AJAY KUMAR PALversusUNION OF INDIA AND ANOTHER

                     (2014] 12 S.C.R. 441


                      AJAY KUMAR PAL                               A
                               v.
              UNION OF INDIA AND ANOTHER
          (Writ Petition (Criminal) No. 128 of 2014)
                    DECEMBER 12, 2014
                                                                   B
        [DIPAK MISRA, U.PAY UMESH LALIT AND
                  R.F. NARIMAN, JJ.]

       Constitution of India, 1950 - Art. 6, 21 and 32 - Writ
  Petition - Maintainability ~ Death sentence confirmed upto       C
. Supreme Court - Petitioner put in solitary confinement right
  from the day of award of death sentence by trial court- Mercy
  Petition - Delay of 3 years 10 months in disposal thereof -
  Writ petition seeking commutation of death sentence to life
  imprisonment - On the ground of inordinate delay in disposal     D
  of Mercy Petition - Held: Petition u!Art. 32 is maintainable -
  The delay in disposal of Mercy Petition comes within the
  expression 'inordinate delay' - Segregation of the petitioner
  to solitary confinement before disposal of the Mercy Petition
  was in complete transgression of the right u/Art. 21 - The       E
  death sentence is commuted to imprisonment for life - Death
  Sentence - Prisons Act, 1894 - s. 30(3).

      Allowing the Petition, the Court

      HELD: 1. The· death sentence awarded by the trial            F
 court on 09.04.2007 attained finality on 16.03.2010. The
 Mercy Petition of the petitioner preferred on 10.04.2010
 i.e. within a month of the decision of this Court was
 forwarded on the same day with all relevant documents
 so as to enable the concerned functionaries to exercise           G
 requisite jurisdiction. Though no time limit can be fixed
 within which the Mercy Petition ought to be disposed of,
 the period of 3 years and 10 months to deal with such
 Mercy Petition in the present case comes within the
                            441                                    H
    442     SUPREME COURT REPORTS            [2014] 12 S.C.R.


A expression "inordinate delay". The delay is not on
  account of the petitioner or as a result of any proceedings
  initiated by him or on his behalf but is certainly on
  account of the functionaries and authorities concerned.
  [Para 9] [450-8-E]
B                                         '
       Triveniben v. State of Gujarat (1989) 1 SCC 678: 1989
  (1) SCR 509 - followed.           ·•

      T. V. Vatheeswatan v. State of Tamil Nadu (1983) 2 SCC
  68: 1983 (2) SCR 348; Sher Singh and Ors. v. State of
C Punjab 1983 (2) SCC 344; Shatrughan Chauhan and Anr.
  v. Union of India and Ors. 2014 (1) SCALE 437 - relied on.

       2. Furthermore, the petitioner has all the while been
  in solitary confinement i.e. since the day he was awarded ·
0 death sentence. 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
E of death sentence by the first court. This is complete
  transgression of the right unde'r Article 21 of the
  Constitution. causing incalculable harin to the petitioner.
  [Para 1OJ [450-F; 451-G-H]

F        Sunil Batra v. Delhi Administration (1978) 4 SCC 494:
    .1979.(1) SCR392 - relied on.
       3. The combined effect of the inordinate delay in
  disposal of Mercy Petition and the solitary confinement
G for such a long period, has caused deprivation of the
  most cherished right. A case is definitely made out under ·
  Article 32 of the Constitution of India and it is proper to
  reach out and grant solace to the petitioner for the ends
  of justice. Therefore, the death sentence is commuted
H
       AJAY KUMAR PAL v. UNION OF !NOIA                   443


and substituted .to sentence of life imprisonment. [Para         A
1] [452·A·B]
                  Case Law Reference:
    2014 (1) SCALE 437        relied on              Para 5
    1983 (2) SCR 348          relied on              Para 8      B

    1983 (2) sec 344          relied on              Para 8
    1989 (1) SCR 509          followed               Para 8

    1979 (1) SCR 392          relied on              Para 10     c
     CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 128 of 2014.

    Under Article 32 of the Constitution of India.
                                                                 D
    Urmila Sirur (A.C.) for the Petitioner.

    Ratan Kr. Choudhary, Binu Tamta, Sushma Suri for the
Respondents.

    The Judgment of the Court was delivered by                   E

     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       F
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         G
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,
which was challenged in this Court vide Criminal Appeal
                                                                 H
    444      SUPREME COURT REPORTS                [2014] 12 S.C.R.


A   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
8
  Mercy Petitfons addressed to the President of India as well as
  to the Governor of Jharktiand on 10.04.2010. The Mercy
  Petitions were immediately forwarded by the Superintendent,
  Birsa Munda Central Jail, .Ranchi to the appropriate authorities
C 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
o         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.
                     •                  I
E
          5. Hon'ble Supreme Court's Order - 8 pages.

          6. Copy of Rule 923(111) of Jail Manual -3 pages"

        4. On 27.01 :2014 a communication was received by the
F 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
G petitioner was communicated the result of the disposal of his
  Mercy Petition preferred on 10.04.2014, nearly after three years
  and 10 months.

         5. In these circumstances this petition has been preferred.
    Relying on the decision of this Court in Shatrughan Chauhan
H
           AJAY KUMAR PAL v. UNION OF INDIA                   445
                 [UDAY UMESH LAUT, J.]
  and anotherv. Union of India and others' it is submitted that A
  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.                            B

      6. In Shatrughan Chauhan' (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       C
 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.
                                                                     D
      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        E
 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    F
 the relevant judgments pertaining to the 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             G
 sentence can be a sufficient ground or reason for substituting
 such sentence by life imprisonment has engaged the attention


 1.   2014 (1) SCALE 437.                                            H
    446       SUPREME COURT REPORTS                 [2014]. 12 S.C.R.


A 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
8   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:             '
c        "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
D        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
E -      implication of depriving a person of his life in an unjust,
         unfair and unreasonable way as to offend the constitutional
         guarantee that no persori 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
F        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
G         the person under sentence of 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 qua.sh the

H 2. (1983) 2 sec 68.
         AJAY KUMAR PAL v. UNION OF INDIA                     447
               [UDAY UMESH LAUT, J.]
     sentence of death. In the place of the sentence of death,        A
     we substitute the sentence of imprisonment for life."

      {b) Sher Singh and others v. State of Punjab 3 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 8
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 C
 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:                                 D

      "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         E
      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
                                                                      F
      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       G
      before the State Governments and the Government of India
      for an inexplicably long period ................ Undoubtedly,
      the executive has the power, in appropriate cases, to act
      under the aforesaid provisions but, if we may remind, all
3.   (1983) 2 sec 344.                                                H
    448         SUPREME COURT REPORTS                   [2014] 12 S.C.R.

A           exercise of power is preconditioned by the duty to be fair
            and quick. Delay defeats justice."

         (c) The issue was settled by the Constitution Bench
    decision in Triveniben v. State of Gujarat", where it was
    concluded "No fixed period of delay could be held to make the
8   sentence of death inexecutable .......". The scope and ambit
    of exercise of jurisdiction in such cases was delineated thus in
    para 22:

              "22 ........... the only jurisdiction which coald be sought to
c             be exercised by a prisoner for infringement of his rights
              can be to challenge the subsequent events after the final
         · · judicial verdict is pronounced and it is because of this that
              on the ground of long or inordinate delay a condemned
              prisoner could approach this Court and that is what has
D             consistently been held by this Court. But it will not be open
              to this Court in exercise of jurisdiction under Article 32 to
              go behind or to examine the final verdict reac;:hed by a
              competent court convicting and .sentencing the condemned
              prisoner.and even while considering the circumstances in
E             order to reach a conclusion as to whether the inordinate
            . delay coupled with subsequent circumstances could be
              held to be sufficient for coming to a conclusion that
              execution of the sentence of death will not be just and
              proper. The nature of the offence, circumstances in which
              the offence was committed will have to be taken as found
F             by the competent court while finally passing the verdict. It
              may also be open to the court to examine or consider any
              circumstances after the final verdict was pronounced if it
              is considered relevant. The question of improvement in the
              conduct of the prisoner after the final verdict also cannot
G             be considered for coming to the conclusion whether the
              sentence could be altered on that ground also."

            (d) In Shatrughan Chauhan (supra) after considering law

H   4.    (1989) 1 sec 678.
       AJAY KUMAR PAL v. UNION OF INDIA                       449
             [UDAY UMESH LAUT, J.]
on the point as regards delay in execution of the death               A
sentence and the resultant effect, as also the scope and 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       8
    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.     C
    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         D
    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    E
    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   F
    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            G
    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        H
    450       SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A        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."
B
        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 attained
  finality on 16.03.2010 with the dismissal of appeals by this
C 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
0
  within which the Mercy Petition ought to be disposed of, in our
  considered view the period of 3 years and 1O 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
E 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
F   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
G      · 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
H 5. (1978) 4 sec 494.
        AJAY KUMAR PAL v. UNION OF INDIA                     451
              [UDAY UMESH LAUT, J.]
    infliction, death penalty, so long as an appeal to the A
    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 Constitution; Code and Prison Rules, has not been Ei
    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 C
    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.        D
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,               E
    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 ....... ."
                                                                     F
      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      G
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.
                                                                     H
    452       SUPREME COURT REPORTS.            [2014] 12 S.C.R.


A       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
8 to reach out and grant 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.
    Kalpana K. Tripathy                          Writ Petition allowed;