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IN THE SUPREME COURT OF INDIA
WRIT PETITION (CRIMINAL) NO.128 OF 2014
AJAY KUMAR PAL …. Petitioner
JUDGMENT
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, Page 2 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:
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. Page 3
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 Chauhan[1] (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 2014 (1) SCALE 437 Page 4 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:
(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:
(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
Page 7 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 Page 8 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
Page 9 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 Page 10 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) (Rohinton Fali Nariman) (Uday Umesh Lalit) New Delhi, December 12, 2014 Page 11 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) (Signed reportable judgment is placed on the file)