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Law gives last word to Delhi

New Delhi, Feb. 19: Any decision to free the killers of Rajiv Gandhi will be political but the law gives the final say in this case to the Centre which will be swallowing its own words if it consents to Jayalalithaa’s plan.

In the Supreme Court, attorney-general G.E. Vahanvati and additional solicitor-general Sidharth Luthra had repeatedly said Rajiv’s killers must face the noose as “they showed no remorse and were enjoying their lives in the jails”.

“They are singing, dancing and entertaining other prisoners. Delay in disposing of the mercy petitions cannot be a ground as they had waged a war against the country,” the attorney-general had told the bench headed by Chief Justice P. Sathasivam.

The bench, while commuting the death sentences on the ground of “inordinate delay”, said the convicts shall remain in jail throughout their life, subject to any remission granted by the government.

The power to grant remission in the particular case actually vests with the Union government. The state has, at best, only the power to recommend remission.

Rajiv’s assassination was investigated by the CBI which is under the control of the Centre and hence any decision on granting remission to the convicts needs the Union government’s consent.

Under normal circumstances, Sections 432 and 433 of the Criminal Procedure Code (CrPC) empower the state government to grant remission.

But, in this case, Section 435 of the CrpC comes into play as the CBI, which functions under the Delhi Special Police Establishment Act (DSPE Act), was the prosecuting agency.

Section 432 and 433 of the CrPC gives absolute powers to the state government or a Union territory to grant remission to any prisoner convicted by a court of law.

But in cases investigated and prosecuted by the CBI or the Enforcement Directorate or any other central agency, the power to grant remission is vested in the Union government.

Sub Section 2 of Section 435 is categorical when it asserts that no remission granted by the state government will have an effect, unless an order of suspension or remission has also been passed by the central government.

In other words, if the Tamil Nadu government passes an order for suspension/remission of the sentence, a similar order needs to be passed by the Centre for it to become effective.

The operative part, Section 435(2), of the CrPC says: “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.”

WHAT GIVES JAYA HER POWER

Section 432, Criminal Procedure Code (CrPC)
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.

A rider

(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.

(The TADA court that pronounced the original sentence no longer exists. So, the state government may have to approach another magistrate, according to some lawyers in Delhi. But three lawyers in Tamil Nadu said magisterial approval was not mandatory since the state government on its own had taken the decision and no petition from the convicts was involved.)

WHAT GIVES CENTRE ITS POWER

Section 435CrPC
(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 Govern ment, 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.