A.G. PERARIVALAN versus STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/ MMDA, CHENNAI, TAMIL NADU AND ANR.

Citation: [2022] 7 S.C.R. 1048 · Decided: 18-05-2022 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 7 S.C.R.
   [2022] 7 S.C.R. 1048
1048
A.G. PERARIVALAN
v.
STATE, THROUGH SUPERINTENDENT OF POLICE CBI/SIT/
MMDA, CHENNAI, TAMIL NADU AND ANR.
(Criminal Appeal Nos. 833-834 of 2022)
MAY 18, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND A. S. BOPANNA, JJ.]
Constitution of India: Art. 161 – Power of Governor to grant
pardons, etc, and to suspend, remit or commute sentences in certain
cases – Appellant, one of the accused in assassination of the former
Prime Minister of India-Shri Rajeev Gandhi – Convicted and
sentenced to death – Death sentence commuted to life imprisonment
– As regards, remission of the sentence of the appellant, reference
made by the Governor to the President of India on 25.01.2021,
without taking a decision on the recommendation made by the State
Cabinet on remission of the sentence of the appellant – Correctness
of – Held: The advice of the State Cabinet is binding on the Governor
in matters relating to commutation / remission of sentences u/Art.161
– Non-exercise of the power u/Art. 161 or inexplicable delay in
exercise of such power not attributable to the prisoner is subject to
judicial review, especially when the State Cabinet has taken a
decision to release the prisoner and made recommendations to the
Governor to this effect – No provision under the Constitution pointed
out nor any source of the Governor’s power to refer a
recommendation made by the State Cabinet to the President of India
showed – In the instant case, the Governor ought not to have sent
the recommendation made by the State Cabinet to the President of
India – Such action is contrary to the constitutional scheme –
Recommendation made by the State Cabinet remained pending
before the Governor for almost two and a half years without a
decision being taken – Only when this Court started enquiring about
the reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission of
the appellant’s sentence to the President of India – Furthermore,
having regard to the appellant’s incarceration for 32 years, no
complaint relating to his conduct in jail, his chronic ailments from
his medical records, his educational qualifications acquired during
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incarceration and the pendency of his petition u/Art. 161 for two
and a half years after the recommendation of the State Cabinet, it is
not fit to remand the matter for the Governor’s consideration – In
exercise of power u/Art. 142, the appellant is deemed to have served
the sentence – Appellant is set at liberty forthwith – Penal Code,
1860 – Arms Act, 1951 – Explosive Substances Act, 1908 – Passport
Act,1967 – Foreigners Act,1946 – Wireless Telegraphy Act,1933 –
Terrorist and Disruptive Activities (Prevention) Act, 1987.
Disposing of the appeals, the Court
HELD: 1.1 The advice of the State Cabinet is binding on
the Governor in matters relating to commutation / remission of
sentences under Article 161. No provision under the Constitution
has been pointed out nor any satisfactory response tendered as
to the source of the Governor’s power to refer a recommendation
made by the State Cabinet to the President of India. In the instant
case, the Governor ought not to have sent the recommendation
made by the State Cabinet to the President of India. Such action
is contrary to the constitutional scheme elaborated above. It is
relevant to point out that the recommendation made by the State
Cabinet was on 09.09.2018, which remained pending before the
Governor for almost two and a half years without a decision being
taken. It was only when this Court started enquiring about the
reason for the decision being delayed, the Governor forwarded
the recommendation made by the State Government for remission
of the Appellant’s sentence to the President of India. [Para
19][1059-E-G]
1.2 This Court is conscious of the immunity of the Governor
under the Constitution with respect to the exercise and
performance of the powers and duties of his office or for any act
done or purported to be done by him in the exercise and
performance of such powers and duties. This Court has the power
of judicial review of orders of the Governor under Article 161,
which can be impugned on certain grounds. Non-exercise of the
power under Article 161 is not immune from judicial review. Given
petitions under Article 161 pertain to the liberty of individuals,
inexplicable delay not on account of the prisoners is inexcusable
as it

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