“inordinate delay” in dealing with Mercy Petition combined with ‘segregation’ of convict in violation of the ruling in Sunil Batra; Supreme Court commutes death penalty to life imprisonment

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 

 

Salient suggestions contained in the second report of the Special Investigation Team On How To Control Black Money

The Central Board of Direct  Taxes (CBDT) has issued a press note on December 12, 2014 delineating the salient suggestions contained in the second report of the Special Investigation Team on black money. The report outlines the various ways and means of controlling the menace of black money. Considering the importance of the issue, and with  a view to fostering greater public debate on the subject  and how to curb the menace posed by black money, 'Kerala Law Review' is extracting hereunder, the entire contents of the press note issued by the CBDT on the highlights of the said report submitted by the SIT : 

"

RELEVANT PORTIONS OF THE SECOND REPORT OF THE SPECIAL INVESTIGATION TEAM (SIT) ON BLACK MONEY RELEASED; ON THE DIRECTIONS OF SIT, CBDT DIRECTS VARIOUS ASSESSING OFFICERS TO FINALIZE THE ASSESSMENTS FOR ALL ACTIONABLE CASES (427), WHOSE NAMES ARE APPEARING IN THE HSBC LIST RECEIVED BY THE DEPARTMENT

SUGGESTIONS AND RECOMMENDATIONS FOR TAKING ACTION TO CONTROL BLACK MONEY

1. Suggestion made by Financial Action Task Force (FATF) on TBML in its report, as quoted above, that Data Analysis &Research for Trade Transparency System adopted by USA requires to be adopted and accepted, as it would control over/under invoicing to some extent. There should be institutional mechanism through a dedicated set up which examines mismatch between export/import data with corresponding import/export data of other countries on at least a quarterly, if not a monthly basis.

2. It is established since years that over invoicing or under invoicing is known method for stashing black money outside the country. Main question is how to control this malady. If there is proper vigilance to a large extent by the Customs Department, mis–invoicing can be controlled because, now–a–days, price of various goods/machineries is known in the international markets. For this, data is also published and is available on computer at any point of time. Hence, it was suggested that in a Bill of Export/shipping Bills, an entry should be included, namely, what is the international market price of the goods/machineries which were sought to be exported. The said suggestion is under consideration and is likely to be implemented within short time.

3. Further, it is of utmost necessity to curb the creation of fake/bogus bills. One important step which can be taken to curb this menace is to make declaring of PAN number mandatory for all sales, where payment is in cash or through bank, above a value of Rs. One lakh. The purchaser would also be under obligation to ensure that the invoices he gets have the PAN number of the seller. Further, considering the fact that at present, purchase or sale of goods/services by cash is rampant, which undoubtedly utilizes/generates unaccounted money in the society. For this purpose, a suitable rule is required to be brought under I.T. Rule 114 B made under Section 139 A (5) of the IT Act. By such amendment, purchaser is required to disclose his identity either by PAN number or UID (Aadhar card) or any other centrally recognized documents of identity. Transactions relating to purchase and sale of goods, provision of services of any nature where the payment/consideration is Rs. One lakh or above, either by cash or cheque, may be covered under this rule.

4. It is suggested that for regulating the possession and transportation of cash, particularly putting a limitation on cash holdings for private use and including provisions for confiscation of cash held beyond prescribed limits, provision in the Act should be made. It is to be stated that a number of European countries bar any cash transaction above a particular limit. This can be done in India too. Again, while implementing the suggestions, to ensure that small transactions, which make a bulk of common man’s daily transactions, are not affected and for that, a threshold limit could be kept. Further, for holding of cash/currency notes also, there should be a limit, by prescribing a reasonable threshold, may be Rs.10 lacs or Rs.15 lacs. This would control holding of unaccounted money to a large extent. This would also control transfer of unaccounted cash from one destination to other, which at present is rampant, may be by Angadias or by other means.

5. The aforesaid suggestion is also in conformity with the observations in the case of Rajendran Chingaravelu vs. UoI, in CA No.7914 of 2009;ORDER DATED November 24, 2009 (320 ITR 1)) by the Hon’ble Supreme Court. Therein, it had been observed that “The nation is facing terrorist threats. Transportation of large sums of money is associated with distribution of funds for terrorist activities, illegal pay offs, etc. There is also rampant circulation of unaccounted black money destroying the economy of the country.” This is known to all concerned and, therefore, suggestion made above, be implemented.

6. Financial Action Task Force (FATF) on Money laundering recommends “tax crimes” to be made a predicate offence so that action can be taken under Prevention of Money Laundering Act, 2002. There are more than 25 countries in the world which have made “tax crimes” as a predicate offence. The Government needs to seriously examine the issue and take steps to make “tax crimes” as a predicate offence. To prevent any hardship to salaried or small tax payer, a high threshold of say, more than Rs.50 lakh of tax evasion could be considered as being a predicate offence.

7. Foreign Exchange Management Act, 1999 (FEMA) provides for confiscation of any property held abroad, if found to be held in violation of Section 4 of the Act. For various reasons, it is difficult to proceed against property held abroad. To strengthen the provisions, S. 13 and S. 37 need to be amended to provide for seizure and confiscation of property of equivalent value within the country, if it is held that property held abroad is in violation of Section 4 of FEMA.

8. FIU is uniquely positioned as the national center for receiving, analyzing and disseminating information related to suspected cases of money laundering. Its unique architecture connects it to the entire financial sector on one hand to law enforcement authorities and on the other through an electronic network that makes it possible for information to flow freely in a secure environment. Further, FIU is also connected to the other FIUs of the world through the Egmont Secure Web which makes it possible to access information in foreign jurisdictions. This unique architecture can be harnessed to exchange actionable intelligence on proceeds of crime. Some recommended measures are as follows:-

a. FIU should be given access to law enforcement information (i.e. information about perpetrators of crime) that can be shared with the reporting entities to locate proceeds of crime laundered in the financial system. This will be in line with the FATF standards which require that “FIU should have access to widest possible range of financial, administrative and law enforcement information.”

b. The latest amendments to the PML Rules (2013) have introduced a new report to be furnished to FIU every month i.e. Cross Border Wire Transfer Report in respect of all transactions of more than Rs. Five lakh whose origin or destination is in India. As FIU builds this database over a period of time, the information could be used, in conjunction with information available with other relevant agencies, to analyze suspected cases of cross border illicit financial flows, which have been identified by the OECD and other global bodies as a major area of concern, especially as they relate to significant transfer of funds from developing countries.

c. FIU’s international network (Egmont Group) should be fully harnessed to exchange information/intelligence on proceeds of crime transferred abroad. However, for this to be successful, utmost importance should be given to following protocol for international exchange of information so that it is done in a sustainable and credible manner.

d. The law enforcement authorities, through the FIU, invest in improving reporting entities capacity to identify and report suspicious transactions. Substantial proceeds of crime may be laundered in the domestic financial system but the reporting entities may be constrained by lack of access to information on perpetrators of crime. Facilitating access to such information, through FIU, and sharing red flag indicators for suspected proceeds of crime would lead to better quality, actionable intelligence/information from the reporting entities.

e. Post investigation, feedback should be shared jointly with FIU and reporting entities in order to develop better understanding of money laundering trends and typologies, which in turn will improve capacity to identify and report suspicious transactions. There should be a more dynamic interaction among between the stakeholders, i.e., reporting entities, FIU and the law enforcement authorities, which are part of the same value chain.

9. Malady of present enforcement system may be organic problem which leads to increase in corruption and that corruption money is always unaccounted. On occasions, officers fear to take appropriate action for various reasons. These can be controlled only by appropriate directions by the concerned Ministry that in a case where a person is involved in offence relating to taxation or money laundering, evasion of duty and levies, then in such cases, higher officers should not intervene in midst of investigations.

10. It appears that for one or other reasons, Enforcement Directorate attaches the property of a defaulting assessee, then income tax department is not in position to recover the income tax dues, as it is contended that the property is attached by ED. This appears to be unreasonable. Income tax dues are also amount payable to the Central Government and this problem can be sorted out easily by mentioning in the attachment order passed by the E.D. that it would be open for the Income Tax Department to recover its dues in respect of the attached property. There can not be any conflict of interest between two Departments of Central Government. For this, even statutory rule can be made, if required.

11. It appears that, in number of cases, income tax dues or other duty recoveries are stayed without referring to the law laid down by the Hon’ble Court;namely Siliguri Municipality Vs. Amulandu Das, AIR 1984 SC 653, Somariyas Trading Co. Pvt. Ltd. Vs. S. Samuel AIR 1985 SC 61, Asstt. Collector Vs. Dunlop India Ltd., (1985) 19 ELT 22 and Benara Valves Ltd. Vs. Commissioner Central Excise, (2006) (204 ELT) 513. It is also noticed that in many cases, even at the show cause notice stage, stay orders are passed staying further proceedings which delay the entire process. Hence, it is submitted that the aforesaid ratio of the judgments may be reiterated.

12. At present, for entering into financial/business transactions, persons have option to quote their PAN or UID or Passport number or driving license or any other proof of identity. However, there is no mechanism/system at present to connect the data available with each of these independent proofs of ID. It is suggested that these data bases be interconnected. This would assist in identifying multiple transactions by one person with different IDs. A central KYC Registry should be established with all law enforcement agencies, Registrar of Companies and financial institutions having access to its database.

13. As suggested in first report, at least 5 Additional Chief Judicial Magistrates Courts in Mumbai are required to be established for deciding approx. 5000 pending IT prosecution cases. It appears that without direction by the Hon’ble Court, it would be difficult to establish 5 Courts as suggested. For the establishment of 5 courts, Central Government shall bear the entire cost."

The press note (pdf) issued by the CBDT can be accessed here

Sanction to prosecute a public servant under the Prevention of Corruption Act is not required if the public servant has already retired on the date of taking of cognizance by the Court, rules the Apex Court

The Supreme Court in State of Punjab v. Labh Singh (Criminal Appeal No. 2168 of 2010, decided on Decembr 16,2014) has clarified the position in law that sanction to prosecute a public servant for the offences under the Prevention of Corruption Act is not required if the public servant had already retired on the date of taking of cognizance by the Court.  The Apex Court held that in S.A.Venkataraman v. State, 1958 SCR 1040 while construing section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with section 19(1) of the POC Act, it had held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance, and the  view taken in S. A. Venkataraman (supra) was adopted by this court in C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537, Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 and by the Constitution Bench in K. Veeraswamy v. Union of India, (1977) 3 SCC 440. 

The Apex Court however said that as regards charges for the offences punishable under the IPC, unlike Section 19 of the Prevention of Corruption Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement.

Supreme Court of India

The Court was considering an appeal by special leave against the judgment and order dated 17.01.2006 passed by the High Court of Punjab and Haryana in Criminal Revision No.1743 of 2005 whereby it set aside the order of the Special Judge, Patiala dated 07.06.2005 framing charges against one Sikandar Singh and Labh Singh, the respondent.

The facts of the case were as follows : A FIR was lodged with Police Station, Vigilance Bureau, Patiala Range, Patiala on 13.08.1997 alleging that semi-Government letter dated 04.03.1994 had stated that pursuant to certain raids conducted at the site for checking the earth work done on Bhakra main line, it was found that as regards four projects cross sections/estimates were not prepared before doing any work and that it appeared that the estimates were actually prepared by the concerned Government servants after completion of work thereby violating provisions of PWD code and causing loss to the tune of Rs.3,69,603 to the exchequer. Pursuant to said FIR crime was registered and investigation was undertaken by the Vigilance Bureau.

When request was made for grant of sanction to prosecute the Government servants in question, it was refused by the department on 13.09.2000. Yet another attempt was made in the year 2003 requesting sanction to prosecute but such request was again rejected by the department on 24.09.2003. Despite such refusal for issuance of sanction, challan under section 173 of Criminal Procedure Code was filed on 09.11.2004 in the court of Additional Sessions Judge/Special Judge, Patiala against seven accused including 5 private individuals and 2 public servants namely, the aforesaid Sikandar Singh and Labh Singh, the respondent.

The Special Judge framed charges on 07.06.2005 against all seven accused for the offences under Sections 218/409/465/467/120B IPC and under section 13(1)(C) read with section 13(1)(2) of the Prevention of Corruption Act, 1988 

(‘POC’ Act, for short). Out of six charges framed, one pertained to the offence under section 13(1)(C) read with section 13(1)(2) of the Prevention of Corruption Act, while other five related to offences under the Indian Penal Code.

The public servants namely Sikandar Singh and Labh Singh challenged the aforesaid order dated 07.06.2005 by filing Criminal Revision No.1743 of 2005 in the High Court of Punjab and Haryana. The High Court took the view that the department had refused sanction to prosecute public servants and yet a challan was presented on the premise that no sanction was required after retirement of those public servants. The High Court observed; “These petitioners and others have been charged for offence under the Prevention of Corruption Act and also for offences under the Indian Penal Code. Section 197 Cr.P.C. bars cognizance by the Court of an offence by a public servant even after retirement. Even otherwise, it is discriminatory for the petitioners when other co-accused who are still in service, cannot be prosecuted for want of sanction and present petitioners are being prosecuted only because they have retired.” The High Court allowed the petition and set aside the order dated 07.06.2005 passed by the Special Judge, Patiala.

The appellant-State contended that the “order passed by Hon’ble High Court is erroneous in law as u/s 197 Cr.P.C. respondents can be convicted and no previous sanction is required as the respondents are no longer in service and have been retired in the years 1999/2000. Secondly, there was no discrimination as the other persons were in service and since respondents have been retired no previous sanction is required. It was also submitted that other persons will also be prosecuted as and when they are retired”

The Apex Court observed that in the present case the public servants in question had retired on 13.12.1999 and 30.04.2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13.09.2000 and later on 24.09.2003. The public servants having retired from service there was no occasion to consider grant of sanction under section 19 of the Prevention of Corruption Act. “The law on the point is quite clear that sanction to prosecute the public servant for the offences under the POC Act is not required if the public servant had already retired on the date of cognizance by the court.”, said the Bench comprising of Dipak Misra and Uday Umesh Lalit JJ. 

The Court observed that the Apex Court held that in S.A.Venkataraman v. State, 1958 SCR 1040 while construing section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with section 19(1) of the POC Act, it had held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance, and the  view taken in S. A. Venkataraman (supra) was adopted by this court in C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537, Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 and by the Constitution Bench in K. Veeraswamy v. Union of India, (1977) 3 SCC 440

“The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the POC Act was concerned.”, the Court added

The Apex Court however said that as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. “Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned.”

Accordingly, the Bench held that the order passed by the High Court is correct insofar as charges under the IPC are concerned but must be set aside as regards charge under POC Act is concerned. The Court however disapproved of the stand taken by the appellant-State. “The prosecution cannot keep waiting till a public servant retires and then choose to file charge-sheet against him after his retirement, thereby setting at naught the protection available to him under Section 19 of the POC Act”, said the Bench while allowing the appeal in part.