The Supreme Court, in Ajay Kumar Pal v. Union of India and another1 decided on December 12, 2014 commuted the sentence of death imposed on the petitioner to imprisonment for life on the ground of ‘inordinate delay’ of 3 years and 10 months on the part of the Executive to deal with the mercy petition submitted by the petitioner. The petitioner was undergoing solitary confinement from the time he was sentenced to death vide judgment dated 09.04.2007 passed by the court of Special Judge, CBI, Ranchi which stood confirmed by the High Court judgment and order dated 28.08.2007, appeal from which was dismissed by Apex Court on 16.03.2010.
The
petitioner, who was in jail all throughout had 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 where the petitioner was incarcerated,
to the appropriate authorities on 10.04.2010 itself. However the result of the
disposal of the Mercy Petition preferred by the petitioner was communicated to
him on 10.04.2014, nearly after three years and 10 months.Relying on the decision reported in Shatrughan Chauhan and another v. Union of India and others, 2014 (1) SCALE 437, the petitioner submitted that because of inordinate delay in disposal of his Mercy Petition, the death sentence be commuted to imprisonment for life. It was 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.
The Apex Court held that the act of ‘segregating’
the petitioner when the sentence of death had not become final was a “complete transgression of the
right under Article 21 of the Constitution causing incalculable harm to the
petitioner” and the same
was in violation of the law enunciated by the Supreme Court in Sunil Batra v. Delhi
Administration, (1978) 4 SCC 494 wherein, the Court dealing with Section 30(2) of the Prisons
Act, 1894, which postulates segregation of a person ‘under sentence of death’ held thus:
“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 Shatrughan Chauhan (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, the Apex Court had held such petitions under Article 32 to be
maintainable.
The challenge in the petition before
the Court in the Ajay Kumar Pal was
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.
The Court held that such a
petition was maintainable and proceeded to answer the question whether delay in
execution of death sentence can be a sufficient ground or reason for
substituting such sentence by life imprisonment.
The Bench of Justices Dipak
Misra, Rohinton Fali Nariman and Uday Umesh Lalit, JJ., referred
to, and relied on T.V. Vatheeswaran v. State of Tamil Nadu, (1983)
2 SCC 68, Sher Singh and others v. State of Punjab, (1983)
2 SCC 344, Triveniben v. State of Gujarat, (1989) 1
SCC 678, Shatrughan Chauhan (supra) to come to the conclusion that 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, the Supreme 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.
Applying
the said dictum to the facts of Ajay Kumar Pal, the Court observed : “ 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.”
The Court held that 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” (Article 21 of the Constitution) and accordingly allowed the writ petition by “commuting the sentence and substituting the sentence of life imprisonment in place of death sentence awarded to the petitioner.”
The judgment was penned by Justice U.U. Lalit.
_____________________
1. Writ Petition (Criminal) No. 128 of 2014
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