Supreme Court of India
The State Of Maharashtra vs Pradeep Yashwant Kokade on 9 December, 2024
Author: Abhay S. Oka
Bench: Abhay S Oka
2024 INSC 947
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2831 OF 2023
STATE OF MAHARASHTRA & ORS. … APPELLANTS
versus
PRADEEP YASHWANT KOKADE & ANR. … RESPONDENTS
with
CRIMINAL APPEAL NO. 2832 OF 2023
JUDGMENT
ABHAY S. OKA, J.
1. The main question involved in these appeals is about the
effect of delay in executing the death sentence.
FACTUAL ASPECTS
2. The deceased was employed in a company as an
Associate. The deceased was required to attend the night shift
between 11:00 pm and 09:00 am. On 1st November 2007, one
Purushottam Dasrath Borate (Convict no.2) was scheduled to
Signature Not Verified
pick up the deceased from her residence at 10:30 pm. Convict
no.2 was the driver of the cab hired by the employer of the
Digitally signed by
ANITA MALHOTRA
Date: 2024.12.09
19:02:55 IST
Reason:
deceased. As per usual practice, Convict no.2 gave a missed
Criminal Appeal Nos.2831 and 2832 of 2023 Page 1 of 58
call to the deceased. After receiving the missed call, the
deceased came down. After picking up the deceased, Convict
no.2 was supposed to pick up one Sagar Bidkar, an employee
of the same company. Though Sagar repeatedly called Convict
no.2, there was no response. At about 12:45 am, Convict no.2
came to pick up Sagar. When Sagar sat in the vehicle, one
Pradeep Yashwant Kokade (Convict no.1/Respondent no.1)
was already occupying the car’s rear seat. Convict no.1
introduced convict no.2 to Sagar as his friend. Before the
vehicle reached the company’s office, Convict no.1 alighted
from the car. Convict no.2 requested Sagar to endorse in the
company’s record that the delay was due to the puncture of a
tyre in the vehicle.
3. On the morning of 2nd November 2007, when the
deceased did not return home, her sister enquired with the
office of the deceased. She was told that the deceased had not
reported for duty. The deceased’s sister lodged a missing
person report with the local Police Station. The body of the
deceased was found on the morning of 2nd November 2007. In
the postmortem report, the cause of death was stated as shock
and haemorrhage due to grievous injuries to the vital organs.
There was a fracture of the skull involving the frontal, left
temporal, and parietal bones with a laceration to the brain. Rib
nos.2, 3 and 4 were fractured and the right lung was ruptured.
The postmortem report recorded that the deceased was raped
before her death. On 3rd November 2007, both the convicts
were taken into judicial custody. By the judgment dated 20th
Criminal Appeal Nos.2831 and 2832 of 2023 Page 2 of 58
March 2012, the learned Sessions Judge, Pune, convicted both
the convicts for the offences punishable under Sections 302,
376(2)(g), 364, and 404, read with Section 120-B of the Indian
Penal Code, 1860 (for short, ‘the IPC’). Both the convicts were
sentenced to death. The proceedings were sent to the High
Court of Judicature at Bombay in accordance with Section 366
of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’)
for confirmation of the death penalty. By the judgment dated
25th September 2012, the High Court held that the case of the
convicts was falling in the category of ‘rarest of the rare case’.
Therefore, the High Court proceeded to confirm the death
sentence. This Court also confirmed the death sentence by the
judgment dated 8th May 2015.
4. On 29th May 2015, the Superintendent of Yerawada
Central Prison, Pune (for short, ‘the Superintendent of Prison’)
informed the Registrar of this Court that the contents of the
judgment dated 8th May 2015 of this Court had been explained
to the convicts in the language known to them. On 1st June
2015, the convicts gave a statement to the jail officers that they
were desirous of filing a review petition before this Court. The
decision was informed to the Home Department, Government
of Maharashtra on 2nd June 2015, by a letter issued by the
Superintendent of Prison. On 10th July 2015, the convicts filed
mercy petitions addressed to the Hon’ble Governor of the State
of Maharashtra. On 16th July 2015, the Superintendent of
Prison forwarded the mercy petitions to the Principal
Secretary of the Home Department, Government of
Criminal Appeal Nos.2831 and 2832 of 2023 Page 3 of 58
Maharashtra. On 17th August 2015, the Home Department,
Government of Maharashtra, addressed a letter to the
Superintendent of Prison to verify whether the convicts had
filed any review petition before this Court. On 22nd August
2015, the convicts confirmed to the Superintendent of Prison
that they had not filed any review petition. The Superintendent
of Prison communicated this fact to the Home Department,
State of Maharashtra, vide a letter dated 24th August 2015.
Even the Office of the Additional Director General of Police and
Inspector General of Prisons (for short, ‘the ADG (Prisons)’)
addressed a similar communication on 26th August 2015,
confirming that the convicts had filed no review petition.
5. Five months after receiving the mercy petitions, on 25th
January 2016, a note was prepared by the Section Officer of
the Home Department, State Government for the benefit of the
Hon’ble Governor. Pursuant to the letter dated 17th July 2015
sent by the ADG (Prisons), the Superintendent of Prison by his
letter dated 27th January 2016, forwarded necessary factual
details to the Principal Secretary of the Home Department
along with a copy of the judgment of conviction of the Sessions
Court. On 1st February 2016, the Superintendent of Prison
requested the Senior Inspector of Police of the concerned Police
Station to supply English translations of the police diary, a
short crime history in English, copies of FIR, dying declaration
and a copy of the charge and reason for commitment. On 29th
March 2016, the Hon’ble Governor rejected the mercy petitions.
A communication to that effect was issued by the Deputy
Criminal Appeal Nos.2831 and 2832 of 2023 Page 4 of 58
Secretary to the Hon’ble Governor to the Additional Chief
Secretary of the Home Department, Government of
Maharashtra by a letter dated 29th March 2016. On 9th April
2016, the Superintendent of Prison received a letter dated 6th
April 2016 from the Home Department, Government of
Maharashtra, informing about the rejection of the mercy
petitions. According to the case of the appellant state of
Maharashtra, the Hon’ble Governor’s rejection of the mercy
petitions was communicated to the convicts on the same day.
6. Convict no.1 intimated his desire to file a mercy petition
before the Hon’ble President of India. This desire was recorded
in the statement of Convict no.1 dated 11th April 2016 by the
prison officials. After that, there was correspondence
exchanged by the ADG (Prisons), the Superintendent of Prison,
the concerned Police Station, the State Government, etc.,
between 13th April 2016 and 31st May 2016.
7. On 11th June 2016, relatives of the convicts submitted
fresh mercy petitions before the Hon’ble President of India. On
15th June 2016 and 22nd July 2016, the Under Secretary
(Judicial), Ministry of Home Affairs, Government of India (for
short, ‘Under Secretary (GOI)’) issued letters of request to the
Principal Secretary, Home Department, Government of
Maharashtra for the supply of documents. On 9th August
2016, the Under Secretary, Home Department, Government of
Maharashtra addressed a letter to the ADG (Prisons) and the
Superintendent of Prison to supply information regarding the
past criminal history of the convicts, the economic condition of
Criminal Appeal Nos.2831 and 2832 of 2023 Page 5 of 58
the families of convicts and the filing of any review petitions by
the convicts. On 5th September 2016, the Superintendent of
Prison addressed a letter to the concerned Police Station
requesting information regarding the past criminal history and
economic condition of the family of convicts. The Under
Secretary (GOI) addressed a reminder on 6th September 2016
to the Home Department, Government of Maharashtra,
requesting to supply the documents. On 9th September 2016,
the Superintendent of Prison confirmed by addressing a letter
to the Home Department, Government of Maharashtra, that the
convicts had not filed review petitions. On 12th September
2016, the concerned Police Station forwarded to the Home
Department, Government of Maharashtra, the details
regarding the criminal history and economic condition of the
convicts. On 30th September 2016, the Home Department of
the State Government addressed a letter to the Under Secretary
(GOI) giving information about the criminal
history and economic condition of the convicts and filing of
review petitions by the convict. On 26th December 2016, the
Under Secretary (GOI) addressed a letter to the Home
Department, Government of Maharashtra, for confirmation
regarding the decision of the convicts not to file review
petitions. This information was sought by the Home
Department, Government of Maharashtra, by the letter dated
16th January 2017 from the ADG (Prisons) and the
Superintendent of Prison. Accordingly, on 21st January 2017,
statements of the convicts were recorded in which they stated
that though they intended to file review petitions, the same
Criminal Appeal Nos.2831 and 2832 of 2023 Page 6 of 58
have not been filed. This information was furnished by the
Offices of Superintendent of Prison and the ADG (Prisons) to
the Home Department of the State Government in separate
letters dated 23rd January 2017 and 7th February 2017,
respectively. On 22nd February 2017, the Home Department,
Government of Maharashtra, informed the Under Secretary
(Judicial), Home Department, Government of India, confirming
that the convicts intended to file review petitions. The said
letter recorded that both the convicts had decided to file review
petitions after the decision of the Hon’ble President of India on
the mercy petitions. The Hon’ble President on 26th May 2017
rejected the mercy petitions. This information was submitted
by the Under Secretary, Ministry of Home Affairs, Government
of India, to the Principal Secretary, Home Department,
Government of Maharashtra, in a letter dated 6th June 2017.
By separate letters dated 19th June 2017 addressed to the
family members of the convicts and the learned Sessions
Judge, Pune, the Superintendent of Prison informed them
about the rejection of the mercy petitions.
8. On 10th August 2017, the Superintendent of Prison
addressed a letter to the learned Sessions Judge, Pune,
requesting him to issue a warrant for the execution of
the death sentence. On 24th August 2017, the Superintendent
of Prison addressed a letter to the Registrar of this Court
requesting him to provide information about any review
petition filed by the convicts. By a letter dated 9th September
2017, the Registrar of this Court communicated to the
Criminal Appeal Nos.2831 and 2832 of 2023 Page 7 of 58
Superintendent of Prison that no review petitions were filed by
the convicts. On 5th October 2017, 18th July 2018 and 29th
August 2018, letters were addressed by the Superintendent of
Prison to the learned Sessions Judge, Pune, requesting him to
issue a warrant of execution of the death sentence. On 17th
October 2018, a letter was sent by the ADG (Prisons) to the
learned Sessions Judge, Pune, requesting him to fix a date for
the execution of the death sentence. As no action was taken
by the Sessions Court, Pune, the Home Department of the
Government of Maharashtra on 30th October 2018, addressed
a letter to the Law and Judiciary Department of the State
Government making a query whether the Home Department
could proceed with the execution of death sentence in
accordance with the provisions of the Maharashtra Prison
Manual. By the letter dated 12th November 2018, the Law and
Judiciary Department of the State Government informed the
Home Department of the State Government that the exclusive
jurisdiction to issue warrants for executing the death sentence
was of the learned Sessions Court. Meanwhile, on 2nd
November 2018, the learned Sessions Judge, Pune, addressed
a letter to the Home Department, Government of Maharashtra,
seeking information about the status of mercy petitions. On
7th December 2018 and 27th December 2018, the ADG (Prisons)
and the Superintendent of Prison addressed letters to the
learned Sessions Court, Pune, requesting him to fix a date for
executing the death sentence. On 31st January 2019, the
Home Department of the State Government wrote a letter to the
ADG (Prisons) and the Superintendent of Prison informing
Criminal Appeal Nos.2831 and 2832 of 2023 Page 8 of 58
them about the letter dated 2nd November 2018 sent by the
learned Sessions Court, Pune. On 10th April 2019, warrants
for the execution of the death sentence were issued by the
Sessions Court, Pune.
GROUNDS OF CHALLENGE BEFORE THE HIGH COURT
9. On 2nd May 2019, the convicts filed separate writ
petitions before the High Court. A prayer was made in the
petitions for quashing the warrants of execution of the death
sentence, inter alia, on the following grounds:
i. Inordinate and unexplained sdelay in execution of death
sentence on the part of the State Government as well as
the Sessions Court, Pune;
ii. Inordinate and unexplained delay in deciding mercy
petitions;
iii. The convicts were kept in solitary confinement during the
pendency of the appeals before this Court as well as the
mercy petitions before the Hon’ble Governor of the State
of Maharashtra and the Hon’ble President of India;
iv. Rejection of mercy petitions was illegal on account of non-
application of mind due to non-placement of relevant
information before the concerned authorities; and,v. The Sessions Court, Pune, issued death warrants without
notice to the convicts or their family members.
10. Counter affidavits were filed in the writ petitions before
the High Court by various officers. By the impugned judgment
Criminal Appeal Nos.2831 and 2832 of 2023 Page 9 of 58
dated 29th July 2019, the High Court held that there was an
undue and avoidable delay in executing the death sentence.
Moreover, the convicts were kept in solitary confinement from
20th March 2012. Therefore, the High Court proceeded to
commute the death sentence to life imprisonment for a total
period of thirty-five years. The warrants for the execution of
the death sentence issued by the learned Sessions Court, Pune,
were set aside.
SUBMISSIONS
11. Mr Shreeyash Lalit, the learned counsel representing the
appellants, made detailed submissions. He referred to a
decision of this Court in the case of T.V.Vatheesswaran v.
State of Tamil Nadu1. He also pointed out a decision of the
three Judge Bench of this Court in the case of Sher Singh &
Ors. v. State of Punjab2. He pointed out that in the case of
T.V. Vatheesswaran1, it was held that a delay beyond two
years in the execution of the death sentence was enough to
commute the death sentence to life imprisonment. However,
in the case of Sher Singh & Ors2, it was held that a delay of
two years is not enough for the commutation of a death
sentence. Ultimately, this conflict was resolved by a decision
by the Constitution Bench of this Court in the case of
Triveniben v. State of Gujarat3. He also pointed out various
decisions of this Court in the cases of Shatrughan Chauhan
1
(1983) 2 SCC 68
2
(1983) 2 SCC 344
3
(1989) 1 SCC 678
Criminal Appeal Nos.2831 and 2832 of 2023 Page 10 of 58
& Anr. v. Union of India & Ors.4, Ajay Kumar Pal v. Union
of India & Anr5, Mukesh v. Union of India & Ors.6 and B.A.
Umesh v. Union of India & Ors7. He submitted that though
undue delay in the execution of a death sentence will entitle
convicts to seek commutation, no fixed period of delay can be
laid down as a criterion for commutation. He submitted that
in such a case, the twin test must be satisfied. The first test is
whether there was an avoidable delay. The second test is
whether the quantum of delay was unduly long or inordinate,
which must warrant the commutation of a death sentence to
life imprisonment. The learned counsel urged that both the
tests must be satisfied to make out a case for commutation of
a death sentence. He submitted that neither of these two tests
alone would be sufficient to commute the death sentence.
12. The learned counsel submitted that the High Court has
committed an error by holding that the quantum of delay is not
material. He submitted that the delay has to be inordinate and,
therefore, the quantum of delay is very material. He submitted
that the time consumed for the disposal of mercy petitions by
the Hon’ble Governor and the Hon’ble President of India was
from 10th July 2015 to 26th May 2017, which is about one year
and ten months. His submission is that this delay cannot be
held to be inordinate or unexplained. He submitted that, in
any case, there is an explanation for the delay. He submitted
4
(2014) 3 SCC 1
5
(2015) 2 SCC 478
6
(2020) 16 SCC 424
7
2022 SCC OnLine SC 1528
Criminal Appeal Nos.2831 and 2832 of 2023 Page 11 of 58
that there was some delay as time was required to ascertain
whether the convicts wanted to file review petitions. He
submitted that the time taken of a few months to prepare a
note for presenting it to the Hon’ble Governor could not be said
to be unreasonable as it required scanning of voluminous
records. Even the time of three months taken by the Hon’ble
Governor cannot be said to be unreasonable.
13. As regards the delay in the disposal of mercy petitions by
the Hon’ble President of India, he submitted that the time of
five months was consumed in getting information on the
criminal antecedents and economic condition of the convicts.
Time of about four months or more was required to get the
information on the issue of convicts filing review petitions
before this Court. The Hon’ble President of India took about
four months to decide on the mercy petitions, which is not at
all long or inordinate considering the fact that the issue was
the life and death of the convicts. He submitted that in the
case of B.A. Umesh7, the delay of two years and three months
in the disposal of the mercy petition was held as not excessive.
14. The learned counsel submitted that the major delay is on
the part of the Sessions Court in issuing the warrants of
execution of the death sentence. He submitted that on 19th
June 2017, the Superintendent of Prison had communicated
to the Sessions Court about the Hon’ble President of India’s
rejection of the mercy petitions. There was an exchange of
correspondence by the Government Officers with the Sessions
Court, and only on 10th April 2019 were warrants issued for
Criminal Appeal Nos.2831 and 2832 of 2023 Page 12 of 58
the execution of the death sentence issued by the Sessions
Court. He submitted that in view of the decision of the
Constitution Bench in the case of Triveniben3, only the delay
caused by the executive could be taken into consideration to
decide whether there was any violation of Article 21 of the
Constitution of India.
15. As regards the finding of the High Court on keeping the
convicts in solitary confinement before rejection of mercy
petitions, the learned counsel pointed out that in the affidavit
of the Superintendent of Prison, it was pointed out that the
convicts were kept in a security yard wherein they were allowed
to access the veranda and interact with other prisoners from
06:00 am to 06:30 pm. He pointed out that there was a fan
and light bulb in their cell. In their room, there was usually
more than one inmate. Moreover, they had access to an open
ground. He, therefore, submitted that in view of the law laid
down by this Court in the case of Vinay Sharma v. Union of
India & Ors8, it cannot be said that the convicts were kept in
solitary confinement.
16. The learned counsel submitted that in the execution
warrants, more than a reasonable period was provided from the
date of warrants till the date of execution. Copies of the
warrants were immediately supplied to the convicts. He
submitted that merely because the convicts were not brought
before the Sessions Court while proceeding with issuance of
8
(2020) 4 SCC 391
Criminal Appeal Nos.2831 and 2832 of 2023 Page 13 of 58
warrants, this lapse by itself, was not sufficient to commute the
sentence to life imprisonment. The learned counsel also made
suggestions for issuing guidelines for effective compliance with
Sections 413 and 414 of the CrPC corresponding to Sections
453 and 454 of the Bhartiya Nagarik Suraksha Sanhita, 2023
(for short, ‘the BNSS’). In short, the submission of the learned
counsel appearing for the appellants is that there was no
warrant for commuting the death sentence.
17. Ms. Payoshi Roy, the learned counsel representing the
respondents-convicts submitted that as held by this Court in
the case of Sher Singh & Ors2, Article 21 of the Constitution
of India inheres in every person till his last breath. The learned
counsel submitted that unreasonable delay in adjudicating
upon the mercy petitions makes the punishment barbaric and,
hence, unconstitutional. She submitted that, in fact, avoidable
delay in deciding the mercy petitions violates constitutional
due process, which includes fair, just and reasonable
procedure. The learned counsel relied upon the observations
made by this Court in the cases of Sher Singh & Ors2 and
Ajay Kumar Pal5. The learned counsel submitted that the
executive authorities should follow a self-imposed rule that
every mercy petition must be disposed of within three months.
The delay beyond a period of three months must be, prima
facie, presumed to be excessive, which puts the burden on the
State Government to explain the delay. She submitted that no
fixed length of delay can be determinative, and, in that context,
the High Court observed that the quantum of delay is not
Criminal Appeal Nos.2831 and 2832 of 2023 Page 14 of 58
material. She pointed out that the total delay in execution of
the death sentence, in this case, starting from the date of filing
of mercy petitions till the date of issuance of execution
warrants, was three years, eleven months and fifteen days.
18. The learned counsel for the convicts submitted that the
poor economic condition of the convicts was not considered by
the Hon’ble Governor of the State of Maharashtra and the
Hon’ble President of India. Even the fact of relatively young
ages of the convicts has not been considered while deciding the
mercy petitions. In the facts of the case, delay post the
rejection of the mercy petitions will have to be treated as
executive delay as there was a gross delay in doing
the ministerial act of issuing execution warrants.
19. The learned counsel also submitted that the finding of the
High Court regarding keeping the convicts in solitary
confinement is just and proper, and no interference is called
for with that finding.
CONSIDERATION
LEGAL POSITION
20. Law on the subject has been laid down in the case of
Triveniben3 by a Constitution Bench. G.L. Oza, J. rendered
the main opinion for himself and on behalf of three other
Hon’ble Judges. The controversy which led to a reference to
the Constitution Bench has been set out in the majority
judgment in paragraphs 1, 2 and 3, which read thus:
Criminal Appeal Nos.2831 and 2832 of 2023 Page 15 of 58
“1. These matters came up before us
because of the conflict in the two decisions
of this Court: (i) T.V.
Vatheeswaran v. State of T.N. [(1983) 2
SCC 68: 1983 SCC (Cri) 342 : (1983) 2 SCR
348], Sher Singh v. State of Punjab [(1983)
2 SCC 344: 1983 SCC (Cri) 461 : (1983) 2
SCR 582] and observations in the case
of Javed Ahmed Abdul Hamid
Pawala v. State of Maharashtra [(1985) 1
SCC 275: 1984 SCC (Cri) 653 : (1985) 2
SCR 8]. In Vatheeswaran case [(1983) 2
SCC 68: 1983 SCC (Cri) 342 : (1983) 2 SCR
348] a Bench of two Judges of this Court
held that two years delay in execution of
the sentence after the judgment of the trial
court will entitle the condemned prisoner
to ask for commutation of his sentence of
death to imprisonment for life. The court
observed that: [SCC p. 79: SCC (Cri) p. 353,
para 21]‘Making all reasonable allowance
for the time necessary for appeal
and consideration of reprieve, we
think that delay exceeding two
years in the execution of a
sentence of death should be
considered sufficient to entitle
the person under sentence of
death to invoke Article 21 and
demand the quashing of the
sentence of death.’
2. In Sher Singh case [(1983) 2 SCC 344:
1983 SCC (Cri) 461 : (1983) 2 SCR 582]
which was a decision of a three-Judges’
Bench it was held that a condemned
prisoner has a right of fair procedure at all
stages, trial, sentence and incarceration
but delay alone is not good enough for
commutation and two years rule could notCriminal Appeal Nos.2831 and 2832 of 2023 Page 16 of 58
be laid down in cases of delay. It was held
that the court in the context of the nature
of offence and delay could consider the
question of commutation of death
sentence. The court observed: [SCC p. 356
: SCC (Cri) p. 473, para 19]‘Apart from the fact that the rule
of two years 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, we are of
the opinion that no absolute or
unqualified rule can be laid down
that in every case in which there
is a long delay in the execution of
a death sentence, the sentence
must be substituted by the
sentence of life imprisonment.
There are several other factors
which must be taken into account
while considering the question as to
whether the death sentence should
be vacated. A convict is undoubtedly
entitled to pursue all remedies
lawfully open to him to get rid of the
sentence of death imposed upon
him and indeed, there is no one, be
he blind, lame, starving or suffering
from a terminal illness, who does
not want to live.’It was further observed: [SCC p. 357 : SCC
(Cri) p. 474, para 20]‘Finally, and that is no less
important, the nature of the offence,
the diverse circumstances attendant
upon it, its impact upon the
contemporary society and theCriminal Appeal Nos.2831 and 2832 of 2023 Page 17 of 58
question whether the motivation
and pattern of the crime are such as
are likely to lead to its repetition, if
the death sentence is vacated, are
matters which must enter into the
verdict as to whether the sentence
should be vacated for the reason
that its execution is delayed. The
substitution of the death sentence
by a sentence of life imprisonment
cannot follow by the application of
the two years’ formula, as a matter
of quod erat demonstrandum.’
3. In Javed case [(1985) 1 SCC 275: 1984
SCC (Cri) 653 : (1985) 2 SCR 8] it was
observed that the condemned man who
had suffered more than two years and nine
months and was repenting and there was
nothing adverse against him in the jail
records, this period of two years and nine
months with the sentence of death heavily
weighing on his mind will entitle him for
commutation of sentence of death into
imprisonment for life. It is because of this
controversy that the matter was
referred to a five-Judges’ Bench and
hence it is before us.”
(emphasis added)Ultimately, in paragraph 23, the Constitution Bench held thus:
“23. So far as our conclusions are
concerned we had delivered our order on
11-10-1988 and we had reserved the
reasons to be given later. Accordingly in the
light of the discussions above our
conclusion is as recorded in our order
dated 11-10-1988 [Triveniben v. State of
Gujarat, (1988) 4 SCC 574: 1989 SCC (Cri)
25], reproduced below: [SCC p. 576: SCC
(Cri) pp. 26-27, para 2]Criminal Appeal Nos.2831 and 2832 of 2023 Page 18 of 58
‘Undue long delay in execution of
the sentence of death will entitle
the condemned person to
approach this Court under Article
32 but this Court will only
examine the nature of delay
caused and circumstances that
ensued after sentence was finally
confirmed by the judicial process
and will have no jurisdiction to
reopen the conclusions reached
by the court while finally
maintaining the sentence of
death. This Court, however, may
consider the question of
inordinate delay in the light of all
circumstances of the case to
decide whether the execution of
sentence should be carried out or
should be altered into
imprisonment for life. No fixed
period of delay could be held to
make the sentence of death
inexecutable and to this extent
the decision in Vatheeswaran
case [(1983) 2 SCC 68: 1983 SCC
(Cri) 342 : (1983) 2 SCR 348]
cannot be said to lay down the
correct law and therefore to that
extent stands overruled.’’(emphasis added)
In paragraph 16, the Constitution Bench held that while
considering the delay, the period consumed in the judicial
process culminating in confirmation of the death sentence
should not be considered. K. Jagannatha Shetty, J, rendered a
concurring opinion. In paragraphs 75 and 76 of his opinion, it
was observed thus:
Criminal Appeal Nos.2831 and 2832 of 2023 Page 19 of 58
“75. As between funeral fire and mental
worry, it is the latter which is more
devastating, for, funeral fire 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. Earlier to it,
there is every reason for him to hope for
acquittal. That hope is extinguished after
the final verdict. 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.
76. What should be done by the court is
the next point for consideration. It is
necessary to emphasise that the
jurisdiction of the court at this stage is
extremely limited. If the court wants to
have a look at the grievance as to delay, it
is needless to state, that there should not
be any delay either in listing or in disposal
of the matter. The person who complains
about the delay in the execution should not
be put to further delay. The matter,
therefore, must be expeditiously and on top
priority basis, disposed of. The court while
examining the matter, for the reasons
already stated, cannot take into account
the time utilised in the judicial proceedings
up to the final verdict. The court also
cannot take into consideration the time
taken for disposal of any petition filed by or
on behalf of the accused either under
Article 226 or under Article 32 of the
Constitution after the final judgment
affirming the conviction and sentence. The
court may only consider whether there
was undue long delay in disposing of
mercy petition; whether the State wasCriminal Appeal Nos.2831 and 2832 of 2023 Page 20 of 58
guilty of dilatory conduct and whether
the delay was for no reason at all. The
inordinate delay, may be a significant
factor, but that by itself cannot render
the execution unconstitutional. Nor it
can be divorced from the dastardly and
diabolical circumstances of the crime
itself. The court has still to consider as
observed in Sher Singh case [(1983) 2 SCC
344: 1983 SCC (Cri) 461 : (1983) 2 SCR
582] : [SCR p. 596: SCC p. 357: SCC (Cri)
p. 474, para 20]”
(emphasis added)
21. Thereafter, a Bench of three Hon’ble Judges in the case
of Shatrughan Chauhan & Anr.4 dealt with the same issue.
Paragraphs 44 to 49 of the decision are material, which read
thus:
“44. In view of the above, we hold that
undue long delay in execution of
sentence of death will entitle the
condemned prisoner to approach this
Court under Article 32. However, this
Court will only examine the
circumstances surrounding the delay
that has occurred and those that have
ensued after the sentence was finally
confirmed by the judicial process. This
Court cannot reopen the conclusion
already reached but may consider the
question of inordinate delay to decide
whether the execution of sentence
should be carried out or should be
altered into imprisonment for life.
45. Keeping a convict in suspense while
consideration of his mercy petition by
the President for many years is certainly
an agony for him/her. It creates adverse
physical conditions and psychologicalCriminal Appeal Nos.2831 and 2832 of 2023 Page 21 of 58
stresses on the convict under sentence
of death. Indisputably, this Court, while
considering the rejection of the
clemency petition by the President,
under Article 32 read with Article 21 of
the Constitution, cannot excuse the
agonising delay caused to the convict
only on the basis of the gravity of the
crime.
46. India has been a signatory to the
Universal Declaration of Human Rights,
1948 as well as to the United Nations
Covenant on Civil and Political Rights,
1966. Both these conventions contain
provisions outlawing cruel and degrading
treatment and/or punishment. Pursuant
to the judgment of this Court
in Vishaka v. State of Rajasthan [(1997) 6
SCC 241 : 1997 SCC (Cri) 932] ,
international covenants to which India is a
party are a part of domestic law unless they
are contrary to a specific law in force. It is
this expression (“cruel and degrading
treatment and/or punishment”) which has
ignited the philosophy
of Vatheeswaran [T.V.Vatheeswaran v. Sta
te of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri)
342] and the cases which follow it. It is in
this light, the Indian cases, particularly,
the leading case
of Triveniben [Triveniben v. State of
Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri)
248] has been followed in the
Commonwealth countries. It is useful to
refer the following foreign judgments which
followed the proposition:
(i) Pratt v. Attorney General for
Jamaica [(1994) 2 AC 1 : (1993) 3 WLR 995
: (1993) 4 All ER 769 (PC)], (ii) Catholic
Commission for Justice & Peace in
Zimbabwe v. Attorney General [(1993) 4 SACriminal Appeal Nos.2831 and 2832 of 2023 Page 22 of 58
239 (Zimbabwe SC)] , (iii) Soering v. United
Kingdom [ Application No. 14038 of 1988:
(1989) 11 EHRR 439], (iv) Attorney
General v. Susan Kigula [ Constitutional
Appeal No. 3 of 2006, decided on 21-1-
2009 (Uganda SC)], (v) Herman
Mejia v. Attorney General [ AD 2006 Action
No. 296, decided on 11-6-2001 (Belize SC)].
47. It is clear that after the completion of
the judicial process, if the convict files a
mercy petition to the Governor/President,
it is incumbent on the authorities to
dispose of the same expeditiously. Though
no time-limit can be fixed for the
Governor and the President, it is the
duty of the executive to expedite the
matter at every stage viz. calling for the
records, orders and documents filed in
the court, preparation of the note for
approval of the Minister concerned, and
the ultimate decision of the
constitutional authorities. This Court,
in Triveniben [Triveniben v. State of
Gujarat, (1989) 1 SCC 678: 1989 SCC
(Cri) 248] , further held that in doing so,
if it is established that there was
prolonged delay in the execution of
death sentence, it is an important and
relevant consideration for determining
whether the sentence should be allowed
to be executed or not.
48. Accordingly, if there is undue,
unexplained and inordinate delay in
execution due to pendency of mercy
petitions or the executive as well as the
constitutional authorities have failed to
take note of/consider the relevant
aspects, this Court is well within its
powers under Article 32 to hear the
grievance of the convict and commute
Criminal Appeal Nos.2831 and 2832 of 2023 Page 23 of 58
thone death sentence into life
imprisonment this ground alone
however, only after satisfying that the
delay was not caused at the instance of
the accused himself. To this extent, the
jurisprudence has developed in the light of
the mandate given in our Constitution as
well as various Universal Declarations and
directions issued by the United Nations.
49. The procedure prescribed by law,
which deprives a person of his life and
liberty must be just, fair and reasonable
and such procedure mandates humane
conditions of detention preventive or
punitive. In this line, although the
petitioners were sentenced to death based
on the procedure established by law, the
inexplicable delay on account of executive
is inexcusable. Since it is well
established that Article 21 of the
Constitution does not end with the
pronouncement of sentence but extends
to the stage of execution of that
sentence, as already asserted, prolonged
delay in execution of sentence of death
has a dehumanising effect on the
accused. Delay caused by circumstances
beyond the prisoners’ control mandates
commutation of death sentence. In fact,
in Vatheeswaran [T.V.Vatheeswaran v. Sta
te of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri)
342] , particularly, in para 10, it was
elaborated where amongst other
authorities, the minority view of Lords
Scarman and Brightman in the 1982 Privy
Council case of Riley v. Attorney General of
Jamaica [Riley v. Attorney General of
Jamaica, (1983) 1 AC 719 : (1982) 3 WLR
557 : (1982) 3 All ER 469 : 1982 Cri Law
Review 679 (PC)], by quoting:
(Vatheeswaran
Criminal Appeal Nos.2831 and 2832 of 2023 Page 24 of 58
case [T.V.Vatheeswaran v. State of T.N.,
(1983) 2 SCC 68 : 1983 SCC (Cri) 342] ,
SCC p. 72)“10. ‘… Sentence of death is one
thing: sentence of death followed by
lengthy imprisonment prior to
execution is another.’” (Riley
case [Riley v. Attorney General of
Jamaica, (1983) 1 AC 719 : (1982) 3
WLR 557 : (1982) 3 All ER 469 :
1982 Cri Law Review 679 (PC)] , AC
p. 735 B)
(emphasis supplied)The appropriate relief in cases where the
execution of death sentence is delayed, the
Court held, is to vacate the sentence of
death. In para 13, the Court made it clear
that Articles 14, 19 and 21 supplement one
another and the right which was spelled
out from the Constitution was a
substantive right of the convict and not
merely a matter of procedure established
by law. This was the consequence of the
judgment in Maneka Gandhi v. Union of
India [Maneka Gandhi v. Union of India,
(1978) 1 SCC 248] which made the content
of Article 21 substantive as distinguished
from merely procedural.”(emphasis added)
In paragraph 244, the Bench proceeded to hold thus:
“244. It is well established that
exercising of power under Articles
72/161 by the President or the
Governor is a constitutional obligation
and not a mere prerogative. Considering
the high status of office, the
Constitution Framers did not stipulate
any outer time-limit for disposing of theCriminal Appeal Nos.2831 and 2832 of 2023 Page 25 of 58
mercy petitions under the said Articles,
which means it should be decided within
reasonable time. However, when the
delay caused in disposing of the mercy
petitions is seen to be unreasonable,
unexplained and exorbitant, it is the
duty of this Court to step in and
consider this aspect. Right to seek for
mercy under Articles 72/161 of the
Constitution is a constitutional right
and not at the discretion or whims of the
executive. Every constitutional duty must
be fulfilled with due care and diligence,
otherwise judicial interference is the
command of the Constitution for upholding
its values.”
(emphasis added)This Court also issued several other directions regarding
the procedure to be followed in placing mercy petitions before
the Hon’ble Governor or the Hon’ble President of India.
22. The decision of this Court in the case of B.A.Umesh7 does
not make a departure from the law laid down in the case of
Shatrughan Chauhan & Anr4. On the contrary, paragraphs
44, 47 and 48 of the decision have been quoted therein with
approval. We have carefully perused several other decisions of
this Court which have been rendered in the facts of the case
before this Court. The propositions laid down in these decisions
can be summarized as under:
(i) Undue, unexplained and inordinate delay in
execution of the sentence of death will entitle the
convict to approach this Court under Article 32. But
this Court will only examine the nature of the delayCriminal Appeal Nos.2831 and 2832 of 2023 Page 26 of 58
caused and circumstances that ensued after the
judicial process finally confirmed the sentence and
will have no jurisdiction to reopen the conclusions
reached by the court while finally maintaining the
sentence of death. This Court, however, may consider
the question of inordinate delay in the light of all
circumstances of the case to decide whether the
execution of sentence should be carried out or should
be altered into imprisonment for life. No fixed period
of delay could be held to make the sentence of death
inexecutable.
(ii) Keeping a convict sentenced to death in suspense
while considering his mercy petitions by the Governor
or the President for an inordinately long time is
certainly agony for him/her. It creates adverse
physical conditions and psychological stress on the
convict under sentence of death. Therefore, this
Court, while considering the delay in the disposal of
clemency petitions by the highest constitutional
authorities, while exercising its jurisdiction under
Article 32 read with Article 21 of the Constitution,
cannot excuse the agonising delay caused to the
convict only based on the gravity of the crime; and
(iii) It is well established that Article 21 of the
Constitution does not end with the pronouncement of
the sentence but extends to the execution stage of that
sentence. An inordinate delay in the execution ofCriminal Appeal Nos.2831 and 2832 of 2023 Page 27 of 58
the sentence of death has a dehumanising effect on
the accused. An inordinate delay caused by
circumstances beyond the prisoners’ control
mandates the commutation of a death sentence.
23. In paragraph 16 of the decision of this Court in the case
of Triveniben3, the Constitution Bench held that while
considering the delay in the execution of the death sentence,
the period consumed in the judicial process culminating in the
confirmation of the death sentence should not be taken into
consideration. The reason for the said conclusion is that only
after the judicial process in the form of the judgment of this
Court in appeal / special leave petition arising out of the order
of conviction does the order of death sentence become final.
Therefore, the period required for judicial consideration cannot
be termed as a delay in the execution of the death sentence, as
till the conclusion of judicial proceedings arising out of the
order of conviction, a sentence of death does not attain finality.
The question of execution thereof arises only when the death
sentence becomes final.
24. We may refer to Sections 413 and 414 of the CrPC, which
read thus:
“413. Execution of order passed under
section 368.— When in a case submitted
to the High Court for the confirmation of a
sentence of death, the Court of Session
receives the order of confirmation or other
order of the High Court thereon, it shall
cause such order to be carried into effect
by issuing a warrant or taking such other
steps as may be necessary.
Criminal Appeal Nos.2831 and 2832 of 2023 Page 28 of 58
414. Execution of sentence of death
passed by High Court.— When a sentence
of death is passed by the High Court in
appeal or in revision, the Court of Session
shall, on receiving the order of the High
Court, cause the sentence to be carried into
effect by issuing a warrant.”There are identical provisions in the BNSS in the form of
Sections 453 and 454. These provisions constitute a vital
safeguard. These provisions ensure that the execution of the
death sentence takes place only after all remedies available to
the convicts are exhausted. The executive cannot execute the
death sentence unless the Sessions Court issues a warrant.
25. The proceedings for issuing a warrant for executing a
death sentence under Sections 413 and 414 of the CrPC do not
require any judicial adjudication. Before issuing the warrant,
the Sessions Court must satisfy itself that the order of death
sentence has attained finality and the review/curative or mercy
petitions, if filed, have been finally rejected. Before issuing a
warrant, the Sessions Court has to issue notice to the convict
so that even the convict can state whether any other
proceedings are pending before the Courts or Constitutional
authorities. In a given case, the convict may not be interested
in pursuing remedies. The Sessions Court can verify this aspect
after issuing a notice to the convict. The Sessions Court, in
such a case, must appraise the convict of the remedies
available and, if required, provide legal aid to enable the convict
to take recourse to such remedies. After the convict has been
Criminal Appeal Nos.2831 and 2832 of 2023 Page 29 of 58
made aware of the remedies available, reasonable time be
granted to the convict to consider, weigh and even consult a
member of his family or friend to finally take a decision on
adopting remedies as the possibility of thinking logically and
rationally may be impeded or hampered because of the
situation being faced by the convict. The Sessions Court can
issue a warrant only after providing such reasonable time to
the convict and after satisfying itself that the convict has taken
a conscious decision of not pursuing the available remedies.
The reasonable time can be of seven days. The Sessions Court
can direct the counselling of the convict if it is not satisfied that
the decision is a well-informed, considered and conscious
decision. If such a procedure is followed, it enables the convict
to take recourse to the available legal remedy. Moreover, if an
order of issue of warrant of execution is passed after notice to
the convict, it enables the convict to challenge the order of
issuing a warrant of execution. But after the convict exhausts
all remedies, including filing mercy petitions or after the
Sessions Court is satisfied that the convict has taken a
conscious decision of not availing the remedies, the execution
warrant must be issued without any delay. It is the
responsibility of the trial court to take up and conclude the
proceedings of issuing a warrant of execution as expeditiously
as possible. The trial court must give necessary out of turn
priority.
26. After the decisions on mercy petitions, if there is an
inordinate and unexplained delay in actual execution for no
Criminal Appeal Nos.2831 and 2832 of 2023 Page 30 of 58
fault on the part of the convict, there is no reason why the
principles set out in paragraph 23 should not apply. The
principles will also apply to a case where there is a long and
unexplained delay on the part of the Sessions Court in issuing
the warrant of execution in accordance with Sections 413 and
414 of CrPC. After the order of rejection of mercy petitions is
communicated to a convict, the sword of Damocles cannot be
kept hanging on him for inordinately long time. This can be
very agonising, both mentally and physically. Such inordinate
and unreasonable delay will violate his rights under Article 21
of the Constitution. In such a case, this Court will be justified
in commuting the death penalty into life imprisonment.
27. A convict can invoke even the jurisdiction of a High Court
under Article 226 of the Constitution if there is an inordinate
and unexplained delay in the execution of the death sentence
post-confirmation of the sentence. The High Court will apply
the same principles summarised in paragraphs 22 to 25.
28. No hard and fast rule can be laid down as regards the
length of delay, which can be said to be inordinate. It all
depends on the facts of the case. In a given case, a delay of two
years may not be fatal. In another case, a delay of six months
can be a ground to commute sentence. The terms “undue” or
“inordinate” cannot be interpreted by applying the rules of
mathematics. The Courts, in such cases, deal with human
issues and the effect of the delay on a particular convict. What
delay is inordinate must depend on the facts of the case. For
example, if a convict is more than seventy years old and is
Criminal Appeal Nos.2831 and 2832 of 2023 Page 31 of 58
suffering from multiple ailments, an unexplained delay of even
six months in deciding a mercy petition can amount to
a violation of Article 21. Ultimately, the Courts will have to
determine the effect of delay in the light of the principles laid
down as aforesaid, considering the facts of the case before it.
APPLICATION OF THE PRINCIPLES TO THE FACTS OF THE
CASE
29. In this case, there is a delay in the following three stages:
i. On 10th July 2015, the convicts filed mercy
petitions addressed to the Hon’ble Governor of the
State of Maharashtra, which were rejected on 29th
March 2016. This is the first part of the delay;
ii. On 11th June 2016, mercy petitions were addressed
by the convicts to the Hon’ble President of India,
which were rejected on 26th May 2017. This is the
second part of the delay, andiii. The third part of the delay started on 19th June
2017, when the Superintendent of Prison informed
the learned Sessions Judge, Pune, about the
rejection of mercy petitions by the Hon’ble President
of India. Ultimately, it was only on 10th April
2019 that the learned Sessions Court, Pune, issued
the warrants for the execution of the death
sentence.
Thus, from 10th July 2015 till 10th April 2019, time was
consumed in deciding the mercy petitions filed before theCriminal Appeal Nos.2831 and 2832 of 2023 Page 32 of 58
Hon’ble Governor of the State and the Hon’ble President of
India, and in issuing warrants for executing the death
sentence.
DELAY IN PROCESSING AND DISPOSAL OF MERCY
PETITIONS
30. We are dealing with the first part of the delay in deciding
the mercy petitions made to the Hon’ble Governor which was
as follows:
Date Particulars Time
taken
10th July 2015 Convicts filed mercy -
petitions addressed to the
Hon’ble Governor of the
State of Maharashtra
16th July 2015 Prison authorities 6 days
forwarded the mercy
petitions along with the
letter
20th July 2015 Home Department of the 4 days
State Government
received the mercy petitions
forwarded by the prison
authorities
17th August 2015 Home Department of the 28 days
State Government
addressed a letter to the
Superintendent of Prison
seeking confirmation
regarding the decision of the
convicts to prefer review
petitions
22nd August 2015 Superintendent of Prison 5 days
recorded the statements of
Criminal Appeal Nos.2831 and 2832 of 2023 Page 33 of 58
the convicts stating that
they had not preferred
review petitions.
24th August 2015 Fact of convicts not having 7/9 days
and 26th August preferred review petitions since
2015. was communicated by the receipt of
prison authorities and the letter
ADG (Prisons) dated 17th
August
2015 and
2/4 days
since
recording
convicts’
statement
25th January Note prepared by the Home 152 days
2016 Department of the State
Government for the benefit
of the Hon’ble Governor
29th March 2016 Mercy petitions rejected by 64 days
the Hon’ble Governor.
From the above table, it appears that nothing was done by the
Home Department of the State Government for five months
(152 days) after receiving confirmation that the convicts had
not preferred a review petition. Further, a perusal of the note
prepared for the benefit of the Hon’ble Governor shows that it
consists of three and a half pages. The recommendation is in
three lines in the last paragraph. It is interesting to note that
while forwarding the mercy petitions along with the letter dated
16th July 2015, the following documents were sent to the Home
Department:
i. Nominal roll of the convicts;
Criminal Appeal Nos.2831 and 2832 of 2023 Page 34 of 58
ii. Medical report of mental and physical health;
iii. A summary of crime;
iv. Warrant of conviction issued by the Sessions Court;
andv. A copy of the judgment of the High Court confirming
the death sentence and the order/judgment of this
Court.
The note appears to be based only on these documents, which
were available to the Home Department in July 2015. A lot of
time was wasted on correspondence made by various officers.
All this was avoidable. Immediately upon receipt of the mercy
petitions, all the required information/documents ought to
have been called for by the Home Ministry. That was not done.
Perhaps the officers in the Home Ministry showed a lack of
sensitivity. Ultimately, on 29th March 2016, mercy petitions
were rejected by the Hon’ble Governor. Thus, the delay of 5
months between 16th July 2015 and 25th January 2016 is
unexplained and unjustified.
31. Now, we come to the second part of the delay which was
as follows:
Date Particulars Time
taken
11th April 2016 Convict no.1 intimated that -
he was desirous of filing
a mercy petition before the
Hon’ble President of India.
13th April 2016 Letter sent by the ADG 2 days
(Prisons) to the
Criminal Appeal Nos.2831 and 2832 of 2023 Page 35 of 58
Superintendent of Prison,
requesting to forward
updated nominal roll,
report on the mental and
physical health of the
convicts and information
about criminal
antecedents.
28th April 2016 Home Department of the -
State Government informed
the Under Secretary (GOI)
that the Hon’ble Governor
had rejected mercy
petitions. Mercy petitions
addressed to the Hon’ble
President were forwarded
with this letter. Apart from
the copies of the mercy
petitions, the judgments of
the Sessions Court, Pune,
the High Court and this
Court, along with the
communication of rejection
of mercy petitions by the
Hon’ble Governor, were
forwarded to the Under
Secretary (GOI).
31st May 2016 Under Secretary (GOI) 33 days
addressed a letter to the
Home Department of the
State Government
requesting to provide
criminal history, economic
condition and information
regarding the filing of
review petition by the
convicts within two weeks.
Criminal Appeal Nos.2831 and 2832 of 2023 Page 36 of 58
11th June 2016 Fresh set of mercy petitions -
were filed by the relatives of
both convicts
15th June 2016 Under Secretary (GOI) -
reminded the Home
Department of the State
Government to forward the
documents mentioned in
the letter dated 31st May
2016.
22nd June 2016 Letter dated 31st May 2016 22 days
was received by the Home
Department of the State
Government.
22nd July 2016 Under Secretary (GOI) -
reminded the Home
Department of the State
Government to forward the
documents mentioned in
the letter dated 31st May
2016.
9th August 2016 Home Department of the 48 days
State Government wrote to since
the ADG (Prisons) and receipt of
Superintendent of Prison to letter
supply documents as dated 31st
mentioned in the letter May 2016
dated 31st May 2016.
5th September Superintendent of Prison 27 days
2016 acted upon letter dated 9th
August 2016 by addressing
a letter to the Senior
Inspector of the concerned
Police Station to forward
details regarding the
antecedents and economic
Criminal Appeal Nos.2831 and 2832 of 2023 Page 37 of 58
condition of the family of
the convicts.
6th September Under Secretary (GOI) -
2016 reminded the Home
Department of the State
Government to forward the
documents mentioned in
the letter dated 31st May
2016.
9th September Information was sent by the 31 days
2016 Superintendent of Prison to since
the Home Department of letter
the State Government dated 9th
recording the fact that no August
review petitions were filed 2016
by the convicts.
12th September The concerned Police 7 days
2016 Station forwarded a report
regarding the criminal
history and economic
condition of the convicts to
the Home Department of
the State Government.
30th September Home Department of the 14 days
2016 State Government
communicated the
information mentioned
above to the Under
Secretary (GOI).
26th December Under Secretary (GOI) 87 days
2016 again requested
confirmation about the
review petitions filed by the
convicts, despite the State
Government having already
provided this information to
the Under Secretary (GOI)
Criminal Appeal Nos.2831 and 2832 of 2023 Page 38 of 58
vide letter dated 30th
September 2016.
16th January 2017 In view of the letter dated -
26th December 2016,
correspondences were
again started by the Home
Department of the State
Government.
23rd January 2017 ADG (Prisons) -
communicated to the Home
Department of the State
Government that the review
petitions were not filed.
7th February 2017 Superintendent of Prison -
communicated to the Home
Department of the State
Government that the review
petitions were not filed.
22nd February Home Department of the 58 days
2017 State Government
confirmed to the Under
Secretary (GOI) that a
review petition had not
been filed.
26th May 2017 Ultimately, the Hon’ble 93 days
President rejected the
mercy petitions.
A period of about three months taken by the Hon’ble President
cannot amount to undue delay. However, the delay from 28th
April 2016, when the mercy petitions were forwarded to the
Under Secretary (GOI) till 22nd February 2017, is entirely
unexplained and unwarranted.
Criminal Appeal Nos.2831 and 2832 of 2023 Page 39 of 58
DELAY IN ISSUE OF WARRANT OF EXECUTION
32. We have already held that the undue delay in issuing a
warrant of execution can violate the rights of convicts under
Article 21 of the Constitution of India. Accordingly, the third
part of the delay was as follows:
Date Particulars Time
taken
6th June 2017 Information was submitted by 11 days
the Under Secretary, Ministry since
of Home Affairs, Government rejection
of India, to the Principal by Hon’ble
Secretary, Home Department, President
Government of Maharashtra
regarding rejection of mercy
petition
19th June 2017 Superintendent of Prison 24 days
addressed separate letters to since
the family members of the rejection
convicts and learned Sessions by Hon’ble
Judge, Pune, informing them President
about the rejection of the
mercy petitions.
10th August Superintendent of Prison –
2017 addressed a letter to the
learned Sessions Judge,
Pune, requesting him to issue
a warrant for the execution of
the death sentence.
24th August Superintendent of Prison –
2017 addressed a letter to the
Registrar of this Court
requesting him to provide
information about any review
petition filed by the convicts.
Criminal Appeal Nos.2831 and 2832 of 2023 Page 40 of 58
9th September Registrar of this Court 16 days
2017 communicated to the
Superintendent of Prison that
no review petitions were filed
by the convicts.
5th October 2017 Letter was addressed by the –
Superintendent of Prison to
the learned Sessions Judge,
Pune, requesting him to issue
a warrant of execution of the
death sentence.
18th July 2018 Letter was addressed by the –
Superintendent of Prison to
the learned Sessions Judge,
Pune, requesting him to issue
a warrant of execution of the
death sentence.
29th August Letter was addressed by the –
2018 Superintendent of Prison to
the learned Sessions Judge,
Pune, requesting him to issue
a warrant of execution of the
death sentence.
17th October Letter was addressed by the –
2018, ADG (Prisons) to the learned
Sessions Judge, Pune,
requesting him to fix a date
for the execution of the death
sentence.
30th October As no action was taken by the –
2018 Sessions Court, Pune, the
Home Department of the
Government of Maharashtra
addressed a letter to the Law
and Judiciary Department of
the State Government making
a query whether the Home
Criminal Appeal Nos.2831 and 2832 of 2023 Page 41 of 58
Department could proceed
with the execution of death
sentence in accordance with
the provisions of the
Maharashtra Prison Manual.
2nd November Learned Sessions Judge, 502 days
2018 Pune, addressed a letter to since
the Home Department, letter
Government of Maharashtra, dated 19th
seeking information about June 2017
the status of mercy petitions
12th November Law and Judiciary 13 days
2018 Department of the State
Government informed the
Home Department of the
State Government that the
exclusive jurisdiction to issue
warrants for executing the
death sentence was of the
learned Sessions Court
7th December ADG (Prisons) addressed –
2018 letter to the learned Sessions
Court, Pune, requesting him
to fix a date for executing the
death sentence.
27th December Superintendent of Prison –
2018 addressed letter to the
learned Sessions Court,
Pune, requesting him to fix a
date for executing the death
sentence.
31st January Home Department of the 90 days
2019 State Government wrote a
letter to the ADG (Prisons)
and the Superintendent of
Prison informing them about
the letter dated 2nd November
Criminal Appeal Nos.2831 and 2832 of 2023 Page 42 of 58
2018 sent by the Learned
Sessions Judge, Pune
10th April 2019 Warrants for the execution of 661 days
the death sentence were since
issued by the Sessions Court, letter
Pune. dated 19th
June 2017
33. When the mercy petitions were pending, the Sessions
Court could not have issued a warrant to execute the death
sentence. The most straightforward procedure that the State
Government could have followed was to apply through the
Public Prosecutor before the learned Sessions Court on the
judicial side by placing on record the rejection of the mercy
petitions and seeking the issuance of warrants for the
execution. Even the Sessions Court ought to have acted upon
the several letters from the Prison and issued notice to the
State Government. However, that was not done. Thus, there
was an inordinate delay in issuing warrants for executing
the death sentence. This delay from June 2017 to April 2019
was entirely avoidable. This also is a delay post-confirmation
of the death sentence by this Court, which must be taken into
consideration.
THE EFFECT OF THE DELAY
34. Thus, on facts, it can be said that there was undue and
unexplained delay at all three stages. The undue delays have
occurred in placing the mercy petitions before the Hon’ble
Governor for the State and the Hon’ble President of India. In
the facts of the case, the inordinate delay is on the part of the
Criminal Appeal Nos.2831 and 2832 of 2023 Page 43 of 58
executive and not on the part of the Constitutional
functionaries.
35. The time consumed from the filing of mercy petitions
before the Hon’ble Governor to the date of issue of the execution
of warrants by the learned Sessions Court, Pune, is of three
years, eleven months and fourteen days. Even if we exclude
the time actually taken by the constitutional functionaries to
decide mercy petitions, still the delay will be of more than three
years. The Court must consider the cumulative effect of the
delays at three stages after taking into consideration the facts
of the case. The reason is that in a given case, there may not
be an inordinate delay in one stage, but there may be an
inordinate delay in two other stages. The only conclusion in
this case is that the delay is unexplained and inordinate.
Therefore, it is impossible to find fault with the view taken by
the High Court that there was a violation of the rights of the
convicts guaranteed under Article 21 of the Constitution of
India. Therefore, the commutation of the death sentence to a
fixed term sentence of thirty-five years by the High Court
cannot be faulted.
DUTY OF THE EXECUTIVE AND THE SESSIONS COURT
36. The Executive must promptly deal with the mercy
petitions filed by the convicts of the death sentence. In this
case, the approach of the Executive, and especially the State
Government, has been casual and negligent. Even the Sessions
Court ought to have been pro-active. When the delay from the
date of filing of mercy petitions till the date of issue of a warrant
Criminal Appeal Nos.2831 and 2832 of 2023 Page 44 of 58
of execution is inordinate and unexplained, the right of the
convicts guaranteed by Article 21 of the Constitution of India
is violated. This right must be upheld, and it is the duty of the
Constitutional Courts to do so.
37. We must also consider the rights of the victims of the
offences to justice. Their right is to ensure that there is a
prompt and proper investigation. However, we hasten to add
that there is no right vested in the victim to insist on imposing
capital punishment. The law must be enforced with all the
vigour, and the Executive Branch of the State Government
cannot show laxity in implementing the orders of conviction
passed by the competent Courts. The very purpose of passing
orders of sentence cannot be allowed to be defeated. We cannot
ignore the effect of the laxity shown by law enforcement
agencies on society. Therefore, we propose to issue directions
to ensure that there are no administrative delays in dealing
with the mercy petitions or issuing warrants for execution of
death sentence.
DIRECTIONS TO CURB THE DELAYS
38. The first direction which we propose to issue is regarding
the nature of documents which ought to be immediately
forwarded with the mercy petitions. The second direction we
propose is that the State Government must set up a dedicated
cell in either the Home Department or Prison Department to
ensure prompt and expeditious processing of the mercy
petitions. We also propose to direct the State Government to
Criminal Appeal Nos.2831 and 2832 of 2023 Page 45 of 58
issue executive orders to ensure prompt processing of the
mercy petitions.
39. Now, we come to the role of the Sessions Court. There
cannot be any dispute that unless a warrant is issued for the
execution of the death sentence under Section 413 or Section
414 of the CrPC, the death sentence cannot be executed. On
this aspect, we must refer to a decision of this Court in the case
of Shabnam v. Union of India9 and, in particular, paragraph
21. This Court held that the procedure laid down by the High
Court of Allahabad in its decision in the case of People’s Union
for Democratic Rights (PUDR) v. Union of India & Ors.10 is
in consonance with Article 21 of the Constitution of India.
Therefore, while executing the death sentence, it is mandatory
to follow the procedure laid down by the Allahabad High Court
in the decision mentioned above. The decision of the Allahabad
High Court can be summarised as follows:
i. The principles of natural justice must be drawn into
the provisions of Sections 413 and 414 of the CrPC,
and sufficient notice ought to be given to the convict
before issuance of a warrant for the execution of
the death sentence by the Sessions Court, which
would enable the convict to consult an advocate and
represent him in the proceedings;
ii. The warrant for the execution of the death sentence
must specify the exact date and time of the execution9
(2015) 6 SCC 702
10
2015 SCC OnLine All 143Criminal Appeal Nos.2831 and 2832 of 2023 Page 46 of 58
and not a range of dates within which the death
sentence will be executed, which places the convict in
a state of uncertainty. A reasonable time must be
provided between the date of the order of issue of
the execution warrant and the date fixed for actual
execution so that the convict gets an opportunity to
adopt a remedy against the warrant and to have
a final meeting with the family members;
iii. A copy of the warrant must be immediately supplied
to the convict, and
iv. After issuing a notice and before issuing a warrant of
execution, if the convict is not represented by an
advocate, legal aid should be provided to him.
As held by this Court, the procedure described above is in
conformity with Article 21 of the Constitution of India.
40. To avoid the situation that arose in this case, we need to
elaborate further upon the directions already issued by the
Allahabad High Court. When a death sentence is confirmed or
the High Court imposes a death sentence, a writ/order of the
High Court is always sent to the Sessions Court. When the
Sessions Court receives intimation of such order, the disposed
of sessions case must be taken on board by the Sessions Court,
and notice should be issued to the Public
Prosecutor/investigating agency to ascertain whether the
convicts have challenged the judgment of the High Court.
Depending upon the rules of procedure of the concerned court,
Criminal Appeal Nos.2831 and 2832 of 2023 Page 47 of 58
the proceeding can be numbered as a Misc. Application in the
disposed of case. If the Public Prosecutor informs the Sessions
Court that the challenge before this Court is pending, the
Sessions Court should pass no further order. As soon as the
intimation of confirmation of the death sentence by this Court
is received, the disposed of case should be taken on the cause
list and notice should be issued to the convicts through the Jail
Superintendent calling upon the convicts to disclose whether
they intend to file review petition and/or mercy petition. It is
the duty of the State/investigating agency to inform the
Sessions Court about the outcome of the review and mercy
petitions by filing a proper application in the disposed of case.
The reason is that it is the responsibility of the
State/investigating agency to ensure that the death penalty is
executed. To ensure that there is no delay, the Sessions Court,
after confirmation of the death sentence by the Court, shall
periodically fix dates in the disposed of case so that an up-to-
date report can be submitted on behalf of the State
Government/investigating agency through the Public
Prosecutor. It will be the duty of the State
Government/investigating agency to make an application and
inform the Sessions Court about the rejection of the mercy
petitions made to the Constitutional authorities so that the
Sessions Court can take further steps. Such information shall
be furnished by making a regular application on the judicial
side and not by sending a letter. After such an application is
filed before the Court, notice should be issued to the convicts
informing them that the Court is proposing to issue a warrant
Criminal Appeal Nos.2831 and 2832 of 2023 Page 48 of 58
for executing the death sentence. After hearing the convict
and/or his advocate or legal aid advocate provided to the
convict, the Court should pass an order directing issuance of
the warrant of execution, a copy of which shall be immediately
forwarded to the convict. As directed earlier by this Court, the
warrant must contain a precise date and time of execution.
The time should be fixed in such a manner that the convict gets
at least a period of fifteen clear days from the date of receipt of
the warrant of execution of the death sentence and the actual
date of execution to enable him to take recourse to legal
remedies or to allow him to meet his relatives finally.
41. As we are confirming the impugned judgment on the
ground of inordinate and unexplained delay in the execution of
the death sentence, it is not necessary to decide the controversy
whether the convicts were kept in solitary confinement even
before the rejection of the mercy petitions.
OUR CONCLUSIONS
42. We hold that:-
(i) Undue, unexplained and inordinate delay in
execution of the sentence of death will entitle the
convict to approach this Court under Article 32.
However, this Court will only examine the nature of
the delay caused and circumstances that ensued
after the judicial process finally confirmed the
sentence and will have no jurisdiction to reopen the
conclusions reached by the Court while finally
maintaining the sentence of death. This Court,
Criminal Appeal Nos.2831 and 2832 of 2023 Page 49 of 58
however, may consider the question of inordinate
delay in the light of all circumstances of the case to
decide whether the execution of sentence should be
carried out or should be commuted to
imprisonment for life;
(ii) Keeping a convict in suspense while considering his
mercy petitions by the Governor or the President for
an inordinately long time will certainly cause agony
to him/her. It creates adverse physical conditions
and psychological stress on the convict. Therefore,
this Court, while exercising its jurisdiction under
Article 32 read with Article 21 of the Constitution,
must consider the effect of inordinate delay in
disposal of the clemency petition by the highest
Constitutional authorities and cannot excuse the
agonising delay caused only on the basis of the
gravity of the crime;
(iii) It is well established that Article 21 of the
Constitution does not end with the pronouncement
of the sentence but extends to the stage of execution
of that sentence. An inordinate delay in the
execution of the sentence of death has a
dehumanising effect on the accused. An inordinate
and unexplained delay caused by circumstances
beyond the prisoners’ control mandates the
commutation of a death sentence;
Criminal Appeal Nos.2831 and 2832 of 2023 Page 50 of 58
(iv) The above principles will also apply to a case where
there is a long and unexplained delay on the part of
the Sessions Court in issuing the warrant of
execution in accordance with Section 413 or
Section 414 of CrPC. After the order of rejection of
mercy petitions is communicated to a convict, the
sword of Damocles cannot be kept hanging on him
for an inordinately long time. This can be very
agonising, both mentally and physically. Such
inordinate delay will violate his rights under Article
21 of the Constitution. In such a case, this Court
will be justified in commuting the death penalty into
life imprisonment;
(v) No hard and fast rule can be laid down as regards
the length of delay, which can be said to be
inordinate. It all depends on the facts of the case.
The terms “undue” or “inordinate” cannot be
interpreted by applying the rules of mathematics.
The Courts, in such cases, deal with human issues
and the effect of the delay on individual convicts.
What delay is inordinate must depend on the facts
of the case;
(vi) A convict can invoke even the jurisdiction of a High
Court under Article 226 of the Constitution in the
event there is an inordinate and unexplained delay
in the execution of the death sentence, post-
confirmation of the sentence. The same principles
Criminal Appeal Nos.2831 and 2832 of 2023 Page 51 of 58
will be applied by the High Court, which are
summarised above; and,
(vii) It is the duty of the Executive to promptly process
the mercy petitions invoking Articles 72 or 161 of
the Constitution and forward the petitions along
with requisite documents to the concerned
constitutional functionary without undue delay.
OPERATIVE DIRECTIONS
43. Hence, we pass the following order:
i. The impugned judgment and order, by which
the death sentence of the convicts has been
commuted to a fixed sentence of thirty-five years of
imprisonment, is upheld, and Criminal Appeals are
dismissed;
ii. As regards the mercy petitions, we issue the following
directions to all the State Governments and Union
Territories:
A. A dedicated cell shall be constituted by the Home
Department or the Prison Department of the State
Governments/Union Territories for dealing with
mercy petitions. The dedicated cell shall be
responsible for the prompt processing of the
mercy petitions within the time frame laid down
by the respective governments. An officer-in-
charge of the dedicated cell shall be nominated byCriminal Appeal Nos.2831 and 2832 of 2023 Page 52 of 58
designation who shall receive and issue
communications on behalf of the dedicated cell;
B. An official of the Law and Judiciary or Justice
Department of the State Governments/Union
Territories should be attached to the dedicated
cell so constituted;
C. All the prisons shall be informed about the
designation of the officer-in-charge of the
dedicated cell and his address and email ID;
D. As soon as the Superintendent of Prison/officer-
in-charge receives the mercy petitions, he shall
immediately forward the copies thereof to the
dedicated cell and call for the following
details/information from the officer-in-charge of
the concerned Police Station and/or the
concerned investigation agency;
a. The criminal antecedents of the convict;
b. Information about family members of the
convict;
c. Economic condition of the convict and
his/her family;
d. The date of arrest of the convict and the
period of incarceration as an undertrial;
and,Criminal Appeal Nos.2831 and 2832 of 2023 Page 53 of 58
e. The date of filing charge sheet and a copy
of the committal order, if any.
On receipt of the request made by the jail
authorities, the officer-in-charge of the concerned
police station shall be under an obligation to
furnish the said information to the jail authorities
immediately;
E. On receipt of the said information, without any
delay, the jail authorities shall forward
the following documents to the officer-in-charge
of the dedicated cell and the Secretary of the
Home Department of the State Government:
a. Information furnished as aforesaid by the
concerned Police Station with its English
translation;
b. Copy of the First Information Report with its
English translation;
c. Details, such as date of arrest of the convict,
date of filing of chargesheet and actual period
of incarceration undergone by the convict;
d. A copy of the committal order, if any, passed
by the learned Judicial Magistrate;
e. A copy of charge-sheet with its English
translation;
Criminal Appeal Nos.2831 and 2832 of 2023 Page 54 of 58
f. Report about the conduct of the convict in
prison;
g. Copies of the notes of evidence, all exhibited
documents in the trial and copies of
statements of convicts under Section 313 of
the CrPC with its English translation;
h. Copies of the judgments of the Sessions Court
(with its English translation, if it is in
vernacular language), High Court and this
Court;
F. As soon as mercy petitions are received by the
dedicated cell, copies of the mercy petitions shall
be forwarded to the Secretariats of the Hon’ble
Governor of the State or the Hon’ble President of
India, as the case may be so that the Secretariat
can initiate action at their end;
G. All correspondence, as far as possible, be made
by email, unless confidentiality is involved; and,H. The State Government shall issue office
orders/executive orders containing guidelines for
dealing with the mercy petitions in terms of this
judgment.
iii. The Registry of this Court shall forward copies of this
judgment to the Secretaries of the Home Department
of the respective State Governments/Union TerritoriesCriminal Appeal Nos.2831 and 2832 of 2023 Page 55 of 58
for its implementation. The Secretaries shall report
compliance within three months from today to the
Registrar (Judicial) of this Court;
iv. The Sessions Court shall endeavour to follow the
following guidelines:
a. As soon as the order of the High Court confirming
or imposing the death sentence is received by the
Sessions Court, a note thereof must be taken, and
the disposed of case shall be listed on the cause
list. The proceedings can be numbered as Misc.
Application depending upon the applicable Rules
of the procedure. The Sessions Court shall
immediately issue notice to the State Public
Prosecutor or the investigating agency calling upon
them to state whether any appeal or special leave
petition has been preferred before this Court and
what is the outcome of the said petition/appeal;
b. If the State Public Prosecutor or the investigating
agency reports that the appeal is pending, as soon
as the order of this Court confirming or restoring
the death sentence is received by the Sessions
Court, again, the disposed of case or
miscellaneous applications should be listed on the
cause list and notice be issued to the State Public
Prosecutor or the investigating agency to ascertain
whether any review/curative petitions or mercy
petitions are pending. If information is receivedCriminal Appeal Nos.2831 and 2832 of 2023 Page 56 of 58
regarding the pendency of review/curative
petitions or mercy petitions, the Sessions Court
shall keep on listing the disposed of case after
intervals of one month so that it gets the
information about the status of the pending
petitions. This will enable the Sessions Court to
issue a warrant for the execution of the death
sentence as soon as all the proceedings culminate;
c. However, before issuing the warrant, notice should
be issued to the convict, and the directions issued
by the Allahabad High Court in the case of
People’s Union for Democratic Rights (PUDR)10,
and as elaborated above, shall be implemented by
the Sessions Court;
d. The Sessions Courts shall consider what is held in
Paragraph 25 above;
e. Copies of the order issuing the warrant and the
warrant shall be immediately provided to the
convicts, and the Prison authorities must explain
the implications thereof to the convicts. If the
convict so desires, legal aid be immediately
provided to the convicts by the Prison authorities
for challenging the warrant. There shall be a gap
of fifteen clear days between the date of the receipt
of the order as well as warrant by the convict and
the actual date of the execution; and,Criminal Appeal Nos.2831 and 2832 of 2023 Page 57 of 58
f. It shall also be the responsibility of the concerned
State Government or the Union Territory
administration to apply to the Sessions Court for
the issuance of a warrant immediately after the
death penalty attains finality and becomes
enforceable.
v. A copy of this judgment shall be forwarded to both the
convicts through the Jail Superintendent of the
concerned jail.
vi. A copy of this judgment shall be forwarded to the
Registrar Generals of all the High Courts, who in turn
shall forward the copies thereof to all the Sessions
Courts.
vii. These disposed of appeals shall be listed on 17th
March 2025 for considering compliance.
……………………………….J.
(Abhay S Oka)……………………………….J.
(Ahsanuddin Amanullah)……………………………….J.
(Augustine George Masih)
New Delhi;
December 9, 2024.
Criminal Appeal Nos.2831 and 2832 of 2023 Page 58 of 58