Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 677 OF 2013
(Arising out of SLP(Crl.) No. 1105 of 2012)
Mahendra Nath Das …Appellant
versus
Union of India and others ...Respondents
J U D G M E N T
G. S. SINGHVI, J.
JUDGMENT
1. Leave granted.
2. The question which arises for consideration in this appeal is whether
12 years delay in the disposal of the petition filed by the appellant under
Article 72 of the Constitution was sufficient for commutation of the sentence
of death into life imprisonment and the Division Bench of the Gauhati High
Court committed an error by dismissing the writ petition filed by him.
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3. The appellant was prosecuted for an offence under Section 302 of the
Indian Penal Code (IPC) on the allegation that he had killed Rajen Das,
Secretary of Assam Motor Workers Union on 24.12.1990. He was convicted
by Sessions Judge, Kamrup, Guwahati (hereinafter referred to as, ‘the trial
Court’) in Sessions Case No. 80(K) of 1990 vide judgment dated 11.11.1997
and was sentenced to life imprisonment.
4. While he was on bail in Sessions Case No. 80(K) of 1990, the
appellant is said to have killed Hare Kanta Das (a truck owner). He was
tried in Sessions Case No. 114(K) of 1996 and was convicted by the trial
Court and was sentenced to death on the premise that the murder was most
foul and gruesome.
5. The appellant challenged the judgments of the trial Court in Appeal
Nos. 254(J) of 1997 and 2(J) of 1998. Both the appeals were dismissed by
the High Court vide judgments dated 3.2.1998 and 12.12.1998 and the
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sentence of death awarded in Sessions Case No. 114(K) of 1996 was
confirmed.
6. The appeal filed by the appellant against the confirmation of the
sentence of death by the High Court was dismissed by this Court vide
judgment – Mahendra Nath Das v. State of Assam (1999) 5 SCC 102.
While dealing with the appellant’s contention that the extreme penalty of
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death should not have been imposed by the trial Court and confirmed by the
High Court, this Court made the following observations:
“Now coming to the facts of this case, the circumstances of the
case unmistakably show that the murder committed was
extremely gruesome, heinous, cold-blooded and cruel. The
manner in which the murder was committed was atrocious and
shocking. After giving blows with a sword to the deceased
when he fell down the appellant amputated his hand, severed
his head from the body, carried it through the road to the police
station (majestically as the trial court puts it) by holding it in
one hand and the blood-dripping weapon in the other hand.
Does it not depict the extreme depravity of the appellant? In our
view it does.
The mitigating circumstances pointed out by the learned
counsel for the appellant are, though the appellant himself did
not state any mitigating circumstances when enquired about the
same by the learned Sessions Judge, that the appellant is a
young man of 33 years and having three unmarried sisters and
aged parents and he was not well at that time. These
circumstances when weighed against the aggravating
circumstances leave us in no doubt that this case falls within the
category of rarest of rare cases. The trial court has correctly
applied the principles in awarding the death sentence and the
High Court has committed no error of law in confirming the
same.
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On these facts, declining to confirm the death sentence will, in
our view, stultify the course of law and justice. In
Govindaswami v. State of T.N . (1998) 4 SCC 531, Mukherjee,
J. speaking for the Court observed, “If, in spite thereof, we
commute the death sentence to life imprisonment we will be
yielding to spasmodic sentiment, unregulated benevolence and
misplaced sympathy.”
7. Soon after the judgment of this Court, the appellant submitted a
petition to the President under Article 72 of the Constitution and prayed for
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commutation of the sentence of death into life imprisonment. A similar
petition was filed by him under Article 161 of the Constitution. The
Governor of Assam rejected his petition vide order dated 7.4.2000. The
mercy petition addressed to the President was forwarded by the Government
of Assam to the Ministry of Home Affairs sometime in June, 2000. After a
lot of correspondence with the State Government, the Ministry of Home
Affairs prepared a note suggesting that the petition filed by the appellant
may be rejected. On 20.6.2001, the then Home Minister recommended to
the President that the mercy petition of the appellant should be rejected.
8. The record produced by the learned Additional Solicitor General does
not show as to what happened in the next three years, but consideration of
the appellant’s petition again started in September, 2004. After the file was
processed at various levels in the Ministry of Home Affairs, the case was
submitted to the President on 19.4.2005 with the recommendation of the
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Home Minister that the mercy petition of the appellant may be rejected
9. The President considered the mercy petition in the light of the
recommendation made by the Home Minister and passed order dated
30.9.2005, which reads as under:
“ I have carefully studied the mercy petition proposal sent for my
consideration in respect of Mahendra Nath Das. I find that though the
crime committed was of a gruesome nature, yet the conduct of the accused
does not show trace of pre-meditated murder. The crime can well be
attributed to a gross lack of mental equanimity on his part. In such
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circumstances, his mercy petition in my view, be accepted and his death
sentence commuted to life-long imprisonment (i.e. for the rest of his life).
During his further incarceration in prison, he may be given periodic
counseling by spiritualist and moral leaders which could help reform his
personality and mental psyche. This may be considered.
A .P.J. Abdul Kalam
PRESIDENT OF INDIA
30/9/2005”
10. On the same day, i.e., 30.9.2005, the President recorded another note
for the Home Minister in which he dealt with mercy petitions filed by Sushil
Murmu, Santosh Yadav, Molai Ram, Mahendra Nath Das, R. Govindasamy,
Piara Singh, Sarabjit Singh, Satnam Singh and Gurdev Singh. As per that
note, the mercy petitions of Sushil Murmu, Santosh Yadav and Molai Ram
were rejected. As regards Mahendra Nath Das, R. Govindasamy, Piara
Singh, Satnam Singh, Sarabjit Singh and Gurdev Singh, the President opined
that their mercy petitions be accepted.
11. After receiving the note of the President, the office of the Home
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Minister asked for the appellant’s file. However, requisition for the return of
the file was sent to the President’s Secretariat only on 7.9.2010. The
President’s Secretariat returned the file on 24.9.2010. Thereafter, the
Ministry of Home Affairs (Judicial Cell) prepared a note of about 6 pages in
which the concerned officer recorded the details of the crime committed by
the appellant, referred to the judgments of the trial Court, the High Court and
this Court and the grounds on which the appellant had sought commutation
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of the sentence of death into life imprisonment as also the representations
made by some persons including President of the Union and suggested that
the mercy petition may be rejected. The Home Minister referred to the
observations made by this Court and recommended that the mercy petition
may be rejected because there was no mitigating circumstance. The
recommendations made by the Home Minister on 18.10.2010 were approved
by the President on 8.5.2011. Thereafter, the appellant was informed about
rejection of his petition.
12. The writ petition filed by the appellant questioning the rejection of his
mercy petition was dismissed by the Division Bench of the High Court,
which referred to the judgments of this Court in Jagmohan Singh v. State of
U.P. (1973) 1 SCC 20, Rajendra Prasad v. State of U.P. (1979) 3 SCC 464,
Bachan Singh v. State of Punjab (1980) 2 SCC 684, T.V. Vatheeswaran v.
State of Tamil Nadu (1983) 2 SCC 68, Sher Singh v. State of Punjab (1983)
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2 SCC 344, Javed Ahmed Pawala v. State of Maharashtra (1985) 1 SCC 275, Mahesh
Triveniben v. State of Gujarat (1989) 1 SCC 678,
v. State of M.P. (1987) 3 SCC 80,
Madhu Mehta v. Union of India (1989) 3 SCR 775, Sevaka Perumal v. State of T.N.
(1991) 3 SCC 471, Dhananjoy Chatterjee v. State of W.B. (1994) 2 SCC
220, Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353, Ravji
v. State of Rajasthan (1996) 2 SCC 175, State of Madhya Pradesh v. Munna
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Choubey (2005) 2 SCC 710, Swamy Shraddananda v. State of Karnataka
(2008) 13 SCC 767 and observed:
“ 32. We may now come to the last and the crucial question whether or not
in the facts and circumstances of the present case, the prayer for
commuting the death sentence to the life imprisonment can be accepted.
We have already noted the stand of the State that till decision on mercy
petition, the petitioner had never been kept in the condemned cell which
was in compliance with law laid down in Sunil Batra. The said stand has
not been rebutted in any manner. Though delay in deciding the mercy
petition does appear to be unexplained and if delay alone is a conclusive
factor, the death sentence may be liable to be set aside but in view of law
laid down by Constitution Bench in Triveniben, delay is a factor which
has to be seen in the light of subsequent circumstances, coupled with the
nature of offence and circumstances in which the offence was committed,
as already found by the competent court while passing the final verdict. At
this stage, the correctness of the final verdict is not in issue as held in
Triveniben (particularly in paragraph 22 and 76). Beyond delay, there is
no subsequent circumstance showing any adverse effect on the petitioner
on that court. Throughout he has continued to live as normal prisoner with
other prisoners. If delay is considered along with dastardly and diabolical
circumstances of the crime, in absence of any further supervening
circumstances in favour of the petitioner, no case is made out for vacating
the death sentence. Thus while delay has furnished cause of action to the
writ petitioner to seek altering of death sentence, in absence of any other
subsequent circumstances necessitating vacation of death sentence, and
taking into account the circumstances for which the death sentence was
awarded, there is no ground to vacate the sentence so awarded. As held in
Sher Singh (last portion of paragraph 19 and 20), while death sentence
should not, as far as possible, be imposed but in rare and exceptional class
of cases where sentence is held to be valid, the same cannot be allowed to
be defeated by applying any rule of thumb. We have already noticed
reasons for which retention of death sentence was upheld by the Hon'ble
Supreme Court in Jagmohan Singh and Bachan Singh by distinguishing
the American Judgments and taking into account the study conducted by
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the Law Commission of India in its 35 Report and conditions prevailing
in the Country. It was noted that in the perspective of prevailing condition
of India, the Parliament has repeatedly rejected all attempts to abolish
death sentence. We have also referred to judgment of the Hon'ble Supreme
Court in Munna Choubey wherein after punishment may harm the justice
system and undermine the public confidence in efficacy of law, there was
need to maintain proportion in punishment and crime and to protect the
society, adequate punishment was necessary. Thus, mere delay is a
significant factor, cannot itself be a ground for commuting the death
sentence to life imprisonment in absence of any further circumstance
justifying such a course when offence and circumstances are rarest of rare.
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33. We have analysed the principle of law laid down in Triveniben and
not found any ground for vacating the death sentence. Judgments in
Madhu Mehta and Daya Singh do not lay down any further principle as
precedent and appear to in exercise of the jurisdiction of the Hon'ble
Supreme Court under Article 142 of the Constitution. We are also not
persuaded to follow the view taken by the High Courts of Madras,
Rajasthan and Bombay that delay alone was conclusive for commuting
death sentence to life. In our view, this interpretation is contrary to law
laid in Triveniben for the reasons already discussed.”
1 3. The arguments in this case were heard along with W.P. (Crl.) D.No.16039 of 2011,
W.P. (Crl.) No. 146 of 2011 and W.P. (Crl.) No.86 of 2011, which were finally disposed of
on 12.4.2013. Therein, we have noticed in detail the arguments of Shri Shyam Divan,
learned senior counsel for the petitioner, Shri K. V. Viswanathan, learned senior counsel for
the intervener (PUDR) and the learned Additional Solicitor General Harin P. Raval. In
nutshell, the argument of Shri Divan is that even though the appellant’s conviction has
become final, 12 years delay in the disposal of the mercy petition was sufficient for
commutation of the sentence of death into life imprisonment and the High Court committed
grave error by refusing to do so. He relied upon the judgments in
Vivian Rodrick v.
Madhu Mehta v. Union of India (supra),
State of West Bengal (1971) 1 SCC 468,
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Daya Singh v. Union of India (1991) 3 SCC 61 and Shivaji Jaising Babar v. State of
Maharashtra (1991) 4 SCC 375 and submitted that the High Court misunderstood the ratio
of judgments in Madhu Mehta’s case and Daya Singh’s case and erroneously held that the
principle laid down in Triveniben’s case cannot be invoked in the appellant’s case for
commutation of the sentence of death into life imprisonment.
4. Shri K.V. Viswanathan, learned senior counsel appearing for the intervener (PUDR)
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made detailed submissions in support of his argument that the delay of over one decade in
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the disposal of the mercy petition by the President is sufficient for commutation of the
sentence of death into life imprisonment.
15. Shri Harin P Raval, learned Additional Solicitor General emphasised that the
second murder committed by the appellant was gruesome and barbaric and,
therefore, this Court should not exercise power under Article 136 of the Constitution
and order commutation of the sentence of death into life imprisonment simply
because there was long time gap between filing of the mercy petition and disposal
thereof. Shri Raval argued that even though in September, 2005 the then President
had opined that the sentence of death awarded to the appellant may be commuted
into life long imprisonment, the final decision taken by the President on 8.5.2011
cannot be faulted on the ground of delay.
16. We have considered the respective submissions. In Devender Pal Singh
Bhullar’s case, this Court considered the following questions:
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(a) What is the
“ nature of power vested in the President under
Article 72 and the Governor under Article 161 of the
Constitution?
(b) Whether delay in deciding a petition filed under Article 72
or 161 of the Constitution is, by itself, sufficient for issue of a
judicial fiat for commutation of the sentence of death into life
imprisonment irrespective of the nature and magnitude of the
crime committed by the convict and the fact that the delay may
have been occasioned due to direct or indirect pressure brought
upon the Government by the convict through individuals,
groups of people and organizations from within or outside the
country or failure of the concerned public authorities to perform
their duty?
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(c) Whether the parameters laid down by the Constitution
Bench in Triveniben’s case for judging the issue of delay in the
disposal of a petition filed under Article 72 or 161 of the
Constitution can be applied to the cases in which an accused
has been found guilty of committing offences under TADA
and other similar statutes?
(d) What is the scope of the Court’s power of judicial review of
the decision taken by the President under Article 72 and the
Governor under Article 161 of the Constitution, as the case may
be?”
After noticing the judgments in Jagmohan Singh’s case, Rajender Prasad’s
case, Bachan Singh’s case, Maru Ram v. Union of India, (1981) 1 SCC 107,
Machhi Singh v. State of Punjab (1983) 3 SCC 470, Ediga Anamma v. State
of A.P. (1974) 4 SCC 443, T.V. Vatheeswaran’s case, K.P. Mohd’s case,
Sher Singh’s case, Javed Ahmed’s case, Triveniben’s case, Daya Singh’s case, Epuru
Sudhakar v. Government of A.P. (2006) 8 SCC 161 and some judgments of other
jurisdictions, the Court held:
“(i) the power vested in the President under Article 72 and
the Governor under Article 161 of the Constitution is
manifestation of prerogative of the State. It is neither a matter
of grace nor a matter of privilege, but is an important
constitutional responsibility to be discharged by the highest
executive keeping in view the considerations of larger public
interest and welfare of the people.
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(ii) while exercising power under Article 72, the President is
required to act on the aid and advice of the Council of
Ministers. In tendering its advice to the President, the Central
Government is duty bound to objectively place the case of the
convict with a clear indication about the nature and magnitude
of the crime committed by him, its impact on the society and all
incriminating and extenuating circumstances. The same is true
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about the State Government, which is required to give advice to
the Governor to enable him to exercise power under Article 161
of the Constitution. On receipt of the advice of the
Government, the President or the Governor, as the case may be,
has to take a final decision in the matter. Although, he/she
cannot overturn the final verdict of the Court, but in appropriate
case, the President or the Governor, as the case may be, can
after scanning the record of the case, form his/her independent
opinion whether a case is made out for grant of pardon,
reprieve, etc.. In any case, the President or the Governor, as
the case may be, has to take cognizance of the relevant facts
and then decide whether a case is made out for exercise of
power under Article 72 or 161 of the Constitution.”
In that case the Court extensively quoted the observations made in Ediga
Anamma’s case, T.V. Vatheeswaran’s case, K.P. Mohd’s case, Sher
Singh’s case, Javed Ahmed’s case, Triveniben’s case, Madhu Mehta’s case, Daya
Singh’s case and observed:
“38. In the light of the above, we shall now consider the
argument of Shri K.T.S. Tulsi, learned senior counsel for the
petitioner, and Shri Ram Jethmalani and Shri Andhyarujina,
Senior Advocates, who assisted the Court as Amicus, that long
delay of 8 years in disposal of the petition filed under Article 72
should be treated as sufficient for commutation of the sentence
of death into life imprisonment, more so, because of prolonged
detention, the petitioner has become mentally sick. The thrust
of the argument of the learned senior counsel is that inordinate
delay in disposal of mercy petition has rendered the sentence of
death cruel, inhuman and degrading and this is nothing short of
another punishment inflicted upon the condemned prisoner.
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39. Though the argument appears attractive, on a deeper
consideration of all the facts, we are convinced that the present
case is not a fit one for exercise of the power of judicial review
for quashing the decision taken by the President not to
commute the sentence of death imposed on the petitioner. Time
and again, (Machhi Singh’s case, Ediga Anamma’s case, Sher
Singh’s case and Triveniben’s case), it has been held that while
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imposing punishment for murder and similar type of offences,
the Court is not only entitled, but is duty bound to take into
consideration the nature of the crime, the motive for
commission of the crime, the magnitude of the crime and its
impact on the society, the nature of weapon used for
commission of the crime, etc.. If the murder is committed in an
extremely brutal or dastardly manner, which gives rise to
intense and extreme indignation in the community, the Court
may be fully justified in awarding the death penalty. If the
murder is committed by burning the bride for the sake of money
or satisfaction of other kinds of greed, there will be ample
justification for awarding the death penalty. If the enormity of
the crime is such that a large number of innocent people are
killed without rhyme or reason, then too, award of extreme
penalty of death will be justified. All these factors have to be
taken into consideration by the President or the Governor, as
the case may be, while deciding a petition filed under Article 72
or 161 of the Constitution and the exercise of power by the
President or the Governor, as the case may be, not to entertain
the prayer for mercy in such cases cannot be characterized as
arbitrary or unreasonable and the Court cannot exercise power
of judicial review only on the ground of undue delay.
40. We are also of the view that the rule enunciated in Sher
Singh’s case, Triveniben’s case and some other judgments that
long delay may be one of the grounds for commutation of the
sentence of death into life imprisonment cannot be invoked in
cases where a person is convicted for offence under TADA or
similar statutes. Such cases stand on an altogether different
plane and cannot be compared with murders committed due to
personal animosity or over property and personal disputes. The
seriousness of the crimes committed by the terrorists can be
gauged from the fact that many hundred innocent civilians and
men in uniform have lost their lives. At times, their objective is
to annihilate their rivals including the political opponents.
They use bullets, bombs and other weapons of mass killing for
achieving their perverted political and other goals or wage war
against the State. While doing so, they do not show any respect
for human lives. Before killing the victims, they do not think
even for a second about the parents, wives, children and other
near and dear ones of the victims. The families of those killed
suffer the agony for their entire life, apart from financial and
other losses. It is paradoxical that the people who do not show
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any mercy or compassion for others plead for mercy and project
delay in disposal of the petition filed under Article 72 or 161 of
the Constitution as a ground for commutation of the sentence of
death. Many others join the bandwagon to espouse the cause of
terrorists involved in gruesome killing and mass murder of
innocent civilians and raise the bogey of human rights.”
The Court also dealt with the scope of judicial review in such matters and
observed:
“41. While examining challenge to the decision taken by the
President under Article 72 or the Governor under Article 161 of
the Constitution, as the case may be, the Court’s power of
judicial review of such decision is very limited. The Court can
neither sit in appeal nor exercise the power of review, but can
interfere if it is found that the decision has been taken without
application of mind to the relevant factors or the same is
founded on the extraneous or irrelevant considerations or is
vitiated due to malafides or patent arbitrariness – Maru Ram v.
Union of India, (1981) 1 SCC 107, Kehar Singh v. Union of
India (1989) 1 SCC 204, Swaran Singh v. State of U.P. (1998)
4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC 170, Bikas
Chatterjee v. Union of India (2004) 7 SCC 634, Epuru
Sudhakar v. Government of A.P. (2006) 8 SCC 161 and
Narayan Dutt v. State of Punjab (2011) 4 SCC 353.”
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17. In Triveniben’s case, the Constitution Bench considered the conflicting opinions
expressed in T.V. Vatheeswaran’s case, Sher Singh’s case and Javed
Ahmed’s case and held:
“Undue long delay in execution of the sentence of death
will entitle the condemned person to approach this Court
under Article 32 but this Court will only examine the nature
of delay caused and circumstances that ensued after
sentence was finally confirmed by the judicial process and
will have no jurisdiction to reopen the conclusions reached
by the court while finally maintaining the sentence of death.
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This Court, however, may consider the question of
inordinate delay in the light of all circumstances of the case
to decide whether the execution of sentence should be
carried out or should be altered into imprisonment for life.
No fixed period of delay could be held to make the
sentence of death inexecutable and to this extent the
decision in Vatheeswaran case cannot be said to lay down
the correct law and therefore to that extent stands
overruled.”
18. In Madhu Mehta’s case, this Court commuted the sentence of death
awarded to one Gyasi Ram, who had killed a Government servant,
namely, Bhagwan Singh (Amin), who had attached his property for
recovery of arrears of land revenue. After disposal of the criminal appeal
by this Court, the wife of the convict filed a mercy petition in 1981. The
same remained pending for 8 years. This Court considered the writ
petition filed by the petitioner Madhu Mehta, who was the national
convener of Hindustani Andolan, referred to the judgments in T.V.
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Vatheeswaran’s case, Sher Singh’s case and Triveniben’s case and held
that in the absence of sufficient explanation for the inordinate delay in
disposal of the mercy petition, the death sentence should be converted
into life imprisonment.
19. The facts of Daya Singh’s case were that the petitioner had been
convicted and sentenced to death for murdering Sardar Pratap Singh
Kairon. The sentence was confirmed by the High Court and the special
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leave petition was dismissed by this Court. After rejection of the review
petition, he filed mercy petitions before the Governor and the President of
India, which were also rejected. The writ petition filed by his brother Lal
Singh was dismissed along with Triveniben’s case. Thereafter, he filed
another mercy petition before the Governor of Haryana in November,
1988. The matter remained pending for next two years. Finally, he sent a
letter from Alipore Central Jail, Calcutta to the Registry of this Court for
commutation of the sentence of death into life imprisonment. This Court
took cognizance of the fact that the petitioner was in jail since 1972 and
substituted the sentence of imprisonment for life in place of the sentence
of death.
20. In the appellant’s case, there was a long time gap of 12 years
between the submission of the petition under Article 72 of the
Constitution and rejection thereof. The Union of India has tried to
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explain this time gap by citing correspondence between the Central
Government and the Government of Assam, consideration of the matter
in different levels in the Ministry of Home Affairs etc. However, no
explanation has been given for the time gap of three years between
20.6.2001, i.e., the date on which the then Home Minister made
recommendation for rejection of the mercy petition filed by the appellant,
and September, 2004, when the file again started moving within the
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Ministry and five years between 30.9.2005, i.e., the date on which the
President opined that the mercy petition of the appellant be accepted and
September, 2010, when the file was actually summoned back by the
Ministry of Home Affairs. That apart, what is most intriguing is that even
though in note dated 5.10.2010 prepared by the Joint Secretary, Ministry
of Home Affairs, a reference was made to note dated 30.9.2005 of the
then President Dr. A.P.J. Abdul Kalam, while making recommendation
on 12.10.2010 to the successor in the office of the President that the
appellant’s mercy petition be rejected, the Home Minister did not even
make a mention of note dated 30.9.2005. In the summary prepared by the
Home Ministry for the President’s consideration, which was signed by
the Home Minister on 18.10.2010, also no reference was made to the
order and note dated 30.9.2005 of the then President. Why this was done
has not been explained by the respondents. Though, the file containing
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the petition filed by the appellant and various notings recorded therein
must have been place before the President, omission to make a mention
of the order passed by her predecessor and note dated 30.9.2005 from the
summary prepared for her consideration leads to an inference that the
President was kept in dark about the view expressed by her predecessor
and was deprived of an opportunity to objectively consider the entire
matter.
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21. It is neither the pleaded case of the respondents nor any material
has been produced before this Court to show that the Government of
India had placed the file before the then President for review of the order
recorded by him on 30.9.2005 or the President who finally decided the
appellant’s petition on 8.5.2011 was requested to reconsider the decision
of her predecessor. Therefore, it must be held that the President was not
properly advised and assisted in the disposal of the petition filed by the
appellant.
22. The Division Bench of the Gauhati High Court did not have the
benefit of going through the record/files maintained by the Ministry of
Home Affairs and this is the reason why the impugned order does not
contain any reference to the order passed by the President on 30.9.2005
and the note recorded by him for the consideration of the Home Minster.
23. In the above backdrop, we are convinced that 12 years delay in the
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disposal of the appellant’s mercy petition was sufficient for commutation
of the sentence of death and the Division Bench of the High Court
committed serious error by dismissing the writ petition solely on the
ground that he was found guilty of committing heinous crime. The
Division Bench of the High Court was also not justified in distinguishing
the judgment in Daya Singh’s case on the assumption that the case
appears to have been decided by this Court under Article 142 of the
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Constitution. A careful reading of that judgment shows that this Court
had commuted the sentence of death of Daya Singh into life
imprisonment by taking into consideration long time gap of 12 years in
the execution of death sentence and the judgment of the Constitution
Bench in Triveniben’s case. This is evinced from paragraphs 5, 7, 8 and
9 of the judgment, which are extracted below:
“ 5. Before proceeding further we may refer to the decision in
Triveniben case laying down the principle which governs the
present petition. Although the cases were disposed of by two
judgments, 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 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 the sentence
of death inexecutable. In the light of these observations the
circumstances of the present case are to be examined.
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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 sense of anticipation for more than two years? If
the prayer was not considered fit to 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
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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
query 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 the view that if the
concerned officers had bestowed the 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 is in no way responsible.
8. As was cautioned by this Court in Triveniben 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.
JUDGMENT
9. Having regard to all the circumstances of the case, we deem
it fit to and accordingly substitute the sentence of imprisonment
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for life in place of the petitioner's death sentence. The writ
petition is accordingly allowed.”
24. In the result, the appeal is allowed, the impugned order is set aside.
The rejection of the appellant’s mercy petition is declared illegal and
quashed and the sentence of death awarded to him by the trial Court,
which has been confirmed by the High Court and this Court is commuted
into life imprisonment.
.........................................................J.
(G.S. SINGHVI)
......................................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi;
May 1, 2013
JUDGMENT
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