Full Judgment Text
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PETITIONER:
HARBANS SINGH
Vs.
RESPONDENT:
STATE OF U.P. & OTHERS
DATE OF JUDGMENT12/02/1982
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION:
1982 AIR 849 1982 SCR (3) 235
1982 SCC (2) 101 1982 SCALE (1)95
CITATOR INFO :
R 1991 SC2176 (51)
R 1992 SC 248 (34)
ACT:
Penal Code-Death Sentence imposed on three accused for
the same offence-One accused executed-Sentence of death
commuted in case of another accused-Mercy petition rejected
by President in another-Court if could interfere.
HEADNOTE:
By a common judgment the petitioner and the two other
accused (JS and KS) were convicted and sentenced to death
for the murder of four persons. The High Court affirmed
their conviction and sentence.
The special leave petition filed by JS was dismissed
and he was executed. The sentence of death passed on KS was
commuted by this Court into imprisonment for life. The
petitioner’s (’HS’s) special leave petition and later his
review petition were dismissed by this Court and his
petition to the President of India for commutation of death
sentence was dismissed, whereupon he filed the present
petition.
(Per Chandrachud, CJ and D.A. Desai, J. A.N. Sen, J.
concurring.)
^
HELD: The petitioner and the other two co-accused were
sentenced to death by a common judgment. No distinction
could at all be made between the part played by KS and the
petitioner. Since the death sentence in his case was
commuted by this Court it would be unjust to confirm the
death sentence imposed upon the petitioner. [238 B-C]
In view of the background of the case it would not be
wrong if this Court had commuted the sentence of death
imposed upon the petitioner but in the interest of comity
between the powers of this Court and the powers of the
President it would be more in the fitness of things if this
Court were to recommend that the President be so good as to
exercise his power under Article 72 of the Constitution to
commute the death sentence into imprisonment for life
because the President had already considered the mercy
petition of the petitioner once and had rejected it. [238 E-
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G]
[The Court directed that prior to the actual
execution of any death sentence the Jail Superintendent
should ascertain personally whether the sentence of
death imposed upon any of the co-accused of the
prisoner
236
who was due to be hanged had been commuted. If it had
been commuted, the Superintendent should apprise the
superior authorities of the matter, who must take
prompt steps for bringing the matter to the notice of
the Court concerned.] [239 A-B]
(Per A.N. Sen, J. concurring)
It would be unjust to allow the death sentence imposed
on the petitioner executed. [242 G]
Considering that the responsibility, involvement and
complicity of the petitioner in the commission of the
offence is the same as that of the other co-accused, it
would be sheer travesty of justice if for the same offence
the petitioner had to pay the extreme penalty of death while
the death sentence imposed on the co-accused, for the very
same offence had been commuted to one of life imprisonment.
Had the petitioner mentioned either in the special leave
petition or review petition or mercy petition to the
President this all important and significant fact, death
sentence imposed on him would have been commuted.[242 C-F]
Apart from the very wide jurisdiction and powers
conferred on this Court under Arts. 32 and 136 of the
Constitution this Court retains and must retain, an inherent
power and jurisdiction for dealing with any extra-ordinary
situation in the larger interests of administration of
justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used for furthering
the ends of justice. Having regard to the facts and
circumstances of this and interfere case, this is a fit case
where this Court should entertain the present petition. [243
A-C]
Since in the instant case the petitioner’s mercy
petition had earlier been considered by the President
propriety and decorum require that the matter should be
referred back to the President. [243 D]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition (Criminal) No.
7453 of 1981.
(Under Article 32 of the Constitution of India)
A.P. Mohanty for the Petitioner.
R.K. Bhatt for the Respondent.
The following judgments of the Court were delivered
CHANDRACHUD C.J. By this writ petition the petitioner
Harbans Singh prays that the death sentence imposed upon him
should not be executed in view of the following
circumstances.
237
The petitioner and three other persons, Mohinder Singh,
Kashmira Singh and Jeeta Singh were involved in the murder
of Jindi Singh, Surjeet Singh, Bira Singh and Gurmeet Singh.
Mohinder Singh died in an "encounter" with the police. The
petitioner and the other two accused, Kashmira Singh and
Jeeta Singh, were committed to stand their trial for the
murder of the aforesaid four persons. By a judgment dated
May 1, 1975 the learned Additional Sessions Judge, Pilibhit,
convicted all of them for the murder of Jindi Singh, Surjeet
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Singh and Bira Singh and sentenced them to death. On October
20, 1975 the High Court of Allahabad affirmed the judgment
of the Trial Court in Criminal Appeal No. 1080 of 1975.
Jeeta Singh filed Special Leave Petition No. 343 of
1976 in this Court which was dismissed on April 15, 1976.
Kashmira Singh filed Special Leave Petition No. 104 of 1976
from jail and obtained leave on the question of sentence. By
an order dated April 10, 1977 his appeal (No. 172 of 1977)
was allowed by a Bench consisting of Bhagwati and Fazal Ali,
JJ. who commuted his sentence of death into imprisonment for
life. The petitioner, Harbans Singh, filed Special Leave
Petition No. 658 of 1978 from jail which was dismissed by
Sarkaria and Shinghal, JJ. on October 16, 1978. His Review
Petition (No. 140/79) was dismissed by Sarkaria and A.P.
Sen, JJ. on May 9, 1980. It appears that though the Registry
of this Court had mentioned in its Office Report that
Kashmira Singh’s death sentence was already commuted, that
fact was not brought to the notice of the Court specifically
when the petitioner’s Special Leave Petition and his Review
Petition were dismissed.
The petitioner had filed a petition to the President of
India for commutation of his sentence, which was dismissed
on August 22, 1981. Upon the dismissal of that petition, the
execution of the death sentence imposed upon the petitioner
was fixed for October 6, 1981, whereupon he filed this
petition in this Court.
The course which this case has taken makes a sad
reading. Three persons were sentenced to death by a common
judgment and, regretfully, each one has eventually met with
a different fate. One of those three persons, Jeeta Singh,
who did not file any Review Petition or Writ Petition in
this Court was executed on October 6, 1981. The other
person, Kashmira Singh, succeeded in having his death
sentence commuted into life imprisonment. The petitioner
238
was to be executed on the same day on which Jeeta Singh was
executed but, fortunately, he filed this Writ Petition on
which we passed an order staying the execution of his death
sentence.
As we have stated earlier, the petitioner and the two
other co-accused were sentenced to death by a common
judgment. We have seen the facts from which it is clear that
no distinction at all can be made between the part played by
Kashmira Singh on the one hand and the petitioner on the
other. Since Kashmira Singh’s death sentence was commuted by
this Court, it would be unjust to confirm the death sentence
imposed upon the petitioner. That will involve the Court as
well as the authorities concerned in the violation of
rudimentary norms governing the administration of justice.
It is unfortunate that Jeeta Singh could not get the
benefit of the commutation of Kashmira Singh’s sentence.
Were he to approach this Court like the petitioner, the
sentence imposed upon him would have been commuted into life
imprisonment because no distinction could have been made
between his case and that of Kashmira Singh whose sentence
was commuted prior to the execution of Jeeta Singh.
The question which then arises for consideration is as
to the proper course to be adopted in the circumstances of
the case. In view of the background of the case, to which we
have referred above, it would not be wrong if we were
ourselves to commute the sentence of death imposed upon the
petitioner to imprisonment for life. But in the interest of
comity between the powers of this Court and the powers of
the President of India, it will be more in the fitness of
things if we were to recommend that the President of India
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may be so good as to exercise his power under Article 72 of
the Constitution to commute the death sentence imposed upon
the petitioner into imprisonment for life. This is so
because the President of India has already considered the
mercy petition of the petitioner once and has rejected it.
We, therefore, recommend that for reasons aforesaid, which
could not have been before the President of India when he
rejected the mercy petition, he may commute the death
sentence imposed upon the petitioner.
The fate of Jeeta Singh has a posthumous moral to tell.
He cannot profit by the direction which we propose to give
because he is now beyond the processes of human tribunals.
But we direct
239
that prior to the actual execution of any death sentence,
the Jail Superintendent should ascertain personally whether
the sentence of death imposed upon any of the co-accused of
the prisoner who is due to be hanged, has been commuted. If
it has been commuted, the Superintendent should apprise the
superior authorities of the matter, who, in turn, must take
prompt steps for bringing the matter to the notice of the
Court concerned.
Order accordingly. The execution of the death sentence
is stayed until the decision of the President to whom a copy
of this judgment should be forwarded forthwith.
AMARENDRA NATH SEN, J. I have had the benefit of
reading the judgment to be delivered by the learned Chief
Justice. I agree with the order proposed by him. I, however,
wish to make some observations of my own.
The relevant facts of the case have been succinctly and
briefly stated by the learned Chief Justice in his judgment.
Three persons, namely, the petitioner, Kashmira Singh and
Jeeta Singh were convicted under S. 302 of the Indian Penal
Code and sentenced to death by the Additional Sessions
Judge, Pilibhit by his judgment dated 1st May, 1975. The
High Court of Allahabad affirmed the judgment of the Trial
Judge in Criminal Appeal No. 1080 of 1975 and confirmed the
death sentence of the said three accused by its judgment
dated 20th October, 1975. Jeeta Singh filed in this Court a
Special Leave Petition (No. 343 of 1976) which was dismissed
by this Court on 15th April, 1976. It appears that after the
dismissal of the Special Leave Petition of Jeeta Singh by
this Court, Jeeta Singh was executed on the 6th of October,
1981. Kashmira Singh filed a Special Leave Petition No. 104
of 1976 in this Court and leave was granted by this Court on
the question of sentence only. By an order passed by this
Court on the 10th April 1977 this Court allowed the appeal
of Kashmira Singh (172/1976) by leave of this Court and this
Court commuted his sentence of death to one of imprisonment
of life. The other accused Harbans Singh who has filed this
petition had also filed a special leave petition No.658 of
1978. The Special Leave Petition filed by Harbans Singh was
dismissed by this Court on 16th October 1978. It appears
that Harbans Singh had applied for review of the said order
of this Court and the review petition of Harbans Singh (140
of 1979) was also dismissed by this Court on 9th May, 1980.
Harbans Singh had thereafter filed a petition to the
President of India under Art. 72 of the Constitution. The
Petition of Harbans
240
Singh to the President of India was dismissed on the 22nd
August, 1981. After the dismissal of the Petition of Harbans
Singh to the President, the date for execution of the death
sentence imposed upon him was fixed and Harbans Singh, has
thereafter moved this Court and has filed this writ petition
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praying for commutation of his death sentence and in the
alternative praying for a direction to the authorities to
allow him the facilities to meet his near and dear ones
before the sentence of death imposed upon him is actually
executed.
The unfortunate position appears to be that in respect
of the very same offence committed, one of the accused
persons, namely, Jeeta Singh has already been hanged; the
death sentence imposed on another accused, namely, Kashmira
Singh, has been commuted to one of life imprisonment; and
Harbans Singh, the present petitioner, is now awaiting death
sentence to be executed.
When this Court dismissed the special leave petition of
Jeeta Singh by its order dated 15th April, 1976, the
decision of this Court in the case of Bachan Singh v. State
of Panjab,(1) was not there. It appears from the report that
Bachan Singh’s case in which constitutional validity of the
death penalty was upheld by this Court came to be decided by
this Court on 9th May, 1980. It further appears that in that
case the validity of the death sentence was upheld by four
of the learned Judges on the Bench, but Bhagwati J.
dissented from the view expressed by the majority and he was
of the opinion that "S. 302 of the IPC in so far as it
provides for imposition of death penalty as an alternative
to life sentence, is ultra vires and void as being violative
of Art. 14 and 21 of the Constitution, as it does not
provide any legislative guidelines as to when life should be
extinguished by imposition of death sentence". The majority
judgment of the Bench was delivered by Sarkaria, J. on
behalf of himself, Chandrachud, C.J. and Gupta and Untwalia,
JJ. While upholding the constitutional validity of death
sentence, this Court in Bachan Singh’s case laid down
certain principles on the basis of which capital punishment
may normally be imposed, recognising at the same time that
the punishment to be inflicted was a matter of judicial
discretion to be exercised with due care and caution.
When a bench of this Court dismissed the special leave
petition of Jeeta Singh who has since been executed, this
Court
241
must have on a consideration of the facts and circumstances
come to the conclusion that death penalty had been rightly
imposed on Jeeta Singh and there was no need for
interference by this Court with the judgment or the sentence
imposed. The special leave petition of Kashmira Singh was
entertained by another Bench of this Court. Though arising
out of the same offence, this Court must have felt that
there were circumstances which did not justify the
imposition of the extreme penalty of death and this Court
commuted the sentence of death to one of life imprisonment.
It may be noticed that at the time the special leave
petition of Kashmira Singh was entertained by this Court and
his death sentence was commuted by an order of this Court
dated 10th April, 1977, the decision in the case of Bachan
Singh was not there, though various other decisions which
came to be considered in the case of Bachan Singh were
there.
The Special Leave Petition of the Petitioner was
dismissed by this Court on the 16th December, 1978. The
review petition was also dismissed by a Bench presided over
by Sarkaria, J. on the 9th of May, 1980, the very day on
which Bachan Singh’s case appears to have been decided.
It unfortunately appears that the attention of the
Bench which dismissed the special leave petition and also
the review petition of the petitioner was not drawn to the
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fact that special leave petition of the co-accused Kashmira
Singh had already been entertained by this Court and the
death sentence imposed on Kashmira Singh had been commuted
by this Court to one of life imprisonment. The Bench which
dismissed the special leave petition and also the review
petition of the present petitioner Harbans Singh must have
felt on consideration of the facts and circumstances that
death penalty had been rightly imposed on Harbans Singh and
no interference by this Court was called for. Though the
Bench must have come to its decision on a consideration of
the facts and circumstances of the case, yet, to my mind,
the Bench would not have dismissed the special leave
petition and the review petition of Harbans Singh and would
have commuted his death sentence to one of life
imprisonment, had the Bench been informed that in the
identical case, the co-accused of the petitioner had earlier
filed a special leave petition which had already been
entertained by this Court and the capital punishment of the
co-accused Kashmira Singh had been commuted by this Court to
one of life imprisonment. It may be noticed that
242
the responsibility, involvement and complicity of the
petitioner Harbans Singh in the commission of the offence is
the same as that of the co-accused Kashmira Singh. As I have
earlier noticed, Harbans Singh had filed a petition to the
President of India after the dismissal of his petition for
Special Leave and his petition for review by this Court for
commutation of death sentence and the said Petition of
Harbans Singh has also been rejected by the President.
To my mind, it will be a sheer travesty of justice and
the course of justice will be perverted, if for the very
same offence, the petitioner has to swing and pay the
extreme penalty of death whereas the death sentence imposed
on his co-accused for the very same offence is commuted to
one of life imprisonment and the life of the co-accused is
shared. The case of the Petitioner Harbans Singh appears,
indeed, to be unfortunate, as neither in his special leave
petition and the review petition in this Court nor in his
mercy petition to the President of India, this all important
and significant fact that the life sentence imposed on his
co-accused in respect of the very same offence has been
commuted to one of life imprisonment has been mentioned. Had
this fact been brought to the notice of this Court at the
time when the Court dealt with the special leave petition of
the petitioner or even his review petition, I have no doubt
in my mind that this Court would have commuted his death
sentence to one of life imprisonment. For the same offence
and for the same kind of involvement, responsibility and
complicity, capital punishment on one and life imprisonment
on the other would never have been just. I also feel that
had the petitioner in his mercy petition to the President of
India made any mention of this fact of commutation of death
sentence to one of life imprisonment on his co-accused in
respect of the very same offence, the President might have
been inclined to take a different view on his petition.
In the circumstances hereinabove stated, I am of the
opinion that it will be manifestly unjust to allow the death
sentence imposed on the petitioner to be executed. The
question that, however, troubles me is weather this Court
retains any power and jurisdiction to entertain and pass any
appropriate orders on the question of sentence imposed on
the petitioner in view of the fact that not only his special
leave petition and review petition have been dismissed by
this Court but also the further fact that his petition for
clemency has also been rejected by the President.
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243
Very wide powers have been conferred on this Court for
due and proper administration of justice. Apart from the
jurisdiction and powers conferred on this Court under Arts.
32 and 136 of the Constitution I am of the opinion that this
Court retains and must retain, an inherent power and
jurisdiction for dealing with any extra-ordinary situation
in the larger interests of administration of justice and for
preventing manifest injustice being done. This power must
necessarily be sparingly used only in exceptional
circumstances for furthering the ends of justice. Having
regard to the facts and circumstances of this case, I am of
the opinion that this is a fit case where this Court should
entertain the present petition of Harbans Singh and this
Court should interfere.
In the facts and circumstances of this case, this Court
would have been justified in commuting the death sentence
imposed on the petitioner to one of life imprisonment. As,
however, the case of the Petitioner had earlier been
considered by the President of India to whom the petitioner
had presented the petition for mercy, I am of the opinion
that propriety and decorum require that the matter should be
referred back to the President instead of this Court
deciding to commute the death sentence of the petitioner to
one of life imprisonment.
With these observations, I respectfully agree with the
order passed by the learned Chief Justice.
P.B.R. Petition allowed.
244