Sharomani Akali Dal (Mann) And Another, Petitioners
V. State Of J. And K. And Others, Respondents.
DATE : 24-12-1991
1993-(099)-CRLJ -0927 -J&K
JUDGE(S) :
B A Khan
JAMMU & KASHMIR HIGH COURT
ORDER
Who does not want to live and keep away from lethal noose, condemned
prisoner, Raj Gopal Nayyar, is no exception, consistent with his
long drawn struggle to stay alive, he along with Mr. S. Simaranjit
Singh Mann. President of Sharomani Akali Dal (Mann), has filed
these two writ petitions seeking commutation of death sentence
to life imprisonment. The two petitions are being disposed of
by a common order as identical questions of law and fact are involved.
2. Nayyar's flight for life has had a chequered history and hitherto
he has avoided gallows despite repeated failure on all fronts.
He was awarded death sentence by the Sessions Court for killing
his father and step-brother way back on April 24, 1986. His appeal
was rejected by this Court and death penalty confirmed on March
28, 1988. His Special Leave Petition in the Supreme Court also
met the same fate on July 11, 1988. So did his review petition
which was also rejected on August 23, 1988 and consequently his
conviction and sentence of death was confirmed and upheld by all
Courts.
3. On conclusion of legal process, Nayyar naturally restored to
filing of clemency petitions. First petition was filed before
the Governor, which came to be rejected on May 15, 1989. This
was followed by two other petitions to the President which also
earned dismissal. A Black warrant was issued against him for execution
of sentence on February 15, 1991, which he avoide by obtaining
stay order from the Supreme Court on a writ petition filed by
his son which was dismissed on May 8, 1991.
4. Thereupon Nayyar launched yet another round of litigation in
this court, this time through his wife, Shashi Nayyar. She filed
Writ Petition No. 569 of 1991, seeking commutation of sentence
on ground of delay in execution which was dismissed on Sept. 17,
1991. Aggrieved by this, she filed an L.P.A. which was also dismissed
on Oct. 23, 1991.
5. Meanwhile, another Black warrant was issued for carrying out
execution on Oct. 23, 1991. This aborted and execution could not
be carried out on appointed time and date for reasons which will
be adverted to later. Incidentally it is this failure which is
at the root of present controversy.
6. Be that as it may, another warrant was issued by the Sessions
Court for Oct. 26, 1991, which was stayed by the Supreme Court
in Writ
Petition (Criminal) No. 1339/1991, challenging constitutional
validity of death penalty. This petition was dismissed on Oct.
29, 1991. Then came the last warrant fixing execution on Nov.
15, 1991 and promoting petitioners to file these two petitions
and also a special Leave Petition before Supreme Court, which
was eventually withdrawn. Petitioner, S. Mann, also filed a mercy
petition before the Governor, which was rejected.
7. It is this back-drop that Nayyar's fresh bid to escassype noose
has to be examined and considered. I do not propose to go into
the controver surrounding Mr. Maan's locus standi to file petition
No. OWP 1062 of 1991, demanding commutation of sentence for the
condemned prisoner. Because even if it had to be held that Mr.
Mann had no locus still questions and contentions raised would
have to be considered and determined any way, given regard to
seriousness of controversy, which persuaded me also to grant full-dress
hearing to parties even at preliminary stage. Therefore, locus
issue can conveniently be shelved at this stage and saved for
determination on some other appropriate occasion.
8. Petitioner's case primarily resolves round jail authorities
failure to execute the prisoner on Oct. 23, 1991. Therefore, what
happened on that fateful day requires to be brought out, though
briefly, as borne by record. Jail Superintendent's version is
that Black warrant was received in his office on Oct. 22, 1991,
directing execution to be carried out on Oct. 23, 1991 at 9 a.m.
Consequently, preparatory steps were initiated, as provided in
Chapter XXXI of Jail Manual. These included informing all concerned,
constituting a Board of doctors, putting the hang-man on test
and so on. A letter was addressed to prisoner informing him about
the time of execution and if he had to make any will. When executioner
was medically examined at 3 p.m. he was found to be very apprehensive
and nervous. In the meanwhile, an application was received from
prisoner's wife requesting for deferring of execution on the ground
of pending Letters Patent Appeal before High Court. These two
developments were brought to the notice of Sessions Judge, Jammu
who pleaded his helplessness in the matter. All this happened
on 22nd Oct. 1991.
9. On the crucial date (23rd Oct. 1991) prisoner woke up at 5
A.M. He had his bath and offered his prayer. Side by side preparatory
exercise went to Hangman was again medically examined at 8 a.m.
but he showed no improvement.
10. Wife and other relations were allowed to meet the prisoner
at 8.30 a.m. It was about this time that Jail Superintendent accompanied
by others concerned visited the cell. He was requested to put
off the execution by prisoner's wife and Advocate Mr. Goni till
fate of appeal filed before High Court was known. Upon this, so
it seems, prisoner was informed that he will not be hanged. Thereafter,
Jail Suprintendent addressed a communication to Sessions Judge
returning the Black warrant and requesting for sufficient time
to be given for execution of death sentence. Taking cognizance
of this, Sessions Judge vide his order dated Oct. 23, 1991 issued
second warrant, directing execution to be carried out on Oct.
26, 1991 at 7 a.m. This warrant was stayed by Supreme Court in
Writ Petition (Crl) No. 1339 of 1991.
11. The crux of petitioner's case is that Jail authorities failure
to execute Nayyar on Oct. 3, 1991 amounted to execution virtually
having been carried out and that he could not be subjected to
the ordeal second time, as that would mean taking away his life
in violation of procedure established by law. The argument is
buttressed by portraying picture of acute torment and horror,
pain, anxiety and agony suffered by the prisoner during interregnum
between the time he was informed of execution and its postponement.
All this entitled him to a reprieve and death sentence deserved
to be vacated and substituted by a life term is the refrain of
thesis advanced.
12. The submissions originate from Art. 21 of the Constitution,
as is usual in these types of cases. According to Dr. Wadera,
learned counsel for petitioners, sweep and ambit of Art. 21 extends
till the life lasts. Its benefit is available even to a condemned
prisoner waiting in a death row. Therefore, even such prisoner
cannot be deprived of his life except according to just, fair
and reasonable procedure established by law, which is to be strictly
followed. Any breach of procedure is fatal and entitles a prisoner
to release from capacity. In this case since procedure of execution
in terms of warrant issued for Oct. 23, 1991 was not complied
with and as procedure established by law did not provide for a
second warrant of execution, condemned prisoner could not be deprived
of his life in violation of mandate of Art. 21 of the Constitution.
13. Dr. Wadera asserted that Section 381, Cr.P.C. envisaged only
one warrant and once it was issued by the Sessions Court it could
be only returned unless execution was carried out, save in five
situations, which could result in killing of original warrant
enabling the Sessions Judge to issue a second one. He listed these
five contingencies as under :-
i) Stay order by Supreme Court;
ii) Stay order by High Court;
iii) Mercy Petition under consideration of Governor;
iv) Mercy Petition pending with the Presidents and
iv) Condemned prisoner being a pregnant woman at the time of execution.
14. The learned counsel prefaced his contention by maintaining
that power to issue a death warrant was vested only with High
Court. He placed reliance in this regard on provisions of Sections
376 and 381, Cr.P.C. to canvass that Sessions Judge had no competence
to issue a second warrant and that he becomes functous officio,
except in five legal situations, referred to hereinabove. His
action of issuing fresh warrant for Oct. 26, 1991 was illegal
as it was not authorised by any procedure established by law,
particularly the Criminal Procedure Code, which did not contain
any provision for issuance of second warrant.
15. Placing reliance on Dena's case, AIR 1983 SC 1155 : (1983
Cri LJ 1602) learned counsel argued that if a prisoner was sentenced
to death it was lawful to execute the punishment and that only
and he could not be subjected to humiliation, torture or degradation
before execution of that sentence, not even by way of necessary
steps in the execution of the sentence nor could he be treated
unreasonably, unfairly and cruelly. That being the position, the
extent and amount of horror, pain and agony suffered by the prisoner
in this case after he was informed about proposed execution required
to be taken consideration for altering sentence of death. To substantiate
his contention, learned counsel referred to Science of "Thanatology"
and placed the prisoner's case in 'terminality period' to high
light the dehumanising factor.
16. Dr. Wadera also made some peripheral submissions questioning
constitutional validity of Section 367, Cr.P.C. and some provisions
of Jail Manual, which have no immediate bearing on the merit of
controversy as such.
17. Supplementing these arguments, Mr. M. A. Goni pointed to "brooding
horror" that must have haunted the prisoner after being informed
about the time of execution. To him, Jail authorities were not
competent to order postponement of execution for reasons which
were neither legal nor reasonable. According to him, Sessions
Court had no competence to issue second Black Warrant. He raked
up the issue of denial of presentence hearing to the prisoner
and wanted it to be considered as a mitigating circumstance for
vacation of death sentence. For this, he derived support from
Malkiat Singh's case (reported in 1991 (2) Crimes 191 to urge
pre-sentence hearing contemplated allowing parties to place relevant
material before the court besides adducing any evidence to show
any mitigating circumstances.
18. The edifice built by petitioner's counsel appeared crumbling
on Mr. R. C. Gandhi, Addl. A.G. Launching a major counter offensive.
According to him "theory of one warrant" was both illogical
and irrational and if accepted would lead to most absurd results
defeating a sentence of death in a situation where a warrant was
mis-placed, defeced or stolen. Black warrant was only a means
to achieve an end which is to carry into effect the sentence awarded.
Therefore, till end was achieved any number of warrants could
be issued by the Sessions Court, depending upon the circumstances
in each case and besides warrant such other steps could have been
taken as are felt necessary by the court. He referred to Section
400, Cr.P.C. to submit that only that warrant had to be returned
to the court where sentence had been fully executed. Where it
had not been (taken ?) there was no bar to return the warrant
to the trial court requesting for a new endorsement in the original
warrant or for issuance of second warrant. He cited Ranga-Billa
case to show that there was also no death of precedent for deferring
the execution of death sentence.
19. Repelling contentions about dehumanising factor connected
with post-ponement of execution of Oct. 23, 1991, Mr. Gandhi,
AAG, submitted that pain and agony are constant companions of
a condemned prisoner. A difference of degree here and there could
not constitute a sole mitigating circumstance for altering the
sentence of death.
20. Reading from Jail record, he pointed out that Jail authorities
could never anticipate a sudden nervous break down of the execution
on 22nd Oct. 1991. But for this they had taken all other necessary
and appropriate steps as warranted by the Regulations contained
in Jail Manual. Their action of deferring the execution was bona
fide and covered by the Jail Manual Rules and, therefore, could
not be said to be procedurally unfair or unjust.
21. On petitioner's grievance about denial of presentence hearing,
he read out from the judgment of this court to show that he had
failed to point out any mitigating circumstance and as such, there
was no question of reopening the issue.
22. On consideration of rival contensions, the following questions
seek answer :
1. Is sentence of death liable to be vacated because its execution
is temporarily deferred ?
2. Does the resultant high intensity horror, agony and torture
suffered by a prisoner for a brief period render the sentence
unexecutable and entitle him to demand alternate sentence of life
imprisonment or even acquittal ?
3. Does Section 381, Cr.P.C. contemplate one and only one Black
warrant which once issued has to be given effect to and is there
any bar for issuance of second warrant in case the first one is
rendered ineffective for some reasons ?
4. Is Section 367, Cr.P.C. ultra vires the constitution only because
it is not identical to provisions contained in Section 354 of
the Central Code of Criminal Procedure; and
5. Can any irregularity committed in presentence hearing provided
for in Section 276, Cr.P.C. constitute a mitigating circumstance
for conversion of death sentence to life imprisonment when such
death sentence has been upheld throughout by all courts ?
23. There can be no quarrel about the established legal position
regarding the sweep and scope of Art. 21. Its horizens are ever
widening as has been noticed in Sher Singh's case, AIR 1983 SC
465 : (1983 Cri LJ 803) and it is relevant at all steps. Its benefits
are for all to enjoy, be he a condemned prisoner or any other
person. To a prisoner it gives him a right of fair procedure at
all steps and even during incarceration. Therefore, "Procedure
established by law" as contemplated by Art. 21 does not end
with prouncement of sentence. It includes carrying out of sentence
also. In a case where a sentence is sought to be executed in violation
of procedure established by law or without taking recourse to
it, the sentence runs the risk of even getting over turned. It
is also settled that word "Law" in Art. 21 does not
connote general law, but law made by Legislature and the procedure
established by such a law should be fair, just and reasonable.
24. It is also no more res integral that only jurisdiction which
can be invoked by a prisoner for infringement of his rights can
be to challenge the subsequent events after the final judicial
verdict. It is true that courts are not powerless in exercising
their writ jurisdiction to enforce a prisoner's rights guaranteed
to him by Art. 21, but it shall not be open to them to go behind
or to examine the final verdict reached by the competent courts.
The judgment of the apex court is binding on all courts under
Art. 141 of the Constitution. Therefore, if a death sentence is
confirmed by the apex court, it falls to be executed in accordance
with law since it is a part of procedure established by law. In
Triveniben's case, AIR 1989 SC 1335 Supreme Court has cleared
all cobwebs by holding that there cannot be a second on the validity
of sentence based on Art. 21.
25. Having said so, it requires to be examined whether a temporary
postponement in execution of death sentence, supported by some
reasons can entitle a condemned prisoner to seek alteration in
the sentence. On a generalistic view, the answer has to be negatived,
but even an indepth examination of the contention raised (which
shall follow hereinafter) should not lead to any different conclusion.
26. Even though it is conceded by the learned counsel that contingencies
can arise (which are envisaged by law) leading to deferring of
execution of death sentence, yet it made out that postponement
of execution becomes a mitigating circumstance closing the prisoner
with a right to ask for communication of sentence. The contention
appears emanating from fallacious theory that procedure established
by law provides for one and only one Black warrant to be issued
which has to be obeyed like God's command and any deviation from
its term and letter resulting in postponement of execution is
violation of procedure established by law as contemplated by Art.
21. So is issuance of a second warrant on the first becoming ineffective,
bereft of any sanction of law and, therefore, any deprivation
of life on the strength of this is violative of Art. 21. Super
added to this is the dehumanising factor born out of psycho-physical
impact of horror, agony and torture suffered by the prisoner during
the interval after he is informed or proposed execution.
27. The contention appears attractive on the face of it. But on
a deeper examination, it comes out hollow and devoid of any substance.
All events necessarily do not happen on schedule. Nor are all
orders and commands implemented as they ought to be consistent
with their letter and spirit. There is always a slip between the
cup and the lip. Contingenies do arise, both seen and unforeseen
which come in the way of schedules prescribed by law or otherwise.
That is why the law makes room for such contingencies. Even in
cases of execution of death sentence delay and postponement is
envisaged in certain situations. Jail Manual takes care of these
situations in paras 860 and 865.
Para 860 : Delay in carrying out death sentence.
"Should any delay occur in executing a death sentence other
than that arising from submissions of a mercy petition, the Superintendent
shall forthwith report the circumstances to the Sessions Judge
and return the original warrant either for the issue of new one
or for the endorsement upon the same warrant of an order fixing
another date for the execution.".
Para 965 : Mishap to be reported :
(2) "The occurrence of any mishap or departure from the orders
laid down, shall be reported to the Inspector General."
28. These regulations are self-explanatory and go to show that
situations can occur wherein execution of a death sentence is
liable to get delayed and deferred. As a matter of fact, para
860 does not confine it to a particular type of delay, but speaks
of any delay which, however, should occur on a reasonable cause.
Otherwise if left open, it may vest arbitrary power in Jail authorities
to carve out delays and to defeat the sentence awarded.
29. Coming to the root of the matter, it has now to be surveyed
whether, Cr.P.C. provides for one Black warrant only which once
issued cannot be returned without the execution being carried
out. And conversely does the Code ..... contain any bar against
issuance of second warrant is case the first one is rendered in
effective for some reason. This is the heart and soul of the controversy
and an answer to the questions raised will decide the fate of
these petitions. If on analysing of relevant provisions of the
Code, it is found that it does not permit a second warrant to
be issued it should be the end of the matter and should earn the
condemned prisoner a much desired reprieve. To answer this, some
sections of Code would have to be extracted for proper appreciation
of controversy.
Section 374;
"Sentence of death or life imprisonment to be committed by
court of Session. When the Court of Session passes sentence of
death or life imprisonment, the proceedings shall be submitted
to the High Court and the sentence shall not be executed unless
it is confirmed by the High Court."
Section 376 - Powers of High Court confirm sentence or annual
conviction. In any case submitted under Section 374, High Court.
(a) may confirm the sentence, or pass any other sentence warranted
by law; or
(b) may annul the conviction, and convict the accused of any offence
of which the Sessions Court might have convicted him or order
a new trial on the same, or an amended charge; or
(c) may acquit the accused person :
Provided that no order of confirmation shall be made under this
section until the period allowed for preferring an appeal has
expired, or if an appeal is presented within such period until
such appeal is disposed of".
Section 381 :
"Execution of order passed under Section 376. - When a sentence
of death or life imprisonment passed by a court of Session is
submitted to the High Court for confirmation, such Court to Session
shall, on receiving the order of confirmation or other order thereon,
cause such order to be carried into effect by issuing warrant
or taking such other steps as may be necessary."
Section 400 :
"Return on warrant on execution of sentence.- When a sentence
has been fully executed, the Officer executing it shall return
the warrant to the court from which it issued, with an endorsement
under his hand certifying the manner in which the sentence has
been executed".
Chapter XXVII of the Code deals with submissions of sentences
for confirmation by the High Court and Section 374 falling under
this provides that when Court of Session passes a death sentence,
or life imprisonment, the proceeding shall be submitted to the
High Court and the sentence shall not be executed unless it is
confirmed by the High Court. Section 376 confers power on the
High Court to confirm the sentence or to annul conviction or to
pass any other order referred to therein.
30. Section 381 is the all important provisions and any rational
interpretation placed on its terms should clinch the issue. This
section mandates that on receiving order of confirmation and other
order thereon in terms of Section 376, Court of Session shall
cause such order to be carried into effect by issuing a warrant
or taking such other steps as may be necessary.
31. Interpretation of two expressions contained in this section
viz."a warrant", or "taking such other steps as
may be necessary" is the contentious issue. So is the import
of pro forma prescribed for issuing of a warrant of execution
which is the Form set forth in 5th Schedule appended to the Code
and provided under Section 555. Petitioner's counsel interpret
"a warrant" to mean only one warrant to be necessarily
issued by the Court of Session for execution of death sentence
only. According to them a death sentence cannot be carried out
in the absence of this warrant called the Black warrant. They
make the other expression "taking such other steps as may
be necessary" applicable to life imprisonment cases or to
other orders passed by the High Court (other than confirmation
of death sentence) in terms of Section 376, Cr.P.C. For this they
derive support from last two lines of prescribed Form of warrant
which reads as under :
"and to return this warrant to the court with an endorsement
certifying that sentence has been executed."
32. Relying on this, they claim that the prescribed Form provided
for in reference to S. 381, Cr.P.C. assumes a statutory character
and its content becomes mandatory. Taking cue from this, it is
submitted that once a warrant for execution of death sentence
is issued, Jail Superintendent has no power to return it (except
in five situations referred to elsewhere hereinabove) and the
court of Session has also no competence to receive it. On this,
it is contended that no second warrant is provided for in the
Code.
33. Taking note of the new trend in the norms of interpretation
of provisions of status, which calls for a look into the purpose
of legislation rather than grammatical connotation of the words
used in a provision. I must point out with all humility that interpretation
placed by learned counsel on terms of S. 381 does a bit of violence
to legislative intent and purpose of the provision. While it is
conceded that court can't supply missing words used in a provision,
it must be made clear that words used in a statutory provision
should receive ordinary, fair and rational meaning to avert possibility
of any unjust results following otherwise. Viewed thus, it would
be a travesty of established norms of interpretation to say that
S. 381 contemplates issuance of only one warrant for execution
of a death sentence.
34. "A warrant" does not mean only one warrant, even
when interpreted in isolation and out of context. If interpreted
otherwise, it would lead to absurd, illogical, irrational and
unjust results, defeating the very purpose of the statute i.e.,
carrying into effect order of death sentence. Assuming "the
only warrant" was lost, destroyed defaced, stolen and so
on, what would happen to dearh sentence, should it be allowed
to be defeated and frustrated on account of "only warrant",
having been rendered ineffective for some reason, such can't be
the intent and purpose of law.
35. Afterall what is the nature of this warrant. It is an authority,
an order, a means of communication authoriusing the Jail authority
to execute a sentence of death. The end is to carry into effect
the order of sentence of death or any other order envisaged in
S. 381 read with S. 376, Cr.P.C. If that be so, there is nothing
secrosanct about it. A warrant once issued can go unexecuted and
is liable to be rendered ineffective in a number of situations.
But by no logic can it be said that since warrant had become infructuous
death sentence should automatically stand vacated.
36. If S. 381, Cr.P.C. is interpreted in its true sense, it admits
of no ambiguity as such, viewed in its proper context and totality
it contemplates only two types of orders passed by court of Session
viz. orders relating to sentence of death and life imprisonment.
Once these orders are confirmed or any other order is passed thereon
by the High Court, the Court of Session shall cause such order
to be carried into effect. The Sessions court can do this by resorting
to either option .... (I) by issuing a warrant or (II) by taking
such other steps as may be necessary. It may be the long standing
practice to issue a warrant for execution of death sentence, but
there is always an option available to the Sessions Court. In
other words, it can't be said to be a Rule of Thumb to issue a
warrant in all cases of execution of death sentence. Situations
are conceivable wherein the court of Session could take other
necessary steps to carry out the execution with or without issuing
the warrant. Think of Jail authorities and employees going on
a lightening strike around the date fixed for execution. Would
it not be in order for the Sessions Judge to take such other steps
as he deems necessary, issuance of warrant notwithstanding. All
this is to drive home that an order of death sentence survives
even when the first warrant issued is rendered in effective for
some reason.
37. No provision of the Code bars return of the first warrant
without the execution having been carried out. Nor does it do
so in case of issuance of a second warrant. Warrants can and do
come and got depending upon situations covered under rules so
long as order of death sentence is not carried into effect. Placing
reliance on contents of Prescribed Form of warrant in support
of contrary view is totally misplaced. I have examined various
provision of the Code, but I have not come across any bar against
issuance of a second warrant by Sessions' Court when first warrant
becomes redundant for some reason. The submission that Sessions'
court is incompetent to issue a second warrant for the reasons
that High Court is repository of power for the issuing the warrants
is equally misconceived. As noticed earlier it is true that in
terms of S. 381, Cr.P.C. order to be carried into effect is the
order of the High Court. It is also a matter of fact that Sessions
Court is an implementing agency and its competence and authority
flow from the order received from the High Court.
38. Given regard to this position, it is difficult to comprehend
why Sessions Judge is incompetent to issue second warrant if his
power to issue first warrant is not disputed. Looking at it from
a different angle, even if it was accepted that High Court is
the donor of power, the Sessions' court, as delegate would exercise
all these powers possessed by the donor including the power to
issue the second warrant. Moreover, if power to issue first warrant
by the Sessions' court is conceded, power to issue second warrant
is implicit and is beyond question.
39. This takes me to the dehumanising factor that is invoked in
aid of demand for commutation of sentence to life imprisonment.
The argument centers round the acute pain, torment, anxiety and
horror that condemned prisoner may have suffered after he was
informed about execution taking place on Oct. 23, 1991.
40. Dr. Wadera took pains to portray the suffering that petitioner
Nayyar must have gone through during the period which he termed
as 'terminality' making reference to death related science of
Thanatology. He fell back on all his resources to project the
High intensity though avoidable torture and horror suffered by
the prisoner on account of failure by Jail authorities to execute
him on the appropriate date. According to him, prisoner had been
made to taste death and that he could not be subjected to it second
time as it would amount to killing him in stages which is not
permissible under law and the Constitution.
41. I must confess that I am not endowed with any insight to conceive
or gauge what Nayyar must have gone through during the relevant
period of 'terminality'. There can be no two opinions on the position
that dehumanising factor has a constitutional implication of depriving
a prisoner of his life in unfair, unjust and unreasonable way
offending Art. 21. But it is also a fact that anguish, pain and
horror are a part of the game and inevitable consequence of death
sentence. There can be difference of degrees here and there. But
should a high degree condition entitle a prisoner to run away
from gallows or to go scotfree. Psycho-physical impact on him
between the last verdict upholding death sentence till it is actually
inflicted takes its own toll. This is not a period mixed with
any hope.
42. In any case torture and horror are not static concepts. They
are always related to sensitivities. There may be people who may
put up with acute form of torture and yet maintain all essentials
of human dignity. How else one can explain that Nayyar had a sound
sleep despite knowing about his execution taking place next morning
and the executioner developed jitters at the prospect of carrying
out execution. To my mind questions like these require to be judged
on the basis of scientific investigation, if any available, and
by applying the test of reasons. As on today there is no barometer
to read and gauge human emotions and feelings. Therefore, it may
be hazardous at times to go by a projected situation in such cases.
43. There can be no dispute with the proposition that a condemned
prisoner is required to face death sentence only and nothing more
and that he can't be subjected to any humiliation, torture or
degradation before the execution of that sentence. But it also
needs to be kept in view that process of hanging (which includes
all preparatory steps towards execution) does not involve any
barbarity, torture or degradation.
44. In the light of this discussion, should it be held that torment
and horror said to have been gone through by the prisoner should
constitute a sole circumstance for commutation of sentence. In
my opinion, it can't and it should not. I say so for the reason
that Nayyar's ordeal, if it is assumed that he entered 'Terminality'
lasted a very short duration. Its impact also must have been every
transistory. Add to this his record of undergoing similar experience
before also. All this put together does not bring out any dehumanising
factor deserving consideration as a mitigating circumstance. Therefore,
I am not inclined to hold that pain an torture said to have been
suffered by the prisoner could constitute a sole circumstance
for altering his death sentence.
45. All this is not to suggest that postponement of execution
of death sentence has to be treated as an ordinary matter. There
may be situations where such postponement can't be traced to a
valid and sound reason or where it is ordered whimsically or on
extraneous considerations courts will not be made spectators in
dealing with such situations. In the present case, I feel Jail
authorities have by and large acted within the purview of rules.
They have not acted arbitrarily or whimsically as was sought to
be projected, or whimsically as was sought to be projected. The
executioner last minute physical breakdown did not ereate an unforeseen
situation in which they could not have gone ahead with the execution.
Dr. Wadera's plea that they should have kept a substitute in readiness
to meet such contingency does not find support from Jail Regulations.
Para 868 of Jail Manual provides that wherever services of public
executioner are not available, execution shall be carried out
by his Assistant or some trustworthy individual locally trained
for the purpose. The relevant regulation does not cast any obligation
on Jail authorities to arrange for an Assistant Executioner. He
comes to when services of public executioner are not available.
In this case his services were available, his last minute nervous
breakdown notwithstanding. After all the executioner is a rare
specie. Going by Mr. Gandhi's statistics their number does not
exceed 10 throughout the country. Under the circumstances getting
hold of the executioner, not to speak of his Assistant, should
be no mean task. Therefore, I have no doubt that the Executioner's
last minute physical disability was in the nature of a mishap
and constituted a good cause for deferring execution. This can't
be said about the other reason advanced for post-ponement. It
is true that L.P.A. filed by prisoner's wife was pending consideration
of the High Court, but this by itself and in the absence of any
stay order by the court, did not warrant deferring of execution.
It appears that Jail superintendent mis-directed himself on the
issue and allowed himself to be over taken by the events. His
reliance on para 548(a) of the Jail Manual to derive power for
post-ponement on this account is totally misplaced. Even otherwise,
he appears to be not endowed with much sense of responsibility.
During the proceedings he was directed to submit an affidavit
clarifying certain issues. He promised to do it in the open court,
but he ultimately disappeared for good leaving his counsel in
lurch. All this is to point out the casual manner in which the
officer tends to conduct himself even in the face of serious situations.
His superior authorities need take note of his careless approach
towards discharge of his duties and shall take steps to ensure
that he does not act beyond his brief in future.
46. Grappling with other two issues raised by the petitioner does
not pose much of a problem. Dr. Wadera's challenge to the vires
of S. 367, Cr.P.C. only on the ground that it is not pari-materia
with provisions of S. 354 of the Central Code is, to say the least,
wholly misconceived. While saying so it needs to be borne in mind
that J&K State has the distinction of enacting its own laws
which may or may not conform to the pattern of laws made by the
Parliament. Therefore, it can't be said that legislature of the
State should act as a blind follower in what is enacted by the
Parliament. Nor can it be contended that State legislature should
be commanded by this court to act in the same way as Parliament
does while upgrading the provisions of a statute. It is well settled
that the court has not jurisdiction to command the State or the
Legislature to legislate in a particular way. Reliance can safely
be placed in this regard on decision of Supreme Court (reported
in AIR 1989 SC 1899 and AIR 1985 SC 910).
47. The added safeguards provided in S. 354 of the Central Code
may deserve to be incorporated in S. 367 of J&K, Cr.P.C. put
a decision on that falls within the domain of the State and its
legislature. In any case absence of these does not render S. 367,
Cr.P.C. bad on the ground that it is not in consonance with the
legislative policy followed at the national level. Nothing else
was canvassed before me on the issue to show that S. 367, Cr.P.C.
is ultra vires any provision of the Constitution or that it had
any immediate bearing on the merit of present controversy.
48. Mr. Goni's grievance on pre-sentence hearing at trial stage
is also of no avail to the prisoner at this stage. The matter
has gone through various forums and the issue should be deemed
to stand closed. It can't be allowed to be re-opened and there
can be no second look at it. Mr. Gandhi, AAG, took me through
the relevant portion of the judgment rendered by this court confirming
death sentence to show that prisoner had failed to point out any
mitigating circumstance even then. In this view, it need not be
determined whether any irregularity committed in presentence hearing,
which may have gone unnoticed in subsequent remedies followed,
is liable to constitute a mitigating circumstance to substitute
the death sentence when all doors have been closed on the prisoner.
49. An overall view of the circumstances of the case lead me to
conclude that temporary postponement of execution on 23rd Oct.
1991 was the off-shoot of a sudden situation that cropped up a
day earlier and this was not on account of any deliberate or intentional
default of Jail authorities. The last minute physical disability
of the executioner furnished a good cause for deferring the execution
even when the stage had been set to carry out the same. The pain,
agony and horror, suffered by the prisoner after he was informed
about execution was inevitable and could not be treated as the
sole circumstance for substituting death sentence.
50. The challenge to Sessions Court's competence to issue a second
death warrant, when the first one has been rendered ineffective
for some reason, is both fallacious and misconceived. Black warrant
is only a means to carry into effect the death sentence. So long
as the end is not achieved there is no bar created by any provision
of Criminal Procedure Code against issuance of a second warrant.
The challenge to constitutional validity of S. 367, Cr.P.C. appears
to be an argument in despair and has to proximate relevance to
the merit of controversy at this stage. The grievance regarding
denial of presentence hearing to the accused by the trial court
is also not entertainable as this issue stands concluded by various
courts and can't be re-opened at this stage with a view to grant
any relief to the petitioners.
51. In the light of foregoing discussion, I see no impediment
in holding that petitioners have failed to make out a case for
vacation of death sentence, awarded and upheld by hierarchy of
courts throughout. I, therefore, dismiss the two writ petitions
and vacate the order staying execution of the condemned prisoner.
52. This shall also dispose of the applications filed by some
public interest activists seeking intervention in the matter.
It may be noted with regret that these applications were not perused
by petitioners at any stage. It seems these were only filed to
seek some publicity.
53. Before parting, I must acknowledge the able and competence
assistance rendered to the court by the counsel for the parties,
Mr. Wadera in particular fed the court with all that came his
way. After all he was trying to save a life, which is both precious
and noble.
Petition dismissed.
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