Criminal Appeal Nos. 833-834 of 2022 (@ SLP (Crl.) Nos. 10039-10040 of 2016) WITH Criminal Appeal No. 835 of 2022 (@ SLP (Crl.) No.2363 of 2021)
A G Perarivalan Vs State Of Tamil Nadu And Anr
Hon’ble Justices L. Nageshwara Rao, B.R. Gavai, and A.S. Bopanna,
PETITIONERS: A G PERARIVALAN
RESPONDENT: STATE OF TAMIL NADU AND ANR
Article 161 of the Constitution of India
While exercising its power under Article 142 of the Constitution to release A.G. Perarivalan, one of the convicts in Rajiv Gandhi's assassination, the Supreme Court reiterated on Wednesday that the Governor has the power under Article 161 to remit/commute/pardon sentences imposed under Section 302 of the Indian Penal Code, 1860, because the executive power of the State extends to the said provision.
- The Court stated that the pertinent issue in this case is Article 73 of the Constitution, which deals with the Union's executive power. In Sriharan, the Supreme Court held that "where the State Legislature is also empowered to make laws on the same subject, the determination of whether the Union Government's executive power would extend to the State Government or not has to be decided by the Parliament."
- In other words, for entries in the Concurrent List of the Seventh Schedule of the Constitution over which both the Union and the States have legislative authority, the Union's executive power would extend only when explicitly mentioned in the Constitution or a law passed by Parliament.
- In the absence of such a reservation in favour of the Union, the executive power of the state remains intact. Because neither the Indian Penal Code nor the Constitution expressly grant the Union Government executive authority over the provisions of the IPC, the State may exercise executive authority over Section 302 of the Indian Penal Code.
ANALYSIS BY THE COURT
- It is well established by a slew of this Court's decisions that the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161 of the Constitution.
- Non-exercise of the power conferred by Article 161 or inexplicable delay in exercising such power that is not attributable to the prisoner is subject to judicial review by this Court, particularly when the State Cabinet has decided to release the prisoner and has made recommendations to the Governor to that effect.
- The judgement of this Court in M.P. Special Police Establishment (supra) is inapplicable to the facts of this case, and no attempt has been made to establish a case of apparent bias on the part of the State Cabinet or the State Cabinet basing its decision on irrelevant considerations, which formed the fulcrum of the said judgement.
The Court believes it is appropriate to remand the matter for the Governor's consideration given the Appellant's lengthy period of incarceration, his satisfactory behaviour in jail as well as during parole, chronic ailments from his medical records, educational qualifications acquired while incarcerated, and the Appellant's petition under Article 161 being pending for two and a half years after the State Cabinet's recommendation. In accordance with Article 142 of the Constitution, the court directed that the Appellant be considered to have served his sentence in connection with Crime No. 329 of 1991. The Appellant, who is already on bail, is released immediately. His bail bonds have been revoked. The Appeals are therefore dismissed.
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