. Union of
India (1993) 4 sec 441 : 1993 (2) Suppl. SCR
659; State of Gujarat and another v. Justice R.A.
Mehta(Retd.) and others (2013) 3 SCC 1 : 2013
(1) SCR 1; State of West Bengal and others v.
Committee for Protection of Democratic Rights,
West Bengal and others (2010) 3 SCC 571 : 2010
(2) SCR 979; Lalu Prasad Yadav and another v.
State of Bihar and another (201 O) 5 sec 1 : 201 o
(4) SCR 334; G Krishta Goud and J. Bhoomaiah
v. State of Andhra Pradesh and others (1976) 1
SCC 157; Krishnan and others v. State of Haryana
andothers(2013) 14 SCC 24: 2013 (3) SCR 254;
State of Haryana and others v. Jagdish (2010) 4
sec 216: 2010 (3) SCR 716; State (Govt. ofNCT
of Delhi) v. Prem Ram (2003) 7 SCC 121 : 2003
(2) Suppl. SCR 235; Shatrughan Chauhan and
UNION OF INDIAv. V. SRIHARAN @MURUGAN
621
anotherv. Union of India and others(2014) 3 SCC
A
1 : 2014 (1) SCR 609; Gopal Vinayak Godse v.
The State of Maharashtra and others (1961) 3
SCR 440; State of Haryana v. Mahender Singh
and others 2007(13) sec 606 : 2007 (11)
SCR 932; Laxman Naskar v. Union of India and
B
others (2000) 2 sec 595 : 2000 (1) SCR 796;
Dalbir Singh & others v. State of Punjab (1979) 3
SCC 745: 1979 (3) SCR 1059; which in turn had
considered Rajendra Prasad v. State ofU.P. (1979)
3 SCC 646: 1979 (3) SCR 78; Vikram Singh@
C
Vicky & another v. Union of India and others AIR
2015 SC 3577: 2015 (10) SCR 816; Prem Chand
Garg and another v. Excise Commissioner, U.P.
and others AIR 1963 SC 996 : 1963 Suppl. SCR
885; Supreme Court Bar Association v. Union of
D
India & another 1998 ( 4) sec 409 : 1998 (2) SCR
795; Pravasi Bhalai Sangathan v. Union of India
and others 2014 (11) sec 477; Sushi/ Kumar
Sharma \I. Union of India and others (2005) 6 SCC
281 : 2005 (1) Suppl. SCR 730; A.R. Antu/ay v.
E
R.S. Naik (1988) 2 sec 602 : 1988 (1) Suppl.
SCR 1 - referred to.
Case Law Reference
In the judgment of Kalifulla, J. {for H.L. Dattu, CJI, F
himself and Pinaki C. Ghose, J.}
2014 (1) SCR 1093
referred to
Para 1
2014 (11) sec 1
referred to
Para 1
1985 (2) SCR 579
referred to
Para 25
G
1985 (3) SCR 509
referred to
Para·25
2008 (11) SCR 93
affirmed
Para 51
(1961) 3 SCR 440
referred to
Para 52
H
622
SUPREME COURT REPORTS
[2015] 14S.C.R.
A 1981 (1) SCR 1196
referred to
Para 53
AIR 1974 SC 147
referred to
Para 54
1976 Suppl. SCR 552
referred to
Para 55
(1984) 1 sec 31L
referred to
Para 57
B 1991 (2) SCR 858
referred to
Para 58
2001 (2) SCR 864
referred to
Para 59
1983 (3) SCR 413
referred to
Para 65
(1980) 2 sec 684
referred to
Para 65
c 1973 (2) SCR 541
referred to
Para 65
2006 (10) Suppl. SCR 662referred to
Para 66
2001 (3) SCR 656
referred to
Para 70
1979 (3) SCR 1059
referred to
Para 70
1985 (3) SCR 743
referred to
Para 70
D 2001 (5) Suppl. SCR 612 referred to
Para 70 .
c2002) 6 sec 686
referred to
Para 70
2005 (3) Suppl. SCR 233 referred to
Para 70
2001 (5) Suppl. SCR
referred to
Para 70
E 2003 (2) Suppl. SCR 884 referred to
Para 70
1992 (3) SCR 898
referred to
Para 70
1988 (3) Suppl. SCR 1102referred to
Para 80
AIR 1980 SC 898
referred to
Para 85
F 1983 (3) SCR 413
referred to
Para 85
2009 (9) SCR 90
referred to
Para 85
2008 (5) SCR 969
referred to
Para 85
2011 (2) SCR 367
referred tp
Para 85
G 2006 (8) Suppl. SCR 501 referred to
Para 85
2010-(9) SCR 993
referred to
Para 85
1996 (10) Suppl. SCR 284referred to
Para 85
2015 (10) SCR 816
referred to
Para 86
H
2011 (1) SCR 829
referred to
Para 87
UNION OF INDIAv. V. SRIHARAN@MURUGAN
623
2012 (7) SCR 359
referred to
Para 87
A
2012 (13) SCR 85
referred to
Para 105
2014 (1) SCR 1093
referred to
Para 108
1996 (3) Suppl. SCR 787 referred to
Para 108
2002 (2) Suppl. SCR 1
referred to
Para 108
B
2003 (2) Suppl. SCR 235 referred to
Para 108
(1976) 3 sec 616
referred to
Para 114
1982 (3) SCR 595
referred to
Para 114
2003 (6) Suppl. SCR 490 referred to
Para 114
c
1974 (1) SCR 852
held applicable
Para 121
2010 (4) SCR 334
referred to
Para 145
1993 (2) Suppl. SCR 659 relied on
Para 145
2013 (1) SCR 1
referred to
Para 145
2009 (7) SCR 668
referred to
Para 145
D
2004 (1) Suppl. SCR 560 distinguished
Para 146
2013 (3) SCR 987
distinguished
Para 146
1994 (2) SCR 644
relied on
Para 146
1999 (3) SCR 1
referred to
Para 147
E
In the judgment of Udall Umesh Lalit, J. {for Sa~re, J.
and himself}
2014 (11) sec 1
referred to
Para 1
1999 (3) SCR 1
referred to
Para 3
F
(2012) 5 sec 292
referred to
Para 5
2014 (1) SCR 1093
referred to
Para 5
2003 (3) SCR 143
referred to
Para 11
(1961) 1 SCR 497
referred to
Para 15
G
1988 (3) Suppl. SCR 1102referred to
Para 15
2007 (9) SCR 599
referred to
Para 15
1955 (2) SCR 225
referred to
Para 20
H
624
SUPREME COURT REPORTS
[2015] 14S.C.R.
A 1976 Suppl. SCR 552
referred to
Para 23
(1976) 3 sec 616
referred to
Para 23
1982 (3) SCR 595
referred to
Para 23
2003 (6) Suppl. SCR 490 referred to
Para 23
B 1974 (1) SCR 852
referred to
Para 27
2010 (4) SCR 1042
referred to
Para 28
2003 (6) Suppl. SCR 860 referred to
Para 28
c 1994 (2) SCR 375
referred to
Para 28
(1981) 1 sec 106
referred to
Para 31
2012 (13) SCR 85
referred to
Para 32
2013 (3) SCR 90
referred to
Para 32
D 2013 (1) SCR 1
referred to
Para 32
2001 (1) SCR 701
referred to
Para 35
2004 (1) Suppl. SCR 560 referred to
Para 35
E
2011 (5) SCR 1060
referred to
Para 35
2013 (3) SCR 987
referred to
Para 35
1993 (2) Suppl. SCR 659 referred to
Para 35
2013 (1) SCR 1
referred to
Para 35
F 2010 (2) SCR 979
referred to
Para 37
2010 (4) SCR 334
referred to
Para 38
(1976) 1 sec 157
referred to
Para 44
2013 (3) SCR 254
referred to
Para 44
G 2010 (3) SCR 716
referred to
Para 45
2003 (2) Suppl. SCR 235 referred to
Para45
2014 (1) SCR 609
referred to
Para 48
H (1961) 3 SCR 440
referred to
Para 50
UNION OF INDIA v. V. SRIHARAN@ MURUGAN
625
2007 (11) SCR 932
referred to
Para 53
2000 (1) SCR 796
referred to
Para 54
1979 (3) SCR 1059
referred to
Para 56
1979 (3) SCR 78
referred to
Para 56
2015 (10) SCR 816
referred to
Para 65
1963 Suppl. SCR 885
referred to
Para 69
1998 (2) SCR 795
referred to
Para 69
2014 (11) sec 477
referred to
Para 72
2005 (1) Suppl. SCR 730 referred to
Para 72
1988 (1) Suppl. SCR 1
referred to
Para 74
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 48 of2014.
Under Article 32 of the Constitution of India.
WITH
W. P. (Crl.) Nos. 185, 150 and 66 of 2014.
W. P. (Crl.) No. 1215 of 2011.
Ranjit Kumar, SG, A. N. S. Nadkarni, Jugal Kishore Gilda,
AGs, Ms. V. Mohana, Rakesh Dwivedi, Ajit Kumar Sinha,
A
B
c
D
E
T. R. Andhyarujina, Mahabir Singh, Sr. Acjvs., Subramonium
Prasad, Sr. Adv., AAG, C. D. Singh, Gaurav Bhatia, F
Suryanaryan Singh, V. Madhukar, S. S. Shamshery, Anil
Grover, AAGs, Mrs. Binu Tamta, Ms. Movita, Dhruv Tamta,
D. L. Chidananda, R. K. Verma, B. Krishna Prasad,
Ms. Sushma Suri, Sinha Shrey Nikhilesh, Toyesh Tewari,
Sarthak Sachdev, Maanav Kumar, Jai Sahai Endlaw, G
Shouryendu Ray, Vinay Navare, Satyajeet Kr., Keshav Rajan,
Gwen K. B., Ms. Abha R. Sharma, Harshvir Pratap Sharma,
Ajay Sharma, Pankaj Kumar, Amit Sachan, Varun Thakur,
Varlnder Kumar Sharma, Ms. Shraddha Saran, Renjith B.
Marar, Ms. Lakshmi N. Kamal, Ms. Anu Dixit Kaushik, H
626
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
S. C. Patel, M. Yogesh Kanna, Ms. Sansriti Pathak, Jayant
Patel, Anip Sachthey, Ms. Shagun Matta, Kabir S. Bose,
Ms. Nancy Wadhwa, Yug Chaudhry, Ms. Lala Krishnamurty,
Ms. P.R. Mala, S. Prabu Ramasubramanian,AnirudhAnand,
Sidhartha Sharma, S. Gowthaman, Kovilan Poonkuntran,
B Sethu Mahendran, Rohit Kumar, Rishab Sancheti,
K. Paarivendhan, Ms. Anitha Shenoy, Ms. Aparna Appaiah,
E. C. Vdiya Sagar, Anil Kumar Mishra-I, Ashok Kumar Singh,
Sapam Biswajit Meitei, ~S. Vijayanand Sharma,
B. Khushvanshi, Balaji Srinivasan, Ms. Sylona Mahapatra:
C Apoorv Kurup Atul Jha, Sandeep Jha, Dharmendra Kumar
Sinha, Gopal Singh, Manish Kumar, Chand an K Geetha Umar,
Rituraj Biswas, Ms. Varsha Poddar, Guntur Prabhakar,
Ms. Prema Singh, Mishra Saurabh, Ms. Vanshaja Shukla, Ankit
Kr. Lal, Siddharth Geetha Bhatnagar, Anshuman Srivastava,
D S. S. Rebello, Nirnimesh Dube, Sanjay Parikh, Pukhrambam
Ramesh Kumar, Sumit Kumar Vats, Mrs. Geetha Kovilan,
P. R. Kovilan, Tapesh Kumar Singh, Mohd. Waquas,
V. G. Pragasam, Prabu Ramasubramanian, S. J. Aristotle;
Ms. Anitha Shenoy, Ms. Visruti Vijay, Ms. Aruna Mathur, Yusuf
E Khan, (For M/s.Arputham, Aruna & Co.), Ms. Vartika S. Walia,
(For Mis. Corporate Law Group), K. V. Jagdishvaran,
Ms. G Indira, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Puja
Singh, Ms. Pragati Neekhra, Utkarsh Jaiswal, Gaurav
Srivastava, VijayYadav, Karanveer Singh, Ms. Vanshja Shukla,
F Aditya Narayan Singh, Samir Ali Khan, Ms. Madhavi Divan,
Ms. Ranjeeta Rohtagi, Manan Verma, Ms. Jaya Khanna,
Nishant Ramakantrao Katneshwarkar, Arpit Rai, Ms. Rachana
Srivastava Ashutosh Kr. Sharma, Ms. Anvita Cowshish, Jagjit
Singh Chhabra, Renjith B. Marar, Ms. Lakshmi N. Kaimal,
G Ms. Anu Dixit Kaushik, Kumar Gaurav,Amit Sharma, Sandeep
Singh, Ms. Ruchi Kohli, Ramesh Babu, M. R., Jogy Scaria,
Reegan S. Bel, Karanveer Jindal, Ram Sankar, G. Ananda
Selvam, K. Mayil Samy, R. V. Kameshwaran, Mohit D. Ram,
Sushi! Karanjkar, Soumik Ghosal, Siddharth Sijoria,
H
UNION OF INDIA v. V. SRIHARAN@ MURUGAN
627
Dharmendra Kishor, K. N. Rai, Yatendra Sharma, Prashant A
Kumar, Sanjay Kumar Vi sen, Noopur Singhal, M . .K. Thakur,
Ms. Mala Dubey, Kamal Mohan Gupta, Ms. K. Enatoli Serna,
Edward Belho, Amit Kumar Singh, S. Udaya Kumar Sagar,
Krishna Kumar Singh, Advs. for.the appearing parties.
The Judgments and Order of the Court were delivered by:
B
FAKKIR MOHAMED 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 C
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 D
death. In the judgment reported as V. Sriharan alias Murugan
v. Union of India & 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.
E
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 & Ors. - 2014 (11) SCC 1 and
that is how this Writ Petition has now been placed before us.
F
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 G
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
H
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B
c
D
E
F
SUPREME COURT REPORTS
[2015] 14 S.C.R.
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 Ill 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
G 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
H
UNION OF INDIA v. V. SRI HARAN@ MURUGAN
629
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
who appeared forthe State of Tamil Nadu as well as respondent . A
Nos. 1 to 7, we find that the following issues arise for our
consideration:
(a) 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?
B
(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 C
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 D
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 E
exercise of power under Section 432(7) over the subject
matter enlisted in List Ill of the Seventh Schedule for grant
of remission?
( e) Whether there can be two Appropriate Governments
under S.ection 432(7) of the Code?
F
(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 G
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
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[2015] 14S.C.R.
A
since the said question was not raised and considered in the
order of Reference reported as Union of India v. V. Sriharan
alias Murugan & 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
B
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
C
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
o 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
E and consequently any attempted exercise will fall to the ground.
4. Mr. Rakesh Dwivedi, learned Senior Counsel who
appeared forthe State of Tamil Nadu would, however, contend
that the Writ Petition does riot reflect any violation of
fundamental right for invoking Article 32, that the maintainability
F
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
G 143 and 145(3) read along with the proviso to the said subArticle 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,
H
UNION OF INDIAv. V. SRIHARAN @MURUGAN
631
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
the learned Senior Counsel submitted that none of them would A
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 &
B
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 c
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 D
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
E
Schedule consisting of Lists I to Ill 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 F
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 G
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
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SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
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
Cr.P.C, the questions which have been referred for the
consideration of the Constitution Bench have nothing to do
B 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
c 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.
D
7. In fact in this context, the submission of Learned
Solicitor General that the answers to the various questions
referred for consideration by the Constitution Bench may throw
light on individual cases which are pending or which may arise
E
in future for being dispo!!ed of in tune with the answers that
may be rendered needs to be appreciated.
8. Keeping the above factors in mind, precisely the nature
of questions culminates as follows:
(i) As to whether the imprisonment for life means till the
F
end of convict's life with or without any scope for
..
remission?
(ii) Whether a speci(!I category of sentence instead of
death for a term exceeding 14 years can be made by
G
putting that category beyond grant of remission?
(iii) Whether the power under Sections 432 and 433 Code
of Criminal Procedure by Appropriate Government
would be available even after the Constitutional power
under Articles 72 and 161 by the President and the
..
H
Governor is exercised as well as the power exercised
UNION OF INDIA v. V. SRI HARAN @ MURUGAN
633
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
by this Court under Article 32?
A
(iv)Whether State or the Central Government have the
primacy under Section 432(7) of Code of Criminal
Procedure?
(v) Whether there can be two Appropriate Governments B
under Section 432(7)?
(vi)Whether power under Section 432(1) can. be
exercised suo motu without following the procedure
prescribed under section 432(2)?
(vii)Whether the expression "Consultation" stipulated in C
435(1) really means "Concurrence"?
9. In order to appreciate the various contentions raised
on the above questions by the respective parties and also to
arrive at a just conclusion and render an appropriate answer, o
it is necessary to note the relevant provisions in the
Constitution, the Indian Penal Code and the Code of Criminal
Procedure The relevant provisions of the Constitution which
require to be noted are Articles 72, 73, 161, 162, 246(4),
245(2), 249, 250 as well as some of the Entries in List I, II and
E
Ill of the Seventh Schedule. In the Indian Penal Code the relevant
provisions required to be stated are Sections 6, 7, 17, 45, 46,
53, 54, 55, 55A, 57, 65, 222, 392, 457, 458, 370, 376A 376B
and 376E. In the Code of Criminal. Procedure, the provisions
relevant for our purpose are Sections 2(y), 4, 432, 433, 434,
F
433A and 435. The said provisions can be noted as and when
we examine those provisions and make an analysis of its
application in the context in which we have to deal with those
provisions in the case on hand.
10. Keeping in.mind the above perception, we proceed G
to examine the provisions contained in the Constitution.Artklles
72, 73, 161and162 of the Constitution read as under:
"Article 72.- Power of President to grant pardons,
etc., and to suspend, remit or commute sentences
H
634
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B
c
D
E
F
G -
H
SUPREME COURT REPORTS
[2015] 14 S.C.R.
in certain cases .• ( 1) the President shall have the power
to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the
sentence of any person convicted of any offence-
( a) In all cases where the punishment or sentence is
by a Court Martial ;
(b) In all cases where the punishment or sentence is
for an offence against any law relating to a matter
to which the Executive Power of the Union extends;
(c)ln all cases where the sentence is a sentence of
death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the
power conferred by law on any officer of the Armed
Forces of the Union to suspend, remit or commute a
sentence passed by a Court martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the
power to suspend, remit or commute a sentence of death
exercisable by the Governor ofa State under any law for
the time being in force."
Article 73. Extent of executive power of the Union
(1) Subject to the provisions of this Constitution, the
executive power of the Union shall extend-
(a) to the matters with respect to which Parliament has
power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue
of any treaty or agreement:
Provided that the executive power referred to in subclause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in
any State to matters with respect to which the Legislature
of the State has also power to make laws.
UNION OF INDIA v. V. SRI HARAN@ MURUGAN
635
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(2) Until otherwise provided by Parliament, a State and A
any officer or authority of a State may, notwithstanding
anything in this article, continue to exercise in matters
with respect to which Parliament has power to make laws
for that State such executive power or functions as the
State or officer or authority thereof could exercise B
immediately before the. commencement of this
Constitution.
Article 161.- Power of Governor to grant pardons,
etc., and to suspend, remit or commute sentences
in certain cases
C
The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment
or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating
0
to a matter to which the executive power of the State
extends.
Article 162.· Extent of executive power of State
Subject to the provisions of this Constitution, the
executive power of a State shall extend to the matters
E
with respect to which the Legislature of the State has
power to make laws:
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to
F
make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof.
11, Under Article 72, there is all pervasive power with G
the President as the Executive Head of the Union as stated
under Article 53, to grant pardons, reprieves, respite and
remission of punishments apart from the power to suspend,
remit or commute the sentence of any person convicted of any
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636
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[2015] 14 S.C.R.
A
offence. Therefore, the substantive part of sub-Article (1 ), when
read, shows the enormous Constitutional power vested with
the President to do away with the conviction imposed on any
person of any offence apart from granting the lesser relief of
reprieve, respite or remission of punishment. The power also
B includes power to suspend, remit or commute the sentence of
any person convicted of any offence. Sub-Article (1 ), therefore,
discloses that the power of the President can go to the extent
of wiping of the conviction of the person of any offence by
granting a pardon apart from the power to remit the punishment
C or to suspend or commute the sentence.
12, For the present purpose, we do not find any need to
deal with Article 72(1 )(a). However, we are very much
concerned with Article 72(1 )(b) which has to be read along
with Article 73 of the Constitution. Reading Article 72(1 )(b) in
D isolation, it prescribes the power of the President for the grant
of pardon, reprieve, remission, commutation etc.