AJAY KUMAR PAL Vs. UNION OF INDIA AND ANR.
Supreme Court of India (Full Bench (FB)- Three Judge)
Writ Petition (Crl.), 128 of 2014, Judgment Date: Dec 12, 2014
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.128 OF 2014
AJAY KUMAR PAL .... Petitioner
Versus
UNION OF INDIA AND ANOTHER .... Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. This petition under Article 32 of the Constitution of India prays
that the sentence of death imposed upon the present petitioner be commuted
to the imprisonment for life for the reasons dealt with in detail
hereafter.
2. In Sessions Trial No.67 of 2005, the court of Special Judge, CBI,
Ranchi by its judgment and order dated 09.04.2007 had awarded death
sentence to the petitioner. The matter reached Jharkhand High Court in
Death Reference No.3 of 2007 and also as a result of the appeal preferred
by the petitioner. The High Court dismissed the appeal and confirmed the
death sentence by its judgment and order dated 28.08.2007, which was
challenged in this Court vide Criminal Appeal Nos.1295-96 of 2007. This
Court concurred with the view taken by the courts below and dismissed the
appeals on 16.03.2010. The death sentence imposed upon the petitioner thus
stood confirmed on 16.03.2010.
3. The petitioner, who was in jail all through out, preferred Mercy
Petitions addressed to the President of India as well as to the Governor of
Jharkhand on 10.04.2010. The Mercy Petitions were immediately forwarded by
the Superintendent, Birsa Munda Central Jail, Ranchi to the appropriate
authorities on 10.04.2010 itself. Said forwarding letter had enclosed the
following documents:
"1. Mercy Petition submitted by the petitioner - one page.
2. Copy of the Order of Additional Judge/Special Judge C.B.I. Ranchi- 48
pages.
3. Copy of the Order of Hon'ble High Court of Jharkhand, Ranchi - 25 pages.
4. Petition filed in the Hon'ble Supreme Court - 33 pages.
5. Hon'ble Supreme Court's Order - 8 pages.
6. Copy of Rule 923(III) of Jail Manual -3 pages"
4. On 27.01.2014 a communication was received by the Superintendent,
Birsa Munda Central Jail from the Officer on Special Duty, Ministry of
Home, Government of Jharkhand that the Mercy Petition was rejected by the
President of India which fact was communicated by the Government of India,
Ministry of Home Affairs vide its letter dated 08.11.2013. Thus, the
petitioner was communicated the result of the disposal of his Mercy
Petition preferred on 10.04.2014, nearly after three years and 10 months.
5. In these circumstances this petition has been preferred. Relying on
the decision of this Court in Shatrughan Chauhan and another v. Union of
India and others[1] it is submitted that because of inordinate delay in
disposal of his Mercy Petition, the death sentence be commuted to
imprisonment for life. It is also submitted that right from the day when
the death sentence was awarded i.e. from 09.04.2007, the petitioner has
been incarcerated in solitary confinement.
6. In Shatrughan Chauhan1 (supra) while dealing with the issue relating
to the maintainability of a petition under Article 32 in similar
circumstances, it was observed that the challenge therein was not with
regard to the final verdict imposing the death sentence but was based on
the supervening circumstances or events that occurred after the
confirmation of the death sentence. Relying on some of its earlier
Judgments, this Court held such petitions under Article 32 to be
maintainable.
7. The challenge in the instant petition is also not with regard to the
verdict wherein the death sentence stands imposed, but the focus is on the
subsequent circumstances which are relied upon in support of the case for
commutation. Holding the present petition maintainable, we now proceed to
deal with the submissions regarding delay in disposal of Mercy Petition and
the effect of solitary confinement as canvassed. While dealing with delay
in execution of death sentence and the resultant effect, we must note that
the Mercy Petitions were forwarded by the Jail Authorities on the very day,
enclosing all the relevant judgments pertaining to the matter. The time of
3 years and 10 months taken in disposal of the Mercy Petition and
communicating the decision thereon is purely to the account of the
authorities and functionaries concerned.
8. The question whether delay in execution of death sentence can be a
sufficient ground or reason for substituting such sentence by life
imprisonment has engaged the attention of this Court over a period of time.
Some of those salient instances are:
(a) In T.V. Vatheeswaran v. State of Tamil Nadu[2] , in an appeal
arising from the Judgment of the High Court confirming the death sentence,
the fact that the appellant was awarded death sentence by the first court
eight years earlier, was noted by this Court. After referring to few
earlier cases, where such delay during the pendency of the appellate
proceedings was considered, it was observed:
"20. ............. In the United States of America where the right to a
speedy trial is a constitutionally guaranteed right, the denial of a speedy
trial has been held to entitle an accused person to the dismissal of the
indictment or the vacation of the sentence (vide Strunk v. United
States [1973] 37 L.Ed. 56). Analogy of American Law is not permissible, but
interpreting our Constitution sui generis, as we are bound to do, we find
no impediment in holding that the dehumanising factor of prolonged delay in
the execution of a sentence of death has the constitutional implication of
depriving a person of his life in an unjust, unfair and unreasonable way as
to offend the constitutional guarantee that no person shall be deprived of
his life or personal liberty except according to procedure established by
law. The appropriate relief in such a case is to vacate the sentence of
death.
21. ........ Making all reasonable allowance for the time necessary for
appeal and consideration of reprieve, we think that delay exceeding two
years in the execution of a sentence of death should be considered
sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death. We therefore
accept the special leave petition, allow the appeal as also the Writ
Petition and quash the sentence of death. In the place of the sentence of
death, we substitute the sentence of imprisonment for life."
(b) Sher Singh and others v. State of Punjab[3] was a case where
the death sentence already stood confirmed by dismissal of appeal and
review petition therefrom by this Court. Relying on the observations in
Vatheeswaran (supra), delay in execution was projected as a ground in a
petition under Article 32 of the Constitution of India. Though the Court
was broadly in agreement with observations in Vatheeswaran (supra) it did
not agree with the statement to the effect ".... that delay exceeding two
years in the execution of sentence of death should be considered sufficient
to entitle the person under sentence to death to invoke Article 21 and
demand the questioning of the sentence of death." However in the context
of Mercy Petitions and exercise of power in connection thereto, it was
observed in para 23 as under:
"23. We must take this opportunity to impress upon the Government of
India and the State Governments that petitions filed under
Articles 72 and 161 of the Constitution or under Sections 432 and 433 of
the Criminal Procedure Code must be disposed of expeditiously. A self-
imposed rule should be followed by the executive authorities rigorously,
that every such petition shall be disposed of within a period of three
months from the date on which it is received. Long and interminable delays
in the disposal of these petitions are a serious hurdle in the dispensation
of justice and indeed, such delays tend to shake the confidence of the
people in the very system of justice. Several instances can be cited, to
which the record of this Court will bear testimony, in which petitions are
pending before the State Governments and the Government of India for an
inexplicably long period. ............... Undoubtedly, the executive has
the power, in appropriate cases, to act under the aforesaid provisions but,
if we may remind, all exercise of power is preconditioned by the duty to be
fair and quick. Delay defeats justice."
(c) The issue was settled by the Constitution Bench decision in
Triveniben v. State of Gujarat[4], where it was concluded "No fixed period
of delay could be held to make the sentence of death inexecutable .......".
The scope and ambit of exercise of jurisdiction in such cases was
delineated thus in para 22:
"22. .......... the only jurisdiction which could be sought to be
exercised by a prisoner for infringement of his rights can be to challenge
the subsequent events after the final judicial verdict is pronounced and it
is because of this that on the ground of long or inordinate delay a
condemned prisoner could approach this Court and that is what has
consistently been held by this Court. But it will not be open to this Court
in exercise of jurisdiction under Article 32 to go behind or to examine the
final verdict reached by a competent court convicting and sentencing the
condemned prisoner and even while considering the circumstances in order to
reach a conclusion as to whether the inordinate delay coupled with
subsequent circumstances could be held to be sufficient for coming to a
conclusion that execution of the sentence of death will not be just and
proper. The nature of the offence, circumstances in which the offence was
committed will have to be taken as found by the competent court while
finally passing the verdict. It may also be open to the court to examine or
consider any circumstances after the final verdict was pronounced if it is
considered relevant. The question of improvement in the conduct of the
prisoner after the final verdict also cannot be considered for coming to
the conclusion whether the sentence could be altered on that ground also."
(d) In Shatrughan Chauhan (supra) after considering law on the point as
regards delay in execution of the death sentence and the resultant effect,
as also the scope and ambit of exercise of power, it was observed in paras
38, 41 and 42 as under:-
"38. In view of the above, we hold that undue long delay in execution of
sentence of death will entitle the condemned prisoner to approach this
Court under Article 32. However, this Court will only examine the
circumstances surrounding the delay that has occurred and those that have
ensued after sentence was finally confirmed by the judicial process. This
Court cannot reopen the conclusion already reached but may consider the
question of inordinate delay to decide whether the execution of sentence
should be carried out or should be altered into imprisonment for life.
41. It is clear that after the completion of the judicial process, if the
convict files a mercy petition to the Governor/President, it is incumbent
on the authorities to dispose of the same expeditiously. Though no time
limit can be fixed for the Governor and the President, it is the duty of
the executive to expedite the matter at every stage, viz., calling for the
records, orders and documents filed in the court, preparation of the note
for approval of the Minister concerned, and the ultimate decision of the
constitutional authorities. This court, in Triveniben (supra), further held
that in doing so, if it is established that there was prolonged delay in
the execution of death sentence, it is an important and relevant
consideration for determining whether the sentence should be allowed to be
executed or not.
42. Accordingly, if there is undue, unexplained and inordinate delay in
execution due to pendency of mercy petitions or the executive as well as
the constitutional authorities have failed to take note of/consider the
relevant aspects, this Court is well within its powers under Article 32 to
hear the grievance of the convict and commute the death sentence into life
imprisonment on this ground alone however, only after satisfying that the
delay was not caused at the instance of the accused himself. To this
extent, the jurisprudence has developed in the light of the mandate given
in our Constitution as well as various Universal Declarations and
directions issued by the United Nations."
9. In the light of the law laid down by this Court, the facts of the
present case need to be considered. The death sentence awarded by the
trial court on 09.04.2007 attained finality on 16.03.2010 with the
dismissal of appeals by this Court. No further proceedings in the form of
review petition etc. were taken on behalf of the petitioner. His Mercy
Petition preferred on 10.04.2010 i.e. within a month of the decision of
this Court was forwarded the same day with all relevant documents so as to
enable the concerned functionaries to exercise requisite jurisdiction.
Though no time limit can be fixed within which the Mercy Petition ought to
be disposed of, in our considered view the period of 3 years and 10 months
to deal with such Mercy Petition in the present case comes within the
expression "inordinate delay". The delay is not to the account of the
petitioner or as a result of any proceedings initiated by him or on his
behalf but is certainly to the account of the functionaries and authorities
concerned.
10. Furthermore, as submitted in the petition, the petitioner has all the
while been in solitary confinement i.e. since the day he was awarded death
sentence. While dealing with Section 30(2) of the Prisons Act, 1894,
which postulates segregation of a person 'under sentence of death' Krishna
Iyer J. in Sunil Batra v. Delhi Administration[5] observed :
"The crucial holding under Section 30(2) is that a person is not 'under
sentence of death', even if the sessions court has sentenced him to death
subject to confirmation by the High Court. He is not 'under sentence of
death' even if the High Court imposes, by confirmation or fresh appellate
infliction, death penalty, so long as an appeal to the Supreme Court is
likely to be or has been moved or is pending. Even if this Court has
awarded capital sentence, Section 30 does not cover him so long as his
petition for mercy to the Governor and/or to the President permitted by the
Constitution, Code and Prison Rules, has not been disposed. Of course, once
rejected by the Governor and the President, and on further application
there is no stay of execution by the authorities, he is 'under sentence of
death', even if he goes on making further mercy petitions. During that
interregnum he attracts the custodial segregation specified in Section
30(2), subject to the ameliorative meaning assigned to the provision. To be
'under sentence of death' means 'to be under a finally executable death
sentence".
Speaking for the majority in the concurring Judgment D.A. Desai J. stated
thus:
"The expression "prisoner under sentence of death" in the context of Sub-
section (2) of Section 30 can only mean the prisoner whose sentence of
death has become final, conclusive and indefeasible which cannot be
annulled or voided by any judicial or constitutional procedure. In other
words, it must be a sentence which the authority charged with the duty to
execute and carry out must proceed to carry out without intervention from
any outside authority ........"
In the light of the enunciation of law by this Court, the petitioner
could never have been "segregated" till his Mercy Petition was disposed of.
It is only after such disposal that he could be said to be under a finally
executable death sentence. The law laid down by this Court was not adhered
to at all while confining the petitioner in solitary confinement right
since the order of death sentence by the first court. In our view, this is
complete transgression of the right under Article 21 of the Constitution
causing incalculable harm to the petitioner.
10. The combined effect of the inordinate delay in disposal of Mercy
Petition and the solitary confinement for such a long period, in our
considered view has caused deprivation of the most cherished right. A
case is definitely made out under Article 32 of the Constitution of India
and this Court deems it proper to reach out and grant solace to the
petitioner for the ends of justice. We, therefore, commute the sentence
and substitute the sentence of life imprisonment in place of death sentence
awarded to the petitioner. The writ petition thus stands allowed.
.............................J.
(Dipak Misra)
.............................J.
(Rohinton Fali Nariman)
.............................J.
(Uday Umesh Lalit)
New Delhi,
December 12, 2014
ITEM NO.1C COURT NO.6 SECTION X
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Criminal) No(s). 128/2014
AJAY KUMAR PAL Petitioner(s)
VERSUS
UNION OF INDIA AND ANR. Respondent(s)
Date : 12/12/2014 This petition was called on pronouncement of
judgment today.
For Petitioner(s) Mrs. Urmila Sirur, Adv. (AC)
For Respondent(s) Mr. Ratan Kr. Choudhary, Adv.
Ms. Binu Tamta, Adv.
Ms. Sushma Suri, Adv.
Hon'ble Mr. Justice Uday Umesh Lalit pronounced the reportable
judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra, Hon'ble
Mr. Justice Rohinton Fali Nariman and His Lordship.
The appeal is allowed commuting the sentence and substituting the
sentence of life imprisonment in place of death sentence awarded to the
petitioner in terms of the signed reportable judgment.
(R.NATARAJAN) (H.S. PARASHER)
Court Master Court Master
(Signed reportable judgment is placed on the file)
-----------------------
[1] 2014 (1) SCALE 437
[2] (1983) 2 SCC 68
[3] (1983) 2 SCC 344
[4] (1989) 1 SCC 678
[5] (1978) 4 SCC 494
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