A.G. Perarivalan vs State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu

A.G. Perarivalan vs State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 833-834 of 2022

(@ SLP (Crl.) Nos. 10039-10040 of 2016)

A.G. Perarivalan

 ….Appellant

Versus

State, Through Superintendent of Police

CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr.

…. Respondent (s)

W I T H

Criminal Appeal No. 835 of 2022

(@ SLP (Crl.) No.2363 of 2021)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

1. Appellant is accused No.18 in Crime No. 329 of 1991

registered at Sriperumbudur Police Station for assassination

of Shri Rajeev Gandhi, former Prime Minister of India, on

21.05.1991. The Appellant was convicted for offences under

the Indian Penal Code, 1860 (for short, ‘IPC’), the Arms Act,

1951, the Explosive Substances Act, 1908, the Passport Act,

1967, the Foreigners Act, 1946, the Indian Wireless

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Telegraphy Act, 1933 and the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (for short, ‘TADA’). He was

sentenced to death by the designated TADA Court. This

Court, by a judgment dated 11.05.1999, upheld the

conviction and sentence imposed on the Appellant.

However, the conviction and sentence under the TADA were

set aside. The review petition filed by the Appellant was

dismissed by an order dated 08.10.1999. The Appellant,

along with three others, filed mercy petitions before the

Governor of Tamil Nadu under Article 161 of the Constitution

of India, which were rejected on 27.10.1999. The mercy

petition of the Appellant was reconsidered by the Governor,

pursuant to an order passed by the High Court of Tamil Nadu,

and was rejected again on 25.04.2000. The Appellant filed a

mercy petition before the President of India under Article 72

of the Constitution, which was also rejected on 12.08.2011.

Aggrieved thereby, a writ petition was filed in the High Court

of Madras. The said writ petition filed by the Appellant

before the High Court of Madras was transferred to this Court

by an order dated 01.05.2012. Thereafter, the death

sentence of the Appellant was commuted to imprisonment

for life by this Court on 18.02.2014.

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2. In view of the Appellant having undergone a sentence

of 23 years, the State of Tamil Nadu proposed remission of

the sentence of life imprisonment imposed on the Appellant

to the Government of India, requesting its views within three

days. The said proposal was made in view of Section 435 of

the Criminal Procedure Code, 1973 (for short, ‘CrPC’),

according to which the Central Government was required to

be consulted, as the case had been investigated by the

Central Bureau of Investigation (CBI). The Union of India

immediately filed criminal miscellaneous petitions in the

cases disposed of by this Court on 18.02.2014, commuting

the sentence imposed on the Appellant to life imprisonment.

In these petitions, the Central Government sought a direction

to the State of Tamil Nadu not to release the Appellant. An

order of status quo was passed by this Court in the said

criminal miscellaneous petitions on 20.02.2014. The Review

Petitions filed by the Union of India against the judgment

dated 18.02.2014 commuting the sentence of the Appellant,

were dismissed.

3. On 24.02.2014, the Union of India filed a writ petition

for quashing the communication from the State of Tamil Nadu

dated 19.02.2014 and its decision to consider commutation /

remission of the sentence imposed on the Appellant and

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some others. The writ petition was referred to a Constitution

Bench of this Court by order dated 25.04.2014, after

formulating seven questions for consideration. By a

judgment dated 02.12.2015, this Court answered the

questions that were framed for consideration in Union of

India v. Sriharan

1

.

4. On 30.12.2015, the Appellant filed a petition under

Article 161 of the Constitution for remission of his sentence.

The writ petition filed by the Union of India for quashing the

proposal of the State Government to grant remission to the

Appellant was disposed of by this Court on 06.09.2018, by

taking note of the fact that a petition had been filed by the

Appellant under Article 161 of the Constitution and giving

liberty to the authority concerned to dispose of the said

petition as deemed fit. A resolution was passed by the Tamil

Nadu Cabinet on 09.09.2018, recommending the release of

the Appellant, which was sent to the Governor.

5. In the meanwhile, the Appellant filed a criminal

miscellaneous petition before the designated TADA Court,

Chennai praying for effective monitoring of the pending

investigation of the assassination. The said petition was

dismissed by the TADA Court on 10.12.2013, against which

1 (2016) 7 SCC 1

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the Appellant approached the High Court under Section 482,

CrPC, by filing a criminal original petition. Another criminal

original petition was filed seeking direction to the CBI to

complete the pending investigation expeditiously and to file

a status report before the High Court once every two months.

The High Court dismissed both the petitions by separate

orders on 06.03.2015, being of the opinion that the Appellant

should have approached the Supreme Court. These Appeals

have been filed against the said orders passed by the High

Court on 06.03.2015. Notice was issued by this Court in Crl.

M.P. No. 118421 of 2017 filed by the Appellant seeking

suspension of sentence.

6. During the pendency of these Appeals, this Court was

informed that no decision has been taken by the Governor on

the resolution passed by the Tamil Nadu Cabinet on

09.09.2018, recommending release of the Appellant. On

11.02.2020, this Court directed the Additional Advocate

General for the State of Tamil Nadu to get instructions on the

status of the recommendation of the Council of Ministers to

the Governor. During the course of hearing of applications

filed for parole, the High Court was informed that the

Governor has not taken a decision on the recommendation

made by the State Cabinet pertaining to the remission of the

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Appellant’s sentence, as the final report of the MultiDisciplinary Monitoring Agency (for short, ‘MDMA’) was

awaited. The CBI filed an affidavit in these Appeals on

20.11.2020 informing this Court that no request had been

made by the Governor seeking report of the MDMA and that

the petition filed under Article 161 can be decided on its own

merits.

7. The learned Solicitor General of India appeared on

21.01.2021 to inform this Court that a decision would be

taken by the Governor on the petition filed under Article 161

without any further delay. Thereafter, on 04.02.2021, an

affidavit was filed by the Deputy Secretary, Ministry of Home

Affairs, stating that the Governor had, by order dated

25.01.2021, determined the President of India to be the

appropriate authority to decide the petition filed by the

Appellant under Article 161 and had forwarded the same,

along with the recommendation made by the Tamil Nadu

cabinet, to the President of India.

8. By an order dated 09.03.2022, this Court released the

Appellant on bail, taking into account the fact that the

Appellant had spent more than 31 years in jail, that his

conduct in jail was good, he had acquired several educational

qualifications and was suffering from ill health.

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9. On behalf of the Appellant, Mr. Gopal

Sankaranarayanan, learned Senior Counsel, submitted that

the recommendation made by the State Cabinet to grant

remission to the Appellant should have been decided by the

Governor. The Governor does not have power to refer the

recommendation of the State Cabinet to the President of

India. He contended that the recommendation made by the

State Cabinet is binding on the Governor and he cannot

exercise independent discretion. At the most, the Governor

could have requested the State Cabinet to reconsider its

decision but he lacked the jurisdiction or power to refer the

recommendation made by the State Cabinet to the President

of India, as under Article 161 the Governor exercised power

on the aid and advice of the Council of Ministers. It was

further submitted that if the argument of the competent

authority being the President of India is accepted, then every

pardon / suspension granted by the Governor till date under

Article 161 would be unconstitutional.

10. Mr. Rakesh Dwivedi, learned Senior Counsel appearing

for the State of Tamil Nadu, supported the stand of the

Appellant by arguing that the scope of Articles 161 to 163

has been explained by more than one Constitution Bench of

this Court, according to which, unless expressly provided by

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the Constitution, the Governor is bound by the decision of

the Cabinet of Ministers. If a decision made by the Governor

on the advice of the Council of Ministers is found to be

beyond the jurisdiction of the State Government, it can

always be challenged before constitutional courts. However,

the Governor is not constitutionally empowered to sit in

judgment of the recommendation of the Council of Ministers.

He further urged that there is no provision in the Constitution

which enables the Governor to refer the recommendation of

the State Cabinet for the decision of the President of India.

Such actions of the Governor would be in violation of the

federal structure of this country, which is a basic feature of

our Constitution.

11. Mr. K. M. Natraj, learned Additional Solicitor General of

India, submitted that the appropriate Government in the

matter of remission / commutation in the present case is the

Union of India. He sought support from certain passages of

the judgment of this Court in Sriharan (supra) and argued

that the Governor rightly referred the recommendation made

by the State Cabinet, as it is only the President of India who

can take a decision on the remission / commutation of the

sentence of the Appellant. He further contended that the

Governor was not always bound by the advice of the Council

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of Ministers and there were recognised exceptions to the said

rule where the Governor is required to act in his own

discretion. For the said proposition, he relied upon a

judgment of this Court in M.P. Special Police

Establishment v. State of M.P.

2

, wherein it was held that

on those occasions where on facts the bias of the Council of

Ministers became apparent and / or the decision of the

Council of Ministers is shown to be irrational and based on

non-consideration of relevant factors, the Governor would be

right, on the facts of that case, to act in his own discretion

and grant sanction. He made an attempt to convince this

Court that the point canvassed by the Appellant pertaining to

the reference of the recommendations of the State Cabinet

to the President of India is beyond the scope of the writ

petition and, therefore, should not be entertained.

12. The only point that requires to be considered in these

Appeals is the correctness of the reference made by the

Governor to the President of India on 25.01.2021, without

taking a decision on the recommendation made by the State

Cabinet on remission of the sentence of the Appellant. We

do not accept the preliminary objection of the learned

Additional Solicitor General that this point is not within the

2 (2004) 8 SCC 788

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scope of this appeal. From the facts mentioned above, it is

clear that these Appeals are filed against orders passed by

the High Court refusing to entertain petitions filed by the

Appellant, one of which was against a judgment of the

designated TADA Court rejecting the request for effective

monitoring of the investigation into the remaining aspects of

this case. This Court had issued notice in Cri. M.P. No.

118421 of 2017 filed by the Appellant seeking suspension of

sentence, wherein it was stated that despite the State

Government having already proposed premature release, the

Central Government had not taken any decision on the fate

of the Appellant till 2017, as required pursuant to the

judgment in Sriharan (supra). Further, during the pendency

of these Appeals, the petition preferred by the Appellant for

remission was favourably considered by the State Cabinet on

09.09.2018 but the Governor did not take any decision on

the said recommendation. Ultimately, the Governor without

taking a decision on the recommendation made by the State

Cabinet, referred the matter to the President of India. In view

of the importance of the issue that arises for consideration of

this Court, we refuse to entertain the objection of the learned

Additional Solicitor General and proceed to determine the

point that is raised by the Appellant.

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13. The power to grant pardons, reprieves, respites or

remissions of punishment or to suspend, remit or commute

the sentence of any person convicted of an offence against

any law related to which the executive power of the State

extends is vested in the Governor under Article 161 of the

Constitution. Article 162 makes it clear that the executive

power of the State shall extend to matters with respect to

which the Legislature of the State has power to make laws.

Article163 of the Constitution provides that there shall be a

Council of Ministers with the Chief Minister at the head to aid

and advise the Governor in the exercise of his functions,

except in so far as he is by or under this Constitution

required to exercise his functions or any of them in his

discretion.

14. The limits within which the executive Government can

function under the Indian Constitution can be ascertained

without much difficulty by reference to the form of the

executive which our Constitution has set up. Our

Constitution, though federal in its structure, is modelled on

the British parliamentary system where the executive is

deemed to have the primary responsibility for the

formulation of governmental policy and its transmission into

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law though the condition precedent to the exercise of this

responsibility is its retaining the confidence of the legislative

branch of the State. The Governor occupies the position of

the head of the executive in the State but it is virtually the

Council of Ministers in each State that carries on the

executive Government. In the Indian Constitution, therefore,

we have the same system of parliamentary executive as in

England and the Council of Ministers consisting, as it does, of

the members of the legislature is, like the British Cabinet, “a

hyphen which joins, a buckle which fastens the legislative

part of the State to the executive part”.3

15. Under the Cabinet system of Government as embodied

in our Constitution the Governor is the constitutional or

formal head of the State and he exercises all his powers and

functions conferred on him by or under the Constitution on

the aid and advice of his Council of Ministers, save in spheres

where the Governor is required by or under the Constitution

to exercise his functions in his discretion. Wherever the

Constitution requires the satisfaction of the President or the

Governor for the exercise of any power or function by the

President or the Governor, as the case may be, as for

example in Articles 123, 213, 311(2) proviso (c), 317, 352(1),

3 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225

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356 and 360, the satisfaction required by the Constitution is

not the personal satisfaction of the President or of the

Governor but is the satisfaction of the President or of the

Governor in the constitutional sense under the Cabinet

system of Government. It is the satisfaction of the Council of

Ministers on whose aid and advice the President or the

Governor generally exercises all his powers and functions.4

16. Even though the Governor may be authorised to

exercise some functions, under different provisions of the

Constitution, the same are required to be exercised only on

the basis of the aid and advice tendered to him under Article

163, unless the Governor has been expressly authorised, by

or under a constitutional provision, to discharge the function

concerned, in his own discretion.5

17. A Constitution Bench of this Court in Maru Ram v.

Union of India

6

 authoritatively summed up the position with

respect to Article 161, as reproduced hereinafter: “…the

Governor is the formal head and sole repository of the

executive power but is incapable of acting except on, and

according to, the advice of his Council of Ministers. The

upshot is that the State Government, whether the Governor

4 Samsher Singh v. State of Punjab (1974) 2 SCC 831

5 Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative

Assembly (2016) 8 SCC 1

6 (1981) 1 SCC 161

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likes it or not, can advice and act under Article 161, the

Governor being bound by that advice. The action of

commutation and release can thus be pursuant to a

governmental decision and the order may issue even without

the Governor's approval although, under the Rules of

Business and as a matter of constitutional courtesy, it is

obligatory that the signature of the Governor should

authorise the pardon, commutation or release”.

18. By following the dictum in Samsher Singh v. State of

Punjab

7

, this Court in Maru Ram (supra) further held that in

the matter of exercise of the powers under Articles 72 and

161, the two highest dignitaries in our constitutional scheme

act and must act not on their own judgment but in

accordance with the aid and advice of the ministers. The

constitutional conclusion is that the Governor is but a

shorthand expression for the State Government.

19. The law laid down by this Court, as detailed above, is

clear and explicit. The advice of the State Cabinet is binding

on the Governor in matters relating to commutation /

remission of sentences under Article 161. No provision under

the Constitution has been pointed out to us nor any

satisfactory response tendered as to the source of the

7 (1974) 2 SCC 831

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Governor’s power to refer a recommendation made by the

State Cabinet to the President of India. In the instant case,

the Governor ought not to have sent the recommendation

made by the State Cabinet to the President of India. Such

action is contrary to the constitutional scheme elaborated

above. It is relevant to point out that the recommendation

made by the State Cabinet was on 09.09.2018, which

remained pending before the Governor for almost two and a

half years without a decision being taken. It was only when

this Court started enquiring about the reason for the decision

being delayed, the Governor forwarded the recommendation

made by the State Government for remission of the

Appellant’s sentence to the President of India.

20. We are fully conscious of the immunity of the Governor

under the Constitution with respect to the exercise and

performance of the powers and duties of his office or for any

act done or purported to be done by him in the exercise and

performance of such powers and duties. However, as held by

this Court in numerous decisions, this Court has the power of

judicial review of orders of the Governor under Article 161,

which can be impugned on certain grounds. Non-exercise of

the power under Article 161 is not immune from judicial

review, as held by this Court in Epuru Sudhakar v. Govt.

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of A.P.

8

. Given petitions under Article 161 pertain to the

liberty of individuals, inexplicable delay not on account of the

prisoners is inexcusable as it contributes to adverse physical

conditions and mental distress faced by a prisoner, especially

when the State Cabinet has taken a decision to release the

prisoner by granting him the benefit of remission /

commutation of his sentence.

21. The learned Additional Solicitor General, on the basis of

the judgment of this Court in M.P. Special Police

Establishment (supra), argued that an irrational decision of

the Cabinet can be examined by the Governor in his

discretion to come to a different conclusion. Grant of sanction

for prosecution under Section 197, CrPC against two

Ministers of the Government of Madhya Pradesh was the

subject matter of the said case. On the basis of a complaint

made to the Lokayukta for illegal release of lands, the

Lokayukta investigated and submitted a report stating that

there were sufficient grounds for prosecuting the two

Ministers under the Prevention of Corruption Act, 1988. The

Council of Ministers took a decision no material was available

against both the Ministers for grant of sanction. However,

the Governor was of the opinion that a prima facie case for

8 (2006) 8 SCC 161

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prosecution was made out and granted sanction. Writ

petitions were filed under Article 226 of the Constitution by

the aggrieved Ministers on the ground that the Governor

could not have acted in his discretion within the meaning of

Article 163 of the Constitution. A single Judge of the High

Court of Madhya Pradesh allowed the writ petitions of the

Ministers by concluding that granting sanction for

prosecuting the Ministers was not a function which could be

exercised by the Governor ‘in his discretion’ and the

Governor could not have acted contrary to the aid and advice

of the Council of Ministers. This decision was upheld by the

Division Bench of the High Court, aggrieved by which appeals

were filed before this Court. This Court reversed the

judgment of the High Court and held that while the matter of

sanction for prosecution is on the aid and advice of the

Council of Ministers and not at the discretion of the Governor

in normal circumstances, an exception may arise on the

grant of sanction to prosecute either a Chief Minister or a

Minister where as a matter of propriety the Governor may

have to act in his own discretion. It was noted by this Court

that a relevant consideration such as the report of the

Lokayukta was absent in the mind of the Council of Ministers

while refusing to grant sanction and such refusal to take into

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consideration a relevant fact or orders passed on the basis of

irrelevant and extraneous factors not germane to the

purpose of arriving at the conclusion would vitiate an

administrative order. In such cases, this Court was of the

opinion that the Governor can act in his own discretion, or

else, there would be a complete breakdown of the rule of law.

22. We are afraid that the judgment of this Court in M.P.

Special Police Establishment (supra) is not applicable to

the facts of the present case. No arguments have been put

forth to make out a case of non-consideration of relevant

factors by the State Cabinet or of the State Cabinet having

based its recommendation on extraneous considerations.

Moreover, in the said case, the Governor had taken a

decision which was subsequently challenged, unlike the

present case, where the Governor has merely forwarded the

recommendation made by the State Cabinet to the President

of India.

23. Strong reliance was placed by Mr. Natraj on the

judgment of this Court in Sriharan (supra) to contend that it

is only the President of India who has the power to pardon or

grant remission or commutation of sentence, when a

sentence is imposed under any of the provisions of the IPC

and that the Governor has no power to grant pardon in

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exercise of his power under Article 161 of the Constitution.

One of the points that was framed for consideration by the

Constitution Bench in Sriharan (supra) pertained to the

determination of the “appropriate Government” for exercise

of powers under Sections 432 and 433, CrPC. In the opinion

of Ibrahim Kalifulla, J. (speaking for himself, Dattu, C.J. and

Ghose, J.), the response was given in the following terms:

“Questions 52.3, 52.4 and 52.5:

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 coextensive?

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?

Answer

180. The status of appropriate Government whether the

Union Government or the State Government will depend

upon the order of sentence passed by the criminal court

as has been stipulated in Section 432(6) and in the event

of specific Executive Power conferred on the Centre under

a law made by Parliament or under the Constitution itself

then in the event of the conviction and sentence covered

by the said law of Parliament or the provisions of the

Constitution even if the Legislature of the State is also

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empowered to make a law on the same subject and

coextensive, the appropriate Government will be the

Union Government having regard to the prescription

contained in the proviso to Article 73(1)(a) of the

Constitution. The principle stated in the decision in G.V.

Ramanaiah [G.V. Ramanaiah v. Supt. of Central Jail, (1974)

3 SCC 531 : 1974 SCC (Cri) 6 : AIR 1974 SC 31] should be

applied. In other words, cases which fall within the four

corners of Section 432(7)(a) by virtue of specific Executive

Power conferred on the Centre, the same will clothe the

Union Government the primacy with the status of

appropriate Government. Barring cases falling under

Section 432(7)(a), in all other cases where the offender is

sentenced or the sentence order is passed within the

territorial jurisdiction of the State concerned, the State

Government would be the appropriate Government.”

24. Lalit, J., in a concurring opinion (speaking for himself

and Sapre, J.), answered the question as under –

“219. We are, however, concerned in the present case

with offence under Section 302 IPC simpliciter. The

respondent convicts stand acquitted insofar as offences

under the TADA are concerned. We find force in the

submissions of Mr Rakesh Dwivedi, learned Senior

Advocate that the offence under Section 302 IPC is

directly related to “public order” under Schedule VII List II

Entry 1 to the Constitution and is in the exclusive domain

of the State Government. In our view the offence in

question is within the exclusive domain of the State

Government and it is the Executive Power of the State

which must extend to such offence. Even if it is accepted

for the sake of argument that the offence under Section

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302 IPC is referable to Entry 1 of List III, in accordance

with the principles as discussed hereinabove, it is the

Executive Power of the State Government alone which

must extend, in the absence of any specific provision in

the Constitution or in the law made by Parliament.

Consequently, the State Government is the appropriate

Government in respect of the offence in question in the

present matter. It may be relevant to note that right from

K.M. Nanavati v. State of Bombay [K.M. Nanavati v. State

of Bombay, AIR 1961 SC 112 : (1961) 1 Cri LJ 173 : (1961)

1 SCR 497 at p. 516] in matters concerning offences

under Section 302 IPC it is the Governor under Article 161

or the State Government as appropriate Government

under the CrPC who have been exercising appropriate

powers.”

25. Section 432(7), CrPC is reproduced below.

432. Power to suspend or remit sentences.

…

(7) In this section and in section 433, the expression

“appropriate Government” means,-

(a) in cases where the sentence is for an offence against,

or the order referred to in sub-section (6) is passed under,

any law relating to a matter to which the executive power

of the Union extends, the Central Government;

(b) in other cases, the Government of the State within

which the offender is sentenced or the said order is

passed.

To ascertain the extent of the executive power of the Union,

this Court looked into and rendered a detailed analysis of

Articles 72, 73, 161 and 162. The focal point of discussion in

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the judgment relates to the proviso to Article 73 of the

Constitution. Article 73(1) reads as below:

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.

…

26. After an exhaustive discussion, including reference to

the Constituent Assembly Debates on draft Article 60 which

corresponds to Article 73, it was held by this Court that

where the State Legislature was also empowered to make

laws on the same subject, determination of whether the

executive power of the Union Government would extend to

the State Government or not has to be decided by taking into

account the fact of whether executive power has been

expressly conferred on the Centre, either by the Constitution

or under the law made by the Parliament. Therefore, to

assess whether the executive power of the Union extended

22 | P a g e

to a subject-matter in List III of the Seventh Schedule of the

Constitution, it has to be examined whether executive power

had been expressly conferred on the Union under the

Constitution or the law made by the Parliament, failing which

the executive power of the State remained intact. To our

minds, it is clear from the said judgment that insofar as

offences under Section 302, IPC are concerned, in the

absence of any specific provision under the Constitution or

under law made by the Parliament expressly conferring

executive power on the Union, the executive power of the

State would extend, irrespective of whether the subjectmatter of Section 302 is considered to be covered by an

Entry in List II or an Entry in List III of the Seventh Schedule.

27. Mr. Sankaranarayanan has submitted a list of cases

wherein this Court, in the specific facts and circumstances of

those cases, has directed release of the prisoner convicted

under Section 302 simpliciter or along with other offences,

taking note of the prolonged period of incarceration,

educational qualifications obtained during the period of

incarceration, conduct in jail as well as the futility of

subjecting the prisoners to another round of litigation.

28. The Appellant was 19 years of age at the time of his

arrest and has been incarcerated for 32 years, out of which

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he has spent 16 years on the death row and 29 years in

solitary confinement. There has been no complaint relating

to his conduct in jail. On the two occasions that the

Appellant had been released on parole, there had been no

complaint regarding his conduct or breach of any condition of

release. Medical records, filed on behalf of the Appellant,

show that he is suffering from chronic ailments. Apart from

his good behaviour in jail, the Appellant has also educated

himself and successfully completed his +2 exams, an

undergraduate degree, a postgraduate degree, a diploma

and eight certification courses. Given that his petition under

Article 161 remained pending for two and a half years

following the recommendation of the State Cabinet for

remission of his sentence and continues to remain pending

for over a year since the reference by the Governor, we do

not consider it appropriate to remand the matter for the

Governor’s consideration. In the absence of any other

disqualification and in the exceptional facts and

circumstances of this case, in exercise of our power under

Article 142 of the Constitution, we direct that the Appellant is

deemed to have served the sentence in connection with

Crime No. 329 of 1991. The Appellant, who is on bail, is set

at liberty forthwith.

24 | P a g e

29. In conclusion, we have summarised our findings below:

(a) The law laid down by a catena of judgments of this Court

is well-settled that the advice of the State Cabinet is

binding on the Governor in the exercise of his powers

under Article 161 of the Constitution.

(b) Non-exercise of the power under Article 161 or

inexplicable delay in exercise of such power not

attributable to the prisoner is subject to judicial review

by this Court, especially when the State Cabinet has

taken a decision to release the prisoner and made

recommendations to the Governor to this effect.

(c) The reference of the recommendation of the Tamil Nadu

Cabinet by the Governor to the President of India two

and a half years after such recommendation had been

made is without any constitutional backing and is

inimical to the scheme of our Constitution, whereby “the

Governor is but a shorthand expression for the State

Government” as observed by this Court9

.

(d) The judgment of this Court in M.P. Special Police

Establishment (supra) has no applicability to the facts

of this case and neither has any attempt been made to

make out a case of apparent bias of the State Cabinet or

9 Maru Ram v. Union of India (supra)

25 | P a g e

the State Cabinet having based its decision on irrelevant

considerations, which formed the fulcrum of the said

judgment.

(e) The understanding sought to be attributed to the

judgment of this Court in Sriharan (supra) with respect

to the Union Government having the power to remit /

commute sentences imposed under Section 302, IPC is

incorrect, as no express executive power has been

conferred on the Centre either under the Constitution or

law made by the Parliament in relation to Section 302. In

the absence of such specific conferment, it is the

executive power of the State that extends with respect

to Section 302, assuming that the subject-matter of

Section 302 is covered by Entry 1 of List III.

(f) Taking into account the Appellant’s prolonged period of

incarceration, his satisfactory conduct in jail as well as

during parole, chronic ailments from his medical records,

his educational qualifications acquired during

incarceration and the pendency of his petition under

Article 161 for two and a half years after the

recommendation of the State Cabinet, we do not

consider it fit to remand the matter for the Governor’s

consideration. In exercise of our power under Article 142

26 | P a g e

of the Constitution, we direct that the Appellant is

deemed to have served the sentence in connection with

Crime No. 329 of 1991. The Appellant, who is already on

bail, is set at liberty forthwith. His bail bonds are

cancelled.

30. The Appeals are disposed of accordingly.

 .....................................J.

 [ L. NAGESWARA RAO ]

 .....................................J.

 [ B. R. GAVAI ]

.....................................J.

 [ A. S. BOPANNA ]

New Delhi,

May 18, 2022.

27 | P a g e

1

ITEM NO.1503 COURT NO.5 SECTION II-C

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 10039-

10040/2016

(Arising out of impugned final judgment and order dated 06-03-2015

in CRLOP No. 4084/2015 06-03-2015 in CRLOP No. 5073/2015 passed by

the High Court Of Judicature At Madras)

A.G. PERARIVALAN Petitioner(s)

 VERSUS

THE STATE, SUPERINTENDENT OF POLICE CBI/SIT/MMDA,

CHENNAI, TAMIL NADU AND ANR. Respondent(s)

( IA No. 101631/2020 - CLARIFICATION/DIRECTION

 IA No. 73470/2017 - PERMISSION TO FILE ADDITIONAL

DOCUMENTS/FACTS/ANNEXURES

 IA No. 140310/2021 - PERMISSION TO FILE ADDITIONAL

DOCUMENTS/FACTS/ANNEXURES

 IA No. 118421/2017 - SUSPENSION OF SENTENCE)

WITH

SLP(Crl) No. 2363/2021 (II-C)

(IA No.38413/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED

JUDGMENT)

Date : 18-05-2022 These matters were called on for pronouncement of

judgment today.

For Petitioner(s) Mr. Gopal Sankaranarayanan, Sr Adv.

Mr. Prabu Ramasubramanian, Adv.

Mr. K.Paari Vendhan, AOR

Mr. Raghunatha Sethupathy.B., Adv.

Mr. Vishnu Unnikrishnan, Adv.

Ms. Shivani Vij, Adv.

Ms. Priya R.,Adv.

For Respondent(s) Mr. Tushar Mehta, Ld. SG

Mr. K.M. Nataraj, Ld. ASG

Mr. Ashok Panigrahi, Adv.

Ms. Vanshaja Shukla, Adv.

Ms. Rekha Panday , Adv.

Mr. Vatsal Joshi, Adv.

Mr. Sharath Nambiar, Adv.

Mr. Vinayak Sharma, Adv.

Mr. Sushal Tiwari, Adv.

Ms. Indira Bhakar, Adv.

Mr. T.A. Khan, Adv.

2

Ms. Kirti Dua, Adv.

 Mr. Arvind Kumar Sharma, AOR

 Mr. B. V. Balaram Das, AOR

Mr. G. Ananda Selvam, Adv.

Mr. Thirumurugan, Adv.

Mr. S. Muthu Krishnan, Adv.

Mr. K. Mayil Samy, Adv.

 Mr. P. Soma Sundaram, AOR

Mr. Rakesh Dwivedi,Sr Adv.

Mr. V. Krishnamurthy, Sr. Adv./AAG

Mr. Amit Anand Tiwari, AAG

Dr. Joseph Aristotle S., AOR

Mr.Eklavya Dwivedi, Adv.

Ms. Mary Mitzy, Adv.

Ms. Devyani Gupta, Adv.

Ms. Tanvi Anand, Adv.

Ms. Nupur Sharma, Adv.

Mr. Shobhit Dwivedi, Adv.

Mr. Sanjeev Kumar Mahara, Adv.

Hon’ble Mr. Justice L. Nageswara Rao pronounced

the Judgment of the Bench comprising His Lordship,

Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr.

Justice A.S. Bopanna.

Leave granted.

 The Appellant, who is already on bail, is set

at liberty forthwith. His bail bonds are cancelled.

The appeals are disposed of in terms of the

Signed Reportable Judgment.

 (Geeta Ahuja) (Anand Prakash)

 Court Master Assistant Registrar

(Signed Reportable Judgment is placed on the file)