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30. In the light of the aforesaid discussion our answers to questions 3, 4 and 5 as stated in paragraph 52.3, 52.4 and 52.5 are as under:

Our answer to Question 52.3 in Para 52.3 is:-

Question 52.3. Whether Section 432(7) of the Code clearly gives primacy to the executive power of the Union and excludes the executive power of the State where the power of the Union is co-extensive?

Answer: The executive powers of the Union and the State normally operate in different fields. The fields are well demarcated. Keeping in view our discussion in relation to Articles 73 and 162 of the Constitution, Section 55A of the IPC and Section 432 (7) of Cr.P.C. it is only in respect of sentence of death, even when the offence in question is referable to the executive power of the State, that both the Central and State Governments have concurrent power under Section 434 of Cr.P.C. If a convict is sentenced under more than one offences, one or some relating to the executive power of the State Government and the other relating to the Executive Power of the Union, Section 435(2) provides a clear answer. Except the matters referred herein above, Section 432 (7) of Cr. P.C. does not give primacy to the executive power of the Union.

Our Answer to Question posed in Para 52.4. is:-

Question 52.4. Whether the Union or the State has primacy over the subject- matter enlisted in List III of the 7th Schedule to the Constitution of India for exercise of power of remission?

Answer: In respect of matters in list III of the 7th Schedule to the Constitution, ordinarily the executive power of the State alone must extend. To this general principle there are two exceptions as stated in Proviso to Articles 73(1) of the Constitution. In the absence of any express provision in the Constitution itself or in any law made by Parliament, it is the executive power of the State which alone must extend.

Our Answer to Question posed in Para 52.5. is:-

Question 52.5. Whether there can be two appropriate Governments in a given case under Section 432(7) of the Code?

Answer: There can possibly be two appropriate Governments in a situation contemplated under Section 435 (2) of Cr.P.C.. Additionally, in respect of cases of death sentence, even when the offence is one to which the executive power of the State extends, Central Government can also be appropriate Government as stated in Section 434 of Cr.P.C.. Except these two cases as dealt with in Section 434 and 435 (2) of Cr.P.C. there cannot be two appropriate Governments.

Our Answer to Question post in Para 52.7 is:-

Question 52.7. Whether the term “consultation” stipulated in Section 435(1) of the Code implies “concurrence”?

Answer: In the premises as aforesaid, in our view the expression “consultation” ought to be read as concurrence and primacy must be accorded to the opinion of the Central Government in matters covered under clauses

(a), (b) and (c) of Section 435(1) of the Cr.P.C.

Re: Question No.2 as stated in para 52.2 of the Referral Order 52.2. Whether the “appropriate Government” is permitted to exercise the power of remission under Sections 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32 as in this case?