Supreme Court of India
MAHENDRA NATH DASversusUNION OF INDIA AND OTHERS
- Citation
- 2013 INSC 294
- Decided
- 1 May 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
A delay of twelve years in disposing of a mercy petition, coupled with procedural irregularities, is sufficient to compel commutation of a death sentence to life imprisonment.
Summary
Mahendra Nath Das was convicted of two murders, one of which attracted a death sentence that was confirmed by the High Court and the Supreme Court. He filed a mercy petition under Article 72 of the Constitution seeking commutation to life imprisonment, but the petition was rejected after a twelve‑year delay. The appellant challenged the rejection, arguing that such inordinate delay warranted commutation under the principles laid down in Triveniben and related cases. The Supreme Court examined the procedural lapses, the unexplained gaps in the Ministry of Home Affairs' handling of the file, and the lack of proper advice to the President. It held that a twelve‑year delay, coupled with the procedural deficiencies, was sufficient to merit commutation of the death sentence. Consequently, the Court quashed the rejection of the mercy petition and commuted the death sentence to life imprisonment.
Issues considered
- The adequacy of a twelve‑year delay in deciding a mercy petition under Article 72 as a ground for commutation of a death sentence.
- Whether the President was properly advised and assisted in the disposal of the mercy petition.
- The scope of judicial review over the exercise of the President's power under Article 72.
- The applicability of the principles laid down in Triveniben and related cases to the present facts.
Legislation cited
- Constitution of Indias. Article 142, s. Article 161, s. Article 257(1), s. Article 32, s. Article 72
- Indian Penal Code, 1860s. Section 302
Subjects
murderdeath penaltycommutationmercy petitionArticle 72delayconstitutional lawjudicial reviewrarest of rare
Judgment
[2013) 5 S.C.R. 1053
MAHENDRA NATH DAS A
v.
UNION OF INDIA AND OTHERS
{Criminal Appeal No. 677 of 2013}
MAY 1, 2013
B
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Constitution of India, 1950 - Article 72 - Murder -
Accused-appellant convicted and sentenced to death - He C
submitted mercy petition to the President under Article 72 of
the Constitution and prayed for commutation of the death
sentence into life imprisonment - Petition rejected after 12
years - Propriety of - Held: Not propf!f;..- 12 years delay in
disposal of the mercy petition sufficient for commutation of the D
sentence of death into life imprisonment - Sentence of df';ath
awarded to appellant accordingly commuted into life
imprisonment - Sentence I Sentencing - Commutation of
sentence.
E
The appellant was convicted by the trial Court and
sentenced to death on the premise that he committed the
murder of a person in a most foul and gruesome manner.
The conviction and sentence was confirmed by the High
Court as also this Court.
F
Thereafter, the appellant submitted a mercy petition
to the President under Article 72 of the Constitution and
prayed for commutation of the sentence of death into life
imprisonment. The petition was rejected after 12 years.
Writ petition filed by the appellant questioning the G
rejection of his mercy petition was dismissed by the High
Court.
The question which arose for consideration in the
1053 H
1054 SUPREME COURT REPORTS [2013] 5 S.C.R.
A instant appeal was whether 12 years delay in the disposal
of the mercy 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 High
Court committed an error by dismissing the writ petition
B filed by him.
Allowing the appeal, the Court
HELD: 1. In the appellant's case, there was a long
time gap of 12 years between the submission of the
C 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
D 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
E again started moving within the Ministry and five years
between 30.9.2005, i.e., the date on which the President
opined that the me-rcy petition of the appellant be
accepted and September, 2010, when the file was actually
summoned back by the Ministry of Home Affairs. That
F 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
G 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
H
MAHENDRA NATH DAS v. UNION OF INDIA 1055
to the order and note dated 30.9.2005 of the then A
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 B
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. [Para 20] [1072- c
A-F]
1.2. 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 D
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 E
appellant. [Para 21] [1072-G-H; 1073-A]
1.3. The 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 F
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. [Para 22]
[1073-A-B]
1.4. In the above backdrop, 12 years delay in the G
disposal of the appellant's mercy petition was sufficient
for commutation of the sentence of death and the High
Court committed serious error by dismissing the writ
petition solely on the ground that he was found guilty of
committing heinous crime. In the result, the rejection of H
1056 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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.
[Paras 23, 24] [1073-C-D; 1075-G-H]
B Daya Singh v. Union of India (1991) 3 SCC 61: 1991 (2)
SCR 462 - held applicable.
Mahendra Nath Das v. State of Assam (1999) 5 SCC
102: 1999 (3) SCR 729; Jagmohan Singh v. State of U.P.
c (1973) 1 SCC 20: 1973 ( 2) SCR 541; 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
D Maharashtra (1985) 1 SCC 275: 1985 ( 2) SCR 8; Mahesh
v. State of M.P. (1987) 3 sec 80: 1987 ( 2 ) SCR 710;
Triveniben v. State of Gujarat (1989) 1 SCC 678: 1989 (1)
SCR 509; Madhu Mehta v. Union of India (1989) 3 SCR 775;
Sevaka Perumal v. State of T.N. (1991) 3 SCC 471: 1991 (2)
E SCR 711; Dhananjoy Chatterjee v. State of WB. (19941 ~
SCC 220: 1994 (1) SCR 37; Jashubha Bharatsinh Gohil v.
State of Gujarat (1994) 4 SCC 353; Ravji v. State of
Rajasthan (1996) 2 SCC 175: 1995 (6) Suppl. SCR 195;
State of Madhya Pradesh v. Munna Choubey (2005) 2 SCC
710: 2005 (1) SCR 781; Swamy Shraddananda v. State of
F Karnataka (2008) 13 SCC 767: 2008 (11) SCR 93; Vivian
Rodrick v. State of West Bengal (1971) 1 SCC 468: 1971 (3)
SCR 546; Shivaji Jaising Babar v. State of Maharashtra
(1991) 4 SCC 375; Devinder Pal Singh Bhullar v. State of
N.C. T of Delhi [Judgment dated 12th April~ 2013 by
G Supreme·Court]; Maru Ram v. Union of India (1981) 1 SCC
107; Machhi Singh v. State of Punjab (1983) 3 SCC 470:
1983 (3) SCR 413; Ediga Anamma v. State of A.P. (1974) 4
SCC 443: 1974 (3) SCR 329 and Epuru Sudhakar v.
Government of A.P. (2006) 8 SCC 161: 2006 (7) Suppl. SCR
H 81 - referred to.
MAHENDRA NATH DAS v. UNION OF INDIA 1057
Case Law Reference: A
1999 (3) SCR 729 referred to Para 6
1973 (2) SCR 541 referred to Para 12
(1979) 3 sec 464 referred to Para 12 B
(1980) 2 sec 684 'referred to Para 12
(1983) 2 sec 68 referred to Para 12
(1983) 2 sec 344 referred to Para 12
c
1985 (2) SCR 8 referred to Para 12
1987 (2) SCR 710 referred to Para 12
1989 (1) SCR 509 referred to Para 12
(1989) 3 SCR 775 referred to Para 12 D
1991 (2) SCR 711 referred to Para 12
1994 (1) SCR 37 referred to Para
,
12
(1994) 4 sec 353 referred to Para 12 E
1995 (6) Suppl. SCR 195 referred to Para 12
2005 (1) SCR 781 referred to Para 12
2008 (11) SCR 93 referred to Para 12
F
1971 (3) SCR 546 referred to Para 13
1991 (2) SCR 462 held applicable Para 13
(1991) 4 sec 375 referred to Para 13
G
(1981) 1 sec 101 referred to Para 16
1983 (3) SCR 413 referred to Para 16
1974 (3) SCR 329 referred to Para 16
2006 (7) Suppl. SCR 81 referred to Para 16 H
1058 SUPREME COURT REPORTS [2013) 5 S.C.R.
A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 677 of 2013.
From the Judgment & Order dated 30.01.2012 of the High
Court of Guwahati in WP (Crl) No. 35 of 2011.
B Shyam Divan, P.S. Sudheer, Avijit Roy, T.A. Khan for the
appearing parties.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
c
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
D imprisonment and the Division Bench of the Gauhati High Court
committed an error by dismissing the writ petition filed by him.
3. The appellant was prosecuted for an offence under
Section 302 of the Indian Penal Code (IPC) on the allegation
E 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.
F 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
G 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
H
MAHENDRA NATH DAS v. UNION OF INDIA 1059
[G.S. SINGHVI, J.]
dated 3.2.1998 and 12.12.1998 and the sentence of death A
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
8
v. State of Assam (1999) 5 SCC 102. While dealing with the
appellant's contention that the extreme penalty of 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 C
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 D
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 E
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 F
appellant is a young man of 33 years and having three
unmarried sisters and aged parents and he was not well
at that time. Th~se circumstances when weighed against
the aggravating circumstances leave us in no doubt that
this case falls within the category of rarest of rare cases. G
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, H
1060 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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,
B 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 commutation of the sentence of
C 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
D 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.
E
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
F 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
G 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
H find that though the crime committed was of a gruesome
MAHENDRA NATH DAS v. UNION OF INDIA 1061
[G.S. SINGHVI, J.]
nature, yet the conduct of the accused does not show trace A
of pre-meditated murder. The crime can well be attributed
to a gross lack of mental equanimity on his part. In such
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 B
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 C
PRESIDENT OF INDl.A
30/9/2005"
10. On the same day, i.e., 30.9.2005, the President D
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 E
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 F
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 G
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 of the sentence of death
H
1062 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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
C 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.
D 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
E (1989) 3 SCR 775, Sevaka Perumal v. State of T.N. (1991) 3
SCC 471, Dhananjoy Chatterjee v. State of WB. (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 Choubey (2005) 2
F SCC 710, Swamy Shraddananda v. State of Kamataka (2008)
13 sec 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
G 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
H in any manner. Though delay in deciding the mercy petition
MAHENDRA NATH DAS v. UNION OF INDIA 1063
[G.S. SINGHVI, J.]
does appear to be unexplained and if delay alone is a 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 B
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 c
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
0
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 E
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 F
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 G
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 H
1064 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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.
c 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
D 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
E 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
F 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
G 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
H
MAHENDRA NATH DAS v. UNION OF INDIA 1065
[G.S. SINGHVI, J.]
(supra), Daya Singh v. Union of India (1991) 3 SCC 61 and A
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 · B
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 C
one decade in 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 D
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 E
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 Hfe long imprisonment, the
final decision taken by the President on 8.5.2011 cannot be
faulted on the ground of delay. F
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 G
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 H
1066 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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?
(c) Whether the parameters laid down by the Constitution
Bench in Triveniben's case for judging the issue of delay
c in the disposal ~fa 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 (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?"
E 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
F 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 sec 161 and some judgments of other
jurisdictions, the Court held:
"(i) the power vested in the President under Article 72 and
G 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
H of larger public interest and welfare of the people.
MAHENDRA NATH BAS v. UNION OF INDIA 1067
[G.S. SINGHVI, J.]
(ii) while exercising power under Article 72, the President A
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 B
on the society and all incriminating and extenuating
circumstances. The same is true 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 c
Government, the President or the Governor, as the case
may be, has to take a fi_nal 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,
0
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." E
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 F
and observed:
•3a.1n 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 G
as Amicus, that long delay of 8 years in disposal of the
petition filed under Article72 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 H
1068 SUPREME COURT REPORTS (2013] 5 S.C.R.
A 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.
B 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
c 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 imposing
punishment for murder and similar type of offences, the
Court is not only entitled, but is duty bound to take into
D 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
E to intense and extreme indignation in the community, the
Court may be fully justified in awardinglbe-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
F
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
G
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
H undue delay.
MAHENDRA NATH DAS v. UNION OF INDIA 1069
[G.S. SINGHVI, J.]
40. We are also of the view that the rule enunciated in Sher A
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 de~th into life
imprisonment cannot be invoked in cases where a person
is convicted for offence under TADA or similar statutes. B
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 c
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. D
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 E
other losses. It is paradoxical that the people who do not
show 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 F
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: G
"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 H
1070 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B or patent arbitrariness - Maru Ram v. Union of India,
(1981) 1 SCC 107, Kehar Singh v. Union oflndia (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
c 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
D 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
E 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.
This Court, however, may consider the question of
F 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
G
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
H a Government servant, namely, Bhagwan Singh (Amin), who
MAHENDRA NATH DAS v. UNION OF INDIA 1071
(G.S. SINGHVI, J.J
had attached his property for recovery of arrears of land A
revenue. After disposal of the criminal appeal by this Court, the
wife of the convict filed a mercy petition in 1981. The same
remained pen_ding 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 B
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. c
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 leave petition was-dismissed
by this Court. After rejection of the review petition, he filed D
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 E
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 F
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 G
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, n<J"explanation has been
given for the time gap of three years between 20.6.2001, i.e.,
H
1072 SUPREME COURT REPORTS [2013] 5 S.C.R.
A the date on which the then Home Minister made
recommendation for rejection of the mercy petition f)led by the
appellant, and September, 2004, when the file again started
moving within the Ministry and five years between 30.9.2005,
i.e., the date on which the President opined that the mercy
B 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
c 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
0
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
E 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
F predecessor and was deprived of an opportunity to objectively
consider the entire matter.
21. It is neither the pleaded case of the respondents nor
any material has been produced before this Court to show that
G 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
H not properly advised and assisted in the disposal of the petition
MAHENDRA NATH DAS v. UNION OF INDIA 1073
[G.S. SINGHVI, J.]
filed by the appellant. A
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 B
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 C
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 D
appears to have been decided by this Court under Article 142
of the 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 E
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
F
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 G
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, H
1074 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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
B 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
c 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
D 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
E Minister of the 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
F 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
G
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
H
MAHENDRA NATH DAS v. UNION OF INDIA 1075
[G.S. SINGHVI, J.]
the view that if the concerned officers had bestowed the A
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 B
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 c
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 0
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
E
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 F
deem it fit to and accordingly substitute the sentence of
imprisonment 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 G
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.
B.B.B. Appeal allowed. H
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