Rajiv killers cannot be freed without Centre’s “concurrence” as CBI was probe agency: SC

I am so tired. But will read this one. this is last judgement for today.

case: Union Of India vs V. Sriharan @Murugan & Ors 

It all began on February 18 last year when the apex court commuted the death sentences of Santhan, Murugan and Perarivalan to life sentences in view of the delay in deciding their mercy pleas and left it to the “appropriate government” to consider granting them remission. Jayalalithaa (chief minister of Tamil Nadu0 seized the opportunity and announced that she would release all seven convicts.

it was asserted in the letter issued by state govt.  that since the crime was investigated by the Central Bureau of Investigation (CBI) and as per Section 435 of the Code of Criminal Procedure, 1973, the State Government, while exercising its power under Section 432 of the Code, must act after consultation with the Central Government, accordingly, it requested to indicate the views of the Union of India within three days on the proposal to release the seven persons mentioned above.

Writ petition was filed under Article 32 of constitution seeking quashing of that letter. ( why under article 32? it should have been instead under article 131)
Grounds: what is proposed to be done by the State of Tamil Nadu in exercise of power of remission in the present case is illegal and without jurisdiction because (1) The State Government is not the ‘appropriate Government’ in the present case; (2) Alternatively, without prejudice, the proposal by the State Government is contrary to law, and does not follow the procedure set out under the Code.
Reasons:
1. a bare reading of the definition of “appropriate Government” under Section 432(7) of the Code reveals that in cases where the sentence is for an offence against any law relating to a matter to which the executive power of the Union extends, the “appropriate Government” in that respect would be the Central Government. It is further pointed out that as per the proviso to Article 73, the executive power of the Union referred to in Article 73(1)(a) shall not, save as expressly provided in the Constitution or in any law made by the Parliament, extend in any State to matters with respect to which the Legislature of the State also has power to make laws. It is argued that the proviso to Article 73 is excluded by Section 432(7) of the Code as it is only applicable where there is no express provision to maintain the executive power of the Union. Similarly, proviso to Article 162 of the Constitution limits the executive power of the State with respect to any matter where both the Legislature of the State and the Parliament have power to make laws, where the Constitution or any law has expressly conferred executive power upon the Union. Thus, it was submitted that the proviso contemplates that the executive power of the State may be overcome by the executive power of the Union through the provisions of the Constitution or any other law made by the Parliament. The Code is, therefore, one avenue through which this may be done and has been exercised through Section 432(7) to give primacy to the executive power of the Union. Learned Attorney General further submitted that based on a reading of Articles 73 and 162 read with Section 432(7) of the Code, the “appropriate Government” in the present case would be the Central Government, as the Indian Penal Code falls under the concurrent List, to which the executive power of the Union also extends.
2. The entire investigation of the case was handed over to the CBI, at this stage, the State cannot claim that it is the appropriate Government.
3. The State Government, without considering the merits and facts of the case, hastily took a decision to remit the sentence and release seven convicts which is contrary to the statutory provisions and also to the law laid down by this Court.
4. State Government could not have suo motu, without an application, initiated the process of remitting the sentence and releasing the convicts. and relied on the decision of this Court in Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294
5. Alternatively, it is submitted that assuming Section 435(2) of the Code is applicable, the use of the term ‘consultation’ under Section 435(1) of the Code should be interpreted to mean ‘concurrence’.
6. In addition, submitted that once the death sentence of a convict has been commuted into life imprisonment, the same has to be interpreted to mean the entire life of the convict and the executive cannot exercise the power of remission of sentence thereafter and for that relied upon Swamy Shraddananda vs. State of Karnataka, (2008)
thus court has been called upon to decide the legitimacy of the proposal of the State Government to release Respondent Nos. 1 to 7, who are facing life sentence.
but court didn’t make any determination and framed few question and directed the matter to be decided by larger bench. ( i need to check it again because i am not sure)
UPDATE
Verdict of constitutional bench on questions referred to it by three judges bench is out in public domain and to my surprise it has gone to an extent of creating a new category of punishment, taking away power of governor vested in him by the Constitution. Its a huge judgement. I doubt i will be able to read the entire judgement but I will try.
Case:
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