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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  677   OF 2013 (Arising out of SLP(Crl.) No. 1105 of 2012)

Mahendra Nath Das          …Appellant

versus

Union of India and others                    ...Respondents

J U D G M E N T

G. S. SINGHVI, J.

1. Leave granted.

2. The question which arises for consideration in this appeal is whether  

12 years delay in the disposal of the petition filed by the appellant under  

Article 72 of the Constitution was sufficient for commutation of the sentence  

of death into life imprisonment and the Division Bench of the Gauhati High  

Court committed an error by dismissing the writ petition filed by him.  

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3. The appellant was prosecuted for an offence under Section 302 of the  

Indian Penal  Code (IPC) on the allegation that  he had killed Rajen Das,  

Secretary of Assam Motor Workers Union on 24.12.1990. He was convicted  

by Sessions Judge, Kamrup, Guwahati (hereinafter referred to as, ‘the trial  

Court’) in Sessions Case No. 80(K) of 1990 vide judgment dated 11.11.1997  

and was sentenced to life imprisonment.

4. While  he  was  on  bail  in  Sessions  Case  No.  80(K)  of  1990,  the  

appellant is said to have killed Hare Kanta Das (a truck owner).  He was  

tried in Sessions Case No. 114(K) of 1996 and was convicted by the trial  

Court and was sentenced to death on the premise that the murder was most  

foul and gruesome.

5. The appellant challenged the judgments of the trial Court in Appeal  

Nos. 254(J) of 1997 and 2(J) of 1998. Both the appeals were dismissed by  

the  High  Court  vide  judgments  dated  3.2.1998  and  12.12.1998  and  the  

sentence  of  death  awarded  in  Sessions  Case  No.  114(K)  of  1996  was  

confirmed.

6. The  appeal  filed  by  the  appellant  against  the  confirmation  of  the  

sentence  of  death  by  the  High  Court  was  dismissed  by  this  Court  vide  

judgment  –  Mahendra  Nath  Das  v.  State  of  Assam  (1999)  5  SCC 102.  

While dealing with the appellant’s contention that the extreme penalty of  

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death should not have been imposed by the trial Court and confirmed by the  

High Court, this Court made the following observations:

“Now coming to the facts of this case, the circumstances of the  case  unmistakably  show  that  the  murder  committed  was  extremely  gruesome,  heinous,  cold-blooded  and  cruel.  The  manner in which the murder was committed was atrocious and  shocking.  After  giving  blows  with  a  sword  to  the  deceased  when he fell down the appellant amputated his hand, severed  his head from the body, carried it through the road to the police  station (majestically as the trial court puts it) by holding it in  one  hand  and the  blood-dripping weapon  in  the  other  hand.  Does it not depict the extreme depravity of the appellant? In our  view it does.

The  mitigating  circumstances  pointed  out  by  the  learned  counsel for the appellant are, though the appellant himself did  not state any mitigating circumstances when enquired about the  same  by  the  learned  Sessions  Judge,  that  the  appellant  is  a  young man of 33 years and having three unmarried sisters and  aged  parents  and  he  was  not  well  at  that  time.  These  circumstances  when  weighed  against  the  aggravating  circumstances leave us in no doubt that this case falls within the  category of  rarest  of  rare cases.  The trial  court  has correctly  applied the principles in awarding the death sentence and the  High Court has committed no error of law in confirming the  same.

On these facts, declining to confirm the death sentence will, in  our  view,  stultify  the  course  of  law  and  justice.  In  Govindaswami v.  State of T.N.(1998) 4 SCC 531, Mukherjee,  J.  speaking  for  the  Court  observed,  “If,  in  spite  thereof,  we  commute the death sentence to life imprisonment we will  be  yielding to spasmodic sentiment, unregulated benevolence and  misplaced sympathy.”

7. Soon  after  the  judgment  of  this  Court,  the  appellant  submitted  a  

petition to the President under Article 72 of the Constitution and prayed for  

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commutation of  the sentence of  death into life  imprisonment.   A similar  

petition  was  filed  by  him  under  Article  161  of  the  Constitution.   The  

Governor  of  Assam rejected  his  petition  vide  order  dated  7.4.2000.  The  

mercy petition addressed to the President was forwarded by the Government  

of Assam to the Ministry of Home Affairs sometime in June, 2000.  After a  

lot  of  correspondence  with the State  Government,  the Ministry of  Home  

Affairs prepared a note suggesting that the petition filed by the appellant  

may be rejected.  On 20.6.2001, the then Home Minister recommended to  

the President that the mercy petition of the appellant should be rejected.

8. The record produced by the learned Additional Solicitor General does  

not show as to what happened in the next three years, but consideration of  

the appellant’s petition again started in September, 2004.  After the file was  

processed at various levels in the Ministry of Home Affairs, the case was  

submitted to the President on 19.4.2005 with the recommendation of  the  

Home Minister that the mercy petition of the appellant may be rejected  

9. The  President  considered  the  mercy  petition  in  the  light  of  the  

recommendation  made  by  the  Home  Minister  and  passed  order  dated  

30.9.2005, which reads as under:

“I  have  carefully  studied  the  mercy  petition  proposal  sent  for  my  consideration  in  respect  of  Mahendra Nath Das.  I  find that  though the  crime committed was of a gruesome nature, yet the conduct of the accused  does  not  show trace  of  pre-meditated  murder.  The  crime  can  well  be  attributed  to  a  gross  lack  of  mental  equanimity  on  his  part.  In  such  

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circumstances, his mercy petition in my view, be accepted and his death  sentence commuted to life-long imprisonment (i.e. for the rest of his life).  During  his  further  incarceration  in  prison,  he  may  be  given  periodic  counseling by spiritualist and moral leaders which could help reform his  personality and mental psyche. This may be considered.

A.P.J. Abdul Kalam PRESIDENT OF INDIA

30/9/2005”

10. On the same day, i.e., 30.9.2005, the President recorded another note  

for the Home Minister in which he dealt with mercy petitions filed by Sushil  

Murmu, Santosh Yadav, Molai Ram, Mahendra Nath Das, R. Govindasamy,  

Piara Singh, Sarabjit Singh, Satnam Singh and Gurdev Singh.  As per that  

note, the mercy petitions of Sushil Murmu, Santosh Yadav and Molai Ram  

were  rejected.  As  regards  Mahendra  Nath  Das,  R.  Govindasamy,  Piara  

Singh, Satnam Singh, Sarabjit Singh and Gurdev Singh, the President opined  

that their mercy petitions be accepted.  

11. After  receiving  the  note  of  the  President,  the  office  of  the  Home  

Minister asked for the appellant’s file.  However, requisition for the return of  

the  file  was  sent  to  the  President’s  Secretariat  only  on  7.9.2010.   The  

President’s  Secretariat  returned  the  file  on  24.9.2010.  Thereafter,  the  

Ministry of Home Affairs (Judicial Cell) prepared a note of about 6 pages in  

which the concerned officer recorded the details of the crime committed by  

the appellant, referred to the judgments of the trial Court, the High Court and  

this Court and the grounds on which the appellant had sought commutation  

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of the sentence of death into life imprisonment as also the representations  

made by some persons including President of the Union and suggested that  

the  mercy  petition  may  be  rejected.  The  Home  Minister  referred  to  the  

observations made by this Court and recommended that the mercy petition  

may  be  rejected  because  there  was  no  mitigating  circumstance.  The  

recommendations made by the Home Minister on 18.10.2010 were approved  

by the President on 8.5.2011.  Thereafter, the appellant was informed about  

rejection of his petition.

12. The writ petition filed by the appellant questioning the rejection of his  

mercy petition was dismissed  by the Division Bench of  the High Court,  

which referred to the judgments of this Court in Jagmohan Singh v. State of  

U.P. (1973) 1 SCC 20,  Rajendra Prasad v. State of U.P. (1979) 3 SCC 464,  

Bachan Singh v. State of Punjab (1980) 2 SCC 684, T.V. Vatheeswaran v.  

State of Tamil Nadu (1983) 2 SCC 68, Sher Singh v. State of Punjab (1983)  

2 SCC 344, Javed Ahmed Pawala v. State of Maharashtra (1985) 1 SCC 275, Mahesh  

v. State of M.P. (1987) 3 SCC 80, Triveniben v. State of Gujarat (1989) 1 SCC 678,  

Madhu Mehta v. Union of India (1989) 3 SCR 775, Sevaka Perumal v. State of T.N.  

(1991) 3 SCC 471, Dhananjoy Chatterjee v. State of W.B. (1994) 2 SCC  

220, Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353, Ravji  

v. State of Rajasthan (1996) 2 SCC 175, State of Madhya Pradesh v. Munna  

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Choubey (2005) 2 SCC 710, Swamy Shraddananda v. State of Karnataka  

(2008) 13 SCC 767 and observed:

“32. We may now come to the last and the crucial question whether or not  in  the  facts  and  circumstances  of  the  present  case,  the  prayer  for  commuting the death sentence to the life imprisonment can be accepted.  We have already noted the stand of the State that till decision on mercy  petition, the petitioner had never been kept in the condemned cell which  was in compliance with law laid down in Sunil Batra. The said stand has  not  been rebutted  in  any manner.  Though delay in  deciding  the mercy  petition does appear to be unexplained and if delay alone is a conclusive  factor, the death sentence may be liable to be set aside but in view of law  laid down by Constitution Bench in Triveniben, delay is a factor which  has to be seen in the light of subsequent circumstances, coupled with the  nature of offence and circumstances in which the offence was committed,  as already found by the competent court while passing the final verdict. At  this stage, the correctness of the final verdict  is not in issue as held in  Triveniben (particularly in paragraph 22 and 76). Beyond delay, there is  no subsequent circumstance showing any adverse effect on the petitioner  on that court. Throughout he has continued to live as normal prisoner with  other prisoners. If delay is considered along with dastardly and diabolical  circumstances  of  the  crime,  in  absence  of  any  further  supervening  circumstances in favour of the petitioner, no case is made out for vacating  the death sentence. Thus while delay has furnished cause of action to the  writ petitioner to seek altering of death sentence, in absence of any other  subsequent  circumstances  necessitating  vacation  of  death  sentence,  and  taking into account the circumstances for which the death sentence was  awarded, there is no ground to vacate the sentence so awarded. As held in  Sher Singh (last portion of paragraph 19 and 20), while death sentence  should not, as far as possible, be imposed but in rare and exceptional class  of cases where sentence is held to be valid, the same cannot be allowed to  be  defeated  by  applying  any  rule  of  thumb.  We  have  already  noticed  reasons for which retention of death sentence was upheld by the Hon'ble  Supreme Court in Jagmohan Singh and Bachan Singh by distinguishing  the American Judgments and taking into account the study conducted by  the Law Commission of India in its 35th Report and conditions prevailing  in the Country. It was noted that in the perspective of prevailing condition  of  India,  the  Parliament  has  repeatedly  rejected  all  attempts  to  abolish  death sentence. We have also referred to judgment of the Hon'ble Supreme  Court in Munna Choubey wherein after punishment may harm the justice  system and undermine the public confidence in efficacy of law, there was  need to maintain proportion in punishment and crime and to protect the  society,  adequate  punishment  was  necessary.  Thus,  mere  delay  is  a  significant  factor,  cannot  itself  be  a  ground  for  commuting  the  death  sentence  to  life  imprisonment  in  absence  of  any  further  circumstance  justifying such a course when offence and circumstances are rarest of rare.   

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33. We have analysed the principle of law laid down in Triveniben and  not  found  any  ground  for  vacating  the  death  sentence.  Judgments  in  Madhu Mehta and Daya Singh do not lay down any further principle as  precedent  and  appear  to  in  exercise  of  the  jurisdiction  of  the  Hon'ble  Supreme Court  under  Article  142 of the Constitution.  We are also not  persuaded  to  follow  the  view  taken  by  the  High  Courts  of  Madras,  Rajasthan and Bombay that  delay alone was conclusive for commuting  death sentence to life. In our view, this interpretation is contrary to law  laid in Triveniben for the reasons already discussed.”

13. The arguments in this case were heard along with W.P. (Crl.) D.No.16039 of 2011,  

W.P. (Crl.) No. 146 of 2011 and W.P. (Crl.) No.86 of 2011, which were finally disposed of  

on 12.4.2013.  Therein,  we have noticed in  detail  the arguments  of  Shri  Shyam Divan,  

learned senior counsel for the petitioner, Shri K. V. Viswanathan, learned senior counsel for  

the intervener  (PUDR) and the learned Additional  Solicitor  General  Harin P.  Raval.   In  

nutshell,  the argument  of Shri  Divan is that  even though the appellant’s conviction has  

become  final,  12  years  delay  in  the  disposal  of  the  mercy  petition  was  sufficient  for  

commutation of the sentence of death into life imprisonment and the High Court committed  

grave error by refusing to do so.  He relied upon the judgments in  Vivian Rodrick v.  

State of West Bengal (1971) 1 SCC 468, Madhu Mehta v. Union of India (supra),  

Daya  Singh  v.  Union of  India  (1991)  3 SCC 61 and Shivaji  Jaising  Babar  v.  State  of  

Maharashtra (1991) 4 SCC 375 and submitted that the High Court misunderstood the ratio  

of judgments in Madhu Mehta’s case and Daya Singh’s case and erroneously held that the  

principle  laid  down in  Triveniben’s  case  cannot  be  invoked  in  the  appellant’s  case  for  

commutation of the sentence of death into life imprisonment.  

14. Shri K.V. Viswanathan, learned senior counsel appearing for the intervener (PUDR)  

made detailed submissions in support of his argument that the delay of over one decade in  

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the disposal  of  the mercy petition by the President  is sufficient  for  commutation of  the  

sentence of death into life imprisonment.   

15. Shri Harin P Raval, learned Additional Solicitor General emphasised that the  

second  murder  committed  by  the  appellant  was  gruesome  and  barbaric  and,  

therefore, this Court should not exercise power under Article 136 of the Constitution   

and  order  commutation  of  the  sentence  of  death  into  life  imprisonment  simply  

because there was long time gap between filing of the mercy petition and disposal   

thereof.  Shri Raval argued that even though in September, 2005 the then President   

had opined that the sentence of death awarded to the appellant may be commuted  

into life long imprisonment, the final decision taken by the President on 8.5.2011  

cannot be faulted on the ground of delay.

16. We  have  considered  the  respective  submissions.  In  Devender  Pal  Singh  

Bhullar’s case, this Court considered the following questions:

“(a)  What  is  the nature of power vested in the President under  Article  72  and  the  Governor  under  Article  161  of  the  Constitution?

(b) Whether delay in deciding a petition filed under Article 72  or 161 of the Constitution is, by itself, sufficient for issue of a  judicial fiat for commutation of the sentence of death into life  imprisonment irrespective of the nature and magnitude of the  crime committed by the convict and the fact that the delay may  have been occasioned due to direct or indirect pressure brought  upon  the  Government  by  the  convict  through  individuals,  groups of people and organizations from within or outside the  country or failure of the concerned public authorities to perform  their duty?

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(c)  Whether  the  parameters  laid  down  by  the  Constitution  Bench in Triveniben’s case for judging the issue of delay in the  disposal  of  a  petition  filed  under  Article  72  or  161  of  the  Constitution can be applied to the cases in which an accused  has  been  found  guilty  of  committing  offences  under  TADA  and other similar statutes?    

(d) What is the scope of the Court’s power of judicial review of  the decision taken by the President under Article 72 and the  Governor under Article 161 of the Constitution, as the case may  be?”  

After noticing the judgments in Jagmohan Singh’s case,  Rajender Prasad’s  

case, Bachan Singh’s case,  Maru Ram v. Union of India, (1981) 1 SCC 107,  

Machhi Singh v. State of Punjab (1983) 3 SCC 470, Ediga Anamma v. State  

of A.P. (1974) 4 SCC 443,  T.V. Vatheeswaran’s  case, K.P. Mohd’s case,  

Sher Singh’s case,  Javed Ahmed’s case, Triveniben’s case, Daya Singh’s case, Epuru  

Sudhakar  v.  Government  of  A.P.  (2006)  8  SCC  161  and  some  judgments  of  other  

jurisdictions, the Court held:

“(i) the power vested in the President under Article 72 and  the  Governor  under  Article  161  of  the  Constitution  is  manifestation of prerogative of the State.  It is neither a matter  of  grace  nor  a  matter  of  privilege,  but  is  an  important  constitutional  responsibility  to  be  discharged  by  the  highest  executive keeping in view the considerations of larger public  interest and welfare of the people.

(ii) while exercising power under Article 72, the President is  required  to  act  on  the  aid  and  advice  of  the  Council  of  Ministers.  In tendering its advice to the President, the Central  Government is duty bound to objectively place the case of the  convict with a clear indication about the nature and magnitude  of the crime committed by him, its impact on the society and all  incriminating and extenuating circumstances.   The same is true  

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about the State Government, which is required to give advice to  the Governor to enable him to exercise power under Article 161  of  the  Constitution.   On  receipt  of  the  advice  of  the  Government, the President or the Governor, as the case may be,  has to  take a final  decision  in  the matter.   Although,  he/she  cannot overturn the final verdict of the Court, but in appropriate  case,  the President or the Governor, as the case may be, can  after scanning the record of the case, form his/her independent  opinion  whether  a  case  is  made  out  for  grant  of  pardon,  reprieve, etc..   In any case, the President or the Governor, as  the case may be, has to take cognizance of the relevant facts  and then decide  whether  a  case  is  made out  for  exercise  of  power under Article 72 or 161 of the Constitution.”

In that case the Court extensively quoted the observations made in Ediga  

Anamma’s  case,  T.V.  Vatheeswaran’s  case,  K.P.  Mohd’s  case,  Sher  

Singh’s case,  Javed Ahmed’s case, Triveniben’s case, Madhu Mehta’s case, Daya  

Singh’s case and observed:

“38. In  the  light  of  the  above,  we  shall  now  consider  the  argument of Shri K.T.S. Tulsi, learned senior counsel for the  petitioner,  and  Shri  Ram Jethmalani  and  Shri  Andhyarujina,  Senior Advocates, who assisted the Court as Amicus, that long  delay of 8 years in disposal of the petition filed under Article 72  should be treated as sufficient for commutation of the sentence  of death into life imprisonment, more so, because of prolonged  detention, the petitioner has become mentally sick. The thrust  of the argument of the learned senior counsel is that inordinate  delay in disposal of mercy petition has rendered the sentence of  death cruel, inhuman and degrading and this is nothing short of  another punishment inflicted upon the condemned prisoner.   

39. Though  the  argument  appears  attractive,  on  a  deeper  consideration of all the facts, we are convinced that the present  case is not a fit one for exercise of the power of judicial review  for  quashing  the  decision  taken  by  the  President  not  to  commute the sentence of death imposed on the petitioner.  Time  and again, (Machhi Singh’s case, Ediga Anamma’s case, Sher  Singh’s case and Triveniben’s case), it has been held that while  

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imposing punishment for murder and similar type of offences,  the Court is not only entitled, but is duty bound to take into  consideration  the  nature  of  the  crime,  the  motive  for  commission of the crime, the magnitude of the crime and its  impact  on  the  society,  the  nature  of  weapon  used  for  commission of the crime, etc..  If the murder is committed in an  extremely  brutal  or  dastardly  manner,  which  gives  rise  to  intense and extreme indignation in the community, the Court  may be fully justified in awarding the death penalty.   If  the  murder is committed by burning the bride for the sake of money  or  satisfaction  of  other  kinds  of  greed,  there  will  be  ample  justification for awarding the death penalty.  If the enormity of  the crime is such that a large number of innocent people are  killed  without  rhyme or  reason,  then  too,  award  of  extreme  penalty of death will be justified.  All these factors have to be  taken into consideration by the President or the Governor, as  the case may be, while deciding a petition filed under Article 72  or  161 of  the Constitution and the exercise  of  power  by the  President or the Governor, as the case may be, not to entertain  the prayer for mercy in such cases cannot be characterized as  arbitrary or unreasonable and the Court cannot exercise power  of judicial review only on the ground of undue delay.

40. We are also of the view that the rule enunciated in Sher  Singh’s case, Triveniben’s case and some other judgments that  long delay may be one of the grounds for commutation of the  sentence of death into life imprisonment cannot be invoked in  cases where a person is convicted for offence under TADA or  similar  statutes.   Such cases  stand on an altogether  different  plane and cannot be compared with murders committed due to  personal animosity or over property and personal disputes.  The  seriousness  of  the crimes committed by the terrorists  can be  gauged from the fact that many hundred innocent civilians and  men in uniform have lost their lives.  At times, their objective is  to  annihilate  their  rivals  including  the  political  opponents.  They use bullets, bombs and other weapons of mass killing for  achieving their perverted political and other goals or wage war  against the State.  While doing so, they do not show any respect  for human lives.  Before killing the victims, they do not think  even for a second about the parents, wives, children and other  near and dear ones of the victims.  The families of those killed  suffer the agony for their entire life, apart from financial and  other losses.  It is paradoxical that the people who do not show  

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any mercy or compassion for others plead for mercy and project  delay in disposal of the petition filed under Article 72 or 161 of  the Constitution as a ground for commutation of the sentence of  death.  Many others join the bandwagon to espouse the cause of  terrorists  involved  in  gruesome  killing  and  mass  murder  of  innocent civilians and raise the bogey of human rights.”

The Court also dealt with the scope of judicial review in such matters and  

observed:

“41. While examining challenge to the decision taken by the  President under Article 72 or the Governor under Article 161 of  the  Constitution,  as  the  case  may  be,  the  Court’s  power  of  judicial review of such decision is very limited.  The Court can  neither sit in appeal nor exercise the power of review, but can  interfere if it is found that the decision has been taken without  application  of  mind  to  the  relevant  factors  or  the  same  is  founded  on  the  extraneous  or  irrelevant  considerations  or  is  vitiated due to malafides or patent arbitrariness – Maru Ram v.  Union of India, (1981) 1 SCC 107, Kehar Singh v. Union of  India (1989) 1 SCC 204, Swaran Singh v. State of U.P. (1998)  4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC 170, Bikas  Chatterjee  v.  Union  of  India  (2004)  7  SCC  634,  Epuru  Sudhakar  v.  Government  of  A.P.  (2006)  8  SCC  161  and  Narayan Dutt v. State of Punjab (2011) 4 SCC 353.”

17. In Triveniben’s case, the Constitution Bench considered the conflicting opinions  

expressed  in  T.V.  Vatheeswaran’s  case,  Sher  Singh’s  case  and  Javed  

Ahmed’s case and held:

“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.  

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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 cannot be said to lay down  the  correct  law  and  therefore  to  that  extent  stands  overruled.”

18. In Madhu Mehta’s case, this Court commuted the sentence of death  

awarded  to  one  Gyasi  Ram,  who  had  killed  a  Government  servant,  

namely,  Bhagwan  Singh  (Amin),  who  had  attached  his  property  for  

recovery of arrears of land revenue.  After disposal of the criminal appeal  

by this Court, the wife of the convict filed a mercy petition in 1981.  The  

same  remained  pending  for  8  years.   This  Court  considered  the  writ  

petition  filed  by  the  petitioner  Madhu  Mehta,  who  was  the  national  

convener  of  Hindustani  Andolan,  referred  to  the  judgments  in  T.V.  

Vatheeswaran’s case, Sher Singh’s case and  Triveniben’s case and held  

that in the absence of sufficient explanation for the inordinate delay in  

disposal  of the mercy petition, the death sentence should be converted  

into life imprisonment.

19. The facts of Daya Singh’s case were that the petitioner had been  

convicted  and  sentenced  to  death  for  murdering  Sardar  Pratap  Singh  

Kairon. The sentence was confirmed by the High Court and the special  

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leave petition was dismissed by this Court. After rejection of the review  

petition, he filed mercy petitions before the Governor and the President of  

India, which were also rejected. The writ petition filed by his brother Lal  

Singh was dismissed along with Triveniben’s case. Thereafter, he filed  

another  mercy petition before the Governor  of  Haryana in  November,  

1988. The matter remained pending for next two years. Finally, he sent a  

letter from Alipore Central Jail, Calcutta to the Registry of this Court for  

commutation of the sentence of death into life imprisonment. This Court  

took cognizance of the fact that the petitioner was in jail since 1972 and  

substituted the sentence of imprisonment for life in place of the sentence  

of death.

20. In  the  appellant’s  case,  there  was  a  long  time gap  of  12  years  

between  the  submission  of  the  petition  under  Article  72  of  the  

Constitution  and  rejection  thereof.   The  Union  of  India  has  tried  to  

explain  this  time  gap  by  citing  correspondence  between  the  Central  

Government and the Government of Assam, consideration of the matter  

in  different  levels  in  the  Ministry  of  Home Affairs  etc.  However,  no  

explanation  has  been  given  for  the  time  gap  of  three  years  between  

20.6.2001,  i.e.,  the  date  on  which  the  then  Home  Minister  made  

recommendation for rejection of the mercy petition filed by the appellant,  

and  September,  2004,  when  the  file  again  started  moving  within  the  

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Ministry and five years between 30.9.2005, i.e., the date on which the  

President opined that the mercy petition of the appellant be accepted and  

September,  2010,  when  the  file  was  actually  summoned  back  by  the  

Ministry of Home Affairs. That apart, what is most intriguing is that even  

though in note dated 5.10.2010 prepared by the Joint Secretary, Ministry  

of Home Affairs, a reference was made to note dated 30.9.2005 of the  

then President Dr. A.P.J. Abdul Kalam, while making recommendation  

on 12.10.2010 to  the  successor  in  the office  of  the President  that  the  

appellant’s mercy petition be rejected, the Home Minister did not even  

make a mention of note dated 30.9.2005.  In the summary prepared by the  

Home Ministry for the President’s consideration, which was signed by  

the Home Minister  on 18.10.2010, also no reference was made to the  

order and note dated 30.9.2005 of the then President. Why this was done  

has not been explained by the respondents.  Though, the file containing  

the petition filed by the appellant and various notings recorded therein  

must have been place before the President, omission to make a mention  

of the order passed by her predecessor and note dated 30.9.2005 from the  

summary prepared for  her  consideration leads to an inference that  the  

President was kept in dark about the view expressed by her predecessor  

and was deprived of  an opportunity to  objectively  consider  the  entire  

matter.   

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21.  It is neither the pleaded case of the respondents nor any material  

has  been produced before this  Court  to  show that  the Government  of  

India had placed the file before the then President for review of the order  

recorded by him on 30.9.2005 or the President who finally decided the  

appellant’s petition on 8.5.2011 was requested to reconsider the decision  

of her predecessor. Therefore, it must be held that the President was not  

properly advised and assisted in the disposal of the petition filed by the  

appellant.

22.  The Division Bench of the Gauhati High Court did not have the  

benefit of going through the record/files maintained by the Ministry of  

Home Affairs and this is the reason why the impugned order does not  

contain any reference to the order passed by the President on 30.9.2005  

and the note recorded by him for the consideration of the Home Minster.

23. In the above backdrop, we are convinced that 12 years delay in the  

disposal of the appellant’s mercy petition was sufficient for commutation  

of  the  sentence  of  death  and  the  Division  Bench  of  the  High  Court  

committed  serious  error  by  dismissing  the  writ  petition  solely  on  the  

ground  that  he  was  found  guilty  of  committing  heinous  crime.   The  

Division Bench of the High Court was also not justified in distinguishing  

the  judgment  in  Daya  Singh’s  case  on  the  assumption  that  the  case  

appears  to  have  been decided  by this  Court  under  Article  142 of  the  

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Constitution.  A careful reading of that judgment shows that this Court  

had  commuted  the  sentence  of  death  of  Daya  Singh  into  life  

imprisonment by taking into consideration long time gap of 12 years in  

the  execution  of  death  sentence  and the  judgment  of  the  Constitution  

Bench in Triveniben’s case.  This is evinced from paragraphs 5, 7, 8 and  

9 of the judgment, which are extracted below:

“5. Before proceeding further we may refer to the decision in  Triveniben case laying down the principle which governs the  present petition. Although the cases were disposed of by two  judgments, according to the opinion of the bench, which was  unanimous, undue delay in execution of the sentence of death  entitles the condemned prisoner to approach this Court under  Article 32, but this Court will examine only the nature of delay  caused and circumstances ensued after the 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. Further, while considering  the grievance of inordinate delay this Court may consider all  the circumstances  of  the case for  deciding as to whether the  sentence of death should be altered into imprisonment for life,  and no fixed period of delay could be held to make the sentence  of  death  inexecutable.  In  the  light  of  these  observations  the  circumstances of the present case are to be examined.

7. The initial reason for the further delay has been a fresh mercy  petition filed by the petitioner. Does this fact justify keeping  him under a sense of anticipation for more than two years? If  the prayer was not considered fit to be rejected at once it was  certainly  appropriate  to  have  stayed  the  execution,  but  the  matter should have been disposed of expeditiously and not kept  in abeyance as has been done. The counter-affidavit  filed on  behalf of the Union of India states that on the receipt of the last  mercy petition the Governor of Haryana immediately made a  reference to the President of India seeking enlightenment on the  question as to whether the Governor, while dealing with such  applications, is bound by the advice of the Chief Minister of the  

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State and whether it  is  open to the Governor to exercise  his  constitutional power in a case where an earlier application to  the same effect had been rejected by the President. Soon after  the receipt of this communication, the matter was referred to the  Department of Legal Affairs, Ministry of Law and Justice for  advice, and the Ministry suggested that the question should be  discussed with the Attorney General of India. Since the matter  remained  under  consideration  no  reply  could  be  sent  to  the  query and ultimately it was only in March this year, that the  reply could be sent  in the shape of a directive under Article  257(1) of  the Constitution to all  the Chief  Secretaries  of  the  State  Governments  and  Union  territories.  The  affidavit,  however,  does  not  furnish  any  fact  or  circumstance  in  justification  of  the  delay.  In  absence  of  any  reasonable  explanation by the respondents we are of the view that if the  concerned officers had bestowed the necessary attention to the  matter and devoted the time its urgency needed, we have no  doubt that the entire process of consideration of the questions  referred would have been completed within a reasonable period  without  leaving  any  yawning  gap  rightly  described  by  the  learned  Additional  Solicitor  General  as  “embarrassing  gap”.  There has, thus, been an avoidable delay, which is considerable  in the totality of circumstances in the present case, for which  the condemned prisoner is in no way responsible.

8. As was cautioned by this Court in Triveniben case we are not  laying down any rule of general application that the delay of  two  years  will  entitle  a  convict,  sentenced  to  death,  to  conversion  of  his  sentence  into  one  for  life  imprisonment,  rather we have taken into account the cumulative effect of all  the circumstances of the case for considering the prayer of the  petitioner.  Although  the  fact  that  the  petitioner  has  been  continuously  detained  in  prison  since  1972  was  taken  into  account while rejecting his earlier writ petition, the same is not  rendered completely irrelevant for the purpose of the present  case  and  we  have  taken  it  into  consideration  merely  as  a  circumstance assuming significance as a result of the relevant  circumstances arising subsequent to the judgment rendered in  October 1988.

9. Having regard to all the circumstances of the case, we deem  it fit to and accordingly substitute the sentence of imprisonment  

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for  life  in  place  of  the  petitioner's  death  sentence.  The  writ  petition is accordingly allowed.”

24. In the result, the appeal is allowed, the impugned order is set aside.  

The rejection  of  the appellant’s  mercy petition  is  declared  illegal  and  

quashed and the sentence of  death awarded to him by the trial  Court,  

which has been confirmed by the High Court and this Court is commuted  

into life imprisonment.  

                                                          .........................................................J.

   (G.S. SINGHVI)

 ......................................................................J.  (SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi; May 1, 2013

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