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
12 | P a g e
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.
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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)

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