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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) No. 122 OF 2020 (Arising out of Diary No.10611 of 2020)

PAWAN KUMAR GUPTA .....PETITIONER

Versus

STATE OF NCT OF DELHI         .....RESPONDENT

O R D E R

(1) In this writ petition filed under Article 32 of the Constitution of

India, the petitioner Pawan Kumar Gupta has challenged rejection

of mercy petition by His Excellency the President of India inter alia

on various grounds; that settled principles of consideration of mercy

petition have not been followed. The contention of the petitioner is

that the petitioner’s plea of juvenility has not been finally

determined and this aspect was not kept in view by His Excellency

the President of India.

(2) By the order of Hon’ble the Chief Justice of India, this Bench

has been constituted and we held the sitting at 2.30 a.m. on

20.03.2020.

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(3) We have heard Dr. A.P. Singh and Mr. Shams Khwaja, learned

counsel appearing for the petitioner/convict Pawan Kumar Gupta.

We have also heard Mr. Tushar Mehta, learned Solicitor General

appearing for Union of India and also for NCT of Delhi.  The matter

was heard from 2.30 am till 3.15 a.m.

(4) We  have  carefully  gone through  the  grounds raised  by the

petitioner and also submissions of the learned counsel appearing

for the parties and perused the materials on record.

(5) The petitioner has filed a mercy petition on 02.03.2020 and

same was rejected by His Excellency the President of India on

04.03.2020. The petitioner has filed the second mercy petition on

18.03.2020 repeating the same grounds.  

(6) In this writ petition, the petitioner has inter alia raised various

grounds, namely:­ (i) that there was miscarriage of justice in

rejection of the mercy petition; (ii) the petitioner’s date of birth is

08.10.1996 and on the date of the incident that is 16.12.2012, he

was only aged 16 years and that he was a juvenile and his claim of

juvenility has not been finally determined; (iii)   the petitioner has

been tortured  in the prison and had sustained head  injuries  for

which he has not been given proper treatment.   

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(7) The learned counsel for the petitioner Mr. Shams Khwaja has

also raised the contention that the petitioner might not have shared

common intention along with the other co­accused and therefore

the petitioner cannot be imposed with the grave capital punishment

with other co­convicts.  

(8) Mr. Shams Khwaja has also drawn our attention to the press

report as per which His Excellency the President of India is said to

have expressed concern about “attacks on women” and also said to

have expressed his views that the persons who have been convicted

of a crime under Protection of Children from Sexual Offences

(POCSO) Act, should not be given the right to file a mercy petition.

It was, therefore, submitted that having regard to the above press

report, it cannot be said that His Excellency the President of India

has considered the mercy petition with an open mind.

(9) The learned Solicitor General has submitted that the clippings

relied upon by the learned counsel for the petitioner is only a press

report and in any event, the views expressed by His Excellency the

President of India could only said to be on the line of the reforms

insofar as POCSO is concerned.

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(10) The consistent view taken by this Court that the exercise of

power of judicial review of the decision taken by His Excellency the

President of India in  mercy  petition is very limited.  In  Epuru

Sudhakar & Another v. Govt. of A.P. & Others, (2006) 8 SCC

161, this Court held thus:

“34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide; (c)  that the order has been passed on extraneous or

wholly irrelevant considerations; (d) that relevant materials have been kept out of

consideration; (e) that the order suffers from arbitrariness.

35. Two important aspects  were also  highlighted  by learned  amicus  curiae;  one relating to the  desirability  of indicating reasons in the order granting pardon/remission while the  other  was  an  equally  more important  question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.”

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The decision in  Epuru Sudhakar (Supra)  was followed in

Shatrughan Chauhan & Another v. Union of India & Others,

(2014) 3 SCC 1.

(11) In the light of the above pronouncement, we have considered

the submissions of the learned counsel appearing for the petitioners

and also the grounds raised in the writ petition.  

(12) In  this  writ  petition,  primarily the writ  petitioner has again

raised the plea of juvenility by contending that his date of birth is

08.10.1996 and that he was a juvenile on the date of the incident

on  16.12.2012.  The  petitioner relies  upon the  School  Certificate

issued by the School, namely, Gayatri Bal Sanskar Shala,

Narayanpur, District Ambedkar Nagar, which was issued on

12.12.2019. The learned counsel Dr. A.P. Singh submitted that the

petitioner’s claim of juvenility has not been finally determined based

on the above certificate issued by the said School on 12.12.2019.

(13) We do not find merit in the above contention of the learned

counsel Dr. A.P. Singh.   The petitioner has earlier filed an

application on 30.08.2018 raising the plea of juvenility before the

Juvenile Justice Board­II, Prayas, Delhi, and after considering the

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same, the  Juvenile  Justice  Board  transferred  the  petition  to the

District  & Sessions Judge,  Patiala  House,  New Delhi, vide  order

dated 14.09.2018. By order dated 21.12.2018, the learned

Additional Sessions Judge,   Patiala House, New Delhi,  dismissed

the application filed by the petitioner as being not maintainable.

(14) Challenging that order, the petitioner has filed Criminal

Revision Petition No.1301 of 2019 before the Delhi High Court.  By

the order dated 19.01.2019, the Delhi  High Court dismissed the

Criminal Revision Petition.   Challenging that order the petitioner

had filed the  SLP (Crl.)  No.547 of 2020.   After considering the

submissions of the petitioner, this Court had passed the detailed

order dismissing the Special Leave Petition on 20.01.2020.

(15) The petitioner is not right in contending that the plea of

juvenility has not been finally determined by the Courts.  The plea

of juvenility raised by the petitioner has been duly considered and

rejected by the Courts as noted above.   

(16) The contention of the petitioner is that due to torture in the

prison the petitioner had sustained head injuries and that he was

sutured with more than 10 sutures and proper treatment was not

given to the petitioner.   As pointed out earlier, the exercise of

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judicial review of the order of rejection of the mercy petition by His

Excellency the President of India is subject to challenge only on the

grounds indicated  in Epuru Sudhkar   (Supra)  and  Shatrughan

Chauhan (Supra)  and other decisions.   The learned Solicitor

General has submitted that the petitioner was given proper

treatment.   The learned Solicitor General also denied the torture

allegedly meted out to the petitioner.  The alleged torture, if any, in

the prison cannot be a ground for judicial review of the executive

order passed under Article 72 of the Constitution of India rejecting

the mercy petition.  

(17) Insofar as the contention of Mr. Shams Khwaja that the

petitioner might not have shared the common intention along with

other co­accused and that he cannot be imposed the grave capital

punishment is concerned, these grounds have been already

considered both by the Trial Court as well as the High Court and by

this Court and the petitioner Pawan Kumar Gupta has been found

guilty and convicted.

(18) While exercising the power of judicial review,  this contention

raised by the learned counsel Mr. Shams Khwaja cannot be

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entertained as a ground for judicial review of the order of rejection

passed by His Excellency the President of India.

(19) We have decided the writ petition filed by the co­convict

Mukesh Kumar in Mukesh Kumar v. Union of India ­ Writ Petition

(Crl.) No..40  of 2020 (29.01.2020) and the writ petition filed by co­

convict Vinay Kumar Sharma in Vinay Kumar Sharma v. Union

of India  & Others ­  Writ Petition (Crl.) No.65 of 2020 (dated

14.02.2020),  and Writ  Petition  filed by co­convict  Akshay Kumar

Singh in Akshay Kumar Singh v. Union of India & Others ­ Writ

Petition (Crl.) No.121 of 2020 (19.03.2020) challenging  the order of

rejection of mercy petition by His Excellency the President of India.

We have passed detailed orders while dismissing those writ

petitions challenging the order of rejection of mercy petitions by His

Excellency the President of India.

(20) Applying the ratio of those orders, we do not find any ground

to entertain this writ petition warranting judicial review of the order

rejecting the mercy petition by His Excellency the President of India.

(21) As we have pointed out in the earlier judgments in the above

writ petitions, when the power is vested in the very high

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contitutional authority, it must be presumed that the said authority

had acted carefully after considering all the aspects of the matter.

It cannot be said that His Excellency the President of India did not

consider the mercy petition with open mind filed by the petitioner

Pawan Kumar Gupta.

(22) The writ petition is accordingly dismissed.

...........................J.                    (R. BANUMATHI)

...........................J.          (ASHOK BHUSHAN)

...........................J.         (A.S. BOPANNA)

NEW DELHI, MARCH 20, 2020.