The Telegraph
Friday , March 7 , 2014
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TN defence on Rajiv killers

New Delhi, March 6: Tamil Nadu today told the Supreme Court the power to release the seven convicted of assassinating Rajiv Gandhi on remission lay with the state government alone as they had been sentenced in the state, though the CBI had investigated the case.

The state interpreted the expression “appropriate government” in Section 432 of the Criminal Procedure Code to mean the state and not the central government as the authority for deciding on the release of Murugan, Santhan, A.G. Perarivalan, Nalini, Robert Payas, Jayakumar and Ravichandran.

All seven are in jail since 1991, the year the former Prime Minister was killed while campaigning in Tamil Nadu.

Chief Justice P. Sathasivam and Justices Ranjan Gogoi and N.V. Ramana, who briefly perused the affidavit, posted the matter for further hearing to March 26. The Centre was asked to file its rejoinder, if any, by then.

In its affidavit, the Jayalalithaa government said the expression “appropriate government” has been defined in sub-section (7) of Section 432 to mean the central 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 other cases, the affidavit said, it means the “government of the state within which the offender is sentenced”.

“In the present case, since the remission has been granted for offences falling under (the) Indian Penal Code, the executive power vests only with the state government and consequently the appropriate government would be the state. In the above background, it is respectfully submitted that the contention raised by (the) Union of India is without any substance,” the state contended.

The state also said there was no need for the government to even file a formal application before the magistrate concerned for seeking the release of a prisoner. Such a need would arise only if the prisoner had sought the remission, it said.

“In such cases the appropriate government may send the application to the presiding judge of the court which has passed the orders of conviction….” In this case, it was the decision of the state government to release the prisoner, Tamil Nadu said. Hence sub-section 2 of CrPC Section 432, which mandates an application before the magistrate, would not apply.

The apex court had on February 20 stayed the release of the convicts.