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Purshottam Dashrath Borate vs Union Of India And Ors on 29 July, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.2607 OF 2019
WITH
CRIMINAL APPLICATION NO.314 OF 2019

Pradeep Yashwant Kokade
Aged about 30 years,
Presently incarcerated at Phansi Yard,
Yerwada Central Prison,
R/o. Gahunje, Taluka Maval,
Dist. Pune …Petitioner
Vs.
Union of India and Ors. …Respondents

ALONGWITH
WRIT PETITION NO.2609 OF 2019

Purshottam Dashrath Borate,
Aged about 37 years,
Presently incarcerated at Phansi Yard,
Yerwada Central Prison,
R/o. Gahunje, Taluka Maval,
Dist. Pune …Petitioner
Vs.
Union of India and Ors. …Respondents
—-
Dr. Yug Mohit Chaudhary a/w Ms. Raghini Ahuja, Ms.

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Payoshi Roy and Mr. Siddharth for the Petitioners.

Mr.Anil C. Singh, Additional Solicitor General a/w. Mr. H.
S. Venegavkar,x Additional Public Prosecutor, Mr. Aditya
Thakkar and Mr. T. V. Dhotre for Union of India.

Mr. A. A. Kumbhakoni, Advocate General a/w. Mrs. Aruna
Pai, APP for the State.
—-

CORAM : B. P. DHARMADHIKARI
MRS. SWAPNA S. JOSHI, JJ.

RESERVED ON: 25/06/2019
PRONOUNCED ON: 29/07/2019

JUDGMENT: (Per B. P. Dharmadhikari, J.)

. By these petitions under SectionArticle 226 of the

Constitution of India the petitioners -convicts pray for

declaration that the execution of sentence of death in

their respective cases is unconstitutional and bad in law,

the directions to commute the same into punishment of

imprisonment for life be issued and death warrants be

quashed and set aside. There is also challenge to orders

passed by Hon’ble the President of India and Hon’ble the

Governor of Maharashtra rejecting their mercy petitions.

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2. Before proceeding further it will be appropriate

to briefly mention the grounds of attack. It is submitted

that after judgment of Hon’ble Apex Court dated

8/5/2015, there is huge delay of 1507 days i.e. 4 years 1

month and 6 days till 24/6/2019 when death sentence

was to be executed. There is no application of mind by

Hon’ble the Governor and Hon’ble the President to their

respective mercy petitions. After the judgment of

Sessions Court dated 20/3/2012 sentencing them to

death, they have continued in solitary confinement and

they have thus undergone more than 8 years of solitary

confinement. This sentence inflicted upon them is in

violation of SectionArticle 21 of the Constitution of India. Lastly,

it is urged that issuance of death warrant ex-parte

without any opportunity to them is bad in law and

unsustainable.

3. Dr. Chaudhary appearing for the petitioners

state that the judgment of Sessions Court in Sessions

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Case No.284/2008 holding them guilty of offence under

section 302, 376(ii)(g), 364 and 404 read with 120-B of

SectionIPC was upheld by this Court on 25/9/2012 while

dismissing Criminal Appeal No.632/2012 filed by both

the petitioners in Confirmation Case No.1/2012. On

4/7/2013 Hon’ble Apex Court issued notices confined to

sentences in Criminal Appeal No.1439/2013. On

8/5/2015 said Criminal Appeal was dismissed therefore

after 8/5/2015, the sentence of death ought to have

been executed within 90 days. Time taken thereafter is

unconstitutional.

4. Petitioners were informed of dismissal of their

appeal by Hon. Apex Court on 27/6/2015 and thereafter

on 10/7/2015, they presented mercy petitions to the

Government of Maharashtra through Superintendent of

Yerwada Central Prison. On 16/7/2015 that prison

forwarded mercy petitions to the Principal Secretary of

Home Department of Maharashtra State and it was

without complete documents. On 25/1/2016 the Home

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Department finalized the process of application of mind

to mercy petitions and thus complete documents were

not on record. On 27/1/2016 the Yerwada prison

forwarded a copy of Sessions Court Judgment and other

documents to Home Department of Maharashtra

Government. On 1/2/2016 IG prison informed Chief

Secretary of Home Department accordingly. On 1/2/2016

Yerwada Central Prison sent a reminder to Talegaon

Police Station calling for information as per its letter

dated 24/6/2015. Ultimately, on 29/3/2016 Hon’ble the

Governor of Maharashtra rejected mercy petitions.

According to petitioners this order of rejection is

mechanically processed in as much as Hon’ble the

Governor has put his signature on note dated 25/1/2016

prepared by Department of State Government. At that

time the judgment of learned Sessions Court was not on

record. Other documents from Talegaon police were also

not received till 25.1.2016 or 1.2.2016 and the kind

attention of Hon. Governor was not drawn to these

lacunae.

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5. Mr. Chaudhary, learned counsel also pointed out

that on 24/6/2015 respondent No.4 Superintendent of

Jail had called for 5 important documents, but those

documents did not form record till 25/1/2016 when

Department of State Government finalized the note to

be submitted to office of Hon’ble the Governor.

Documents forwarded on 16/7/2015 along with mercy

petitions were different and then the operative order of

Session Court was forwarded. On 17/8/2015, exercise to

verify filing of review petition if any, was undertaken and

on 26/8/2015 Inspector General of Prison informed State

Government that no review petition was filed.

Respondent No.3 then informed Respondent No.2 that all

material prerequisite relevant for thorough consideration

of mercy petitions was already collected and forwarded.

Despite this, Respondent No.2 State Government

finalized the note on 25/1/2016 i.e. almost after 5

months. Petitioners submit that this delay was avoidable

has not been explained. After 25/1/2016 there is delay

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upto 29/3/2016 and that delay has not been explained

again.

6. On 1/2/2016 Respondent No.3 informed

Respondent No.2 that Respondent No.4-Jail forwarded

Sessions Court Judgment and other documents to Home

Department. However, before that on 25/1/2016 note

was already finalized by State Government.

Simultaneously, on 1/2/2016 itself Respondent No.4 sent

reminder in relation to its letter dated 24/6/2015 for

sending 5 documents. Thus, these documents were not

received before 1/2/2016 and even thereafter till

29/3/2016. Learned counsel adds that in these 5

documents short crime history in English was asked for

though crime summary was already submitted on

16/7/2015 and thus this shows non application of mind.

7. On 6/4/2016 State Government informed

Inspector General of Prison and Respondent No.4 Jail

about order of Hon’ble the Governor. On 6/4/2016, the

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Respondent No.2 also directed Respondent No.4 to

submit nominal roll, medical reports and criminal

antecedents etc. ie updated documents for presenting

the mercy petitions to Hon’ble the President. Petitioners

got intimation of orders of Hon’ble the Governor on

11/4/2016.

8. Respondent No.3 also sent a reminder on

13/4.2016 to Respondent No.4 about updated

documents called for vide letter dated 6/4/2016. On

11/4/2016 petitioners were informed about rejection of

their mercy petitions. Respondent No.4 asked Talegaon

Police Station about criminal antecedents of petitioners

on 12/4/2016. According to petitioners this information

should have been collected before Hon’ble the Governor

decided mercy petitions. On 13/4/2016 respondent No.3

forwarded a reminder to Respondent No.4 demanding

updated documents. Reply sent by Talegaon police that

petitioners have no criminal antecedents was received

by respondent No.4 on 16/4/2016 and then Respondent

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No.4 sent the same to Respondent No.2.

9. On 28/4/2016 respondent No.2 forwarded mercy

petitions of petitioners to Hon’ble the President along

with judgment of Sessions Court, High Court and Hon’ble

Supreme Court with order of Hon’ble the Governor

rejecting mercy petitions. As per contention of

petitioners updated information received on 16/4/2016

was not sent by Respondent No.2 to Respondent No.1.

According to the petitioners all these developments are

instances of avoidable delay and benefit thereof must

inure to them.

10. On 31/5/2016 respondent No.1-Central

Government requested Respondent No.2 to supply past

criminal history, details of economic condition of family

of petitioners and inform whether they had filed/ have

filed any review petitions. This information was

demanded within 2 weeks. Again, according to

Petitioners it is an illustration of non application of mind

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because information (regarding the criminal antecedents

or part of the judgment) was already received on

16/4/2016 by respondent No.2.

11. On 11/6/2016 mother of Petitioner submitted

mercy petitions to Hon’ble the President of India. It was

pointed out that petitioner had traumatic and violent

childhood as their father happened to be alcoholic and

abusive. One of the petitioners was then 19 years of age

at the time of offence and there were no criminal

antecedents. After conviction, he was taking education

and trying to reform himself in prison. His mother

pointed out extreme abuses and ostracization of his

family after the offence.

12. On 15/6/2016 Respondent No.1 Union of India

sent its reminder to Respondent No.2 in relation to

documents/data demanded on 31/5/2016 and sought

compliance urgently. Mr. Chaudhary, learned counsel

submits that sending of reminder itself shows avoidable

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delay. He also pointed out that non filing of review

petition was on record since 26/8/2015 and the note

submitted by Respondent No.2 to Hon’ble the Governor

on 25/1/2016 also pointed out that no review petition

was filed. Thus, time was being spent unnecessarily

without verifying the records. On 22/7/2016 Respondent

No.1 forwarded 2nd reminder. On 9/8/2016, the

Respondent No.2 wrote to Respondent Nos.3 and 4

seeking information demanded by Respondent No.1.

This communication therefore shows non application of

mind even by Respondent No.2 as necessary data was

already with it. On 9/9/2016 Respondent No.4 sent a

letter and informed Respondent No.2 that no review

petition was filed by petitioners. On 17/9/2016

Respondent No.2 sent letter to Talegaon Police Station

inquiring about criminal antecedents though about 5

months back (on 16/4/2016) this information was

already given. On 20/9/2016 Talegaon Police Station

informed Respondent No.2 about antecedents of the

petitioners again. On 30/9/2016 Respondent No.2

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forwarded the information received to Respondent No.1

about criminal antecedents, economic status of family

and on review petition. Thus, from 31/5/2016 period of

about 4 months was taken in collecting data which was

already on record. On 26/12/2016 Respondent No.1

asked respondent No.2 to clarify whether Petitioners had

filed any SLP/Review petition. According to petitioners

this communication ignores intimation supplied on

30/9/2016 by Respondent No.2 and demonstrates non

application of mind by respondent No.1. It added to

avoidable delay plight of the petitioners.

13. On 16/1/2017 Respondent No.2 asked

Respondent No.4 to furnish details regarding the

Petitioners Review Petition though the same was already

supplied. On 22/2/2017 Respondent No.2 informed

Respondent No.1 that no Review/SLP was pending and

petitioners disclosed that they had decided to file

Curative/SLP petition after the decision of Hon’ble the

President. Because of this treatment and anxiety one of

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the petitioners developed chest pain and he was

admitted in prison hospital for few days. On 4/5/2017

Respondent No.1 Union of India sent its recommendation

to office of Hon’ble the President. Though Respondent

No.1 had all details, it took almost 7 months even after

10/10/2016 for forwarding the same and learned counsel

Shri Chaudhary submits that there is no explanation for

this delay. On 26/5/2017, Hon’ble the President rejected

mercy petitions of petitioners and its knowledge was

received by the petitioners more than three weeks

thereafter. Respondent No.1 sent a letter to Respondent

No.2 in this respect on 6/6/2017 and on 19/6/2017,

petitioners were served with said intimation.

14. Mr.Chaudhary, learned counsel thereafter

pointed out delay in carrying out further process towards

actual execution from 19/6/2017 till 27/12/2018.

Respondent No.4 forwarded on 19.06.2017 a letter to

Sessions Court pointing out rejection of mercy petitions

and requested that Court to pass necessary orders on

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death sentence. Mr. Chaudhary, Learned counsel

submits that no application seeking any judicial orders

was filed by Respondent Nos.2 to 4 before the Sessions

Court and sending letters or reminders on administrative

side has no sanctity in law. Application under Sectionsection

413 of Cr.P.C. ought to have been moved by

Respondents. He relies upon Sectionsection 413 and Section414 of

Cr.P.C. for this purpose. Our attention is invited to Rule

18 of Chapter XLII of Maharashtra Prison Manual which

requires State Government to take steps for fixing date

of execution.

15. We may here mention that after the argument

of parties, learned counsel for the petitioners has placed

on record a comprehensive chart incorporating the dates

and steps taken by Respondents. As the document came

on record as part of arguments, we inquired from

learned Advocate General and learned Additional

Solicitor General about correctness of facts mentioned

therein. Both of them accepted that they have received

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this chart and dates mentioned therein are correct.

However, while going through the matter, we found that

in it, from Sr. No.46 onwards there is reference to

correspondence between advocate of petitioners and jail

authorities with grievance that the said Advocate did not

receive requisite co-operation as also documents and

other details. As while arguing, our attention was not

invited to this aspect of matter the respondents also

did not counter it, we are not taking it into account.

16. On 30/10/2018 Respondent No.2 State

Government asked its Law and Judiciary Department

whether the date of execution should be fixed. On

12/11/2018 Law and Judiciary Department advised

Respondent No.2 and pointed out that it was for the

Sessions Court to issue further orders on execution.

Petitioners state that this advise does not consider

above mentioned Rule 18 of Maharashtra Prison Manual.

The Sessions Court at Pune ultimately issued death

warrant on 10/4/2019 scheduling the petitioners’

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execution on 24/6/2019. Petitioners were not given any

notice of this proceeding or of date scheduled, before

Sessions Court issued the warrant. According to learned

counsel, ex-parte proceedings are unconstitutional as

observed in the case of PUDR Vs. Union of India

reported at 2015 Cri. L.J. 4141 by Allahabad High

Court confirmed by Hon’ble Apex Court in the case of

Shabnam Vs. Union of India and Others reported

at (2015) 6 SCC 702. The execution warrant was

served upon the petitioners on 17/4/2019. Petitioners

thereafter filed present petitions on or about 2/5/2019.

Petitions were placed before the Court for orders on

6/6/2019 after summer vacation when notice was issued

and made returnable on 14/6/2019.

17. Mr. Chaudhary, learned counsel urges that thus

there are several instances of avoidable delay, non

application of mind and resultant solitary confinement

suffered by the petitioners render the execution of death

sentence itself unconstitutional as it is in violation of

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SectionArticle 21 of the Constitution of India. Moreover the

process of issuing execution warrant ex-parte and fixing

date 24/6/2019 therefor is also unconstitutional. He has

relied upon some precedents to substantiate his

arguments. We will look into those judgments at

appropriate stage.

18. Mr.Kumbhakoni, learned Advocate General with

Mrs. Pai has opposed the petitions on behalf of

Respondent Nos.2, 3 and 4. He relies upon the reply

affidavit on behalf of Yerwada Central Prison sworn by

Superintendent Umaji Pawar to urge that the petitioners

were not in solitary confinement and there is nothing like

Fansi Yard in Yerwada Central Prison. The prisoners not

on death roll, are also kept in high security yard where

petitioners were kept. He explains that ‘Fansi Yard’ is

antiquated and colonial description of this security yard.

He has also invited our attention to description of said

security yard in paragraph Nos.28 and 29 of affidavit to

show that the rooms therein are always occupied by

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more than one prisoner and solitary confinement is not

possible therein. Prisoners mix with each other, can play

in courtyard and interact with each other either in

courtyard or in corridor or varanda in front of their

rooms. He submits that claim of petitioners that after

judgment of Sessions Court, they are undergoing solitary

confinement is factually incorrect. Without prejudice to

this factual aspect, he contends that even in law, in

present facts solitary confinement by itself is not

sufficient to commute death penalty. He has shown to

Court photographs and copies of certain registers to

support above contention.

19. On procedure to be followed by executing

Court for issuing execution warrant, he submits that

Sessions Court was moved on very same day on which

the Superintendent received knowledge of rejection of

mercy petitions by Hon’ble the President. Thus,

Respondent No.4 took necessary steps on 19/6/2017

itself and requested the Sessions Court to proceed

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further in the matter of hanging of petitioners. Time of 2

years taken thereafter by the Sessions Court cannot be

therefore used against the Respondents. He attempts to

distinguish judgment of Hon’ble Apex Court in Shabnam

Vs. Union of India (supra) and press into service judgment in

Yakub Abdul Razak Memon Vs. State of Maharashtra reported at

(2015) 9 SCC 552. Our attention is also invited to judgment

in Review Petition No.591/Section2014 Jagdish vs. State of

Madhya Pradesh decided by Hon. three Judges Bench of

the Apex Court to show issue of the delay has been

appreciated relief came to be granted only on account

of unexplained delay of exceeding 4 years by the State

of Madhya Pradesh. Taking point of delay and alleged

non application of mind, he relies upon the judgment in

Bikas Chatterjee Vs. Union of India and Ors reported at

(2004) 7 SCC page 634 to submit that there is always a

presumption of application of mind by High

Constitutional Authorities like Hon’ble the Governor,

Hon’ble the President of India. He relies upon

observation in paragraph No.10 and 13 therein. He

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submits that after the two very High Constitutional

Authorities reject mercy petitions, scope of interference

at the hands of this Court in the matter is extremely

narrow. The petitioners were informed of rejection of

their appeal by Hon’ble Apex Court on 29/5/2015 itself

and still they have filed their mercy petitions on

10/7/2015. The procedure prescribed expected them to

tender mercy petitions within 7 days. He has also relied

upon the judgment in Shatrughan Chauhan Anr. Vs. Union of

India and Ors. reported at (2014) 3 SCC 1. This is the judgment

on which petitioners have also placed heavy reliance. He

submits that this judgment shows that when delay

is/was avoidable, extraordinary or unexplained, then

only Court of Law can interfere not otherwise. He

pointed out that in the present matter there is no delay

either by office of the Hon’ble Governor or by the office

of Hon’ble the President. Respondent Nos.1 and 2 have

attempted to place uptodate material for consideration

of these authorities, and as such efforts made by them

for that purpose or then reminders sent cannot be

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sighted as instances of delay. He also argued that

consideration of mercy petitions cannot be dissected

into stages as attempted by the Petitioners. After mercy

petitions are received, application of mind begins and

relevant data looked into is also requsitioned. There is

no question of any preparatory stage and stage of

hearing or consideration thereafter. Various dates

mentioned on record show continuous application of

mind and hence it cannot be said that there is undue or

extraordinary delay. He has also invited our attention to

observation in the judgment of Hon’ble Apex Court to

show how previous mercy petitions remained pending

for over 4-5 years. He states that in present situation

decision on mercy petitions by office of Hon’ble the

Governor and thereafter by Hon’ble the President after

their respective offices received the same cannot be said

as unduly delayed. It is within reasonable time.

20. Dealing with contention that even after orders

of Hon’ble the President there is delay in actual

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execution, he invited our attention to the fact that on

19/6/2017 itself deponent Shri Pawar sent necessary

communication to District and Sessions Court at Pune

and pointed out all relevant facts and sought necessary

further orders on death sentence. He submits that thus

after writing this letter, time taken by Sessions Court

and fixing of 24/6/2019 as the date for execution of

death sentence are not the events controlled by

Respondent No.1 and therefore there is no delay. He

submits that it is not necessary to point out date-wise

correspondence in this respect and last reminder issued

on 27/12/2018 which contains reference to all previous

correspondence speaks for itself.

21. He adds that thus respondent nos. 2, 3 and 4

have taken required steps and complied with the

communication received from respondent no. 1. The

period after 19/6/2017 therefore, cannot be used by the

petitioners at all.

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22. While dealing with the contention that while

deciding the mercy petitions, there has been inordinate

delay, learned Advocate General states that the period

required to collect material cannot be viewed in

isolation. The function is to be discharged in terms of

Constitution by highest Constitutional Authorities and

the data required therefore, must be updated and

resent. The justification or explanation for the time

taken by the Constitutional Authorities therefore, cannot

be strictly subjected to judicial review. To drive home the

submission, support is also taken from Sectionarticle 74(2) and

Sectionarticle 163(3) of Constitution of India.

23. The delay as alleged does not exist in the present

matters. The test to be applied is whether the period

taken by the high constitutional authorities is extra-

ordinary, there is no explanation whatsoever for it and

whether the delays were avoidable. All three factors

must be cumulatively applied and then steps taken by

these Authorities and their offices need to be

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considered.

24. Our attention is invited to affidavit of Mr. Narayan

Karad, Deputy Secretary, Home Department to urge that

the judgment of Sessions Court convicting the

petitioners forwarded by Superintendent of Yerawada

Central Prison was not an essential requirement since

the evidence on record was not only referred to in detail

but also thoroughly discussed by other equally important

constitutional functionary like High Court. The Judgment

of the High Court and the judgment of the Sessions

Court are further confirmed by the Hon’ble Apex Court.

Hence, there was no lapse in not placing the judgment

of Sessions Court before the Hon’ble Governor and the

objection raised by the petitioners is too technical. The

Judgment of Hon’ble Apex Court in Shatrughan Chavan

(supra), paragraphs 55 and 57 are relied upon to show

that the courts of law have while selecting the

punishment and upholding the death penalty already

looked into the interest of the victim. Hence, the

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contention that the individual facts are not considered

by the office of the Hon’ble Governor or the office of the

Hon’ble President, while rejecting the mercy petitions is

erroneous and misconceived.

25. Our attention is invited to the fact that the criminal

antecedents, financial position of family of accused

persons have been verified from time to time. Not only

this, before taking the decision, up-to-date position

about filing of any review petition has also been seen.

26. Learned Advocate General submits that the highest

constitutional authorities have discharged the functions

in accordance with the constitutional mandate and there

is no scope for its review.

27. Learned Additional Solicitor General Mr. Singh in

addition to the arguments of learned Advocate General

submits that the time taken by the office of the Hon’ble

President in the present matters is about 1 year and 9

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days. He states that when this period is compared with

the time taken in other similar matters, it cannot be

seen as exorbitant or unreasonable. Respondent no. 1

has received mercy petition on 18/5/2016 and the

Hon’ble President has taken the decision upon it on

26/5/2017. The decision was communicated to the State

Government on 6/6/2017. After receipt, the process of

application of mind began and updated information was

demanded from respondent no. 2. He further states that

the judgments delivered by the Hon’ble Apex Court,

High Court and Sessions Court were made available for

the use by the Hon’ble President. Again judgment in

Shatrughan Chauhan (supra) para 20 has been relied

upon.

28. Because of reference by the learned ASG to the

notings dated 15/11/2016 and 22/12/2016 and mention

of four dates and documents dated 03/03/2017,

29/03/2017, 29/03/2017 and 02/05/2017 this Court was

required to adjourn the hearing on 21/6/2019 to

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25/6/2019. This has been done by a speaking order and

the execution of both the petitioners then scheduled on

24/06/2019 came to be suspended until further orders

of the court in the matter. Hearing thereafter resumed

again on 25/6/2019. On that day, reply affidavit

tendered by ASG in relation to the above mentioned

dates was taken on record. An immunity was also

claimed in relation to the notings dated 15/11/2016 and

22/12/2016 urging that the documents termed as

“Recommendation” are the documents that constitutes

the aid and advice of the Council of Ministers to the

Hon’ble President of India.

29. After hearing resumed, learned Advocate General

briefly addressed the Court and submitted that the

judgment of the Sessions Court was very much forming

part of record when the Hon’ble President applied mind.

He further states that in so far as the office of the

Governor is concerned, a note was prepared by the

State Government on 25/01/2016 and on 27/01/2016

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respondent no. 4 Superintendent sent copy of the

Sessions Court Judgment. The order rejecting the mercy

petition was passed by the Governor thereafter on

27/03/2016. He submits that the judgment of the

Sessions Court therefore was looked into by the office of

the Hon’ble Governor. However, upon court question,

he fairly stated that there is no record with respondent

no. 2 to demonstrate that the said judgment of the

Sessions Court was forwarded to Hon’ble Governor after

27/1/2016.

30. In connected matter i.e. Writ Petition No. 2607 of

2019, an affidavit has been filed by Shri Karad that the

additional documents received thereafter have been

looked into.

31. He relies upon the judgment of the Hon’ble Apex

Court reported at Kehar Singh Vs. Union of India reported

at (1989) 1 SCC 204 to show that the procedure to be

followed while deciding the mercy petition is in the

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domain of the Hon’ble President or the Hon’ble Governor

and hence, in the present facts no case for intervention

is made out. He points out that in the case of Keharsing

(supra), the Hon’ble President did not go through the

merits of the matter and hence, Hon’ble Apex Court took

a particular view.

32. In reply, Advocate Chaudhary submits that by not

making available the judgment of Sessions Court to the

Hon’ble Governor, respondent no. 2 has prohibited him

from looking into the relevant material. As such, Hon’ble

Governor did not get the opportunity to look into the

material which could have prompted him to take a

particular view. This itself is sufficient to vitiate the

consideration of mercy petition.

33. He submits that the jurisdiction to be exercised in

the mercy petition by the Hon’ble Governor or the

Hon’ble President is distinct and the high constitutional

authorities could arrive at different finding of facts. The

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finding of facts recorded and maintained by the courts of

law or then punishment or its choice are therefore, not

determinative and all relevant material must be placed

before these authorities. He contends that the judgment

of the High Court and Sessions Court did not point out

role of petitioners at all and as per guidelines which

regulate exercise of jurisdiction, it is incumbent upon the

office of the Governor to find out that role. He relies

upon paragraph 103 and 104 in judgment in the case

of Shatrughan Chauhan (supra).

34. He further submits that though the respondents

claim that rejection of appeal before the Apex Court

was communicated to respective petitioners on

27/6/2015, there is no material on record to show that

they were informed about their right to file mercy

petition on that date. In the petition respective petitioner

has stated that they got the legal aid demanded by

them in July, 2015 and thereafter mercy petitions were

filed as per paragraph 241.2 in the judgment in the case

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of Shatrughan Chauhan (supra). It is the duty of the

State Government to provide legal assistance.

35. Affidavit tendered by the petitioner Pradip is relied

upon by him to show that the economic condition of the

petitioner was well within the knowledge of Central

Government as the communication dated 30/9/2016

containing it sent by the State Government was received

by the Ministry of Home Affairs of the Respondent no.1

on 10/10/2016. He reiterates that in this situation

observations in paragraph 65 of the judgment in

Shatrughan Chavan (supra) are squarely attracted and

by demanding unnecessary information, time was killed

thereby unconstitutionally inflicting additional

incarceration on both the petitioners. He invites

attention to the guideline to argue that whenever mercy

petition remains pending for more than three months,

rebuttable presumption of avoidable delay arises.

36. Pointing out the communication dated 19/6/2017

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sent by the Superintendent of Jail, Mr. Chaudhary relies

upon paragraph 16 of the judgment of Division Bench of

this Court dated 21/07/2009 in the case of Mr. Saeed

Sohail Shaikh Vs. The State of Maharashtra Ors.

In Criminal Writ Petition No. 1377 of 2008

deprecating the practice of writing letters. He also

draws support from the judgment in the case of State

of Mahartasthra and Ors. Vs. Saeed Sohail Sheikh

and Ors. reported at (2012) 13 SCC 192 paragraphs

22, 25, 26 and 35.

37. Learned counsel adds that the petitioners have

unequivocally informed that they were waiting for the

decisions on their mercy petitions and were to consider

filing of writ petition thereafter. The undue verification

again and again in the matter therefore, has added to

unconstitutional detention or imprisonment.

38. He submits that in the letter dated 19/06/2017 and

reminders sent thereafter, the State Government did not

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communicate to the Sessions Court the desire of the

petitioners to file writ petition. Their desire in second

mercy petition to file review was also not communicated

to Sessions Court. Paragraph 242.11 in the case of

Shatrughan Chauhan (supra) upholds the right of the

petitioners to other remedies and had the petitioners

been given opportunity of hearing, they could have

requested the Sessions Court accordingly and also could

have sought necessary documents and guidance. The

process of issuing death warrant exparte has therefore,

caused serious prejudice to them.

39. To demonstrate how the consideration of

interest of victim is irrelevant, he relies upon paragraph

57, 60 and 64 in the case of Shatrughan Chavan

(supra). He submits that there the Hon’ble Apex Court

has considered the case of victim also and still given

relief to all convicts.

40. Issuance of exparte death warrant must result in

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commutation as held by the Division Bench of Allahabad

High Court in the judgment in the case of Peoples

Union Democratic Rights Vs. Union of India and

Ors. reported at 2015 Cri.L.J. 4141 by Allahabad

High Court.

41. The conclusions reached in the judgment of

Division Bench of Rajasthan High Court in the case of

Sawai Singh Vs. State of Rajasthan reported at

(1988) 1 WLN 649 are also relied upon to buttress the

contention that all four grounds raised by the petitioners

need to be appreciated and their impact jointly and

severally must be evaluated.

42. Lastly it is pointed out that the material on record

does not show that correct age of the petitioner Pradip

was put before the Hon’ble President. His correct age

was 19 years on the date of commission of the offence

and as such look into the wrong age by the Authorities,

has resulted in vitiating the orders refusing the mercy

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petition. He adds that Hon’ble Governor as also Hon’ble

President have refused to exercise jurisdiction only

because the conviction and sentence was maintained by

the Hon’ble Apex Court. He draws attention to relevant

pages in writ petition for this purpose.

43. Learned Advocate General at the end adds that the

Hon’ble Apex Court has devoted almost 5 pages of its

judgment to justify the punishment of death in the

present matter. Hence, even if there be some delay, the

same needs to be balanced and interest of society at

large cannot be allowed to be undermined.

44. Perusal of the Maharashtra Prison Manual is

necessary to understand the legal provisions which

regulate confinement of such convicts in prison and also

their execution. Chapter XXVII in the Prison manual is

about punishment and it contains Maharashtra Prison

(Punishment) Rules, 1963 made under clause 3, 4, 28 of

Sectionsection 59 read with section 6 and 7 of Section 46 of the

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Prisons Act, 1894. This chapter deals with the

punishment to be inflicted on the prisoner through

separate confinement for not more than fourteen days

and cellular confinement for not more than seven days

has to be under the heading minor punishment under

rule 5(a). Rule 15 deals with the discipline in cells and

as per rule 15(ii), strict silence is to be maintained

among all the prisoners in confinement there. As per

rule 20, a prisoner in separate confinement shall not be

out of sight of other prisoners and he has to be given

one hour per day for exercise and to have his meals in

association with one or more other prisoners. Section II

of chapter XXVII contains non-statutory rules. There

while pointing out uses to which cell may be put, vide

clause (f) it is stipulated that this can be used for

confinement of prisoners condemned to death.

45. Chapter XXIX is on petitions and appeals of

prisoners. Section (1) therein contain statutory rules.

As per rule 11 (I) the Superintendent of Jail has to at

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once repeat back to the State Government by

telegrams communicating orders regarding petitions of

mercy by way of acknowledgment of their receipt. All

such acknowledgments where sent by telegram or by

express letters are to be addressed to Secretary to

Government in Home Department. Sub rule (iii)

mandates insertion of words “death sentence” before

addressing any telegram and express letters relating to

capital sentence.

46. Chapter XXII in the Prison Manual is on prisoners

sentenced to death. Section (1) therein contains

statutory rules. These rules are called as Maharashtra

Prisons (Prisoners sentenced to death) Rules, 1971. As

per rule 5, every convict from the date of his elevation

to prison has to be confined in the cell in physical yard

apart from all other prisoners as required by Sectionsection 30

of the Prisons Act, 1894. As per rule 18, the date of

execution of the convict is to be fixed by the State

Government if mercy petition is rejected. As per rule 21

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in case the convict is physically unfit to receive the

punishment, execution cannot be carried out. Rule 22 is

on subject of delay in capital sentence. This rule 22

reads as under :

“Should any extraordinary or unavoidable delay

occur in carrying out a capital sentence into

execution from any cause other than the

submission of an appeal or application, the

Superintendent shall immediately report the

circumstances to the Sessions Judge and return

the original warrant either for the issue of a

fresh warrant, or for an endorsement upon the

same warrant, of an order containing a definite

date for carrying the postponed sentence into

effect.”

47. Section (2) contain non-statutory rules. As per

rule (4) therein if the mercy petition is forwarded to the

Secretary to Government in Home Department and no

reply is received within 15 days of its despatch, the

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concerned Superintendent of Jail has to telegraph to

the Secretary drawing his attention to the said fact.

However, in no case he can carry out the execution

before receipt of reply from the State Government. Non-

statutory rule (7) stipulates that where mere act of

moving the prisoner from his bed in hospital and

placing him in an erect position on the scaffold .might

in itself be sufficient to cause death, execution of death

sentence shall be postponed on medical grounds.

48. Though respective counsel have invited our

attention to various judgments, we find that the

judgment of Hon’ble Apex Court in the case of

Shatrughan Chavan (supra) contains necessary law on

the subject. We may also point out that the Hon’ble

three Judges of Apex court while deciding Criminal

Appeal No. 804 of 2019 on 24/4/2019 have reiterated

this position. Attention can also be invited to the

judgment dated 21/2/2019 delivered by Hon’ble three

Judges of Apex Court in the case of Jagdish Vs. State

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of Madhya Pradesh in Review Petition No. 591 of

2014.

49. In Review Petition No. 591 of 2014, Jagdish Vs.

State of M.P., the mercy petition was filed on 13/10/2009

and it was rejected by the President of India on

16/7/2014. Because of this long period, petitioners

requested for commutation of death sentence to life

imprisonment. They also sought review of the judgment

of the Hon’ble Apex Court dated 18/09/2009 upholding

the judgment of the trial court and the judgment of High

Court.

50. Hon’ble Apex Court has from paragraph 5 onwards

considered the issue of delay in dealing with the mercy

petition. The judgment of constitution Bench in V.

Sriharan @ Murugan Vs. Union of India reported at (2014) 4

SCC 242 and other judgment in case of Ajaykumar Pal Vs.

Union of India and another reported at 2015 (2) SCC 478 are

considered. Hon’ble Apex Court found that the

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applicants before it filed mercy petition addressed to

the President of India and the Governor of M.P. through

jail authorities on 13/10/2009. This application was

forwarded by the State of M.P. to Ministry of Home

Affairs on 15/10/2013 i.e. after more than 4 years. The

Ministry of Home Affairs called for some records from the

State of M.P. on 20/11/2013 which were supplied on

12/12/2013. The file was then forwarded to Hon’ble

President of India on 02/04/2014. It was returned to

Ministry of Home Affairs for reconsideration and

resubmitted to the President of India on 07/07/2014.

Finally the mercy petition was rejected on 16/7/2014,

Hon’ble Apex Court in Paragraph 8 finds that in so far as

Government of India or the Secretariat of the President

of India is concerned, there was no delay and the mercy

petition was dealt with expeditiously. However, State of

M.P. gave no explanation for the delay of more than 4

years in forwarding the mercy petition. This delay was

unexplained as Madhya Pradesh Government did not file

any counter affidavit in that respect. Hon’ble Apex Court

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therefore, found the delay unacceptable and in

paragraph 12 found that it was not a fit case where the

death sentence should be executed and accordingly

commuted it to that of life. However, as six innocent

lives were lost and the crime was brutal, Hon’ble Apex

Court directed that life imprisonment would run for the

entire remaining life of the petitioner and he shall not be

released till his death.

51. In Criminal Appeal No.804 of 2019 (Union of

India and Ors. Vs. Dharam Pal) decided on

24/4/2019, the High Court had commuted the death

sentence to life imprisonment and appeal before the

Hon’ble Apex Court was preferred by Union of India

against it. Respondent Dharmpal was in relation to

earlier incident convicted under Sectionsection 376/Section452 IPC

and sentenced to rigorous imprisonment for ten years.

As the appeal against it was admitted by the High

Court, he was released on bail. While on bail, on

10/6/1993 at about 3.30 at morning, Dharampal and his

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brother murdered 5 persons who happen to be family

members of prosecutrix in earlier matter.

52. In the trial for these murders, Sessions Court

sentenced both the brothers to death on 5/5/1997. High

Court confirmed it on 29/9/1998. Accused then

approached Hon’ble Apex Court and Hon’ble Apex Court

commuted brother’s death sentence into one for life

imprisonment and maintained death sentence of

respondent Dharampal. This judgment of the Hon’ble

Apex Court is dated 18/3/1999.

53. Respondent Dharampal then sent mercy petition

before the Governor of State of Haryana which came to

be rejected and on 2/11/1999 he sought pardon from the

President of India. President of India rejected the same

on 25/3/2013. Thus there was delay of about 13 years

and 5 months in it. In the meanwhile Dharmpal’s

appeal in the High Court challenging his conviction

under Sectionsection 376/Section452 IPC was allowed and he was

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acquitted on 19/11/2003. Dharampal then approached

the High Court for commuting his death sentence

pointing out the changed circumstances. High Court

found that the fundamental right of Dharampal was

violated and hence, commuted his death sentence to

life imprisonment.

54. The findings of Hon’ble Apex Court in Paragraph 8

show that Dharampal remained in solitary confinement

for a period of 18 years and had undergone

imprisonment for a total period of more than 25 years.

Hon’ble Apex Court also found that his acquittal by High

Court on 19/11/2003 was not brought to the notice of

the President while deciding the mercy petition. Hon’ble

Apex Court found in paragraph 11 that out of total

period of 25 years spent in jail, for about 18 years, he

was in solitary confinement and such confinement prior

to disposal of the mercy petition was per se illegal and

it amounted to separate and additional punishment not

authorized by law. Hon’ble Apex Court pointed out

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Sectionsection 30 of the Prisons Act, 1894 and paragraph 89 to

91 and 110 to 113 of its constitution bench judgment in

the case of Sunil Batra Vs. Delhi Administration

(1978) 4 SCC 494. The words “Prisoners under the

sentence of death” employed under Sectionsection 30(1) have

been interpreted in the later judgment. Hon’ble Apex

Court found that till mercy petition before the Governor

or the President is rejected, such convict cannot be said

to be “under the sentence of death”. It also points out

the judgment in the case of Shatrughna Chavan Vs.

Union of India mentioned supra. This judgment takes a

note of the Constitution Bench Judgment in the case of

Sunil Batra (supra) and then in Triveniben Vs. State

of Gujarat, 1989 (1) SCC 678. In Triveniben’s case,

Hon’ble Apex Court finds that the solitary confinement

is contrary to law laid down in Sunil Batra Vs. Delhi

Administration (supra) and amounts to inflicting

additional and separate punishment not authorized by

law.

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55. In paragraph 13 in this judgment, challenge to

unexplained and inordinate delay in disposing of the

mercy petition by the President has been looked into.

The important observations contained in paragraph 19,

45, 47, 48, 49, 244 and 245 in Shatrughna Chauhan’s

case (supra) are reproduced and in paragraph 14,

Hon’ble Larger Bench found that the delay coupled with

the non-submission of fact of acquittal of Dharampal

before the President necessitated commuting the death

sentence into life imprisonment. It held that on receipt

of mercy petition, the department concerned has to call

for all records and material connected with the

conviction and the judgments of the courts as well as

other relevant material needed to be placed before the

Hon’ble President. Hon’ble Apex Court found that while

commuting death sentence of brother of Dharampal to

life imprisonment and upholding death sentence of

Dharampal on 18/3/1999, it had looked into conviction of

Dharampal in rape case by the Sessions Court in

Sessions Case No. 11 of 1991. Hon’ble Apex Court

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therefore, considering the facts and circumstances,

upheld the order of High Court commuting the death

penalty of the respondent to life imprisonment and in

the circumstances before it, directed his release after

completion of 35 years of actual imprisonment including

the period already undergone by him. In the light of

these judgments, we find that the consideration of

length of all other judgments cited by the respective

counsel before us is not necessary.

56. Coming back to the judgment of Hon’ble Apex

Court in Shatgughan Chauhan (supra), it can be seen

that this judgment considers delay, insanity, solitary

confinement, judgments declared per incuriuam and

the procedural lapses as the supervening circumstances.

Hon’ble Apex court discussed them distinctively to

arrive at the conclusion whether the circumstances

exclusively or together warrant the commutation of

death sentence into life imprisonment. Delay is

supervening circumstances as discussed in paragraphs

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30 to 78 of this judgment. In Paragraph 31, the Hon’ble

Apex Court points out that the petition rejected by the

Government is then preferred before Hon’ble

President as mercy petition. The mercy petition received

by the President’s office is then forwarded to Ministry of

Home Affairs. Such mercy petition consisted of one or

two pages giving grounds for mercy. The other

documents like copy of judgments of the trial court,

High Court and the Supreme Court are then requested

from the State Government. The documents giving

details of the decision taken by the Governor under

SectionArticle 161, copy of records of the case, nominal role of

the convict, his health status and relied documents are

gathered by the Ministry of Home Affairs. In Paragraph

55, Hon’ble Apex Court observes that though guidelines

to define the contours of power under Articles 72/161

cannot be laid down in the form of a circular, the Union

Government has set out certain norms which are as

under :

“55.1 Personality of the accused (such as age,

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sex or mental deficiency) or circumstances of the

case (such as provocation or similar

justification);

55.2 Cases in which the appellate Court

expressed doubt as to the reliability of evidence

but has nevertheless decided on conviction;

55.3 Cases where it is alleged that fresh

evidence is obtainable mainly with a view to see

whether fresh enquiry is justified;

55.4 Where the High Court on appeal reversed

acquittal or on an appeal enhanced the

sentence;

55.5 Is there any difference of opinion in the

Bench of High Court Judges necessitating

reference to a larger Bench;

55.6 Consideration of evidence in fixation of

responsibility in gang murder case;

55.7 Long delays in investigation and trial etc.”

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57. In Paragraph 34, the contention of convict that he

is entitled to approach the Hon’ble Apex Court in writ

petition under SectionArticle 32 of Constitution, when he is

aggrieved by the action on his mercy petition, various

earlier judgments have been looked into including the

judgment in the case of Shersingh Vs. State of

Punjab reported at (1983) 2 SCC 344. In the said

decision, Hon’ble three Judges held that the condemned

prisoner has a right to fair procedure at all the stages,

trial, sentence and incarceration then delay alone is not

good enough for commutation. Hon’ble Larger Bench in

Shatrughna Chavan in paragraph 43 clarified that except

the ratio relating to delay exceeding two years in

execution of sentence of death, all other propositions in

the case of T.V. Vatheeswaran Vs. State of Tamil

Nadu (1983) 2 SCC 68 still hold good. In Paragraph 44

Hon’ble Apex Court states that undue delay entitles the

condemned prisoners to approach Hon’ble Supreme

Court. The Apex Court may consider the question of

inordinate delay to examine whether the punishment

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need to be altered. In paragraph 45, adverse physical

conditions and psychological stress on the convict

because of agonizing delay has been pointed out. In

paragraph 47, Hon’ble Apex Court observes that it is

incumbent on the authorities to dispose of the mercy

petitions expeditiously. Though no time limit can be

fixed for the Governor or the President, it is the duty of

the executive to expedite the matter at all stages

namely calling for records, orders and the documents

filed in court, preparation of note for approval of the

Minister concerned and ultimate decision of the

constitutional authority which invites attention to the

judgment in the case of Triveniben Vs. State of Gujarat

(supra) to point out that the prolonged delay is an

important and relevant consideration for determining

whether the sentence should be allowed to be executed

or not. In Paragraph 48, this Larger Bench holds that if

there is undue, unexplained and inordinate delay in

execution due to pendency of mercy petitions or the

executive as well as constitutional authorities have

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failed to take note of the relevant aspects, it can under

SectionArticle 32, hear the grievance of the convict and

commute the death sentence into life imprisonment on

that ground alone. However, such delay must not be

caused by or at the instance of the convict. In Paragraph

49, Hon’ble Apex Court holds that the procedure

prescribed by law which deprives a person of his life

and liberty, must be just, fair and reasonable and such

procedure mandates humane conditions of detention

preventive or punitive. SectionArticle 21 protection does not

come to an end with pronouncing of punishment but

extends to the stage of execution and prolonged delay

in execution of death sentence has a dehumanizing

effect. It emphatically observes that the delay caused

by certain circumstances beyond prisoner’s control,

mandates the commutation of death sentence. The

appropriate relief is to vacate the death sentence and it

again relies upon and draws support from its earlier

judgment in the case of T.V. Vatheeswaran (supra). In

paragraph 50, it considers the argument of Union of

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India that when the delay caused seems undue, the

matter be remanded back to the executive and the

decision of commutation of sentence must not be taken

in the judicial side. Hon’ble Apex Court observes that

the concept of supervening events judicially evolved

does not in any way depend upon the concept or power

of judicial review and the death sentences have been

commuted merely on the basis of supervening events

when Sectionarticle 21 has been found to be breached. It

mentions that there was no question of resorting to

power of judicial review, but protection of fundamental

rights and as such there is no scope for remanding the

matter for consideration as the court is the custodian

and enforcer of fundamental rights and final interpreter

of the constitution.

58. In Paragraph 54, it reiterates that no time limit can

be set for the President or the Governor while observing

that the mercy petitions can be disposed of at much

faster pace. In Paragraph 56 it is reiterated that the

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guidelines and scope of power set out by it show that it

has extra ordinary power not limited by judicial

determination of the case and is not to be exercised

lightly or as a matter of course. In paragraph 57, rights

of victim or family of the deceased have also taken a

note of and it is stated that the same form part of

sentencing process. Hon’ble Apex Court observes that

SectionArticle 21 is the paramount principle on which rights of

the convict are based and it needs to be considered

along with the elements which form part of sentencing

process. In paragraph 60, Hon’ble Apex Court states that

there are two distinct backgrounds and in scenario

before punishment, petitioners before it were the

persons accused of the offence. In this proceeding,

sentence of death was imposed upon them. In the latter

scenario, petitioners approached it as victims of violation

of guaranteed fundamental rights. It points out that

under SectionArticle 32, their cases on merits could not have

been reopened but then undue, inordinate and

unreasonable delay in execution of death sentence

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certainly results in torture which is violation of SectionArticle 21

and entails as the ground for commutation of sentence.

In paragraph 64, Hon’ble Apex Court observes as under :

“64. From the analysis of the arguments of both

the counsel, we are of the view that only delay

which could not have been avoided even if the

matter was proceeded with a sense of urgency or

was caused in essential preparations for

execution of sentence may be the relevant

factors under such petitions in SectionArticle 32.

Considerations such as the gravity of the crime,

extraordinary cruelty involved therein or some

horrible consequences for society caused by the

offence are not relevant after the Constitution

Bench ruled in SectionBachan Singh vs. State of Punjab

(1980) 2 SCC 684 that the sentence of death can

only be imposed in the rarest of rare cases.

Meaning, of course, all death sentences imposed

are impliedly the most heinous and barbaric and

rarest of its kind. The legal effect of the

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extraordinary depravity of the offence exhausts

itself when court sentences the person to death

for that offence. Law does not prescribe an

additional period of imprisonment in addition to

the sentence of death for any such exceptional

depravity involved in the offence. ”

59. It then proceeds to point out unconstitutionality of

additional incarceration is itself inexorable and must not

be treated as dispensable through a judicial decision.

60. In Paragraph 100, after referring to the procedure of

Ministry of Home Affairs of Government of India, Hon’ble

Apex Court takes a note of the fact that at every stage,

mercy petition has to be expedited and there cannot be

any delay at the instance of the officers, particularly,

the Superintendent of Jail. In paragraph 103, Hon’ble

Apex Court points out that after receipt of mercy

petition, the department concerned has to call for all the

records/material connected with the conviction and

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calling for piecemeal records instead of all the materials

connected with the conviction should be deprecated. It

is incumbent on the part of the Home Ministry to place

all the material before the President/Governor.

61. Hon’ble Apex Court thereafter proceeds to

apply above legal principle to various writ petitions

presented to it. In paragraph No.117 Hon’ble Apex Court

has given details of time taken and stages in a chart. In

paragraph 111 it finds that there was no explanation for

delay of about 5 months in sending the papers to

Respondent No.1 and it found that Respondent No.2 sent

letter to respondent No.1 seeking details about stages of

mercy petition. 12 reminders between 17/1/2003 to

14/1/2005 were sent. Chronology therefore shows that

the question whether there is inordinate delay or not

must be considered in facts and circumstances of each

case. It is found that for certain periods there was no

explanation. The relevant charts case wise in this

respect are contained in subsequent part of the

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judgment. In paragraph 223 delay of about 1 year by

office of the Hon’ble the President in disposal of mercy

petition is not found excessive.

62. In paragraph 240 Hon’ble Apex Court pointed

out that protection of SectionArticle 21 is available to every

prisoner including death roll prisoners till the very last

breath of their lives and in paragraph No.26, the Hon’ble

Apex Court declares that it would protect that right even

if noose is being tied on such prisoners neck.

63. In matter at hand, dispute about date on which

the order of Hon’ble Apex Court was communicated to

the petitioners is not very relevant. Though Petitioners

claim that the same was communicated to them

belatedly, in mercy petition forwarded to Hon’ble the

Governor on 10/7/2015 they mention that the copy of

judgment delivered by Hon’ble Apex Court on 8/5/2015

was received by them on 29/5/2015. They sought legal

aid on 2/7/2015 and on 6/7/2015 advocate (appointed)

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visited them in jail. Copy of judgment of Hon’ble Apex

Court was given to them on 7/7/2015 mercy petitions

were then drafted and sent on 10/7/2015 to Hon’ble the

Governor.

64. Actual forwarding of mercy petition is on

16/7/2015. Respondent No.4 Superintendent of Jail

however then did not forward the judgment of Sessions

Court. He sent it on 27/1/2016. Such piecemeal

forwarding is in breach of the law as laid down by the

Hon. Apex Court.

65. Before receipt of mercy petitions i.e. 24/6/2015

respondent No.4 Superintendent asked Talegaon Police

Station to sent English translation of police diary, short

crime history in English, first information report, dying

declaration and the charge and reasons for commitment.

It appears that these documents were not received till

1/2/2016 and on 1/2/2016 i.e. almost after 8 months,

Respondent No.4 sent reminder to Talegaon Police

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Station in this respect. This again shows piecemeal

collection of the papers.

66. In forwarding letter dated 16/7/2015 the

Superintendent has informed Home Department of

Maharashtra Government that mercy petitions were sent

with 7 documents. Document at Sr. No.5 is a copy of

warrant of conviction and operative order. He has

mentioned there that after receipt of copy of judgment,

the same would be supplied. He does not there mention

the documents sought for by him on 24/6/2015.

67. Reminder sent by him to Senior Police

Inspector of Talegaon Police Station dated 1/2/2016 is

the first or last reminder thereafter. It pointed out mercy

petitions and need to send requisite information to the

State Government. It also mentions that information

received from Court was already furnished to the State

Government It again reiterates describes the

information/documents sought for. The information

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sought for is English translation of police diary, short

crime history in English, First Information Report, dying

declaration and charge and reasons for commitment.

68. The Ministry of Home of State Government has

in the meanwhile proceeded further and prepared a

note. Note prepared by Desk Officer is of 25/1/2016. It is

signed by various officers in hierarchy and then is signed

by the Chief Minister on 28/1/2016. It is signed by

Hon’ble the Governor on 20/3/2016 and this rejection is

intimated to Home Department by office of Hon’ble the

Governor on 29/3/2016.

69. Thus, papers which were not received till

1/2/2016 but felt necessary by State Government for

consideration of mercy petitions, were never presented

to the office of Hon’ble the Governor.

70. The relevant material which needs to be looked

into by the office of Hon’ble the Governor shows the age

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of mercy petitioner (convict) as one of the relevant

consideration. The documents received by Home

Ministry by hand delivery from respondent No.4-

Superintendent are mentioned in letter dated 27/1/2016

at Annexure-IV with the petition. In this document age of

petitioner Pradeep is mentioned as 24 years and age of

Petitioner Purshottam is mentioned as 30 years This age

is as on date of communication. It is not in dispute that

Pradeep was 19 years 2 months old on the date of

commission of crime.

71. Hon’ble the Governor of Maharashtra rejected

Petitioners mercy petitions on 29/3/2016. Department of

Home of State informed this to the Superintendent of Jail

on 6/4/2016. By this communication Respondent No.2

also asked said superintendent (Respondent No.4) to

furnish updated nominal roll, medical reports and

criminal background reports of the petitioners for

presenting the mercy petitions to Hon’ble the President.

The order of Hon’ble the Governor was communicated to

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the petitioners on 11/4/2016.

72. Petitioners claim that documents like nominal

roll, medical report and criminal antecedents were

relevant even when Hon’ble the Governor decided mercy

petitions and that information was not sought for then.

According to them this information was supplied by

Talegaon Police Station for the first time on 16/4/2016

i.e. after decision of Hon’ble the Governor.

73. In this respect perusal of affidavits in reply by

the State Government and by Superintendent of Prisons

is important. Reply on behalf of the State Government is

sworn by Shri Narayan Karad, Deputy Secretary Home

Department (Prison). In paragraph 3 of the said reply

State Government pointed out that mercy petitions

forwarded by Superintendent of Jail to the Principal

Secretary of Home Department were received by State

Government on 20/7/2015. On 17/8/2015 a letter was

sent to Additional Director General (Prison), Pune and to

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Superintendent of Jail seeking information whether

Review Petitions were filed by the Petitioners before

Hon’ble Supreme Court or not. Thus, first date on which

mercy petitions were taken up is after about 4 weeks.

Reason for seeking said information is statement given

by both the petitioners in writing on 1/6/2015 that they

intended to file again a writ petition in the Supreme

Court. According to Respondent No.2, petitioners wanted

to express that they were filing Review Petitions. On

26/8/2015 Additional Director General (Prison), Pune

addressed a letter to Home Department and it was

received on 28/8/2015 informing that no review petition

was filed till 22/8/2015 by the convicts. All the papers

and material was then thoroughly examined at various

levels as per hierarchy and the same were then

submitted to Hon’ble the Governor for appropriate

consideration. This date has not been disclosed.

74. It is submitted that on 29/3/2016 the Governor

rejected those mercy petitions. The fact of

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Superintendent of Yerwada Prison submitting more

details is not relevant at this stage when delay only is to

be examined. However, furnishing of details on

16/4/2016 by him has not been disputed.

75. Thus, mercy petitions received by

Superintendent of Jail on 10/7/2015 have been decided

by Hon’ble the Governor on 29/3/2016.

76. Perusal of affidavit of Superintendent of

Yerwada Central Prison reveals that his affidavit is on

behalf of Respondent Nos.3 and 4. He asserts that

decision of Hon’ble Apex Court dismissing Criminal

Appeal of the Petitioners was received by him on

28/5/2015 and it was communicated to the petitioners

on 29/5/2015. Receipt of mercy petitions on 10/7/2015

and its forwarding to Home Department on 16/7/2015 is

not in dispute. It is submitted that this letter was

received by the State Government on 20/7/2015. The

letter dated 17/8/2015 seeking updated information and

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reply by the Superintendent thereto is again admitted.

77. Superintendent pointed out that judgment of

Sessions Court along with other documents pertaining to

said proceeding before Trial Court were received by him

and without making any assessment about relevancy

thereof Superintendent swiftly forwarded judgment of

Sessions Court to Home Department on 27/1/2016. This

judgment ought to have accompanied the mercy

petitions only. It shows that there is time gap of 4

months 10 days in the matter. It is further stated that

because of need to ensure that all documents are

forwarded by his office, on 1/2/2016 he requested

Talegaon Police to send copy of police diary, short crime

history and other material to Home Department of

Government of Maharashtra directly. He then states that

communication of rejection of mercy petitions was

received on 9/4/2016 by him and it was communicated

on 11/4/2016 to both the convicts/petitioners.

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78. About letter dated 6/4/2016 on need to furnish

updated nominal roll, medical report and criminal

antecedents, he choose to rely upon records and

submitted that details of updated information were

supplied on 16/4/2016 and the same were received by

the Home Department of State on 26/4/2016. His

affidavit thereafter is on events which transpired during

pendency of mercy petitions before Hon’ble the

President of India.

79. Discussion undertaken by us supra shows that

no time limit can be prescribed for taking of decision by

Hon’ble the Governor. Affidavit submitted by the

Respondent Nos.2, 3 and 4 are conspicuously silent

about the exact date when mercy petitions were actually

placed before Hon’ble the Governor by the Home

Department. It is vaguely mentioned that the mercy

petitions were then processed at various levels as per

hierarchy and it is obviously after 28/8/2015.

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80. Document dated 25/1/2016 submitted by the

Home Department to Hon’ble the Governor is placed at

Annexure-F with the petition. It is a note on mercy

petition filed on 10/7/2015 by convicts. This note starts

from brief mentioning of facts, result in Sessions Trial,

result in Confirmation Case No.1/2012 and then

judgment of Hon’ble Apex Court dated 8/5/2015. In

paragraph 5, it mentions opinion expressed by

Superintendent of Jail and additional DIG (Prison) not to

commute death sentence. It then mentions SectionArticle 161

of the Constitution of India and then need to present

mercy petitions to Hon’ble the President in case it is

rejected by Hon’ble the Governor. The procedure

stipulated in guidelines of the Central Government is

pointed out in paragraph No.7 and, thereafter SectionArticle 72

has been reproduced. In paragraph thereafter the note

states that looking into what Hon’ble Apex Court has

said in the matter it would not be appropriate to

commute death sentence. The Desk Officer therefore

states that with this opinion of the Government, there

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should be no objection to place the matter before

Hon’ble the Governor under SectionArticle 161 of the

Constitution of India. This note dated 25/1/2016 is

signed by the Principal Secretary (Appeals and Security)

on 27/1/2016. The said Authority upon taking into

consideration what Hon’ble Apex Court has said, finds

that it would not be appropriate to commute death

sentence.

81. Section Officer has placed this note before the

Principal Secretary. Who on 27/1/2016 marks it to

Additional Chief Secretary (Home) for approving portion

‘A’. Additional Chief Secretary (Home) on 28/1/2016

marks it to the Hon’ble Chief Minister and after signature

of Hon’ble Chief Minister, it is submitted to office of

Hon’ble the Governor on 28/1/2016. Thus, the mercy

petition received by Department of Home of State of

Maharashtra on 20/7/2015 is placed before the Hon’ble

the Governor on 28/1/2016 for the first time after

almost 6 months.

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82. After communication of order of Hon’ble the

Governor dated 29/3/2016 to Petitioners on 11/4/2016,

the other segment of alleged “delay” begins. The next

period to be looked into is in deciding mercy petitions

preferred under SectionArticle 72 of the Constitution of India.

The order of Hon’ble the Governor is informed to

Respondent Nos.3 and 4 by the State Government on

6/4/2016 and simultaneously they also seek updated

documents in relation to nominal roll, medical report and

criminal background form Respondent No.4. Respondent

No.3 forwarded a remainder for the purpose on

13/4/2016 to Respondent No.4. Respondent No.4 had on

12/4/2016 itself sought details from Talegoan Police

Station. Reply is submitted by Talegaon Police Station on

16/4/2016 and the Respondent No.4 immediately sent it

to the Home Department of Government of Maharashtra.

Home Department received it on 26/4/2016.

83. Petitioners state that on 28/4/2016 Respondent

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No.2 State Government forwarded their mercy petitions

to Union of India and this fact is admitted in reply

affidavit by respondent No.2. He also states that their

letter dated 28/4/2016 was received by the Minister of

Home Affairs Department of India on 13/5/2016. It is not

in dispute that on 31/5/2016 Respondent No.1 sought

past criminal history, economic condition of family and

information about filing of Review Petition by convicts.

Home Department of Government of Maharashtra

received this letter on 22/6/2016. In the meanwhile the

Minister of Home Affairs Central Government sent

remainder dated 15/6/2016 and according to

Respondent No.2 this reminder is dated 17/6/2016

which is received on 22/7/2016. Union of India however

has submitted that this first reminder is dated

15/6/2016. It forwarded second reminder on 22/7/2016

and thereafter third reminder on 6/9/2016. State

Government has pointed out that reminder dated

22/7/2016 was received by it on 9/8/2016.

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84. State Government on affidavit discloses that

it proceeded to inquire and on 9/8/2016 it requested

Respondent No.4 Superintendent for information

pertaining to past criminal history, economic condition of

the family and about filing of Review Petition. Thus, from

22/6/2016 till 9/8/2016 Ministry of Home, Government of

Maharashtra has not taken any action on communicated

dated 31/5/2016 sent by Respondent No.1. It had

received the remainder thereafter and when it received

second reminder, it proceeded to ask for information.

85. Reply affidavit of State Government shows that

on 9/9/2016 Superintendent of Yerwada Central Prison

wrote to State Home Department pointing out that no

Review Petition was filed before Hon’ble Apex Court. In

paragraph No.11 of reply affidavit the State Government

has disclosed that the information regarding past

criminal history and economic condition of family was

called for from Sr. Police Inspector vide letter dated

17/9/2016. That information was sent by Talegaon Police

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on 20/9/2016 and it was communicated to the

Government of India on 30/9/2016. State Government

therefore has asserted that the Home Department of

Government of Maharashtra provided all the necessary

details as requested by Government of India by

30/9/2016. Thus, after 4 months (delay) the request

made by the Central Government on 31.5 2016 was met

with.

86. After this date “30/9/2016” the next date

pointed out by Respondent No. 1 is 26/12/2016. There is

gap (delay) of more that 2 months 25 days in the

meanwhile. Other Respondents also pointed out

26/12/2016 as the date on which request was made to

clarify the position regarding intention of convicts to file

Review/SLP before Hon’ble Apex Court. Annexure V is

that document. On it under secretary of Respondent 1

Union has put date 26/12/2016 while on top on right

hand side, month printed is November 2016. The State

Government received it on 2/1/2017 and on 16/1/2017

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sent a letter to Superintendent of Yerwada Central Prison

(Respondent No.4) and Additional Director General of

Prison (Respondent No.3) seeking information.

Respondent No.4 forwarded that information on

7/2/1017 to the Home Minister, Government of

Maharashtra who communicated the same to Central

Home Minister on 22/2/2017 confirming that the convicts

have decided to file Curative/Review Petition after

decision of Hon’ble the President on their mercy

petitions. Thus the State machinery has taken time of

about 1 month 20 days for this. Had entire

information been demanded by the respondent 1 in one

stroke not piecemeal, the entire period from

31/05/2016 could have been avoided.

87. Concept like telegram or express letters used years

ago show the need of utmost speed hence use of

fastest mode of communication then available. Now it

has to be E-mail, Fax or Telephone. Not resorting to

these devises in digital era would be to deliberately

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delay the exercise or to derail it. It would be an instance

of avoidable delay.

88. Here we have to consider a convict to be hanged

he is not concerned with the constitutional functionary

which has caused delay or contributed to it. When the

protection accorded by Aet. 21 of the Constitution of

India is at stake, the Executive, Court of Law or the

Governor/President stand at same pedestal. Shatrughan

Chauhan’s case (supra) lays down “Long delays in

investigation and trial etc.” also as one of the norms

relevant for commutation. Thus Delay by any arm of the

State would be against his fundamental right. Extra or

additional punishment resulting from avoidable delay

can not be legalized because it is on account of undue

time taken by the Constitutional Functionary. Such

additional punishment is unconstitutional in all

circumstances contingencies. Quantum or period

thereof is also not very material.

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89. Respondent no. 1 Union of India has during the

hearing filed additional affidavit and in it has pointed out

three dates. First of these dates is 3/3/2017 when the

Under Secretary signed the recommendation and

marked it to the Joint Secretary (Judicial). The next date

is 29/3/2017 when the Joint Secretary prepared self

contained recommendation and forwarded it to the

Minister of States (Home) and the Home Minister for

Government of India. On 04/05/2017, the Home Minister

after agreeing with the recommendations cleared it. The

summarry was then prepared for the Hon’ble President

of India and it was also signed by the Hon’ble Home

Minister. As these events are after the information

forwarded by the State Government on 22/2/2017, the

same are only relevant. This development shows that

the note to be placed along with the Mercy Petition

before the Hon’ble President was prepared on 4/5/2017.

In the affidavit filed on record earlier, respondent no.1

has not given these three developments. However,

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forwarding of proposal to the Hon’ble President of India

on 04/05/2017 is very much mentioned there in

paragraph no. 6.

90. Thus the mercy petition of petitioners sent by

respondent no. 2 on 28/4/2016 goes to Hon’ble President

only on 04/05/2017. The Hon’ble President has taken the

decision upon it on 26/5/2017 and rejected it. This

rejection has been communicated to the petitioners on

19/6/2017. The file after rejection is received by the

Ministry of Home Affairs on 30/5/2017 and then the

decision is communicated to the State Government on

6/6/2017. Respondent no.2 in paragraph 14 and 15 of

the affidavit states that this rejection was intimated to

respondent no.4 on 19/6/2017 who in turn

communicated it to the petitioners on the same day.

91. The other part of delay is after this rejection in

actual execution of the penalty. Respondent nos.2 to 4

state that time and again they informed and reminded to

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the Sessions Court the fact that the convicts have

exhausted all their remedies and hence, further orders

to be issued in regard to the death penalty. They point

out that these communications have been sent on

19/6/2017, 10/08/2017, 29/08/2017, 05/10/2017,

18/07/2018, 29/08/2018 and 27/12/2018. These

respondents also show that the copies of these letters

are given to Sessions Court, Registrar of Bombay High

Court, Registrar of Supreme Court, Principal Secretary,

Home Department (Prison), Additional Director General

of Prisons and Deputy Inspector General of Prisons. The

first letter dated 19/6/2017 and last one dated

27/12/2018 are also annexed with the reply affidavit. In

the last letter, reference is also made to the informal

instructions issued by the L J.D. department and

request is made to pass appropriate orders for execution

of death sentence.

92. The discussion and development noted supra

show that when note dated 25/1/2016 was prepared and

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placed before Hon’ble the Governor, the judgment

delivered by Sessions Court was not part of record of

mercy petitions. The documents like English translation

of police diary, short crime history in English, First

Information Report, dying declaration and the charge

and the reasons for commitment. which were demanded

on 24/6/2015 again did not form part of it.

93. The records to be submitted to the Hon’ble the

President was not complete till 6/3/2017 and information

was demanded by Respondent no. 1 on 31/5/2016 itself.

This information is furnished and communication is

complied with by Respondent No.2 State on 22/2/2017.

These events developments have been rightly pressed

into service to urge that there has been avoidable delay.

94. In most of the letters exchanged between

respondents, the words “most urgent” or “death

penalty” are printed at top. However, it appears that the

matter was not given attention which it deserved. Before

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us, it has been demonstrated that age of Pradeep on

the date of commission of offence was 19 years and 2

months. This age on the date of commission of offence is

not expressly pointed out either to Hon’ble the Governor

or Hon’ble the President.

95. Procedure regulating mercy petitions in case of

death sentence prescribed by Ministry of Home Affairs

states that the mercy petitions need to be forwarded

expeditiously along with records and observations of the

Secretary of Government of India with comments of

forwarding authorities in respect of grounds, If any

mercy petition was previously rejected by Hon’ble the

Governor, brief reasons therefor are also to be

communicated. As per clause (vi), upon receipt of the

orders of Hon’ble the President, acknowledgment shall

be sent to the Secretary of Government of India and if

petition is rejected, the rejection has to be

communicated by express letter. Instructions relating to

duties of Superintendent of jail in connection with mercy

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petitions show that the petitions preferred by convicts

are to be forwarded to the State Government at once

and simultaneously telegraph containing its substance,

requesting order whether execution should be

postponed is also to be sent. Pending reply to this

telegraph, sentence is not to be carried out. If said

mercy petition is received by noon of day preceding the

day fixed for execution, the same also has to be

forwarded at once. State Government has to forward

telegraph stating that execution can be carried out

unless orders contrary are sent. This procedure therefore

show the precedence and priority given to consideration

of mercy petition.

96. In facts before us though mercy petition came

to be filed more than 7 days after communication of

orders of Hon’ble Apex Court, the same was forwarded

on 16/7/2015 with the documents like nominal roll,

physical and metal health report and crime summary.

The documents demanded by Respondent No.4 from

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Talegaon Police are not argued to be irrelevant, and

infact those documents including judgment of Sessions

Court did not enter the process of consideration by

Hon’ble the Governor. Period from 16/7/2015 till

27/1/2016 to complete the preliminary exercise cannot

be viewed as reasonable period taken by Respondent

No.2 in the matter.

97. Respondent No.2 has on 6/4/2016 called for

updated documents from Respondent No.4 as mercy

petitions of convicts were to be forwarded to Hon’ble the

President. Thesee updated documents are forwarded on

16/4/2016 by Respondent No.4 to Respondent No.2. On

31/5/2016, Respondent No.1 demanded documents on

three points from Respondent No.2. Said demand of

three documents/ information was fulfilled on 22/2/2017.

98. The convicts before us are not concerned with

finding out whether it is Respondent No.1 or then

Respondent No.2 who are at fault. Mercy petitions filed

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by them have remained pending from 10/7/2015 till

26/5/2017. The procedure contained in instructions

issued by Ministry of Home Affairs Union of India or then

under Maharashtra Prison Manual has thus not been

followed expediently. The time taken by Hon’ble the

Governor or by Hon’ble the President of India after the

papers were actually submitted to them is small. After

receipt of note dated 27/1/2016, Hon’ble the Governor

has rejected the mercy petitions within a period of 2

months. Similarly, after receipt of recommendation by

Home Minister on 2/5/2017 file was sent to Hon’ble the

President on 9/5/2017 and Secretariat of Hon’ble the

President received it on 12/5/2017. Hon’ble the President

of India rejected the mercy petitions on 26/5/2017. Thus,

Hon’ble the President has taken decision in period of less

then one month after receipt of mercy petitions.

99. Even if the exercise of the consideration or

application of mind is presumed to have commenced on

dates on which the respective departments got

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necessary papers to draft an advisory, still the period

spent in making available those documents can not be

seen as the just period. The authoritie are/were awre of

the prescribed procedural norms the importance of

time can not indulge into avoidable correspondence.

100. The procedural delay noted by us (supra) till

actual presentation of mercy petitions before High

Constitutional Authorities therefore show disregard to its

own instructions by Respondent No.2 as also by

Respondent No.1. Judgment of Hon’ble Apex Court in

case of Shatrughan Chauhan (supra) is therefore

squarely attracted. We find that there has been undue

and unexplained delay both by Respondent No.3 and

Respondent No.1 in processing the mercy petitions.

101. We have also taken note of the criteria which

Hon’ble Apex Court has mentioned in paragraph 55 of its

judgment. The age and health of convict is therefore one

of the criteria to be looked into by the Constitutional

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Authorities. Long delays in investigation and trial is also

a relevant circumstance. The incident of crime has

occurred on 1/11/2007. Sessions Court had delivered

judgment in Sessions Case No.284/2008 on 20/3/2012

which was maintained by this Court by its judgment

delivered in Confirmation Case No.1/2012 and connected

Appeals on 25/9/2012. Thus, there was period of about 5

years taken in imposing of death sentence. Mercy

petitions was filed on 10/7/2015 and again period of

about 5 years has expired thereafter.

102. We therefore find the delay in execution of

death penalty in the present matters undue, inordinate

and unreasonable. Out of this period of 5 years mercy

petitions were pending for about 2 years and for period

thereafter no proceedings were pending. We find that

delay in the present matters could have been easily

avoided and the mercy petitions and the final execution

could have been dealt with in sense of urgency.

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103. The decision of Hon’ble the President rejecting

the mercy petitions was communicated to the

petitioners on 19/6/2017. Steps taken thereafter by

Respondent No.4 for actual implementation of the

sentences are also mentioned by us supra. Letters were

sent from 19/6/2017 upto 27/12/2018. Attention of

Punishing Court was invited to rejection of mercy

petitions for passing/seeking further order on death

sentences.

104. Section 413 of Cr.P.C. states that after the

death sentence has attained finality and becomes

executable the Court of Sessions shall cause its

punishment order to be carried into effect by issuing a

warrant or taking such other steps as may be necessary.

Whether procedure followed in the present matter was

as envisaged by this section has been the bone of

contention between the parties. In Chapter XLII in Jail

Manual Section One, Rule 18(i) stipulates that the State

Government shall fix the date of execution of convict if

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mercy petition is rejected. It also points out further

procedure. Rule 19 stipulates that execution has to take

place at the prison to which the execution warrant is

directed. The execution has to be carried out in a

special enclosure attached to or within walls of prison.

In present proceedings other rules are not relevant.

105. It is therefore clear that actual execution of

death penalty is at the hands of State Government. It

has therefore to fix a date and place therefor and obtain

death warrant. Accordingly, mere writing a letter in this

respect therefore cannot be seen as compliance with

Rule 18. The date by which jail fixed where the

necessary arrangements were made or were to be

made has not been pointed out by the State in any of

the letters mentioned supra to the Sessions Court.

106. Our attention has been invited to Judgment

delivered by Division Bench of this Court on 21/7/2009 in

the case of SectionMr. Saeed Sohail Sheikh vs. State of

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Maharshtra (supra) – Cr. W.P. 1377 of 2008 decided on

21/7/2009 at Bombay. There the issue involved was

regarding transfer of prisoners in MCOC case from one

prison to another. Superintendent of Jail stated that she

submitted a letter requesting the court to permit such

transfer. This letter was addressed to Registrar of

Sessions Court and reason for transfer was stay of trial

given by Hon’ble Apex Court and the number of

occupants in jail more than the permitted capacity.

Learned Sessions Judge responded to this letter. Division

Bench finds that no authority was shown to it which

permitted jail authorities to write such letter in pending

matters.

107. High Court found that the learned Sessions

Judge only gave liberty to jail authority to take action in

accordance with Rules and Regulations. Superintendent

of Jail therefore transferred prisoners. Division Bench

found that in pending matter, if any party wants any

order from Court. it has to be by way of application and

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a copy of that application should be made available to

other side.

108. This judgment of High Court is considered in

(2102) 13 SCC 192- SectionState of Maharshtra vs. Mr.

Saeed Sohail by Hon’ble Apex Court. In paragraph

No.25. Hon’ble Apex Court held that power exercisable

by Court permitting or refusing transfer is judicial and

not ministerial. In paragraph No.35 Hon’ble Apex Court

reiterates the same and holds that Trial Court could not

have passed order on administrative side.

109. We may here point out that insofar as issuance

of warrant for execution of death penalty is concerned,

the judgment delivered by Allahabad High Court in

PUDR v. Union of India (supra) that such warrant

cannot be issued ex-parte finds appreciation in Judgment

of Hon’ble Apex Court reported at SectionShabnam V. Union

of India (supra). The observations of Hon’ble Allahabad

High Court regarding essential procedural safeguard to

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be adhered to under SectionArticle 21 are looked into and in

paragraph No.20 the Hon’ble Court has observed that

execution of death sentence cannot be carried out in an

arbitrary and secret manner. In paragraph No.21 view

expressed by Allahabad High Court is found to be in

consonance with SectionArticle 21 of the Constitution of India.

110. Respondents have invited our attention to a

larger Bench judgment which finds that issuance of said

warrant ex-parte is not fatal and adherence to principles

of natural justice need not be insisted upon if it is going

to be only an empty formality. This judgment of Hon’ble

Apex Court in the case of Yakub Abdul Razak Memon

(supra) takes note of the judgment of Allahabad High

Court and also judgment of Hon’ble Apex Court

mentioned by us supra.

111. In present facts the contention that convicting

Court fixed “24/6/2019” as date of execution ex-parte

has been specifically raised before us. Considering the

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fact that there has been delay of about 5 years after

final judgment of Hon’ble Apex Court in the matter, we

find that convicts could have very well raised this ground

of delay before the Sessions Court to oppose issuance of

death warrant.

112. The limited scope of judicial review available to

Courts of Law is also explained by Hon’ble Apex Court in

Shatrughan Chauhan (supra) In paragraph 22

Hon’ble Apex Court has pointed out that the Executive

powers under SectionArticle 72 and Section161 should be subject to

limited judicial review based on rationale that the power

under this Article is per-se above judicial review, but the

manner of exercise of power is certainly subject to it. In

paragraph 23 grounds on which judicial review may be

open are enumerated. Said paragraph reads as under:-

“23. Though the contours of power under Articles
72/161 have not been defined, this Court, in
SectionNarayan Dutt v. State of Punjab, para 24 has held
that the exercise of power is subject to challenge on
the following grounds:(SCC p.361)

a) If the Governor had been found to have
exercised the power himself without being

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advised by the Government,

(b) If the Governor transgressed his
jurisdiction in exercising he said power,

(c) If the Governor had passed the order
without applying his mind,

(d) the order of the Governor was mala fide,
or

(e) the order of the Governor was passed on
some extraneous considerations.”

113. In this judgment, in paragraph 24 Point No.1

and Point No.2 again the grounds for seeking judicial

review are reproduced. Non- consideration of relevant

material is one of grounds accepted there. Respondent

have invited our attention to judgment in the case of

Bikas Chatterjee (supra). There it is observed in

paragraph No.10, 11, 13 that when power is vested in

very high authority, it must be presumed that said

authority would act properly and carefully after objective

consideration of all aspects of the matter. In paragraph

No.13, the constitution Bench finds no reason to assume

that Hon’ble the President of India has not applied his

mind to all relevant facts and aspects of the case. It

also holds that there was nothing to show material found

relevant by Hon’ble the President was not before him. In

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present facts, records before us show that the copy of

Sessions Court judgment was not before the Hon.

Governor there is noting to demonstrate that its

absence was noted pointed out. Similarly, correct age

of convict Pradeep was not pointed out to these high

constitutional authorities.

114. In present matter we have already taken note

of fact that judgment delivered by Sessions Court did not

form part of record of Hon’ble the Governor at all. We

have also taken note of fact that correct and tender age

of one of the petitioners (Pradeep) was not before either

Hon’ble the Governor or Hon’ble the President. Thus,

material judicially held relevant was not placed before

the High Constitutional Authorities. The argument of

presumption based on Constitutional Bench Judgment in

case of SectionBikas Charterjee vs. Union of India is therefore

not binding here.

115. Judgment in the case of Shatrughan

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Chauhan (supra), in paragraph No.13 relies upon the

judgment in case of SectionKehar Singh v. Union of India,

and pointed out that other Constitutional Bench has

found that Hon’ble the President can, in exercise of the

power under SectionArticle 72 of the Constitution, scrutinize the

evidence on record and come to a different conclusion.

Paragraph No.10 in Kehar Singh has been reproduced

here by Hon’ble Apex Court. In paragraph 10 the

Constitution Bench in Kehar Singh has explained that the

President does not amend or modify or supersede the

judicial record. He acts wholly in a different plane than

the Court of Law. The Constitution Bench finds that

Hon’ble the President is entitled to go into merits of the

case notwithstanding that it has been judicially

concluded by the consideration given to it by Hon’ble

the Apex Court.

116. Learned Advocate General has invited our

attention to the Constitution Bench Judgment in case of

Kehar Singh to urge that the facts in the said matter

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reveal that in mercy petition sent by son of convict,

reference was made to evidence on record and effort

was made to establish that Kehar Singh was innocent.

Extract of oral evidence accompanied mercy petition.

Mercy petition was refused by Hon’ble the President

because of opinion that he cannot go into merits of the

case which is finally settled by Highest Court. With due

respect, we do not find anything to distinguish the law

as laid down by the Constitution Bench and reiterated in

Shatrughan Chauhan (supra) in these facts.

117. The facts at hand therefore show that correct

age of one of convicts was not before both the High

Constitutional Authorities. Not only this the judgment of

Sessions Court did not form part of record of mercy

petitions before Hon’ble the Governor. Other material

sought for by Superintendent of Jail on 16/7/2015 also

did not enter the process of consideration by Hon’ble the

Governor. The fact that said material could not have

been looked into by Hon’ble the Governor has not been

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pointed out to Hon’ble the President. The presumption of

application of mind by High Constitutional Authorities is

therefore not attracted here. Said presumption of due

application of mind shall follow only when the entire

relevant material is made available by the

Administrative machinery to High Constitutional

Authorities and Hon’ble the President or then, the

records show a finding that it was/is not relevant.

118. This brings us to contentions based on solitary

confinement. The impact of solitary confinement finds

consideration in Shatrughan Chauhan (supra). In

paragraph No.65, Hon’ble Apex Court observes that

when legislature has not provided any fixed period of

imprisonment in addition to sentence of death, the said

additional sentence cannot be imposed and sustained by

judicial decision alone. Hon’ble Apex Court observes that

the unconstitutionality of this additional incarceration is

itself inexorable and must not be treated as dispensable

through a judicial decision. It is observed that solitary

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confinement even if mollified and modified marginally, is

not sanctioned by Sectionsection 30 of the Prisons Act for

prisoners under sentence of death. The convict is not

under sentence of death even if Sessions Court has

sentenced him to death subject to confirmation by High

Court. He is not under sentence of death even if High

Court confirms it so long as appeal to Hon’ble Supreme

Court is pending. Hon’ble Apex Court relies upon its

earlier Constitution Bench Judgment reported at Sunil

Batra v. Delhi Admn. (supra) and holds that even if it

awards death sentence, Sectionsection 30 does not cover the

convict so long as his petition for mercy to the Hon’ble

the Governor and to Hon’ble the President is not

disposed of. Hon’ble Apex Court states that to be nuder

sentence of death means to be under a finally

executable death sentence. When this law is applied to

the petitioners before us, it is apparent that they were

not under the finally executable death sentence till

rejection of their mercy petitions by Hon’ble the

President on 26/5/2017.

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119. The petitioners on affidavit claim that they

were subjected to solitary confinement and placed in

phansi yard after Sessions Court convicted them i.e. on

20/3/2012. Though respondent/State has denied

existence of any phansi yard as such, in medical

documents produced by Respondent/State there is

reference to phansi yard. Our attention has been drawn

to medical case records of convict Pradeep in which on

top the words phansi yard are mentioned. Even in case

of convict Purshottam, in Discharge Card issued by

Sasoon General Hospital, on top words phansi yard

convict are mentioned.

120. The arguments have been advanced by

learned counsel for the petitioners and by learned

Assistant General in effort to oppose or to show that in a

separate yard where petitioners are kept, there are

several other prisoners. The petitioners can mix with

them and they can also move freely in common

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varanda and play in open yard opposite the barrack.

Respondents pointed out that after judgment of Sessions

Court, petitioners have been shifted to security yard

where 20 other convicts were also confined. They state

that the prisoners who are not death roll convicts, are

also placed in same security yard. That security yard is

not a closed space and it is physically impossible to use

same for solitary confinement. He mentions that there

are three units in it. Unit No.1 has 20 rooms out of which

19 are in use. Unit No.2 has 12 rooms and Unit No.3 has

8 rooms. Respondents thereafter has given description

of the security yard. It is mentioned that Petitioners are

not confined to their rooms during day time. Their rooms

are open at 6.00 a.m. and are finally closed at 6.30 p.m.

In the afternoon for brief period, they have to go back to

their respective rooms for security check. They also

mention that on most of the occasions, each of these

rooms is occupied by more than one convict.

121. In unit No.1 about 20-25 prisoners, in Unit No.2

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about 12-15 prisoners and Unit No.3 about 8-12

prisoners are housed. When this number of prisoners on

an aversge as disclosed on affidavit is compared with

number of rooms in each unit, it is apparent that in some

rooms there can not be more than one or single

occupant. Respondent No.4 could have pointed out to

this Court from records, number of occupants co-

habiting in the room with convicts at any point of time

and that has not been done. This position therefore

lends credence to statement on affidavit that after

20/3/2012 the petitioners before this Court are subjected

to solitary confinement. Moreover, here the fact that

after judgment of Hon’ble Apex Court dismissing their

appeals on 8/5/2015, they are made to suffer additional

unconstitutional incarceration cannot be disputed.

122. Means of communication like telegram or

express letters used years ago in Manual or Guide Lines

highlight the need of utmost speed hence use of

fastest mode of communication then available. In 21 st

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century, it has to be E-mail, Video conferencing, Fax or

Telephone/ mobile. Not employing these devises in

digital era would be to deliberately delay the exercise or

to derail it. It would be an instance of avoidable delay.

123. Here we have to consider the rights of a convict

to be hanged he is not concerned with the

constitutional functionary which has caused delay or

contributed to it. When the protection accorded by SectionArt.

21 of the Constitution of India is at stake, the Executive,

Court of Law or the Governor/President stand at same

pedestal. Shatrughan Chauhan (supra) lays down that

the unconstitutionality of the additional period of

incarceration is itself inexorable must not be treated

as dispensable through a judicial decision. Thus we find

that undue or avoidable delay in execution of death

penalty by any arm of the State would be against his

fundamental right. Extra or additional punishment

resulting from avoidable delay is unconstitutional in all

circumstances contingencies. Quantum or period

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thereof is also not material. Moreover the convicts

before us have been undergoing solitary confinement

also from 20/3/2012.

124. Taking over all view of the matter we find convicts

before us entitled to relief of commutation of their

respective death penalties. We, in this situation

commute their death sentence to life imprisonment for

period of 35 years including the period already put in by

them. Death warrants issued in their matters on

10/4/2019 are quashed and set aside.

125. Writ Petitions are accordingly partly allowed

and disposed of.

126. Parties to act on authenticated copy of this

Judgment.

(MRS. SWAPNA S. JOSHI,J.) (B.P. DHARMADHIKARI,J.)

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