JUDGMENT Uday Umesh Lalit, J. WRIT PETITION (CRL.) NO.48 OF 2014 1. This Writ Petition has been placed before the Constitution Bench pursuant to reference made by a Bench of three learned Judges of this Court in its order dated 25.04.2014, 2014(11) SCC 1 , hereinafter referred to as the Referral Order. Background Facts:- 2. On the night of 21.05.1991 Rajiv Gandhi, former Prime Minister of India was assassinated by a human bomb at Sriperumbudur in Tamil Nadu. With him fifteen persons including nine policemen died and forty three persons suffered injuries. Crime No.329 of 1991 of Sriperumbudur Police Station was immediately registered. On 22.05.1991 a notification was issued by the Governor of Tamil Nadu under Section 6 of Delhi Special Police Establishment Act (Act No.25 of 1946) according consent to the extension of the powers and jurisdiction of the members of the Delhi Police Establishment to the whole of the State of Tamil Nadu for the investigation of the offences in relation to Crime No.329 of 1991. This was followed by a notification issued by the Government of India on 23.05.1991 under Section 5 read with Section 6 of Act No.25 of 1946 extending such powers and jurisdiction to the whole of the State of Tamil Nadu for investigation of offences relating to Crime No. 329 of 1991. After due investigation, a charge of conspiracy for offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA for short), Indian Penal Code (IPC for short), Explosive Substances Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946 and the Indian Wireless Telegraphy Act, 1933 was laid against forty-one persons, twelve of whom were already dead and three were marked as absconding. Remaining twenty six persons faced the trial before the Designated Court which found them guilty of all the charges and awarded punishment of fine of varying amounts, rigorous imprisonment of different periods and sentenced all of them to death. The Designated Court referred the case to this Court for confirmation of death sentence of all the convicts. The convicts also filed appeals against their conviction and the sentence awarded to them. These cases were heard together. 3. In the aforesaid Death Reference Cases and the appeals, this Court rendered its judgment on 11.05.1999, reported in State through Superintendent of Police, CBI/SIT v. Nalini and others 1999 (5) SCC 253 . The convicts also filed appeals against their conviction and the sentence awarded to them. These cases were heard together. 3. In the aforesaid Death Reference Cases and the appeals, this Court rendered its judgment on 11.05.1999, reported in State through Superintendent of Police, CBI/SIT v. Nalini and others 1999 (5) SCC 253 . At the end of the judgment, the following order was passed by this Court: “732. The conviction and sentence passed by the trial court of the offences of Section 3(3), Section 3(4) and Section 5 of the TADA Act are set aside in respect of all those appellants who were found guilty by the trial court under the said counts. 733. The conviction and sentence passed by the trial court of the offences under Sections 212 and 216 of the Indian Penal Code, Section 14 of the Foreigners Act, 1946, Section 25(1-B) of the Arms Act, Section 5 of the Explosive Substances Act, Section 12 of the Passport Act and Section 6(1-A) of the Wireless Telegraphy Act, 1933, in respect of those accused who were found guilty of those offences, are confirmed. If they have already undergone the period of sentence under those counts it is for the jail authorities to release such of those against whom no other conviction and sentence exceeding the said period have been passed. 734. The conviction for the offence under Section 120-B read with Section 302 Indian Penal Code as against A-1 (Nalini), A-2 (Santhan @ Raviraj), A-3 (Murugan @ Thas), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran @ Ravi) and A-18 (Perarivalan @ Arivu) is confirmed. 735. We set aside the conviction and sentence of the offences under Section 302 read with Section 120-B passed by the trial court on the remaining accused. 736. The sentence of death passed by the trial court on A-1 (Nalini), A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed. The death sentence passed on A-9 (Robert), A-10 (Jayakumar) and A-16 (Ravichandran) is altered to imprisonment for life. The Reference is answered accordingly. 737. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu), all the remaining appellants shall be set at liberty forthwith.” 4. Two sets of Review Petitions were preferred against the aforesaid judgment dated 11.05.1999. The Reference is answered accordingly. 737. In other words, except A-1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu), all the remaining appellants shall be set at liberty forthwith.” 4. Two sets of Review Petitions were preferred against the aforesaid judgment dated 11.05.1999. One was by convicts A-1, A-2, A-3 and A-18 on the question of death sentence awarded to them. These convicts did not challenge their conviction. The other was by the State through Central Bureau of Investigation (CBI for short), against that part of the judgment which held that no offence under Section 3(3) of TADA was made out. These Review Petitions were dismissed by order dated 08.10.1999 Suthendraraja alias Suthenthira Raja alias Santhan and others vs. State through DSP/CBI, SIT, CHENNAI (1999) 9 SCC 323 . Wadhwa, J. with whom Quardi J. concurred, did not find any error in the judgment sought to be reviewed and therefore dismissed both sets of Review Petitions. Thomas J. opined that the Review Petition filed in respect of A-1 (Nalini) alone be allowed and her sentence be altered to imprisonment for life. Thus, in the light of the order of the majority, these Review Petitions were dismissed. 5. The convicts A-1, A-2, A-3 and A-18 then preferred Mercy Petitions before the Governor of Tamil Nadu on 17.10.1999 which were rejected on 27.10.1999. The rejection was challenged before Madras High Court which by its order dated 25.11.1999 set-aside the order of rejection and directed reconsideration of those Mercy Petitions. Thereafter Mercy Petition of A-1 (Nalini) was allowed while those in respect of the convicts A-2, A-3 and A-18 were rejected by the Governor on 25.04.2000. Said convicts A-2, A-3 and A-18 thereafter preferred Mercy Petitions on 26.4.2000 to the President of India under Article 72 of the Constitution. The Mercy Petitions were rejected by the President on 12.08.2011 which led to the filing of Writ Petitions in Madras High Court. Those Writ Petitions were transferred by this Court to itself by order dated 01.05.2012 L.K. Venkat v. Union of India and others (2012) 5 SCC 292 . The Mercy Petitions were rejected by the President on 12.08.2011 which led to the filing of Writ Petitions in Madras High Court. Those Writ Petitions were transferred by this Court to itself by order dated 01.05.2012 L.K. Venkat v. Union of India and others (2012) 5 SCC 292 . By its judgment dated 18.02.2014 in V. Sriharan @ Murugan v. Union of India and others 2014 (4) SCC 242 a Bench of three learned Judges of this Court commuted the death sentences awarded to convicts A-2, A-3 and A-18 to that of imprisonment for life and passed certain directions. Paragraph 32 of the judgment is quoted hereunder: “32.8 In the light of the above discussion and observations, in the cases of V. Sriharan alias Murugan, T. Suthendraraja alias Santhan and A.G. Perarivalan alias Arivu, we commute their death sentence into imprisonment for life. Life imprisonment means end of one’s life, subject to any remission granted by the appropriate Government under Section 432 of the Code of Criminal Procedure, 1973 which, in turn, is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code. All the writ petitions are allowed on the above terms and the transferred cases are, accordingly, disposed of.” 6. On the next day i.e. 19.02.2014 Chief Secretary, Government of Tamil Nadu wrote to the Secretary, Government of India, Ministry of Home Affairs that Government of Tamil Nadu proposed to remit the sentence of life imprisonment imposed on convicts A-2, A-3 and A-18 as well as on the other convicts namely A-9, A-10 and A-16. It stated that these six convicted accused had already served imprisonment for 23 years, that since the crime was investigated by the CBI, as per Section 435 of Cr.P.C. the Central Government was required to be consulted and as such the Central Government was requested to indicate its views within three days on the proposal to remit the sentence of life imprisonment and release those six convicts. 7. Union of India immediately filed Crl.M.P. Nos.4623-25 of 2014 on 20.02.2014 in the cases which were disposed of by the judgment dated 18.02.20145 praying that the State of Tamil Nadu be restrained from releasing the convicts. On 20.02.2014 said Crl.M.P. Nos.4623-25 of 2014 were taken up by this Court and the following order was passed: “Taken on Board. 7. Union of India immediately filed Crl.M.P. Nos.4623-25 of 2014 on 20.02.2014 in the cases which were disposed of by the judgment dated 18.02.20145 praying that the State of Tamil Nadu be restrained from releasing the convicts. On 20.02.2014 said Crl.M.P. Nos.4623-25 of 2014 were taken up by this Court and the following order was passed: “Taken on Board. Issue notice to the State of Tamil Nadu; Inspector General of Prisons, Chennai; the Superintendent, Central Prison, Vellore and the convicts viz. V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu returnable on 6th March, 2014. Mr. Rakesh Dwivedi, learned senior counsel accepts notice on behalf of the State of Tamil Nadu and other two officers. Till such date, both parties are directed to maintain status quo prevailing as on date in respect of convicts viz. V. Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu. List on 6th March, 2014.” 8. On 20.02.2014 Union of India filed Review Petitions being R.P. (Crl.) Nos.247-249 of 2014 against the judgment dated 18.02.20145 which were later dismissed on 01.04.2014. It also filed Writ Petition No.48 of 2014 i.e. the present writ petition on 24.02.2014 with following prayer: “(a) Issue an appropriate writ in the nature of a mandamus, or certiorari, and quash the letter no.58720/Cts IA/2008 dated 19.02.2014 and the Decision of the Respondent no.8, Government of Tamil Nadu to consider commutation/remission of the sentences awarded to the Respondents No.1 to 7;” 9. After hearing rival submissions in the present writ petition, the Referral Order was passed which formulated and referred seven questions for the consideration of the Constitution Bench. Paragraph Nos. 49 and 52 to 54 of the Referral Order were to the following effect:- “49. The issue of such a nature has been raised for the first time in this Court, which has wide ramification in determining the scope of application of power of remission by the executives, both the Centre and the State. Accordingly, we refer this matter to the Constitution Bench to decide the issue pertaining to whether once power of remission under Articles 72 or 161 or by this Court exercising constitutional power under Article 32 is exercised, is there any scope for further consideration for remission by the executive.” 52. The following questions are framed for the consideration of the Constitution Bench: 52.1. The following questions are framed for the consideration of the Constitution Bench: 52.1. Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant 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) (2008) 13 SCC 767 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 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 Sections 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 subjectmatter 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? 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-section (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”? 53. All the issues raised in the given case are of utmost critical concern for the whole of the country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014 before the Constitution Bench as early as possible, preferably within a period of three months. 54. All the interim orders granted earlier will continue till a final decision is taken by the Constitution Bench in Writ Petition (Crl.) No. 48 of 2014.” 10. Accordingly, we direct to list Writ Petition (Crl.) No. 48 of 2014 before the Constitution Bench as early as possible, preferably within a period of three months. 54. All the interim orders granted earlier will continue till a final decision is taken by the Constitution Bench in Writ Petition (Crl.) No. 48 of 2014.” 10. In terms of the Referral Order, this petition came up before the Constitution Bench on 09.03.2014 which issued notices to all the State Governments and pending notice the State Governments were restrained from exercising power of remission to life convicts. This order was subsequently varied by this Court on 23.07.2015 and the order so varied is presently in operation. While the present writ petition was under consideration by this Court, Curative Petitions Nos.22-24 of 2015 arising out of the dismissal of the review petition vide order dated 01.04.2014 came up before this Court which were dismissed by order dated 28.07.2015. PRELIMINARY OBJECTIONS 11. At the outset when the present writ petition was taken up for hearing, Mr. Rakesh Dwivedi, learned Senior Advocate appearing for the State of Tamil Nadu and Mr. Ram Jethmalani, learned Senior Advocate appearing for the respondents convicts raised preliminary objections regarding maintainability of this writ petition at the instance of Union of India. It was argued that in the petition as originally filed, nothing was indicated about alleged violation of any fundamental right of any one and it was only when the State had raised preliminary submissions, that additional grounds were preferred by Union of India seeking to espouse the cause of the victims. It was submitted that the issues sought to be raised by Union of India as regards the powers and jurisdiction of the State of Tamil Nadu were essentially federal in nature and that the only remedy available for agitating such issues could be through a suit under Article 131 of the Constitution. In response, it was submitted by Mr. Ranjit Kumar, learned Solicitor General that neither at the stage when the Referral Order was passed, nor at the stage when notices were issued to various State Governments, such preliminary objections were advanced and that the issue had now receded in the background. In response, it was submitted by Mr. Ranjit Kumar, learned Solicitor General that neither at the stage when the Referral Order was passed, nor at the stage when notices were issued to various State Governments, such preliminary objections were advanced and that the issue had now receded in the background. It was submitted that after Criminal Law Amendment Act 2013, rights of victims stand duly recognized and that the instant crime having been investigated by the CBI, Union of India in its capacity as parens patriae was entitled to approach this Court under Article 32. It was submitted that since private individuals, namely the convicts were parties to this lis, a suit under Article 131 would not be a proper remedy. We find considerable force in the submissions of the learned Solicitor General. Having entertained the petition, issued notices to various State Governments, entertained applications for impleadment and granted interim orders, it would not be appropriate at this stage to consider such preliminary submissions. At this juncture, the following passage from the judgment of the Constitution Bench in Mohd. Aslam alias Bhure v. Union of India and others (2003)4 SCC 1 would guide us:- “10. On several occasions this Court has treated letters, telegrams or postcards or news reports as writ petitions. In such petitions, on the basis of pleadings that emerge in the case after notice to different parties, relief has been given or refused. Therefore, this Court would not approach matters where public interest is involved in a technical or a narrow manner. Particularly, when this Court has entertained this petition, issued notice to different parties, new parties have been impleaded and interim order has also been granted, it would not be appropriate for this Court to dispose of the petition on that ground.” In the circumstances, we reject the preliminary submissions and proceed to consider the questions referred to us. DISCUSSION 12. We have heard Mr. Ranjit Kumar, learned Solicitor General, assisted by Ms. V. Mohana, learned Senior Advocate for Union of India. The submissions on behalf of the State Governments were led by Mr. Rakesh Dwivedi, learned Senior Advocate who appeared for the States of Tamil Nadu and West Bengal, Mr. Ram Jethmalani, learned Senior Advocate and Mr. Yug Mohit Chaudhary, learned Advocate appeared for respondents – convicts, namely, A-2, A-3, A-18, A-9, A-10 and A-16. We have also heard Mr. The submissions on behalf of the State Governments were led by Mr. Rakesh Dwivedi, learned Senior Advocate who appeared for the States of Tamil Nadu and West Bengal, Mr. Ram Jethmalani, learned Senior Advocate and Mr. Yug Mohit Chaudhary, learned Advocate appeared for respondents – convicts, namely, A-2, A-3, A-18, A-9, A-10 and A-16. We have also heard Mr. Ravi Kumar Verma, learned Advocate General for Karnataka, Mr. A.N.S. Nadkarni, learned Advocate General for Goa, Mr. V. Giri, learned Senior Advocate for State of Kerala, Mr. Gaurav Bhatia, learned Additional Advocate General for State of Uttar Pradesh, Mr. T.R. Andhyarujina, learned Senior Advocate for one of the intervenors and other learned counsel appearing for other State Governments, Union Territories and other intervenors. We are grateful for the assistance rendered by the learned Counsel. 13. The Challenge raised in the instant matter is principally to the competence of the State Government in proposing to remit or commute sentences of life imprisonment of the respondents-convicts and the contention is that either the State Government has no requisite power or that such power stands excluded. The questions referred for our consideration in the Referral Order raise issues concerning power of remission and commutation and as to which is the “appropriate Government” entitled to exercise such power and as regards the extent and ambit of such power. It would therefore be convenient to deal with questions 3, 4 and 5 as stated in Paras 52.3, 52.4 and 52.5 at the outset. Re: Question Nos.3, 4 and 5 as stated in para Nos.52.3, 52.4 and 52.5 of the Referral Order 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 subjectmatter enlisted in List III of the 7th 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? 14. Powers to grant pardon and to suspend, remit or commute sentences are conferred by Articles 72 and 161 of the Constitution upon the President and the Governor. Articles 72 and 161 are quoted here for ready reference: “72. 52.5. Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code? 14. Powers to grant pardon and to suspend, remit or commute sentences are conferred by Articles 72 and 161 of the Constitution upon the President and the Governor. Articles 72 and 161 are quoted here for ready reference: “72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences 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) in 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 of a State under any law for the time being in force. “161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases.-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 to a matter to which the executive power of the State extends. 15. Before we turn to the matters in issue, a word about the nature of power under Articles 72 and 161 of the Constitution. In K.M. Nanavati v. State of Bombay (1961) 1 SCR 497 at 516 it was observed by Constitution Bench of this Court, “……. Pardon is one of the many prerogatives which have been recognized since time immemorial as being vested in the sovereign, wherever the sovereignty may lie…….”. In K.M. Nanavati v. State of Bombay (1961) 1 SCR 497 at 516 it was observed by Constitution Bench of this Court, “……. Pardon is one of the many prerogatives which have been recognized since time immemorial as being vested in the sovereign, wherever the sovereignty may lie…….”. In Kehar Singh and another v. Union of India and another (1989) 1 SCC 204 at 213 Constitution Bench of this Court quoted with approval the following passage from U.S. v. Benz [75 Lawyers Ed. 354, 358] “The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance.” The Constitution Bench further observed: “It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.” In Epuru Sudhakar and another v. Government of Andhra Pradesh and others (2006) 8 SCC 161 Pasayat J. speaking for the Court observed:- “16. The philosophy underlying the pardon power is that “every civilised country recognises, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of deity whose judgments are always tempered with mercy. 17. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of deity whose judgments are always tempered with mercy. 17. The rationale of the pardon power has been felicitously enunciated by the celebrated Holmes, J. of the United States’ Supreme Court in Biddle v. Perovich [71 L Ed 1161: 274 US480(1927] in these words (L Ed at p. 1163):“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” In his concurring judgment Kapadia J. (as the learned Chief Justice then was) stated: “65. Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations. 66. Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an executive action that mitigates or sets aside the punishment for a crime. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. It eliminates the effect of conviction without addressing the defendant’s guilt or innocence. The controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter. It can no longer be said that prerogative power is ipso facto immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of “Government according to law”. The ethos of “Government according to law” requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.” 16. The power conferred upon the President under Article 72 is under three heads. The Governor on the other hand is conferred power under a sole head i.e. in respect of sentence for an offence against any law relating to the matter to which the executive power of the State extends. Apart from similar such power in favour of the President in relation to matter to which the executive power of the Union extends, the President is additionally empowered on two counts. He is given exclusive power in all cases where punishment or sentence is by a Court Martial. He is also conferred power in all cases where the sentence is a sentence of death. He is given exclusive power in all cases where punishment or sentence is by a Court Martial. He is also conferred power in all cases where the sentence is a sentence of death. Thus, in respect of cases of sentence of death, the power in favour of the President is regardless whether it is a matter to which the executive power of the Union extends. Therefore a person convicted of any offence and sentenced to death sentence under any law relating to a matter to which the executive power of the State extends, can approach either the Governor by virtue of Article 161 or the President in terms of Article 72(1)(c) or both. To this limited extent there is definitely an overlap and powers stand conferred concurrently upon the President and the Governor. 17. Articles 73 and 162 of the Constitution delineate the extent of executive powers of the Union and the State respectively. Said Articles 73 and 162 are as under:- “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 sub-clause (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. (2) until otherwise provided by Parliament, a State and 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 of authority thereof could exercise immediately before the commencement of this Constitution. 162. 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 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 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. ” 18. As regards clause (b) of Article 73(1) there is no dispute that in such matters the executive power of the Union is absolute. The area of debate is with respect to clause (a) of Article 73(1) and the Proviso to Article 73(1) and the inter-relation with Article 162. Clause (a) of Article 73(1) states that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. Parliament has exclusive power in respect of legislative heads mentioned in List I of the 7th Schedule whereas in respect of the entries in the Concurrent List namely List III of the 7th Schedule, both Parliament and the State have power to legislate in accordance with the scheme of the Constitution. The Proviso to Article 73(1) however states, subject to the saving clause therein, that the executive power so referred to in sub-clause (a) shall not extend in any State to matters with respect to which the legislature of the State has also power to make laws. The expression “also” is significant. Under the Constitution the State has exclusive power to make laws with respect to List II of the 7th Schedule and has also concurrent power with respect to entries in Concurrent List namely List III of the Constitution. The Proviso thus deals with situations where the matter relates to or is with respect to subject where both Parliament and the Legislature of the State are empowered to make laws under the Concurrent List. Subject to the saving clause mentioned in the Proviso, it is thus mandated that with respect to matters which are in the Concurrent List namely where the Legislature of the State has also power to make laws, the executive power of the Union shall not extend. Subject to the saving clause mentioned in the Proviso, it is thus mandated that with respect to matters which are in the Concurrent List namely where the Legislature of the State has also power to make laws, the executive power of the Union shall not extend. The saving clause in the Proviso deals with two exceptions namely, where it is so otherwise expressly provided in the Constitution or in any law made by Parliament. In other words, only in those cases where it is so expressly provided in the Constitution itself or in any law made by Parliament, the executive power of the Union will be available. But for such express provision either in the Constitution or in the law made by Parliament which is in the nature of an exception, the general principle which must govern is that the executive power under sub-clause (a) of Article 73 shall not extend in any State to matters with respect to which the legislature of the State has also power to make laws. In the absence of such express provision either in the Constitution or in the law made by Parliament, the normal rule is that the executive power of the Union shall not extend in a State to matters with respect to which the legislature of the State has also power to make laws. 19. It will be instructive at this stage to see the debates on the point in the Constituent Assembly. The proceedings dated 30th December, 1948 in the Constituent Assembly11 show that while draft Article 60 which corresponds to present Article 73 was being discussed, an Hon’ble Member voiced his concern in following words: “B. Pocker Sahib Bahadur (Madras : Muslim): Mr. VicePresident, this clause as it stands is sure to convert the Federation into an entirely unitary form of Government. This is a matter of very grave importance. Sir, we have been going on under the idea, and it is professed, that the character of the Constitution which we are framing is a federal one. I submit, Sir, if this article, which gives even executive powers with reference to the subjects in the Concurrent List to the Central Government, is to be passed as it is, then there will be no justification at all in calling this Constitution a federal one. It will be a misnomer to call it so. I submit, Sir, if this article, which gives even executive powers with reference to the subjects in the Concurrent List to the Central Government, is to be passed as it is, then there will be no justification at all in calling this Constitution a federal one. It will be a misnomer to call it so. It will be simply a camouflage to call this Constitution a federal one with provisions like this. It is said that it is necessary to give legislative powers to the Centre with regard to certain subjects mentioned in the Concurrent List, but it is quite another thing, Sir, to give even the executive powers with reference to them to the Centre. These provisions will have the effect of practically leaving the provinces with absolutely nothing. Even in the Concurrent List there is a large number of subjects which ought not to have found place in it. We shall have to deal with them when the time comes. But this clause gives even executive powers to the Centre with reference to the subjects which are detailed in the Concurrent List.…….” After considerable debate on the point the clarification by Hon’ble Member Dr. B.R. Ambedkar is noteworthy. His view was as under: “The Honourable Dr. B.R. Ambedkar (Bombay : General): Mr. Vice-President, Sir, I am sorry that I cannot accept either of the two amendments which have been moved to this proviso, but I shall state to the House very briefly the reasons why I am not in a position to accept these amendments. Before I do so I think I think it is desirable that the House should know what exactly is the difference between the position as stated in the proviso and the two amendments which are moved to that proviso. Taking the proviso as it stands, it lays down two propositions. The first proposition is that generally the authority to execute laws which relate to what is called the Concurrent field, whether the law is passed by the Central Legislature or whether it is passed by the Provincial or State Legislature, shall ordinarily apply to the Province or the State. That is the first proposition which this proviso lays down. The first proposition is that generally the authority to execute laws which relate to what is called the Concurrent field, whether the law is passed by the Central Legislature or whether it is passed by the Provincial or State Legislature, shall ordinarily apply to the Province or the State. That is the first proposition which this proviso lays down. The second proposition which the proviso lays down is that if in any particular case Parliament thinks that in passing a law which relates to the Concurrent field the execution ought to be retained by the Central Government, Parliament shall have the power to do so. Therefore, the position is this; that in all cases, ordinarily, the executive authority so far as the Concurrent List is concerned will rest with the units, the Provinces as well as the States. It is only in exceptional cases that the Centre may prescribe that the execution of a Concurrent law shall be with the centre.” The first proposition as stated by Dr. Ambedkar was that generally the authority to execute laws which relate to subjects in the Concurrent field, whether the law was passed by the Central Legislature or by the State Legislature, was ordinarily to be with the State. The second proposition pertaining to the Proviso was quite eloquent in that if in any particular case Parliament thinks the execution ought to be retained by the Centre, Parliament shall have the power to do so and that save and except such express provision, in all cases, the authority to execute insofar as the Concurrent List is concerned shall rest with the States. 20. In Rai Sahib Ram Jawaya Kapur and others v. State of Punjab 1955 (2) SCR 225 this Court while dealing with Article 162 of the Constitution, observed as under:- “….Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.” (Emphasis added) 21. The same principle as regards the extent of Executive Power of the Union and the State as stated in Articles 73 and 162 of the Constitution finds echo in Section 55A of the Indian Penal Code which defines appropriate Government as under: “55A. Definition of "appropriate Government". -- In Sections 54 and 55 the expression "appropriate Government" means:- (a) in cases where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) in cases where the sentence (whether of death or not) is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced.” 22. At this stage we may quote Sections 432 to 435 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) :- “432. Power to suspend or remit sentences. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the. presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, In the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and- (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail ; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (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. 433. Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine ; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine ; (d) a sentence of simple imprisonment, for fine. 433A. Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432,“Page 203 where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. 434. Concurrent power of Central Government in case of death sentences. The powers conferred by sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government. 435. State Government to act after consultation with Central Government in certain cases. 434. Concurrent power of Central Government in case of death sentences. The powers conferred by sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government. 435. State Government to act after consultation with Central Government in certain cases. (1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence Is for an offence- (a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government. (2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends. 23. As regards definition of appropriate Government, Section 432(7) of Cr.P.C. adopts a slightly different approach. It defines Central Government to be the appropriate Government 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. In that sense it goes by the same principle as in Article 73 of the Constitution and Section 55A of the IPC. It defines Central Government to be the appropriate Government 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. In that sense it goes by the same principle as in Article 73 of the Constitution and Section 55A of the IPC. The residuary area is then left for the State Government and it further states that in cases other than those where the Central Government is an appropriate Government, the Government of the State within which the offender is sentenced shall be the appropriate Government. In other words, it carries the same essence and is not in any way different from the principle in Article 73 read with Article 162 on one hand and Section 55A of the IPC on the other. The specification as to the State where the offender is sentenced serves an entirely different purpose and helps in finding amongst more than one State Governments which is the appropriate Government as found in State of Madhya Pradesh v. Ratan Singh and others (1976) 3 SCC 470 , State of Madhya Pradesh v. Ajit Singh and others (1976) 3 SCC 616 , Hanumant Dass v. Vinay Kumar and others (1982) 2 SCC 177 and Govt. of A.P. and others v. M.T. Khan (2004) 1 SCC 616 . According to this provision, even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government. 24. There is one more provision namely Section 435(2) of Cr. P.C. which needs to be considered at this stage. It is possible that in a given case the accused may be convicted and sentenced for different offences, in respect of some of which the executive power of the Union may extend and to the rest the executive power of the State may extend. Since the executive power either of the Union or the State is offence specific, both shall be appropriate Governments in respect of respective offence or offences to which the executive power of the respective government extends. For instance, an offender may be sentenced for an offence punishable under an enactment relatable to subject under List I of the Constitution and additionally under the Indian Penal Code. For instance, an offender may be sentenced for an offence punishable under an enactment relatable to subject under List I of the Constitution and additionally under the Indian Penal Code. Such eventuality is taken care of by sub-section (2) of Section 435 and it is stipulated that even if the State Government in its capacity as an appropriate Government in relation to an offence to which the executive power of the State Government extends, were to order suspension, remission or commutation of sentence in respect of such offence, the order of the State Government shall not have effect unless an appropriate order of suspension, remission or commutation is also passed by the Central Government in relation to the offence(s) with respect to which executive power of the Union extends. Relevant to note that it is not with respect to a specific offence that both the Central Government and State Government have concurrent power but if the offender is sentenced on two different counts, both could be the appropriate governments in respect of that offence to which the respective executive power extends. 25. It was submitted on behalf of the petitioner that if the Executive Power is co-extensive with the Legislative Power and the law making power of the State must yield to the Legislative Power of the Union in respect of a subject in the Concurrent List, reading of these two principles would inevitably lead to the conclusion that the executive power of the Union takes primacy over that of the State thereby making it i.e. the Central Government the appropriate Government under Section 432(7) of Cr. P.C. It was further submitted that it was Parliament which made law contained in Cr.P.C. in exercise of power relatable to Entry 1 and 2 of List III and that the provisions in the IPC (existing law under Article 13) and under the Cr. P.C., both relatable to the powers of Parliament, which provide for “appropriate Government” as prescribed in Section 55A of the IPC and 432(7) of the Cr.P.C. without any validity enacted conflicting or amending law by the State, would clearly show that it is the Union which has the primacy. In our considered view, that is not the correct way to approach the issue. In our considered view, that is not the correct way to approach the issue. For the purposes of Article 73(1) it is not material whether there is Union law holding the field but what is crucial is that such law made by Parliament must make an express provision or there must be such express provision in the Constitution itself as regards executive power of the Union, in the absence of which the general principle as stated above must apply. If the submission that since the IPC and Cr. P.C. are relatable to the powers of Parliament, it is the executive power of the Union which must extend to aspects covered by these legislations is to be accepted, the logical sequitor would be that for every offence under IPC the appropriate Government shall be the Central Government. This is not only against the express language of Article 73(1) but would completely overburden the Central Government. 26. In the instant case as the order passed by this Court in State v. Nalini and others, the respondents-convicts were acquitted of the offences punishable under Section 3(3), 3(4) and 5 of the TADA. Their conviction under various central laws like Explosive Substances Act, Passport Act, Foreigners Act and Wireless Telegraphy Act were all for lesser terms which sentences, as on the date, stand undergone. Consequently, there is no reason or occasion to seek any remission in or commutation of sentences on those counts. The only sentence remaining is one under Section 302 IPC which is life imprisonment. It was submitted by Mr. Rakesh Dwivedi, learned Senior Advocate that Section 302 IPC falls in Chapter XVI of the IPC relating to offences affecting the human body. In his submission, Sections 299 to 377 IPC involve matters directly related to “public order” which are covered by Entry 1 List II. It being in the exclusive executive domain of the State Government, the State Government would be the appropriate Government. It was further submitted that assuming Sections 302 read with Section 120B IPC are relatable to Entry 1 of List III being part of the Indian Penal Code itself, then the issue may arise whether Central Government or the State Government shall be the appropriate Government and resort has to be taken to provisions of Articles 73 and 162 of the Constitution to resolve the issue. 27. 27. At this stage it would be useful to consider the decision of this Court in G.V. Ramanaiah v. The Superintendent of Central Jail Rajahmundry and others (1974) 3 SCC 531 . In that case the appellant was convicted of offences punishable under Section 489-A to 489-D of IPC and sentenced to imprisonment for 10 years. On a question whether the State Government would be competent to remit the sentence of the appellant, this Court observed as under: “9. The question is to be considered in the light of the above criterion. Thus considered, it will resolve itself into the issue: Are the provisions of Sections 489-A to 489-D of the Penal Code, under which the petitioner was convicted, a law relating to a matter to which the legislative power of the State or the Union extends? 10. These four Sections were added to the Penal Code under the caption, “Of Currency Notes and Bank Notes”, by Currency Notes Forgery Act, 1899, in order to make better provisions for the protection of Currency and Bank Notes against forgery. It is not disputed; as was done before the High Court in the application under Section 491(1), Criminal Procedure Code, that this bunch of Sections is a law by itself. “Currency, coinage and legal tender” are matters, which are expressly included in Entry No. 36 of the Union List in the Seventh Schedule of the Constitution. Entry No. 93 of the Union List in the same Schedule specifically confers on the Parliament the power to legislate with regard to “offences against laws with respect to any of the matters in the Union List”. Read together, these entries put it beyond doubt that Currency Notes and Bank Notes, to which the offences under Sections 489-A to 489-D relate, are matters which are exclusively within the legislative competence of the Union Legislature. Read together, these entries put it beyond doubt that Currency Notes and Bank Notes, to which the offences under Sections 489-A to 489-D relate, are matters which are exclusively within the legislative competence of the Union Legislature. It follows therefrom that the offences for which the petitioner has been convicted, are offences relating to a matter to which the executive power of the Union extends, and the “appropriate Government” competent to remit the sentence of the petitioner, would be the Central Government and not the State Government.” This Court went on to observe that the Indian Penal Code is a compilation of penal laws, providing for offences relating to a variety of matters, referable to the various entries in the different lists of the 7th Schedule to the Constitution and that many of the offences in the Penal Code related to matters which are specifically covered by entries in the Union list. Since the offences in question pertained to subject matter in the Union list, this Court concluded that the Central Government was the appropriate Government competent to remit the sentence of the appellant. The decision in G.V. Ramanaiah thus clearly lays down that it is the offence, the sentence in respect of which is sought to be commuted or remitted, which determines the question as to which Government is the appropriate Government. 28. In Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and others (2010) 5 SCC 246 challenge was raised to the competence of the State Legislature to enact Maharashtra Control of Organised Crime Act, 1999. While rejecting the challenge, it was observed by this Court as under:- “48. From the ratio of the judgments on the point of public order referred to by us earlier, it is clear that anything that affects public peace or tranquillity within the State or the Province would also affect public order and the State Legislature is empowered to enact laws aimed at containing or preventing acts which tend to or actually affect public order. Even if the said part of MCOCA incidentally encroaches upon a field under Entry 1 of the Union List, the same cannot be held to be ultra vires in view of the doctrine of pith and substance as in essence the said part relates to maintenance of public order which is essentially a State subject and only incidentally trenches upon a matter falling under the Union List. Therefore, we are of the considered view that it is within the legislative competence of the State of Maharashtra to enact such a provision under Entries 1 and 2 of List II read with Entries 1, 2 and 12 of List III of the Seventh Schedule of the Constitution.” While considering the ambit of expression “public order” as appearing in Entry 1 List II of the 7th Schedule to the Constitution this Court referred to earlier decisions on the point and arrived at the aforesaid conclusion. Similarly in People’s Union for Civil Liberties and another v. Union of India (2004) 9 SCC 580 the validity of Prevention of Terrorism Act, 2002 and in Kartar Singh v. State of Punjab (1994) 3 SCC 569 validity of TADA were questioned. In both the cases it was observed that the Entry “public order” in List II empowers the State to enact the legislation relating to public order or security insofar as it affects or relates to a particular State and that the term has to be confined to disorder of lesser gravity having impact within the boundaries of the State and that activity of more serious nature which threatens the security and integrity of the country as a whole would not be within the field assigned to Entry 1 of List II. In both these cases the validity of Central enactments were under challenge on the ground that they in pith and substance were relatable to the subject under Entry 1 of List II. In both the cases the challenges were negatived as the legislations in question dealt with “terrorism” in contra-distinction to the normal issues of “public order”. 29. We are however concerned in the present case with offence under Section 302 IPC simplicitor. The respondents-convicts stand acquitted insofar as offences under the TADA are concerned. We find force in the submissions of Mr. 29. We are however concerned in the present case with offence under Section 302 IPC simplicitor. The respondents-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 Entry 1 of List II of the 7th Schedule 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 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 (supra) in matters concerning offences under Section 302 IPC it is the Governor under Article 161 or the State Government as appropriate Government under the Cr.P.C. who have been exercising appropriate powers. 30. In the light of the aforesaid discussion our answers to questions 3, 4 and 5 as stated in paragraph 52.3, 52.4 and 52.5 are as under: Our answer to Question 52.3 in Para 52.3 is:- Question 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? Answer: The executive powers of the Union and the State normally operate in different fields. The fields are well demarcated. 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? Answer: The executive powers of the Union and the State normally operate in different fields. The fields are well demarcated. Keeping in view our discussion in relation to Articles 73 and 162 of the Constitution, Section 55A of the IPC and Section 432 (7) of Cr.P.C. it is only in respect of sentence of death, even when the offence in question is referable to the executive power of the State, that both the Central and State Governments have concurrent power under Section 434 of Cr.P.C. If a convict is sentenced under more than one offences, one or some relating to the executive power of the State Government and the other relating to the Executive Power of the Union, Section 435(2) provides a clear answer. Except the matters referred herein above, Section 432 (7) of Cr. P.C. does not give primacy to the executive power of the Union. Our Answer to Question posed in Para 52.4. is:- Question 52.4. Whether the Union or the State has primacy over the subject-matter enlisted in List III of the 7th Schedule to the Constitution of India for exercise of power of remission? Answer: In respect of matters in list III of the 7th Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle there are two exceptions as stated in Proviso to Articles 73(1) of the Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend. Our Answer to Question posed in Para 52.5. is:- Question 52.5. Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code? Answer: There can possibly be two appropriate Governments in a situation contemplated under Section 435 (2) of Cr.P.C.. Additionally, in respect of cases of death sentence, even when the offence is one to which the executive power of the State extends, Central Government can also be appropriate Government as stated in Section 434 of Cr.P.C.. Except these two cases as dealt with in Section 434 and 435 (2) of Cr.P.C. there cannot be two appropriate Governments. Additionally, in respect of cases of death sentence, even when the offence is one to which the executive power of the State extends, Central Government can also be appropriate Government as stated in Section 434 of Cr.P.C.. Except these two cases as dealt with in Section 434 and 435 (2) of Cr.P.C. there cannot be two appropriate Governments. Re: Question No.6 as stated in para 52.6 of the Referral Order 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-section (2) of the same section is mandatory or not? 31. We now turn to the exercise of power of remission under Section 432(1) of Cr.P.C.. Remissions are of two kinds. The first category is of remissions under the relevant Jail Manual which depend upon the good conduct or behavior of a convict while undergoing sentence awarded to him. These are generally referred to as ‘earned remissions’ and are not referable to Section 432 of Cr.P.C. but have their genesis in the Jail Manual or any such Guidelines holding the field. In Shraddananda(2)6 this aspect was explained thus: “80. From the Prisons Acts and the Rules it appears that for good conduct and for doing certain duties, etc. inside the jail the prisoners are given some days’ remission on a monthly, quarterly or annual basis. The days of remission so earned by a prisoner are added to the period of his actual imprisonment (including the period undergone as an undertrial) to make up the term of sentence awarded by the Court. This being the position, the first question that arises in mind is how remission can be applied to imprisonment for life. The way in which remission is allowed, it can only apply to a fixed term and life imprisonment, being for the rest of life, is by nature indeterminate.” The exercise of power in granting remission under Section 432 is done in a particular or specific case whereby the execution of the sentence is suspended or the whole or any part of the punishment itself is remitted. The effect of exercise of such power was succinctly put by this Court in Maru Ram etc. etc. v. Union of India & Another (1981)1 SCC 106 in following words:- “……. The effect of exercise of such power was succinctly put by this Court in Maru Ram etc. etc. v. Union of India & Another (1981)1 SCC 106 in following words:- “……. In the first place, an order of remission does not wipe out the offence it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power of grant remission is executive power and cannot have the effect of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court…….. …….. Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched.” 32. The difference between earned remissions “for good behaviour” and the remission of sentence under Section 432 is clear. The first depends upon the Jail Manual or the Policy in question and normally accrues and accumulates to the credit of the prisoner without there being any specific order by the appropriate Government in an individual case while the one under Section 432 requires specific assessment in an individual matter and is case specific. Could such exercise be undertaken under Section 432 by the appropriate Government on its own, without there being any application by or on behalf of the prisoner? This issue has already been dealt with in following cases by this Court. A]. In Sangeet and another. Could such exercise be undertaken under Section 432 by the appropriate Government on its own, without there being any application by or on behalf of the prisoner? This issue has already been dealt with in following cases by this Court. A]. In Sangeet and another. v. State of Haryana (2013)2 SCC 452 , it was observed in paras 59, 61 and 62 as under:- “59. There does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power under Section 432 CrPC. But it does appear to us that sub-section (2) to sub-section (5) of Section 432 CrPC lay down the basic procedure, which is making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. In fact, this is what was suggested in Samjuben Gordhanbhai Koli v. State of Gujarat when it was observed that since remission can only be granted by the executive authorities, the appellant therein would be free to seek redress from the appropriate Government by making a representation in terms of Section 432 CrPC. 61. It appears to us that an exercise of power by the appropriate Government under sub-section (1) of Section 432 Cr.P.C. cannot be suo motu for the simple reason that this sub-section is only an enabling provision. The appropriate Government is enabled to “override” a judicially pronounced sentence, subject to the fulfilment of certain conditions. Those conditions are found either in the Jail Manual or in statutory rules. Sub-section (1) of Section 432 Cr.P.C. cannot be read to enable the appropriate Government to “further override” the judicial pronouncement over and above what is permitted by the Jail Manual or the statutory rules. The process of granting “additional” remission under this section is set into motion in a case only through an application for remission by the convict or on his behalf. On such an application being made, the appropriate Government is required to approach the Presiding Judge of the court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. Apart from anything else, this statutory procedure seems quite reasonable inasmuch as there is an application of mind to the issue of grant of remission. It also eliminates “discretionary” or en masse release of convicts on “festive” occasions since each release requires a case-by-case basis scrutiny. 62. It must be remembered in this context that it was held in State of Haryana v. Mohinder Singh that the power of remission cannot be exercised arbitrarily. The decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 Cr.P.C does provide this check on the possible misuse of power by the appropriate Government.” B] In Mohinder Singh v. State of Punjab (2013)3 SCC 294 the observations in para 27 were to the following effect: “27. In order to check all arbitrary remissions, the Code itself provides several conditions. Sub-sections (2) to (5) of Section 432 of the Code lay down basic procedure for making an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. As rightly observed by this Court in Sangeet v. State of Haryana, there is a misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years’ or 20 years’ imprisonment. As rightly observed by this Court in Sangeet v. State of Haryana, there is a misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years’ or 20 years’ imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code which in turn is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.” C] In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay (2013) 13 SCC 1 , it was observed in paras 921 and 922 as under: “921. In order to check all arbitrary remissions, the Code itself provides several conditions. Sub-sections (2) to (5) of Section 432 of the Code lay down basic procedure for making an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be automatic or claimed as a right for the simple reason, that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court, in various decisions, has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. 922. As rightly observed by this Court in Sangeet v. State of Haryana, there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years’ imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check in Section 433-A of the Code.” 33. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check in Section 433-A of the Code.” 33. Relying on the aforesaid decisions of this Court, it was submitted by the learned Solicitor General that there cannot be suo motu exercise of power under Section 432 and that even when the power is to be exercised on an application made by or on behalf of the prisoner, opinion of the Presiding Judge of the Court before or by which the conviction was confirmed, must be sought. In the submission of Mr. Rakesh Dwivedi, learned Senior Advocate, power under Section 432(1) can be exercised suo motu and that Section 432(2) applies only when an application is made and not where power is exercised suo motu. 34. We find force in the submission of the learned Solicitor General. By exercise of power of remission, the appropriate Government is enabled to wipe out that part of the sentence which has not been served out and over-ride a judicially pronounced sentence. The decision to grant remission must, therefore, be well informed, reasonable and fair to all concerned. The procedure prescribed in Section 432(2) is designed to achieve this purpose. The power exercisable under Section 432(1) is an enabling provision and must be in accord with the procedure under Section 432(2). Thus, our answer to question posed in para 52.6 is:- Question 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-section (2) of the same section is mandatory or not? Answer: That suo motu exercise of power of remission under Section 432(1) is not permissible and exercise of power under Section 432(1) must be in accordance with the procedure under Section 432(2) of Cr.P.C. Re: Question No. 7 as stated in Para 52.7 of the Referral Order: 52.7. Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”? 35. Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”? 35. Section 435(1) of Cr.P.C. sets out three categories under clauses (a), (b) and (c) thereof and states inter alia that the powers conferred by Sections 432 and 433 of Cr.P.C. upon the State Government shall not be exercised except after consultation with the Central Government. The language used in this provision and the expressions “… shall not be exercised” and “except after consultation”, signify the mandatory nature of the provision. Consultation with the Central Government must, therefore, be mandatorily undertaken before the State Government in its capacity as appropriate Government intends to exercise powers under Sections 432 and 433. This is an instance of express provision in a law made by Parliament as referred to in proviso to Article 73(1) of the Constitution. The question is whether such consultation stipulated in Section 435(1) implies concurrence on part of the Central Government as regards the action proposed by the State Government. Relying on the decisions of this Court in L&T McNeil Ltd. v. Govt. of Tamil Nadu (2001) 3 SCC 170 , State of U.P. & another v. Johri Mal (2004) 4 SCC 714 , State of Uttar Pradesh and others v. Rakesh Kumar Keshari and another (2011) 5 SCC 341 , Justice Chandrashekaraiah (Retd.) v. Janekere C. Krishna and others (2013) 3 SCC 1 17 . Mr. Rakesh Dwivedi, learned Senior Advocate submitted that the term consultation as appearing in Section 435 ought not to be equated with concurrence and that the action on part of the State of Tamil Nadu in seeking views of the Central Government as regards the proposed action did satisfy the requirement under Section 435. On the other hand, the learned Solicitor General relied upon Supreme Court Advocates-on-Record Association and others v. Union of India (1993)4 SCC 441 and State of Gujarat and another v. Justice R.A. Mehta(Retd.) and others (2013) 3 SCC 1 to submit that the consultation referred to in the provision must mean concurrence on part of the Central Government. In his submission without such concurrence, no action could be undertaken. 36. Speaking for the majority in Supreme Court Advocates-on-Record Association (supra) J.S. Verma, J (as the learned Chief Justice then was) considered the effect of the phrase “consultation with the Chief Justice of India” appearing in Article 222 of the Constitution. In his submission without such concurrence, no action could be undertaken. 36. Speaking for the majority in Supreme Court Advocates-on-Record Association (supra) J.S. Verma, J (as the learned Chief Justice then was) considered the effect of the phrase “consultation with the Chief Justice of India” appearing in Article 222 of the Constitution. The observations in paragraphs 438 to 441 are quoted hereunder: “438. The debate on primacy is intended to determine who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner’s prize at the end of the debate. The task before us has to be performed with this perception. 439. The primacy of one constitutional functionary qua the others, who together participate in the performance of this function assumes significance only when they cannot reach an agreed conclusion. The debate is academic when a decision is reached by agreement taking into account the opinion of everyone participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy, is best avoided by each constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after assessing the comparative merit of all those available. This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance of these appointments. The common purpose to be achieved, points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector. 440. Attention has to be focussed on the purpose, to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector. 440. The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate. 441. For this reason, it must be seen who is best equipped and likely to be more correct in his view for achieving the purpose and performing the task satisfactorily. In other words, primacy should be in him who qualifies to be treated as the ‘expert’ in the field. Comparatively greater weight to his opinion may then be attached.” The principle which emerges is that while construing the term ‘consultation’ it must be seen who is the best equipped and likely to be more correct in his view for achieving the purpose and performing the tasks satisfactorily and greater weight to his opinion may then be attached. While considering the phrase “after consultation of the Chief Justice of the High Court”, this Court in State of Gujarat v. R.A. Mehta (supra) stated the principles thus: “32. Thus, in view of the above, the meaning of “consultation” varies from case to case, depending upon its fact situation and the context of the statute as well as the object it seeks to achieve. Thus, no straitjacket formula can be laid down in this regard. Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess in relation to each other and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. The court must examine the fact situation in a given case to determine whether the process of consultation as required under the particular situation did in fact stand complete.” It is thus clear that the meaning of consultation varies from case to case depending upon the fact situation and the context of the statute as well as the object it seeks to achieve. 37. In the light of the aforesaid principles, we now consider the object that sub-clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C. seek to achieve. Clause (a) deals with cases which are investigated by the Delhi Special Police Establishment i.e. the Central Bureau of Investigation or by any other agency empowered to make investigation into an offence under any Central Act. The investigation by CBI in a matter may arise as a result of express consent or approval by the concerned State Government under Sections 5 and 6 of the Delhi Special Police Establishment Act or as a result of directions by a Superior Court in exercise of its writ jurisdiction in terms of the law laid down by this Court in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571 . For instance, in the present case the investigation into the crime in question i.e. Crime No. 3 of 1991 was handed over to the CBI on the next day itself. The entire investigation was done by the CBI who thereafter carried the prosecution right up to this Court. 38. In a case where the investigation is thus handed over to the CBI, entire carriage of the proceedings including decisions as to who shall be the public prosecutor, how the prosecution be conducted and whether appeal be filed or not are all taken by the CBI and at no stage the concerned State Government has any role to play. 38. In a case where the investigation is thus handed over to the CBI, entire carriage of the proceedings including decisions as to who shall be the public prosecutor, how the prosecution be conducted and whether appeal be filed or not are all taken by the CBI and at no stage the concerned State Government has any role to play. It has been laid down by this Court in Lalu Prasad Yadav and another v. State of Bihar and another (2010) 5 SCC 1 that in matters where investigation was handed over to the CBI, it is the CBI alone which is competent to decide whether appeal be filed or not and the State Government cannot even challenge the order of acquittal on its own. In such cases could the State Government then seek to exercise powers under Sections 432 and 433 on its own? 39. Further, in certain cases investigation is transferred to the CBI under express orders of the Superior Court. There are number of such examples and the cases could be of trans-border ramifications such as stamp papers scam or chit fund scam where the offence may have been committed in more than one States or it could be cases where the role and conduct of the concerned State Government was such that in order to have transparency in the entirety of the matter, the Superior Court deemed it proper to transfer the investigation to the CBI. It would not then be appropriate to allow the same State Government to exercise power under Sections 432 and 433 on its own and in such matters, the opinion of the Central Government must have a decisive status. In cases where the investigation was so conducted by the CBI or any such Central Investigating Agency, the Central Government would be better equipped and likely to be more correct in its view. Considering the context of the provision, in our view comparatively greater weight ought to be attached to the opinion of the Central Government which through CBI or other Central Investigating Agency was incharge of the investigation and had complete carriage of the proceedings. 40. Considering the context of the provision, in our view comparatively greater weight ought to be attached to the opinion of the Central Government which through CBI or other Central Investigating Agency was incharge of the investigation and had complete carriage of the proceedings. 40. The other two clauses, namely, clauses (b) and (c) of Section 435 deal with offences pertaining to destruction of any property belonging to the Central Government or where the offence was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty. Here again, it would be the Central Government which would be better equipped and more correct in taking the appropriate view which could achieve the purpose satisfactorily. In such cases, the question whether the prisoner ought to be given the benefit under Section 432 or 433 must be that of the Central Government. Merely because the State Government happens to be the appropriate Government in respect of such offences, if the prisoner were to be granted benefit under Section 432 or 433 by the State Government on its own, it would in fact defeat the very purpose. Our Answer to Question post in Para 52.7 is:- Question 52.7. Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”? Answer: In the premises as aforesaid, in our view the expression “consultation” ought to be read as concurrence and primacy must be accorded to the opinion of the Central Government in matters covered under clauses (a), (b) and (c) of Section 435(1) of the Cr.P.C. Re: Question No.2 as stated in para 52.2 of the Referral Order 52.2. Whether the “appropriate Government” is permitted to exercise the power of remission under Sections 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? 41. As regards this question, the submissions of the learned Solicitor General were two-fold. 41. As regards this question, the submissions of the learned Solicitor General were two-fold. According to him the Governor while exercising power under Article 161 of the Constitution, having declined remission in or commutation of sentences awarded to the respondents-convicts, second or subsequent exercise of executive power under Section 432/433 by the State Government was not permissible and it would amount to an over-ruling or nullification of the exercise of constitutional power vested in the Governor. In his submission, the statutory power under Section 432/433 Cr.P.C. could not be exercised in a manner that would be in conflict with the decision taken by the constitutional functionary under Article 161 of the Constitution. It was his further submission that Sections 432 and 433 of Cr.P.C. only prescribe a procedure for remission, while the source of substantive power of remission is in the Constitution. According to him Sections 432 and 433, Cr.P.C. are purely procedural and in aid of constitutional power under Article 72 of 161. He further submitted that as laid down in Maru Ram (supra), while exercising powers under Articles 72 and 161, the President or the Governor act on the aid and advice of the Council of Ministers and thus the Council of Ministers, that is to say the executive having already considered the matter and rejected the petition, a subsequent exercise by the same executive is impermissible. On the other hand, it was submitted by Mr. Rakesh Dwivedi, learned Senior Advocate that there was nothing in the statute which would bar or prohibit exercise of power on the second or subsequent occasion and in fact Section 433A of Cr.P.C. itself gives an indication that such exercise is permissible. It was further submitted that the power conferred upon an authority can be exercised successively from time to time as occasion requires. 42. We would first deal with the submission of the learned Solicitor General that the provisions of Section 432/433 Cr.P.C. are purely procedural and in aid of the constitutional power. This Court had an occasion to deal with the issue, though in a slightly different context, in Maru Ram (supra). We may quote paragraphs 58 and 59 of the decision, which are as under: “58. ………..What is urged is that by the introduction of Section 433-A, Section 432 is granted a permanent holiday for certain classes of lifers and Section 433(a) suffers eclipse. We may quote paragraphs 58 and 59 of the decision, which are as under: “58. ………..What is urged is that by the introduction of Section 433-A, Section 432 is granted a permanent holiday for certain classes of lifers and Section 433(a) suffers eclipse. Since Sections 432 and 433(a) are a statutory expression and modus operandi of the constitutional power, Section 433-A is ineffective because it detracts from the operation of Sections 432 and 433(a) which are the legislative surrogates, as it were, of the pardon power under the Constitution. We are unconvinced by the submissions of counsel in this behalf. 59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is “untouchable” and “unapproachable” and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament.” 43. The submission that Sections 432 and 433 are a statutory expression and modus operandi of the constitutional power was not accepted in Maru Ram (supra). In fact this Court went on to observe that though these two powers, one constitutional and the other statutory, are co-extensive, the source is different, the substance is different and the strength is different. This Court saw the two powers as far from being identical. The conclusion in para 72(4) in Maru Ram (supra) was as under: “72. In fact this Court went on to observe that though these two powers, one constitutional and the other statutory, are co-extensive, the source is different, the substance is different and the strength is different. This Court saw the two powers as far from being identical. The conclusion in para 72(4) in Maru Ram (supra) was as under: “72. (4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.” It is thus well settled that though similar, the powers under Section 432/433 Cr.P.C. on one hand and those under Article 72 and 161 on the other, are distinct and different. Though they flow along the same bed and in same direction, the source and substance is different. We therefore reject the submission of the learned Solicitor General. 44. Section 433A of Cr.P.C. inter alia states, “…… where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life”, such person shall not be released from prison unless he had served at least 14 years of imprisonment. It thus contemplates an earlier exercise of power of commuting the sentence under Section 433 Cr.P.C. It may be relevant to note that under Section 433 a sentence of death can be commuted for any other punishment including imprisonment for life. A prisoner having thus been granted a benefit under Section 433 Cr.P.C. can certainly be granted further benefit of remitting the remainder part of the life sentence, subject of course to statutory minimum period of 14 years of actual imprisonment. We therefore accept the submission of Mr. Rakesh Dwivedi, learned Senior Advocate that there is nothing in the statute which either expressly or impliedly bars second or subsequent exercise of power. In fact Section 433A contemplates such subsequent exercise of power. At this stage, the observations in G. Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and others in the context of constitutional power of clemency are relevant: “10. In fact Section 433A contemplates such subsequent exercise of power. At this stage, the observations in G. Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh and others in the context of constitutional power of clemency are relevant: “10. …………… The rejection of one clemency petition does not exhaust the power of the President or the Governor.” This principle was re-iterated in para 7 of the decision in Krishnan and others v. State of Haryana and others as follows:- “In fact, Articles 72 and 161 of the Constitution provide for residuary sovereign power, thus, there could be nothing to debar the authorities concerned to exercise such power even after rejection of one clemency petition and even in the changed circumstances.” 45. In State of Haryana and others v. Jagdish it was observed by this Court as under: “46. At the time of considering the case of premature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socioeconomic condition of the convict’s family and other similar circumstances.” In Kehar Singh v. Union of India (supra) it was observed, “…….. the power under Article 72 is of the widest amplitude, can contemplate myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of States may be profoundly assisted by prevailing occasion and passing of time”. Having regard to its wide amplitude and the status of the functions to be discharged thereunder, it was found unnecessary to spell out any specific guidelines for exercise of such power. The observations made in the context of power under Article 72 will also be relevant as regards exercise under Section 432/433 Cr.P.C. In State (Govt. of NCT of Delhi) v. Prem Ram (2003) 7 SCC 121 it was observed thus: “14. The observations made in the context of power under Article 72 will also be relevant as regards exercise under Section 432/433 Cr.P.C. In State (Govt. of NCT of Delhi) v. Prem Ram (2003) 7 SCC 121 it was observed thus: “14. The powers conferred upon the appropriate Government under Section 433 have to be exercised reasonably and rationally keeping in view the reasons germane and relevant for the purpose of law, mitigating circumstances and/or commiserative facts necessitating the commutation and factors like interest of the society and public interest.” 46. We see no hindrance or prohibition in second or subsequent exercise of power under Section 432/433 Cr.P.C. As stated above, such exercise is in fact contemplated under Section 433A. An exercise of such power may be required and called for depending upon exigencies and fact situation. A person may be on the death bed and as such the appropriate Government may deem fit to grant remission so that he may breathe his last in the comfort and company of his relations. Situations could be different. It would be difficult to put the matter in any straight jacket or make it subject to any guidelines, as was found in Kehar Singh. The aspects whether “the convict had lost his potentiality in committing the crime and whether there was any fruitful purpose of confining the convict any more” as stated in State of Haryana v. Jagdish (supra) could possibly yield different assessment after certain period and can never be static. Every case will depend on its individual facts and circumstances. In any case, if the repeated exercise is not for any genuine or bona fide reasons, the matter can be corrected by way of judicial review. Further, in the light of our decision as aforesaid, in any case an approach would be required to be made under Section 432(2) Cr.P.C. to the concerned court which would also result in having an adequate check. 47. In the instant case, A-1 Nalini and other convicts A-2, A-3 and A-18 who were awarded death sentence had initially preferred mercy petition under Article 161 of the Constitution. The petition preferred by A-1 Nalini was allowed, while those of other three were rejected. Those three convicts then preferred mercy petition under Article 72 of the Constitution which was rejected after considerable delay. The petition preferred by A-1 Nalini was allowed, while those of other three were rejected. Those three convicts then preferred mercy petition under Article 72 of the Constitution which was rejected after considerable delay. On account of such delay in disposal of the matters, this Court commuted the sentence of those three convicts to that of life imprisonment. The other convicts namely A-9, A-10 and A-16 had not preferred any petition under Article 161 against their life imprisonment. Thus the Governor while exercising power under Article 161 on the earlier occasion had considered the cases of only three of the convicts and that too when they were facing death sentence. The cases of other three were not even before the Governor. In the changed scenario namely the death sentence having been commuted to that of the imprisonment for life under the orders of this Court, the approach would not be on the same set of circumstances. Each of the convicts having undergone about 23 years of actual imprisonment, there is definitely change in circumstances. An earlier exercise of power under Article 72 or 161 may certainly have taken into account the gravity of the offence, the effect of such offence on the society in general and the victims in particular, the age, capacity and conduct of the offenders and the possibility of any retribution. Such assessment would naturally have been as on the day it was made. It is possible that with the passage of time the very same assessment could be of a different nature. It will therefore be incorrect and unjust to rule out even an assessment on the subsequent occasion. 48. While commuting the death sentence to that of imprisonment for life, on account of delay in disposal of the mercy petition, this Court in its jurisdiction under Article 32 concentrates purely on the factum of delay in disposal of such mercy petition as laid down by this Court in Shatrughan Chauhan and another v. Union of India and others37. The merits of the matter are not required and cannot be gone into. The commutation by this Court in exercise of power under Article 32 is therefore completely of a different nature. On the other hand, the consideration under Section 432/433 is of a different dimension altogether. Our Answer to Question posed in Para 52.2 is :- Question 52.2. The merits of the matter are not required and cannot be gone into. The commutation by this Court in exercise of power under Article 32 is therefore completely of a different nature. On the other hand, the consideration under Section 432/433 is of a different dimension altogether. Our Answer to Question posed in Para 52.2 is :- Question 52.2. Whether the “appropriate Government” is permitted to exercise the power of remission under Sections 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? Answer: In the circumstances, in our view it is permissible to the appropriate Government to exercise the power of remission under Section 432/433 Cr.P.C. even after the exercise of power by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32. Re: Question No.1 as stated in para 52.1 of the Referral Order 49. Question no. 1 as formulated in the Referral Order comprises of two subquestions, as set out hereunder: (a) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission? And (b) Whether as per the principles enunciated in paragraphs 91 to 93 of Swamy Shraddananda(2)6, a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment for imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission? Re: Sub-question (a) of question No.1 in Para 52.1 (a) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission? 50. In Gopal Vinayak Godse v. The State of Maharashtra and others (1961) 3 SCR 440 , the petitioner was convicted on 10.02.1949 and given sentences including one for transportation for life. 50. In Gopal Vinayak Godse v. The State of Maharashtra and others (1961) 3 SCR 440 , the petitioner was convicted on 10.02.1949 and given sentences including one for transportation for life. According to him, he had earned remissions to the tune of 2893 days upto 30.09.1960 and if such earned remissions were added, his actual term of imprisonment would exceed 20 years and therefore he prayed that he be set at liberty forthwith. Repelling these submissions, it was observed by the Constitution Bench of this Court that in order to get the benefit of earned remissions the sentence of imprisonment must be for a definite and ascertainable period, from and out of which the earned remissions could be deducted. However, transportation for life or life imprisonment meant that the prisoner was bound in law to serve the entire life term i.e. the remainder of his life in prison. Viewed thus, unless and until his sentence was commuted or remitted by an appropriate authority under the relevant provisions, the prisoner could not claim any benefit. It was observed: “…….. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death.” 51. In Maru Ram (supra) while considering the effect of Section 433A of Cr.P.C. this Court summed up the issue as under: “…Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant-release at that point where the subtraction results in zero. Here, we are concerned with life imprisonment and so we come upon another concept bearing on the nature of the sentence which has been highlighted in Godse's case Where the sentence is indeterminate and of uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. Godse was sentenced to imprisonment for life. Godse was sentenced to imprisonment for life. He had earned considerable remissions which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la Section 55 I. P. C. On the basis of a rule which did make that equation, Godse sought his release through a writ petition under Article 52 of the Constitution. He was rebuffed by this Court. A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under Section 401 of the Criminal Procedure Code, 1898 (corresponding to Section 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of "imprisonment for the whole of the remaining period of the convicted person's natural life" Conclusion No.6 in Maru Ram was to the following effect: “We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.” 52. Section 53 of the IPC envisages different kinds of punishments while Section 45 of the IPC defines the word ‘life’ as the life of a human being unless the contrary appears from the context. The life of a human being is till he is alive that is to say till his last breath, which by very nature is one of indefinite duration. In the light of the law laid down in Godse and Maru Ram, which law has consistently been followed the sentence of life imprisonment as contemplated under Section 53 read with Section 45 of the IPC means imprisonment for rest of the life or the remainder of life of the convict. In the light of the law laid down in Godse and Maru Ram, which law has consistently been followed the sentence of life imprisonment as contemplated under Section 53 read with Section 45 of the IPC means imprisonment for rest of the life or the remainder of life of the convict. The terminal point of the sentence is the last breath of the convict and unless the appropriate Government commutes the punishment or remits the sentence such terminal point would not change at all. The life imprisonment thus means imprisonment for rest of the life of the prisoner. 53. In paras 27 and 38 of the decision in State of Haryana v. Mahender Singh and others 2007(13) SCC 606 , this Court observed:- “27. It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law. 38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. (State of Mysore v. H. Srinivasmurthy)” 54. The convict undergoing the life imprisonment can always apply to the concerned authority for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 Cr.P.C. and the authority would be obliged to consider the same reasonably. This was settled in the case of Godse which view has since then been followed consistently in State of Haryana v. Mahender Singh (supra), State of Haryana Vs. Jagdish (supra), Sangeet Vs. State of Haryana (supra) and Laxman Naskar Vs. This was settled in the case of Godse which view has since then been followed consistently in State of Haryana v. Mahender Singh (supra), State of Haryana Vs. Jagdish (supra), Sangeet Vs. State of Haryana (supra) and Laxman Naskar Vs. Union of India and others (2000) 2 SCC 595 . The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation as ruled in Godse. All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the concerned authorities, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner. Our Answer to sub question (a) of Question in Para 52.1 is: (a) Whether imprisonment for life in terms of Section 53 read with Section 45 of the Indian Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission? Answer: The sentence of life imprisonment means imprisonment for the rest of life or the remainder of life of the convict. Such convict can always apply for obtaining remission either under Articles 72 of 161 of the Constitution or under Section 432 Cr. P.C. and the authority would be obliged to consider the same reasonably. Re: sub-question (b) of Question No.1 in Para 52.1 (b) Whether as per the principles enunciated in paragraphs 91 to 93 of Swamy Shraddananda(2)6, a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment for imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission? 55. In Swamy Shraddananda(1)4 the appellant was convicted for the offence of murder and given death sentence, which conviction and sentence was under appeal in this Court. A Bench of two learned Judges of this Court affirmed the conviction of the appellant but differed on the question of sentence to be imposed. Sinha J. was of the view that instead of death sentence, life imprisonment would serve the ends of justice. A Bench of two learned Judges of this Court affirmed the conviction of the appellant but differed on the question of sentence to be imposed. Sinha J. was of the view that instead of death sentence, life imprisonment would serve the ends of justice. He however, directed that the appellant would not be released from the prison till the end of his life. Katju J. was of the view that the appellant deserved death sentence. The matter therefore came up before a Bench of three learned Judges. While dealing with the question of sentence to be imposed, this Court was hesitant in endorsing the death penalty awarded by the trial court and confirmed by the High Court. Paragraph nos. 55 and 56 of the judgment in Swamy Shraddananda(2)6 may be quoted here: “55. We must not be understood to mean that the crime committed by the appellant was not very grave or the motive behind the crime was not highly depraved. Nevertheless, in view of the above discussion we feel hesitant in endorsing the death penalty awarded to him by the trial court and confirmed by the High Court. The absolute irrevocability of the death penalty renders it completely incompatible to the slightest hesitation on the part of the Court. The hangman’s noose is thus taken off the appellant’s neck. 56. But this leads to a more important question about the punishment commensurate to the appellant’s crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr Hegde informed us that the appellant was taken in custody on 28-3-1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh v. State of Punjab. In para 14 of the judgment this Court held and observed as follows: (SCC p. 753) “14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men’s life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder. We think that it is time that the course suggested in Dalbir Singh should receive a formal recognition by the Court.” 56. The discussion in aforesaid paragraph 56 shows the concern that weighed with this Court was the standardization rendering the sentence of life imprisonment in practice as equal to imprisonment for a period of no more than fourteen years. We think that it is time that the course suggested in Dalbir Singh should receive a formal recognition by the Court.” 56. The discussion in aforesaid paragraph 56 shows the concern that weighed with this Court was the standardization rendering the sentence of life imprisonment in practice as equal to imprisonment for a period of no more than fourteen years. Relying on Dalbir Singh & others v. State of Punjab (1979) 3 SCC 745 which in turn had considered Rajendra Prasad v. State of U.P. (1979) 3 SCC 646 , it was observed that the Court must in appropriate cases put the punishment of life imprisonment awarded as a substitute for death penalty, beyond any remission and direct it to be carried out as directed by the Court. Paragraphs 91 to 93 of the decision in Shraddananda(2) which gives rise to sub-question (b) of the first question in the Referral Order were as under: “91. The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Maru Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category 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 the application of remission. 92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all. 93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.” 57. Finally, in paragraph 95 of its Judgment in Shraddananda(2)6 this Court substituted the death sentence given to the appellant to that of imprisonment for life and directed that he would not be released from the prison till the rest of his life. While doing so, this Court made it clear that it was not dealing with powers of the President and the Governor under Article 72 and 161 of the Constitution but only with provisions of commutation, remission etc. as contained in the Cr.P.C. and the Prison Acts, as would be evident from paragraph 77 of the judgment which was to the following effect:- “77. This takes us to the issue of computation and remission, etc. of sentences. The provisions in regard to computation, remission, suspension, etc. are to be found both in the Constitution and in the statutes. as contained in the Cr.P.C. and the Prison Acts, as would be evident from paragraph 77 of the judgment which was to the following effect:- “77. This takes us to the issue of computation and remission, etc. of sentences. The provisions in regard to computation, remission, suspension, etc. are to be found both in the Constitution and in the statutes. Articles 72 and 161 of the Constitution deal with the powers of the President and the Governors of the States respectively to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted for any offence. Here it needs to be made absolutely clear that this judgment is not concerned at all with the constitutional provisions that are in the nature of the State’s sovereign power. What is said hereinafter relates only to provisions of commutation, remission, etc. as contained in the Code of Criminal Procedure and the Prisons Acts and the rules framed by the different States.” 58. The decision in Shraddananda(2)6 is premised on the following: (a) The life imprisonment, though in theory is till the rest of the life or the remainder of life of the prisoner, in practice it is equal to imprisonment for a period of no more than 14 years. (b) Though in a given case, in the assessment of the Court the case may fall short of the “rarest of rare” category to justify award of death sentence, it may strongly feel that a sentence of life imprisonment which normally works out to a term of fourteen years may be grossly disproportionate and inadequate. (c) If the options are limited only to these two punishments the Court may feel tempted and find itself nudged into endorsing the death penalty, which course would be disastrous. (d) The Court may therefore take recourse to the expanded option namely the hiatus between imprisonment for fourteen years and the death sentence, if the facts of the case justify. (e) The unsound way in which remissions are granted in cases of life imprisonment makes out a strong case to make a special category for the very few cases where the death penalty is substituted for imprisonment of life. (e) The unsound way in which remissions are granted in cases of life imprisonment makes out a strong case to make a special category for the very few cases where the death penalty is substituted for imprisonment of life. (f) While awarding life imprisonment the Court may specify that the prisoner must actually undergo minimum sentence of period in excess of fourteen years or that he shall not be released till the rest of his life and/or put such sentence beyond the application of remission. The view so taken in Shraddananda(2)6 has been followed in some of the later Bench decisions of this Court. It is the correctness of this view and more particularly whether it is within the powers of the Court to put the sentence of life imprisonment so awarded beyond application of remissions, which is presently in question. 59. We must at the outset state that while commuting the death sentence to that of imprisonment for life, this Court in V. Sreedhar v. Union of India (supra)5 had not put any fetters or restrictions on the power of commutation and/or remission. In fact paragraph 32 of the decision expressly mentions that the sentence so awarded is subject to any remission granted by the Appropriate Government under Section 432 of Cr.P.C. Strictly speaking, sub-question (b) of the first question does not arise for consideration insofar as the present writ petition is concerned and that precisely was the submission of Mr. Rakesh Dwivedi, learned Senior Advocate. However since the question has been referred for our decision we proceed to deal with said sub-question (b) of question No.1. Further a doubt has been expressed in Sangeet v. State of Haryana (supra) regarding correctness of the decision in Shraddananda(2)6 in following words: “55. A reading of some recent decisions delivered by this Court seems to suggest that the remission power of the appropriate Government has effectively been nullified by awarding sentences of 20 years, 25 years and in some cases without any remission. Is this permissible? Can this Court (or any court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? Is this permissible? Can this Court (or any court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? What this Court has done in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence of 20 years’ or 30 years’ imprisonment without remission, is to effectively injunct the appropriate Government from exercising its power of remission for the specified period. In our opinion, this issue needs further and greater discussion, but as at present advised, we are of the opinion that this is not permissible. The appropriate Government cannot be told that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be told that he cannot apply for a remission in his sentence, whatever be the reason.” We therefore deal with the question. 60. The decision of this Court in Maru Ram (Supra) refers to the background which preceded the introduction of Section 433 A in Cr. P.C. The Joint Committee which went into the Indian Penal Code (Amendment) Bill had suggested that a long enough minimum sentence should be suffered by both classes of lifers namely, those guilty of offence where death sentence was one of the alternatives and where the death sentence was commuted to imprisonment for life. Paragraph 5 of the decision in Maru Ram sets out the objects and reasons, relevant notes on clauses and the recommendations and was to the following effect: 5. The Objects and Reasons throw light on the “why” of this new provision: “The Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974. The working of the new Code has been carefully watched and in the light of the experience, it has been found necessary to make a few changes for removing certain difficulties and doubts. The notes on clauses explain in brief the reasons for the amendments.” The notes on clauses give the further explanation:- “Clause 33.—Section 432 contains provision relating to powers of the appropriate Government to suspend or remit sentences. The notes on clauses explain in brief the reasons for the amendments.” The notes on clauses give the further explanation:- “Clause 33.—Section 432 contains provision relating to powers of the appropriate Government to suspend or remit sentences. The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had suggested the insertion of a proviso to Section 57 of the Indian Penal Code to the effect that a person who has been sentenced to death and whose death sentence has been commuted into that of life imprisonment and persons who have been sentenced to life imprisonment for a capital offence should undergo actual imprisonment of 14 years in jail. Since this particular matter relates more appropriately to the Criminal Procedure Code, a new section is being inserted to cover the proviso inserted by the Joint Committee.” This takes us to the Joint Committee’s recommendation on Section 57 of the Penal Code that being the inspiration for clause 33. For the sake of completeness, we may quote that recommendation: “Section 57 of the Code as proposed to be amended had provided that in calculating fractions of terms of punishment, imprisonment for life should be reckoned as equivalent to rigorous imprisonment for twenty years. In this connection attention of the Committee was brought to the aspect that sometimes due to grant of remission even murderers sentenced or commuted to life imprisonment were released at the end of 5 to 6 years. The Committee feels that such a convict should not be released unless he has served at least fourteen years of imprisonment.” Thus, as against the then prevalent practice or experience where murderers sentenced or commuted to life imprisonment, were being released at the end of 5-6 years, period of 14 years of actual imprisonment was considered sufficient. 61. Shraddananda(2)6 referred to earlier decision of this Court in Dalbir Singh and others v. State of Punjab (supra). In that decision, taking cue from English Legislation on abolition of death penalty, a suggestion was made in following words:- “14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. In that decision, taking cue from English Legislation on abolition of death penalty, a suggestion was made in following words:- “14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man’s life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.” 62. Committee of Reforms on Criminal Justice System under the Chairmanship of Dr. Justice Malimath in its report submitted in the year 2003 recommended suitable amendments to introduce a punishment higher than life imprisonment and lesser than death penalty, similar to that which exists in USA namely “Imprisonment for life without commutation or remission”. The relevant paragraphs of Malimath Committee Report namely paragraphs 14.7.1 and 14.7.2 were as under:- “ALTERNATIVE TO DEATH PENALTY 14.7.1 Section 53 of the IPC enumerates various kinds of punishments that can be awarded to the offenders, the highest being the death penalty and the second being the sentence of imprisonment for life. At present there is no sentence that can be awarded higher than imprisonment for life and lower than death penalty. In USA a higher punishment called “Imprisonment for life without commutation or remission” is one of the punishments. As death penalty is harsh and irreversible the Supreme Court has held that death penalty should be awarded only in the rarest of rare cases, the Committee considers that it is desirable to prescribe a punishment higher than that of imprisonment for life and lower than death penalty. Section 53 be suitably amended to include “Imprisonment for life without commutation or remission” as one of the punishments. 14.7.2 Wherever imprisonment for life is one of the penalties prescribed under the IPC, the following alternative punishment be added namely “Imprisonment for life without commutation or remission”. Section 53 be suitably amended to include “Imprisonment for life without commutation or remission” as one of the punishments. 14.7.2 Wherever imprisonment for life is one of the penalties prescribed under the IPC, the following alternative punishment be added namely “Imprisonment for life without commutation or remission”. Wherever punishment of imprisonment for life without commutation or remission is awarded, the State Governments cannot commute or remit the sentence. Therefore, suitable amendment may be made to make it clear that the State Governments cannot exercise power of remission or commutation when sentence of “Imprisonment for life without remission or commutation” is awarded. This however cannot affect the Power of Pardon etc of the President and the Governor under Articles 72 and 161 respectively.” 63. In its report submitted in January 2013, Committee on Amendment to Criminal Law under the chairmanship of Justice J.S. Verma made following recommendations on life imprisonment:- “On Life Imprisonment 13. Before making our recommendation on this subject, we would like to briefly examine the meaning of the expression “life” in the term “life imprisonment”, which has attracted considerable judicial attention. 14. Mohd. Munna v. Union of India reported in 2005 (7) SCC 417 reiterates the well settled judicial opinion that a sentence of imprisonment for life must, prima facie, be treated as imprisonment for the whole of the remaining period of the convict’s natural life. This opinion was recently restated in Rameshbhai Chandubhai Rathode v. State of Gujarat reported in 2011(2) SCC 764 , and State of U.P. v. Sanjay Kumar reported in 2012(8) SCC 537 , where the Supreme Court affirmed that life imprisonment cannot be equivalent to imprisonment for 14 or 20 years, and that it actually means (and has always meant) imprisonment for the whole natural life of the convict. 15. We therefore recommend a legislative clarification that life imprisonment must always mean imprisonment “for ‘the entire natural life of the convict’.” Pursuant to these recommendations, certain Sections were added in the IPC while other Sections were substantially amended by Criminal Law Amendment Act of 2013 (Act 13 of 2013). As a result Sections 370(6), 376-A, 376-D and 376-E now prescribe a punishment of “with imprisonment for life which shall mean imprisonment for the remainder of that persons natural life”. As a result Sections 370(6), 376-A, 376-D and 376-E now prescribe a punishment of “with imprisonment for life which shall mean imprisonment for the remainder of that persons natural life”. Thus what was implicit in the sentence for imprisonment of life as laid down in Godse and followed since then has now been made explicit by the Parliament in“Page 249 certain Sections of the IPC. However, none of the amendments reflected the introduction of punishment suggested by Malimath Committee. 64. Thus despite recommendations of Justice Malimath Committee to introduce a punishment higher than life imprisonment and lesser than death penalty similar to the one which exists in USA, Parliament has chosen not to act in terms of recommendations for last 12 years. In this backdrop, it was submitted by Mr. Rakesh Dwivedi, learned Senior Advocate that in Shraddananda(2)6 this court in fact carved out and created a new form of punishment and resorted to making a legislation on the point. It was further submitted that Section 433A of Cr.P.C. prescribes minimum actual imprisonment which must be undergone in cases of life imprisonment on two counts, where death sentence is one of the alternatives or where death sentence is commuted to imprisonment for life. Even the prisoner who at one point of time was awarded a death sentence is entitled, upon his death sentence being commuted to life imprisonment, to be considered under Section 433A. In his submission, it would not be within the powers of the court to put the sentence of life imprisonment in such cases beyond application of remissions, in the teeth of the Statute. Mr. T.R. Andhyarujina, learned Senior Advocate appearing for one of the intervenors submitted that what is within the domain of the judiciary is power to grant or award sentence as prescribed and when it comes to its execution the domain is that of the executive. In his submission howsoever strong be the temptation on account of gravity of the crime, there could be no trenching into the power of the executive. He submitted that it is not for the judiciary to say that there could be no commutation at all, which would be violative of the concept of separation of powers. In his submission howsoever strong be the temptation on account of gravity of the crime, there could be no trenching into the power of the executive. He submitted that it is not for the judiciary to say that there could be no commutation at all, which would be violative of the concept of separation of powers. Reliance was placed on Section 32A of NDPS Act to contend that wherever the Parliament intended that there be no remissions in respect of any offence, it has chosen to say so in specific terms. 65. In a recent decision of this Court in Vikram Singh @ Vicky & another v. Union of India and others AIR 2015 SC 3577, while considering challenge to the award of death sentence for an offence under Section 364A of the IPC this Court considered various decisions on the issue of punishment. It considered some American decisions holding that fixing of prison terms for specific crimes involves a substantive penalogical judgment which is properly within the province of legislatures and not courts and that the responsibility for making fundamental choices and implementing them lies with the legislature. In the end, the conclusions (b), (c) and (d) as summed up by this Court were as under: “(b) Prescribing punishment is the function of the legislature and not the Courts. (c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that the necessary to meet those needs. (d) Court show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.” 66. Section 302 IPC prescribes two punishments, the maxima being the death sentence and the minima to be life sentence. Shraddananada(2)6 proceeds on the footing that the court may in certain cases take recourse to the expanded option namely the hiatus between imprisonment for 14 years and the death sentence, if the facts of the case so justify. The hiatus thus contemplated is between the minima i.e. 14 years and the maxima being the death sentence. In fact going by the punishment prescribed in the statute there is no such hiatus between the life imprisonment and the death sentence. The hiatus thus contemplated is between the minima i.e. 14 years and the maxima being the death sentence. In fact going by the punishment prescribed in the statute there is no such hiatus between the life imprisonment and the death sentence. There is nothing that can stand in between these two punishments as life imprisonment, going by the law laid down in Godse’s case is till the end of one’s life. What Shraddananda(2)6 has done is to go by the practical experience of the life imprisonment getting reduced to imprisonment for a period of not more that 14 years and assess that level to be the minima and then consider a hiatus between that level and the death sentence. In our view this assumption is not correct. What happens on the practical front cannot be made basis for creating a sentence by the Courts. That part belongs specifically to the legislature. If the experience in practice shows that remissions are granted in unsound manner, the matter can be corrected in exercise of judicial review. In any case in the light of our discussion in answer to Question in Para 52.6, in cases of remissions under Section 432/433 of Cr.P.C. an approach will necessarily have to be made to the Court, which will afford sufficient check and balance. 67. It may be relevant to note at this state that in England and Wales, the mandatory life sentence for murder is contained in Section 1(1) of the Murder (Abolition of the Death Penalty) Act, 1965. The Criminal Justice Act, 2003 empowers a trial judge, in passing a mandatory life sentence, to determine the minimum term which the prisoner must serve before he is eligible for early release on licence. The statute allows the trial judge to decide that because of the seriousness of the offence, the prisoner should not be eligible for early release (in effect to make a “whole life order” that is to say till the end of his life. In effect, the recommendations of Malimath Committee were on similar lines to add a new form of punishment which could similarly empower the Courts to impose such punishment and state that the prisoner would not be entitled to remissions. Section 32A of the NDPS Act is also an example in that behalf. In effect, the recommendations of Malimath Committee were on similar lines to add a new form of punishment which could similarly empower the Courts to impose such punishment and state that the prisoner would not be entitled to remissions. Section 32A of the NDPS Act is also an example in that behalf. What is crucial to note is the specific empowerment under the Statute by which a prisoner could be denied early release or remissions. It ma 68. Shraddananda (2)6 does not proceed on the ground that upon interpretation of the concerned provision such as Section 302 of the IPC, such punishment is available for the court to impose. If that be so it would be available to even the first court i.e. Sessions Court to impose such sentence and put the matter beyond any remissions. In a given case the matter would not go before the superior court and it is possible that there may not be any further assessment by the superior court. If on the other hand one were to say that the power could be traceable to the power of confirmation in a death sentence which is available to the High Court under Chapter XXVIII of Cr.P.C., even the High Court while considering death reference could pass only such sentence as is available in law. Could the power then be traced to Article 142 of the Constitution? 69. In Prem Chand Garg and another v. Excise Commissioner, U.P. and others AIR 1963 SC 996 , Constitution Bench of this Court observed:- “….The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws….” (emphasis added) In Supreme Court Bar Association v. Union of India & another 1998 (4) SCC 409 while dealing with exercise of powers under Article 142 of Constitution, it was observed :- “47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.” (emphasis added) 70. Further, in theory it is possible to say that even in cases where court were to find that the offence belonged to the category of “rarest of rare” and deserved death penalty, such death convicts can still be granted benefit under Section 432/433 of Cr.P.C. In fact, Section 433A contemplates such a situation. On the other hand, if the court were to find that the case did not belong to the “rarest of rare” category and were to put the matter beyond any remissions, the prisoner in the latter category would stand being denied the benefit which even the prisoner of the level of a death convict could possibly be granted under Section 432/433 of the Cr.P.C. The one who in the opinion of the Court deserved death sentence can thus get the benefit but the one whose case fell short to meet the criteria of “rarest of rare” and the Court was hesitant to grant death sentence, would languish in Jail for entirety of his life, without any remission. If absolute ‘irrevocability of death sentence’ weighs with the Court in not awarding death sentence, can the life imprisonment ordered in the alternative be so directed that the prospects of remissions on any count stand revoked for such prisoner. In our view, it cannot be so ordered. 71. We completely share the concern as expressed in Shraddananda(2)6 that at times remissions are granted in extremely unsound manner but in our view that by itself would not and ought not to nudge a judge into endorsing a death penalty. If the offence in question falls in the category of the “rarest of rare” the consequence may be inevitable. 71. We completely share the concern as expressed in Shraddananda(2)6 that at times remissions are granted in extremely unsound manner but in our view that by itself would not and ought not to nudge a judge into endorsing a death penalty. If the offence in question falls in the category of the “rarest of rare” the consequence may be inevitable. But that cannot be a justification to create a new form of punishment putting the matter completely beyond remission. Parliament having stipulated mandatory minimum actual imprisonment at the level of 14 years, in law a prisoner would be entitled to apply for remission under the statute. If his case is made out, it is for the executive to consider and pass appropriate orders. Such orders would inter alia consider not only the gravity of the crime but also other circumstances including whether the prisoner has now been de-sensitized and is ready to be assimilated in the society. It would not be proper to prohibit such consideration by the executive. While doing so and putting the matter beyond remissions, the court would in fact be creating a new punishment. This would mean- though a model such a Section 32A was available before the Legislature and despite recommendation by Malimath Committee, no such punishment was brought on the Statute yet the Court would create such punishment and enforce it in an individual case. In our view, that would not be permissible. 72. In Pravasi Bhalai Sangathan v. Union of India and others 2014(11) SCC 477 , while emphasizing that the court cannot rewrite, recast or reframe the legislation it was observed as under:- “20. Thus, it is evident that the legislature had already provided sufficient and effective remedy for prosecution of the authors who indulge in such activities. In spite of the above, the petitioner sought reliefs which tantamount to legislation. This Court has persistently held that our Constitution clearly provides for separation of powers and the court merely applies the law that it gets from the legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the Judges should only reflect the law regardless of the anticipated consequences, considerations of fairness or public policy and the Judge is simply not authorised to legislate law. Consequently, the Anglo-Saxon legal tradition has insisted that the Judges should only reflect the law regardless of the anticipated consequences, considerations of fairness or public policy and the Judge is simply not authorised to legislate law. “If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it.” The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The very power to legislate has not been conferred on the courts. However, of lately, judicial activism of the superior courts in India has raised public eyebrows time and again.” Similarly in Sushil Kumar Sharma v. Union of India and others (2005) 6 SCC 281 , it was observed that if the provision of law is misused and subjected to the abuse, it is for the legislation to amend modify or repeal it, if deemed necessary. 73. The power under Section 432/433 Cr.P.C. and the one exercisable under Articles 72 and 161 of the Constitution, as laid down in Maru Ram (supra) are streams flowing in the same bed. Both seek to achieve salutary purpose. As observed in Kehar Singh (supra) in Clemency jurisdiction it is permissible to examine whether the case deserves the grant of relief and cut short the sentence in exercise of executive power which abridges the enforcement of a judgment. Clemency jurisdiction would normally be exercised in the exigencies of the case and fact situation as obtaining when the occasion to exercise the power arises. Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose under Section 432/433 Cr.P.C.. In our view Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel. 74. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel. 74. As stated in Prem Chand Garg (supra) an order in exercise of power under Article 142 of the Constitution of India must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. In A.R. Antulay v. R.S. Naik (1988) 2 SCC 602 a direction by which the petitioner was denied a statutory right of appeal was recalled. A fortiorari, a statutory right of approaching the authority under Section 432/433 Cr.P.C. which authority can, as laid down in Kehar Singh (supra) and Epuru Sudhakar (supra) eliminate the effect of conviction, cannot be denied under the orders of the Court. 75. The law on the point of life imprisonment as laid down in Godse’s case (supra) is clear that life imprisonment means till the end of one’s life and that by very nature the sentence is indeterminable. Any fixed term sentence characterized as minimum which must be undergone before any remission could be considered, cannot affect the character of life imprisonment but such direction goes and restricts the exercise of power of remission before the expiry of such stipulated period. In essence, any such direction would increase or expand the statutory period prescribed under Section 433A of Cr.P.C. Any such stipulation of mandatory minimum period inconsistent with the one in Section 433A, in our view, would not be within the powers of the Court. Our answer to Sub Question (b) of Question in Para 52.1 is: Question b:Whether as per the principles enunciated in paragraphs 91 to 93 of Swamy Shraddananda(2)6, a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment for imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission? Answer. Answer. In our view, it would not be open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under Section 433A of Cr. P.C. 76. Reference answered accordingly. W. P (CRL.) Nos.185, 150, 66 OF 2014 & Crl. Appeal NO.1215 OF 2011 These Writ Petitions and Criminal Appeal are disposed of in terms of the decision in Writ Petition (Criminal) No.48 of 2014. 77. Our conclusions in respect of Questions referred in the Referral Order, except in respect of sub question (b) of Question in Para 52.1 of the Referral Order, are in conformity with those in the draft judgment of Hon’ble Kalifulla J. Since our view in respect of sub question (b) of Question in Para 52.1 of the Referral Order is not in agreement with that of Hon’ble Kalifulla J., while placing our view we have dealt with other questions as well.