Case BriefsSupreme Court

Supreme Court: In a big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, the 3-judge bench of L. Nageswara Rao*, BR Gavai and AS Bopanna, JJ has directed his release after being incarcerated for 32 years.

Release of Perarivalan

Perarivalan was convicted for offences under IPC, the Arms Act, 1951, the Explosive Substances Act, 1908, the Passport Act, 1967, the Foreigners Act, 1946, the Wireless Telegraphy Act, 1933 and the Terrorist and Disruptive Activities (Prevention) Act, 1987. He was sentenced to death by the designated TADA Court. The Supreme Court, however, commuted the death sentence to imprisonment for life on 18.02.2014.

Perarivalan’s petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continued to remain pending for over a year since the reference by the Governor. This was the main reason that weighed in with the Supreme Court while ordering his release.

Apart from this, the Court also noticed that Perarivalan was 19 years of age at the time of his arrest and has been incarcerated for 32 years, out of which he has spent 16 years on the death row and 29 years in solitary confinement. There has been no complaint relating to his conduct in jail. On the two occasions that Perarivalan had been released on parole, there had been no complaint regarding his conduct or breach of any condition of release. Medical records, filed on behalf of Perarivalan, show that he is suffering from chronic ailments. Apart from his good behaviour in jail, Perarivalan has also educated himself and successfully completed his +2 exams, an undergraduate degree, a postgraduate degree, a diploma and eight certification courses.

The Court, hence, held,

“Given that his petition under Article 161 remained pending for two and a half years following the recommendation of the State Cabinet for remission of his sentence and continues to remain pending for over a year since the reference by the Governor, we do not consider it appropriate to remand the matter for the Governor’s consideration. In the absence of any other disqualification and in the exceptional facts and circumstances of this case, in exercise of our power under Article 142 of the Constitution, we direct that the appellant is deemed to have served the sentence in connection with Crime No. 329 of 1991. The appellant, who is on bail, is set at liberty forthwith.”

Governor’s power to refer a recommendation made by the State Cabinet to the President of India

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 to us 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.

In the case at hand, 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 the Supreme Court started enquiring about the reason for the decision being delayed, the Governor forwarded the recommendation made by the State Government for remission of Perarivalan’s sentence to the President of India.

Hence, being fully 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, the Court observed that non-exercise of the power under Article 161 is not immune from judicial review.

[AG Perarivalan v. State, 2022 SCC OnLine SC 635, decided on 18.05.2022]


*Judgment by: Justice L. Nageswara Rao


For Perarivalan: Senior Advocate Gopal Sankaranarayanan

Case BriefsSupreme Court

Supreme Court: While addressing the plea of a murder convict seeking remission on the ground of blindness, the Division Bench comprising of Sanjay Kisan Kaul and M. M. Sundresh, JJ., directed him to under go medical assessment under Rule 363 of the M.P. Prison Rules and thereafter approach the Governor under Article 161 of the Constitution.

The appellant herein was convicted along with three others in connection with an incident which caused death of two brothers of the complainant and injuries to his father. At the inception itself, by an Order dated 29-01-2010, in view of a medical certificate produced by the appellant that he is visually impaired and is suffering from 100% blindness, the appellant was granted exemption from surrendering and finally on 18-10-2011 the appellant was granted bail.

Notably, the appellant had already undergone sentence of 9 years 10 months and 6 days including remission (actual period 8 years 1 month and 23 days). While pleading remission of sentence to the sentence already undergone, the appellant submitted that instead of canvassing the appeal on merits, an alternative course might be adopted; i.e. Rule 363 of the M.P. Prison Rules, 1968 which provides that where the Medical Officer of the prison is of the opinion that the convicted prisoner has gone completely and incurably blind not as a result of any voluntary act of the prisoner or that a convict prisoner has become completely decrepit or has become disabled on account of incurable physical informity which incapacitated him from the commission of further crime on his release and as such where the release of such a prisoner is not likely to be attended with mischief or danger, he shall report the case of the prisoner to the Superintendent.

The appellant contended that since he is visually impaired to the extent of suffering permanently from 100% blindness and that was not a result of any voluntary act of the prisoner, the aforementioned provision would come to his aid for consideration of his case for release from serving out the remaining sentence.

Considering the case of State of Haryana v. Raj Kumar, (2021) 9 SCC 292, wherein it was held that the benefit of remission can only be granted by the State Government if a prisoner has undergone a minimum period of imprisonment of 14 years without remission as well as the provisions of 432, 433 & 433A of the CrPC read with Article 161 of the Constitution, the Bench agreed that the State can recommend and the power would have to be exercised by the Governor under Article 161 of the Constitution albeit on the aid and advise of the State.

Accordingly, the Bench directed that the appellant, though on bail, to report to the Medical Officer of the prison and stay in observation for few days if required to enable the authorities concerned to comply with procedure enshrined in Rule 363 of the M.P. Prison Rules, 1968 and assess disability of the appellant. Thereafter, the case of the appellant was directed to be laid before the Government.

Hence, the Bench observed that it is only after compliance of Rule 363 that the case of the appellant could be referred to the Governor for exercise of power under Article 161 of the Constitution. Therefore, the Bench directed that the appellant to invoke Rule 363 of the said rules and make an application with all the relevant material within three weeks and simultaneously apply to the Governor under Article 161 of the Constitution.

Since the Court had not addressed the appeal on merit, the matter was directed to listed for directions on 19-07-2022.

[Banshi v. State of M.P., Criminal Appeal No.1944 of 2011, decided on 02-03-2022]


Kamini Sharma, Editorial Assistant has put this report together


Case BriefsSupreme Court

Supreme Court: Dealing with an issue relating to special remission being granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India, The 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran referred the question to a larger bench and framed the following issue:

“Whether in exercise of power conferred under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be granted by the Executive without placing facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code.”

In the matter before the Court, the appellant was convicted under Section 302 read with Section 34 of the Penal Code and sentenced to suffer life imprisonment and to other punishments including fine and default sentence under certain other offences. The Supreme Court had rejected his bail application in 2017 and when t\the Court took up the second bail application for consideration, it was reported that after having completed 8 years of actual sentence and the Appellant being aged above 75 years, in accordance with the existing policy of the State Government, he was prematurely released in 2019.

The Court, therefore, called upon the State to file an affidavit indicating whether the policy permitted premature release even before completion of actual sentence of 14 years in connection with an offence punishable under Section 302 IPC. State submitted before the Court that special remission was granted to certain categories of prisoners by the Governor of Haryana on the occasion of the Independence Day i.e., 15th August, 2019, in exercise of powers conferred by Article 161 of the Constitution of India. The individual facts and circumstances of the case were not even placed before the Governor.

While hearing the matter, the Court noticed that the consistent line of cases decided by this Court has laid down that the principles of Section 433-A of the Code do not and cannot apply to the exercise of constitutional power either under Article 72 or under Article 161 of the Constitution.

“It has always been accepted that no limitation can be read into the exercise of such constitutional power that the sovereign power would not be bound by restrictions emanating from Section 433-A of the Code.”

In Maru Ram v. Union of India, (1981) 1 SCC 107 , the Constitution Bench of this Court considered the validity of Section 433-A of the Code. The majority Judgment cautioned that mere length of imprisonment may not by itself regenerate goodness in a convict and stated that the rules of remission may be effective guidelines of a recommendatory nature.

“The decisions of this Court rendered since Maru Ram and some of them being decisions of the Benches of three Judges of this Court, do show that the relevant material must be placed before the Governor in order to enable him to exercise the power under Article 161 of the Constitution and failure on that count could result in quashing of the concerned orders of remission issued under Article 161 of the Constitution.”

The Court further noticed that the modalities adopted in the present matter, unmistakably, show that the individual facts and circumstances of the case were not even placed before the Governor. The basic aspects viz., the manner in which the crime was committed, the impact of the crime on the Society and the seriousness of the crime got completely suppressed and relegated in the background under the norms laid down in the policy and it was then left to the Executive to see whether any individual case came within the parameters laid down by the policy. The basic facts and circumstances of the case were not even looked into.

Hence, considering that the decision in Maru Ram was rendered by the Constitution Bench, the Court thought it proper to refer the matter to a larger bench.

[Pyare Lal v. State of Haryana, 2020 SCC OnLine SC 583 , order dated 17.07.2020]