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REPORTABLE
| IN THE SUPREME COURT OF INDIA | |
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| CRIMINAL ORIGINAL/APPELLATE JURISDICTION | | |
REVIEW PETITION (CRL.) NO.591 OF 2014
IN
CRIMINAL APPEAL NO.338 OF 2007
WITH
WRIT PETITION (CRL.) NO. 197 OF 2014
JAGDISH …PETITIONER(S)
Versus
| STATE OF MADHYA PRADESH | | | …RESPONDENT(S) |
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J U D G M E N T
Deepak Gupta, J.
| 1. | | Petitioner Jagdish was tried for the murder of his wife and five |
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children. He was convicted by the trial court vide judgment dated
24.04.2006 and sentenced to death. He filed an appeal which was
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dismissed by the High Court on 27.06.2006 and the death sentence
was confirmed. Thereafter, he filed Criminal Appeal in this Court
which was dismissed and again death sentence was confirmed vide
judgment dated 18.09.2009.
| 2. | | The petitioner filed mercy petition before the jail authorities on |
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13.10.2009, which came to be rejected by the President of India on
16.07.2014. The petitioner has filed Writ petition (Crl.)No.197 of
2014 challenging the rejection of his mercy petition and the main
ground is that there is a delay of almost 5 years in deciding the
mercy petition and this itself is a ground to commute the death
sentence to life imprisonment. Thereafter, the petitioner also filed
Review Petition No. 591 of 2014 in which review of the judgment of
this Court dated 18.09.2009 is sought both on merits and the
question of sentence in Criminal Appeal No. 338 of 2007. Hence
this matter is before this Bench.
| 3. | | At the outset we may note that we are not inclined to entertain |
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the Review Petition on the merits of the case. Three courts have
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come to a concurrent finding of fact that it was the petitioner who
murdered his wife and five children. We have gone through the
written submissions filed by the learned counsel appearing on
behalf of the petitioner and find no reason to take a view different
from the one taken earlier.
| 4. | | We are only dealing with the issue whether the sentence of |
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death should be upheld or not? In the Writ Petition it has been
urged that delay in deciding the mercy petition and the delay in
legal proceedings is sufficient to recall the sentence of death. In the
Review Petition some other arguments have been raised. It has
been urged that this case does not fall in the category of the rarest
of rare cases; this is a case based on circumstantial evidence; that
the petitioner Jagdish was suffering from mental illness; the
petitioner has been incarcerated for almost 14 years and execution
of the death sentence at this stage would virtually mean imposing
two sentences upon him – a sentence of life imprisonment and then
a sentence of death.
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| 5. | | Delay in dealing with mercy petition: |
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| This Court in | V. Sriharan alias Murugan | vs. | Union of India |
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Court for commutation of death sentence into life imprisonment is
the undue, inordinate and unreasonable delay in the execution of
death sentence. The Court, however, held that whether the delay is
unreasonable or not, it has to be appreciated in the facts of each
| case. In | Sriharan’s | case, there was a delay of 5 years and one |
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month in disposing of the mercy petition and this Court held as
follows :
“17. Exorbitant delay in disposal of mercy petition renders the
process of execution of death sentence arbitrary, whimsical and
capricious and, therefore, inexecutable. Furthermore, such
imprisonment, occasioned by inordinate delay in disposal of mercy
petitions, is beyond the sentence accorded by the court and to that
extent is extralegal and excessive. Therefore, the apex
constitutional authorities must exercise the power under Articles
72/161 within the bounds of constitutional discipline and should
dispose of the mercy petitions filed before them in an expeditious
manner.
18. ……….
1 (2014) 4 SCC 242
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19. Before we advert to respond the aforesaid contention, it is
relevant to comprehend the primary ground on the basis of which
the relief was granted in cases of delayed disposal of the mercy
petition and that is, such delay violates the requirement of a fair,
just and reasonable procedure. Regardless and independent of the
suffering it causes, delay makes the process of execution of death
sentence unfair, unreasonable, arbitrary and capricious and
thereby, violates procedural due process guaranteed under Article
21 of the Constitution and the dehumanising effect is presumed in
such cases. It is in this context, this Court, in the past, has
recognised that incarceration, in addition to the reasonable time
necessary for adjudication of mercy petitions and preparation for
execution, flouts the due process guaranteed to the convict under
Article 21 which inheres in every prisoner till his last breath.”
Consequently, the Court commuted the death sentence to life.
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6. In Ajay Kumar Pal vs. Union of India and Another this
Court was dealing with a case where there was a delay of 3 years
and 10 months in dealing with the mercy petition. In this case it
was also admitted that the petitioner had been kept in solitary
confinement after the death sentence was confirmed by this Court.
This Court held that the combined effect of the inordinate delay in
disposal of the mercy petition and solitary confinement for such a
long period caused deprivation of the cherished right to liberty of
the petitioner and, therefore, the death sentence was converted to
life imprisonment.
2 (2015) 2 SCC 478
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7. As far as the present case is concerned the occurrence took
place on the intervening night of 19/20.08.2005. The trial court
completed the trial swiftly and delivered its judgment on
24.04.2006. The High Court confirmed the sentence within 2
months on 27.06.2006, and this Court dismissed the appeal on
18.09.2009. The petitioner filed a mercy petition addressed to the
President of India and the Governor of Madhya Pradesh through the
jail authorities on 13.10.2009. This application was forwarded by
the Madhya Pradesh authorities to the Ministry of Home Affairs
after more than 4 years on 15.10.2013. Thereafter, the Ministry of
Home Affairs called for some records from the State of Madhya
Pradesh on 20.11.2013. These documents were supplied by the
State of Madhya Pradesh on 12.12.2013. The file was forwarded to
the President of India on 02.04.2014. The file was returned to the
Ministry of Home Affairs for reconsideration. It was resubmitted to
the President of India on 07.07.2014 and finally the mercy petition
was rejected on 16.07.2014.
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8. As far as the Government of India or the Secretariat of the
President of India is concerned, there is no delay in dealing with the
mercy petition and the same has been dealt with expeditiously.
However, the State of Madhya Pradesh has given no explanation for
the delay of more than 4 years in forwarding the mercy petition.
9. We are constrained to observe that not only was there a long,
inordinate and unexplained delay on the part of the State of
Madhya Pradesh but to make matters worse, the State of Madhya
Pradesh has not even cared to file any counter affidavit in the Writ
Petition even though notice was issued 4 years back on 18.11.2014
and service was effected within a month of issuance of notice.
10. The delay in forwarding the petition is totally unexplained
and this Court cannot countenance an unexplained delay of more
than 4 years. We are dealing here with the case of a person who
has been sentenced to death. The mercy petition is the last hope of
a person on death row. Every dawn will give rise to a new hope that
his mercy petition may be accepted. By night fall this hope also
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dies. Inordinate and unexplained delay in deciding the mercy
petition and the consequent delay in execution of death sentence for
years on end is another form of punishment which was awarded by
the Court. This Court has repeatedly held that in cases where
death sentence has to be executed the same should be done as
early as possible and if mercy petitions are not forwarded for 4
years and no explanation is submitted we cannot but hold that the
delay is inordinate and unexplained.
11. We are not only dealing with the issue of delay in disposal of
the mercy petition. The petitioner has now been behind bars for
almost about 14 years. This is also a factor which will have to be
taken into consideration.
12. Death sentence is the exception and has to be awarded in the
rarest of rare cases. Keeping in view all the circumstances of the
case, including the unexplained delay of 4 years in forwarding the
mercy petition by the State of Madhya Pradesh leading to delay of
almost 5 years in deciding the mercy petition and the fact that the
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petitioner has been incarcerated for almost 14 years, we are of view
that regardless of the brutal nature of crime this is not a fit case
where death sentence should be executed and we, accordingly
commute the death sentence to that of life. However, keeping in
view the nature of crime and the fact that 6 innocent lives were lost,
we direct that life imprisonment in this case shall mean the entire
remaining life of the petitioner and he shall not be released till his
death. The Review Petition as well as the Writ Petition are partly
allowed in the aforesaid terms and, accordingly, disposed of.
Pending application(s) if any shall stand disposed of.
…………………………..J.
(N.V. Ramana)
…………………………..J.
(Deepak Gupta)
……………………………J.
(Indira Banerjee)
New Delhi
February 21, 2019
