Supreme Court of India (Full Bench (FB)- Three Judge)

Writ Petition (Crl.), 128 of 2014, Judgment Date: Dec 12, 2014

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION

                   WRIT PETITION (CRIMINAL) NO.128 OF 2014



AJAY KUMAR PAL                                               .... Petitioner

                                   Versus

UNION OF INDIA AND ANOTHER                                  .... Respondents



                               J U D G M E N T

Uday Umesh Lalit, J.

1.    This petition under Article 32 of  the  Constitution  of  India  prays
that the sentence of death imposed upon the present petitioner  be  commuted
to  the  imprisonment  for  life  for  the  reasons  dealt  with  in  detail
hereafter.

2.    In Sessions Trial No.67 of 2005, the  court  of  Special  Judge,  CBI,
Ranchi by  its  judgment  and  order  dated  09.04.2007  had  awarded  death
sentence to the petitioner.  The matter  reached  Jharkhand  High  Court  in
Death Reference No.3 of 2007 and also as a result of  the  appeal  preferred
by the petitioner.  The High Court dismissed the appeal  and  confirmed  the
death sentence by  its  judgment  and  order  dated  28.08.2007,  which  was
challenged in this Court vide Criminal Appeal  Nos.1295-96  of  2007.   This
Court concurred with the view taken by the courts below  and  dismissed  the
appeals on 16.03.2010.  The death sentence imposed upon the petitioner  thus
stood confirmed on 16.03.2010.

3.    The petitioner, who was in  jail  all  through  out,  preferred  Mercy
Petitions addressed to the President of India as well as to the Governor  of
Jharkhand on 10.04.2010.  The Mercy Petitions were immediately forwarded  by
the Superintendent, Birsa Munda Central  Jail,  Ranchi  to  the  appropriate
authorities on 10.04.2010 itself.  Said forwarding letter had  enclosed  the
following documents:
"1. Mercy Petition submitted by the petitioner - one page.
2. Copy of the Order of Additional Judge/Special  Judge  C.B.I.  Ranchi-  48
pages.
3. Copy of the Order of Hon'ble High Court of Jharkhand, Ranchi - 25 pages.
4. Petition filed in the Hon'ble Supreme Court - 33 pages.
5. Hon'ble Supreme Court's Order - 8 pages.
6. Copy of Rule 923(III) of Jail Manual -3 pages"

4.    On 27.01.2014 a communication  was  received  by  the  Superintendent,
Birsa Munda Central Jail from the  Officer  on  Special  Duty,  Ministry  of
Home, Government of Jharkhand that the Mercy Petition was  rejected  by  the
President of India which fact was communicated by the Government  of  India,
Ministry of Home Affairs  vide  its  letter  dated  08.11.2013.   Thus,  the
petitioner was  communicated  the  result  of  the  disposal  of  his  Mercy
Petition preferred on 10.04.2014, nearly after three years and 10 months.

5.    In these circumstances this petition has been preferred.   Relying  on
the decision of this Court in Shatrughan Chauhan and  another  v.  Union  of
India and others[1] it is submitted that  because  of  inordinate  delay  in
disposal  of  his  Mercy  Petition,  the  death  sentence  be  commuted   to
imprisonment for life.  It is also submitted that right from  the  day  when
the death sentence was awarded i.e.  from  09.04.2007,  the  petitioner  has
been incarcerated in solitary confinement.

6.    In Shatrughan Chauhan1 (supra) while dealing with the  issue  relating
to  the  maintainability  of  a  petition  under  Article  32   in   similar
circumstances, it was observed that  the  challenge  therein  was  not  with
regard to the final verdict imposing the death sentence  but  was  based  on
the  supervening  circumstances  or   events   that   occurred   after   the
confirmation of  the  death  sentence.   Relying  on  some  of  its  earlier
Judgments,  this  Court  held  such  petitions  under  Article  32   to   be
maintainable.

7.    The challenge in the instant petition is also not with regard  to  the
verdict wherein the death sentence stands imposed, but the focus is  on  the
subsequent circumstances which are relied upon in support of  the  case  for
commutation.  Holding the present petition maintainable, we now  proceed  to
deal with the submissions regarding delay in disposal of Mercy Petition  and
the effect of solitary confinement as canvassed.  While dealing  with  delay
in execution of death sentence and the resultant effect, we must  note  that
the Mercy Petitions were forwarded by the Jail Authorities on the very  day,
enclosing all the relevant judgments pertaining to the matter.  The time  of
3 years  and  10  months  taken  in  disposal  of  the  Mercy  Petition  and
communicating  the  decision  thereon  is  purely  to  the  account  of  the
authorities and functionaries concerned.

8.    The question whether delay in execution of death  sentence  can  be  a
sufficient  ground  or  reason  for  substituting  such  sentence  by   life
imprisonment has engaged the attention of this Court over a period of  time.
 Some of those salient instances are:
(a)   In T.V. Vatheeswaran v.  State  of  Tamil  Nadu[2]   ,  in  an  appeal
arising from the Judgment of the High Court confirming the  death  sentence,
the fact that the appellant was awarded death sentence by  the  first  court
eight years earlier, was noted  by  this  Court.   After  referring  to  few
earlier cases, where  such  delay  during  the  pendency  of  the  appellate
proceedings was considered, it was observed:
"20. ............. In the United States of America  where  the  right  to  a
speedy trial is a constitutionally guaranteed right, the denial of a  speedy
trial has been held to entitle an accused person to  the  dismissal  of  the
indictment  or  the  vacation  of  the  sentence  (vide  Strunk  v.   United
States [1973] 37 L.Ed. 56). Analogy of American Law is not permissible,  but
interpreting our Constitution sui generis, as we are bound to  do,  we  find
no impediment in holding that the dehumanising factor of prolonged delay  in
the execution of a sentence of death has the constitutional  implication  of
depriving a person of his life in an unjust, unfair and unreasonable way  as
to offend the constitutional guarantee that no person shall be  deprived  of
his life or personal liberty except according to  procedure  established  by
law. The appropriate relief in such a case is  to  vacate  the  sentence  of
death.

21. ........ Making all reasonable allowance  for  the  time  necessary  for
appeal and consideration of reprieve, we  think  that  delay  exceeding  two
years in  the  execution  of  a  sentence  of  death  should  be  considered
sufficient  to  entitle  the  person  under  sentence  of  death  to  invoke
Article 21 and demand the quashing of the sentence of  death.  We  therefore
accept the special leave  petition,  allow  the  appeal  as  also  the  Writ
Petition and quash the sentence of death. In the place of  the  sentence  of
death, we substitute the sentence of imprisonment for life."

(b)         Sher Singh and others v. State of Punjab[3]  was  a  case  where
the death sentence already  stood  confirmed  by  dismissal  of  appeal  and
review petition therefrom by this Court.  Relying  on  the  observations  in
Vatheeswaran (supra), delay in execution was projected  as  a  ground  in  a
petition under Article 32 of the Constitution of India.   Though  the  Court
was broadly in agreement with observations in Vatheeswaran  (supra)  it  did
not agree with the statement to the effect ".... that  delay  exceeding  two
years in the execution of sentence of death should be considered  sufficient
to entitle the person under sentence to  death  to  invoke  Article  21  and
demand the questioning of the sentence of death."  However  in  the  context
of Mercy Petitions and exercise of  power  in  connection  thereto,  it  was
observed in para 23 as under:
"23.   We must take this opportunity  to  impress  upon  the  Government  of
India   and   the   State   Governments   that   petitions    filed    under
Articles 72 and 161 of the  Constitution  or  under  Sections 432 and 433 of
the Criminal Procedure Code must  be  disposed  of  expeditiously.  A  self-
imposed rule should be followed by  the  executive  authorities  rigorously,
that every such petition shall be disposed  of  within  a  period  of  three
months from the date on which it is received. Long and  interminable  delays
in the disposal of these petitions are a serious hurdle in the  dispensation
of justice and indeed, such delays tend  to  shake  the  confidence  of  the
people in the very system of justice. Several instances  can  be  cited,  to
which the record of this Court will bear testimony, in which  petitions  are
pending before the State Governments and the  Government  of  India  for  an
inexplicably long period. ...............  Undoubtedly,  the  executive  has
the power, in appropriate cases, to act under the aforesaid provisions  but,
if we may remind, all exercise of power is preconditioned by the duty to  be
fair and quick. Delay defeats justice."

(c)         The issue was settled by  the  Constitution  Bench  decision  in
Triveniben v. State of Gujarat[4], where it was concluded "No  fixed  period
of delay could be held to make the sentence of death inexecutable  .......".
 The scope  and  ambit  of  exercise  of  jurisdiction  in  such  cases  was
delineated thus in para 22:
"22.   ..........  the  only  jurisdiction  which  could  be  sought  to  be
exercised by a prisoner for infringement of his rights can be  to  challenge
the subsequent events after the final judicial verdict is pronounced and  it
is because of this that  on  the  ground  of  long  or  inordinate  delay  a
condemned  prisoner  could  approach  this  Court  and  that  is  what   has
consistently been held by this Court. But it will not be open to this  Court
in exercise of jurisdiction under Article 32 to go behind or to examine  the
final verdict reached by a competent court  convicting  and  sentencing  the
condemned prisoner and even while considering the circumstances in order  to
reach  a  conclusion  as  to  whether  the  inordinate  delay  coupled  with
subsequent circumstances could be held to be  sufficient  for  coming  to  a
conclusion that execution of the sentence of death  will  not  be  just  and
proper. The nature of the offence, circumstances in which  the  offence  was
committed will have to be taken  as  found  by  the  competent  court  while
finally passing the verdict. It may also be open to the court to examine  or
consider any circumstances after the final verdict was pronounced if  it  is
considered relevant. The question of  improvement  in  the  conduct  of  the
prisoner after the final verdict also cannot be  considered  for  coming  to
the conclusion whether the sentence could be altered on that ground also."

(d)   In Shatrughan Chauhan (supra) after considering law on  the  point  as
regards delay in execution of the death sentence and the  resultant  effect,
as also the scope and ambit of exercise of power, it was observed  in  paras
38, 41 and 42 as under:-
"38. In view of the above, we hold that undue long  delay  in  execution  of
sentence of death will entitle  the  condemned  prisoner  to  approach  this
Court  under  Article  32.  However,  this  Court  will  only  examine   the
circumstances surrounding the delay that has occurred and  those  that  have
ensued after sentence was finally confirmed by the  judicial  process.  This
Court cannot reopen the conclusion already  reached  but  may  consider  the
question of inordinate delay to decide whether  the  execution  of  sentence
should be carried out or should be altered into imprisonment for life.

41. It is clear that after the completion of the judicial  process,  if  the
convict files a mercy petition to the Governor/President,  it  is  incumbent
on the authorities to dispose of the  same  expeditiously.  Though  no  time
limit can be fixed for the Governor and the President, it  is  the  duty  of
the executive to expedite the matter at every stage, viz., calling  for  the
records, orders and documents filed in the court, preparation  of  the  note
for approval of the Minister concerned, and the  ultimate  decision  of  the
constitutional authorities. This court, in Triveniben (supra), further  held
that in doing so, if it is established that there  was  prolonged  delay  in
the  execution  of  death  sentence,  it  is  an  important   and   relevant
consideration for determining whether the sentence should be allowed  to  be
executed or not.

42. Accordingly, if there is undue,  unexplained  and  inordinate  delay  in
execution due to pendency of mercy petitions or the  executive  as  well  as
the constitutional authorities have failed  to  take  note  of/consider  the
relevant aspects, this Court is well within its powers under Article  32  to
hear the grievance of the convict and commute the death sentence  into  life
imprisonment on this ground alone however, only after  satisfying  that  the
delay was not caused at the  instance  of  the  accused  himself.   To  this
extent, the jurisprudence has developed in the light of  the  mandate  given
in  our  Constitution  as  well  as  various  Universal   Declarations   and
directions issued by the United Nations."

9.    In the light of the law laid down by this  Court,  the  facts  of  the
present case need to be considered.   The  death  sentence  awarded  by  the
trial  court  on  09.04.2007  attained  finality  on  16.03.2010  with   the
dismissal of appeals by this Court.  No further proceedings in the  form  of
review petition etc. were taken on behalf  of  the  petitioner.   His  Mercy
Petition preferred on 10.04.2010 i.e. within a  month  of  the  decision  of
this Court was forwarded the same day with all relevant documents so  as  to
enable the  concerned  functionaries  to  exercise  requisite  jurisdiction.
Though no time limit can be fixed within which the Mercy Petition  ought  to
be disposed of, in our considered view the period of 3 years and  10  months
to deal with such Mercy Petition  in  the  present  case  comes  within  the
expression "inordinate delay".  The delay is  not  to  the  account  of  the
petitioner or as a result of any proceedings initiated  by  him  or  on  his
behalf but is certainly to the account of the functionaries and  authorities
concerned.

10.   Furthermore, as submitted in the petition, the petitioner has all  the
while been in solitary confinement i.e. since the day he was  awarded  death
sentence.   While dealing with Section  30(2)  of  the  Prisons  Act,  1894,
which postulates segregation of a person 'under sentence of  death'  Krishna
Iyer J. in Sunil Batra v. Delhi Administration[5] observed :
"The crucial holding under Section 30(2) is that  a  person  is  not  'under
sentence of death', even if the sessions court has sentenced  him  to  death
subject to confirmation by the High Court. He  is  not  'under  sentence  of
death' even if the High Court imposes, by confirmation  or  fresh  appellate
infliction, death penalty, so long as an appeal  to  the  Supreme  Court  is
likely to be or has been moved  or  is  pending.  Even  if  this  Court  has
awarded capital sentence, Section 30 does not  cover  him  so  long  as  his
petition for mercy to the Governor and/or to the President permitted by  the
Constitution, Code and Prison Rules, has not been disposed. Of course,  once
rejected by the Governor and  the  President,  and  on  further  application
there is no stay of execution by the authorities, he is 'under  sentence  of
death', even if he goes on  making  further  mercy  petitions.  During  that
interregnum he attracts  the  custodial  segregation  specified  in  Section
30(2), subject to the ameliorative meaning assigned to the provision. To  be
'under sentence of death' means 'to be  under  a  finally  executable  death
sentence".

Speaking for the majority in the concurring Judgment D.A.  Desai  J.  stated
thus:
"The expression "prisoner under sentence of death" in the  context  of  Sub-
section (2) of Section 30 can only  mean  the  prisoner  whose  sentence  of
death  has  become  final,  conclusive  and  indefeasible  which  cannot  be
annulled or voided by any judicial or  constitutional  procedure.  In  other
words, it must be a sentence which the authority charged with  the  duty  to
execute and carry out must proceed to carry out  without  intervention  from
any outside authority ........"

      In the light of the enunciation of law by this Court,  the  petitioner
could never have been "segregated" till his Mercy Petition was disposed  of.
 It is only after such disposal that he could be said to be under a  finally
executable death sentence.  The law laid down by this Court was not  adhered
to at all while confining  the  petitioner  in  solitary  confinement  right
since the order of death sentence by the first court.  In our view, this  is
complete transgression of the right under Article  21  of  the  Constitution
causing incalculable harm to the petitioner.

10.   The combined effect of the  inordinate  delay  in  disposal  of  Mercy
Petition and the solitary  confinement  for  such  a  long  period,  in  our
considered view has caused deprivation of  the  most  cherished  right.    A
case is definitely made out under Article 32 of the  Constitution  of  India
and this Court deems it  proper  to  reach  out  and  grant  solace  to  the
petitioner for the ends of justice.  We,  therefore,  commute  the  sentence
and substitute the sentence of life imprisonment in place of death  sentence
awarded to the petitioner.  The writ petition thus stands allowed.

                                       .............................J.
                                       (Dipak Misra)

                                       .............................J.
                                       (Rohinton Fali Nariman)

                                       .............................J.
                                       (Uday Umesh Lalit)
New Delhi,
December 12, 2014
ITEM NO.1C               COURT NO.6               SECTION X
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                Writ Petition(s)(Criminal)  No(s).  128/2014

AJAY KUMAR PAL                                     Petitioner(s)

                                VERSUS

UNION OF INDIA AND ANR.                            Respondent(s)


Date : 12/12/2014      This petition was called on pronouncement of
            judgment today.

For Petitioner(s)      Mrs. Urmila Sirur, Adv. (AC)

For Respondent(s)      Mr. Ratan Kr. Choudhary, Adv.

                       Ms. Binu Tamta, Adv.
                       Ms. Sushma Suri, Adv.

      Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced  the  reportable
judgment of the Bench comprising Hon'ble Mr. Justice  Dipak  Misra,  Hon'ble
Mr. Justice Rohinton Fali Nariman and His Lordship.
      The appeal is allowed commuting  the  sentence  and  substituting  the
sentence of life imprisonment in place of  death  sentence  awarded  to  the
petitioner in terms of the signed reportable judgment.

      (R.NATARAJAN)                               (H.S. PARASHER)
       Court Master                                Court Master
            (Signed reportable judgment is placed on the file)

-----------------------
[1]    2014 (1) SCALE 437
[2]    (1983) 2 SCC 68
[3]     (1983) 2 SCC 344
[4]      (1989) 1 SCC 678
[5]    (1978) 4 SCC 494