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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL ORIGINAL/APPELLATE JURISDICTION

REVIEW PETITION (CRL.) NO.591 OF 2014

IN

CRIMINAL APPEAL NO.338 OF 2007

WITH

WRIT PETITION (CRL.) NO. 197 OF 2014

JAGDISH                                                             …PETITIONER(S)

Versus

STATE OF MADHYA PRADESH            …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. Petitioner Jagdish was tried for the murder of his wife and five

children.  He was convicted by the trial court vide judgment dated

24.04.2006 and sentenced to death.  He filed an appeal which was

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dismissed by the High Court on 27.06.2006 and the death sentence

was confirmed.   Thereafter, he filed Criminal Appeal in this Court

which was dismissed and again death sentence was confirmed vide

judgment dated 18.09.2009.

2. The petitioner filed mercy petition before the jail authorities on

13.10.2009, which came to be rejected by the President of India on

16.07.2014.   The petitioner has filed Writ petition (Crl.)No.197 of

2014 challenging the rejection of his mercy petition and the main

ground is that there is a delay of almost 5 years in deciding the

mercy petition and this  itself is  a ground to commute the death

sentence to life imprisonment.   Thereafter, the petitioner also filed

Review Petition No. 591 of 2014 in which review of the judgment of

this  Court dated  18.09.2009 is sought both on  merits and the

question of sentence in Criminal Appeal No. 338 of 2007.   Hence

this matter is before this Bench.

3. At the outset we may note that we are not inclined to entertain

the Review Petition on the merits of the case.   Three courts have

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come to a concurrent finding of fact that it was the petitioner who

murdered his wife and five children.   We have gone through the

written submissions filed by the learned counsel appearing on

behalf of the petitioner and find no reason to take a view different

from the one taken earlier.

4. We are only dealing with the issue whether the sentence of

death should be upheld or not?   In the Writ Petition it has been

urged that delay  in deciding the mercy petition and the delay  in

legal proceedings is sufficient to recall the sentence of death.  In the

Review Petition some other arguments have been raised.   It  has

been urged that this case does not fall in the category of the rarest

of rare cases; this is a case based on circumstantial evidence; that

the petitioner Jagdish was suffering from mental illness; the

petitioner has been incarcerated for almost 14 years and execution

of the death sentence at this stage would virtually mean imposing

two sentences upon him – a sentence of life imprisonment and then

a sentence of death.

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5. Delay in dealing with mercy petition:

This Court in  V. Sriharan alias Murugan   vs.   Union of India

and Others 1 held that one of the circumstances recognized by this

Court for commutation of death sentence into life imprisonment is

the undue, inordinate and unreasonable delay in the execution of

death sentence.  The Court, however, held that whether the delay is

unreasonable or not, it has to be appreciated in the facts of each

case.   In  Sriharan’s  case, there was a delay of 5 years and one

month in disposing of the mercy petition and this Court held as

follows :­

“17. Exorbitant delay in disposal of mercy petition renders the process of  execution of  death sentence arbitrary,  whimsical  and capricious and, therefore, inexecutable. Furthermore, such imprisonment, occasioned by inordinate delay in disposal of mercy petitions, is beyond the sentence accorded by the court and to that extent is extra­legal and excessive. Therefore, the apex constitutional authorities must exercise the power under Articles 72/161 within the bounds of constitutional discipline and should dispose of the mercy petitions filed before them in an expeditious manner.

18.  ……….

1 (2014) 4 SCC 242

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19. Before we advert to respond the aforesaid contention, it is relevant to comprehend the primary ground on the basis of which the relief was granted in cases of delayed disposal of the mercy petition and that is, such delay violates the requirement of a fair, just and reasonable procedure. Regardless and independent of the suffering it causes, delay makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violates procedural due process guaranteed under Article 21 of the Constitution and the dehumanising effect is presumed in such cases. It is in this context, this  Court, in the past, has recognised that incarceration, in addition to the reasonable time necessary for adjudication of mercy petitions and preparation for execution, flouts the due process guaranteed to the convict under Article 21 which inheres in every prisoner till his last breath.”

Consequently, the Court commuted the death sentence to life.   

6. In  Ajay Kumar Pal  vs.  Union of India and Another2  this

Court was dealing with a case where there was a delay of 3 years

and 10 months in dealing with the mercy petition.   In this case it

was  also admitted that the  petitioner  had  been  kept in solitary

confinement after the death sentence was confirmed by this Court.

This Court held that the combined effect of the inordinate delay in

disposal of the mercy petition and solitary confinement for such a

long period caused deprivation of the cherished right to liberty of

the petitioner and, therefore, the death sentence was converted to

life imprisonment.

2 (2015) 2 SCC 478

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7. As far as the present case is concerned the occurrence took

place on the intervening night of 19/20.08.2005.   The trial court

completed the trial swiftly and delivered its judgment on

24.04.2006.   The  High Court confirmed the sentence  within 2

months on 27.06.2006,  and  this  Court  dismissed  the  appeal  on

18.09.2009.   The petitioner filed a mercy petition addressed to the

President of India and the Governor of Madhya Pradesh through the

jail authorities on 13.10.2009. This application was forwarded by

the  Madhya Pradesh authorities to the  Ministry  of  Home Affairs

after more than 4 years on 15.10.2013.  Thereafter, the Ministry of

Home Affairs  called for some  records from  the  State  of  Madhya

Pradesh on 20.11.2013.   These documents were supplied by the

State of Madhya Pradesh on 12.12.2013.  The file was forwarded to

the President of India on 02.04.2014.  The file was returned to the

Ministry of Home Affairs for reconsideration.  It was re­submitted to

the President of India on 07.07.2014 and finally the mercy petition

was rejected on 16.07.2014.

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8. As far as the Government of  India or the Secretariat of  the

President of India is concerned, there is no delay in dealing with the

mercy  petition  and the same  has  been  dealt  with expeditiously.

However, the State of Madhya Pradesh has given no explanation for

the delay of more than 4 years in forwarding the mercy petition.

9. We are constrained to observe that not only was there a long,

inordinate and un­explained delay on the part of the State of

Madhya Pradesh but to make matters worse, the State of Madhya

Pradesh has not even cared to file any counter affidavit in the Writ

Petition even though notice was issued 4 years back on 18.11.2014

and service was effected within a month of issuance of notice.

10. The  delay in forwarding the  petition is totally  un­explained

and this Court cannot countenance an un­explained delay of more

than 4 years.   We are dealing here with the case of a person who

has been sentenced to death.  The mercy petition is the last hope of

a person on death row.  Every dawn will give rise to a new hope that

his mercy petition may be accepted.   By night fall this hope also

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dies.   Inordinate and unexplained delay in deciding the  mercy

petition and the consequent delay in execution of death sentence for

years on end is another form of punishment which was awarded by

the  Court.  This  Court  has  repeatedly  held that in  cases  where

death sentence has  to be executed the same should be done as

early  as possible  and  if  mercy  petitions  are  not forwarded  for  4

years and no explanation is submitted we cannot but hold that the

delay is inordinate and un­explained.

11. We are not only dealing with the issue of delay in disposal of

the mercy petition.   The petitioner has now been behind bars for

almost about 14 years.  This is also a factor which will have to be

taken into consideration.

12. Death sentence is the exception and has to be awarded in the

rarest of rare cases.   Keeping in view all the circumstances of the

case, including the un­explained delay of 4 years in forwarding the

mercy petition by the State of Madhya Pradesh leading to delay of

almost 5 years in deciding the mercy petition and the fact that the

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petitioner has been incarcerated for almost 14 years, we are of view

that regardless of the brutal nature of crime this is not a fit case

where death sentence should be executed and we, accordingly

commute the death sentence to that of life.   However, keeping in

view the nature of crime and the fact that 6 innocent lives were lost,

we direct that life imprisonment in this case shall mean the entire

remaining life of the petitioner and he shall not be released till his

death.   The Review Petition as well as the Writ Petition are partly

allowed in the aforesaid terms and, accordingly, disposed of.

Pending application(s) if any shall stand disposed of.

…………………………..J.

(N.V. Ramana)

…………………………..J.

(Deepak Gupta)

……………………………J.

(Indira Banerjee)

New Delhi February 21, 2019