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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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