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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.128 OF 2014

AJAY KUMAR PAL …. Petitioner

Versus

UNION OF INDIA AND ANOTHER …. Respondents

J U D G M E N T  

Uday Umesh Lalit, J.

1. This  petition  under  Article  32  of  the  Constitution  of  India  prays  that  the  

sentence  of  death  imposed  upon  the  present  petitioner  be  commuted  to  the  

imprisonment for life for the reasons dealt with in detail hereafter.

2. In Sessions Trial No.67 of 2005, the court of Special Judge, CBI, Ranchi by its  

judgment and order dated 09.04.2007 had awarded death sentence to the petitioner.  

The matter reached Jharkhand High Court in Death Reference No.3 of 2007 and also  

as a result of the appeal preferred by the petitioner.  The High Court dismissed the  

appeal and confirmed the death sentence by its judgment and order dated 28.08.2007,

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which was challenged in this Court vide Criminal Appeal Nos.1295-96 of 2007.  This  

Court concurred with the view taken by the courts below and dismissed the appeals  

on 16.03.2010.  The death sentence imposed upon the petitioner thus stood confirmed  

on 16.03.2010.

3. The  petitioner,  who  was  in  jail  all  through  out,  preferred  Mercy  Petitions  

addressed  to  the  President  of  India  as  well  as  to  the  Governor  of  Jharkhand  on  

10.04.2010.   The  Mercy  Petitions  were  immediately  forwarded  by  the  

Superintendent, Birsa Munda Central Jail, Ranchi to the appropriate authorities on  

10.04.2010 itself.  Said forwarding letter had enclosed the following documents:

“1. Mercy Petition submitted by the petitioner – one page. 2.  Copy of  the Order of  Additional  Judge/Special  Judge C.B.I.  Ranchi- 48 pages. 3. Copy of the Order of Hon’ble High Court of Jharkhand, Ranchi  – 25 pages. 4. Petition filed in the Hon’ble Supreme Court – 33 pages. 5. Hon’ble Supreme Court’s Order – 8 pages. 6. Copy of Rule 923(III) of Jail Manual -3 pages”  

4. On 27.01.2014 a communication was received by the Superintendent,  Birsa  

Munda Central Jail from the Officer on Special Duty, Ministry of Home, Government  

of Jharkhand that the Mercy Petition was rejected by the President of India which fact  

was communicated by the Government of India, Ministry of Home Affairs vide its  

letter  dated 08.11.2013.  Thus,  the petitioner was communicated the result  of  the  

disposal of his Mercy Petition preferred on 10.04.2014, nearly after three years and  

10 months.  

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5. In  these  circumstances  this  petition  has  been  preferred.   Relying  on  the  

decision of this Court in Shatrughan Chauhan and another v. Union of India and  

others1 it  is  submitted that  because  of  inordinate  delay  in  disposal  of  his  Mercy  

Petition,  the  death  sentence  be  commuted  to  imprisonment  for  life.   It  is  also  

submitted that right from the day when the death sentence was awarded i.e. from  

09.04.2007, the petitioner has been incarcerated in solitary confinement.   

6. In Shatrughan Chauhan1 (supra) while dealing with the issue relating to the  

maintainability  of  a  petition  under  Article  32  in  similar  circumstances,  it  was  

observed that the challenge therein was not with regard to the final verdict imposing  

the death sentence but was based on the supervening circumstances or events that  

occurred after the confirmation of the death sentence.  Relying on some of its earlier  

Judgments, this Court held such petitions under Article 32 to be maintainable.

7. The challenge  in  the  instant  petition  is  also  not  with  regard  to  the  verdict  

wherein  the  death  sentence  stands  imposed,  but  the  focus  is  on  the  subsequent  

circumstances which are relied upon in support of the case for commutation.  Holding  

the  present  petition  maintainable,  we  now proceed  to  deal  with  the  submissions  

regarding delay in disposal of Mercy Petition and the effect of solitary confinement  

as  canvassed.   While  dealing  with  delay  in  execution  of  death  sentence  and the  

resultant effect, we must note that the Mercy Petitions were forwarded by the Jail  

Authorities on the very day, enclosing all the relevant judgments pertaining to the  1  2014 (1) SCALE 437

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matter.  The time of 3 years and 10 months taken in disposal of the Mercy Petition  

and communicating the decision thereon is purely to the account of the authorities  

and functionaries concerned.

8. The question whether delay in execution of death sentence can be a sufficient  

ground or reason for substituting such sentence by life imprisonment has engaged the  

attention of this Court over a period of time.  Some of those salient instances are:

(a) In T.V. Vatheeswaran v. State of Tamil Nadu2  , in an appeal arising from the  

Judgment of the High Court confirming the death sentence, the fact that the appellant  

was awarded death sentence by the first court eight years earlier, was noted by this  

Court.  After referring to few earlier cases, where such delay during the pendency of  

the appellate proceedings was considered, it was observed:

“20. …………. In the United States of America where the right to  a speedy trial is a constitutionally guaranteed right, the denial of a  speedy  trial  has  been  held  to  entitle  an  accused  person  to  the  dismissal of the indictment or the vacation of the sentence (vide  Strunk v. United States [1973] 37 L.Ed. 56). Analogy of American  Law  is  not  permissible,  but  interpreting  our  Constitution  sui  generis, as we are bound to do, we find no impediment in holding  that the dehumanising factor of prolonged delay in the execution  of  a  sentence  of  death  has  the  constitutional  implication  of  depriving a person of his life in an unjust, unfair and unreasonable  way as to offend the constitutional guarantee that no person shall  be  deprived of  his  life  or  personal  liberty  except  according  to  procedure established by law. The appropriate relief in such a case  is to vacate the sentence of death.

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  

2  (1983) 2 SCC 68

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death  to  invoke  Article 21 and  demand  the  quashing  of  the  sentence of death. We therefore accept the special leave petition,  allow the appeal as also the Writ Petition and quash the sentence  of death. In the place of the sentence of death, we substitute the  sentence of imprisonment for life.”

(b) Sher Singh and others v. State of Punjab3  was a case where the death  

sentence  already  stood  confirmed  by  dismissal  of  appeal  and  review  petition  

therefrom by this Court.  Relying on the observations in Vatheeswaran (supra), delay  

in  execution  was  projected  as  a  ground  in  a  petition  under  Article  32  of  the  

Constitution of India.  Though the Court was broadly in agreement with observations  

in  Vatheeswaran (supra) it did not agree with the statement to the effect “…. that  

delay exceeding two years in the execution of sentence of death should be considered  

sufficient  to  entitle  the  person  under  sentence  to  death  to  invoke Article  21  and  

demand the questioning of the sentence of death.”  However in the context of Mercy  

Petitions and exercise of power in connection thereto, it was observed in para 23 as  

under:

“23.    We  must  take  this  opportunity  to  impress  upon  the  Government  of  India  and  the  State  Governments  that  petitions  filed  under  Articles 72 and 161 of  the  Constitution  or  under  Sections 432 and 433 of  the  Criminal  Procedure  Code  must  be  disposed of expeditiously. A self-imposed rule should be followed  by the executive authorities rigorously,  that  every such petition  shall be disposed of within a period of three months from the date  on  which  it  is  received.  Long  and  interminable  delays  in  the  disposal of these petitions are a serious hurdle in the dispensation  of justice and indeed, such delays tend to shake the confidence of  the people in the very system of justice. Several instances can be  cited,  to which the record of  this Court  will  bear  testimony, in  which petitions are pending before the State Governments and the  

3   (1983) 2 SCC 344

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ambit of exercise of power, it was observed in paras 38, 41 and 42 as under:-   

“38. 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  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.

41. 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 (supra), 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.

42.  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 the death sentence into life imprisonment on this  ground alone however, only after satisfying that the delay was not  caused at the instance of the accused himself.  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.”

9. In the light of the law laid down by this Court, the facts of the present case  

need to be considered.  The death sentence awarded by the trial court on 09.04.2007

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attained  finality  on  16.03.2010 with  the  dismissal  of  appeals  by  this  Court.   No  

further proceedings in the form of review petition etc. were taken on behalf of the  

petitioner.  His Mercy Petition preferred on 10.04.2010 i.e. within a month of the  

decision of this Court was forwarded the same day with all relevant documents so as  

to enable the concerned functionaries to exercise requisite jurisdiction.  Though no  

time limit can be fixed within which the Mercy Petition ought to be disposed of, in  

our considered view the period of 3 years and 10 months to deal with such Mercy  

Petition in the present  case comes within the expression “inordinate delay”.   The  

delay is not to the account of the petitioner or as a result of any proceedings initiated  

by  him or  on  his  behalf  but  is  certainly  to  the  account  of  the  functionaries  and  

authorities concerned.   

10.  Furthermore, as submitted in the petition, the petitioner has all the while been  

in solitary confinement i.e. since the day he was awarded death sentence.   While  

dealing with Section 30(2) of the Prisons Act, 1894, which postulates segregation of a  

person  ‘under  sentence  of  death’  Krishna  Iyer  J.  in  Sunil  Batra v.  Delhi   

Administration5 observed :

“The crucial holding under Section 30(2) is that a person is not  'under sentence of death', even if the sessions court has sentenced  him to death subject to confirmation by the High Court. He is not  'under  sentence  of  death'  even  if  the  High  Court  imposes,  by  confirmation or fresh appellate infliction, death penalty, so long as  an appeal to the Supreme Court is likely to be or has been moved  or is  pending. Even if  this Court has awarded capital sentence,  Section 30 does not cover him so long as his petition for mercy to  the  Governor  and/or  to  the  President  permitted  by  the  

5  (1978) 4 SCC 494

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Constitution, Code and Prison Rules, has not been disposed. Of  course, once rejected by the Governor and the President, and on  further application there is no stay of execution by the authorities,  he is 'under sentence of death', even if he goes on making further  mercy petitions. During that interregnum he attracts the custodial  segregation specified in Section 30(2), subject to the ameliorative  meaning assigned to the provision. To be 'under sentence of death'  means 'to be under a finally executable death sentence”.

Speaking for the majority in the concurring Judgment D.A. Desai J. stated thus:

“The expression "prisoner under sentence of death" in the context  of Sub-section (2) of Section 30 can only mean the prisoner whose  sentence of death has become final, conclusive and indefeasible  which  cannot  be  annulled  or  voided  by  any  judicial  or  constitutional  procedure.  In  other  words,  it  must  be  a  sentence  which the authority charged with the duty to execute and carry out  must proceed to carry out without intervention from any outside  authority ……..”

In the light of the enunciation of law by this Court, the petitioner could never  

have been “segregated” till his Mercy Petition was disposed of.  It is only after such  

disposal that he could be said to be under a finally executable death sentence.  The  

law laid down by this Court was not adhered to at all while confining the petitioner in  

solitary confinement right since the order of death sentence by the first court.  In our  

view, this is complete transgression of the right under Article 21 of the Constitution  

causing incalculable harm to the petitioner.

10. The combined effect of the inordinate delay in disposal of Mercy Petition and  

the solitary confinement for such a long period, in our considered view has caused  

deprivation of the most cherished right.   A case is definitely made out under Article  

32 of the Constitution of India and this Court deems it proper to reach out and grant

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solace to the petitioner for the ends of justice.  We, therefore, commute the sentence  

and substitute the sentence of life imprisonment in place of death sentence awarded to  

the petitioner.  The writ petition thus stands allowed.

………………………..J. (Dipak Misra)

………………………..J. (Rohinton Fali Nariman)

………………………..J. (Uday Umesh Lalit)

New Delhi, December 12, 2014

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ITEM NO.1C               COURT NO.6               SECTION X (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal)  No(s).  128/2014

AJAY KUMAR PAL                                     Petitioner(s)

                               VERSUS

UNION OF INDIA AND ANR.                            Respondent(s)

Date : 12/12/2014 This petition was called on pronouncement of  judgment today.

For Petitioner(s) Mrs. Urmila Sirur, Adv. (AC)                       

For Respondent(s) Mr. Ratan Kr. Choudhary, Adv.   

Ms. Binu Tamta, Adv.                    Ms. Sushma Suri, Adv.                       

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the reportable  

judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra,  

Hon'ble Mr. Justice Rohinton Fali Nariman and His Lordship.

The appeal is allowed commuting the sentence and substituting  

the  sentence  of  life  imprisonment  in  place  of  death  sentence  

awarded  to  the  petitioner  in  terms  of  the  signed  reportable  

judgment.

(R.NATARAJAN)  (H.S. PARASHER)  Court Master   Court Master

(Signed reportable judgment is placed on the file)