BANI KANTA DAS AND ANR.versusSTATE OF ASSAM AND ORS.

                        [2009] 8 S.C.R. 499


                  BANI KANTA DAS AND ANR.                            A
                                   v.
                  STATE OF ASSAM AND ORS.
               (Writ Petition (Civil) No. 457 of 2005)
                           MAY 8 , 2009
                                                                     B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

          Sentence/Sentencing: Commutation of death sentence
    to life imprisonment by the Governor - No reason indicated       C
    in the order which was passed on recommendation of NHRC

-   - Writ petition under Article 32 challenging order of Governor
    - Held: NHRC proceedings were not in line with the procedure
    prescribed under the 1993 Act - That being so,
    recommendations by NHRC was non est - Moreover said              D
    order did not indicate reasons - Governor's order is set aside
    - Protection of Human Rights Act, 1993- Constitution of India,
    1950 - Article 32.

        Writ petition under Article 32 of the Constitution of        E
    India was filed challenging the order of Governor of
    Assam, commuting the death sentence to life
    imprisonment when the accused was held guilty of
    heinous crime of brutally killing four persons of a family.
    He was awarded death sentence which was confirmed
    by this court and review thereagainst was also                   F
    dismissed. The order of commutation was passed on
    recommendation of NHRC.

        Partly allowing the writ petition, the Court
                                                                     G
         HELD: 1. In the documents filed before this Court by
    NHRC, the name of victim was stated and cause of action
    was stated to be the date of judgment of this Court i.e.
    31.7.2000. The Protection of Human Rights Act, 1993 was
                                499                                  H
        500       SUPREME COURT REPORTS                  [2009] 8 S.C.R.

c   A enacted for constitution of NHRC for better protection of
      human rights and for matters connected therewith or .
      incidental thereto. Section 17 in Chapter IV deals with
      inquiry into complaints regarding violation of human
      rights. Obviously, th'ere have to be atleast two persons
    B involved. One whose human rights have been violated
      and the other who has violated the human rights. [Para
      7 and 8] [504-C-G]

             2. The NHRC proceedings were not in line with the
    c   procedure prescribed under the Act. That being so, the
        recommendations, if any, by the NHRC are non est. [Para
        14) [505-G-H; 506-A]

            3. The State of Assam indicated that not only the
      recommendations of NHRC but several other aspects
                                                                           -
    D were take note of. But the order directing commutation
      did not indicate any reason. Absence of any obligation
      to convey the reasons would not mean that there should
      not be legitimate or relevant reasons for passing the
      order. Apparently, in the instant case that was not done.
    E The impugned order of commutation of death sentence
      to life imprisonment is set aside and direction is passed
      to reconsider the application filed by the accused for
      commutation of sentence. [Para 15 and 16) [506-A-E]

    F       Epuru Sudhakar v. Govt. of A.P. and Ors. (2006) 8 SCC
        161, relied on.
                               Case Law Reference:
              (2006) s sec 1s1          relied on              Para 15
    G
            CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
        457 of 2005.

              Under Article 32 of the Constitution of India.

    H
        BANI KANTA DAS AND ANR. v. STATE OF ASSAM 501
                        AND ORS.
            Manish Goswami and Map & Co. for the Appellant.                 A

           Avijit Roy (for M/s. Corporate Law Group), Vijay Panjwani,
       Shobha, J.B. Prakash and Puja Sharma for the Respondent.

           The Judgment of the Court was delivered by
                                                                            B
            DR. ARIJIT PASAYAT, J. 1. This petition under Article 32
       of the Constitution of India, 1950 has been filed by Smt. Jayanti
       Das w/o Late Jay Ram Das and Shri Bani Kanta Das S/o Late
       Jay Ram Das. Challenge in the writ petition is to the legality of
       the order passed by the Governor of Assam, conveyed by the           c
       Secretary, Judicial Department, Government of Assam. By the
       said order the Governor of Assam had directed to commute
       the sentence of death awarded to one Rajnath Chauhan @
       Ramdeo Chauhan (hereinafter referred to as the 'accused') to
       that of life imprisonment. The death sentence awarded to the         D
       convict by the trial Court was confirmed by the Guwahati High
       Court and was upheld by this Court.

            2. It is basically submitted that no reason has been
     . indicated to direct such commutation and apparently the order
       of commutation had its foundation on recommendations made            E
       by the National Human Rights Commission (in short the
       'NHRC).
'
            3. It is basically stated that no reason was indicated as to
    -- why the Governor decided to commute the death sentence to            F
       that of life imprisonment when the accused was guilty of
       heinous, abominable crime where a family was massacred, and
       considering the nature of crime the death sentence as awarded
       by the trial Court came to be confirmed by this Court and a
       review petition filed was dismissed. Four persons of a family        G
t      were brutally murdered by the accused.

           4. It is submitted that the accused has taken various dilatory
      steps to undo effects of this Court's judgment. it is submitted
      that NHRC had no role to play but it went beyond its jurisdiction
      to recommend purportedly on the basis of a complaint made             H
    502      SUPREME COURT REPORTS               [2009] 8 S.C.R.

A by Prof. Ved Kumari.

        5. Before we come to the merits of the case as regards
  requirement to record reasons, considering the important issue
  raised relating to the jurisdiction of the NHRC, learned counsel
  for the NHRC was directed to file copy of the entire record of
8
  the case. Notice was also issued to Prof. Ved Kumari to have
  her say in the matter. Certain important aspects are there which
  need to be gone into some detail. In her affidavit Prof. Ved
  Kumari has stated that she was not the complainant and the
C proceedings were initiated suo motu by NHRC. Though the
  records point to the contrary, learned counsel for the NHRC
  stated that actually the proceedings were initiated suo motu by
  NHRC. The other question which then arises is did NHRC have
  any jurisdiction to make recommendation in the manner done?
  To substantiate her stand that the proceedings were initiated
D suo motu, Prof. Ved Kumari has annexed to her affidavit a copy
  of the Article "Has child been executed in India" and copies of
  certain correspondences. One of them is a letter dated
  20.9.2000. The same reads as follows:
                   "National Human Rights Commission
E                  Sardar Patel Bhawan, Sansad Marg,
                            New Delhi-110001
                                                       20.9.2000
          M.L. Aneja
F         Joint Registar (Law)
          Dr. Ved Kumari
          G3/47 Model Town
          3rd Stop, Opp. Chhatrasal Stadium,
          New Delhi.
G
          Madam,

          Apropos my telephonic talk with you regarding handing
          over of copy of the record of the Sessions Court in
          Criminal Appeal No.4 of 2000 decided by the Supreme
H
           BANI KANTA DAS AND ANR. v. STATE OF ASSAM                  503
                 AND ORS. [DR. ARIJIT PASAYAT, J.]
     .,
               Court on 31. 7 .2000- Ram· Deo Chauhan alias Raj Nath          A
               Chauhan vs. State of Assam, kindly hand over the same
               to the bearer of this letter.

                     As already informed you on telephone that the matter
               will be listed before the Full Commission on Monday the
                                                                              B
               25.9.2000 at 3.00 p-.m. I am directly to request you to
               kindly appear before the Commission in the Conference
               Room at Sardar Patel Bhawan on the date and time
               mentioned above for further consideration of the matter.

                                                             (M.L. Aneja)"    c
                6. Strangely this letter does not form part of copy of the
'-
~
           records submitted by NHRC. Though Prof. Ved Kumari's stand
          was that the proceedi'ngs before NHRC were initiated suo
           motu, the verification of the records points to the contrary. In   D
           Form No.1 under Regulation 12 in para 3 it has been stated
          that "Is it a public interest complaint". The name and address
          of the complainant is that of Prof. Ved Kumcu-i. The name of
          the "victim" is stated to be Ramdeo Chauhan. In the order dated
          25.9.2000 the name of the complainant is stated to be Prof.
                                                                              E
          Ved Kumari. In the said order there is reference that on
          20.9.2000 a direction was given by the Chairperson to list the
          matter. This direction does not form part of the record. In the
     ..   proceeding dated 27.9.2000 it is noted by the NHRC that mercy
          petition is pending consideration of the Government of Assam.
          Prof. Ved Kumari stated that would also get in touch with an        F
          advocate and steps would be taken to move this Court also
          through a lawyer in the matter. In the order dated 16.10.2000
          the name of the complainant is stated to be that of Prof. Ved
          Kumari. In the letter addressed to Dr. Ved Kumari dated 20th
          October, 2000 the subject is "Your complaint dated 20.9.2000" .     G
      •   Similarly, in the order dated 27.11.2000 the name of the
          complainant is stated to be Dr. Ved Kumari. Similar is the
          position in the letter dated 16.5.2001 where it is clearly stated
          regarding complaint of Dr. Ved Kumari. Then comes the order
          of 21.5.2001 where it refers to the complaint made by Dr. Ved       H
    504       SUPREME COURT REPORTS                    [2009] 8 S.C.R.


A Kumari and the NHRC referred to the order passed by this
  Court_ in review petition and ultimately made the following
  recommendations:

                "Accordingly this Commission makes the above
          recommendation in terms of the opinion of Thomas J for
B         due consideration by the Governor of Assam and/or the
          President of India, as the case may be in the event of a
          mercy petition being filed for the purpose."

        7. The basic question raised is whether NHRC could have
C entertained any complaint either suo motu or on the basis of
  an application filed by any person in respect of a judicial order.
  In the documents filed before this Court by NHRC as noted
  above the name of victim has been stated and cause of action
  is stated to be the date of judgment of this Court i.e. :31.7.2000.
o The Protection of Human Rights Act, 1993 (in short the 'Act')
  was enacted for constitution of NHRC for better protection of
  human rights and for matters connected therewith or incidental
  thereto. The expression 'human rights' is defined in Section 2(d)
  which reads as follows:
E         "(d) 'human rights' means the rights relating to life, liberty,
          equality and dignity of the individual gu,aranteed by the
          Constitution or embodied in the International Covenants
          and enforceable by courts in India."

F      8. Section 17 in Chapter IV deals with inquiry into
  complaints regarding violation of human rights. Obviously, there
  have to be atleast two persons involved. One whose human
  rights have been violated and the other who has violated the
  human rights. It was pointedly asked to learned counsel for the
G NHRC who has violated the human rights of the accused. An
  evasive reply was given that when any action violated the human           +
  rights, there can be violation of the human rights. This situation
  is not conceivable in law. Since the date of cause of action was
  indicated to be the date of this Court's judgment, It was
H pointedly asked to learned counsel for the NHRC as to whether
             BANI KANTA DAS AND ANR. v. STATE OF ASSAM                    505
                   AND ORS. [DR. ARIJIT PASAYAT, J.]
            the Judges of the Supreme Court or the court itself had violated      A
            the human rights. Here again an evasive reply was given stating
            that under Section 13 i.e. "powers relating to inquiries" there
            is power of requisitioning any public record or copy thereof
            from any court or office. This is not the same thing saying that
            by an order of this Court there has been violation of human           B
            rights. Such a position can never be countenanced.

                 9. Learned counsel for the NHRC also referred to Section
            18 (a) dealing with steps during and after inquiry.

                10. Specific stress is led on the recommendation to the           c
            concerned government or authority. That clause has absolutely
            no application to a case of the present nature.

                 11. Reference was also made to Section 12 (Functions
            of the Commission); more particularly clauses (a) and (b). The        D
    ~
            provisions do not provide any answer to the questions involved.

                  12. Clause (..J) authorizes action to be taken on the basis
            of a direction or any order of any Court. In the instant case there
            was no such direction. Clause (b) permits intervention in any
            proceeding "with approval of such Court". That also is not the        E
            situation here.

    l
                  13. Learned counsel for the NHRC also referred to Section
1           12 U) of the Act contending the Commission shall perform all
            or any of the functions i.e. such other functions as it may           F
            consider necessary for the protection of human rights.
            According to learned counsel since there were certain
            observations by one of the Hon'ble Judges in the r.eview
            petition, therefore the Commission had the rights ,to do it. Here
            again, the submission is without substance because the                G
            proceedings itself before the NHRC were without sanction of
        ~
            law.

                 14. Therefore, the NHRC proceedings were not in line with
            the procedure prescribed under the Act. That being so, the
                                                                                  H
    506       SUPREME COURT REPORTS                  [2009] 8 S.C.R.

A recommendations, if any, by the NHRC are non est.

        15. The State of Assam has indicated that not only the
  recommendations of NHRC but several other aspects have
  been take note of. But the order directing commutation does
  not indicate any reason. This is contrary to what has been stated
8
  by this Court in Epuru Sudhakar v. Govt. of A.P. and Ors.
  (2006) 8 SCC 161. In para 38 it was observed as follows:

           "38. The same obviously means that the affected party
           need not be given the reasons. The question whether
C          reasons can or cannot be disclosed to the Court when the
           same is challenged was not the subject-matter of
           consideration. In any event, the absence of any obligation
           to convey the reasons does not mean that there should not
           be legitimate or relevant reasons for passing the order."
D
      16. Apparently, in the instant case that has not been done.
  We, therefore, set aside the impugned order of commutation
  of death sentence to life imprisonment and direct
  reconsideration of the application filed by the accused for
E commutation of sentence.

           17. The writ petition is allowed to the aforesaid extent.

    D.G.                                 Writ Petition partly allowed.