Full Judgment Text
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PETITIONER:
DAYA SINGH
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT24/04/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 1548 1991 SCR (2) 462
1991 SCC (3) 61 JT 1991 (2) 349
1991 SCALE (1)780
ACT:
Constitution of India: Art. 32-Death sentence-Delay in
execution-Writ petition once rejected-Same plea not to be
raised by repeated petitions-Subsequent mercy petition not
disposed of expeditiously-Continued detention in prison not
rendered completely irrelevant and considered as a
circumstance assuming significance with subsequent
circumstances-Death sentence-Substituted by life
imprisonment.
HEADNOTE:
The petitioner was convicted of murder and was
sentenced to death by the Sessions Court on 13.12.1978. His
appeal to the High Court and Special Leave petition to this
Court were dismissed. His mercy petitions to the Government
and to the President of India were also rejected. The
execution of the sentence remained stayed till it stood
vacated on 11.10.1988 on dismissal of a writ petition
under Article 32 of the Constitution filed by his brother
for conversion of the death sentence into one of life
imprisonment on the ground of delay in its execution. On
18.11.1988 the petitioner again filed a mercy petition
before the Governor and his execution was once more stayed,
and since then he was awaiting the final outcome of his
petition.
meanwhile, on 24.12.1990, a prisoner sent a letter
praying for release of the petitioner, which was treated as
a writ petition on behalf of the convict under Article 32 of
the Constitution.
It was contended on behalf of the petitioner that the
death sentence awarded to him should be quashed as there had
been inexcusable delay in executing the same.
On consideration on nature and effect of the delay in
execution of the sentence after the petitioner filed mercy
petition on 18.11.1988, in the light of the principles laid
down in Triveniben’s case.
Allowing the appeal, this Court,
HELD: 1. Once a petition for conversion of death
sentence into one of life imprisonment is rejected, the plea
raised in the petition so
463
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rejected, cannot be permitted to be raised by repeated
petitions. But this does not deprive the convict of his
right to renew the prayer on fresh circumstances arising
later and, therefore, not considered. [465B-C]
2. In the instant case, the petitioner could not
succeed on the basis of the delay prior to October, 1988 as
it had been considered in the earlier petition which was
dismissed; but the fact that the petitioner had been
continuously detained in prison since 1972 was not rendered
completely irrelevant and should be considered merely as a
circumstance assuming significance as a result of the
relevant circumstance, arising subsequent to the judgment
rendered in October, 1988. [465E-F, 467C-D]
3. The initial reason for the further delay has been a
fresh mercy petition filed by the petitioner. Althought the
stay of the execution was certainly appropriate in the event
of not rejecting the prayer at once, yet the matter should
have been disposed of expeditiously and not kept in abeyance
as was done. If the concerned officers had bestowed the
necessary attention to the matter and devoted the time its
urgency needed, undoubtedly, the entire process of the
consideration of the questions referred would have been
completed within a reasonable period without leaving any
yawning or "embarrassing gap". There had been an avoidable
delay considerable in the totality of circumstances, for
which the petitioner was in no way responsible. [466D-E;
467A-B]
4. The only relief a convict awaiting execution of
death sentence can get from this Court on the ground of
delay is conversion of the sentence into that of life
imprisonment. [467F]
5. In view of all the circumstances of the case, the
petitioner’s death sentence is substituted by imprisonment
for life and he would be governed and dealt with as a life
convict for all purposes. [476E, G]
Smt. Tribeniben v. State of Gujarat, [1989] 1 S.C.C.
678, followed.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 133 of 1991.
(Under Article 32 of the Constitution of India).
R.K. Jain, Ravi Prakash, Mrs. Swati Kapoor Ms. Abha R.
Sharma and Ms. Rajni K. Prasad for the Petitioner.
464
Altaf Ahmed, Additional Solicitor General, Ms. Kusum
Choudhary, C. Ramesh and Ms. A. Subhashini for the
Respondents.
The Judgment of the Court was delivered by
SHARMA, J. On the basis of a letter received from a
prisoner detained in Alipore Central Jail, Calcutta, drawing
the attention of this Court to the long wait of Daya Singh,
the petitioner convicted for the murder of late Chief
Minister of Punjab Pratap Singh Kairon, lodged at present
in Rohtak Jail Haryana, pending the execution of his death
sentence, this case was registered as a writ petition and
was listed before us on 27.3.1991. All the relevant facts
were not available from the letter but from the Office
Report it appeared that the case of the condemned prisoner
had earlier come to this Court. We directed the Registry to
examine the earlier files and place before us the relevant
details. In the meantime we stayed the execution of the
death sentence. The learned carousel for the State of
Haryana was also informed about the case. As directed, the
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case was placed before us again on Monday, the 1st April,
1991, when Ms. Kusum Chaudhary appeared on behalf of State
of Haryana and orders were passed for notice to the counsel
representing the Union of India. Having heard about the
case, the convict Daya Singh engaged his own counsel to
represent him and to press this writ petition and
accordingly Mr. R.K. Jain appeared for him on 5.4.1991. We
have, in the circumstances, treated this application as one
directly by Daya Singh. The Union of India is represented by
Additional Solicitor General of India. The case was further
adjourned at the request of the counsel and was ultimately
heard on 16.4.1991.
2. Mr. Jain has contended that if the relevant
circumstances of this case are examined in the light of the
decisions of this Court, the conslusion is irresistible that
there has been inexcusable delay in executing the death
sentence of the petitioner, and the sentence should,
therefore, be quashed by this Court under Article 32 of the
Constitution.
3. The petitioner was tried for the murder of Sardar
Pratap Singh Karion which took place in 1965 and was
convicted and sentenced to death by the trial court on
13.12.1978. The sentence was confirmed by the High Court on
22.3.1980. His Special leave petition was dismissed by this
Court on 21.8.1980 and a further prayer for review was
rejected on 2.9.1981. He filed mercy petitions before the
Governor and the President of India, which were also
rejected.
465
Seveal orders of stay were passed from time to time, the
details whereof are not very significant in view of the
rejection by this Court of an earlier application under
Article 32, being Writ Petition No. 191 of 1986, filed
through his brother Lal Singh. The case was dismissed on
October 11, 1988 and the stay of the execution of the
sentence stood vacated. The reasoned judgment, however, was
pronounced later and is resported in Smt. Triveniben v.
State of Gujarat, [1989] 1 SCC 678. The petitioner filed
another mercy petition thereafter before the Governor of
Haryana on 18.11.1988 and an order for stay of execution was
again passed. The matter remained pending and the petitioner
has been awaiting the final outcome of his last petion since
then. On the basis of a newspaper report dated December 24,
1990 it is alleged that the attention of the Deputy Prime
Minister was drawn to the petitioner’s case and the Deputy
Prime Minister gave an assurance that he would examine the
matter. The report drew the attention of Alipore Jail
prisoner which prompted him to send the letter which led the
Registry of this Court to register the present writ
petition.
4. The earlier writ petition of the petitioner Writ
petition No. 191 of 1986, filed through his brother Lal
Singh, was initially heard by a Division Bench of this Court
and the matter, along with a number of other applications on
behalf of other convicts was referred for the decision of
the Constitution Bench. The cases were heard at considerable
length by the Constitution Bench of which one of us
(Sharma,L) was a member and the leading argument at that
stage was also made by Mr. R.K. Jain when all aspects of the
cases were thoroughly considered. Finally, this Court
substituted the sentence of death of one convict (Harbhajan
Singh) in another case by the sentence of imprisonment for
life, but the other writ petitions including that of the
prisoner were dismissed. In the circumstances the petitioner
cannot succeed on the basis of the earlier delay. The
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operative part of the judgment, as stated earlier, was
passed in October, 1988 and what is now relevant to
consider is the delay subsequent to this date.
5. Before proceeding further we may refer to the
decision in Smt. Triveniben’s case laying down the principle
which governs the present petition. Although the cases were
disposed of by two judgements, according to the opinion of
the Bench, which was unanimous, undue delay in execution of
the sentence of death entitles the condemned prisoner to
approach this Court under Article 32, but this Court will
examine only the nature of delay caused and circumstances
ensued after the sentence was finally confirmed by the
judicial process, and will have no jurisdiction to reopen
the conclusions reached by the
466
Court while finally maintaining the sentence of death.
Further, while considering the grievance of inordinate delay
this Court may consider all the circumstances of the case
for deciding as to whether the sentence of death should be
altered into imprisonment for life, and no fixed period of
delay could be held to make to sentence of death
inexecutable. In the light of these observations the
circumstances of the present case are to be examined.
6. It is true that while rejecting the earlier prayer
of the petitioner on October 11, 1988 all the relevant
considerations were taken into account and the petitioner
cannot be permitted to raise the same plea once rejected, by
repeated petitions. But this does not deprive the petitioner
the right to renew the prayer on fresh circumstances arising
later and, therefore, not considered. This is the position
in the present case. Although the matter was finally closed
by this Court in October, 1988, the petitioner continues to
remain in a state of suspense since then. The main question
is as to what is the effect of this delay.
7. The initial reason for the further delay has been a
fresh mercy petition filed by the petitioner. Does this fact
justify keeping him under a sence of anticipation for more
than two years? If the prayer was not considered fit be
rejected at once it was certainly appropriate to have stayed
the execution, but the matter should have been disposed of
expeditiously and not kept in abeyance as has been done. The
counter affidavit filed on behalf of the Union of India
states that on the receipt of the last mercy petition the
Governor of Haryana immediately made a reference to the
President of India seeking enlightenment on the question as
to whether the Governor, while dealing with such
applications, is bound by the advice of the Chief Minister
of the State and whether it is open to the Governor to
exercise his constitutional power in a case where an earlier
application to the same effect had been rejected by the
President. Soon after the receipt of this communication,
the matter was referred to the Department of Legal Affairs,
Ministry of Law and Justice for advice, and the Ministry
suggested that the question should be discussed with the
Attorney General of India. Since the matter remained under
consideration no reply could be sent to the quarry and
ultimately it was only in March this year, that the reply
could be sent in the shape of a directive under Article
257(1) of the Constitution to all the Chief Secretaries of
the State Governments and Union Territories. The affidavit,
however, does not furnish any fact or circumstance in
justification of the delay. In absence of any reasonable
explanation by the respondents we are of
467
the view that if the concerned officers had bestowed the
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necessary attention to the matter and devoted the time its
urgency needed, we have no doubt that the entire process of
consideration of the questions referred would have been
completed within a reasonable period without leaving any
yawning gap rightly described by the learned Additional
Solicitor General as "embarrassing gap". There has, thus,
been an avoidable delay, which is considerable in the
totality of circumstances in the present case, for which the
condemned prisoner in in no way responsible.
8. As was cautioned by this Court in Smt. Triveniben’s
case we are not laying down any rule of general application
that the delay of two years will entitle a convict,
sentenced to death, to conversion of his sentence into one
for life imprisonment, rather we have taken into account the
cumulative effect of all the circumstances of the case for
considering the prayer of the petitioner. Although the fact
that the petitioner has been continuously detained in prison
since 1972 was taken into account while rejecting his
earlier writ petition, the same is not rendered completely
irrelevant for the purpose of the present case and we have
taken it into consideration merely as a circumstance
assuming significance as a result of the relevant
circumstances arising subsequent to the judgment rendered in
October, 1988.
9. Having regard to all the circumstances of the case,
we deem it fit to and accordingly substitute the sentence of
imprisonment for life in place of the petitioner’s death
sentence. The writ petition is accordingly allowed.
10. In the letter from Alipore Jail a prayer has been
made for the release of the petitioner. As was indicated in
Triveniben’s case, the only relief a convict awaiting
execution of death sentence can get from this Court on the
ground of delay is conversion of the sentence into that of
life imprisonment. However, on conversion of the death
sentence to life imprisonment, the petitioner would now be
governed and dealt with as a life convict for all purposes.
We are not required to say anything more in this behalf.
This prayer made in the letter is rejected.
R.P. Petition allowed.
468