The Jayalalithaa Government’s political masterstroke to set free Rajiv Gandhi’s killers may not pass muster of the law on remission.
According to the law on this subject under Section 432 of Criminal Procedure Code (CrPC), in a case investigated by CBI, only the Central Government can exercise power of remission. Though the State Government is given power to remit, Section 435 clearly specifies that in the event State initiates remission in a case investigated by CBI, such move will require prior consultation of the Centre.
A senior public prosecutor of the Centre, on condition of anonymity said, “The State will have no jurisdiction to initiate action under Section 432 where the case is investigated by CBI, constituted under a special Central Act.”
Rajiv’s killers are charged under offences like Explosive Substances Act, which falls under the Central domain. Under these circumstances, even if the State grants remission against offences of IPC, the order will not have full effect so long as Centre does not pass a separate order of remission against the other offences.
legal experts feel that the TN Chief Minister’s move to seek the Centre’s opinion under Section 435 CrPC is based on a wrong understanding of the law. According to sources in the law Ministry, Section 435 prescribes mandatory consultation with the Centre prior to any action taken by the State under Section 432, if the offence is either investigated by CBI, or involves misappropriation or destruction of the Central Government property, or has been committed by a person in the service of the Central Government.
“This case is squarely covered by the first category relating to offences investigated by CBI,” a legal expert said. He pointed out that the law Commission’s 41st Report discussed the need of such consultation. The report said, “There are a few types of cases in which the Central Government is vitally concerned though the offence is against a law relation to a matter to which the executive power of the State Government extends.”
Introducing prior consultation of the Centre in such cases, the Commission said, “If a State Government chooses to take a lax view of these offences and to exercise its powers of remission and commutation unduly liberally, it is bound to create difficulties of administration for the Central Government.”
Also, the Supreme Court in a decision on November 20, 2012 (Sangeet v State of Haryana) had added another vital precondition to the exercise of remission by State Governments. “Before actually exercising the power of remission under Section 432 of the CrPC, the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner,” the two-judge bench held.
To clear these hurdles would be a big challenge for Jayalalithaa Government, if she decides to take her battle to Court against Centre’s possible refusal to back her demand.