Case No.  W.P (Crl) 48/2014
 Date of Judgment  02 DEC, 2015
 Bench  H.L. DATTU, CJI. FAKKIR MOHAMED IBRAHIM KALIFULLA,PINAKI   CHANDRA GHOSE,ABHAY MANOHAR SAPRE,AMITAVA ROY, JJJJ.
 Judgment By  FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
 Full Judgment  Click Here

Which Government would be the Appropriate Government as defined under Section 432(7)?

For the purpose of ascertaining which Government would be the Appropriate Government as defined under Section 432(7) Cr.P.C, what is to be seen is the sentence imposed by the criminal court under the Code of Criminal Procedure or any other law which restricts the liberty of any person or imposes any liability upon him or his property. If such sentence imposed is under any of the Sections of the Penal Code, for which the Executive Power of the Central Government is specifically provided for under a Parliament enactment or prescribed in the Constitution itself then the ‘Appropriate Government’ would be the Central Government.

To understand this position more explicitly, we can make reference to Article 72(1)(a) of the Constitution which while specifying the power of the Executive head of the country, namely, the President it is specifically provided that the power to grant pardons, etc. or grant of remissions etc. or commutation of sentence of any person convicted of any offence in all cases where the punishment or sentence is by a Court Martial, then it is clear to the effect that under the Constitution itself the Executive Power is specifically conferred on the Centre.

While referring to various Constitutional provisions, the Supreme Court also noted such express Executive Power conferred on the Centre in respect of matters with reference to which the State is also empowered to make laws. If under the provisions of the Code the sentence is imposed, within the territorial jurisdiction of the State concerned, then the ‘Appropriate Government’ would be the State Government.

Therefore, to ascertain who will be Appropriate Government whether the Centre or the State, the first test should be under what provision of the Code of Criminal Procedure the criminal Court passed the order of sentence. If the order of sentence is passed under any other law which restricts the liberty of a person, then which is that law under which the sentence was passed to be ascertained. If the order of sentence imposed any liability upon any person or his property, then again it is to be verified under which provision of the Code of Criminal Procedure or any other law under which it was passed will have to be ascertained.

In the ascertainment of the above questions, if it transpires that the implication to the proviso to Article 73(1)(a) gets attracted, namely, specific conferment of Executive Power with the Centre, then the Central Government will get power to act and consequently, the case will be covered by Section 432(7) (a) of the Code and as a sequel to it, Central Government will be the ‘Appropriate Government’ to pass orders under Sections 432 and 433 of the Code of Criminal Procedure.

Who would be the ‘Appropriate Government’ for grant of remission as was provided under Section 401 of the Code of Criminal Procedure which is the corresponding Section for 432 of Code of Criminal Procedure??

Under any of the provisions of the Criminal Procedure Code or under any Special enactment enacted by the Central Government by virtue of its enabling power to bring forth such enactment even though the State Government is also empowered to make any law on that subject, having regard to the proviso to Article 73(1)(a), if the conviction is for any of the offences against such provision contained in the Code of Criminal Procedure or under such special enactments of the Centre if the Executive Power is specified in the enactment with the Central Government then the Appropriate Government would be the Central Government. Under Section 432(7) (b) barring cases falling under 432(7)(a) in all other cases, where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, then alone the Appropriate Government would be the state.

Question of Primacy: Executive power of the Union v. Executive power of the State

>If the sentence ordered by the Criminal Court is found under any law relating to which the Executive Power of the Union extends—

The first test should be whether the offence for which the sentence was imposed was under a law with respect to which the Executive Power of the Union extends. For instance, if the sentence was imposed under TADA Act, as the said law pertains to the Union Government, the Executive Power of the Union alone will apply to the exclusion of the State Executive Power, in which case, there will be no question of considering the application of the Executive Power of the State.

>cases which are governed by the proviso to Article 73(1) (a) of the Constitution— \

In such cases, the Union Government will get exclusive jurisdiction to pass orders under Sections 432 and 433 Code of Criminal Procedure.

>Where the law is enacted by the Union in exercise of its power under articles 248, 249, 250, 251, and 252 of the Constitution—

Though the legislative power of the States would remain, yet, the combined effect of these Articles read along with Article 73(1) (a) of the Constitution will give primacy to the Union Government in the event of any laws passed by the Centre prescribes the Executive Power to vest with it to the exclusion of the executive Power of the State then such power will remain with the Centre i.e, the co-extensive power of the State to enact any law would be present, but having regard to the Constitutional prescription under Articles 248 to 252 of the Constitution by which if specific Executive Power is conferred then the Union Government will get primacy to the exclusion of State.

>Where both the Union and the State have authority to bring law-

The law made by the Parliament may invest the Executive Power with the Centre while the State may also enjoy similar such Executive Power by virtue of a law which State Legislature was also competent to make.

The answer to the question should be to the effect that where the case falls under the first test noted herein, it will be governed by Section 432(7)(a) of the Code of Criminal Procedure in which event, the power will be exclusive to the Union.

Cases falling under the second situation like the one covered by Articles 248 to 252 of the Constitution, wherein, the competence to legislate laws was with the State, and thereby if the Executive Power of the State will be available, having regard to the mandate of these Articles which empowers the Union also to make laws and thereby if the Executive Power of the Union also gets extended, though the power is co-extensive, it must be held that having regard to the special features set out in the Constitution in these situations, the Union will get the primacy to the exclusion of the State.


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