Khem Chand, Petitioner V. The State, Respondent.
DATE : 03-11-1989
1990-(096)-CRLJ -2314 -DEL
JUDGE(S) :
M K Chawla
S B Wad
DELHI HIGH COURT
JUDGMENT
M. K. CHAWLA, J. :- The petitioner Shri Khem Chand is an old man
of 70 years. He has a young and good looking unmarried daughter.
One Kishori Lal, though married, had developed intimate relations
with the petitioner's daughter. Petitioner came to know of this
affair. He asked Kishori Lal either to stop meeting his daughter
or marry her. Kishori Lal initially promised, but subsequently
resiled. The case of the prosecution is that on the night of 23rd
March, 1978, the petitioner in conspiracy with one Babu Lal committed
the murder of not only Kishori Lal, against whom he had a grouse,
but also of his wife, Kamla, his daughter Krishna and son Sushil
Kumar. The petitioner (and Babu Lal) were convicted and sentenced
to imprisonment for life by the order of Addl. Sessions Judge,
Delhi on 17th November, 1980 as the petitioner was quite old.
Against this judgment, the petitioner preferred an appeal before
the High Court, whereas the Delhi Administration moved the petition
for enhancement of sentence of imprisonment awarded to the petitioner,
to that of death. Vide order dated 13th October, 1983, this Court
dismissed the appeal of the petitioner but allowed the revision
and sentenced the petitioner to death. The special leave petition
of the petitioner was dismissed in limine by the Supreme Court
on 20th February, 1984.
2. After few days, the petitioner sent a mercy petition to the
President of India. When more than two years elapsed in the disposal
of his mercy petition, the petitioner approached the Supreme Court
by way of writ petition under Article 32 of the Constitution of
India seeking the issuance of an appropriate writ, order or direction
to quash the sentence of death and substituting in its place a
sentence of imprisonment for life. Since the mercy petition was
still pending, the petition was dismissed in limine by the Supreme
Court on 14th April, 1987 as being premature. Ultimately, on 16th
December, 1988, the petitioner was informed that his mercy petition
has been rejected by the President.
3. In the present petition, the petitioner seeks the issuance
of a writ, order or direction for quashing the sentence of death
awarded to him and substitute in its place a sentence of imprisonment
for life, on the short ground that the inordinate delay of more
than 65 months in the execution of the sentence of death has caused
inhuman degradation and misery. During this period, he has suffered
tuberculosis (TB) and now is at an advance stage, and without
any medical relief, he is being confined to condemned cell. The
prayer is being opposed by the respondent-State.
4. In case reported as Bachan Singh v. State of Punjab, (1980)
2 SCC 684 : (1980 Cri LJ 636 and 1982 Cri LJ NOC 193), the sentence
of death has been held to be constitutional and not violative
of Articles 14, 19 and 21. Speaking for the Court, Sarkaria, J.
(Bhagwati, J. dissenting) observed :-
"There are several indications in the constitution which
show that the Constitution makers were fully cognizant of the
existence of death penalty for murder and certain other offences
in the Indian Penal Code. The mention in the Legislative list,
right of Governor and president to suspend, commute or remit death
sentence and right of appeal to the Supreme Court under Article
134, show that death penalty or its execution cannot be regarded
as an unreasonable cruel or unusual punishment. Nor can it be
said to defile "the dignity of the individual" within
the preamble to the Constitution. On party of reasoning, it cannot
be said that death penalty violates the basic structure of the
Constitution."
5. So far so good. But the question posed before us is, whether
in a case where after the sentence of death is given, the accused
person is made to undergo inhuman and degrading punishment and
the execution of the sentence is endlessly delayed as a result
of which the accused is made to suffer the most excruciating agony
and anguish, is it not open to a court of appeal or a court exercising
writ jurisdiction, in an appropriate case to take note of circumstances
when it is brought to its notice and give relief as prayed for,
if necessary.
6. Article 21 of the Constitution of India clarifies and crystalises
the general principle that no person shall be deprived of his
life or personal liberty except according to procedure established
by law. In Maneka Gandhi v. union of India, (1978) 2 SCR 621 :
(AIR 1978 SC 597), an expanded meaning has been given to this
Article in accordance with the interpretative principles. The
Supreme Court held :-
"No person shall be deprived of his life or personal liberty
except according to fair, just and reasonable procedure established
by valid law."
7. In converse positive form, the expanded Article will read as
follows :
A person may be deprived of his life or personal liberty in accordance
with the fair, just and reasonable procedure established by valid
law.
This provision, that no one can be deprived of these rights except
according to the procedure established by valid law, shall clearly
amount to a substantive provision of law and the mere fact that
it states that a certain procedure must be followed, if the right
to life or personal liberty is to be affected, does not render
the article merely a procedural enactment. Even though the offence
of murder is proved and the accused is sent to jail, it is the
duty of the Court to ensure that the deprivation of liberty is
accompanied by curative strategy and human dignity. Article 21
of the Constitution is the jurisdictional root for this legal
liberalism.
8. The question whether a prisoner under a lawful sentence of
death or imprisonment could claim fundamental rights, was considered
in Bhuvan Mohan Patnaik v. State of A.P., AIR 1974 SC 2092 : (1975
Cri LJ 556), the Court declared :-
"The convicts are not, by mere reason of the conviction denuded
of all the fundamental rights which they otherwise possess. The
compulsion under the authority of law, following upon a conviction
to live in a prison house entails by its own force the deprivation
of fundamental freedom like the right to move freely throughout
the country of India or the right to practise a profession. A
man of profession would thus stand striped off his right to hold
consultations while serving out his sentence. But the constitution
guarantees other freedoms like the right to acquire, hold and
dispose of property for the exercise of which incarceration can
be no impediment. Likewise, even a convict is entitled to the
precious right guaranteed under Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty
except according to the procedure established by law."
9. Taking the said principle to its logical conclusions, the Division
Bench of the Supreme Court in case reported as T. V. Vatheeswaran,
v. State of Tamil Nadu, (1983) 2 SCC 68 : (1983 Cri LJ 481), held
(at p. 486 of Cri LJ) :-
"So, what do we have now ? Articles 14, 19 and 21 are not
mutually exclusive. They sustain, strengthen and nourish each
other. They are available to prisoners as well as free man. Prison
walls do not keep our Fundamental Rights. A person under sentence
of death may also claim Fundamental Rights. The fiat of Article
21, as explained, is that any procedure which deprives a person
of his life or liberty must be just, fair and reasonable. Just,
fair and reasonable procedure implies a right to free legal services
where he cannot avail them. It implies a right to a speedy trial.
It implies humane conditions of detention, preventive or punitive.
'Procedure established by law' does not end with the pronouncement
of sentence. It includes the carrying out of sentence. That is
as far as we have gone so far. It seems to us but a short step,
but a step in the right direction, to hold that prolonged detention
to await the execution of a sentence of death is an unjust, unfair
and unreasonable procedure and the only way to undo the wrong
is to quash the sentence of death."
10. Having gone so far, the Supreme Court was then faced with
the problem as to what should be considered the prolonged delay
so as to attract the constitutional protection of Article 21 of
the Constitution of India. This question has been the topic of
discussion since the case of Piare Dusath v. Emperor, AIR 1944
FC 1 : (1944-45 Cri LJ 413). In that case, the Court took into
consideration that circumstances that the appellant had been awaiting
the execution of his death sentence for over a year, to alter
the sentence to one of transportation for life.
11. In State of U.P. v. Lalla Singh, AIR 1978 SC 368 : (1978 Cri
LJ 359), the Division Bench was dealing with the case of gruesome
murder of three persons, the head of one of whom was severed.
Learned Judges while taking the view that the Sessions Judge was
perfectly right in imposing the sentence of death, thought that
as the offences had been committed more than 6 years ago, the
ends of justice did not require the sentence of death to be confirmed.
Bhagwan Bux Singh and another v. State of U.P., AIR 1978 SC 34
: (1978 Cri LJ 153) was another case where the sentence of death
was commuted to imprisonment for life having particular regard
to the facts that the sentence of death had been imposed more
than 2 1/2 years before.
12. In Sadhu Singh v. State of U.P., AIR 1978 SC 1506 a Division
Bench of the Supreme Court took into consideration the circumstances
that the appellant was under spectre of the sentence of death
for over 3 years and 7 months, and altered the said sentence to
one of imprisonment for life.
13. In the case of State of U.P. v. Sahai, AIR 1981 SC 1442 :
(1981 Cri LJ 1034), the Supreme Court while holding that the murders
were extremely gruesome, brutal and dastardly, nonetheless declined
to pass the sentence of death on the ground that more than 8 years
had elapsed since the occurrence.
14. Quoting with approval, the law laid down in the above said
authorities, the Supreme Court in T. V. Vatheeswaran (1983 Cri
LJ 481) (supra) was faced with the ticklish questions as to from
which date the delay in the execution of the sentence of death
be considered justified to attract the provisions of Article 21
of the Constitution. In a nutshell, this question was summarised
thus :-
"Procedure established by law does not end with the pronouncement
of sentence but includes the carrying out of the sentence. Prolonged
delay in execution of a sentence of death has dehumanising effect
whatever may be the cause of delay, be it the time necessary for
appeal and consideration of reprieve or some other cause for which
the accused himself may be responsible. This dehumanising factor
of prolonged delay has the constitutional implication of depriving
the person of his life in an unjust, unfair and unreasonable way
so as to offend Article 21. It is open to the Court of appeal
or a court exercising writ jurisdiction in an appropriate proceedings
to take note of the circumstances when it is brought to its notice
and give relief where necessary."
"Having regard to the period considered by the Supreme Court
in various cases, to be sufficient to justify interference with
the sentence of death and making of reasonable allowances for
the time necessary for appeal and consideration of reprieve, it
must be held that the delay exceeding 2 years in the execution
of a sentence of death is sufficient to entitle the person under
sentence of death to invoke Article 21 and demand quashing of
the sentence of death."
With this observation, in place of sentence of death, the sentence
of imprisonment for life was substituted.
15-16. In the subsequent case reported as Sher Singh v. State
of Punjab (1983) 2 SCC 344 : (1983 Cri LJ 803) the Supreme Court
while disposing of the S.L.P. at its admission stage, quoted with
approval the interpretation of Article 21 of the Constitution
of India in T. V. Vatheeswaran (1983 Cri LJ 481) (SC) (Supra),
but partially overruled the said cases on the question of delay
in the disposal of the mercy petitions and the execution of sentence
of death. While disposing of the petition, on the first aspect,
the Court held :-
"Article 21 stands like a sentinal on human misery, degradation
and oppression, All procedure at all stages the trial, the sentence,
the incarceration and finally the execution of the sentence -
must be just, fair and reasonable. So even if the question of
sentence is finally settled by the Supreme Court Article 21 will
not cease to operate at subsequent stages even though the sentence
of death was justified when passed, its execution in the circumstances
of the case, may not be justified by reason by unduly long lapse
of time since the confirmation of that sentence by the Court."
17. On the second aspect of the grounds of delay caused in executing
the sentence of death, the court further observed :-
"But to absolute or unqualified rule can be laid down that
in every case in which there is a long delay in the execution
of death sentence, the sentence must be substituted by the sentence
of life imprisonment. Moreover, time limit of 2 years for execution
of death sentence, as fixed by the Court in T. V. Vatheeswaran's
case (1983 Cri LJ 481) (SC) (supra) runs in the teeth of common
experience as regards the time generally occupied by proceedings
in the High Court, the Supreme Court and before the executive
authorities. This is apart from the time which the President or
the Governor as the case may be, takes to consider petitions filed
under Article 72 or Article 161 of the constitution or the time
which the Government takes to dispose of applications filed under
Section 432 and 433 of the Code of Criminal Procedure."
The Court further took note of the statistics of the disposal
of cases in the High Court and the Supreme Court with a view to
appreciate that a period for exceeding 2 years is generally taken
by the Courts together for the disposal of matters involving even
the death sentence. It is a common experience that very often
4 or 5 years elapse between the imposition of death sentence by
the Sessions Court and the disposal of Special Leave Petition
or an appeal by the Supreme Court in that matter. The other aspect
which weighed with the Court in not agreeing to lay down the time
limit of 2 years in the execution of the sentence of death was,
that in some cases the delay in execution of death sentence is
attributable to the fact that the accused has resorted to a series
of untenable proceedings which have the effect of defeating the
ends of justice. It is not uncommon that a series of review petitions
and writ petitions are filed in the Supreme Court to challenge
Judgments and orders which have assumed finality, without any
seeming justification. Stay orders are obtained in those proceedings
and then at the end of it all, comes the argument that there has
been prolonged delay in implementing the judgment or order.
18. While exercising discretion, the Courts have not only to go
by the delay in altering the sentence of death to that of life
imprisonment but has also to keep in mind the nature of the offence,
the diverse circumstances attended upon it, its impact on the
contemporary society and the question whether the motivation and
the pattern of the crime was such as was likely to lead to its
repetition if the death sentence is vacated.
19. The question of delayed execution of capital sentence was
reagitated in the Supreme Court before a Constitution Bench in
case Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335 : (1990
Cri LJ 1810) to resolve the conflict of decisions of a two-judge
Bench in T. V. Vatheeswaran (1983 Cri LJ 481 (SC) (supra) and
a three-Judge Bench in Sher Singh (1983 Cri LJ 803) (SC) (supra).
The delay which was sought to be relied upon by the accused was
at two stages. The first stage covered the time taken in the judicial
proceedings. It was the time that the parties had spent for trial,
appeal, further appeal and review. The second stage took into
its fold the time utilised by the Executive in the exercise of
its prerogative of Clemancy. As per the majority opinion :
"The delay which could be considered while considering the
question of commutation of sentence of death into one of life
imprisonment could only be from the date the Judgment of the Apex
Court is pronounced i.e. when the judicial process had come to
an end. The time that has elapsed from the date of the offence
till the final decision is taken into account by the courts and
often lesser sentence is ordered only on this account by the Supreme
Court."
20. Thus, the only delay which would be material for consideration
will be subsequent to the final decision of the Court, i.e. the
delay in disposal of the mercy petitions or delays occurring at
the instance of the Executive. Therefore, when such petitions
under Article 72 or 161 are received, by the authorities concerned,
it is expected that the petitions shall be disposed of expeditiously.
21. The Constitution Bench was further of the opinion that so
long as the matter is pending in any court before final adjudication,
even the person who has been condemned or who has been sentenced
to death has a ray of hope and he does not suffer that mental
torture which a person suffers when he knows that he is to be
hanged but waits for the doom's day. "As between the funeral
fire and mental worry, it is the latter which is more devastating,
for funeral pyre burns only the dead body while the mental worry
burns the living one." This mental torment may become acute
when the judicial verdict is finally set against the accused.
If, therefore, there is inordinate delay in execution, the condemned
prisoner is entitled to come to the Court requesting to examine,
whether it is just and fair to allow the sentence of death to
be executed. Even thereafter, the Court has still to consider
as observed in Sher Singh's case (1983 Cri LJ 803) (SC) (supra),
the nature of offence, diverse circumstances attending upon it,
its impact on the contemporary society and the question whether
the motivation and the pattern of crime are such as are likely
to lead to its repetition which must enter into the verdict as
to whether the sentence should be vacated for the reasons that
its execution is delayed.
22. In the latest Judgment of the Supreme Court reported as Madhu
Mehta v. Union of India (1989) 3 JT 465 : (1989 Cri LJ 2321),
the Division Bench quoted with approval, the law laid down in
the abovesaid decisions of the Supreme Court and finally held
that as in the instant case, Gyasi Ram has suffered a great deal
of mental agony for over 8 years, we do not find reasons sufficiently
commensurate to justify such long delays. As the convict has suffered
mental agony of living under the shadow of death far too long,
he should not suffer that agony and longer. Sentence of death
imposed upon him as altered to imprisonment for life.
23. Admittedly, in this case, there is a long delay of about 4
1/2 years in the consideration and disposal of the mercy petition.
This delay is sought to be explained by the respondents in their
counter thus :-
"Consideration of the mercy petition took sometime as the
relevant documents viz. Judgments of the trial court, High Court
and the Supreme Court, Police diary and paper books were not received
with the mercy petition and had to be obtained. Those documents
were received by July, 1986. However, there has been no inordinate
delay in reaching a decision on the mercy petition of the petitioner."
We are not impressed with this explanation. It can hardly be termed
as a valid and convincing explanation for the disposal of the
mercy petition. The petitioner was convicted and sentenced by
the Addl. Sessions Judge, Delhi. His appeal and special leave
petition were disposed of by the High Court and Supreme Court
respectively. The records of the case, including the police diaries
were available at Delhi and could have been requisitioned within
no time. Under no circumstances, this process could take more
than 4 years. The explanation thus is untenable and is rejected.
24. Applying the law laid down by the Supreme Court as discussed
earlier, so far as the petitioner is concerned, he has been under
spectre of sentence of death since 20-2-84 when his Special Leave
Petition was dismissed by the Supreme Court. Thereafter, he has
sent the mercy petition to the President on 1-3-84. The said petition
was disposed of only on 16-11-88. No reasonable justification
for the delay of more than 4 1/2 years in the consideration of
the mercy petition has been furnished by the respondents in their
counter affidavit. Ever since the dismissal of his appeal by this
Court in October, 1983, the petitioner has been kept in the condemned
cell. Because of the prolonged anguish and the alternating hope
and despair, the agony of uncertainty, coupled with the consequences
of such suffering on the mental, emotional and physical integrity,
he has gone so weak that the advanced stage of tuberculosis in
causing concern to his life. Keeping in view his old age, we are
of the opinion that there is no likelihood of his repeating the
offence if his sentence is converted to imprisonment for life.
He has also not been guilty of prolonging the disposal of judicial
process by filing frivolous petitions in this Court or in the
Supreme Court nor has he obtained any stay of execution of his
sentence. He has thus made out a case for the acceptance of his
petition.
25. This aspect can also be looked into from another angle. It
is well settled that the power of judicial review attends to the
examination of the orders passed under Articles 72 and 161 of
the Constitution of India. These orders are justiciable on any
of the following grounds :-
1) That the authority, which purported to have exercised the power
has no jurisdiction to exercise the same :
2) That the impugned order goes beyond the extent of the power
conferred by the provisions of law under which it is purported
to be exercised;
3) That the order has been obtained on grounds of fraud or that
the same having been passed taking into account extraneous considerations
not germane to the exercise of the power conferred or, in other
words, that the order is a result of mala fide exercise of power.
26. It may, however, be observed that the exercise of power in
this regard cannot be questioned on the ground of adequacy or
inadequacy of the reasons which resulted into the passing of the
said order. The court is not entitled to investigate the matter
on merits but can certainly go into the question whether the power
given has been exercised mala fide or not. (AIR 1975 Punj &
Har 148 (1975 Cri LJ 902) (FB); (1976) 1 SCC 157; (1981) 1 SCC
107 : (1980 Cri LJ 1440) and (1989) 1 SCC 204 : (1989 Cri LJ 941).)
27. The contention of the petitioner is that the president has
not exercised his powers vested in him inasmuch as he has not
examined the case on merits. Learned counsel in this behalf relies
upon the case Kehar Singh v. Union of India, (1989) 1 SCC 204
: (1989 Cri LJ 941).
28. It is an admitted case that in his mercy petition, the petitioner
has requested the President to go into the merits of his case
as according to him, his conviction was not sustainable in law.
This mercy petition, as observed earlier, was dismissed by the
President on 16th November, 1988.
29. Kehar Singh, one of the accused in Indira Gandhi murder case
was convicted or an offence under Section 120-B read with Section
302 IPC and sentenced to death by the Addl. Sessions Judge, New
Delhi. His appeal to the High Court and Special Leave Petition
and a review petition to the Supreme Court were dismissed. On
14th October, 1988, his son Rajinder Singh presented a petition
to the President of India for grant of pardon under Article 72
of the Constitution. Along with this petition, an opportunity
of a personal hearing was prayed for. The counsel for the petitioner
also wrote to the president requesting for an opportunity to present
the case before him. This request was declined by mentioning that
in accordance with "the well established practice in respect
of a consideration of mercy petitions, it has not been possible
to accept the request for hearing." On November 3, 1988,
another letter was addressed to the President by the counsel,
refuting the existence of any practice not to accord a hearing
on a petition under Article 72 and requesting him to reconsider
his decision to deny a hearing. On November 15, 1988 the Secretary
to the president wrote to the counsel as follows :-
"Reference is invited to your letter dated November 3, 1988
on the subject mentioned above, the letter has been perused by
the President and its contents carefully considered. The President
is of the opinion that he cannot go into the merits of a case
finally decided by the highest court of the land.
Petition for grant of pardon on behalf of Shri Kehar Singh will
be dealt with in accordance with the provisions of the Constitution
of India."
30. The President thereafter rejected the petition under Article
72 and on November 24, 1988 Kehar Singh was duly informed of the
order.
31. Aggrieved from the order of not affording an opportunity of
hearing by the President, Kehar Singh filed a petition before
the Supreme Court, raising the question as to whether there is
justification for the view that when exercising his power under
Article 72, the President is precluded from entering into the
merits of the case decided finally by the Court. This question
was duly considered in the case of Kehar Singh (1989 Cri LJ 941)
(SC) (Supra). The Constitution Bench on consideration of the relevant
law on the subject and the contentions raised at the Bar, held
that the question as to the area of President's power under Article
72 falls squarely within the judicial domain and can be examined
by the court by way of judicial review. However, there is no right
in the condemned prisoner to insist on his oral hearing before
the President. The manner of consideration of the petition lies
within the discretion of the President and it is for him to decide
how best he can acquaint himself with all the information that
is necessary for its proper and effective disposal. The President
may consider sufficient the information furnished before him in
the first instance or he may send for further material relevant
to the issue which he considers pertinent and he may if he consider
it will assist him in treating with the petition giving on oral
hearing to the parties. In fact the matter lies entirely within
his discretion. In the end, it was held (at p. 950 of 1989 Cri
LJ 941) (SC) :-
"In the result, having regard to the view taken by us on
the question concerning the area and scope of President's power
under Article 72 of the Constitution, we hold that the petition
invoking that power shall be deemed to be pending before the President
to be dealt with and disposed of afresh. The sentence of the death
imposed on Kehar Singh shall remain in abeyance meanwhile."
Subsequently on reconsideration of the mercy petition the President
was pleased to reject the same.
32. The sequence of Kehar Singh's case (1989 Cri LJ 941) (SC)
goes to show that between November 15, 1988 and November 24, 1988,
the President was under a mistaken view that he could not entertain
the merits of the case in exercise of his jurisdiction under Article
72 once it has finally been settled by the Apex Court. The petitioner's
mercy petition was dismissed on November 16, 1988.
Having regard to the common course of natural events and human
conduct, the only conclusion possible is that while disposing
of the mercy petition of the present petitioner, the President
did not go into the merits of the case and as such did not exercise
jurisdiction vested in him or alternatively he has exercised jurisdiction
vested in him or alternatively he has exercised jurisdiction vested
in him with material irregularity.
33. Learned counsel for the respondent submitted that the only
course open to the petitioner under the circumstances was to file
the petition to the Supreme Court under Article 32 of the Constitution
of India and the present petition is not maintainable. We do not
agree with this submission. Independently of any fundamental rights
provided by any written constitution, it is an established principle
of law that the Executive cannot take away the life and liberty
of a person on its own responsibility unless it has the support
of some legal provisions for doing so. In effect, Article 21 has
only guaranteed a principle which was already well established
insofar as the right of a person to his life or liberty, is concerned.
The Article has crystallised and given a permanent place as a
fundamental principle of the Constitution to a principle which
was previously only a part of the common law. Under this Article,
the Court has to examine under the authority of which law, action
is being taken. The Court in fact has to see what is the procedure
required by law for depriving a person of his life or personal
liberty and whether such a procedure has been followed in the
particular case, for the Constitution has provided that unless
such procedure is followed, a person cannot be deprived of his
life and personal liberty.
34. The right under this Article may be enforced by application
under Article 32 of the Constitution or by the High Court under
Article 226 of the Constitution. This Court is equally under an
obligation to safeguard and protect the life and personal liberty
of an individual if the Executive threatens to invade without
due process of law. The plea thus has no merit.
35. In this view of the matter, there are two options open to
this Court, either to remand the case back to the President for
reconsideration of the mercy petition or to pass an appropriate
order keeping in view the circumstances of the case. Initially,
the President delayed the consideration of the petitioner's mercy
petition for 4 years and 8 1/2 months. It was rejected on the
grounds not tenable under law. The result of the delayed disposal
of the mercy petition has been that the petitioner who is an old
and ailing person has been kept on tenterhooks for the last more
than 5 1/2 years. During this period, he has undergone tremendous
mental torture and agony. The remittance of the matter to the
President for his fresh decision would only add to the further
agony of uncertainty, mental torture, physical pain and the anguish
of alternating hope and despair. It is in the fitness of things
that the petitioner's petition is disposed of here and now.
36. Before parting with the petition, we may express our concern
and displeasure on the working of the Department dealing with
the mercy petitions. Time and again, it has been brought to the
notice of the Government that any inordinate delay in the disposal
of the mercy petition of a condemned prisoner can be taken serious
note of by the courts. Sentence of death of many of the prisoners
has been reduced to imprisonment for life on that score. In the
case of Harbans Singh v. State of U.P. (C.W.P. 7453/81) the Supreme
Court allowed the review petition and reduced the sentence of
death imposed upon the petitioner to imprisonment for life on
the short ground that even after remand, the President failed
to reconsider the mercy petition within a reasonable time. While
disposing of the petition, the Court observed :
"It cannot be too eloquently and emphatically emphasised
that there is imperative urgency in matters concerning life and
death. We would have been happier and the petitioner Harbans Singh
could have been spared the pangs of the death cell if the Government
had responded to our recommendation within a reasonable time.
That time has passed by any test. Accordingly, we reduce the sentence
of death imposed upon the petitioner to imprisonment for life."
In order to avoid such like delays, it is desirable that the Department
should maintain the record of chronological dates of the events
which have bearing on the disposal of the petitioner and the steps
taken from the date the mercy petition is received. There should
also be a periodical review of the cases as to why the delay is
being caused, by the concerned authorities. This would obviate
the possibility of any undue delay in the disposal of the mercy
petition, in future.
37. In the circumstances of the case, we consider it to be a fit
case where the sentence of death imposed upon the petitioner be
reduced to imprisonment for life. Order accordingly.
38. In the end, we place on record our high appreciation of the
hard work and able arguments put forth by Shri Rajeev Sharma appearing
for the petitioner in this legal-aid matter. He was fully prepared
with the facts and the latest authorities of the Supreme Court
on the subject.
Order accordingly.
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