SCHOOL OF EXCELLENCE IN LAW

THE TAMILNADU DR.AMBEDKAR LAW UNIVERSITY

SHACKLES OF CrPC ON THE CONVICTS OF

RAJIVGANDHI ASSASSINATION
By

KAMAL. A

Student, LL.B (HONS.) – III – A, SOEL, TNDALU, Taramani

To

Dr.Vijayalakshmi,

Asst. Professor, SOEL, TNDALU, Taramani

Introduction:
The Former Prime Minister of India Mr. Rajiv Gandhi was assassinated
in an open ground by a suicide bomber named Thanu on 21-05-1991 at
Sriperumbudur, Tamilnadu. The assassination shook the entire nation and
the case was handed over to Central Bureau of Investigation (CBI), a premier
investigation agency of India, for investigation. The CBI after its investigation
filed its Final Report exactly after a year on 20-05-1992 naming 41 persons
as accused in the case. Out of these 41 accused, 12 accused were dead even
before the trial began. Out of remaining 29, three were declared as
“absconding” and the trial began for the rest of 26 accused. The trial court
found all the 26 accused as guilty of various offences and convicted and
sentenced all of them to death. The verdict of the trial court was taken before
the Supreme Court of India1 and the Supreme Court set aside the conviction
of all convicts except A1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-9 (Royert
Payas), A-10 (Jayakumar), A-16 (Ravichandran) and A-18 (Arivu @
Perarivalan) for the offences under Section 302 read with Section 120B of IPC.
To be more specific, the Supreme Court of India upheld the death sentence of

1 Superintendent of Police, CBI/SIT vs. Nalini and Ors. (11.05.1999 - SC).

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only four of them namely A1 (Nalini), A-2 (Santhan), A-3 (Murugan), A-18
(Arivu @ Perarivalan) and commuted death sentence of three others namely
A-9 (Royert Payas), A-10 (Jayakumar), A-16 (Ravichandran) to life
imprisonment and the remaining 19 convicts were set at liberty since their
stay at prison during trial exceeded the maximum punishment for the
offences in which they were convicted by Supreme Court. Later in the year
2000, the Governor of Tamilnadu commuted the death sentence of A1 (Nalini)
to life imprisonment. In 2014, the Supreme Court of India commuted the
death sentence of A-2 (Santhan), A-3 (Murugan), A-18 (Arivu @ Perarivalan)
to life imprisonment saying that the central government cannot unduly delay
examining their mercy petitions. This article restricts its scope to the legal
episodes which happened after the 2014 order of Supreme Court which
commuted the death sentence of three convicts to Life Imprisonment.

Dictum on Delay:

The three death sentenced convicts approached the Hon’ble Supreme

Court of India to commute their death sentence to life imprisonment using
the dicta laid by Hon’ble Supreme Court of India in “Shatrughan Chauhan and
Ors. –Vs- Union of India (UOI) and Ors”2. The Hon’ble Supreme Court held in
this case that the undue and unexplained delay in deciding mercy petitions'
was a legitimate ground for the death convicts to approach the Apex Court
seeking commutation of death penalty to life imprisonment. Following this
dicta, the Hon’ble Supreme Court while deciding the challenge of three death
sentenced convicts in “V. Sriharan –Vs- Union of India (UOI) and Ors”3
commuted the death penalty to life imprisonment. Relevant important
observations from the judgment are reproduced below.

“We are confident that the mercy petitions filed under Article
72/161 can be disposed of at a much faster pace than what is adopted now, if
the due procedure prescribed by law is followed in verbatim. The fact that no
time limit is prescribed to the President/Governor for disposal of the mercy

2 (21.01.2014 - SC)
3 (18.02.2014 - SC)

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petition should compel the government to work in a more systematized manner
to repose the confidence of the people in the institution of democracy.”

“In the light of the above discussion and observations, in the cases of V.
Sriharan @ Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @
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.” [Emphasis Supplied].

This judgment was the reason behind today’s incessant legal episode in
which the Central Government, State Government and the Governor are in
civic limelight.

Hastier Fallacy:

After the aforesaid Judgment on 18/02/2014, the Government of

Tamilnadu through its Chief Secretary sent a letter on the very next day
i.e.19/02/2014 to Secretary, Government of India wherein the State of
Tamilnadu proposed to remit the sentence of life imprisonment and to release
all the seven life convicts of Rajiv Gandhi Assassination. The Government of
Tamilnadu said in its letter that it is exercising the power under section 432
of Code of Criminal Procedure, 1973 and the letter was issued in the nature
of “Consultation” and was not in the form of expecting “concurrence” from
Government of India. In simpler terms, the Government of Tamilnadu through
the said letter merely “informed” the Government of India of its decision to
release the seven convicts and did not expect any form of “approval” from
Government of India. The letter sent by Government of Tamilnadu roused up
the Government of India and a Writ petition4 titled “Union of India –Vs- V.

4
W.P. (CRL.) NO. 48 OF 2014 – Supreme Court of India

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Sriharan @ Murugan & Ors” was filed by the Government of India on
24/02/2014 itself before Supreme Court of India.

Crucial Caveat in CrPC:

The Government of Tamilnadu’s letter dated 19/02/2014 had brought

the sections such as 2(y), 4, 432, 433, 434, 433A and 435 of CrPC, 1973 and
the Supreme Court inter alia framed below issues5 to interpret the above
provisions of CrPC.

1. Whether the Appropriate Government is permitted to grant remission

under Sections 432/433 Code of Criminal Procedure after the parallel
power was exercised under Article 72 by the President and under
Article 161 by the Governor of the State or by the Supreme Court under
its Constitutional power(s) under Article 32?

2. Whether Union or the State has primacy for the exercise of power
under Section 432(7) over the subject matter enlisted in List III of the
Seventh Schedule for grant of remission?

3. Whether there can be two Appropriate Governments under Section

432(7) of the Code?

4. Whether the power under Section 432(1) can be exercised suo-motu, if

yes, whether the procedure prescribed under Section 432(2) is
mandatory or not?

5. Whether the expression “‘Consultation’” stipulated in Section 435(1) of

the Code implies ‘‘Concurrence’’?

The above issues were elaborately dealt by the Hon’ble Supreme Court and
the Judgment was delivered on 02/12/2015 by five Judge Constitutional
bench and the holdings of aforesaid each issues are recorded below.

5 Para#8 of Judgment dated 02/12/2015 in W.P. (CRL.) NO. 48 OF 2014

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Issue#1:

To the first issue, Hon’ble Supreme Court of India held that there is
every scope and ambit for the Appropriate Government to consider and grant
remission under Sections 432 and 433 of the Code of Criminal Procedure even
if such consideration was earlier made and exercised under Article 72 by the
President and under Article 161 by the Governor6.

Issue#2 & 3:

To the second and third issue, the Hon’ble Supreme Court of India held that

 If a Criminal Court imposes the sentence and if such sentence

pertains to any Section of the Penal Code or under any other law
for which the Executive power of the center extends then in those
cases the Central Government would be the ‘Appropriate
Government’.

 If the sentence is imposed by the Criminal Court under any law

which falls within the proviso to Article 73(1)(a) of the
Constitution and thereby the Executive Power of the Centre is
conferred and gets attracted, then again, the Appropriate
Government would be the Centre Government.

 If the sentence order is passed by the Court within the territorial

jurisdiction of the concerned State, the concerned State
Government would be the Appropriate Government for exercising
its power of remission, suspension as well as commutation as
provided under Sections 432 and 433 of the Code of Criminal
Procedure.

 When the power of center and state is co-extensive, the Court

held that having regard to the special features set out in the

6
Para#111 of Judgment dated 02/12/2015 in W.P. (CRL.) NO. 48 OF 2014

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 Constitution in these situations, the Union will get the primacy
to the exclusion of the State.

It must be noted here that the Hon’ble Supreme Court of India refrained
from deciding the appropriate government for the present case, however it laid
down the above tests to find out who will be the ‘Appropriate Government’ for
exercising the power under Sections 432 and 433 of CrPC and left to the
parties concerned, namely, the Center or the State to apply the test and
ascertain.

Issue#4:

To the fourth issue, the Hon’ble Supreme Court held that the suo-motu
power of remission cannot be exercised under Section 432(1), that it can only
be initiated based on an application of the persons convicted as provided
under Section 432(2) and that ultimate order of suspension or remission
should be guided by the opinion to be rendered by the Presiding Officer of the
concerned Court.

Issue#5:

To the fifth issue, the Hon’ble Supreme Court held as below and the
holdings are reproduced below as such.

“Even though the expression used in sub-section (1) is ‘Consultation’, in

effect, the said requirement is to be expressed far more strictly and with utmost
care and caution, as each one of the sub-clauses (a) to (c) contained in the said
sub-section, if not properly applied in its context may result in serious violation
of Constitutional mandate as has been set out in Article 355 of the Constitution.
It is therefore imperative that it is always safe and appropriate to hold that in
those situations covered by sub-clauses (a) to (c) of Section 435(1) falling
within the jurisdiction of Central Government, it will assume primacy and
consequently the process of ‘‘Consultation’’ should in reality be held as the
requirement of ‘‘Concurrence’’7.

7
Para#161 of Judgment dated 02/12/2015 in W.P. (CRL.) NO. 48 OF 2014

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Aftermath of Judgment:

Considering the present issue with the tests laid down by the Hon’ble
Supreme Court of India in Issue#5, the decision of the Government of
Tamilnadu to release the seven convicts by letter dated 19/02/2014 was
found to be bad in law. Hence the Government of Tamilnadu made a fresh
proposal8 to the Government of India proposing remission of the life convicts
under scheme of Section 435 CrPC. In pursuant to the above proposal, the
Government of India on 18/04/2018 in pursuance of Section 435 of CrPC
made clear that it did not ‘concur’ with the proposal of Government of
Tamilnadu.

As the path under CrPC had met its end, the seven convicts had again
approached the Governor of Tamilnadu through a mercy petition and it is now
pending consideration with the Governor of Tamilnadu.

Conclusion:

The consequence of non-concurrence dated 18/04/2018 by

Government of India is that it had effectively barred the Government of
Tamilnadu from taking any further decision on release of seven convicts of
Rajiv Gandhi Assassination. The hastier proposal made by the Government of
Tamilnadu on 19/02/2014 had opened a Pandora’s Box which almost took
four years to solve. However, it is equally pertinent to note here that the
findings of Supreme Court of India in the case dealt in this article have far
reaching impression on the interpretation and implementation of the
provisions of CrPC for criminal justice system.

8
02.03.2016

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 BIBLIOGRAPHY

PRIMARY SOURCES:

1. Constitution of India, 1950

2. Code of Criminal Procedure, 1973
3. Indian Penal Code, 1860
4. Terrorist and Disruptive Activities (Prevention) Act, 1987

SECONDARY SOURCES:

1. Union of India –Vs- V. Sriharan @ Murugan & Ors.

2. A.G.Perarivalan –Vs- Ministry of Home Affairs, GOI.
3. Govt. of Tamilnadu’s letter dated 19/02/2014
4. Govt. of Tamilnadu’s letter dated 02/03/2016
5. Govt. of India’s reply letter dated 18/04/2018

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