STATE OF MADRAS …PETITIONER
Vs.
V.G. ROW.UNION OF INDIA & STATE INTERVENERS OF TRAVANCORE …RESPONDENT
DATE OF JUDGMENT: 31/03/1952

BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION: 1952 AIR 196 [1952] INSC 19; 1952 SCR 597

CITATOR INFO :

RF 1954 SC 92 (35) RF 1954 SC 229 (28) RF 1956 SC 479 (19) R 1956 SC 559 (4,8,9) E&R 1957 SC 896 (10) E 1958 SC 578 (169) F 1958 SC 731 (21) F 1959 SC 300 (5) R 1960 SC 468 (6) R 1960 SC1080 (40) R 1960 SC1124 (25,42,64) R 1961 SC 448 (7) R 1961 SC 705 (5,11,20) R 1961 SC 884 (24) R 1962 SC 123 (15) R 1962 SC 263 (25) R 1962 SC 305 (29) A 1962 SC 316 (35,36) R 1962 SC1371 (34,64,65,66) R 1963 SC 996 (2) R 1964 SC 416 (11) RF 1967 SC 829 (6,7) R 1968 SC 445 (14) RF 1970 SC 898 (58) R 1970 SC1157 (12) R 1970 SC1453 (15) R 1971 SC 530 (259) R 1971 SC 966 (7) R 1971 SC1667 (10,25, 27) RF 1973 SC 947 (8) RF 1973 SC1461 (594, 1547) F 1975 SC 550 (8) RF 1976 SC1207 (300) RF 1977 SC1825 (29) R 1978 SC 597 (132) F 1978 SC 771 (15,22) R 1978 SC1457 (62) R 1979 SC 25 (31) R 1980 SC 898 (70) RF 1980 SC1992 (12) R 1981 SC 873 (19, 23) RF 1981 SC1030 (16) MV 1982 SC1325 (32) R 1984 SC 882 (3) R 1984 SC1213 (8) RF 1985 SC 551 (35) R 1986 SC 515 (80) R 1986 SC1205 (17)

ACT:

Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2)(b), 16–Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bear- ers–Validity of law–Unreasonable restriction on right to form associations–Constitution of India, art. 19 (1) (c), (4).

HEADNOTE:

Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an “unlawful association” an association “which has been de- clared by the State by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association (i) constitutes a danger to the public peace, or (ii)has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object.” Section 16 of the Act as amended provided that a notification under s. 15 (2) (b) shall (i) specify the ground on which it is issued and such other particulars, if any, as may have a bearing on the 598 necessity therefor and (ii) fix a reasonable period for any officebearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.

Under s. 16 A the Government was required after the expiry of the time fixed in the notification for making representa- tion to place the matter before an Advisory Board and to cancel the notification if the Board finds that’ there was no sufficient cause for the issue of such notification.

There was however no provision for adequate communication of the notification to the association and its members or office bearers. It was conceded that the test under s.

15(2)(b) as amended was, as it was under s. 16 as it stood before the amendment, a subjective one and the factual existence or otherwise of the grounds was not a justiciable issue and the question was whether s. 15(2)(b) was unconsti- tutional and void:

Held, (for reasons stated below) that s. 15 (2)(b) imposed restrictions on the fundamental right to form asso- ciations guaranteed by art. 19 (1) (c), which were not reasonable within the meaning of art. 19 (4) and was there- fore unconstitutional and void. The fundamental right to form associations or unions guaranteed by art. 19 (1) (c) of the Constitution has such a wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fiel this, that the vesting of the authority in the executive Government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which should be taken into account in judging the reasonableness of restrictions im- posed on the fundamental right under art. 19(1)(c). The absence of a provision for adequate communication of the Government’s notification under s. 15(2)(b). by personal service or service by affixture to the association and its members and office-bearers was also a serious defect.

The formula of subjective satisfaction of the Government or of its officers with an advisory Board to review the materi- als on which the Government seeks to override a basic free- dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the nar- rowest limits.

In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all 599 enter into the judicial verdict. In evaluating such elu- sive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

A.K. Gopalan v. The State ([1950] S.C.R. 88) and Dr.

Khare v. The State of Punjab ([1950] S.C.R. 519) distin- guished.

M. C, Setalvad, Attorney-General for India, (S. Govind Swaminathan and R. Ganapathi Iyer, with him) for the appel- lant (State of Madras).

C.R. Pattabhi Raman for the respondent.

M C. Setalvad, Attorney-General for India (G. N. Joshi.

with him) for the Union of India.

T.N. Subrahmanya lyer, (Advocate-General Travancore- Cochin (M. R. Krishna Pillai, with him) for the State of Travancore-Cochin.

1952. March 31. The Judgment of the Court was delivered by PATANJALI SASTRI C.J.–This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15 (2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, Public (General) Department, dated 10th March, 1950, whereby the State Government de- clared a Society called the People’s Education Society an unlawful association.

The respondent, who was the general secretary of the Society, which was registered under the Societies’ Registra- tion Act, 1860, applied to the High Court on 78 600 10th April, 1950, under article 226 of the Constitution complaining that the impugned Act and the Order dated 10th March, 1950, purporting to be issued there-under infringed the fundamental right conferred on him by article 19 (1) (c) of the Constitution to form associations or unions and seeking appropriate reliefs.The High Court by a full bench of three Judges (Raja-mannar C.J., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14th September, 1950, and granted a certificate under article 132. The State of Madras has brought this appeal.

The Government Order referred to above runs as follows:– “WHEREAS in the opinion of the State Government, the Association known as the People’s Education Society, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and consti- tutes a danger to the public peace;

NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act XIV of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act.

No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.

The declared objects of the Society as set out in the affidavit of the respondent are:

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;

(b) to encourage, promote, diffuse and popularise polit- ical education among people;

(c) to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms; and 601 (d) to promote, encourage and popularise art, literature and drama.

It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Govern- ment, Public Department, that, according to information received by the Government, the Society was actively helping the Communist Party in Madras which had been declared unlaw- ful in August 1949 by utilising its funds through its Secre- tary for carrying on propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.

As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the peti- tion, which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions.

Before amendment by the Madras Act, the material provisions were as follows:-“15. In this Part- (1) “association” means any combination or body of persons whether the same be known by any distinctive name or not; and (2) “unlawful association” means an association(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the Pro- vincial Government under the powers hereby conferred.

16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may by notification in the official Gazette declare such association to be unlawful.” The amending Act substituted for clause (b) in Section 15(2) the following clause :– 602 “(b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association– (i) constitutes a danger to the public peace, or (ii)has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administra- tion of the law, or has such interference for its object”.

For the old section 16, sections 16 and 16 A were substi- tuted as follows:

“16. (1) A notification issued under clause (b) of sub- section (2) of section 15 in respect of any association shall- (a) specify the ground on which it is issued, the rea- sons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor; and (b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.

(2) Nothing in sub-section ( 1 ) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose.

Under section 16 A the Government is required, after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board consti- tuted by it a copy of the notification and of the represen- tations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association concerned or any other person, and submit its report to the Government. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association 603 concerned, the Government is required to cancel the notifi- cation.

There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for member- ship or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof. Section 17 A, which confers power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where such power was exer- cised, by way of application, within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the place notified is situated in the Presidency Town or out- side, for “a declaration that the place has not been used for the purposes of any unlawful association”. If such declaration is made, the Government is to cancel the notifi- cation in respect of the place. Section 17B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property” is, or may be used for the purposes of the unlaw- ful association” after following the procedure indicated.

Section 17E similarly empowers the Government to forfeit funds of an unlawful association “if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association”. The procedure to be followed in such cases is also prescribed. By section 17F jurisdiction of civil courts, save as expressly provided, is barred in respect of proceedings taken under sections 17 A to 17E.

By section 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued as required in section 16 (1)( a) and (b) as amended and thereafter the procedure provided by 604 the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be con- sidered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on 21st August, 1950.

It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare associations unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15(2)(b) as amended, and the reference to the “opinion” of the Government is dropped.

This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justiciable issues. if the factual existence of those grounds could be made the subject of inquiry in a court of law, the restrictions sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for section 15 (2) (b). For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Govenment the test of unlawfulness, rendered the insertion of the words “in its opinion” unnecessary and, indeed, inappropri- ate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16; more especially as the “opinion” or the “satisfaction” of the Government or of its officers is still the determining factor in notifying a place under section 17 A (1) and in forfeiting the movables found there- in under section 17B (1) or the funds of an unlawful associ- ation under section 17E (1). The provision for an inquiry as to the existence or otherwise of such grounds before an Advisory Board and for cancellation of the notification in case the Board found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not 605 without force, and the position was not contested for the respondent. It may, accordingly, be taken that the test under section 15 (2) (b) is, as it was under the old section 16, a subjective one and the factual existence or otherwise of the grounds is not a justiciable issue.

It is on this basis, then, that the question has to be determined as to whether section 15 (2)(b)as amended falls within the limits of constitutionally permissible legisla- tive abridgement of the fundamental right conferred on the citizen by article 19 (1) (c). Those limits are defined in clause (4) of the same article.

“(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right con- ferred by the said sub-clause.” It was not disputed that the restrictions in question were imposed “in the interests of public order”. But, are they “reasonable” restrictions within the meaning of article 19 (4)? Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted “due process” clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights “, as to which this Court has been assigned the role of a sentinel on the qui vive.

While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine 606 finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.

The learned Judges of the High Court unanimously held that the restrictions under section 15 (2) (b) were not reasonable on the ground of-(1)the inadequacy of the publi- cation of the notification, (2) the omission to fix a time- limit for the Government sending the papers to the Advisory Board or for the latter to make its report, no safeguards being provided against the Government enforcing the penal- ties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board to make good his representation.

In addition to these grounds one of the learned Judges (Satyanarayana Rao J.) held that the impugned Act offended against article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment be- tween the two classes of unlawful associations mentioned in section 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. Viswanatha Sastri J.

further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

This Court had occasion in Dr. Khare’s ease (1) to define the scope of the judicial review under clause (5) of article 19 where the phrase “imposing reasonable restric- tions on the exercise of the right” also occurs, and four out of the five Judges participating in the decision ex- pressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive (1) [1950] INSC 19; [1950] S.C.R. 519, 607 law should be examined from the point of view of reasonable- ness; that is to say, the Court should consider not only factors such as the duration and the extent of the re- strictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard.

or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judg- ment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflec- tion that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authoris- ing the imposition of’ the restrictions, considered them to be reasonable.

Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of autho- rised restrictions on the right conferred by article 19 (1) (c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtail- ment is fraught with such potential reactions in the reli- gious political and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposi- tion, both in their factual and legal aspects, to be 608 duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of the fundamental right under article 19 (1) (c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this Court upheld in Gopalan’s case(1) deprivation of personal liberty by such means, but that was because the Constitution itself sanc- tions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C.J. at page 121, quoting Lord Finlay in Rex v. Halliday(2), “the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based”.

The Attorney-General placed strong reliance on the decision in Dr. Khare’s ease(3) where the subjective satis- faction of the Government regarding the necessity for the externment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be “reasona- ble” procedure for restricting the right to move freely conferred by article 19 (1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present ease, as the impugned Act provided that the Advisory Board’s report was binding on the Government. We cannot agree. We consider that that ease (1) [1950] INSC 14; [1950] S.C.R. 88. (2) [1917] UKHL 1; [1917] A.C. 260, 269. (3) [1950] INSC 19; [1950] S.C.R. 519, 609 is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, section 4 (1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. Khare’s case(1), authorised both preventive detention and externment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc.” Besides, both involve an element of emer- gency requiring prompt steps to be taken to prevent appre- hended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appro- priate action on their own responsibility. These features are however, absent in the grounds on which the Government is authorised,under section 15 (2) (b), to declare associa- tions unlawful. These grounds, taken by themselves, are factualand not anticipatory or based on suspicion. An asso- ciation is allowed to be declared unlawful because it “constitutes” a danger or “has interfered or interferes” with the maintenance of public order or “has such interfer- ence for its object” etc. The factual existence of these grounds is amenable to objective determination by the court, quite as much as the grounds mentioned in clause (a) of sub-section (2) of section 15, as to which the Attorney- General conceded that it would be incumbent on the Govern- ment to establish, as a fact, that the association, which it alleged to be unlawful, “encouraged” or “aided” persons to commit acts of violence, etc. We are unable to discover any reasonableness in the claim of the Government in seek- ing, by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in force only for a year, and any order made there-under was to expire at the termination of the Act.

What may be regarded as a reasonable restriction (1) [1950] INSC 19; [1950] S.C.R. 519.

610 imposed under such a statute will not necessarily be consid- ered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government’s notification under section 15 (2) (b) to the association and its members or office-bearers. The Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by affixture at the office, if any, of such association is prescribed.

Nor is any other mode of proclamation of the notification at the place where such association carries on its activities provided for Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration their right of making a representation, which is the only opportunity of presenting their case, would be 1oat. Yet, the consequences to the members which the notification involves are most serious, for, their very membership there- after is made an offence under section 17.

There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of 611 restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provi- sion is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in Dr. Khare’s case(1) is distinguisha- ble and cannot rule the present case as claimed by the learned AttorneyGeneral. Indeed, as we have observed earli- er, a decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumula- tive effect of the varying facts and circumstances of each case.

Having given the case our best and most anxious consid- eration, we have arrived at the conclusion, in agreement with the learned Judges of the High Court, that, having regard to the peculiar features to which reference has been made, section 15 (2)(b) of the Criminal Law Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside the scope of authorised restrictions under clause (4) of article 19 and is, therefore, unconsti- tutional and void.

The appeal fails and is accordingly dismissed with costs.

Appeal dismissed.

Agent for the appellant: P.A. Mehta.

Agent for the respondent: S. Subrahmanyan.

Agent for the Union of India and the State of Travan- core-Cochin: P.A. Mehta.

(1) [1950] INSC 19; [1950] S.C.R. 519

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Emperor …Appellant
Vs
John Mciver …Respondent

JUDGMENT

Cornish, J.

1. Two points of law arising in the trial of John McIver for criminal breach of trust at the last criminal Sessions have been reserved to us for decision under Clause 25 of the Letters Patent by the learned Chief Justice. They are (1) whether the plea of autrefois acquit was good in law, and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. By “case put forward by the Crown,” the learned Chief Justice has stated that he means the case alleged in the complaint. The learned Crown Prosecutor has taken an objection to our jurisdiction to entertain the reference. His objection proceeds as follows: The High Court derives its jurisdiction to decide the question of law referred from the order of reference; the referring Judge is only competent to refer questions which he can decide; and the Judge is only competent to decide such questions as are available for his decision. Applying these propositions to the points reserved, the learned Crown Prosecutor has contended (1) that the question whether the plea of autrefois acquit was available to the accused could not be referred by the trial Judge because the point had already been decided by the High Court against the accused in the proceedings previous to the trial; (2) that the trial Judge has not referred the question of availability of the plea, but only the question whether it is good in law; (3) that the question of autrefois acquit could not be referred because it did not arise in the trial or in the course of the trial’ (according to Clause 25, or Section 434, Criminal P.C.) but was taken before the commencement of the trial; and (4) that the second point of law referred could not be referred because it had already been the subject of decision by a Bench of this High Court at an earlier stage of the proceedings against the accused. With regard to the second of these grounds of objection I may say at once that I have no doubt upon the terms of the order of reference that the learned Chief Justice intended to refer not only the question of the availability of the plea to the accused but the question of its merits. As the points taken by the learned Crown Prosecutor relate to various stages of the proceedings in the prosecution of the accused it will be convenient here to state the sequence of events in these proceedings.

2. The complaint alleged that the accused had committed the offences of cheating and criminal breach of trust. Summonses were issued by the Chief Presidency Magistrate in respect of both offences. But when the parties appeared it was stated that the complainant wished to compound the offence as the only offence was one of cheating under Section 420, I.P.C. This was sanctioned by the Magistrate, and an order made acquitting the accused 1. Cheating being a compoundable offence the effect of the Magistrate’s order sanctioning the composition was the acquittal of the accused of that offence; Section 345(6), Criminal P.C. The result was as if the Court had found the accused not guilty of the offence compounded. The Crown appealed against the acquittal alleging in the first place-that the acquittal of cheating was bad as the Magistrate was not shown to have exercised a discretion in allowing the composition: and secondly, that as the complaint disclosed the offence of criminal breach of trust and a summons had been issued in respect of that offence, which was a non-compoundable offence, the Magistrate must be deemed to have sanctioned the composition of this offence likewise in acquitting the accused. The appellate Court upheld the acquittal of cheating but directed the Magistrate to restore the summons in respect of the alleged breach of trust to his file and to dispose of it according to law. The judgment of the appellate Court is reported in Emperor v. J. Mclver 1936 69 MLJ 681. No question of the acquittal of cheating being a bar to trial for criminal breach of trust appears to have been raised in the arguments of counsel, and no opinion or decision upon that question was given in the judgment. In my view the Court did not, and never intended to fetter the right of the Magistrate to deal with that plea if it should be taken before him in his disposal of the case. However, when the plea was in due course raised before him the learned Magistrate regarded the High Court’s order as leaving him no option but to go on with the case. The terms of the Magistrate’s order are important in relation to the later order made by King, J., because King, J’s order has been interpreted by the learned trial Judge as deciding the plea of autrefois acquit against the accused. What the Magistrate said was this:

The accused raises the plea of autrefois acquit and states Section 403(1) Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C. and asks me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived, and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C. it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

3. He accordingly dismissed the petition. In my opinion the plain meaning of this order is that the Magistrate declined to decide the question of autrefois acquit raised by the accused, because he considered that he was precluded by the order of the High Court. The accused then applied for a revision of the Magistrate’s order, and the matter came before Mr. Justice King. The learned Judge disposed of it in these words: “I see no ground for revision. The petitions are dismissed.” It has been argued before us that as the point of autrefois acquit was raised and argued before the Judge he must be taken to have decided it in dismissing the accused’s petition. I find it impossible to read the order so. Obviously it was incumbent on the accused in support of his petition to show that his plea of autrefois acquit was prima facie a good one, and that the Magistrate was wrong in refusing to decide it. But it by no means follows that because the learned Judge thought fit not to revise the Magistrate’s order that he did so because he decided the plea of autrefois acquit was ill-founded. If that was the ground of his order he would have been revising the Magistrate’s order, for he would have been deciding the point which the Magistrate had refused to decide. But this would be quite inconsistent with his order that he saw no ground for revision. In my judgment the learned Judge decided nothing more than that the case should go on, and he left the question of autrefois acquit open.

4. This brings me to the third point in the objection to our jurisdiction to entertain the order of reference. The plea of autrefois acquit was in fact raised by the accused’s counsel in the Sessions Court after the charge had been read to the accused and before the accused pleaded to the charge. The learned Crown Prosecutor has seized on a phrase in the order of reference that the plea was taken “before the Sessions trial began” as showing that the plea was raised dehors the trial. And from this he has argued that the point of law not being one which had arisen “in the trial” (according to Clause 25 Letters Patent) or “in the course of the trial” (under Section 434, Criminal P.C.,) the point could not be referred by the learned trial Judge. For the purpose of Clause 25 it is not necessary that the point referred should have been taken at the trial and decided by the Judge. The case of Emperor v. Ramanujam 1935 58 Mad 642 is in point. The learned Crown Prosecutor has submitted that Clause 25 is founded on the provisions in the English Court of Crown Cases Act providing for the reservation of a point of law arising “on the trial.” I think that “in the trial” in the Letters Patent and “on the trial” in the English Act mean the same thing. But it has been held under the English Act that it was not necessary to give the Court of Crown Cases reserved jurisdiction to entertain a point of law reserved which was existing “on the trial” that the point should have been formally taken at the trial: R. v. Brown (1890) 24 Q B D 357. But if the point was in fact taken at the trial, which is the normal occasion for taking a point of law, there is no difficulty, to my mind, in regarding it as a point arising ‘in the trial.” The trial had commenced before the plea was raised. Under the sub-heading “Commencement of Proceedings” in Chap. 23 of the Code relating to trials before the High Courts and Courts of Session, comes Section 271 which says:

When the Court is ready to commence the trial, the accused shall appear or be brought before It, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.

5. This, in my opinion, indicates that the trial commences with the arraignment of the accused that is to say when the charge is read out to the Accused and he is called upon to plead to it. It has been held ‘to be the point of commencement in the trial of warrant cases Kali Mudali v. Emperor (1912) 35 Mad 701 at p. 703, and I see no reason why it should not equally be the point of commencement of a trial at the Criminal Sessions of the High Court. There is no rule of practice defining the proper time for raising a plea of autrefois acquit in this country. The artificial English rule against pleading double is certainly not to be applied. Section 403(1), simply lays down the rule on which a plea of autrefois acquit or convict is founded; and it would seem that the rule could be invoked by an accused person at any stage of the proceedings. However that may be, I think that in the present case the plea was taken at the appropriate time. The trial had commenced and the plea of autrefois acquit was raised before the accused pleaded to the charge. There remains the last ground of preliminary objection, namely, that the question of entrustment has already been determined in the case by an appellate bench of the High Court and is not open to reference and review. It is enacted by Section 430, Criminal P.C. that judgments and orders passed by an appellate Court upon appeal shall be final ‘ except in the cases provided for in Section 417 and Chap. 32.” The case provided for in Section 417 is simple enough. The difficulty is to discover whether the exception is intended to cover all or any of the cases provided for in Chap. 32, including the case provided for by Section 434 in that Chapter, or whether it is limited to the cases provided for by Section 435 which gives a superior Court power to call for the record of an inferior Court whether exercising original or appellate criminal jurisdiction.

6. One would have thought that if the legislature had intended to so limit the exception in Section 430 it would have said “except in the cases provided for in. Sections 417 and 435.” Ch. 32 consists of Sections 432 to 442. Of these, Sections 432, 433. and 441 relate to a reference to the High Court by a Presidency Magistrate and the disposal thereof. Sections 436, 437, 438, 439 and 440 implement Section 435 and lay down the powers to be exercised and the procedure when the record of an inferior appellate Court has been called for under that section. But it is obvious that Section 435 and its satellite sections would not furnish an exception to Section 430 when an appellate judgment of the High Court is concerned, because one Bench or Judge of the High Court is not an inferior Court to another Bench or Judge of High Court. Unless then, the power of revision conferred by Section 434 is an exception to the finality of an appellate judgment of the High Court (for Section 430 must include the judgment of the High Court as well as the judgment of an inferior appellate Court) there is no means of questioning that judgment except in the case provided by Section 417. It has been contended by Mr. Venkatarama Sastri that a reference of a point of law, whether under Clause 25 of the Letters Patent or under Section 435, Criminal P.C., does not involve a revision of a previous decision of that point of law by an appellate Court in the same case. His contention is that if a point of law is taken at the trial, the Judge is bound to decide it. He may feel himself bound to decide it in accordance with a previous decision of the High Court, as the learned Chief Justice did here. But nonetheless he has a discretionary power to refer it. The Bench to which the question is referred does not sit to review the previous decision of a High Court bench but to determine the point of law which has arisen in the trial.

7. There is a precedent for the course which we are invited by Mr. Venkatrama Sastri to take in Rathnavelu v K.S. Iyer 1933 56 Mad 996, where a Full Bench on a reference by a single Judge decided a question of law which had already been decided by an Appellate Bench in the same case. But the point which has been argued here as to the effect of Section 430 does not seem to have been brought to the notice of the Court there. It must be assumed that the Legislature in making exceptions to the rule in Section 430 “in the cases provided for in Ch. 32,” had in mind the power which is given to the High Court to which a question of law has been referred whether under the Letters Patent or under Section 434, to review the case or such part of the case as may be necessary, and to finally determine the question of law referred. There seems to me nothing improbable in the intention to exempt from the absolute rule of Section 430 a review of the case, which means a review of the whole of the cases presented at the trial, upon a reference under the Letters Patent or Section 434. The decision of the Appellate Bench that there was an entrustment of the property alleged to have been fraudulently converted could not conceivably conclude that question at the trial. It would not relieve the Crown from proving by evidence an offence under Section 405 nor would it deprive the defendant of his right upon the plea of ‘ Not Guilty” to contend that there was no entrustment in fact or in law disclosed by the evidence. The learned trial Judge was entitled to hold in accordance with the view taken by the Appellate Bench that the case for the Crown established an entrustment; but he was also entitled to reserve the question if he thought fit as a point of law which had arisen in the trial. In my opinion therefore we have jurisdiction to entertain the second point of law referred.

8. It will be convenient to deal first with the second question referred because its practical importance is in relation to the plea of autrefois acquit. I think that apart from the alleged cheating in the procuring of the bonds there was an ‘entrustment” of his bonds by the complainant to the accused when the bonds were delivered to him. It is clear that the complainant had no intention of parting with his property in the bonds which, in his evidence, he explained had, been purchased by him as an investment. Undoubtedly he indorsed the bonds to the accused’s firm; but unless he had done that the bonds would have been of no use to the accused for the purpose of satisfying the Bank” which was the purpose as represented to the complainant for which the accused required the temporary use of the bonds. But the complainant’s statement, which is confirmed by his evidence, shows that he expected to have his bonds returned to him when the temporary purpose of satisfying the Bank was concluded. It was only on this understanding that the bonds were handed over to the accused. I think the word “entrustment” aptly describes the delivery of these bonds by the complainant to the accused. It has been contended by Mr. Venkatarama Sastriar that an entrustment requires the elements of a trust-settler, trustee and beneficiary-and that those elements are wanting here. The language of Section 405, Penal Code is very wide-“whoever, being in any manner entrusted with property, or with any dominion over property” etc. This is sufficient to include the express trustee, the bailee of goods, and any person who is entrusted by its owner with the dominion over property, as, in my opinion, the accused was when the bonds were delivered to him by the complainant. But then it has been contended that an entrustment is inconsistent with the obtaining of the property from its owner by a trick or deception which amounts to theft or cheating. The decision of the House of Lords in Lake v. Simmons (1927) AC 487, has been relied on in support of this proposition. It was there laid down by Lords Sumner and Atkinson, and in the Court of appeal Lord Justice Atkin had laid down the law similarly, that the theft of property by means of a trick negatives the notion of an entrustment of property by the owner to the thief. If there was a trick” said Lord Sumner, “which prevented any true consent arising there could be no entrusting. The terms are mutually exclusive.” And Lord Atkinson said:

The so-called entrusting of the jewels to her, furnished to her, as she intended it should, the opportunity for and means of committing the theft.

9. Larceny by trick as defined by English law is not to be found in the Indian Penal Code. Dishonestly taking property out of the possession of its owner without his consent is theft as defined by Section 378. It is cheating under Section 415 to fraudulently induce, by means of a deception, a person (not necessarily the owner) to deliver property. It might equally be theft where the consent of the owner to the taking of his property had been obtained by a trick and was consequently no consent at all. The offence of criminal breach of trust is quite different from theft, and cheating. It is an essential ingredient of this offence that the person ?entrusted in property shall dishonestly ?convert it to his own use. But the state of facts may be so involved as to leave it uncertain which of these three offences has been committed. This difficulty is provided for by Section 236, Criminal P.C. which enables the accused to be charged with all these offences or with any one of them; and Section 237 further provides that in such case the accused if charged with one may be convicted of the other or one of the others if the evidence shows that it is the other offence which he has committed. But obviously if the evidence shows, that the offence is theft he cannot be convicted of cheating, or if cheating is proved he ?cannot be convicted of criminal breach of trust, because the same facts will not constitute both criminal breach of trust and cheating. It has however been contended for the Crown that property obtained by cheating, the contention as I understand does not cover a case of theft, is capable of being fraudulently converted under Section 405 as property entrusted to the cheat. That is to say, when the deception succeeds and the property is delivered the property becomes the subject of entrustment, and the conversion by the cheat of the property so delivered becomes a fraudulent breach of trust within Section 405. Support for this proposition was sought in some observations of Lord Sumner in Lake v. Simmons 1927 AC 487, where His Lordship pointed out the difference between a consent which was apparent tout not real and a real consent obtained by fraud.

10. But their Lordships were considering the construction of a clause in an insurance policy touching the entrusting of property to customers of the insured. Their observations seem to me to give no support at all to the theory that a confidence trickster or a cheat can be viewed in the light of a fraudulent trustee. The word “entrusted” Lord Haldane has said in Lake v. Simmons 1927 AC 487, may have different implications in different contexts. We have here to construe that word as it occurs in a section of the Penal Code headed “of Criminal Breach of Trust.” The notion of a trust in the ordinary sense of that word is that there is a person, the trustee or the entrusted in whom confidence is reposed by another who commits property to him; and this again supposes that the confidence is freely given. A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term; and Section 405 gives no sanction to regard him as a trustee. The illustrations to the section show that it is intended to cover the case of property honestly obtained by the person entrusted with it, and subsequently dishonestly misappropriated by him in breach of his trust. As I have already said the essence of criminal breach of trust is the dishonest coversion of the property entrusted. But the act of cheating itself involves a conversion. Conversion signifies the depriving the owner of the use and possession of his property.

11. When the cheat afterwards sells or consumes or otherwise uses the fruit of his cheating he is not committing an act of conversion, for the conversion is already done, but he is furnishing evidence of the fraud he practised to get hold of the property. It is not necessary to strain the language of Section 405 to catch the cheat, for he can be dealt with apart from that section. In fact, there would be little use for Section 415 if cheating is only a form of criminal breach of trust. For these reasons I think that cheating is a complete offence by itself and cannot be criminal breach of trust. My answer to the second question referred is therefore that there is not an entrustment within the meaning of Section 405 when property is obtained by cheating. The accused having been acquitted of the offence of cheating it has to be determined whether this acquittal was a bar to his being tried for criminal breach of trust. The case of the Crown was that the accused by means of a false representation that his firm requires the temporary use of the complainant’s bonds to satisfy the Imperial Bank until other bonds of the same description and value, alleged to have been purchased for the Bank by the accused’s firm, were returned from Bombay after rectification of endorsements, induced the complainant to hand over his bonds to the accused on the understanding that they were to be immediately returned to him when the purpose of satisfying the Bank was concluded; and that the accused as soon as complainant delivered the bonds to him sold those bonds without complainant’s knowledge or consent and appropriated the proceeds to his own use. It was upon those facts that the accused was acquitted of cheating, and it was upon those facts that the accused was charged, tried and convicted of criminal breach of trust. They are identically the same.

12. But the argument of the learned Crown Prosecutor is that this was a transaction in which there was a series of acts constituting more than one offence within Section 235(1), Criminal P.C. If this be right, then Section 403(2) will prevent an acquittal of the offence constituted by one act or set of acts being a bar to the trial of the accused for the distinct offence constituted by another act or set of acts. Illus. (b), Section 235(1) clearly shows its import. Breaking into a house and committing adultery with a married woman within it are two distinct acts and offences. But I do not see how on facts proving house breaking a person could be convicted of the offence of adultery, and I feel no doubt that an acquittal of adultery could not be pleaded as a bar to trial for house breaking. The argument here is that the cheating disclosed upon the facts is one act and offence and that the fraudulent conversion is another act and offence. I have already given my reasons for thinking that a cheat does not develop into a fraudulent trustee when he proceeds to enjoy the fruit of his cheating. But the weak point in the learned Crown Prosecutor’s proposition is that he was unable to establish his case of criminal breach of trust except by the same evidence necessary to prove cheating. A reference to the evidence called at the trial makes this plain. To establish the charge of criminal breach of trust the complainant was called to prove that he was induced to hand over his bonds by the representation made to him that the accused wanted them temporarily to satisfy the Bank. Another witness was called to prove that their representation was untrue; and another witness proved that the bonds were sold, by order of the accused on the same day and immediately after they were received from the complainant. It was by force of the sameness of the facts that the Crown was constrained to seek to establish criminal breach of trust by evidence which would prove the very offence of which the accused had been acquitted. It has been definitely laid down that Section 235(1) has no application where an offence is based upon the identical facts on which another offence has been charged: Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, Sharbekhan Gohain v. Emperor (1906) 10 CWN 518. Illus. (a), Section 236 and Section 237, Criminal P.C. show that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made: Begu v. Emperor 1925 52 IA 191. And Section 403(1), Criminal P.C., says that a person acquitted of one offence shall not be liable to be tried on the same facts for any other offence for which a different charge from the one-made against him might have been made under Section 236, or for which he might have been convicted under Section 237. As already stated the facts of the cheating offence of which the accused has been acquitted arc in my opinion identical with the facts on which he has been put upon his trial for criminal breach of trust. My answer therefore to the first question referred is that the acquittal of cheating furnished a valid plea of autrefois acquit in bar of the accused being tried for criminal breach of trust. It follows that the conviction which has resulted from that trial must be set aside.

Mockett, J.

13. This is a reference under Clause 25 of the Letters Patent by the learned Chief Justice before whom accused 1 was tried at the Criminal Sessions for the City of Madras. The circumstances are so unusual that it is necessary to set out the history of this case. They raise several matters of importance relating to the power of a Judge under Clause 25 of the Letters Patent and also to the right of the accused persons under Sections 345 and Section 403, Criminal P.C. On 14th May 1935 one Rao Bahadur Boora Lakshmiah Chetty filed a complaint in the Court of the Presidency Magistrate, Egmore, against accused 1 and 2, McIver, J., and K.S. Narasimhachari. The effect of that complaint was to allege that on 24th March 1935, accused 2 who was in the employment of accused l’s firm of Huson Tod & Co., Stock Brokers, called upon the complainant and represented to him that Huson Tod & Co., had entered into a contract with the Imperial Bank of India under which they were under an obligation to sell and deliver to them 6 1/2 per cent 1935 Bombay Development Loan bonds of the face value of Rs. 3,50,000 and that of the last date to supply the same to the Bank was 27th March 1935. He also represented that his firm had purchased from Bombay the requisite amount of bonds but that the Imperial Bank had returned them owing to irregular endorsement and the bonds had been sent to Bombay for rectification and that pending their return, the complainant might oblige them temporarily by giving them his bonds of the said denomination and value to satisfy the Imperial Bank, as the date of completion of the contract was 27th March 1935 and the Bank’s accounts for the official year had to he closed, and that as soon as the bonds purchased by them were received back from Bombay with the endorsement rectified, the complainant’s bonds would be returned to him.

14. On 27 th March accused 2 repeated his request to the complainant saying that the bonds had not come from Bombay and that as that date was the last date for the completion of the contract with the Bank, the complainant should oblige the firm by giving his bonds temporarily for a few days and assured him that he hoped to receive the bonds sent for rectification by 30th March and that complainant’s bonds would be returned to him on 1st April 1935 positively.

15. The complainant believing these representations and on the faith of the assurance that the complainant’s bonds would be returned on 1st April handed over bonds to the value of Rs. 3,50,000 to be endorsed and delivered over to the accused’s firm by his brother and authorised agent on the said date, viz., 27th March 1935 and on the understanding referred to above.” The bonds were not returned and after communication with accused 1 (who was the senior partner of the firm) and what I may term “negotiations” that went on some days during which the complainant was asked to stay his hand for the ostensible reason that the firm’s own bonds were still held up in Bombay it came to the knowledge of the complainant that the story of the accused was false, that no bonds had been sent to Bombay for rectification and that the complainant’s bonds had been sold and the proceeds misappropriated by the accused. Para. 11 of the complaint goes on:

The complainant submits that in the circumstances the conduct of the accused in the first obtaining the bonds in question on false representations and on promise to return them within a specified time and thereafter disposing of them without the complainant’s knowledge and consent and misappropriating the proceeds thereof and putting off the complainant by specious pleas that the bonds sent for rectification had not arrived from Bombay, is dishonest and fraudulent…

16. Paragraph 12 concludes : “In the circumstances, the complainant charges the accused with having committed the offences punishable under Sections 406 and 420,I. P.C., and prays that they be dealt with according to law.” Section 420, I.P.C., deals with the offence which in India is known as “cheating” which is defined in Section 415 and under Section 420, when the subject of the cheating is a valuable security the penalty may extend to seven years’ imprisonment. Section 406, I.P.C. deals with the offence of “criminal breach of trust” which is defined in Section 405. The penalty for criminal breach of trust as charged is three years. The offence of criminal breach of trust, although the penalty for it is less than for an offence under Section 420, is non-compoundable, while the offence of cheating is compoundable. On 2nd July 1935 a petition was put in before the Chief Presidency Magistrate by the complainant stating that “as the facts alleged (that means in the complaint) would, if proved, amount to an offence under Section 420, I.P.C. which is compoundable with the permission of the Court,” it was prayed that the Court will be pleased to grant permission for the case to be compounded. The Chief Presidency Magistrate granted leave and passed the following order : “Permission granted. Case reported compounded Accused are acquitted.” He also made the following note : “The complainant himself and his counsel both admit that the facts disclosed only an offence under Section 420,I. P.C. which is compoundable with the permission of the Court. I am also of the opinion that the offence disclosed is only under Section 420, I.P.C.” Against that order the Crown filed an appeal which came before Madhavan Nair and Burn, JJ.,in Criminal Appeal No. 344 of 1935, reported in Emperor v. J. Mclver 1936 69 MLJ 681.

17. The Crown contended that the complaint disclosed not only the offence of cheating but also criminal breach of trust. They also asked the Court to say that the Magistrate in so far as the offence under Section 420 was concerned had not judicially exercised his discretion and asked that the acquittal be set aside. The learned Judges refused to interfere with the order of the Magistrate acquitting the accused of cheating. They took the view that the complaint did disclose an offence under Section 420 as well as an offence under Section 406. It is not necessary to consider all the arguments advanced. It is however necessary to state that in resisting the appeal the learned Counsel for accused 1 argued, according to the report, that only one offence, namely of cheating, was disclosed, and in particular argued that there was no “entrustment” of the bonds, and he relied inter alia on the decision of the House of Lords in Lake v. Simmons (1927) AC 487. The Court rejected his contentions and discussed the meaning of the word “entrusted.” They allowed the appeal, set aside the acquittal for criminal breach of trust, and said, “the learned Chief Presidency Magistrate should be asked to restore the complaint on file and deal with it according to law.” Consequently the case proceeded before the Chief Presidency Magistrate. Before him both the accused raised the plea of autrefois acquit; that is to say, they relied on Section 403, Criminal P.C. But although it was attempted to be argued at the time the Magistrate indicated that it was useless to argue the matter and his point of view is clear from the order passed by him on 12th November 1935. He took the view that the matter was concluded by the judgment of Madhavan Nair and Burn, JJ. Dealing with the accused’s contention he says:

This contention was negatived and their .Lordships hold that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to restore the complaint for an offence under Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out.

18. He refused to make a reference under Section 432, Criminal P.C. and said it was open to the accused to move the High Court. Criminal revision petitions were filed by both the accused against that order. In the petition of accused 2 it is specifically alleged that the Magistrate refused to decide the point, i.e., autrefois acquit. The matter came before King, J., who passed the following order. “I see no ground for revision. The petitions are dismissed.” That is, he declined to stay the trial. Thereafter the proceedings went on. Both the accused were committed for trial. When the matter came before the learned Chief Justice it is agreed that the following was the course of events, and it is borne out by the shorthand note. No point was taken before the accused was charged as was done in Queen-Empress v. Gobind Dass (1901) 28 Cal 211. This is important and I respectfully agree with the view expressed by Maclean, C.J. that it is only after that stage that a point can be said to “arise.” I prefer this view to that expressed by a Bench of the Calcutta High Court in Mahomed Yusuf v. Emperor 1931 58 Cal 1214, namely, that a trial only commences after the empanelling of the jury. I£ it were otherwise, an accused pleading autrefois acquit would be driven to making “a double plea” which in England at least would be fatal to his plea of autrefois acquit although there is no such rule in India. But it would be anomalous. The accused was called upon to plead and his counsel took the point that the trial was barred under Section 403, Criminal P.C., and that there was no entrustment within Section 406, I.P.C. Then, according to the learned trial Judge’s order:

The Crown Prosecutor took a preliminary objection to the plea. He submitted that the plea of autrefois acquit was not open to the accused then, it having been raised once before the Chief Presidency Magistrate and disallowed, and the matter having been taken up in revision to the High Court and King, J., having made a final order upholding the order of the learned Chief Presidency Magistrate On this point I ruled that the Crown Prosecutor’s preliminary objection must be upheld for that reason. I here also add a further reason, namely that Madhavan Nair and Burn, JJ., in Criminal Appeal No. 344 of 1935 (1) may have dealt with this plea by implication. I was further of the opinion that the plea was bad in law having regard to the principles laid down by Lord Reading L. C.J. In Rex v Barran (1914) 2 KB 570 in the Court of Criminal Appeal. I accordingly overruled that plea. A further legal point was also raised by the defence that there could not on the facts of the case be an entrustment in law of the property and hence the charge of criminal breach of trust would not lie. In view of the Bench decision in Criminal Appeal No. 344 of 1935 (1), which being a decision of a Bench of two Judges is binding upon me, I felt that I was unable to allow that point to be argued. I have been requested to reserve this point also and I do so particularly having regard to the important case of Lake v. Simmons 1927 AC 487. I accordingly reserve ‘for the consideration of the Full Bench the following questions: (1) whether the plea of autrefois acquit was good in law and (2) whether there could be a legal entrustment of the property having regard to the case put forward by the Crown.

19. Accordingly this matter has come before us on this reference. The Crown Prosecutor took a preliminary objection that we were not competent to hear this reference because it was not within the learned Judge’s power to reserve the points concerned, that the points never arose for the learned trial Judge’s consideration and that a point which he could not decide could not be for his consideration. Before us the Crown Prosecutor has argued that the Magistrate decided the point of autrefois acquit relying on the decision of Madhavan Nair and Burn, JJ., who by implication decided the same point, and that King J’s order is final. Secondly he argued that the learned trial Judge only referred the question of the merits of the plea of autrefois acquit and did not refer the point taken in the preliminary objection of the Crown Prosecutor, namely that it was not available to the accused to plead it. I will deal with the second point at once. Speaking for myself I am perfectly satisfied on a reading of the order of the learned trial Judge that he intended to refer, and did refer, to us the whole of the matters relating to autrefois acquit. If it were otherwise, the result would be that we are asked to say that the learned trial Judge while holding that the plea was not available, which order would be final if not referred, has asked us to deal with the merits of the plea, with the result that our decision would be purely academic and have no effect on this case at all. If we had the least doubt on this I think we should have referred the matter back to the learned trial Judge who could have, if he thought fit, made a further reference. But as the matter is clear beyond doubt this was not considered necessary. All the matters relating to autrefois acquit referred to in the learned Chief Justice’s order are therefore before us.

20. It is not possible to get much assistance from the English procedure because Section 403, Criminal P.C. is so generally worded, and there is nothing in the Criminal. Procedure Code, to amplify it, but it appears that the plea can be taken at any stage in a trial. Obviously the proper time for a plea in bar to be taken at Sessions is at the time when it was taken before the learned trial Judge. But it was also taken, as has been pointed out, before the Chief Presidency Magistrate. An order of the Chief Presidency Magistrate deciding a plea of autrefois acquit cannot possibly be binding on a High Court Judge sitting at Sessions. But I think it is clear that the Chief Presidency Magistrate did not decide the point at all; and neither did King, J. The accused were not even permitted to conclude their arguments on the subject. The Magistrate’s order shows that he took the view that he was directed to proceed with the ease and that being so it was useless to hear any arguments directed to preventing him doing so. His order was that the case should proceed. King J’s judgment amounts in my view to nothing more than an order declining to interfere with that course. A plea under Section 403, Criminal P.C. is a most important right given to an accused person and in England it is dealt with by a formal trial for which a jury is specially empanelled, although in Rex v Barran (1914) 2 KB 570, Ridly, J., sitting as a Judge of Assizes appears to have ruled out a plea of autrefois acquit without empanelling a jury. There is no procedure laid down, as I have said, in India and I respectfully agree with the course the learned trial Judge took in dealing with the plea himself, as I venture to think pleas of this nature are much more matters for a Judge than for a jury. It is necessary to point out that the learned trial Judge decided both the questions raised, viz. (1) that the plea was not available to the accused, but (2) if it was, that it was bad on the merits. It was at one time faintly argued before us that the point has been dealt with by Madhavan Nair and Burn, JJ. How a plea of autrefois acquit could be decided on an appeal against an acquittal has not been pointed out. My view is that until the learned Chief Justice decided it, the plea of autrefois acquit had never been decided on the merits. The appellate Court did not decide it; the Magistrate refused to decide it; and King, J’s. order amounts to nothing more than this, namely, that the case should proceed. It was an order passed in revision, a discretionary order, indicating that he saw no reason to exercise his discretionary powers of interference. I find it impossible to suppose that the learned Judge intended to decide summarily so important a plea as is raised under Section 403, Criminal P.C. Nor do I accept the learned Crown Prosecutor’s suggestion that a plea of autrefois acquit can be “constructively decided.”

21. The next objection by the Crown Prosecutor was that the Chief Justice did not decide the question of entrustment holding himself bound by the decision of Madhavan Nair and Burn, JJ. There is nothing in Clause 25, Letters Patent, to show that he must decide the point; but when a learned Judge indicates that a decision is binding upon him I think it is clear that he is following the decision of the Bench and so deciding the point. Then it is argued that neither of the points arose in the course of the trial. According to Wallis, J., sitting as a member of the Full Bench who decided the case of Narayanaswami Naidu v. Emperor (1909) 32 Mad 220, at p. 234, a trial begins when the accused is charged. See also R. v. Brown (1890) 35 Mad 701 at p. 703. Both the objections here were taken after the accused was charged. But it is in any case quite clear from the shorthand note that the ‘entrustment’ point was also taken at the close of the case for the Crown. It is argued that the learned trial Judge could not reserve a point which he could not decide. I do not know what point a Judge cannot decide. If it is at large, he can decide it; if there is an authority binding on him, he can decide it according to that authority.

22. The words of Clause 25, Letters Patent, seem to me to give a most important and unfettered right of reservation of points of law at Sessions and in view of the fact that until 1923 at least there was no right of appeal to anybody from a conviction at Sessions: Section 449, Criminal P.C. I should expect that this most important right, if it was to be in any way restricted, would be done in the clearest possible terms. The alteration affecting the words “there shall be no appeal” in Clause 25, Letters Patent, is made quite plain by the words in Section 449, Criminal P.C. specifically referring to the Letters Patent. Under the rules of this High Court a reference under Clause 25, Letters Patent, is to a Full Bench. Had the learned trial Judge refused the reference and left accused 1 to any rights of appeal which he possessed, this point of entrustment must necessarily have-come, under the wording of the Code, to a Bench of two Judges. The learned trial Judge has informed us, although it is clear from the shorthand note, that his reference is made under Clause 25, Letters Patent, and not under Section 434, Criminal P.C.

23. The learned Crown Prosecutor argued that this was a reference under Section 434, Criminal P.C. and relied on Section 430, Criminal P.C., which reads as follows: “Judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chap. 32.” Section 417 refers to the Local Government’s right to appeal against any order of acquittal passed by any Court other than a High Court. Chap. 32 deals with reference and revision and includes Section 434. But, as I have already stated, it is clear that this is a reference under Clause 25, Letters Patent. Mr. Venkatarama Sastri has rightly pointed out that there is no rule of res judicata in criminal matters except when proceedings end in an acquittal or conviction.

24. In so far as the history of litigation such as this exists it is impossible to obtain any assistance from English procedure where such a state of affairs would be impossible. There is no record as far; as can be seen of any precedent even here of a matter coming for trial before a Judge of this High Court in which a Bench had heard arguments on the very points arising before him in the same matter. It must be remembered that the arguments of the accused before Madhavan Nair and Burn, JJ., were raised in resistance to an appeal against an acquittal. If he had not raised certain points before those learned Judges, can it be doubted that he would have had the right to ask the learned trial Judge to refer them to the Full Bench ? The learned Judge who admitted the Government’s appeal against the acquittal was entitled had he thought fit to post the matter before a single Judge and I presume that the Crown Prosecutor’s argument, if right, could have been logically applied to the decision of a single Judge. It seems therefore that by the happening of an appeal against an acquittal an accused person may put himself accidentally in the position of losing his important rights under the Letters Patent. Personally I should require the clearest possible authority for such a proposition. As observed by Ramesam, J., when delivering the judgment of the Full Bench in Dhanaraju v. Motilal Daga 1929 52 Mad 563, at p. 577:

One would have thought that an attempt by the Indian Legislature to altar or amend the provisions of the Letters Patent would have been made in express and unambiguous terms and not left to be inferred by implication.

25. The judgment of Madhavan Nair and Burn, JJ., was, as I have pointed out, that the acquittal under Section 406 by the Magistrate should be set aside and that the trial should proceed. But these things have been done. Nothing that is decided by us can in any way affect their order which has worked itself out, for that order was confined purely to the proceedings before the Magistrate. It is in this view unnecessary to consider the decision of the Full Bench reported in Rathnavelu v K.S. Iyer 1933 56 Mad 996 on which Mr. Venkatarama Sastriar relies. For the above reasons I am against the preliminary objections raised by the Crown Prosecutor. It is convenient first to consider the second point referred to us, namely, whether there could be a legal entrustment of the property having regard to the case put forward by the Crown. We have referred to the learned trial Judge who has told us that that means, on the allegations contained in the complaint. I have already summarised the salient features of the complaint. Both the learned Crown Prosecutor and Mr. Venkatarama Sastriar have made considerable reference for the purposes of argument to the English Criminal Law and I think a comparison between certain offences under the English Law and under the Indian Penal Code is helpful. Section 378 of the Code deals with “theft” and makes inter alia a striking departure from the common law offence of larceny in that under the Code it is not necessary to prove that the accused intended to deprive the owner of the property in his goods; dishonest taking out of the owner’s possession is enough. The taking must however be against the will of the owner as in lareeny. But in India it is not necessary when the taking is facilitated by a trick, for example as in the case of the well-known confidence trick, to invoke the doctrine of no real consent accompanying the handing over of the property so as to make it “theft.”

26. It is not eo nomine an offence in England to obtain possession of property by false pretences; but the doctrine of larceny by a trick covers such an obtaining. The language of Section 420, I.P.C., is all comprehensive. Dishonestly obtaining possession of property or property in property is covered by that section; that is to say, the English felony of larceny by a trick and the misdemeanour of obtaining goods or money by fake pretences. The section of course includes many other forms of cheating, but it is only relevant here to mention those two. On a general examination of the Code I think it is clear that in many cases it faithfully reproduces the criminal law of England, although, as in the case of larceny, it anticipated English legislation. For instance, a person who took a motor vehicle for a “joy ride” and abandoned it by the roadside could always be convicted under the Code of theft. It was not until the English Road Traffic Act of 1930, that (by Section 28) such a person was liable to more than a civil action, but dishonestly taking property out of the possession of any person without an intention to deprive him permanently of it was always theft in India since 1860. In my view all the essentials of the English offence of larceny by a trick are contained in Section 415 of the Code. Archbold, Edn. 28, at p. 533, describes “larceny by a trick” as:

Where a man having the animus furandi obtains in pursuance thereof possession of goods by some trick, the owner not intending to part with his entire property but only the temporary possession of it, this is such a taking as to constitute felony.

27. So the moment the confidence trickster has obtained the wallet containing bank notes from his victim, he can be arrested. Similarly, when by deceit a person is induced to hand the property over to the cheater, the offence of cheating has been accomplished. I mention these matters because, although a Court cannot import English Criminal law into the Indian Criminal law, it will naturally treat with greatest respect the views of English Courts who have dealt with the very matter with which it is concerned. In India offences are divided into compound-able and non-compoundable offences. It is especially important therefore to consider whether the legislature in India intended to confine one offence to any given set of facts. Section 405, I.P.C. defines the offence of criminal breach of trust. It reads:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property… commits ‘criminal breach of trust.

28. The word “entrusted” is there used. It is used, in Section 20(4-A), Larceny Act of 1916, which is reproduced from the Larceny Act of 1901. There has been in India until this case no considered discussion of the meaning of the word “entrust” although there are two decisions of this High Court which support the view put forward by the Crown. So far as the text-books are concerned I observe that the learned editors of Ratanlal’s Law of Crimes, Edn. 12, at p. 987, draw a clear distinction between cheating” and ‘ criminal breach of trust.” “Cheating,” say the editors, differs from “criminal breach of trust” in that the cheat takes possession of the property by deception. I think this sentence indicates the difference; and that there is a very real difference between the two offences appears also in other contests. The distinction between the various offences of theft, cheating, criminal misappropriation and criminal breach of trust are stated in a case reported in Narsinghdas Marwari v. Emperor 1928 106 IC 678, where the learned Judge apparently finds the distinctions free from difficulty. The proviso to Section 178, Contract Act, before it was amended, when dealing with the pledging of goods, etc., makes express provision against their being obtained from their lawful owner by an offence by fraud. In Mercantile Bank of India v. Central Bank of India 1935 69 MLJ 509, the question whether the railway receipts concerned had been “obtained” by fraud or, as argued by the appellants, had only been the subject of fraudulent conversion or criminal breach of trust, was closely examined.

29. The Crown Prosecutor argues that the word entrusted” may be given the most general meaning in the Indian Penal Code; it can mean mearly “handed over.” This argument is derived from an observation of Lord Haldane in Lake v. Simmons (1927) AC 487. In that case the House of Lords considered the meaning of the word “entrusted” as contained in an exception in a policy of insurance, and the question, arose as to whether a woman who had induced the plaintiff to let her have possession of jewellery by fraudulently representing that she was the wife of a certain person and that she wanted them for the purpose of showing them to her husband and to a purely fictitious person for their approval, had been “entrusted” with the jewellery within the meaning of exception. To-quote the headnote, the trial Judge-found that the woman’s conduct was fraudulent throughout, and held that she was guilty of larceny by a trick, and the Court of Appeal and the House of Lords accepted these conclusions. The House of Lords decided that the plaintiff had not “entrusted” the necklets to the woman and secondly that the woman was not a customer within the meaning of the clause. The important question so far as this ease is concerned was the discussion by the learned Law Lords of the terms “entrusted” and it was in that connexion Lord Haldane remarked as follows (p. 499):

“Entrusted” is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all.

30. In discussing the case Lord Haldane takes the view that in the same policy in the general clause the word “entrust” might be used in a general sense, and in that general sense the woman might have been entrusted with the necklets. The question arises, in what sense is the word used in S 405, I.P.C. Lord Sumner at p. 505 says:

The whole argument as to the meaning and effect of the word “entrusted” in the exceptions clause in the policy is at once vitally affected, if the expression “larceny by a trick” is used in anything but its strict, that is its legal, sense.

31. And speaking of the exception, at p. 508 he points out that “the language is the insurer’s own, and in an exception it must be read contra profarentes.” “If” he says ‘they intended no more than handed over,’ they should have said so, and the more plainly the better.” I should have thought that that observation was even more applicable to a criminal statute which has divided offences in categories as has the Penal Code and where the turning of a phrase or the meaning of a word may decide that an offence can or cannot be compounded. The rules of construction of a penal statute are shortly stated in Halsbury’s Laws of England, Vol. 27, p. 177, and Harries and Rachhpal Singh, JJ., in Girja Prasad Singh v. Emperor 1935 57 All 717 at p. 724 have only recently reiterated that:

It is a well established rule of construction that words in a statute creating a criminal offence must be :strictly construed.

32. Lord Sumner apparently differs from Lord Haldane in that (p. 508) he takes the view that “entrusting” has the same sense in the exception as in the general words. At p. 506 he points out that the manner of the trick is immaterial if the result is an absence of consent on the part of the person tricked. There occurs at p. 508 in Lord Sumner’s judgment this most important passage:

If there was a trick, which prevented any true consent arising, there could be no entrusting. The terms are mutually exclusive. In my opinion, the natural meaning of “entrusted” involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty.

33. Now it seems to me that when accused 2 was handed over the bonds for a minutely stipulated purpose and to return them after a given time, there was only, if there was a real and conscious volition, such a fiduciary relationship between Soora Lakshmiah Chetty and him. The Crown prosecutor agrees that we have to look at the state of mind of Soora Lakshmiah Chetty in this matter; and that his view is correct is borne out by Lord Sumner who says that the word clearly connotes a definite state of mind, and that is the mind of the assured. Now “handing over” does not connote a state of mind. In the leading case of Reg. v. Tolson (1889) 23 QBD 168 at p. 187, Stephen, J., states as follows:

The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition.

34. It would seem then that if, as Lord Sumner says, a trick, and deceit is a trick prevents any true consent arising, and there can thus be no entrustment, it follows that here the chief element in the offence under Section 406, I.P.C. must be missing. Lord Atkinson’s judgment contains so much that seems to me of the greatest assistance in this matter that I venture to quote that part of it in extenso. He said (pp. 511 and 512):

I think Miss Esme Ellison obtained the possession of the jewellery handed to her by the appellant by an operation which is appropriately described as larceny by a trick. That, when she got possession of it, she feloniously appropriated it, is not disputed. But the operation of entrusting the possession of the jewellery but not the property in it to her, which, prima facie, would mean handing it over to her to be devoted by her to some legitimate purpose, was treated rather as if it were something separable from, and unconnected with, the theft committed. It really was nothing of the kind. The theft was a composite thing. It consisted first of the false representation the woman made to the appellant, which he apparently believed, secondly the action he took, acting on that belief, and third, the felonious appropriation of the goods when obtained by her to her own use. The so-called entrusting of the jewels to her, furnished to her as she intended it should-the opportunity for and means of committing the theft. It does not appear to me possible to separate the handing over of the possession of the jewels from the falsehood which preceded it, and the felonious action which followed it. The entrusting of goods to a customer mentioned in the exception cannot mean the delivery in all good faith by a dealer of goods to a customer which that customer has planned to steal, and by that very delivery enabling the customer to effect her felonious purpose. The true character of the operation was larceny of the appellant’s goods by means of a trick, the trick being the false and fraudulent representation which this woman made to the appellant, by which the delivery to her of the possession of the jewels was obtained. The appellant had no suspicion, apparently, that he was about to be robbed through the medium of this trick. He acted perfectly honestly in giving over the possession of the jewellery. So does every one presumably, who suffers from larceny by a trick. It is the honest belief of the person, robbed in the false statements made which enables the intending thief to defraud him. That however does not alter the real character of the entire transaction.

35. It is right to say that in the Court of Appeal Atkin, L.J., (as he then was) took the same view in a minority judgment reported in Lake v. Simmons (1926) 2 KB 51, and McCardie, J., the trial Judge similarly, reported in Lake v. Simmons (1926) 1 KB 366. We therefore have before us the considered opinion of five law Lords, a learned Lord Justice, and a learned Judge of the King’s Bench Division, on the meaning of the word “entrusted” as applied to this exception in an insurance policy. But it seems to me that their view goes very much farther in so far as “entrusting” is concerned, because it amounts to this, that a person from whom goods are obtained by larceny by a trick does not entrust them to the person to whom they were handed. When the Code introduced the word into Section 405, it was, I presume, intended to have a meaning and I am more than content to accept the meaning put upon it by Lord Sumner. There was no true consent if there was a trick, says Lord Sumner. I venture to say that there can be no true consent if there was deceit. All the cases of larceny by a trick where possession only was handed over, might equally have been described as “larceny by deceit.” It seems to me to follow that there can be no consent by a person who is cheated, and so, to adopt Lord Sumner’s language, if there was deceit which presented any true consent arising, there could be no entrusting; the terms are mutually exclusive.

36. Is there any authority which prevents me adopting the above view ? Madhavan Nair and Burn, JJ., shortly noticed the case of Lake v. Simmons 1927 AC 487, but said that, read in the light of the facts of the case, the decision was not helpful in interpreting the word “entrusted” and agreed with Lord Haldane that the word might have different implications in different contexts. They seem to take the view that in its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all. In this case it seems to me that the accused had a limited proprietary right over the bonds, a very much greater proprietary right than a confidence trickster has who is handed a wallet containing Bank notes to be returned the following day as a token of his victim’s (supposed) confidence in him. Lord Haldane arrives at the same conclusion, that there was no entrustment, as did the other learned Law Lords, But an examination of his judgment shows, I think, that he largely relied on the fact that the woman was not a customer, as did Lord Blanesburgh who expressed his entire agreement with the judgment of Lord Sumner; and both Lord Sumner and Lord Atkinson divide the argument as to whether the woman was a customer and whether there was any real consent, very definitely. There are two decisions of the Madras High Court-in In re Venkatagurunatha Sastri 1923 45 MLJ 133 and In re Ramappa (1912) 22 MLJ 112-in which persons were convicted of criminal breach of trust under circumstances which show that the property was obtained by means of a trick; but in neither of those cases has the question before us ever really been discussed. They were both long before the decision in Lake v. Simmons 1927 AC 487, and it will be observed that the learned trial Judge expressly referred this matter to us having regard to the important case of Lake v. Simmons (1927) AC 487.

37. Beyond the fact of the conviction there does not appear to be very much to assist us in either of the above two cases. My learned brother Lakshmana Rao, J., has pointed out that under Section 410, I.P.C., property, the possession whereof has been transferred by theft, or by extortion, or by robbery, or by ?criminal breach of trust, is “stolen property,” which means that property obtained by cheating is not stolen property, as it unquestionably is in the case of larceny by a trick. This Section 410 is a difinitive section for the purpose of the offence of “receiving stolen property.” I do not see how that can affect the meaning of the word “entrust” which is a matter affecting the state of the mind of the truster. Because the property of a person cheated is for the purposes of another section treated in a certain way with regard to its future, it does not seem to me that the question of whether the victim of the cheating intended to pass the property or the possession or any right at all is as between him and the cheat in any way affected. It is surely the relations between those two that is material in this case. The English cases were also decided before the case of Lake v. Simmons 1927 AC 487. It seemed that on a first reading of Rex v. Morter 20 Or App Rep 53, some assistance might be forthcoming. It appears to have been argued in that case that there was no entrustment, though the facts might amount to larceny by a trick. The judgment of the Court does not deal with this aspect of it and the facts do not appear to fit in with larceny by a trick. The question there was whether the appellant had control of the property charged or not in circumstances whereby he became entrusted. The appellant who was the managing director of a company was given two signed blank cheques to buy respectively a typewriter and a motor car. He bought these articles but filled up each cheque with a figure greater than the purchase price and appropriated the surpluses. The Lord Chief Justice referred to the case of Rex v. Grubb (1915) 2 KB 683, which I have naturally read with great care. The following sentence occurs in that judgment:

If the accused has obtained or assumed the control of the property of another person under circumstances whereby he becomes entrusted… then he has committed an offence within the section. For the purpose of determining whether offences have been committed, the words “being entrusted” should not be read as being limited to the moment of the sending or delivering of the property by the owner, but may cover any subsequent period during which a person becomes entrusted with the property.

38. With regard to the last sentence, the basis on which this case proceeded, and I asked the question, was that the two accused were acting in collusion and it is not suggested that the entrusting, if there was one, was at any time other than when the bonds were handed over by Soora Lakshmiah Chetty. The Court does not deal with the circumstances under which a man can become entrusted i.e., what facts constitute an entrustment. In Rex v. Grubb (1915) 2 KB 683 the money was handed over to a company by the prosecutor, but in fact came into the pockets of the accused, and it was held that the entrusting could be said to be to the accused himself. There was no question there of a fraudulent obtaining, and the decision seems to be that where the money is entrusted to one person and goes into the possession of another, it is possible on an examination of the circumstances to hold that it was also an entrustment to him. Apart from the above two Madras cases there does not seem to be any example of a clear-out case of, in India, cheating, and in England larceny by a trick, in which there has been any conviction on the basis of a fraudulent breach of trust or an offence under Section 20(4-A) Larceny Act. On the wording of the Code it has been argued that the words “in any manner” are important. I think that Mr. Venkatarama Sastri’s answer that because goods may be “entrusted” “in any manner” that does not mean that they need not be “entrusted” at all, is a sufficient answer. Again stress is laid on the words “dominion over property.” But there is to be an “entrustment” of the dominion over property equally as of property.

39. The point referred is very difficult and obviously of very great importance. I am saying that advisedly because the legislature has thought fit to allow persons to compound serious offences having the effect of acquittal, and it is therefore most necessary to examine with precision the exact set of facts which constitute a compoundable and a non-compoundable offence. I think that alone is a sufficient reason for saying that the word “entrust” must be strictly construed. In an immense number of cases a cheat disposes of, that is to say misappropriates, the property he obtained, I do not think it occurred to anybody before that a second prosecution, i.e., after a composition or acquittal or conviction can be launched against him for that reason. Lord Atkinson in Lake v. Simmons (1927) AC 487 has dealt so comprehensively with that in the passage above quoted that I need not say more. In view of the above I need only notice another argument of Mr. Venkatarama Sastri, which was that as the bonds were endorsed over to the accused for the purpose of being endorsed to the Bank, (because the answers in evidence show that that was what was in the complainant’s mind), there could be no entrustment. He relied on three oases which he cited; R. v. Holchester (1864) 10 Cox CC 224, Rex v. Coscer (1875)13 Cox CC 187 and Queen v. Oxenham, (1875) 13 Cox CC 349; and he argued that the question of divesting the title of the owner does not turn on the intention of the transferor. I do not think it is in the least clear that it was in the mind of the complainant that these bonds were ever to be endorsed over to the Bank. Section 405, I.P.C. shows that the “entrustment” (assuming an “entrustment”) can be in the widest possible terms, and I think that there was a clear arrangement that these bonds should be kept for a limited period and returned.

40. All the decisions in the above cases were before the legislation now represented by Section 20(4-A), Larceny Act of 1916. I am against Mr. Venkatarama Sastri on this point. I think the answer to the learned trial Judge’s second question is in the negative. In view of the above answer the first question does not seem to me to arise now; but having been referred, I will endeavour to answer it. I do so of course on the assumption that my answer to the second question should have been in the affirmative, namely, that there was a legal entrustment. In approaching the first question referred it is necessary to bear in mind the peculiar position, that I must regard a man who had never been tried at all in exactly the same position as one who after full hearing had been tried and acquitted by a jury. The Crown Prosecutor did, it is true, argue that as there had been no first trial there could be no second trial under Section 403, Criminal P.C., the words of which are:

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall…not be liable to be tried again….

41. But Section 345 of the Code which deals with the compounding of offences states that a composition of an offence shall have the effect of an acquittal of the accused with whom the offence has been compounded. If authority for the pro-position that a composition has the same-effect of an acquittal is required, it is to be found in the case reported in In re Dudekula Lal Sahib 1918 40 Mad 976, where Wallis, J. considers the question and expressly holds that this statutory acquittal under Section 345, Criminal P.C. is intended to bar further proceedings. As the learned Judge points out, it is difficult to know what effect a composition can have if it does not bar a subsequent prosecution. It must be further taken that the evidence which has been before the Court, is the evidence contained in the complaint, I think it is clear that evidence to be called before the learned trial Judge under Section 406 was precisely the same as that which would have been called on a trial under Section 420, I.P.C. The importance of this seems to be that the acquittal must be taken to have been on the same facts; and a part of those facts, and a very important part, that proves the guilt of the accused, was the sale of the bonds. Section 403, Criminal P.C., says that:

A person who has once been tried…and convicted or acquitted…shall…not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made” against him might have been made under, Section 236, or for which he might have been convicted. under Section 237.

42. Section 236 states that if a single act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences. The illustration is that where an accused does an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating, he may be charged with all the four jointly or in the alternative. It is only when there is a doubt under Section 236 that Section 237 arises. It has been held in Nga Po Kyone v. Emperor 1933 Rang 236 11 Rang 354, that the doubt in Section 236 may be both either with regard to the law or with regard to the facts. Had there been no composition in this case, it seems to me it would have been competent for the learned trial Judge, having regard to what I suggest is a definite doubt about the law in view of the decision in Lake v. Simmons 1927 AC 487 to have directed the jury that if they have accepted the facts they could convict the accused of cheating. The Crown relies on Section 403(2) read with Section 235(1), Criminal P.C. The latter Section reads:

If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

43. The illustrations to Sub-section (1) seem to suggest that the various offences, although intermingled, are complete in themselves. Illustration (a) is: A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. Illustration (b) is: Where a man commits house-breaking by day with intent to commit adultery and in the house entered commits adultery. The evidence in each case seems to be separable. I confess to finding this point difficult of solution. If the second offence alleged was criminal misappropriation under Section 403, I personally should be much more inclined to accept the argument advanced by the Crown. One naturally turns to the authorities for the assistance. The Judicial Committee in Begu v. Emperor. 1925 52 I A 191, decided that on a charge of murder when the evidence established against three of the accused that they had assisted to remove the body knowing that a murder had been committed, they could without a further charge be convicted under Section 201, I.P.C. read with Section 237, Criminal P.C. The evidence in that case seems to have been all comprehensive on both the offences. In Manhari Chowdhuri v. Emperor 1918 45 Cal 727, the question arose as to whether an acquittal under Sections 380 and 411, I.P.C. charged in the alternative, bars a subsequent trial for an offence under Section 54-A, Calcutta Police Act. The judgment of the Bench (at p. 731), points out:

The present proceedings relate to the same act or series of acts to which the previous trial related, and it appears to us that before that trial it might have been said, in the terms of Section 236 that it was doubtful whether the facts which could be proved would constitute theft, or receiving stolen property or an offence under Section 54-A, Calcutta Police Act….It seems to us that the petitioner in the present case is about to be tried a second time on the same facts for an offence cognate to, or involved in, the offences with which he was previously charged. It is not suggested that if the previous conviction and sentence had been upheld by this Court, the petitioner could now be punished a second time under Section 54-A.

44. That seems to me a valuable test. Let it be assumed that the accused had been formally tried and convicted or acquitted of cheating. On the general principle that a man should not be tried twice for the same offence, it would surely have been to say the least, surprising that at the next Sessions he could have been charged with criminal breach of trust. Mr. T.R. Venkatarama Sastri relies also on Emperor v. Jhabbar Mull 1923 49 Cal 924, in which Sanderson, C.J. takes a broad view of the principle of autrefois acquit. In that case the accused was tried and acquitted under Section 408, I.P.C. for criminal breach of trust of three sums of money alleged to have been dishonestly misappropriated on three dates. It was part of the prosecution case at the trial that he had made three false entries to conceal the acts of misappropriation. The learned Judge (p. 927) says:

If he were so tried, in my judgment, it would in effect amount to trying him again for the same offences as those; upon which he has already been tried and acquitted by the jury, although the charges now before the Court are now framed in a different manner.

45. It should be noted that in that case it was apparently a prominent part of the prosecution case at the trial that three false entries had been made. The; principle of autrefois acquit seems to have been liberally applied in this cases and Sanderson, C.J. expressly confined his decision to the facts before him. An examination of the cases shows that for the application of the principle it is necessary to examine the particular facts closely and the Reports do not always set them out. I think Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, wherein Sundaram Ayyar and Ayling, JJ. deal with an interesting case shows how the principle is applied in Madras. The accused was tried and convicted under Section 211, I.P.C. that is, making a false charge with intent to injure. The conviction was quashed on the ground that the accused had not committed an offence under that section but under Section 182 of the Code (giving false information to a public servant) for which no sanction had been granted. The complainant had thereupon obtained sanction to prosecution and was met by a plea in bar. The Bench held that the prosecution was barred by Section 403, Criminal P.C. At p. 312 the learned Judges say:

Section 235(1) seems to us to be inapplicable when the accused is sought to be charged with another offence on the identical facts on which he was charged before with one offence.

46. In Queen Empress v. Erram Reddi (1885) 8 Mad 296, Brandt, J., held that when an accused was first charged with committing mischief by cutting certain branches and acquitted, he could not be charged with theft on the same facts. However he thought that the imputed offences of mischief and theft were not distinct offences, nor was there a series of acts but one act or transaction only, the cutting of the tree and the removal of the branches cut. It seems to me that the cutting of the tree constituted mischief without introducing evidence of the removal of the branches. What seems to have been in the learned Judge’s mind was very much what has been stated, as above set out, by the Bench in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, namely, that when the acts are identical to prove one offence a man cannot afterwards be charged on precisely the same facts with another. The most recent decision of the Madras High Court is that reported in In re Janakiramraju 1914 Mad 311 57 Mad 554, wherein it was held that an acquittal under Section 397, I.P.C. was a bar to a prosecution under Section 307. The ratio decidendi in that case however was that Section 397 combined several offences including that under Section 307. The Crown have relied on the case of Rex v Barran (1914) 2 KB 570. In that case Lord Beading, C.J., in giving judgment refers to a statement of the law by Hawkins, J., as follows:

It is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts. The offences are practically the same, though not their legal operation.

47. Lord Beading says:

It is quite plain that the learned Judge did not intend to lay down, and did not lay down, as a general principle of law, that a man cannot be placed twice in jeopardy upon the same facts if the offences are different.

48. But Section 403 of the Code shows that it may be that Hawkin J’s judgment would have been correct in India. It might well be that the evidence might be doubtful to establish the felony referred to in that case, in which case in India the accused could have been convicted of the misdemeanour under Section 236 read with Section 237. Generally, Section 403 is very much wider then the rule of autrefois acquit in England. In the case in Reg v. Dwarkanath Dutt (1867) 7 WR 15 at p. 18 it would be seen that under S 55, of the old Criminal P.C., there was a reference only to a ‘trial for the same offence.’ The Act now is far more explicit and detailed. As Lord Beading observes, the application of the principle laid down in Section 403 is difficult. As an example of this it will be seen (at p. 575) that the principles approved by Hawkins and Cave, JJ., in the case of Regina v. King (1897) 1 QB 214, while not being actually disproved, required to be explained and distinguished. The true test seems to be whether, as laid down in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, an accused person is sought to be tried on the identical facts a second time. I think that is the case here, for it is difficult to see how the facts in this case could be separated as they appear to be inextricably intermingled. The whole basis of the prosecution case is the “cheating.” In any case it was in my view doubtful which offence had been committed and therefore this case comes within Section 236. I must repeat that by reason of the artificial acquittal under Section 345, Criminal P.C., the result is anomalous, but it must be remembered that that composition was considered by a Bench of this High Court who did not think fit to interfere with it. I of course am concerned not with the merits but with abstract questions of law, and as to the first question proposed I think that the proper answer is in the affirmative. I agree with Cornish, J., that the result of these conclusions is that the conviction must be set aside.

Lakshmana Rao, J.

49. The accused was tried for and convicted at the fifth Criminal Sessions of the offence of criminal breach of trust under Section 406, I.P.C. in respect of certain Bombay Development Loan Bonds of the face value of Rupees 3,50,000 and the following questions have been reserved by the learned trial Judge for consideration of this Bench : (1) Whether the plea of autre fois acquit was good in law. (2) Whether there could be a legal entrustment of the property having regard to the case put forward by the Crown.

50. A preliminary objection was taken to the competency of the reservation, and the material facts are that on 14th May 1935, one Rao Bahadur Soora Lakshmiah Chetty, through his brother and authorised agent Gopalaswami Chetty, filed a complaint against the accused, the Senior partner of Messrs. Huson Tod & Co., a firm of stockbrokers, as the first accused and K. S. Narasimhachariar, one of the assistants of the firm as the second accused charging them with offences punishable under Sections 406 and 420, I.P.C. i.e., criminal breach of trust and cheating and dishonestly inducing delivery of the property. The case as set out in the complaint is that in or about November 1934 Messrs. Huson Tod & Co. purchased for and delivered to the complainant 6 1/2 % 1935 Bombay Development Loan Bonds of the value of Rs. 3,50,000 receiving full payment therefor, and that in or about the last week of March 1935, (i. e., 24th March 1935 as admitted during the trial) accused 2 represented to him that the firm had entered into a contract with the Imperial Bank of India to sell and deliver to them 6$ % 1935 Bombay Development Loan Bonds of the face value of Rs. 3,50,000, that the last day for supply for the same to the Bank was 27th March 1935, that their firm had purchased from Bombay the requisite quantity of paper but that the Imperial Bank had returned the same owing to irregular endorsement, that the bonds had been sent to Bombay for rectification, that pending receipt of the same from Bombay the complainant might oblige them temporarily by giving them his bonds to satisfy the Imperial Bank, as the accounts of the Bank for the official year had to be closed, and that as soon as the bonds purchased were received back from Bombay with the endorsement rectified the complainant’s bonds would be returned to him.

51. The complainant stated that he would consider the matter if the bonds were not received from Bombay before the due date, and accused 2 renewed his request on 27th March 1935 saying that as the bonds had not arrived the complainant should oblige the firm by giving his bonds temporarily for a few days and assured him that they hoped to receive the bonds sent for rectification by 30th March 1935 and that the complainant’s bonds would be returned to him on 1st April 1935 positively. Believing these representations, and on the faith of the assurance that his bonds would be returned in any case on 1st April 1935, the complainant caused his bonds to be endorsed and delivered over to the firm through his brother and authorised agent, Gopalasami Chetty, and accused 2 passed a receipt on behalf of the firm. The bonds were not returned by 1st April 1935 and then the complainant telephoned to the firm on 2nd April 1935 accused 1 replied saying that he was writing to him about the matter that very day. This was followed by a letter from the firm signed by accused 1, that the relative bonds had not been received from Bombay duly rectified and that on receipt of the same, the complainant’s bonds would be forwarded to him. The bonds were not received and the complainant wrote to the firm on 17th April 1935 demanding immediate return of the bonds. Accused 1 replied on 18th April 1935 that the bonds had not arrived from Bombay and to avoid delay they should repurchase and deliver similar bonds by the end of the month if the originals were not got back before 23rd April 1935. The promise was not kept and accused 1 represented to the complainant on 29th April 1935 that his application for a loan to the Imperial Bank was not sanctioned, that he was not then able to purchase similar bonds as promised or pay their value in full, that the Bombay bonds had not been received, and promised that he would pay Rs. 1,00,000 on 30th April 1935, another sum of Rupees 10,000 within a fortnight or a month and the entire balance before 31st July 1935.

52. Accused 1 further assured the complainant that the financial position of his firm was quite sound and offered to give a letter of guarantee from accused 2. Believing these statements the complainant yielded to accused l’s request for time without any knowledge or suspicion that the accused would have mishandled or otherwise dishonestly dealt with the bonds or that any fraud had been played, and accused 1 sent Rs. 50,000 and a guarantee letter from accused 2. A further sum of Rs. 30,000 was received later and when pressed for the payment of its. 20,000 to make up the promised initial payment of Rs. 1,00,000, accused 1 denied responsibility for the transaction throwing the blame on accused 2 though he himself had been repeatedly taking time for payment of the same. This aroused the suspicion of the complainant and on enquiry it transpired that the story of any bonds being sent to Bombay for rectification was a myth and that after obtaining from the complainant his bonds on false representations and promise to return them in specie the firm sold them away to third parties and misappropriated the sale proceeds. Summons was issued to the accused under Sections 406 and 420, I.P.C. and an application signed by the Counsel for the complainant and the accused was filed on 2nd July 1935 that the facts alleged would if proved amount to an offence under Section 420, I.P.C. which is compoundable with the permission of the Court, that the Court, may be pleased to permit the case to be compounded as against accused 1 and that on such permission being granted the complain -ant would report the case compounded against accused 1 and will not press the ease against accused 2 without prejudice to the complainant’s civil rights against both the accused. The agent of the complainant was examined and he stated that under instructions from the complainant he wished to compound the case and offer no evidence The offence under Section 406, I.P.C. being not compoundable it was elicited from him that the permission to compound was requested as the offence was one under Section 420 as stated in the petition signed by the Counsels for all parties and the Magistrate passed an order in these terms : “Permission granted, case reported compounded. Accused are acquitted.”

53. The order is silent about the offence under Section 406, I.P.C., though on the application for permission to compound there is a note by the Magistrate that he too was of opinion that the offence disclosed is only under Section 420, I.P.C., and the Crown preferred an appeal against acquittal on the ground that the complaint disclosed offences under Sections 406, and 420, I.P.C. of which the former is not compoundable and the further ground that in the circumstances of the case permission should not have been granted to compound the offence under Section 420, I.P.C. The appeal was heard by Madhavan Nair and Burn, JJ., and by their judgment reported in Emperor v. J. Mclver 1936 69 MLJ 681, they confirmed the acquittal under Section 420, I.P.C. but held that the complaint disclosed also an offence under Section 406, I.P.C. and ordered a retrial of the accused for that offence.

54. The Magistrate issued process for 11th October 1935 and applications were tiled on behalf of the accused that their acquittal under Section 420, I.P.C., is a bar to their trial under Section 406, I.P.C., and under Section 403, Criminal P.C. Arguments were heard and without deciding the question the Magistrate intimated that the evidence will be taken. An application was filed on behalf of the accused, protesting against the reception of evidence, but the Magistrate observed that in view of the order of the High Court he felt bound to proceed with the trial and an application was filed on 12th November 1935 requesting the Magistrate to refer the case to the High Court under Section 432, Criminal P.C. The Magistrate declined to make a reference and passed the following order: In this case the High Court set aside my alleged order of acquittal for an offence under Section 406, I.P.C. and directed me to restore the complaint and dispose of the case according to law in Cri. App. No. 344/35 (1). The accused raise the plea of autre fois acquit and state Section 403(1), Criminal P.C. operates as a bar to the trial of the accused on the same facts when they have been acquitted for an offence under Section 420, I.P.C., and ask me in any event to refer the matter to the High Court under Section 432, Criminal P.C. The learned Crown Prosecutor states that when the appeal against acquittal was argued Mr. Grant raised the point and brought it to the notice of their Lordships that on the facts disclosed the only offence that can be made out was under Section 420, I.P.C., and not under Section 406, I.P.C. This contention was negatived and their Lordships held that on the facts disclosed two offences were made out both under Sections 406 and 420, I.P.C. When there is a specific direction by the High Court to ?restore the complaint for an offence tinder Section 406, I.P.C., it is not open to me to challenge the correctness of that order or to go behind it. My duties are to carry it out. In the light of my view I do not think any useful purpose will be served by making a reference under Section 432, Criminal P.C., to the High Court. It is open to the accused to move the High Court, raise the plea there and obtain a stay if they are so advised. Meanwhile the case against the accused for an offence under Section 406, I.P.C., will proceed day to day from tomorrow onwards. Petitions are dismissed.”

55. The accused moved the High Court to revise the order and stay further proceedings on among other grounds that the Magistrate had no jurisdiction to proceed with the case before deciding the objection and after hearing the Crown Prosecutor King, J., passed an order in these terms: “I see no ground for revision. The petitions are dismissed.” The accused were ultimately committed for trial by the High Court and from the order of reservation it appears that be-fore the Sessions trial began a point was ‘taken on behalf of the accused that by (reason of the compounding of the offence of cheating under Section 420, I.P.C., in respect of the same transaction and the consequent acquittal of the accused, the trial of the accused for an offence of criminal breach of trust was barred under Section 403, Criminal P.C. The Crown Prosecutor took a preliminary objection that in view of its disallowance by the Magistrate and the final order of King, J., upholding that order, the plea of the autre-fois acquit was not open and the objection was upheld. The learned trial Judge also added a further reason that Madhavan Nair and Burn, JJ., may have dealt with the plea by implication and recorded his opinion that the plea was bad in law having regard to the principles laid down by Lord Reading, L. C.J., in Rex v Barran (1914) 2 KB 570, in the Court of Criminal Appeal. The plea was accordingly overruled and a further legal point was raised that on the facts of the case there could not be an entrustment in law and the charge of criminal breach of trust would not lie. The trial Judge felt unable to allow the point to be argued in view of the decision of Madhavan Nair and Burn, JJ., which he considered to be binding on him, and the plea of the accused was recorded. This question was raised again during the trial and while disallowing it on the ground that the decision of Madhavan Nair and Burn, JJ., had concluded the matter, the learned Judge intimated that should it become necessary, the point would be reserved under the Letters Patent. The jury was told that the facts, if true would bring the case within Section 406, I.P.C., and by a majority of 8 to 1 the jury found the accused guilty of criminal breach of trust. The trial Judge was subsequently requested to reserve the question for the consideration of the Bench and the request was granted.

56. The plea of the autre fois acquit was not considered by the Magistrate on the ground that the order of the High Court precluded him from going into the question and the order of King, J., dismissing the petition of the accused to revise the order of the Magistrate cannot be treated as a decision on the plea of autre fois acquit. There was therefore no prior decision of the High Court on the point and the plea was available. It was raised before the trial Judge after the accused was asked to plead to the charge, and as observed in Venkatachennaya v. Emperor 1920 38 MLJ 370 at p. 384, “trial” may reasonably be taken to be every proceeding which is not an enquiry. The proceedings before the! trial Judge was not an enquiry nor can an accused be discharged after being asked to plead to the charge. He can only be convicted or acquitted thereafter and as pointed out in Narayanaswami Naidu v. Emperor (1909) 32 Mad 220 at P. 234, not to mention R. v. Brown (1890) 35 Mad 701, ‘trial’ begins when the accused is charged and called on to answer.

57. The contention of the Crown that the trial had not commenced cannot therefore be accepted, and even otherwise the plea, if available and good, would under the Indian Law, vitiate the entire proceedings, The question need only arise On the trial, to be reserved: and it is not even incumbent that the trial Judge should decide the question. It was therefore open to the trial Court to reserve the point and there is no substance in the contention that the availability of the plea has not been reserved. The objection to the reservation of the first question is therefore untenable and in view of a doubt raised during the arguments it was ascertained from the learned trial Judge that the reservation was under Clause 25 of the Letters Patent and not Section 434, Criminal P.C. It is therefore unnecessary to consider the contention of the accused that Section 434, Criminal P.C., which is contained in Ch. 32 of the Code, introduces an exception to Section 430 of the Code which confers finality on judgments and orders passed by appellate Courts, except in the eases provided for in Section 417 and Ch. 32, nor would it in my opinion make any difference. The finality of the decision of the High Court in the exercise of its appellate and revisional criminal jurisdiction rests on the absence of any provision for any appeal or revision against such decision and not Section 430, Criminal P.C., nor is Section 417 applicable to orders of acquittal by the High Court. Ch. 32 deals with references and revisions generally and the power of reservation under Section 434 is also restricted to questions which arise in the course of the trial and the determination of which would affect the event of the trial.

58. The section does not confer any power to review or alter prior decision of the High Court in the same case in the exercise of its appellate or revisional criminal jurisdiction and it is well settled that apart from the express provisions of the Letters Patent or the Code of Criminal Procedure, the High Court has no power of review in criminal matters. This aspect was not raised or considered in Rathnavelu v K. S. Iyer 1933 56 Mad. 996, wherein the order of the High Court at an earlier stage of the case was upset at a later stage; but as urged on behalf of the accused, it cannot strictly be said that this Bench has been constituted to review or alter the decision of the High Court in the appeal against acquittal. Clause 25 of the Letters Patent confers an unfettered discretion on the trial Court to reserve for the opinion of the High Court any point of law arising at the trial. No doubt this leads to an anomaly, but no appeal or revision lies against the order of the trial Judge, and the question of entrustment was raised during the trial. It was for the trial Judge to consider whether, there being a prior decision of the High Court at an earlier stage of the case, the question should be reserved, and on this ground, though not without considerable hesitation, I would overrule the objection to the reservation of the second question.

59. The second question was argued first and the Crown case, as alleged in the complaint and explained in the evidence, is that, believing the false representation of the accused that the bonds were required for being kept or lodged with the Imperial Bank of India temporarily till the receipt of their bonds after rectification of indorsements from Bombay, and on the faith of the assurance that they will be returned in specie on or before 1st April 1935, the complainant caused his bonds to be endorsed and delivered to the firm through his agent for the express purpose of being so kept or lodged with the Imperial Bank, and that having obtained the bonds by cheating, the accused sold them the same day and misappropriated the proceeds. The bonds could under Section 46, Negotiable Instruments Act, be indorsed and delivered conditionally or for a special purpose only, and not for the purpose of transferring absolutely the property therein, and the prosecution case is that they were so obtained by cheating as defined in the Indian Penal Code. That independently of any further act the offence would be obtaining property or dominion over property by cheating was not seriously disputed, and the real question is whether or not when property or dominion over property is obtained by cheating there can be criminal breach of trust in respect of that property. Theft as defined in the Indian Penal Code is a dishonest taking or moving of property out of the possession of any person without his consent, and it differs materially from the offence known as larceny in the English Law. Property obtained by cheating is not stolen property under the Indian Law, vide Section 410, I.P.C. and the offence of criminal breach of trust is defined in Section 405,1. P.C., as follows:

Whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he had made, touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.

60. The terms of the section are very wide and entrustment may be brought about in any manner. It may be of mere dominion over property and the word ‘entrustment’ has not been defined anywhere. It is not a term of law and in the ordinary sense it includes a case of misplaced confidence as well as a case of well justified confidence. That there can be an entrustment obtained by false pretences, as distinguished from an obtaining by larceny, by trick or theft, is recognized under the English law, and the distinction between the two is emphasised by the Law Lords in Lake v. Simmons 1927 AC 487, not to mention the admission of Jowitt, K. C., at p. 489. In larceny by trick or theft, the owner is tricked into making a delivery and intends to deliver only the physical possession, whereas in entrustment obtained by false pretences there is an intention to transfer some proprietary right. The former is a case of unreal consent extorted by trick, while the latter is one of real consent obtained by deceit. The dividing line substantial though narrow, and in the latter it is the state of mind of the person who entrusts or reposes confidence that is material. The case on hand falls under the latter category and the offence would not be larceny by trick or theft even under the English law. It would be ‘false pretences’ as defined in S 32, of the Larceny Act of 1916, and it is clear from Section 20, of that Act, that there can be entrustment in law to a person who is not a trustee in the strict sense of the term. That there can be entrustment in law when real consent is obtained by deceit is recognised in the speeches of Lords Sumner and Atkinson, in Lake v. Simmons 1927 AC 487; and the decision of the House of Lords does not lay down anything more than that obtaining articles by a trick by a person with whom the owner did not intend to deal cannot amount to an entrustment as in that case there could be no real consent by the owner. Esme Ellison, was treated by Lake, as a mere intermediary and there was no contract between her and the company. She never proposed to be the buyer herself, nor was she authorised to negotiate or to conclude a bargain or to pass property to the proposed purchasers. She never acquired, nor was meant to acquire, any property from the owner, and I fail to see how that case would support the contention that there can be no entrustment in law when the property or dominion over-property is obtained by deceit.

61. There was in this case no mistake as to the identity of the person, and there was real consent though it was obtained by deceit. The delivery was not of mere physical possession and there was an intention to vest dominion over the bonds to enable the accused to keep or lodge them with the Imperial Bank, till receipt of their bonds after rectification of indorsements from Bombay. There was thus an entrustment of the bonds for a special purpose, and, as pointed out in In re Ramappa (1912) 22 MLJ 122 and In re Venkatagurunatha Sastri 1923 45 MLJ 133, it is immaterial how the accused became entrusted with property or dominion over property. He would be guilty under Section 420 I.P.C., of obtaining property by cheating as soon as delivery is obtained and subsequent misappropriation will bring him under Section 406, I.P.C., as well. There is therefore no force in the contention that on the case put forward by the Crown there can be no legal entrustment of the property and I would reject it. The plea of autrefois acquit remains to be considered, and the question is whether the acquittal of the accused under Section 345, Criminal P.C., bars a trial for the offence of criminal breach of trust. That the acquittal relied upon was an acquittal under Section 345, Criminal P.C., cannot make any difference vide In re Peddaya (1911) 34 Mad 253 and In re Dudekula Lal Sahib 1918 40 Mad 976, and the answer depends on the correct interpretation of Sections 235, 236, 237 and 403, Criminal P.C.; Section 235, provides as follows:

1. If in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. 2, If the acts alleged constitute an offence falling within two or more-separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be-charged with and tried at one trial for each of such offences. 3. If several acts of which one or more than one would be by itself or themselves-constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one. trial for the offence constituted by such acts-when combined and for any offence constituted by one or more of: such acts. 4. Nothing contained in this section shall affect the Indian Penal Code, Section 71.

62. Section 236 enacts that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some of the said offences, while Section 237, provides that if in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that ho committed a different offence for which he might have been charged under the provisions of that flection, he may be convicted of the offence which he is shown to have committed although he was not charged with it. Section 403, so far as is material, provides:

I.A person who has once been tried for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237. 2. A person convicted or acquitted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).

63. The plea would not be valid if the case is not covered by Section 236, and falls under Section 235, Sub-section (1) and it cannot be denied that the acts alleged against the accused, viz. obtaining delivery of the bonds by deceit and subsequent conversion, are so connected together as to form the same transaction. More offences than one were committed, viz. obtaining delivery of property by cheating under Section 420, L. P.C., and criminal breach of trust under Section 406. I.P.C., and, as stressed by the Crown Prosecutor, acts constituting the offence of obtaining property by cheating cannot by themselves constitute the offence of criminal breach of trust. The ingredients of the offences are different and so is the evidence requisite to establish them. There can be a breach of trust independently of cheating and the offences are distinct and separate. The offence under Section 420 is complete as soon as delivery is obtained by cheating, and without the further act of misappropriation there can be no breach of trust. Sub-sections 2 and 3 of Section 235, deal respectively with cases in which the same acts constitute an offence falling within two or more separate definitions of any law and cases of compound offences and its component minor offences, and Section 236 cannot be invoked unless the act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute. The facts alleged: in the complaint in this case, if proved, constitute two distinct offences and Sections 236 and 237 would not apply. That the complaint sets out the series of acts forming the transaction is not material nor has the nature of the evidence adduced any bearing, vide Subbiah Kone v. Kandaswami Kone 1932 55 Mad 788. What is barred is a second trial on the same facts for any other offence for which a different charge from the one made against the accused might have been made under Section 236, and as urged by the Crown the accused is not sought to be tried on the very facts which constitute the offence under Section 420, I.P.C. The plea of autrefois acquit cannot therefore be upheld and the decisions relied upon are not applicable.

64. There was but one act in Queen Empress v. Erram Reddi (1885) 8 Mad 296, viz. the cutting and removal of the branch of a tree for which the accused could have been charged for theft or mischief or both, while in Ganapathi Bhattu v. Emperor (1913) 36 Mad 308, in which a false complaint was made by the accused to the police, it was doubtful whether the offence committed was under Section 211 or Section 182, I.P.C. So also in Begu v. Emperor 1925 6 Lab 226, where on the facts established against the particular accused it was doubtful whether they would be guilty of murder or causing disappearance of evidence of murder, and the offence for which the accused were sought to be tried in In re Janakiramraju 1914 Mad 311 57 Mad 554 was involved in the offence for which they were previously tried and acquitted. There is no doubt in this case either as to the facts or the offences committed, and, as pointed out in Sidh Nath v. Emperor 1929 57 Cal 17, the decision in Emperor v. Jhabbar Mull 1923 Emperor v. Jhabbar Mull 1923 49 Cal 924 would not fall under Section 403, Criminal P.C. I would therefore hold that the plea of autrefois acquit is not good in law. The conviction is therefore right and should in my opinion stand.

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BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1473 1981 SCR (3) 474
1981 SCC (3) 132 1981 SCALE (1)706
CITATOR INFO :
R 1983 SC 194 (51)
R 1987 SC 454 (10)
R 1987 SC1748 (18,19)
R 1987 SC2111 (12)
R 1988 SC 162 (20)
RF 1990 SC1480 (76)
ACT:
De facto doctrine-Nature and scope of-Appointment of District Judge declared void-Judgment rendered by him, whether becomes void.

Interpretation of Statutes-Abundans cautela nonnocet when applied

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 234 of 1976.

Appeal by special leave from the judgment and order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal Revision Case No. 816 of 1974 (Criminal Revision Petition No. 732 of 1974).

AND

Criminal Appeal Nos. 315 and 316 of 1976.

Appeals by special leave from the judgment and order dated the 12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos. 31 O & 311 of 1975.

P. Govindan Nair and A. Subba Rao for the Appellant in Crl. A. No. 234/76.

M. N. Phadke, and B. Kanta Rao for the Appellant in Crl. A. Nos.315 & 316 of 1976.

G. N. Rao for the Respondent in all the appeals.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J.

1. What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for consideration in these criminal appeals. The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be ‘a judgment by a judge who is not a judge is no judgment’ a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed What is to happen to sentences imposed Are convicted offenders to be set at liberty and to be tried again Are acquitted accused to be arrested and tried again Public Policy is clearly involved. And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. de facto doctrine is thus a doctrine of necessity and public policy.

2. Crl. A. No. 234 of 1976 arises out of a proceeding under Section 6A of the Essential Commodities Act, by which the District Revenue Officer West Godavari, Andhra Pradesh, ordered the confiscation of qs. 203.74 kgs. of paddy and qs. 302.25 kgs. of rice. The appellant, Gokaraju Rangaraju, preferred an appeal under Section 6C of the Essential Commodities Act to the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected. The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh. Criminal Appeal Nos. 315 and 315 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division’ The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur. The convicted accused preferred appeals to the High Court of Andhra Pradesh. By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II on the ground that their appointment was in violation of the provisions of Article 233 of the Constitution. Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside. The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they were not mere usurpers but had held office under lawful authority and therefore, the judgments rendered by them were valid and could not be questioned in collateral proceedings. The present appeals have been preferred by special leave granted by this Court. In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal.

3. Shri Govindan Nayar learned Counsel for the appellants in Crl. A. No. 234 of 1976 and Shri Phadke, learned Counsel for the appellants in Crl. Appeals Nos. 315 & 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges. It was urged that there was no need for them to question the appointment of Shri Anjappa or Shri Raman Raj Saxena as their appointment had already been quashed by the Supreme Court. It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy or necessity required that the judgments should not be set aside. No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused. It was also urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was not a collateral attack. It was submitted that a question of jurisdiction could be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of Article 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under Section 9 of the CrPC. It was argued that the de facto doctrine was not an absolute doctrine. It was subject to certain limitations. One such limitation was that imposed by Article 233 of the Constitution. A person appointed as a District Judge contrary to the provisions of Article 233 was no judge and his judgments were no judgments. It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges contrary to the provisions of Article 233 of the Constitution. It was also suggested that the Fundamental Right of the appellants under Article 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law.

4. We are unable to agree with the submissions of the learned Counsel for the appellants. The doctrine is now well established that ‘the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure’ (Pulin Behari V. King Emperor) . As one of us had occasion to point out earlier ‘the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine’ (vide Immedisetti Ram-krishnaiah Sons v. State of Andhra Pradesh and Anr. : AIR1976AP193

5. In Pulin Behari v. King Emperor, (Supra) Sir Ashutosh Mukerjee J. noticed that in England the de facto doctrine was recognised from the earliest times. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431. Sir Ashutosh Mookerjee noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges.

6. In Milward v. Thatcher [1787] 2 T.R. 81, Buller J. said :

The question whether the judges below be properly judges or not, can never be determined, it is sufficient if they be judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the judge de facto.

7. In Seaddling v. Lorant [1851] 3 HLC 418, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and not de jure. The Lord Chancellor observed as follows :

With regard to the competency of the vestry men, who were vestry men de facto, but not vestry men de jure, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.

8. Some interesting observations were made by the Court of Appeal in England in re James (An Insolvent) [1977] 2 W.L.R. 1 Though the learned Judges constituting the Court of Appeal differed on the principal question that arose before them namely whether ‘the High Court of Rhodesia’ was a British Court, there did not appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him. Lord Denning M. R., characteristically, said : ‘He sits in the seat of a judge. He wears the robes of a judge. He holds the office of a judge. May be he was not validly appointed. But, still, he holds the office. It is the office that matters, not the incumbent…so long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity. If they are erroneous they may be upset on appeal. But if not erroneous they should be upheld’. Lord Denning then proceeded to refer to the State of Connecticut v. Carroll decided by the Supreme Court of Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and Norton v. Shelby County decided by the United States Supreme Court. Observations made in the last case were extracted and they were :

Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions…. The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact.

9. Scarman LJ who differed from Lord Denning on the question whether the High Court of Rhodesia was a British Court appeared to approve the view of Lord Denning M. R. in regard to the de facto doctrine. He said :

He (Lord Denning) invokes the doctrine of recognition of the de facto judge, and the doctrine of implied mandate or necessity. I agree with much of the thinking that lies behind his judgment. I do think that in an appropriate case our courts will recognise the validity of judicial acts, even though they be the acts of a judge not lawfully appointed or derive their authority from an unlawful government. But it is a fallacy to conclude that, because in certain circumstances our Courts would recognise as valid the judicial acts of an unlawful court or a de facto judge, therefore, the Court thus recognised is a British Court.

10. The de facto doctrine has received judicial recognition in the United States of America also. In State v. Gardner (Cases on Constitutional Law by Mc. Gonvey and Howard Third Edition 102) the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Broadbury, J. said.

We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers.

11. In Norton v. Shelby County [1886] 118 US 425 : 30 Law Ed 178 , Field, J., observed as follows :

The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question.

12. In Cooley’s ‘Constitutional Limitations’, Eighth Edition, Volume II p. 1355, it is said,

An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.

No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.

13. In Black on judgments it is said:

A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed.

14. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows :

The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined.

15. In P. S. Menon v. State of Kerala and Ors. : AIR1970Ker165 a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine :

This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid.

16. In the judgment under appeal Kuppuswami and Muktadar, JJ observed :

Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date. Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity.

17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public a policy, to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge’s title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge’s appointment in an appeal against the judgment is, of course, such a collateral attack.

18. We do not agree with the submission of the learned Counsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the office should not be one traceable to the violation of a constitutional provision. The contravention of a constitutional provision may invalidate an appointment but we are not concerned with that. We are concerned with the effect of the invalidation upon the acts done by the judge whose appointment has been invalidated. The de facto doctrine saves such Acts. The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States. Article 71(2) of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall not be invalidated by reason of the election of a person as President or Vice President being declared void. So also Section 107(2) of the Representation of the People Act 1951 (Act 43 of 1951) provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions. The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Article 233 and Art 235 of the Constitution. The Twentieth Amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and Ors. : (1967)ILLJ412SC ., that appointments of District Judges made otherwise than in accordance with the provisions of Articles 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution. Shri Phadke, learned Counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan’s case (Supra) this Court held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the Twentieth Amendment of the Constitution was made. This is clear from the statement of objects and reasons appended to the Bill which was passed as Constitution (20th Amendment) Act. 1966. The statement said :

Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution…. As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of Writ Petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a stand-still. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States….

19. In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Section 9 Criminal Procedure Code and Article 21 of the Constitution. The judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who discharged the functions and duties of judges under colour of lawful authority. We are concerned with the office that the judges purported to hold. We are not concerned with the particular incumbents of the office. So long as the office was validly created, it matters not that the incumbent was not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders, of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the Constitution of the Court itself is under challenge. We are not concerned with such situation in the instant cases. We, therefore, find no force in any of the submissions of the learned Counsel.

20. Shri Govindan Nair attempted to argue that the confiscation was not justified on the merits. We find no reason to interfere with the concurrent findings of fact arrived at by the lower Courts. Shri Phadke requested us to widen the scope of the appeals and to permit him to canvas the correctness of the convictions and sentences also. We declined to do so. All the appeals are dismissed.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1436 of 2010

Absar Alam @ Afsar Alam ……Appellant
Versus
State of Bihar ……Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of the Constitution of India against the judgment and order dated 16.07.2009 of the Patna High Court in Death Reference No. 7 of 2008 with Criminal Appeal (DB) No.169 of 2008. On 18.01.2010, this Court issued notice in the Special Leave Petition confined to the question of sentence only and on 02.08.2010 after hearing learned counsel for the parties, granted leave. Hence, the only question that we have to decide in this appeal is whether the High Court was right in confirming the death sentence of the appellant imposed by the trial court.

2. For deciding this question, the relevant facts as have been found by the trial court are that in the midnight of 14/15.02.2007, the appellant killed his mother by cutting her neck and severing her head and thereafter fled from the house with the head of his mother leaving behind her body. The trial court, after convicting the appellant under Sections 302 and 201 of the Indian Penal Code (for short ‘IPC’), held that the appellant committed the murder of his mother in an extremely brutal, grotesque, diabolical and revolting manner and hence it is one of those rarest of the rare cases calling for a death sentence on the appellant. The High Court, while upholding the conviction, confirmed the death sentence relying on the decision of this Court in Machhi Singh and others v. State of Punjab [(1983) 3 SCC 470]. In the aforesaid case of Machhi Singh, this Court has inter alia held that the manner of commission of murder and the personality of the victim of murder have to be taken into consideration while making the choice of the sentence to be imposed for the offence under Section 302, IPC : life imprisonment or death sentence. The High Court has taken a view that considering the abhorrent, dastardly and diabolical nature of the crime committed by the appellant on none other than his mother, who had given birth to him, the penalty of death has been rightly awarded by the trial court.

3. At the hearing of this appeal, learned counsel for the appellant, relying on the decision of this Court in Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka [(2008) 13 SCC 767], submitted that even if it is a case of a son beheading his mother, this is not one of the rarest of rare cases in which the death penalty should have been imposed because the offence had been committed by the appellant in a fit of passion and not after pre-meditation.

4. Learned counsel for the State, on the other hand, submitted that considering the law laid down by this Court in Prajeet Kumar Singh v. State of Bihar [(2008) 4 SCC 434], Surja Ram v. State of Rajasthan [(1996) 6 SCC 271] and Atbir v. Government of NCT of Delhi 3 [(2010) 9 SCC 1], the imposition of death sentence on the appellant for the cruel act of beheading his mother was proper.

5. We find on reading the FIR lodged by the brother of the appellant on the morning of 15.02.2007 at 09:45 hours marked as Ext.2 that the appellant’s wife Sakerun Nisha had run away to her maternal house three or four days before the incident and the appellant had been accusing his mother to have been the cause of his wife running away from this house and out of anger and excitement the appellant severed the neck of his mother and fled with the head. The appellant was an illiterate rustic and was a cultivator residing in a village with virtually no control over his emotions and has over-reacted impulsively to the situation and has severed the neck of his mother. On these facts, the appellant is no doubt guilty of the offence under Section 302, IPC, and has to suffer the punishment of imprisonment for life normally awarded for the offence, but should not be condemned to death. We may cite a few authorities in support of this view.

6. In Lehna v. State of Haryana [(2002) 3 SCC 76], the facts were that there was a quarrel between the accused and other members of his family, namely, his father, his brother and sister-in-law, over a piece of land and in the assaults that followed the quarrel, the accused killed his mother, his brother and sister-inlaw. While upholding the conviction of the accused under Section 302, IPC, this Court held that the mental condition of the accused, which led to the assault, cannot be lost sight of and while such mental condition of the accused may not be relevant to judge culpability, it is certainly a factor while considering the question of sentence. This Court further held that the factual scenario gave impressions of impulsive act of the accused and not of planned assaults and in this peculiar background, death sentence would not be proper.

7. In Gyasuddin Khan alias Md. Gyasuddin Khan v. State of Bihar [(2003) 12 SCC 516], the facts were that in the morning hours of 09.04.1996, in the precincts of a police camp stationed near a village in Bihar, a policeman deployed in the police picket to contain the terrorist activities, unleashed terror by indulging in a firing spree, killing three of his colleagues instantaneously and this Court, relying on Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430], Lehna v. State of Haryana (supra) and Om Prakash v. State of Haryana [(1999) 3 SCC 19], held that the mental condition or state of mind of the accused is one of the factors that can be taken into account in considering the question of sentence and in the facts of the case, the killing of two other policemen without premeditation and without any motive whatsoever was an act done out of panic reaction and in a state of frenzy and it was not one of the rarest of rare cases where death sentence could be awarded.

8. For the aforesaid reasons, we convert the sentence of death to one of life imprisonment for the offence under Section 302, IPC, committed by the appellant and allow the appeal in part.

.……………………….J.
(A. K. Patnaik)
………………………..J.
(Swatanter Kumar)

New Delhi,
February 07, 2012.

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Counsel for the Parties: Shri Devendra Chouhan, learned counsel for the petitioner.

Shri R.S. Chhabra, learned Additional Advocate General along with Shri Mudit Maheshwari, learned counsel for the respondent / State.

Whether approved for reporting: Yes

Law laid: down The writ of habeas corpus is a great constitutional privilege and has been described as security of civil liberty. It provides a remedial procedure in case of illegal detention and in case, illegal detention is proved, the person, who has been detained, is entitled for liberty keeping in view Article 21 of the Constitution of India. He is not only entitled for liberty but is also entitled for compensation. The compensation can be awarded while exercising writ jurisdiction under Article 226 of the Constitution of India.

Significant paragraph numbers: 11 to 25

O R D E R
( Delivered in open Court on this 10th Day of February, 2020)

(S.C SHARMA)
J U D G E

(SHAILENDRA SHUKLA)
J U D G E

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Petition No.26923/2019
Kamlesh S/o Husan v/s The State of Madhya Pradesh & Others Indore, dated 10.02.2020

Per : S.C. Sharma, J:

Shri Devendra Chouhan, learned counsel for the petitioner.

Mr R.S. Chhabra, learned Additional Advocate General along with Shri Mudit Maheshwari, learned counsel for the respondent / State.

The petitioner before this Court, who is Kamlesh S/o Husan, has filed this present petition under article 226 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus.

02. The petitioner’s contention is that his father Husan S/o Ramsingh has been illegally detained by the State who is aged about 68 years. It has been further stated that the detainee is an illiterate tribal. He has been forcibly picked up from his house by the police, produced before the Magistrate and sent to Jail. The petitioner, who is again a tribal is an illiterate person and the moment his father was taken into custody by the police, rushed to the police station and he has informed that his father has been convicted in respect of an offence under Section 302 of the Indian Penal Code and has been sentenced in Sessions Trial No.41/76 for life imprisonment and he has been sent to jail.

03. Learned counsel for the petitioner has stated before this Court as well as averments were made on affidavit in the writ petition that in respect of Sessions Trial No. 41/76 one Husna S/o Ramsingh was a convict who was also known as Bada Husna. He was released on parole and later on died on 10-09-2016. It has been further stated that in place of Husna, father of the petitioner was arrested, produced before the Magistrate and sent to Jail. This Court, as it was alleged that an innocent tribal has been lodged in jail without there being any fault on his part, has issued notices and has directed the State Government to file a reply.

04. The State Government has filed a reply which is duly supported by an affidavit of Shri Manoharsingh Baria, Sub Divisional Officer (Police) and in the affidavit submitted by the Sub Divisional Officer (Police), it has been stated that Husna was convicted in Sessions Trial No. 41/1976. He was sentenced to undergo life imprisonment. He was released on bail and as he did not report back, a warrant of arrest was issued. The warrant of arrest is brought on record as Anenxure-R/1 dated 15-10-2019. He has stated that on the basis of warrant of arrest, the Station House Officer, Bar has arrested Husna and he was produced before the Chief Judicial Magistrate Dhar and the Chief Judicial Magistrate Dhar has issued a jail warrant and he has been sent to jail. Letter dated 18-10-2019 is also been brought on record in support of the aforesaid averments. It has been further stated by the State Government that as the father of the petitioner was sentenced to undergo life imprisonment, he has been sent to Central Jail, Indore to serve the remaining sentence vide order dated 18-10-2019. The Sub Divisional Officer (Police) has submitted a report in the matter stating categorically that the person who has been sent to Jail is Husana who was convicted in Session Trial No. 41/1976.

05. This Court after going through the reply, as the petitioner has stated categorically before this Court that Husan and Husna are two different persons, by an order dated 30-01-2020 has directed the Principal Secretary Home Department to conduct an inquiry based upon the finger prints and other materials to ensure whether an innocent person has been sent to jail or not or it is the father of the petitioner who was convicted in Sessions Trial No. 41/1976. The order passed by this court dated 30-01-2020 reads as under :-

“The petitioner before this Court, who is son of Husan has filed this present petition stating that his father has been illegally detained even though he has not committed any crime nor has been convicted in any criminal case.

The facts of the case, as stated in the writ petition reveal that Husan, father of the present petitioner is aged about 68 years and is a resident of District Dhar. One Husna S/o Ramsingh was convicted for an offence under Section 302 of IPC in S. T. No.41/1976 and he was sent to jail. The father of the present petitioner and the person who was convicted are step brothers. Husna was sent to jail and he was released on parole in the year 1985 and as stated in the writ petition, he expired. Thereafter, as Husna did not report back to the jail, the father of the present petitioner, as he is having a similar name has been arrested and lodged in jail.

Learned counsel for the petitioner has also filed a death certificate in respect of Husna and his contention is that Husna is no more and the father of the petitioner has been sent to jail in place of Husna.

In order to find out whether the correct person is in jail or not, the respondent/State was directed to file a reply. The respondent/State has conducted an enquiry and a reply has been filed in the matter and they have stated that the same person who was convicted is in jail. The reply reveals that some fact finding enquiry was conducted in the matter. The statement of witnesses were recorded and the Investigating Officer has arrived at a conclusion that the same person who was convicted is in jail and the person who has died is actually Husna S/o Kalsingh.

In order to find out whether the same person is in jail or some other person is in jail in respect of Husna, the proper course of action is to conduct an enquiry based upon the fingerprints examination as well as other comparable identifying marks of the two persons Husan and Husna. At the time of FIR is lodged and a man is arrested, his fingerprints are taken by the police authorities and when he is sent to jail, again in jail fingerprints are taken by the jail authorities and therefore, the Principal Secretary, Home Department is directed to conduct an enquiry. The enquiry shall be conducted on the basis of fingerprints of the person who was arrested and convicted in S. T.No.41/1976, the fingerprints obtained for the first time of Husna when he was lodged in jail and the fingerprints of the person who is at present in jail.

As it is a case of alleged illegal detention, the enquiry be concluded within seven days from today by deputing special messengers and a report be submitted before this Court positively on 10.02.2020. The enquiry report shall also include comments upon Annexure-P/1 which is a death certificate in respect of Husna. Incase, the report is not submitted, the Principal Secretary, Home Department shall remain present before this Court on 10.02.2020. Learned Additional Advocate General who is present in Court shall inform this order to the Principal Secretary, Home Department. Noncompliance of this order shall be viewed seriously, as the case involves personal liberty of an individual who is alleging that he is in jail without there being any crime committed on his part. List the matter on 10.02.2020.”

06. An inquiry has been conducted in the matter and based upon the finger prints, a report has come duly signed by the Principal Secretary Home Department and now the Principal Secretary has stated that the person who is in jail is not Husna, meaning thereby, an innocent person is languishing in jail for the last four months. He was sent to jail on 18-10-2019 and till date he is in jail. It is really unfortunate that while filing a return in the present case, an attempt was made by the State of Madhya Pradesh that the person who is in jail is a convict in respect of Session Trial No. 41/1976. It was only the insistence of the petitioner which forced us to direct a thorough inquiry and to obtain a report from the Principal Secretary Home Department based upon finger prints obtained for the first time when Husna was lodged in jail and the finger print of the person, who is in jail at present i.e. Husan. Undisputed fact is that Husna is no more. His death has taken place on 10-09-2016. The report submitted by the Principal Secretary establishes that the person, who is in jail is not Husna, and therefore, as his detention every second is an illegal detention the respondents State is directed to release Husan, forthwith.

07. In the present case, the Sub Divisional Magistrate (Police) has made an incorrect statement on affidavit. A separate case for contempt be registered against the Sub Divisional Magistrate (Police) for making a false statement on affidavit in respect of detention of the father of the petitioner. The contempt be registered separately. Not only this, a contempt case be also registered against all those persons who have made various entries in the Rojnamcha dated 18-10-2019 stating that the father of the petitioner is Husna and he has been arrested.

08. Learned Additional Advocate General has placed reliance upon a judgment delivered in the case of Saurabh Kumar v/s Jailor Koneila Jail and Another reported in (2014) 13 SCC 436. Heavy reliance has been placed upon paragraphs No. 21 and 22 and the same reads as under :-

“21. Two things are evident from the record. Firstly, the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody, Secondly, the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail.

22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for offences, cognizance whereof has already been taken by the competent Court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of Habeas Corpus is, in the circumstances, totally mis-placed. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the Court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. “

09. Learned Additional Advocate General has stated that the present petition can never be termed as a habeas corpus writ petition.

10. This Court has carefully gone through the aforesaid case and is of the considered opinion that there cannot be a better example than the present case of Habeas Corpus Writ petition.

11. In the entire scheme of Judicial review of administrative action in India, the pivotal position is occupied by Article 226 of the Constitution of India. Article 226 provides an important mechanism for judicial review of administrative action.

12. Article 226 (1) empowers every High Court notwithstanding anything in Article 32, throughout the territories in relating to which the High Court exercises jurisdiction, to issue to any person or authority, including in appropriate cases any government, within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari for the enforcement of Fundamental rights or for any other purpose.

13. The writ of habeas corpus has been described as “a great constitutional privilege” or “the security of civil liberty”. It provides a remedial procedure in case of illegal detention. The principle aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner of detenu [The State of Maharashtra v/s Bhaurao Punjabrao Gawande reported in (2008) 6 SCC 613].

14. The writ of habeas corpus is issued for release of a person, who has been detained unlawfully, or without any legal justification. The writ of habeas corpus is used primarily to secure the release of a person who has been detained unlawfully, or without any legal justification. The great value of the writ of habeas corpus lies in that it enables immediate determination of the right of a person as to his freedom [Ranjit v/s The State of Punjab reported in 1959 Supp (2) SCR 727].

15. The Constitution of India under Article 21 provides that no person can be deprived of his life and personal liberty except according to the procedure established by law.

16. The Hon’ble Supreme Court has held that expression procedure established by law in Article 21 means fair and reasonable procedure [Maneka Gandhi v/s Union of India reported in (1978) 1 SCC 248].

17. In the present case, a person, who has not been convicted in any criminal case nor is in under trial, has been sent to jail by the police. He was caught from his village and produced before the Magistrate stating that he is Husna and the learned Judge, based upon the report filed by the police, in the mechanical manner, sent him to jail.

18. The most unfortunate part is that the State Government while filing a reply initially has defended its illegal action of sending an innocent man, who is aged about 68 years, to jail. No amount of compensation can return the period during which, the father of the petitioner was in jail. The constitutional rights of Husan have been violated with impunity.

19. In the case of Bhim Singh v/s Jammu & Kashmir reported in (1985) 4 SCC 677, the Hon’ble Supreme Court in the case of illegal detention of Bhim Singh has awarded a sum of Rs.50,000/- as cost. The Hon’ble Supreme Court in the case of Bhim Singh referring to Rudal Shah v/s The State of Bihar reported in AIR 1983 SC 1086 and Sebastian M. Hongray v/s Union of India reported in AIR 1984 SC 1026 has observed that it is now established that “we have a right to award monetary compensation by way of exemplary cost or otherwise”. It has also been observed that “When a person comes to us with the complaint that he has been arrested and imprisoned with mischievous intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished by his being set free. In appropriate cases, the jurisdiction to compensate the victim by awarding suitable monetary compensation”.

20. The Hon’ble Supreme Court in catena of judgments has held that compensation can be awarded to the victim by the Court. In the present case it was only after the Principal Secretary, Home was directed to conduct an enquiry, the true picture has been brought before this Court and it has been stated on the affidavit that the person, who is in jail, is not Husna, he is Husan and the person, who was convicted, is no more and in his place some other person has been lodged in jail.

21. The poor tribal was pleading before the police, he was begging for mercy before the police stating that he is not Husna, who is a murder convict, however, his voice was crushed by the police force and forcibly, a mechanical exercise took place by lodging him in jail as a murder convict. The arguments canvassed by the learned Additional Advocate General that the writ of habeas corpus is not maintainable, are misplaced.

22. Resultantly, as a person, who is a poor tribal aged about 68 years, detained illegally by the State Government and all attempts were made to justify his illegal custody as legal custody, no amount of monetary compensation is going to compensate the poor tribal. However, the interest of justice would be sub-served by awarding reasonable compensation and the same shall be paid by the State of Madhya Pradesh, within a period of thirty days, from today. This Court really appreciates the personal efforts done by the Principal Secretary, Home in getting the identification done. Very less time was granted to the Principal Secretary, Home for this purpose. However, he got the identification done by making personal efforts in such a short span of time

23. Accordingly, the present Writ Petition is allowed. State Government shall pay a compensation of Rs.5,00,000/- (Rupees Five Lakh Only) to the father of the petitioner. The same shall be deposited in his Bank account and if he doesn’t have a Bank Account the Collector, Dhar shall personally assist the father of the petitioner, Husan in getting the Bank Account opened and the amount shall be deposited within a period of thirty days in the Bank account of Husan, who is illegally detained by the State.

24. The present case is an example of arresting innocent people without identifying them properly, and therefore, it is directed that in all cases, where an arrest is made, the authorities shall identify the persons so arrested on the basis of Bio-metric as well as other documents in order to ensure their identity, in order to ensure that no innocent person like the father of the present petitioner, Husan go to jail again.

The State Government shall issue necessary instruction to all the authorities and to all police authorities for assuring compliance of the order passed by this Court.

25. This Court hopes and trust that on the basis of mistaken identity of an individual, classic comedy of error shall not be repeated as written by great author, the William Shakespeare.

With the aforesaid, the writ petition stands allowed.

Certified copy, as per rules.

(S.C. SHARMA)
J U D G E

(SHAILENDRA SHUKLA)
J U D G E

Ravi

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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 55 OF 2013
Shatrughan Chauhan & Anr. …. Petitioner (s)
Versus
Union of India & Ors. ….Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 34 OF 2013
WRIT PETITION (CRIMINAL) NO. 56 OF 2013
WRIT PETITION (CRIMINAL) NO. 136 OF 2013
WRIT PETITION (CRIMINAL) NO. 139 OF 2013
WRIT PETITION (CRIMINAL) NO. 141 OF 2013
WRIT PETITION (CRIMINAL) NO. 132 OF 2013
WRIT PETITION (CRIMINAL) NO. 187 OF 2013
WRIT PETITION (CRIMINAL) NO. 188 OF 2013
WRIT PETITION (CRIMINAL) NO. 190 OF 2013
WRIT PETITION (CRIMINAL) NO. 191 OF 2013
WRIT PETITION (CRIMINAL) NO. 192 OF 2013
WRIT PETITION (CRIMINAL) NO. 193 OF 2013
J U D G M E N T

P.Sathasivam, CJI.
1) Our Constitution is highly valued for its articulation. One such astute drafting is Article 21 of the Constitution which postulates that every human being has inherent right to life and mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Over the span of years, this Court has expanded the horizon of ‘right to life’ guaranteed under the Constitution to balance with the progress of human life. This case provides yet another momentous occasion, where this Court is called upon to decide whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances. Let us examine the supervening circumstances of each individual case to arrive at a coherent decision.

2) All the above writ petitions, under Article 32 of the Constitution of India, have been filed either by the convicts, who were awarded death sentence or by their family members or by public-spirited bodies like People’s Union for Democratic Rights (PUDR) based on the rejection of mercy petitions by the Governor and the President of India.

3) In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the President of India is unconstitutional and to set aside the death sentence imposed upon them by commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable. In view of the similarity of the reliefs sought for in all the writ petitions, we are not reproducing every prayer hereunder, however, while dealing with individual claims, we shall discuss factual details, the reliefs sought for and the grounds urged in support of their claim at the appropriate place. Besides, in the writ petition filed by PUDR, PUDR prayed for various directions in respect of procedure to be followed while considering the mercy petitions, and in general for protection of rights of the death row convicts. We shall discuss discretely the aforesaid prayers in the ensuing paragraphs.

4) Heard Mr. Ram Jethmalani, Mr. Anand Grover, Mr. R. Basant, Mr. Colin Gonsalves, learned senior counsel and Dr. Yug Mohit Chaudhary, learned counsel for the petitioners and Mr. Mohan Parasaran, learned Solicitor General, Mr. L.N. Rao, Mr. Siddharth Luthra, learned Additional Solicitor Generals, Mr. V.C. Mishra, learned Advocate General, Mr. V.N. Raghupathy, Ms. Anitha Shenoy, Mr. Rajiv Nanda, Mr. C.D. Singh, learned counsel and Mr. Manjit Singh, Additional Advocate General for the respondents. We also heard Mr. T.R. Andhyarujina, learned senior counsel as amicus curiae.

5) Before considering the merits of the claim of individual case, it is essential to deliberate on certain vital points of law that will be incidental and decisive for determining the case at hand.

aintainability of the Petitions
6) Before we advert to the issue of maintainability of the petitions, it is pertinent to grasp the significance of Article 32 as foreseen by Dr. Ambedkar, the principal architect of the Indian Constitution. His words were appositely reiterated in Minerva Mills Ltd. and Ors. vs. Union of India and Ors. (1980) 2 SCC 625 as follows:-
“87. ….If I was asked to name any particular Article in this Constitution as the most important – an Article without which this Constitution would be a nullity – I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it.” (emphasis supplied)

The fundamental right to move this Court can, therefore, be appropriately described as the corner-stone of the democratic edifice raised by the Constitution. At the same time, this Court, in A.R Antulay vs. Union of India (1988) 2 SCC 602, clarified and pronounced that any writ petition under Article 32 of the Constitution challenging the validity of the order or judgment passed by this Court as nullity or otherwise incorrect cannot be entertained. In this light, let us examine the maintainability of these petitions.

7) The aforesaid petitions, under Article 32 of the Constitution, seek relief against alleged infringement of certain fundamental rights on account of failure on the part of the executive to dispose of the mercy petitions filed under Article 72/161 of the Constitution within a reasonable time.

8) At the outset, the petitioners herein justly elucidated that they are not challenging the final verdict of this Court wherein death sentence was imposed. In fact, they asserted in their respective petitions that if the sentence had been executed then and there, there would have been no grievance or cause of action. However, it wasn’t and the supervening events that occurred after the final confirmation of the death sentence are the basis of filing these petitions.

9) It is a time-honored principle, as stipulated in R.D Shetty vs. International Airport Authority (1979) 3 SCC 489, that no matter, whether the violation of fundamental right arises out of an executive action/inaction or action of the legislature, Article 32 can be utilized to enforce the fundamental rights in either event. In the given case, the stand of the petitioners herein is that exercise of the constitutional power vested in the executive specified under Article 72/161 has violated the fundamental rights of the petitioners herein. This Court, as in past, entertained the petitions of the given kind and issued appropriate orders as in T.V. Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC 68, Sher Singh and Ors. vs. State of Punjab (1983) 2 SCC 344 Triveniben vs. State of Gujarat (1988) 4 SCC 574 etc. Accordingly, we accede to the stand of the petitioners and hold that the petitions are maintainable.

Nature of power guaranteed under Article 72/161 of the Constitution

10) It is apposite to refer the relevant Articles which give power to the President of India and the Governor to grant pardons and to suspend, remit or commute sentences in certain cases. They are as follows:
“Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.”
Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
11) The memoir and scope of Article 72/161 of the Constitution was extensively considered in Kehar Singh vs. Union of India & Anr., (1989) 1 SCC 204 in the following words:

“7. The Constitution of India, in keeping with modern constitutional practice, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital:

We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic… do hereby adopt, enact and give to ourselves this Constitution.

To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich 71 L Ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned Counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the Petitioner that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice……” (Emphasis Supplied)

In that case, the Constitution Bench also considered whether the President can, in exercise of the power under Article 72 of the Constitution, scrutinize the evidence on record and come to a different conclusion than the one arrived at by the Court and held as under:
“10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. and this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him….

The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative….

It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.

16. …the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. and it is of great significance that the function itself enjoys high status in the constitutional scheme.”

12) Both Articles 72 and 161 repose the power of the people in the highest dignitaries, i.e., the President or the Governor of a State, as the case may be, and there are no words of limitation indicated in either of the two Articles.

The President or the Governor, as the case may be, in exercise of power under Article 72/161 respectively, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. This Court, in numerous instances, clarified that the executive is not sitting as a court of appeal rather the power of President/Governor to grant remission of sentence is an act of grace and humanity in appropriate cases, i.e., distinct, absolute and unfettered in its nature.

13) In this context, the deliberations in Epuru Sudhakar & Anr. vs. Govt. of A.P. & Ors., (2006) 8 SCC 161 are relevant which are as under:

“16. The philosophy underlying the pardon power is that “every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy. [See 59 American Jurisprudence 2d, page 5]

17. The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words 71 L. Ed. 1161 at 1163: A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” (emphasis added)

14) Article 72/161 of the Constitution entail remedy to all the convicts and not limited to only death sentence cases and must be understood accordingly. It contains the power of reprieve, remission, commutation and pardon for all offences, though death sentence cases invoke the strongest sentiment since it is the only sentence that cannot be undone once it is executed.

15) Shri Andhyarujina, learned senior counsel, who assisted the Court as amicus commenced his submissions by pointing out that the power reposed in the President under Article 72 and the Governor under Article 161 of the Constitution is not a matter of grace or mercy, but is a constitutional duty of great significance and the same has to be exercised with great care and circumspection keeping in view the larger public interest. He referred to the judgment of the U.S. Supreme Court in Biddle vs. Perovoch 274 US 480 as also the judgments of this Court in Kehar Singh (supra) and Epuru Sudhakar (supra).

16) In this context, in Kuljeet Singh vs. Lt. Governor (1982) 1 SCC 417, this Court held:
“1. The question as regards the scope of the power of the President under Article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion. This clearly is not that occasion because insofar as this case is concerned, whatever be the guide-lines observed for the exercise of the power conferred by Article 72, the only sentence which can possibly be imposed upon the petitioner is that of death and no circumstances exist for interference with that sentence. Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon the petitioner into a lesser sentence, the President has in any manner transgressed his discretionary power under Article 72. Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence and as said by Chief Justice Taft in James Shewan and Sons v. U.S., the “executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law” and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that power has therefore to be judged from case to case. In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not, however, go into that question elaborately because insofar as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh v. Union of India. We may recall what we said in that judgment that “the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp”, that the “survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security”, and that “they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society.”

17) In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a Constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the people in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under Article 72/161 of the Constitution of India is to be exercised on the aid and advice of the Council of Ministers.

Limited Judicial Review of the executive orders under Article 72/161

18) As already emphasized, the power of the executive to grant pardon under Article 72/161 is a Constitutional power and this Court, on numerous occasions, has declined to frame guidelines for the exercise of power under the said Articles for two reasons. Firstly, it is a settled proposition that there is always a presumption that the constitutional authority acts with application of mind as has been reiterated in Bikas Chatterjee vs. Union of India (2004) 7 SCC 634. Secondly, this Court, over the span of years, unanimously took the view that considering the nature of power enshrined in Article 72/161, it is unnecessary to spell out specific guidelines. In this context, in Epuru Sudhakar (supra), this Court held thus:

“36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case it was held as follows: (SCC pp. 518-19, para 17)

“17. In Kehar Singh case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in para 16 as under: (SCC pp. 217-18, para 16)

‘It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.’

These observations do indicate that the Constitution Bench which decided Kehar Singh case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power. No doubt in Maru Ram case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh case. Therefore, the observation made by the Constitution Bench in Kehar Singh case does not upturn any ratio laid down in Maru Ram case. Nor has the Bench in Kehar Singh case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers.”

19) Nevertheless, this Court has been of the consistent view that the executive orders under Article 72/161 should be subject to limited judicial review based on the rationale that the power under Article 72/161 is per se above judicial review but the manner of exercise of power is certainly subject to judicial review. Accordingly, there is no dispute as to the settled legal proposition that the power exercised under Article 72/161 could be the subject matter of limited judicial review. [vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh vs. State of U.P AIR 1998 SC 2026; Satpal and Anr. vs. State of Haryana and Ors. AIR 2000 SC 1702; and Bikas Chatterjee (supra)]

20) Though the contours of power under Article 72/161 have not been defined, this Court, in Narayan Dutt vs. State of Punjab (2011) 4 SCC 353, para 24, has held that the exercise of power is subject to challenge on the following grounds:
a) If the Governor had been found to have exercised the power himself without being advised by the government;
b) If the Governor transgressed his jurisdiction in exercising the said power;
c) If the Governor had passed the order without applying his mind;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some extraneous considerations.

These propositions are culmination of views settled by this Court that:
(i) Power should not be exercised malafidely. (Vide Maru Ram vs. Union of India, paras 62, 63 & 65).
(ii) No political considerations behind exercise of
power. In this context, in Epuru Sudhakar
(supra), this Court held thus:
“34. The position, therefore, is undeniable that
judicial review of the order of the President or the
Governor under Article 72 or Article 161, as the
case may be, is available and their orders can be
impugned on the following grounds:
a) that the order has been passed without
application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous
or wholly irrelevant considerations;
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness.

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

37. In Kehar Singh case this Court held that: (SCC p. 216, para 13)
“There is also no question involved in this case of asking for the reasons for the President’s order.”

38. The same obviously means that the affected party need not be given the reasons. The question whether 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.”

21) A perusal of the above case-laws makes it clear that the President/Governor is not bound to hear a petition for mercy before taking a decision on the petition. The manner of exercise of the power under the said articles is primarily a matter of discretion and ordinarily the courts would not interfere with the decision on merits. However, the courts retain the limited power of judicial review to ensure that the constitutional authorities consider all the relevant materials before arriving at a conclusion.

22) It is the claim of the petitioners herein that the impugned executive orders of rejection of mercy petitions against 15 accused persons were passed without considering the supervening events which are crucial for deciding the same. The legal basis for taking supervening circumstances into account is that Article 21 inheres a right in every prisoner till his last breath and this Court will protect that right even if the noose is being tied on the condemned prisoner’s neck. [vide Sher Singh (supra), Triveniben (supra), Vatheeswaran (supra), Jagdish vs. State of Madhya Pradesh (2009) 9 SCC 495].

23) Certainly, delay is one of the permitted grounds for limited judicial review as stipulated in the stare decisis. Henceforth, we shall scrutinize the claim of the petitioners herein and find out the effect of supervening circumstances in the case on hand.

Supervening Circumstances

24) The petitioners herein have asserted the following events as the supervening circumstances, for commutation of death sentence to life imprisonment.
(i) Delay
(ii) Insanity
(iii) Solitary Confinement
(iv) Judgments declared per incuriam
(v) Procedural Lapses

25) All the petitioners have more or less asserted on the aforesaid grounds which, in their opinion, the executive had failed to take note of while rejecting the mercy petitions filed by them. Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the commutation of death sentence into life imprisonment.

(i) Delay

26) It is pre-requisite to comprehend the procedure adopted under Article 72/161 for processing the mercy petition so that we may be in a position to appreciate the aspect of delay as one of the supervening circumstances.

27) The death row convicts invariably approached the Governor under Article 161 of the Constitution of India with a mercy petition after this Court finally decided the matter. During the pendency of the mercy petition, the execution of death sentence was stayed. As per the procedure, once the mercy petition is rejected by the Governor, the convict prefers mercy petition to the President. Thereafter, the mercy petition received in President’s office is forwarded to the Ministry of Home Affairs. Normally, the mercy petition consists of one or two pages giving grounds for mercy. To examine the mercy petition so received and to arrive at a conclusion, the documents like copy of the judgments of the trial Court, High Court and the Supreme Court are requested from the State Government. The other documents required include details of the decision taken by the Governor under Article 161 of the Constitution, recommendations of the State Government in regard to grant of mercy petition, copy of the records of the case, nominal role of the convict, health status of the prisoner and other related documents. All these details are gathered from the State/Prison authorities after the receipt of the mercy petition and, according to the Union of India, it takes a lot of time and involve protracted correspondence with prison authorities and State Government. It is also the claim of the Union of India that these documents are then extensively examined and in some sensitive cases, various pros and cons are weighed to arrive at a decision. Sometimes, person or at their instance some of their relatives, file mercy petitions repeatedly which cause undue delay. In other words, according to the Union of India, the time taken in examination of mercy petitions may depend upon the nature of the case and the scope of inquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. It is the claim of the respondents that there cannot be a specific time limit for examination of mercy petitions.

28) It is also the claim of the respondents that Article 72 envisages no limit as to time within which the mercy petition is to be disposed of by the President of India. Accordingly, it is contended that since no time limit is prescribed for the President under Article 72, the courts may not go into it or fix any outer limit. It is also contended that the power of the President under Article 72 is discretionary which cannot be taken away by any statutory provision and cannot be altered, modified or interfered with, in any manner, whatsoever, by any statutory provision or authority. The powers conferred on the President are special powers overriding all other laws, rules and regulations in force. Delay by itself does not entail the person under sentence of death to request for commutation of sentence into life imprisonment.

29) It is also pointed out that the decision taken by the President under Article 72 is communicated to the State Government/Union Territory concerned and to the prisoner through State Government/Union Territory. It is also brought to our notice that as per List II Entry 4 of the Seventh Schedule to the Constitution of India, “Prisons and persons detained therein” is a State subject. Therefore, all steps for execution of capital punishment including informing the convict and his/her family, etc. are required to be taken care of by the concerned State Governments/Union Territories in accordance with their jail manual/rules etc.

30) On the contrary, it is the plea of the petitioners that after exhausting of the proceedings in the courts of law, the aggrieved convict gets right to make a mercy petition before the Governor and the President of India highlighting his grievance. If there is any undue, unreasonable and prolonged delay in disposal of his mercy petition, the convict is entitled to approach this Court by way of a writ petition under Article 32 of the Constitution.

It is vehemently asserted that the execution of death penalty in the face of such an inordinate delay would infringe fundamental right to life under Article 21 of the Constitution, which would invite the exercise of the jurisdiction by this Court.

31) The right to life is the most fundamental of all rights. The right to life, as guaranteed under Article 21 of the Constitution of India, provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. According to learned counsel for the Union of India, death sentence is imposed on a person found guilty of an offence of heinous nature after adhering to the due procedure established by law which is subject to appeal and review. Therefore, delay in execution must not be a ground for commutation of sentence of such a heinous crime. On the other hand, the argument of learned counsel for the petitioners/death convicts is that human life is sacred and inviolable and every effort should be made to protect it. Therefore, inasmuch as Article 21 is available to all the persons including convicts and continues till last breath if they establish and prove the supervening circumstances, viz., undue delay in disposal of mercy petitions, undoubtedly, this Court, by virtue of power under Article 32, can commute the death sentence into imprisonment for life. As a matter of fact, it is the stand of the petitioners that in a petition filed under Article 32, even without a presidential order, if there is unexplained, long and inordinate delay in execution of death sentence, the grievance of the convict can be considered by this Court.

32) This Court is conscious of the fact, namely, while Article 21 is the paramount principle on which rights of the convicts are based, it must be considered along with the rights of the victims or the deceased’s family as also societal consideration since these elements form part of the sentencing process as well. The right of a victim to a fair investigation under Article 21 has been recognized in State of West Bengal vs. Committee for Democratic Rights, West Bengal, (2010) 3 SCC 571, which is as under:
“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:

(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.

(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State…”

We do comprehend the critical facet involved in the arguments by both the sides and we will strive to strike a balance between the rights of the accused as well as of the victim while deciding the given case.

33) This is not the first time when the question of such a nature is raised before this Court. In Ediga Anamma vs. State of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of the “brooding horror of haunting the prisoner in the condemned cell for years”. Chinnappa Reddy, J. in Vatheeswaran (supra) said that prolonged delay in execution of a sentence of death had a dehumanizing effect and this had the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the fundamental right under Article 21 of the Constitution. Chinnappa Reddy, J. quoted the Privy Council’s observation in a case of such an inordinate delay in execution, viz., “The anguish of alternating hope and despair the agony of uncertainty and the consequences of such suffering on the mental, emotional and physical integrity and health of the individual has to be seen.” Thereby, a Bench of two Judges of this Court held that the delay of two years in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to plead for commutation of sentence of death to imprisonment for life. Subsequently, in Sher Singh (supra), which was a decision of a Bench of three Judges, it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years’ rule could not be laid down in cases of delay.

34) Owing to the conflict in the two decisions, the matter was referred to a Constitution Bench of this Court for deciding the two questions of law viz., (i) whether the delay in execution itself will be a ground for commutation of sentence and (ii) whether two years’ delay in execution will automatically entitle the condemned prisoner for commutation of sentence. In Smt. Triveniben vs. State of Gujarat (1988) 4 SCC 574, this Court held thus:

“2. …..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 of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of 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 the correct law and therefore to that extent stands overruled.”

35) While giving full reasons which is reported in Smt. Triveniben vs. State of Gujarat, (1989) 1 SCC 678 this Court, in para 22, appreciated the aspect of delay in execution in the following words:-

“22. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra and also in A.R. Antulay v. R.S. Nayak the only jurisdiction which could be sought to 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 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 reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in 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 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 be considered for coming to the conclusion whether the sentence could be altered on that ground also.”

36) Though learned counsel appearing for the Union of India relied on certain observations of Shetty, J. who delivered concurring judgment, particularly, para 76, holding that “the inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional”, after careful reading of the majority judgment authored by Oza, J., particularly, para 2 of the order dated 11.10.1988 and para 22 of the subsequent order dated 07.02.1989, we reject the said stand taken by learned counsel for the Union of India.

37) In Vatheeswaran (supra), the dissenting opinion of the two judges in the Privy Council case, relied upon by this Court, was subsequently accepted as the correct law by the Privy Council in Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 – Privy Council, after 22 years. There is no doubt that judgments of the Privy Council have certainly received the same respectful consideration as the judgments of this Court. For clarity, we reiterate that except the ratio relating to delay exceeding two years in execution of sentence of death, all other propositions are acceptable, in fact, followed in subsequent decisions and should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and plead for commutation of the sentence.

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.

39) Keeping a convict in suspense while consideration of his mercy petition by the President for many years is certainly an agony for him/her. It creates adverse physical conditions and psychological stresses on the convict under sentence of death. Indisputably, this Court, while considering the rejection of the clemency petition by the President, under Article 32 read with Article 21 of the Constitution, cannot excuse the agonizing delay caused to the convict only on the basis of the gravity of the crime.

40) India has been a signatory to the Universal Declaration of Human Rights, 1948 as well as to the United Nations Covenant on Civil and Political Rights, 1966. Both these conventions contain provisions outlawing cruel and degrading treatment and/or punishment. Pursuant to the judgment of this Court in Vishaka vs. State of Rajasthan, (1997) 6 SCC 241, international covenants to which India is a party are a part of domestic law unless they are contrary to a specific law in force. It is this expression (“cruel and degrading treatment and/or punishment”) which has ignited the philosophy of Vatheeswaran (supra) and the cases which follow it. It is in this light, the Indian cases, particularly, the leading case of Triveniben (supra) has been followed in the Commonwealth countries. It is useful to refer the following foreign judgments which followed the proposition :
i) Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 – Privy Council
ii) Catholic Commission for Justice & Peace in Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 – Supreme Court of Zimbabwe
iii) Soering vs. United Kingdom [App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989)] – European Court of Human Rights
iv) Attorney General vs. Susan Kigula, Constitutional Appeal No. 3 of 2006 – Supreme Court of Uganda
v) Herman Mejia and Nicholas Guevara vs. Attorney General, A.D. 2000 Action No. 296 – Supreme Court of Belize.

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 amd 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.

43)The procedure prescribed by law, which deprives a person of his life and liberty must be just, fair and reasonable and such procedure mandates humane conditions of detention preventive or punitive. In this line, although the petitioners were sentenced to death based on the procedure established by law, the inexplicable delay on account of executive is unexcusable. Since it is well established that Article 21 of the Constitution does not end with the pronouncement of sentence but extends to the stage of execution of that sentence, as already asserted, prolonged delay in execution of sentence of death has a dehumanizing effect on the accused. Delay caused by circumstances beyond the prisoners’ control mandates commutation of death sentence. In fact, in Vatheeswaran (supra), particularly, in para 10, it was elaborated where amongst other authorities, the minority view of Lords Scarman and Brightman in the 1972 Privy Council case of Noel Noel Riley vs. Attorney General, (1982) Crl.Law Review 679 by quoting “sentence of death is one thing, sentence of death followed by lengthy imprisonment prior to execution is another”. The appropriate relief in cases where the execution of death sentence is delayed, the Court held, is to vacate the sentence of death. In para 13, the Court made it clear that Articles 14, 19 and 21 supplement one another and the right which was spelled out from the Constitution was a substantive right of the convict and not merely a matter of procedure established by law. This was the consequence of the judgment in Maneka Gandhi vs. Union of India (1978) 1 SCC 248 which made the content of Article 21 substantive as distinguished from merely procedural.

44)Another argument advanced by learned ASG is that even if the delay caused seems to be undue, the matter must be referred back to the executive and a decision must not be taken in the judicial side. Though we appreciate the contention argued by the learned ASG, we are not inclined to accept the argument. The concept of supervening events emerged from the jurisprudence set out in Vatheeswaran (supra) and Triveniben (supra). The word ‘judicial review’ is not even mentioned in these judgments and the death sentences have been commuted purely on the basis of supervening events such as delay. Under the ground of supervening events, when Article 21 is held to be violated, it is not a question of judicial review but of protection of fundamental rights and courts give substantial relief not merely procedural protection. The question of violation of Article 21, its effects and the appropriate relief is the domain of this Court. There is no question of remanding the matter for consideration because this Court is the custodian and enforcer of fundamental rights and the final interpreter of the Constitution. Further, this Court is best equipped to adjudicate the content of those rights and their requirements in a particular fact situation. This Court has always granted relief for violation of fundamental rights and has never remanded the matter. For example, in cases of preventive detention, violation of free speech, externment, refusal of passport etc., the impugned action is quashed, declared illegal and violative of Article 21, but never remanded. It would not be appropriate to say at this point that this Court should not give relief for the violation of Article 21.

45)At this juncture, it is pertinent to refer the records of the disposal of mercy petitions compiled by Mr. Bikram Jeet Batra and others, which are attached as annexures in almost all the petitions herein. At the outset, this document reveals that the mercy petitions were disposed of more expeditiously in former days than in the present times. Mostly, until 1980, the mercy petitions were decided in minimum of 15 days and in maximum of 10-11 months. Thereafter, from 1980 to 1988, the time taken in disposal of mercy petitions was gradually increased to an average of 4 years. It is exactly at this point of time, the cases like Vatheeswaran (supra) and Triveniben (supra) were decided which gave way for developing the jurisprudence of commuting the death sentence based on undue delay. It is also pertinent to mention that this Court has observed in these cases that when such petitions under Article 72 or 161 are received by the authorities concerned, it is expected that these petitions shall be disposed of expeditiously. In Sher Singh (supra) their Lordships have also impressed the Government of India and all the State Governments for speedy disposal of petitions filed under Articles 72 and 161 and issued directions in the following manner:

“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.

46)Obviously, the mercy petitions disposed of from 1989 to 1997 witnessed the impact of the observations in the disposal of mercy petitions. Since the average time taken for deciding the mercy petitions during this period was brought down to an average of 5 months from 4 years thereby paying due regard to the observations made in the decisions of this Court, but unfortunately, now the history seems to be repeating itself as now the delay of maximum 12 years is seen in disposing of the mercy petitions under Article 72/161 of the Constitution.

47)We sincerely hope and believe that the mercy petitions under Article 72/161 can be disposed of at a much faster pace than what is adopted now, if the due procedure prescribed by law is followed in verbatim. Although, no time frame can be set for the President for disposal of the mercy petition but we can certainly request the concerned Ministry to follow its own rules rigorously which can reduce, to a large extent, the delay caused.

48)Though guidelines to define the contours of the power under Article 72/161 cannot be laid down, however, the Union Government, considering the nature of the power, set out certain criteria in the form of circular as under for deciding the mercy petitions.
∙Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);
∙Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
∙Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;
∙Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;
∙Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
∙Consideration of evidence in fixation of responsibility in gang murder case;
∙Long delays in investigation and trial etc.

49)These guidelines and the scope of the power set out above make it clear that it is an extraordinary power not limited by judicial determination of the case and is not to be exercised lightly or as a matter of course. We also suggest, in view of the jurisprudential development with regard to delay in execution, another criteria may be added so as to require consideration of the delay that may have occurred in disposal of a mercy petition. In this way, the constitutional authorities are made aware of the delay caused at their end which aspect has to be considered while arriving at a decision in the mercy petition. The obligation to do so can also be read from the fact that, as observed by the Constitution Bench in Triveniben (supra), delays in the judicial process are accounted for in the final verdict of the Court terminating the judicial exercise.

50)Another vital aspect, without mention of which the present discussion will not be complete, is that, as aforesaid, Article 21 is the paramount principle on which rights of the convict are based, this must be considered along with the rights of the victims or the deceased’s family as also societal consideration since these elements form part of the sentencing process as well. It is the stand of the respondents that the commutation of sentence of death based on delay alone will be against the victim’s interest.

51)It is true that the question of sentence always poses a complex problem, which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. As a consequence, a large number of factors fall for consideration in determining the appropriate sentence. The object of punishment is lucidly elaborated in Ram Narain vs. State of Uttar Pradesh (1973) 2 SCC 86 in the following words:-

“8. …the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient….”

52)The object of punishment has been succinctly stated in Halsbury’s Laws of England, (4th Edition: Vol. II: para 482)thus:

“The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.”

53)All these aspects were emphatically considered by this Court while pronouncing the final verdict against the petitioners herein thereby upholding the sentence of death imposed by the High Court. Nevertheless, the same accused (petitioners herein) are before us now under Article 32 petition seeking commutation of sentence on the basis of undue delay caused in execution of their levied death sentence, which amounts to torture and henceforth violative of Article 21 of the Constitution. We must clearly see the distinction under both circumstances. Under the former scenario, the petitioners herein were the persons who were accused of the offence wherein the sentence of death was imposed but in later scenario, the petitioners herein approached this Court as a victim of violation of guaranteed fundamental rights under the Constitution seeking commutation of sentence. This distinction must be considered and appreciated.

54)As already asserted, this Court has no jurisdiction under Article 32 to reopen the case on merits. Therefore, in the light of the aforesaid elaborate discussion, we are of the cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.

Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose

55)In Writ Petition No. 34 of 2013 – the accused were mulcted with TADA charges which ultimately ended in death sentence. Mr. Ram Jethmalani, learned senior counsel for the petitioners in that writ petition argued against the ratio laid down in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195 which holds that when the accused are convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of sentence, and emphasized the need for reconsideration of the verdict. According to Mr. Ram Jethmalani, Devender Pal Singh Bhullar (supra) is per incuriam and is not a binding decision for other cases. He also prayed that inasmuch as the ratio laid down in Devender Pal Singh Bhullar (supra) is erroneous, this Court, being a larger Bench, must overrule the same.

56)He pointed out that delay in execution of sentence of death after it has become final at the end of the judicial process is wholly unconstitutional inasmuch it constitutes torture, deprivation of liberty and detention in custody not authorized by law within the meaning of Article 21 of the Constitution. He further pointed out that this involuntary detention of the convict is an action not authorized by any penal provision including Section 302 IPC or any other law including TADA. On the other hand, Mr. Luthra, learned ASG heavily relying on the reasonings in Devender Pal Singh Bhullar (supra) submitted that inasmuch as the crime involved is a serious and heinous and the accused were charged under TADA, there cannot be any sympathy or leniency even on the ground of delay in disposal of mercy petition. According to him, considering the gravity of the crime, death sentence is warranted and Devender Pal Singh Bhullar (supra) has correctly arrived at a conclusion and rejected the claim for commutation on the ground of delay.

57)From the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in Article 32. Considerations such as the gravity of the crime, extraordinary cruelty involved therein or some horrible consequences for society caused by the offence are not relevant after the Constitution Bench ruled in Bachan Singh vs. State of Punjab (1980) 2 SCC 684 that the sentence of death can only be imposed in the rarest of rare cases. Meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence.

58)As rightly pointed out by Mr. Ram Jethmalani, it is open to the legislature in its wisdom to decide by enacting an appropriate law that a certain fixed period of imprisonment in addition to the sentence of death can be imposed in some well defined cases but the result cannot be accomplished by a judicial decision alone. The unconstitutionality of this additional incarceration is itself inexorable and must not be treated as dispensable through a judicial decision.

59)Now, in this background, let us consider the ratio laid down in Devender Pal Singh Bhullar (supra).

60)The brief facts of that case were: Devender Pal Singh Bhullar, who was convicted by the Designated Court at Delhi for various offences under TADA, IPC and was found guilty and sentenced to death. The appeal as well as the review filed by him was dismissed by this Court. Soon after the dismissal of the review petition, Bhullar submitted a mercy petition dated 14.01.2003 to the President of India under Article 72 of the Constitution and prayed for commutation of his sentence. Various other associations including Delhi Sikh Gurdwara Management Committee sent letters in connection with commutation of the death sentence awarded to him. During the pendency of the petition filed under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2013 which was also dismissed by this Court on 12.03.2013. After prolonged correspondence and based on the advice of the Home Minister, the President rejected his mercy petition which was informed vide letter dated 13.06.2011 sent by the Deputy Secretary (Home) to the Jail Authorities. After rejection of his petition by the President, Bhullar filed a writ petition, under Article 32 of the Constitution, in this regard praying for quashing the communication dated 13.06.2011. While issuing notice in Writ Petition (Criminal) Diary No. 16039/2011, this Court directed the respondents to clarify as to why the petitions made by the petitioner had not been disposed of for the last 8 years. In compliance with the courts direction, the Deputy Secretary (Home) filed an affidavit giving reasons for the delay. This Court, after adverting to all the earlier decisions, instructions regarding procedure to be observed for dealing with the petitions for mercy, accepted that there was a delay of 8 years. Even after accepting that long delay may be one of the grounds for commutation of sentence of death into life imprisonment, this Court dismissed his writ petition on the ground that the same cannot be invoked in cases where a person is convicted for an offence under TADA or similar statutes. This Court also held that such cases stand on an altogether different footing and cannot be compared with murders committed due to personal animosity or over property and personal disputes. It is also relevant to point out that while arriving at such conclusion, the Bench heavily relied on opinion expressed by Shetty, J. in Smt. Triveniben (supra). Though the Bench adverted to paras 73, 74, 75 and 76 of Triveniben (supra), the Court very much emphasized para 76 which reads as under:-

“76. … The court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself…” (emphasis supplied)

61)On going through the judgment of Oza, J. on his behalf and for M.M. Dutt, K.N. Singh and L.M. Sharma, JJ., we are of the view that the above quoted statement of Shetty, J. is not a majority view and at the most this is a view expressed by him alone. In this regard, at the cost of repetition it is relevant to refer once again the operative portion of the order dated 11.10.1988 in Triveniben (supra) which is as under:-

“2. We are of the opinion that:
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 of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of 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 the correct law and therefore to that extent stands overruled.”

62)The same view was once again reiterated by all the Judges and the very same reasonings have been reiterated in Para 23 of the order dated 07.02.1989. In such circumstances and also in view of the categorical opinion of Oza, J. in para 22 of the judgment in

Triveniben (supra) that “it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict…the nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court…”, it cannot be held, as urged, on behalf of the Union of India that the majority opinion in Triveniben (supra) is to the effect that delay is only one of the circumstances that may be considered along with “other circumstances of the case” to determine as to whether the death sentence should be commuted to one of life imprisonment. We are, therefore, of the view that the opinion rendered by Shetty, J. as quoted in para 76 of the judgment in Triveniben (supra) is a minority view and not a view consistent with what has been contended to be the majority opinion. We reiterate that as per the majority view, if there is undue long delay in execution of sentence of death, the condemned prisoner is entitled to approach this Court under Article 32 and the court is bound to examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and to take a decision whether execution of sentence should be carried out or should be altered into imprisonment for life. It is, however, true that the majority of the Judges have not approved the fixed period of two years enunciated in Vatheeswaran (supra) and only to that extent overruled the same.

63)Incidentally, it is relevant to point out Mahendra Nath Das vs. Union of India and Ors. (2013) 6 SCC 253, wherein the very same bench, taking note of the fact that there was a delay of 12 years in the disposal of the mercy petition and also considering the fact that the appellants therein were prosecuted and convicted under Section 302 IPC held the rejection of the appellants’ mercy petition as illegal and consequently, the sentence of death awarded to them by the trial Court which was confirmed by the High Court, commuted into life imprisonment.

64)In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben (supra) (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.

65)It is useful to refer a Constitution Bench decision of this Court in Mithu vs. State of Punjab (1983) 2 SCC 277, wherein this Court held Section 303 of the IPC as unconstitutional and declared it void. The question before the Constitution Bench was whether Section 303 of IPC infringes the guarantee contained in Article 21 of the Constitution, which provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. Chandrachud, J. the then Hon’ble the Chief Justice, speaking for himself, Fazal Ali, Tulzapurkar and Varadarajan, JJ., struck down Section 303 IPC as unconstitutional and declared it void. The Bench also held that all the cases of murder will now fall under Section 302 IPC and there shall be no mandatory sentence of death for the offence of murder. The reasons given by this Court for striking down this aforesaid section will come in aid for this case. Section 303 IPC was as under:

“303. Punishment for murder by life convict.— Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.”

66)Before striking down Section 303 IPC, this Court made the following conclusion:

“3…The reason, or at least one of the reasons, why the discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases which are covered by Section 303 seems to have been that if, even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving that sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The reformative theory of punishment attracted the attention of criminologists later in the day…

5…The sum and substance of the argument is that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby, it violates Article 21 of the Constitution which affords the guarantee that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Since the procedure by which Section 303 authorises the deprivation of life is unfair and unjust, the Section is unconstitutional. Having examined this argument with care and concern, we are of the opinion that it must be accepted and Section 303 of the Penal Code struck down.”

67)After quoting Maneka Gandhi (supra), Sunil Batra vs. Delhi Administration (1978) 4 SCC 494 and Bachan Singh (supra), this Court opined:

“19…To prescribe a mandatory sentence of death for the second of such offences for the reason that the offender was under the sentence of life imprisonment for the first of such offences is arbitrary beyond the bounds of all reason. Assuming that Section 235(2) of the Criminal Procedure Code were applicable to the case and the court was under an obligation to hear the accused on the question of sentence, it would have to put some such question to the accused:

“You were sentenced to life imprisonment for the offence of forgery. You have committed a murder while you were under that sentence of life imprisonment. Why should you not be sentenced to death”

The question carries its own refutation. It highlights how arbitrary and irrational it is to provide for a mandatory sentence of death in such circumstances…”

23.On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention. The Section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. As observed by the Royal Commission in its Report on “Capital Punishment”

“There is a popular belief that prisoners serving a life sentence after conviction of murder form a specially troublesome and dangerous class. That is not so. Most find themselves in prison because they have yielded to temptation under the pressure of a combination of circumstances unlikely to recur.”

In Dilip Kumar Sharma v. State of M.P. this Court was not concerned with the question of the vires of Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep of that Section by saying that “the section is Draconian in severity, relentless and inexorable in operation” [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add that all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder.”

68)Chinnappa Reddy, J., concurring with the above view, held thus:

“25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.”

69)It is clear that since Section 303 IPC excludes judicial discretion, the Constitution Bench has concluded that such a law must necessarily be stigmatized as arbitrary and oppressive. It is further clear that no one should be deprived of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution regarding his life or personal liberty except according to the procedure established by law.

70)Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben (supra), we are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. The argument of Mr. Luthra, learned ASG that a distinction can be drawn between IPC and non-IPC offences since the nature of the offence is a relevant factor is liable to be rejected at the outset. In view of our conclusion, we are unable to share the views expressed in Devender Pal Singh Bhullar (supra).

(ii)Insanity/Mental Illness/Schizophrenia

71)In this batch of cases, two convict prisoners prayed for commutation of death sentence into sentence of life imprisonment on the ground that the unconscionably long delay in deciding the mercy petition has caused the onset of chronic psychotic illness, and in view of this the execution of death sentence will be inhuman and against the well-established canons of human rights.

72)The principal question raised in those petitions is whether because of the aforementioned supervening events after the verdict of this Court confirming the death sentence, the infliction of the most extreme penalty in the circumstances of the case, violates the fundamental rights under Article 21. The petitioners have made it clear that they are not challenging the death sentence imposed by this Court. However, as on date, they are suffering from insanity/mental illness. In this background, let us consider whether the petitioners have made out a case for commutation to life sentence on the ground of insanity.

73)India is a member of the United Nations and has ratified the International Covenant on Civil and Political Rights (ICCPR). A large number of United Nations international documents prohibit the execution of death sentence on an insane person. Clause 3(e) of the Resolution 2000/65 dated 27.04.2000 of the U.N.

Commission on Human Rights titled “The Question of Death Penalty” urges “all States that still maintain the death penalty…not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person”. It further elaborates:

“3. Urges all States that still maintain the death penalty:

(a)To comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;

(b)To ensure that the notion of “most serious crimes” does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience;

(c)Not to enter any new reservations under article 6 of the International Covenant on Civil and Political Rights which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 of the Covenant enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area;

(d)To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations;

(e)Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person;

(f)Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending;

4.Calls upon all States that still maintain the death penalty:

(a)Progressively to restrict the number of offences for which the death penalty may be imposed;

(b)To establish a moratorium on executions, with a view to completely abolishing the death penalty;

(c)To make available to the public information with regard to the imposition of the death penalty;

5.Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out;

6.Requests the Secretary-General to continue to submit to the Commission on Human Rights, at its fifty-seventh session, in consultation with Governments, specialized agencies and intergovernmental and non-governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty;

7.Decides to continue consideration of the matter at its fifty-seventh session under the same agenda item.

66th meeting

26 April 2000”

74)Similarly, Clause 89 of the Report of the Special Rapporteur on Extra-Judicial Summary or Arbitrary Executions published on 24.12.1996 by the UN Commission on Human Rights under the caption “Restrictions on the use of death penalty” states that “the imposition of capital punishment on mentally retarded or insane persons, pregnant women and recent mothers is prohibited”. Further, Clause 116 thereof under the caption “Capital punishment” urges that

“Governments that enforce such legislation with respect to minors and the mentally ill are particularly called upon to bring their domestic criminal laws into conformity with international legal standards”.

75)United Nations General Assembly in its Sixty-second session, adopted a Resolution on 18.12.2007, which speaks about moratorium on the use of the death penalty. The following decisions are relevant:
“1. Expresses its deep concern about the continued application of the death penalty;

2.Calls upon all States that still maintain the death penalty:

(a)To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;
****** ***
76th plenary meeting 18 December 2007”

76)The following passage from the Commentary on the Laws of England by William Blackstone is relevant for our consideration:

“…In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”

77)India too has similar line of law and rules in the respective State Jail Manuals. Paras 386 and 387 of the U.P. Jail Manual applicable to the State of Uttarakhand are relevant for our purpose and are quoted hereinbelow:

“386. Condemned convicts developing insanity – When a convict under sentence of death develops insanity after conviction, the Superintendent shall stay the execution of the sentence of death and inform the District Magistrate, who shall submit immediately a report, through the Sessions Judge, for the orders of the State Government.

387.Postponement of execution in certain cases – The execution of a convict under sentence of death shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but shall not be postponed unless the illness is both serious and acute (i.e. not chronic). A report giving full particulars of the illness necessitating postponement of execution should at once be made to the Secretary to the State Government, Judicial (A) Department for the orders of the Government.”

Similar provisions are available in Prison Manuals of other States in India.

78)The above materials, particularly, the directions of the United Nations International Conventions, of which India is a party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment. To put it clear, “insanity” is a relevant supervening factor for consideration by this Court.

79)In addition, after it is established that the death convict is insane and it is duly certified by the competent doctor, undoubtedly, Article 21 protects him and such person cannot be executed without further clarification from the competent authority about his mental problems. It is also highlighted by relying on commentaries from various countries that civilized countries have not executed death penalty on an insane person. Learned counsel also relied on United Nations Resolution against execution of death sentence, debate of the General Assembly, the decisions of International Court of Justice, Treaties, European Conventions, 8th amendment in the United States which prohibits execution of death sentence on an insane person. In view of the well established laws both at national as well as international sphere, we are inclined to consider insanity as one of the supervening circumstances that warrants for commutation of death sentence to life imprisonment.

(iii) Solitary Confinement

80)Another supervening circumstance, which most of the petitioners appealed in their petitions is the ground of solitary confinement. The grievance of some of the petitioners herein is that they were confined in solitary confinement from the date of imposition of death sentence by the Sessions Court which is contrary to the provisions of the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, Prisons Act and Articles 14, 19 and 21 of the Constitution and it is certainly a form of torture. However, the respective States, in their counter affidavits and in oral submissions, have out rightly denied having kept any of the petitioners herein in solitary confinement in violation of existing laws. It was further submitted that they were kept separately from the other prisoners for safety purposes. In other words, they were kept in statutory segregation and not per se in solitary confinement.

81)Similar line of arguments were advanced in Sunil Batra vs. Delhi Administration and Ors. etc. (1978) 4 SCC 494, wherein this Court held as under:-

“87. The propositions of law canvassed in Batra’s case turn on what is solitary confinement as a punishment and what is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect, ‘solitary’, does Section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one sense, these questions are pushed to the background, because Batra’s submission is that he is not ‘under sentence of death’ within the scope of Section 30 until the Supreme Court has affirmed and Presidential mercy has dried up by a final ‘nay’. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the appeal for Presidential commutation are ordinarily precedent to the hangmen’s lethal move, and remain to be gone through. His contention is that solitary confinement is a separate substantive punishment of maddening severity prescribed by Section 73 of the Indian Penal Code which can be imposed only by the Court; and so tormenting is this sentence that even the socially less sensitive Penal Code of 1860 has interposed, in its cruel tenderness, intervals, maxima and like softening features in both Sections 73 and 74. Such being the penal situation, it is argued that the incarceratory insulation inflicted by the Prison Superintendent on the petitioner is virtual solitary confinement unauthorised by the Penal Code and, therefore, illegal. Admittedly, no solitary confinement has been awarded to Batra. So, if he is de facto so confined it is illegal. Nor does a sentence of death under Section 53, I.P.C. carry with it a supplementary secret clause of solitary confinement. What warrant then exists for solitary confinement on Batra? None. The answer offered is that he is not under solitary confinement. He is under ‘statutory confinement’ under the authority of Section 30(2) of the Prisons Act read with Section 366(2) Cr.P.C. It will be a stultification of judicial power if under guise of using Section 30(2) of the Prisons Act, the Superintendent inflicts what is substantially solitary confinement which is a species of punishment exclusively within the jurisdiction of the criminal court. We hold, without hesitation, that Sunil Batra shall not be solitarily confined. Can he be segregated from view and voice and visits and comingling, by resort to Section 30(2) of the Prisons Act and reach the same result ? To give the answer we must examine the essentials of solitary confinement to distinguish it from being ‘confined in a cell apart from all other prisoners’.

88. If solitary confinement is a revolt against society’s humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not a formal label, nor logomachy but a working technique of justice. The Penal Code and the Criminal Procedure Code regard punitive solitude too harsh and the Legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Section 73 and 74 I.P.C., Section 29 of the Prisons Act and the restrictive Prison Rules. It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans intermission, sans judicial oversight or natural justice, would be sanctioned. Commonsense quarrels with such nonsense.

89. For a fuller comprehension of the legal provisions and their construction we may have to quote the relevant sections and thereafter make a laboratory dissection thereof to get an understanding of the components which make up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules :

30.(1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession.

(2)Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under charge of a guard.

This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate confinement contemplated in Section 30(2) has this disciplinary limitation as we will presently see. If we pull to pieces the whole provision it becomes clear that Section 30 can be applied only to a prisoner “under sentence of death”. Section 30(2) which speaks of “such” prisoners necessarily relates to prisoners under sentence of death. We have to discover when we can designate a prisoner as one under sentence of death.

90. The next attempt is to discern the meaning of confinement “in a cell apart from all other prisoners”. The purpose is to maintain discipline and discipline is to avoid disorder, fight and other untoward incidents, if apprehended.

91. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in a single cell is solitary confinement. That is a separate punishment which the Court alone can impose. It would be a subversion of this statutory provision (Section 73 and 74 I.P.C.) to impart a meaning to Section 30(2) of the Prisons Act whereby a disciplinary variant of solitary confinement can be clamped down on a prisoner, although no court has awarded such a punishment, by a mere construction, which clothes an executive officer, who happens to be the governor of the jail, with harsh judicial powers to be exercised by punitive restrictions and unaccountable to anyone, the power being discretionary and disciplinary.

92. Indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories and cells is common. Therefore, “to be confined in a cell” does not compel us to the conclusion that the confinement should be in a solitary cell.

93. “Apart from all other prisoners” used in Section 30(2) is also a phrase of flexible import. ‘Apart’ has the sense of ‘To one side, aside,… apart from each other, separately in action or function’ (Shorter Oxford English Dictionary). Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a plurality of inmates the death sentencees will have to be kept separated from the rest in the same cell but not too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. “Shall” means, in this disciplinary context, “shall be liable to”. If the condemned prisoner is docile and needs the attention of fellow prisoners nothing forbids the jailor from giving him that facility.

96. Solitary confinement has the severest sting and is awardable only by Court. To island a human being, to keep him incommunicado from his fellows is the story of the Andamans under the British, of Napoleon in St. Helena ! The anguish of aloneness has already been dealt with by me and I hold that Section 30(2) provides no alibi for any form of solitary or separated cellular tenancy for the death sentence, save to the extent indicated.

111.In my judgment Section 30(2) does not validate the State’s treatment of Batra. To argue that it is not solitary confinement since visitors are allowed, doctors and officials come and a guard stands by is not to take it out of the category.”

82)It was, therefore, held that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners ‘under sentence of death’. 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, it was held that 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, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. 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’.

83)Even in Triveniben (supra), this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra (supra) and would amount to inflicting “additional and separate” punishment not authorized by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the jail authorities to comprehend and implement the actual intent of the verdict in Sunil Batra (supra).

84)As far as this batch of cases is concerned, we are not inclined to interfere on this ground.

(iv) Judgments Declared Per Incuriam

85)Many counsels, while adverting to the cause of the petitioners, complained that either the trial court or the High Court relied on/adverted to certain earlier decisions which were either doubted or held per incuriam such as Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Ravji alias Ramchandra vs. State of Rajasthan (1996) 2 SCC 175, Sushil Murmu vs. State of Jharkhand (2004) 2 SCC 338, Dhananjoy Chatterjee vs. State of W.B. (1994) 2 SCC 220, State of U.P. vs. Dharmendra Singh (1999) 8 SCC 325 and Surja Ram vs. State of Rajasthan (1996) 6 SCC 271. Therefore, it is the claim of the petitioners herein that this aspect constitutes a supervening circumstance that warrants for commutation of sentence of death to life imprisonment.

86)It is the stand of few of the petitioners herein that the guidelines issued in Machhi Singh (supra) are contrary to the law laid down in Bachan Singh (supra). Therefore, in three decisions, viz., Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767, Sangeet and Another vs. State of Haryana (2013) 2 SCC 452 and Gurvail Singh vs. State of Punjab (2013) 2 SCC 713 the verdict pronounced by Machhi Singh (supra) is held to be per incuriam.

87)In the light of the above stand, we carefully scrutinized those decisions. Even in Machhi Singh (supra), paragraphs 33 to 37 included certain aspects, viz., I. manner of commission of murder; II. motive for commission of murder; III. anti-social or socially abhorrent nature of the crime; IV. magnitude of crime and V. personality of victim of murder. Ultimately, in paragraph 38, this Court referred to the guidelines prescribed in Bachan Singh (supra). In other words, Machhi Singh (supra), after noting the propositions emerged from Bachan Singh (supra), considered the individual appeals and disposed of the same. In this regard, it is useful to refer a three-Judge Bench decision of this Court in Swamy Shraddananda (2) (supra). The Bench considered the principles enunciated in Machhi Singh (supra), Bachan Singh (supra) and after analyzing the subsequent decisions, came to the conclusion in paragraph 48:

“48…It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently.”

88) Except the above observations, the three-Judge Bench has nowhere discarded Machhi Singh (supra). In other words, we are of the view that the three-Judge Bench considered and clarified the principles/guidelines in Machhi Singh (supra). It is also relied by the majority in Triveniben (supra). As regards other cases, in view of the factual position, they must be read in consonance with the three-Judge Bench and the Constitution Bench.

89)As pointed out by learned ASG for the Union of India, no decision mentioned above was found to be erroneous or wrongly decided. However, due to various factual situations, certain decisions were clarified and not applied to the facts of the peculiar case. In these circumstances, we are of the view that there is no need to give importance to the arguments relating to per incuriam.

(v) Procedural Lapses

90)The last supervening circumstance averred by the petitioners herein is the ground of procedural lapses. It is the claim of the petitioners herein that the prescribed procedure for disposal of mercy petitions was not duly followed in these cases and the lapse in following the prescribed rules have caused serious injustice to both the accused (the petitioners herein) and their family members.

91)Ministry of Home Affairs, Government of India has detailed procedure regarding handling of petitions for mercy in death sentence cases. As per the said procedure, Rule I enables a convict under sentence of death to submit a petition for mercy within seven days after and exclusive of the day on which the Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court. Rule II prescribes procedure for submission of petitions. As per this Rule, such petitions shall be addressed to, in the case of States, to the Governor of the State at the first instance and thereafter to the President of India and in the case of Union Territories directly to the President of India. As soon as mercy petition is received, the execution of sentence shall in all cases be postponed pending receipt of orders on the same. Rule III states that the petition shall in the first instance, in the case of States, be sent to the State concerned for consideration and orders of the Governor. If after consideration it is rejected, it shall be forwarded to the Secretary to the Government of India, Ministry of Home Affairs. If it is decided to commute the sentence of death, the petition addressed to the President of India shall be withheld and intimation to that effect shall be sent to the petitioner. Rule V states that in all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lt. Governor/Chief Commissioner/Administrator or the Government of the State concerned, as the case may be, shall forward such petition, as expeditiously as possible, along with the records of the case and his or its observations in respect of any of the grounds urged in the petition. Rule VI mandates that upon receipt of the orders of the President, an acknowledgement shall be sent to the Secretary to the Government of India, Ministry of Home Affairs, immediately in the manner prescribed. In the case of Assam and Andaman and Nicobar Islands, all orders will be communicated by telegraph and the receipt thereof shall be acknowledged by telegraph. In the case of other States and Union Territories, if the petition is rejected, the orders will be communicated by express letter and receipt thereof shall be acknowledged by express letter. Orders commuting the death sentence will be communicated by express letters, in the case of Delhi and by telegraph in all other cases and receipt thereof shall be acknowledged by express letter or telegraph, as the case may be. Rule VIII(a) enables the convict that if there is a change of circumstance or if any new material is available in respect of rejection of his earlier mercy petition, he is free to make fresh application to the President for reconsideration of the earlier order.

92)Specific instructions relating to the duties of Superintendents of Jail in connection with the petitions for mercy for or on behalf of the convicts under sentence of death have been issued. Rule I mandates that immediately on receipt of warrant of execution, consequent on the confirmation by the High Court of the sentence of death, the Jail Superintendent shall inform the convict concerned that if he wishes to appeal to the Supreme Court or to make an application for special leave to appeal to the Supreme Court under any of the relevant provisions of the Constitution of India, he/she should do so within the period prescribed in the Supreme Court Rules. Rule II makes it clear that, on receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal filed by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, the Jail Superintendent shall forthwith inform him that if he desires to submit a petition for mercy, it should be submitted in writing within seven days of the date of such intimation. Rule III says that if the convict submits a petition within the period of seven days prescribed by Rule II, it should be addressed, in the case of States, to the Governor of the State at the first instance and, thereafter, to the President of India and in the case of Union Territories, to the President of India. The Superintendent of Jail shall forthwith dispatch it to the Secretary to the State Government in the Department concerned or the Lt. Governor/Chief Commissioner/Administrator, as the case may be, together with a covering letter reporting the date fixed for execution and shall certify that the execution has been stayed pending receipt of orders of the Government on the petition. Rule IV mandates that if the convict submits petition after the period prescribed by Rule II, the Superintendent of Jail shall, at once, forward it to the State Government and at the same time telegraphed the substance of it requesting orders whether execution should be postponed stating that pending reply sentence will not be carried out.

93)The above Rules make it clear that at every stage the matter has to be expedited and there cannot be any delay at the instance of the officers, particularly, the Superintendent of Jail, in view of the language used therein as “at once”.

94)Apart from the above Rules regarding presentation of mercy petitions and disposal thereof, necessary instructions have been issued for preparation of note to be approved by the Home Minister and for passing appropriate orders by the President of India.

95)Extracts from Prison Manuals of various States applicable for the disposal of mercy petitions have been placed before us. Every State has separate Prison Manual which speaks about detailed procedure, receipt placing required materials for approval of the Home Minister and the President for taking decision expeditiously. Rules also provide steps to be taken by the Superintendent of Jail after the receipt of mercy petition and subsequent action after disposal of the same by the President of India. Almost all the Rules prescribe how the death convicts are to be treated till final decision is taken by the President of India.

96)The elaborate procedure clearly shows that even death convicts have to be treated fairly in the light of Article 21 of the Constitution of India. Nevertheless, it is the claim of all the petitioners herein that all these rules were not adhered to strictly and that is the primary reason for the inordinate delay in disposal of mercy petitions. For illustration, on receipt of mercy petition, the Department concerned has to call for all the records/materials connected with the conviction. Calling for piece-meal records instead of all the materials connected with the conviction should be deprecated. When the matter is placed before the President, it is incumbent upon the part of the Home Ministry to place all the materials such as judgment of the Trial Court, High Court and the final Court, viz., Supreme Court as well as any other relevant material connected with the conviction at once and not call for the documents in piece meal.

97)At the time of considering individual cases, we will test whether those Rules have been strictly complied with or not on individual basis.

Analysis on Case-to-Case Basis

Writ Petition (Crl.) Nos. 55 and 132 of 2013

98)Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, family members of death convicts – Suresh and Ramji have filed Writ Petition (Crl.) No. 55 of 2013. Subsequent to the filing of the Writ Petition (Crl.) No. 55 of 2013 by the family members, the death convicts themselves, viz., Suresh and Ramji, aged 60 years and 45 years respectively, belonging to the State of Uttar Pradesh, filed Writ Petition (Crl.) No. 132 of the 2013.

99)On 19.12.1997, the petitioners were convicted under Section 302 IPC for the murder of five family members of the first petitioner’s brother for which they were awarded death sentence. On 23.02.2000, the Allahabad High Court confirmed their conviction and death sentence and, subsequently this Court dismissed their Criminal Appeal being No. 821 of 2000, vide judgment dated 02.03.2001.

100)On 09.03.2001 and 29.04.2001, the first and the second petitioners herein filed mercy petitions respectively addressed to the Governor/President of India. On 28.03.2001, Respondent No. 2–State of Uttar Pradesh wrote to the prison authorities seeking information inter alia on the conduct of the first petitioner in prison. On 05.04.2001, the prison authorities informed Respondent No. 2 about his good conduct.

101)On 18.04.2001, this Court dismissed the Review Petition (Crl.) being No. 416 of 2001 which was filed on 30.03.2001.

102)On 22.04.2001, Respondent No. 1–Union of India wrote to Respondent No. 2 asking for the record of the case and for information on whether mercy petition has been rejected by the Governor. Meanwhile, other mercy petitions were received by Respondent No. 1. There is no reference in the affidavit of Respondent No. 1 that the same were forwarded to Respondent No. 2 for consideration.

103)On 04.05.2001, Respondent No. 2 wrote to the Government Advocate, District Varanasi asking for a copy of the trial court judgment, which information is available from the counter affidavit filed by Respondent No. 2. On 23.05.2001, Respondent No. 2 sent a reminder to the Government Advocate, District Varanasi to send a copy of the trial court judgment. On 04.09.2001, the District Magistrate, Varanasi informed Respondent No. 2 that it is not possible to get a copy of the trial court judgment as all the papers are lying in the Supreme Court.

104)On 13.12.2001, without obtaining a copy of the trial court judgment, Respondent No. 2 advised the Governor to reject the mercy petition. On 18.12.2001, the Governor rejected the mercy petition after taking nine months’ time. On 22.01.2002, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the petitioners’ mercy petition. It is the grievance of the petitioners that neither the petitioners nor their family members were informed about the rejection.

105)On 28.03.2002, Respondent No. 1 wrote to Respondent No. 2 seeking copy of the trial court judgment. On 12.06.2002, the judgment of the trial court was furnished by Respondent No. 2 to Respondent No. 1.

106)Rule V of the Mercy Petition Rules which exclusively provides that the mercy petition should be sent along with the judgments and related documents immediately, states as follows:

“In all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lieut Governor/Chief Commissioner/Administrator or the Government of the State concerned as the case may be shall forward such petition as expeditiously as possible along with the records of the case and his or its observations in respect of any of the grounds urged in the petition”.

107)There is no explanation for the delay of about five months in sending the papers to Respondent No. 1. On 07.12.2002, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petition. Twelve reminders were sent between 17.01.2003 and 14.12.2005.

108)On 27.07.2003, Respondent No. 4-Superintendent of Jail, in accordance with the provisions of the U.P. Jail Manual, wrote to Respondent No. 2 seeking information about the petitioners’ pending mercy petitions. Thereafter, twenty-seven reminders were sent by the prison authorities between 29.09.2003 and 29.05.2006.

109)On 08.04.2004, Respondent No. 1 advised the President to reject the mercy petition. On 21.07.2004, the President returned the petitioners’ file (along with the files of ten other death-row convicts) to Respondent No. 1 for the advice of the new Home Minister. On 20.06.2005, Respondent No. 1 advised the President to reject the mercy petitions. On 24.12.2010, Respondent No. 1 recalled the files from the President. On 13.01.2011, the said files were received from the President. On 19.02.2011, Respondent No. 1 advised the President to reject the mercy petition.

110)On 14.11.2011, Respondent No. 2 wrote to Respondent No. 1 seeking information about the status of the petitioners’ mercy petitions.

111)On 29.10.2012, the President returned the file for the advice of the new Home Minister. On 16.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 08.02.2013, the President rejected the mercy petitions.

112)On 05.04.2013, the petitioners heard the news reports that their mercy petitions have been rejected by the President of India. It is asserted that they have not received any written confirmation till this date.

113)On 06.04.2013, the petitioners authorized their family members, viz. Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan, to file an urgent writ petition in this Court, which was ultimately numbered as Writ Petition (Crl.) No. 55 of 2013. By order dated 06.04.2013, this Court stayed the execution of the petitioners. Only on 20.06.2013, the prison authorities informed vide letter dated 18.06.2013 that the petitioners’ mercy petitions have been rejected by the President.

114)All the above details have been culled out from the writ petitions filed by the petitioners and the counter affidavit filed on behalf of the Union of India as well as the State of Uttar Pradesh. The following are the details relating to disposal of mercy petitions by the Governor and the President:

115)There is no dispute that these petitioners killed five members of their family – two adults and three children over property dispute. It is a heinous crime and they were awarded death sentence which was also confirmed by this Court. However, the details furnished in the form of affidavits by the petitioners, counter affidavit filed by Respondent Nos. 1 and 2 as well as the records produced by Mr. Luthra, learned Additional Solicitor General, clearly show that there was a delay of twelve years in disposal of their mercy petitions. To put it clear, the Governor of Uttar Pradesh took around ten months to reject the mercy petitions (09.03.2001 to 28.01.2002) and the President rejected the petitions with a delay of eleven years (28.01.2002 to 08.02.2013). We also verified the summary prepared by the Ministry of Home Affairs for the President and the connected papers placed by learned ASG wherein no discussion with regard to the same was attributed to.

116)On going through various details, stages and considerations and in the light of various principles discussed above and also of the fact that this Court has accepted in a series of decisions that undue and unexplained delay in execution is one of the supervening circumstances, we hold that in the absence of proper, plausible and acceptable reasons for the delay, the delay of twelve years in considering the mercy petitions is a relevant ground for the commutation of death sentence into life imprisonment. We are also satisfied that the summary prepared by the Ministry of Home Affairs for the President makes no mention of twelve years’ delay much less any plausible reason. Accordingly, both the death convicts – Suresh and Ramji have made out a case for commutation of their death sentence into life imprisonment.

Writ Petition (Crl.) No. 34 of 2013

117)This writ petition is filed by Shamik Narain which relates to four death convicts, viz., Bilavendran, Simon, Gnanprakasam and Madiah aged 55 years, 50 years, 60 years and 64 years respectively.

118)The case emanates from the State of Karnataka. According to the petitioners, the accused persons are in custody for nearly 19 years and 7 months. All the persons were charged under IPC as well as under the provisions of the TADA. By judgment dated 29.09.2001, the Designated TADA Court, Mysore convicted the accused persons for the offence punishable under TADA as well as IPC and the Arms Act and sentenced them inter alia to undergo rigorous imprisonment for life.

119)All the accused persons preferred Criminal Appeal being Nos. 149-150 of 2002 before this Court which were admitted by this Court. The State of Karnataka also filed a Criminal Appeal being No. 34 of 2003 against the judgment dated 29.09.2001 praying for enhancement of sentence from life imprisonment to death sentence. On 09.01.2003, this Court refused to accept the claim of the State of Karnataka and dismissed its appeal on the ground of limitation. However, this Court, by judgment and order dated 29.01.2004, suo motu enhanced the sentence of the accused persons from life imprisonment to death. In the same order, this Court confirmed the conviction and sentence imposed by the TADA Court and dismissed the appeals preferred by the accused.

120)On 12.02.2004, separate mercy petitions were filed by the petitioners and the Superintendent, Central Jail, Belgaum forwarded the same to Respondent No. 1.

121)On 29.04.2004, the review petitions filed by the petitioners were also dismissed by this Court.

122)On 29.07.2004, the Governor rejected the mercy petitions and, according to the petitioners, they were never informed about the same.

123)On 07.08.2004, Respondent No. 2 forwarded the mercy petitions to Respondent No. 1 which were received on 16.08.2004. Here again, there is no explanation for the delay of six months from 12.02.2004, when the mercy petitions were first forwarded to Respondent No. 1.

124)On 19.08.2004, Respondent No. 1 requested Respondent No. 2 for a copy of the trial court judgment. Here again, the trial court judgment and other relevant documents should have been sent to Respondent No. 1 along with the mercy petitions. We have already extracted Rule V of the Mercy Petition Rules relating to forwarding of the required materials as expeditiously as possible. On 30.08.2004, Respondent No. 2 sent a copy of the trial court judgment to Respondent No. 1 which was received on 09.09.2004.

125)On 18.10.2004, the petitioners’ gang leader Veerappan was killed in an encounter by a Special Task Force and his gang disbanded.

126)On 29.04.2005, the Home Minister advised the President to reject the mercy petitions. There was no further progress in the petitions till the files were recalled from the President and received back in the Ministry of Home Affairs, i.e., six years later on 16.05.2011. Though separate counter affidavit has been filed by Respondent No. 1, there is no explanation whatsoever for the delay of six years. Learned counsel for the petitioners pointed out that it is pertinent to take note of the fact that two consecutive Presidents had deemed it fit not to act on the advice suggested. In any event, this procrastination violated the petitioners’ right under Article 21 of the Constitution by inflicting six additional years of imprisonment under the constant fear of imminent death not authorized by judgment of any court.

127)On 28.02.2006, Curative Petition being No. 6 of 2006 was dismissed by this Court.

128)In the meanwhile, letters were sent by the petitioners to the President of India highlighting their grievance about their procrastination for about last twelve years. The information furnished by the Ministry of Home Affairs under the Right to Information Act shows that mercy petitions submitted after the petitions of the petitioners were given priority and decided earlier while the mercy petitions of the petitioners were kept pending.

129)On 16.05.2011, the mercy petitions were recalled by Respondent No. 1 from the President. Here again, there is no explanation for the delay of six years. On 25.05.2011, the Home Minister advised the President for the second time to reject the mercy petition. On 19.11.2012, the President returned the file stating that the views of the new Home Minister may be ascertained. Here again, there is no explanation for the delay of 1 ½ years while the file was pending with the President. On 16.01.2013, the Home Minister advised the President for the third time to reject the mercy petitions. On 08.02.2013, the President rejected the mercy petitions and Respondent No. 2 was informed vide letter dated 09.02.2013.

130)It is the grievance of the petitioners that though they were informed orally and signatures were obtained, the prison authorities refused to hand over the copy of the rejection letter to them or to their advocate. The details regarding delay in this matter are as follows:

131)The delay of six months (12.02.2004 – 07.08.2004) when the mercy petitions were being considered by the Governor is attributed to Respondent No. 1 because the mercy petition had been sent to Respondent No. 1 on 12.02.2004 and also because Respondent No. 2/Governor did not have jurisdiction to entertain the mercy petitions and even if clemency had been granted, it would have been null and void.

132)From the particulars furnished by the petitioners as well as the details mentioned in the counter affidavit of Respondent Nos. 1 and 2, we are satisfied that the delay of nine years in disposal of their mercy petitions is unreasonable and no proper explanation has been offered for the same. Apart from the delay in question, according to us, it is important to note that delay is undue and unexplained. Certain other aspects also support the case of the petitioners for commutation.

133)We have already mentioned that on 29.01.2004, this Court, by its judgment and order, suo motu enhanced the sentence from life imprisonment to death. It is relevant to point out that when the State preferred an appeal for enhancement of the sentence from life to death, this Court rejected the claim of the State, however, this Court suo motu enhanced the same and the fact remains that the appeal filed by the State for enhancement was rejected by this Court.

134)In the earlier part of our discussion, we have already held that the decision in Devender Pal Singh Bhullar (supra), holding that the cases pertaining to offences under TADA have to be treated differently and on the ground of delay in disposal of mercy petition the death sentence cannot be commuted, is per incuriam. Further, this Court in Yakub Memon vs. State of Maharashtra (Criminal Appeal No. 1728 of 2007) delivered on 21.03.2013 and in subsequent cases commuted the death sentence passed in TADA case to imprisonment for life.

135)Taking note of these aspects, viz., their age, in custody for nearly twenty years, unexplained delay of nine years in disposal of mercy petitions coupled with other reasons and also of the fact that the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 9 ½ years and also in the light of the principles enunciated in the earlier paragraphs, we hold that the petitioners have made out a case for commutation of death sentence to imprisonment for life.

Writ Petition (Crl.)No. 187 of 2013

136)Praveen Kumar, aged about 55 years, hailing from Karnataka, has filed this petition. He was charged for murdering four members of a family and ultimately by judgment dated 05.02.2002, he was convicted under Sections 302, 392 and 397 IPC and sentenced to death. The petitioner was defended on legal aid.

137)By judgment dated 28.10.2002, death sentence was confirmed by the Division Bench of the High Court of Karnataka and by order dated 15.10.2003, this Court dismissed the appeal filed by the petitioner.

138)On 25.10.2003, the petitioner sent the mercy petition addressed to the President of India wherein he highlighted that he has been kept in solitary confinement since the judgment of the trial Court, i.e., 05.02.2002.

139)On 12.12.2003, Respondent No. 1 requested Respondent No. 2 to consider the petitioner’s mercy petition under Article 161 of the Constitution and intimate the decision along with the copies of the judgment of the trial Court, High Court, police diary and court proceedings. Respondent No. 1 also received mercy petition signed by 260 persons. By order dated 15.09.2004, the Governor rejected the mercy petition. On 30.09.2004, Respondent No. 2 informed Respondent No. 1 that the petitioner’s mercy petition has been rejected by the Governor.

140)On 18.10.2004, Respondent No. 1 requested Respondent No. 2 for the second time to send the judgment of the trial Court along with the police diary and court proceedings. On 20.12.2004, according to Respondent No. 1, Respondent No. 2 sent the requested documents to Respondent No. 1 but Respondent No. 1 claimed that the same were in Kannada. On 07.01.2005, Respondent No. 1 returned the documents sent by Respondent No. 2 with a request to provide English translation. The State Government was again reminded in this regard on 05.04.2005, 20.04.2005, 04.06.2005 and 21.07.2005. Even after these reminders, the translated documents were not sent.

141)On 06.09.2005, the mercy petition of the petitioner- Praveen Kumar was processed and examined without waiting for the copy of the judgment of the trial Court and submitted for consideration of the Home Minister. The Home Minister approved the rejection of the mercy petition. On 07.09.2005, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. On 14.03.2006, Respondent No. 2 sent the translated documents to Respondent No. 1.

142)On 20.08.2006, the petitioner wrote to the President referring to his earlier mercy petition dated 25.10.2003 stating that for the last four years and seven months he has been languishing in solitary confinement under constant fear of death.

143)On 29.09.2006, the petitioner wrote to the Chief Minister of Karnataka referring to his earlier mercy petition dated 25.10.2003 highlighting the same grievance.

144)The information received under RTI Act shows that mercy petitions submitted after the petition of the petitioner were given priority and decided earlier while the mercy petition of the petitioner was kept pending.

145)On 01.07.2011, the petitioner’s mercy petition was recalled from the President and received by Respondent No. 1 and thereafter it remained pending consideration of the President of India for five years and 10 months. There is no explanation for this inordinate delay.

146)On 14.07.2011, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. The file remained with the President till 29.10.2012, i.e. for 1 year 3 months and no explanation was offered for this delay.

147) On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1 ostensibly on the ground of an appeal made by 14 former Judges. However, this appeal, as is admitted in the counter affidavit filed by Respondent No. 1 itself, “had not indicated any plea in respect of Praveen Kumar”. On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

148)On 26.03.2013, the President rejected the petitioner’s mercy petition. On 05.04.2013, the petitioner heard news reports that his mercy petition has been rejected by the President of India. He has not received any written confirmation of the same till date.

149)On 06.04.2013, this Court stayed the execution of the sentence in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR. The following details show the delay in disposal of petitioner’s mercy petition by the Governor and the President:

150)Though learned counsel for the petitioner highlighted that the trial Court relied on certain decisions which were later held to be per incuriam, in view of the fact that there is a delay of 9½ years in disposal of the mercy petition, there is no need to go into the aspect relating to the merits of the judicial decision. On the other hand, we are satisfied that even though the Union of India has filed counter affidavit, there is no explanation for the huge delay. Accordingly, we hold that the delay in disposal of the mercy petition is one of the relevant circumstances for commutation of death sentence. Further, we perused the notes prepared by the Ministry of Home Affairs as well as the decision taken by the President. The summary prepared by the Ministry of Home Affairs for the President makes no mention of the unexplained and undue delay of 9 ½ years in considering the mercy petition. The petitioner has rightly made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.)No. 193 of 2013

151)Gurmeet Singh, aged about 56 years, hailing from U.P. has filed this petition. According to him, he is in custody for 26 years.

152)The allegation against the petitioner is that he murdered 13 members of his family on 17.08.1986. By order dated 20.07.1992, the trial Court convicted the petitioner under Sections 302, 307 read with Section 34 IPC and awarded death sentence.

153)On 28.04.1994, the Division Bench of the Allahabad High Court pronounced the judgment in the petitioner’s Criminal Appeal No. 1333 of 1992. The two Hon’ble Judges disagreed with each other on the question of guilt, Malviya, J. upheld the petitioner’s conviction and death sentence and dismissed his appeal, while Prasad, J. acquitted the petitioner herein and allowed his appeal.

154)On 29.02.1996, in terms of Section 392 of the Code, the papers were placed before a third Judge (Singh, J.), who agreed with Malviya, J. and upheld the petitioner’s conviction and sentence.

155)On 08.03.1996, the Division Bench dismissed the appeal of the petitioner herein and confirmed his death sentence.

156)On 28.09.2005, this Court dismissed the petitioner’s appeal and upheld the death sentence passed on him. The petitioner was represented on legal aid.

157)On 06.10.2005, the petitioner sent separate mercy petitions through jail addressed to the President of India and the Governor of Uttar Pradesh.

158)On 24.12.2005, the Prison Superintendent sent a radiogram to Respondent No. 2 reminding about the pendency of the mercy petition. Thereafter, 10 radiograms/letters were sent till 16.05.2006. These 11 reminders are itself testimony of the unreasonable delay by the State Government in deciding the petitioner’s mercy petition.

159)On 04.04.2006, the Governor rejected the petitioner’s mercy petition.

160)On 26.05.2006, the fact of the rejection by the Governor was communicated to Respondent No. 1 and to the Prison authorities after a delay of more than 1½ months.

161)On 16.06.2006, the President forwarded to Respondent No. 1 letter dated 02.06.2006 of the Additional District & Sessions Judge, Shahjahanpur, addressed to Respondent No. 2 requesting to intimate the status of the petitioner’s mercy petition pending before the President.

162)On 07.07.2006, Respondent No. 1 forwarded the letter of the Additional District and Sessions Judge to Respondent No. 2 with a request to forward the petitioner’s mercy petition as the same has not been received along with the judgment of the courts, police diary etc.

163)On 09.02.2007, Respondent No. 2 sent the mercy petition and other related documents to Respondent No. 1, i.e., 10 months after the mercy petition was rejected by the Governor. The Mercy Petition Rules, which we have already extracted in the earlier part, explicitly provide that the mercy petition and the related documents should be sent immediately. There is no explanation for the delay of 10 months in sending the papers to Respondent No. 1.

164)On 18.05.2007, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

165)On 04.11.2009, the petitioner’s mercy petition file was received from the President’s office by Respondent No. 1.

166)Again on 09.12.2009, Respondent No. 1 advised the President to reject the petitioner’s mercy petition. There was no progress in the petitioner’s case for the next 2 years and 11 months, i.e., till 29.10.2012.

167)On 29.10.2012, the President returned the petitioner’s mercy petition to Respondent No. 1, ostensibly on the pretext of an appeal made by 14 former judges, even though, as is admitted in the counter affidavit filed by Respondent No. 1, this appeal does not in any way relate to the case of the petitioner.

168)On 16.01.2013, Respondent No. 1 advised the President to reject the petitioner’s mercy petition.

169)On 01.03.2013, the President of India rejected the petitioner’s mercy petition.

170)On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India. However, till date the petitioner has not received any official written communication that his mercy petition has been rejected either by the Governor or by the President.

171)On 06.04.2013, this Court stayed the execution of the death sentence of the petitioner in W.P. (Crl.) No. 56 of 2013 filed by the Peoples’ Union for Democratic Rights (PUDR).

172)On 20.06.2013, 3 ½ months after the actual rejection of the petitioner’s mercy petition, the news was communicated to the prison authorities. The following are the details regarding the delay in disposal of mercy petition by the Governor and the President:

The above details clearly show that there is a delay of 7 years 8 months in disposal of mercy petition by the Governor and the President.

173)Though Respondent No. 1 has filed a separate counter affidavit, there is no acceptable reason for the delay of 7 years 8 months. In the absence of adequate materials for such a huge delay, we hold that the delay is undue and unexplained.

174)In the file of the Home Ministry placed before us, at pages 31 & 32, the following recommendations have been made for commutation of death sentence to life imprisonment which are as under:

“I think that in this case too, we can recommend commutation of death sentence to life imprisonment for two reasons:

1)There was a disagreement amongst the Hon. Judges of the High Court implying thereby that there was some doubt in the mind of at least one Hon. Judge that this might not be the ‘rarest of the rare cases’.

2)Unusual long delay in investigation and trial is another reason. This kind of submission was also made by the learned amicus curiae but was disregarded by the Court. I think the submission should have been accepted.

Accordingly, I suggest that we may recommend that the death sentence of Sh. Gurmeet Singh be commuted to that of life imprisonment but he would not be allowed to come out of prison till he lives.
Sd/-“

However, this was not agreed to by the Home Minister.

175)In view of the reasons and discussion in the earlier part of our order, the petitioner-convict is entitled to commutation of death sentence into life imprisonment. Even in the summary prepared by the Ministry of Home Affairs for the President makes no mention of the delay of 7 years 8 months. We are satisfied that the petitioner has made out a case for commutation of death sentence into life imprisonment.

Writ Petition (Crl.) No. 188 of 2013

176)Sonia and Sanjeev Kumar, aged about 30 and 38 years respectively, hailing from Haryana, have filed this petition. According to them, they are in custody for about 12 years.

177)On 27.05.2004, both of them were convicted for the offence punishable under Section 302 and sentenced to death by the trial Court. By order dated 12.04.2005, the High Court confirmed their conviction but modified their sentence of death into life imprisonment. The order of the High Court was challenged before this Court in Criminal Appeal No. 142 of 2005 and Criminal Appeal No. 894 of 2005 and Criminal Appeal No. 895 of 2006. By order dated 15.02.2007, this Court upheld their conviction and enhanced the imprisonment for life to death sentence.

178)In February, 2007, the petitioners filed a mercy petition before the Governor of Haryana. Similar mercy petitions were sent to the President.

179)On 23.08.2007, the Review Petitions being Nos. 260-262 of 2007 filed by the petitioners were dismissed.

180)On 31.10.2007, Respondent No. 2 informed Respondent No. 1 that the mercy petitions filed by the petitioners have been rejected by the Governor of Haryana and forwarded the relevant documents.

181)On 08.02.2008, Respondent No. 1 advised the President to reject the petitioner’s mercy petitions. The mercy petitions remained pending with the President till 16.04.2009.

182)On 16.04.2009, the President sent the petitioners’ file along with the first petitioner’s letter dated 17.02.2009 to reject their petitions conveying their difficult position to continue with their life to Respondent No. 1.

183)On 20.05.2009, Respondent No. 1 advised the President for the second time to reject the petitioners’ mercy petitions.

184)On 04.02.2010, the President returned the petitioners’ file to Respondent No. 1 seeking clarification whether the first petitioner’s request to reject the mercy petition amounts to withdrawal of original mercy petition and if so, is there further need to reject the petition? On 17.02.2010, Respondent No. 1 referred the President’s query to the Law Department. On 05.03.2010, Respondent No. 1 advised the President for the 3rd time to reject the petitioners’ mercy petitions. On 03.01.2012, upon the request of Respondent No. 1, the President returned the petitioners’ file to Respondent No. 1. On 18.01.2012, Respondent No. 1 advised the President for the 4th time to reject the petitioners’ mercy petitions.

185)On 29.10.2012, the President returned the petitioners’ file back to Respondent No. 1 in the light of the appeal made by 14 former judges. It is pointed out by learned counsel that admittedly the appeal was made for other prisoners and not for the petitioners and so there was no need to return the files.

186)On 29.01.2013, since it was found that the judges’ appeal did not pertain to the petitioners, Respondent No. 1 advised the President for the 5th time to reject the petitioners’ mercy petitions. On 21.02.2013, the petitioners, anxious for a decision on their mercy petitions, wrote to the President again reiterating their plea for mercy.

187)On 28.03.2013, the President returned the petitioners’ file to Respondent No. 1, supposedly on account of the petitioners’ letter dated 21.02.2013. On 06.06.2013, Respondent No. 1 advised the President for the 6th time to reject the petitioners’ mercy petitions “as no mitigating circumstance was found”. Finally, on 29.06.2013, the President rejected the petitioners’ mercy petitions.

188)On 13.07.2013, the petitioners’ family members received a letter dated 11.07.2013 from the prison authorities informing that the petitioners’ mercy petitions have been rejected by the President of India. The following are the details regarding the delay in disposal of the mercy petition by the Governor and the President:

189)In view of the above details as well as the explanation offered in the counter affidavit filed by Respondent No. 1, we hold that the delay in disposal of mercy petitions is undue and unexplained and in the light of our conclusion in the earlier part of our order, the unexplained and undue delay is one of the circumstances for commutation of death sentence into life imprisonment.

190)In addition, due to unbearable mental agony after confirmation of death sentence, petitioner No.1 attempted suicide. In view of our conclusion that the delay in disposal of mercy petitions is undue and unexplained, we hold that the petitioners have made out a case for commutation of death sentence into life imprisonment.

Writ Petition(Crl.)No. 192 of 2013

191)PUDR has filed this petition for Sundar Singh, who is hailing from Uttarkhand. On 30.06.2004, Sundar Singh was convicted by the Sessions Court under Sections 302, 307 and 436 IPC and sentenced to death. On 20.07.2005, the High Court confirmed the death sentence passed by the trial Court. On 16.09.2010, this Court dismissed the appeal filed by Sundar Singh through legal aid.

192)On 29.09.2010, Sundar Singh sent a mercy petition through jail authorities addressed to the President of India stating therein that he had committed the offence due to insanity and that he repented for the same each day and shall continue to do for the rest of his life.

193)On 29.09.2010, the prison authorities filled in a nominal roll for Sundar Singh in which they stated that Sundar Singh’s mental condition is abnormal. The said form was sent to Respondent Nos. 1 and 2. The prison authorities noticed that Sundar Singh’s behaviour had become extremely abnormal. He was initially treated for mental illness by the prison doctor and, thereafter, he was examined by doctors from the HMM District Hospital, Haridwar. Thereafter, when he continued to show signs of insanity, the prison authorities called a team of psychiatrists from the State Mental Institute, Dehradun to examine him. The psychiatrists found him to be suffering from schizophrenia and recommended that he be sent to Benaras Mental Hospital. On 15.10.2010, Sundar Singh was admitted to Benaras Mental Hospital and he remained there for 1 ½ years till his discharge on 28.07.2012 with further prescriptions and advice for follow up treatment.

194)On 19.10.2010, Respondent No. 1 informed Respondent No. 2 in writing that Sundar Singh’s mercy petition should be first sent to the Governor.

195)Based on the direction of Respondent No. 1, on 20.10.2010, the prison authorities forwarded the mercy petition of Sundar Singh to the Governor. On 21.01.2011, the Governor rejected the mercy petition of Sundar Singh and Respondent No. 2 forwarded the same to the President.

196)On 24.05.2011, Respondent No. 1 wrote to Respondent No. 2 asking for a copy of Sundar Singh’s nominal roll, medical record and crime record. On 01.06.2011, Respondent No. 2 sent Sundar Singh’s nominal roll and medical report to Respondent No. 1. In the covering letter, Respondent No. 2 informed Respondent No. 1 that Sundar Singh had been declared to be a mental patient by medical experts and was admitted to Varanasi Mental Hospital for treatment on 11.12.2010.

197)On 03.02.2012, Respondent No. 1 advised the President to reject the mercy petition filed by Sundar Singh. On 30.10.2012, the President returned the mercy petition of Sundar Singh ostensibly because of the petition sent by 14 former judges wherein there was a specific reference to the case of Sundar Singh.

198)On 28.12.2012, Sundar Singh was examined by a doctor in prison who noted that he was “suicidally inclined” and prescribed him very strong anti psychotic medicines. Despite that, on 01.02.2013, Respondent No. 1 advised the President to reject the mercy petition of Sundar Singh.

199)On 16.02.2013, the prison authorities again called a team of three psychiatrists from the State Mental Hospital, Dehradun, who examined Sundar Singh. In their report, they mentioned that Sundar Singh had already been diagnosed as suffering from undifferentiated schizophrenia. They noted that he was “unkempt and untidy, cooperative but not very much communicative” and his “speech is decreased in flow and content” and “at times is inappropriate and illogical to the question asked.” They concluded as follows:

“he is suffering from chronic psychotic illness and he needs long term management”.

The prison authorities sent this report to Respondent No. 1.

200)On 31.03.2013, the President rejected the mercy petition of Sundar Singh. On 02.04.2013, Respondent No. 1 informed Respondent No. 2 that the President has rejected the mercy petition of Sundar Singh. On 05.04.2013, Sundar Singh was orally informed by the prison authorities that his mercy petition had been rejected by the President but he did not appear to understand and did not react.

201)On 06.04.2013, this Court stayed the execution of death sentence of Sundar Singh in W.P.(Crl.) No. 56 of 2013 filed by PUDR.

202) On 31.10.2013, at the instance of the prison authorities, Dr. Arun Kumar, Neuro Psychiatrist from the State Mental Institute, Dehradun was brought to the prison to examine Sundar Singh. He opined as follows:

“Sundar Singh is suffering from schizophrenia (undifferentiated) and requires long term bed rest. He is not mentally fit to be awarded for death penalty.”

203)We have carefully perused all the details. Though there is a delay of only 2 ½ years in considering the mercy petition of Sundar Singh, the counter affidavit as well as various communications sent by the jail authorities clearly show that Sundar Singh was suffering from mental illness, i.e., Schizophrenia.

204)In the earlier part of our order, while considering “mental illness”, we have noted Rules 386 and 387 of the U.P. Jail Manual which are applicable to the State of Uttarakhand also, which clearly show that when condemned convict develops insanity, it is incumbent on the part of the Superintendent to stay the execution of sentence of death and inform the same to the District Magistrate. In the reply affidavit filed on behalf of Respondent Nos. 2-4 insofar as mental illness of the convict – Sundar Singh is concerned, it is stated as under:

“16. As far as illness of the convict Sunder Singh is concerned, he has been regularly medically examined as per the provisions of the jail manual, he was examined by Medical Officers of HMM District Hospital, Haridwar and thereafter on the recommendation of the Doctors of State Mental Health Institute, Dehradun, the Prisoner was sent to Mental Hospital, Varanasi on 15.10.2010 for examination and treatment.

17.Convict Sunder Singh was admitted in the Mental Hospital, Varansai for treatment and after his treatment, Board of Visitors under Chairpersonship of District Judge, Varansai, convict Sunder Singh was found fit and, therefore, they discharged the convict Sunder Singh along with certain prescription and advice on 28.7.2012 from Mental Hospital, Varanasi…

18.In pursuance of above advice of the Doctors of Mental Hospital, Varansai, on the request of the Jail Administration to State Mental Hospital, Selaqui, Dehradun, a panel of three Doctors visited on 16.2.2013 and examined the Convict Sunder Singh and opined that on the basis of information and present assessment, he is suffering from chronic psychiatric illness and he need long term treatment…

19.Convict has thereafter been regularly provided due medical assistance in the form of medicine and examination. On 31.10.2013, Dr. Arun Kumar, neuro psychiatric from State Mental Health Institute, Selaqui, Dehradun visited to the District Jail for examination of the Convict Sunder Singh and opined: Impression: Sunder Singh is suffering from Schizophrenia (undifferentiated) and require long term bed rest. He is not mentally fit to be awarded for death penalty…

20.On 5.11.2013, on the aforesaid report dated 31.10.2013, Chief Medical Superintendent, State Medical Health Institute Selaqui Dehradun, has been requested to send a panel of Doctors for thorough examination of the mental state of the said Prisoner Sunder Singh. Upon medical examination by a board of Doctors and receipt of the examination report the State and Jail Authorities shall act in accordance with law.

In view of the above submission, this Hon’ble Court may kindly pass appropriate orders disposing of the present petition. The answering respondent is duty bound to comply the orders passed by the Hon’ble Court.”

Along with the reply affidavit, the State has fairly enclosed the medical reports, various correspondence/intimation about the Schizophrenia of lunatic nature/mental illness of the petitioner suffering from Schizophrenia. Further, even on 24.05.2011, the Government of India, Ministry of Home Affairs, after receipt of mercy petition of the condemned prisoner – Sundar Singh requested the Principal Secretary, Government of Uttarakhand, Secretariat, Dehradun to furnish the following documents/information at the earliest:

(i)Present age of the prisoner along with nominal roll.

(ii)Medical report of the prisoner

(iii)Previous crime record, if any, of the prisoner.

205)Pursuant to the same, Shri Rajeev Gupta, Principal Secretary, Government of Uttarakhand furnished all the details to the Joint Secretary (Judicial), Ministry of Home Affairs, Government of India, Jaisalmer House, New Delhi enclosing various medical reports. Learned counsel for the State has also placed mental status of Sundar Singh duly certified by the State Mental Health Institute, Dehradun which is as under:

“MENTAL STATUS EXAMINATION REPORT

Prisoner Name: Mr. Sunder Singh, age about 40 yrs/male, S/o Mr. Har Singh with mark of identification – Black mole over left side lower part of neck, has been assessed by following experts on 16/2/2013 at District Jail, Haridwar. Dr. J.S. Bisht, Psychiatrist Dr. Arun Kumar, Psychiatrist Dr. Pratibha Sharma, Psychiatrist As per information by jail staff and fellow prisoners above mentioned prisoner is not interacting with others, not concerned about personal hygiene and would like to stay alone.

Previous record show that he was referred to Banaras Mental Hospital on 11/12/2010 for Management after being diagnosed as Undifferentiated Schizophrenia by previous psychiatrist.

Current mental status examination shows that he is unkempt and untidy, cooperative but not very much communicative. Speech is decreased in flow and content. At time it was inappropriate and illogical to the question asked. Affect is blunted. Thought flow is decreased and there is poor awareness…

OPINION

On the basis of information and present assessments he is suffering from chronic Psychotic illness and he needs long term treatment.
(Signature of Dr. illegible) (Signature of Dr. illegible)
(Signature of Dr. illegible)
Date 16/2/2013
Dr. J.S. Bisht Dr. Arun Kumar Dr. B. Pratibha
Sharma
Psychiatrist
Thumb Date 16/2/13 Distt. Jail
Haridwar”

MENTAL STATUS EXAMINATION REPORT

Prisoner Name: Mr. Sunder Singh, age about 41 years/male, S/o Mr. Har Singh

Identification Mark: Black mole over left side lower part of neck.

Index prisoner is examined by me at District Jail, Haridwar.

As per information by jail staff, prisoner records and current mental status examination, the sufferings from undifferentiated Schizophrenia which is chronic illness. The patient/prisoner require long term treatment to remain in remission period. Person with mentioned diagnose remain in remission and cannot be said as cured.

Impression: Sunder Singh is suffering from Schizophrenia (Undifferentiated) and required long term treatment.

He is not mentally fit to be awarded for death penalty.

(Signature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychiatries
State Mental Health Institute
Salequi Dehradun

Thumb
Attested LTI of Sunder Singh
(Signature of Dr. Arun Kumar)
Date 31/10/13
Dr. Arun Kumar
(MBBS, DPM, DNB)
Neuropsychiatries
State Mental Health Institute
Salequi Dehradun”

206) Even if we agree that there is no undue delay in disposal of the mercy petition by the President, we are satisfied that Sundar Singh is suffering from mental illness, i.e., Schizophrenia as noted by 3 doctors, viz., Dr. J.S. Bisht, Dr. Arun Kumar, and Dr. Pratibha Sharma, Psychiatrists attached to the State Mental Health Institute, Salequi, Dehradun.

207)In the earlier part of our discussion, we have highlighted various Rules from the U.P. Jail Manual which are applicable to the State of Uttarakhand also, various international conventions to which India is a party and the decisions by the U.N.O. regarding award of death sentence and execution of persons suffering from mental illness. Though all the details were furnished by the persons concerned to Respondent No. 1, Ministry of Home Affairs, unfortunately, those aspects were neither adverted to by the Home Minister nor the summary prepared by the Ministry of Home Affairs for the President makes any reference to the mental condition as certified by the competent doctors.

208)We are satisfied that in view of the mental illness, he cannot be executed. On this ground, the death sentence has to be commuted to life imprisonment. If the condition of Sundar Sigh requires further treatment, we direct the jail authorities to provide all such medical facilities to him.

Writ Petition (Crl.)No. 190 of 2013

209)The death convict Jafar Ali, aged about 48 years, hailing from U.P., has filed the above writ petition. According to him, he is in custody for more than 11 years (single cell confinement).

210)On 14.07.2003, the petitioner was convicted under Section 302 IPC for the murder of his wife and five daughters and was sentenced to death. On 27.01.2004, the Division Bench of the Allahabad High Court confirmed the death sentence passed on the petitioner. On 05.04.2004, the petitioner through legal aid filed SLP (Crl.) No. 1129 of 2004. This Court did not grant special leave and dismissed the SLP in limine.

211)On 19.04.2004, the petitioner sent a mercy petition through jail superintendent to the President of India and the Governor of Uttar Pradesh. On 22.04.2004, Respondent No. 4 sent a radiogram to Respondent No. 2 to enquire about the status of the petitioner’s mercy petition. Thereafter, between 24.04.2004 and 16.05.2005, 14 more such radiograms/letters were sent by Respondent No. 4 to Respondent No. 2 enquiring about the status of the petitioner’s mercy petition. These 15 reminders testify to the unreasonable delay caused by the State Government in deciding the petitioner’s mercy petition.

212)On 20.05.2005, one year after the receipt of the mercy petition, Respondent No. 2 wrote to the District Magistrate and the Government Advocate, Allahabad High Court for the trial court as well as the High Court judgments relating to the petitioner’s case. Here again, there is no explanation for the delay of 11 months.

213)On 30.09.2005, the Government Advocate, Allahabad High Court sent the High Court judgment in the petitioner’s case to Respondent No. 2. Here again, there is no explanation for the delay of four months in sending the judgment.

214)On 28.11.2005, the Governor rejected petitioner’s mercy petition. It took one year and seven months in rejecting the petitioner’s mercy petition in spite of 15 reminders. On 30.12.2005, the Special Secretary, UP Government informed the Home Ministry, Government of India about the rejection of mercy petition by the Governor.

215)On 22.12.2005, information about the rejection of the mercy petition by the Governor was communicated to the prison authorities one month after its rejection. On 18.01.2006, Respondent No. 1 requested Respondent No. 2 to furnish the petitioner’s mercy petition along with the recommendation of the Governor, judgments of the courts and other records of the case.

216)On 17.07.2006, Respondent No. 2 sent the documents to Respondent No. 1 which were requested vide letter dated 18.01.2006 along with a request for an early intimation of the decision on the mercy petition. Here again, there is no explanation for the delay of seven months in sending those documents.

217)As pointed out earlier, Rule V of the Mercy Petition Rules explicitly provides that the mercy petition should be sent along with the judgments and related documents immediately. There is no explanation for this inordinate delay of seven months in sending the papers to Respondent No. 1.

218)On 17.08.2006, Respondent No. 1 advised the President to reject the mercy petition. On 16.01.2007, Respondent No. 2 sent another reminder to Respondent No. 1 regarding the pendency of the petitioner’s mercy petition. Thereafter, further 15 reminders were sent on various dates i.e., on 06.09.2007, 10.07.2008, 19.02.2009, 17.03.2009, 29.05.2009, 27.07.2009, 10.09.2009, 29.09.2009, 10.11.2009, 14.01.2010, 20.04.2010, 26.07.2010, 30.08.2010, 15.07.2011 and 22.11.2011. These 16 reminders testify the unreasonable delay caused in deciding the petitioner’s mercy petition.

219)On 30.09.2011, Respondent No. 1 recalled the files from the President. There is no explanation for this inordinate delay of 5 years and 1 month. On 01.11.2011, Respondent No. 1 advised the President to reject the mercy petition.

220)On 30.10.2012, the President returned the mercy petition to Respondent No. 1 ostensibly on the ground of a petition sent by 14 retired judges to the President. There was no reference of the plea of Jafar Ali in the representation made by 14 retired judges. On 24.01.2013, Respondent No. 1 advised the President to reject the mercy petition. On 14.03.2013, the President rejected the mercy petition, viz., 7 years and 4 months after rejection by the Governor and after 16 reminders sent by the State Government.

221)On 19.03.2013, Respondent No. 1 informed Respondent No. 2 of the rejection of the mercy petition. On 05.04.2013, the petitioner heard the news reports that his mercy petition has been rejected by the President of India.

222)On 06.04.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 56 of 2013 filed by PUDR.

223)On 22.06.2013, the prison authorities were informed vide letter dated 18.06.2013 that the President rejected the petitioner’s mercy petition. There is no explanation for this delay of three months in informing the prison authorities and the petitioner about the rejection of the mercy petition.

224)On 08.07.2013, Respondent No. 4 informed the petitioner that his mercy petition had been rejected by the President.

225)The details regarding delay in disposal of mercy petitions by the Governor and the President are as follows:

226)A perusal of the details furnished by the petitioner, counter affidavit filed by the Union of India as well as the State clearly shows that the delay was to the extent of 9 years. Though in the counter affidavit Respondent No. 1 has discussed various aspects including the decision taken by the Home Ministry and the note which was prepared for the approval of the President, the fact remains that there is no explanation at all for taking seven years and five months for disposal of a mercy petition by the President. It is for the executive, viz., the Home Ministry, to explain the reason for keeping the mercy petition for such a long time. To that extent, everyday, after the confirmation of death sentence by this Court is painful for the convict awaiting the date of execution.

227)Accordingly, in view of the unexplained and undue delay of nine years in disposal of mercy petition by the Governor and the President, we hold that the petitioner is entitled to commutation of death sentence to life.

228)Apart from undue and unexplained delay in disposal of mercy petition, another relevant aspect has not been noted by the Ministry while preparing the notes for the President, viz., when the petitioner preferred special leave to appeal against the decision of the High Court confirming the death sentence, this Court did not grant special leave and dismissed the SLP in limine. Though such recourse is permissible inasmuch as since it is a case of death sentence, it is desirable to examine the materials on record first hand in view of time-honoured practice of this Court and to arrive at an independent conclusion on all issues of facts and law, unbound by the findings of the trial court and the High Court. This principle has been highlighted in various decisions including the recent one in Mohd. Ajmal Kasab vs. State of Maharashtra (2012) 9 SCC 1.

229)In addition, we also perused the notes prepared by the Ministry of Home Affairs, the decision taken by the Home Ministry and the notes placed for the approval of the President. It is not in dispute that the summary prepared by the Ministry of Home Affairs for the President failed to consider the undue delay and there is no explanation for the same at all.

230)We are satisfied that all these grounds enable this court to commute death sentence into life.

Writ Petition (Crl.) Nos. 191 and 136 of 2013

231)Writ Petition (Crl.) No. 191 of 2013 has been filed by Maganlal Barela, death convict, aged about 40 years, hailing from the State of M.P. and on his behalf, PUDR has filed Writ Petition (Crl.) No. 136 of 2013 for similar relief.

232)The petitioner claims that he is in custody for more than three years (single cell confinement). On 03.02.2011, the petitioner, who is a tribal, was convicted by the Sessions Court under Section 302 IPC for the murder of his five daughters and under Section 309 IPC and was imposed a sentence of death. On 12.09.2011, the Division Bench of the Madhya Pradesh High Court confirmed the death sentence passed on the petitioner who was represented on legal aid. On 09.01.2012, the petitioner, through legal aid, filed SLP (Crl.) Nos. 329-330 of 2012. This Court did not grant special leave and dismissed the SLP in limine.

233)On 02.02.2012, the petitioner sent a mercy petition through jail addressed to the President of India and the Governor of Madhya Pradesh. The mercy petition, which was verified by the prison authorities, stated inter alia that the petitioner was suffering from mental illness and was continuously undergoing treatment through Central Jail, Bhopal.

234)On 20.02.2012, the Prison Superintendent, in accordance with Rule 377 of the Madhya Pradesh Prison Manual, submitted a form to the State Government. In column 18, it was stated that his conduct in prison was good. Against column 19, which was for the Prison Superintendent to opine on alteration of the petitioner’s sentence, the Superintendent opined as follows:

“Commutation of sentence is recommended”.

235)On 20.02.2012, the Prison Superintendent, in accordance with the Government Law and Judiciary Department Circular No. 4837/21 dated 13.12.1982 submitted to the State Government a form entitled “Required Information”. The entries made by the Superintendent in the said form stated inter alia that the petitioner is not a habitual criminal, he belongs to the weaker section of the society and he is of mental disorder and at present under treatment of Psychiatry Department Hamidia Hospital, Bhopal. Against Column No. 11 which seeks the Superintendent’s recommendations, it was stated that, “Commutation of Sentence is recommended”.

236)On 07.08.2012, Respondent No. 1 received the petitioner’s mercy petition forwarded by Respondent No. 2.There was a delay of six months in forwarding the mercy petition to Respondent No. 1 and no explanation was given by Respondent No. 2 in the counter affidavit.

237)On 31.08.2012, Respondent No. 1 wrote to Respondent No. 2 requesting the petitioner’s medical report since in the mercy petition, it was stated that the petitioner is suffering from mental illness. Respondent No. 1 also requested Respondent No. 2 to confirm whether the petitioner had filed a review petition in this Court against the dismissal of his SLP.

238)On 19.10.2012, Respondent No. 1 sent a reminder to Respondent No. 2 about the queries vide letter dated 31.08.2012. On 29.11.2012, Respondent No. 1 sent the second reminder to Respondent No. 2 about the queries. On 26.02.2013, Respondent No. 1 sent a third reminder to Respondent No. 2 about the same.

239)On 25.03.2013, the Jail Superintendent, Central Jail, Indore forwarded the medical report to Respondent No. 1 and it was also informed that the petitioner has not filed a review petition in this Court against the dismissal of his SLP.

240)On 06.06.2013, the Home Minister advised the President to reject the mercy petition. On 16.07.2013, the President rejected the petitioner’s mercy petition. There was no reference to the petitioner’s mental health report in the note prepared for approval of the President. Likewise, there was no reference to the fact that this Court had rejected the petitioner’s SLP in limine in a death case.

241)On 27.07.2013, the petitioner was orally informed by the prison authorities that his mercy petition has been rejected by the President of India. The petitioner was neither furnished with any official written communication regarding the rejection of his mercy petition by the President of India nor the petitioner was informed that his mercy petition has been rejected by the Governor.

242)On 27.07.2013, the Superintendent of the Central Prison, Jabalpur sent a letter to the Icchawar Police Station asking them to inform the petitioner’s family to meet the petitioner urgently.

243)On 07.08.2013, this Court stayed the execution of the petitioner in Writ Petition (Crl.) No. 136 of 2013 filed by PUDR. The details regarding delay in disposal of mercy petition are as follows:

Insofar as the delay is concerned, it cannot be claimed that the same is excessive though there is a delay of one year in disposal of mercy petition by the President. However, during the period of trial before the Sessions court and even after conviction, the petitioner was suffering from mental illness. This is clear from the note made by the Prison Superintendent who opined for alteration of petitioner’s sentence from death to life. This important aspect was not noted by the Home Ministry.

244)Another relevant event which was not noticed by the Home Ministry while considering the notes for approval of the President was that the petitioner filed SLP through legal aid and this Court did not grant special leave and dismissed the SLP in limine. As highlighted in the previous case, we reiterate that in case of death sentence, it is desirable to examine all the materials on record first hand in accordance with the time-bound practice of this Court and arrive at an independent conclusion on all the issues of fact and law irrespective of the findings of the trial court and the High Court. Such recourse was not adopted in this case. This was not highlighted in the notes prepared for the approval of the President. As stated earlier, the summary prepared by the Ministry of Home Affairs for the President fails to consider the mental illness as well as the opinion offered by the Prison Superintendent in terms of the M.P. Prison Manual as a ground for commutation of sentence. For all these reasons, more particularly, with regard to his mental illness, we feel that ends of justice would be met by commuting the sentence of death into life imprisonment.

Writ Petition (Crl.) Nos. 139 and 141 of 2013

245)Shivu – death convict, aged about 31 years, hailing from Karnataka, has filed Writ Petition (Crl.) No. 139 of 2013. Jadeswamy, aged about 25 years, also hailing from Karnataka, has filed Writ Petition (Crl.) No. 141 of 2013. Both are challenging the rejection of their mercy petitions on various grounds. According to them, they are in custody for 11 years and 10 months.

246)Both the petitioners were convicted for an offence under Sections 302, 376 read with Section 34 IPC and were sentenced to death. On 07.11.2005, the Karnataka High Court confirmed the petitioners’ death sentence. On 13.02.2007, this Court dismissed their appeal and upheld the death sentence awarded to them.

247)On 27.02.2007, both the petitioners filed separate mercy petitions addressed to the Governor of Karnataka and the President of India through the Prison Superintendent.

248)On 21.03.2007, Respondent No. 1 wrote to Respondent No. 2 requesting to consider petitioners’ mercy petitions under Article 161 of the Constitution and, in the event of rejection, to send the mercy petition along with the recommendations, copies of the judgments, copies of the records of the case, etc. to Respondent No. 1 for consideration under Article 72 of the Constitution.

249)On 05.04.2007 and 09.05.2007, review petitions filed by the petitioners were dismissed.

250)On 10.08.2007, Respondent No. 2 informed Respondent No. 1 that the Governor has rejected the mercy petitions and forwarded the copy of the trial court judgment, the Supreme Court judgment and mercy petitions.

251)On 09.10.2007, Respondent No. 1 wrote to Respondent No. 2 requesting him to provide the judgment of the High Court, the police diary, the court proceedings and the English translation of the trial court judgment. Respondent No. 2 sent some of these documents on 26.07.2012, i.e., after 4 years and 9 ½ months and the rest of the documents were sent on 03.12.2012, i.e., after 5 years and 2 months. There was also no explanation as to why Respondent No. 1 did not take steps to expedite the matter for such a long period.

252)On 03.04.2013, Respondent No. 1 advised the President to reject the mercy petitions. There was a delay of 5 years and 8 months after the Governor rejected the mercy petitions.

253)On 27.05.2013, the President returned the file along with the mercy petitions sent by Shivu’s mother and the members of the Badrayyanhalli Gram Panchayat.

254)On 24.06.2013, Respondent No. 1 advised the President to reject the mercy petitions. On 27.07.2013, the President rejected the petitioners’ mercy petitions.

255)On 13.08.2013, the petitioners were informed by the prison authorities that their mercy petitions have been rejected by the President. On 16.08.2013, the local police visited the petitioners’ family members and informed that they would be executed at 6 a.m. on 22.08.2013 at Belgaum Central Prison. The said procedure was contrary to the Prison Manual. As per the present Rules, the execution can only be scheduled after 14 days of informing the prisoner of rejection of mercy petition and in this case the same was not being followed. The following are the details regarding delay in disposal of mercy petitions by the Governor and the President:

256)It is true that there is some explanation in the affidavit filed on behalf of the State in respect of the time taken by the Governor for rejection of their mercy petitions, however, there is no acceptable/adequate reason for delay of six years at the hands of the Ministry of Home Affairs followed by the rejection order by the President.

257)Though learned counsel has referred to the fact that the trial court and the High Court followed certain decisions which were later held as per incuriam, in view of the fact that there is undue delay of six years which is one of the circumstances for commutation of sentence from death to life, we are not adverting to all other aspects.

258)We also perused the records of the Ministry of Home Affairs produced by learned ASG and the summary prepared for approval of the President. There is no specific explanation in the summary prepared by the Ministry of Home Affairs for the President for the delay of six years. In view of the same and in the light of the principles enunciated in various decisions which we have adverted to in the earlier part of our judgment, we hold that the petitioners have made out a case for commutation of sentence.

Guidelines:

259)In W.P (Crl) No 56 of 2013, Peoples’ Union for Democratic Rights have pleaded for guidelines for effective governing of the procedure of filing mercy petitions and for the cause of the death convicts. It is well settled law that executive action and the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and the protection of Article 21 of the Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives. We have already seen the provisions of various State Prison Manuals and the actual procedure to be followed in dealing with mercy petitions and execution of convicts. In view of the disparities in implementing the already existing laws, we intend to frame the following guidelines for safeguarding the interest of the death row convicts.

1.Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison Manuals of the States provide necessary rules governing the confinement of death convicts. The rules should not be interpreted to run counter to the above ruling and violate Article 21 of the Constitution.

2.Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts.

3.Procedure in placing the mercy petition before the President: The Government of India has framed certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their appeal by the Supreme Court. As and when any such petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at once fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. Even here, though there are instructions, we have come across that in certain cases the Department calls for those records in piece-meal or one by one and in the same way, the forwarding Departments are also not adhering to the procedure/instructions by sending all the required materials at one stroke. This should be strictly followed to minimize the delay. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision.

4.Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available.

5.Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison manuals have provision for informing the convict and his family members of the rejection of mercy petition by the President. All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Furthermore, even where prison manuals provide for informing the prisoner of the rejection of the mercy petition, we have seen that this information is always communicated orally, and never in writing. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing.

6.Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.

7.Minimum 14 days notice for execution: Some prison manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some prison manuals have a minimum period of 1 day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:-

(a)It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.

(b)It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.

It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time.

8.Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need.

9.Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action.

10.Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc.

These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre- requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts.

11.Final Meeting between Prisoner and his Family: While some prison manuals provide for a final meeting between a condemned prisoner and his family immediately prior to execution, many manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.

12.Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, we think in the light of the repeated arguments by the petitioners herein asserting that there is dearth of experienced hangman in the country, the same must be made obligatory.

In Deena alias Deen Dayal and Ors. vs. Union of India (1983) 4 SCC 645, the petitioners therein challenged the constitutional validity of Section 354(5) on the ground that hanging a convict by rope is a cruel and barbarous method of executing death sentence, which is violative of Article 21 of the Constitution. This court held as follows:-

“7. …After making this observation Bhagwati, J., proceeds thus :

The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain.” (emphasis supplied).

81.Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent “the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent,with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.”

It is obvious from a reading of the aforesaid decision that the method of hanging prescribed by Section 354(5) of the Code was held not violative of the guaranteed right under Article 21 of the Constitution on the basis of scientific evidence and opinions of eminent medical persons which assured that hanging is the least painful way of ending the life. However, it is the contention of learned counsel for the respondents that owing to dearth of experienced hangman, the accused are being hanged in violation of the due procedure.

260)By making the performance of post mortem obligatory, the cause of the death of the convict can be found out, which will reveal whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation which results on account of too long a drop. Our Constitution permits the execution of death sentence only through procedure established by law and this procedure must be just, fair and reasonable. In our considered view, making post mortem obligatory will ensure just, fair and reasonable procedure of execution of death sentence.

Conclusion:

261)In the aforesaid batch of cases, we are called upon to decide on an evolving jurisprudence, which India has to its credit for being at the forefront of the global legal arena. Mercy jurisprudence is a part of evolving standard of decency, which is the hallmark of the society.

262)Certainly, a series of Constitution Benches of this Court have upheld the Constitutional validity of the death sentence in India over the span of decades but these judgments in no way take away the duty to follow the due procedure established by law in the execution of sentence. Like the death sentence is passed lawfully, the execution of the sentence must also be in consonance with the Constitutional mandate and not in violation of the constitutional principles.

263)It is well established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. Considering the high status of office, the Constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said Articles, which means it should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of this Court to step in and consider this aspect. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive. Every Constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.

264)Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, we make it clear that when the judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.

265)In the light of the above discussion and observations, we dispose of the writ petitions. In the cases of Suresh, Ramji, Bilavendran, Simon, Gnanprakasam, Madiah, Praveen Kumar, Gurmeet Singh, Sonia, Sanjeev, Sundar Singh, Jafar Ali, Magan Lal Berala, Shivu and Jadeswamy, we commute the death sentence into imprisonment for life. All the writ petitions are, accordingly, allowed on the above terms.

……….…………………………CJI.
(P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J.
(SHIVA KIRTI SINGH)

NEW DELHI;
JANUARY 21, 2014.

The post Shatrughan Chauhan & Anr. Vs UOI & Ors. appeared first on B&B Associates LLP.

O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed.

.………………..……………….…….…J.
(N.V. RAMANA)
……………………………………….……J.
(ARUN MISHRA)
……………………………………….……J.
(ROHINTON FALI NARIMAN)
……………………………………….……J.
(R. BANUMATHI)
……………………………………….……J.
(ASHOK BHUSHAN)

New Delhi;
January 14, 2020.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CURATIVE PET(R) Nos.7-8/2020 in R.P.(Crl.) Nos.672-673/2017 in Crl.A. Nos.609-610/2017
VINAY SHARMA Petitioner(s)
VERSUS
THE STATE OF N.C.T. OF DELHI THROUGH SECRETARY Respondent(s)

(FOR ADMISSION and IA No.4419/2020-STAY APPLICATION and IA No.4417/2020-ORAL HEARING IA No.4417/2020 – ORAL HEARING IA No.4419/2020 – STAY APPLICATION)

WITH

CURATIVE PET(R) No.6/2020 in R.P.(Crl.) No.570/2017 in Crl.A. No. 607/2017 (II-C)

(FOR FOR STAY APPLICATION ON IA 5103/2020 FOR ORAL HEARING ON IA 5106/2020 IA No.5106/2020 – ORAL HEARING IA No.5103/2020 – STAY APPLICATION)

Date : 14-01-2020 These matters were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE N.V. RAMANA
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON’BLE MRS. JUSTICE R. BANUMATHI
HON’BLE MR. JUSTICE ASHOK BHUSHAN

By Circulation
UPON perusing papers the Court made the following

O R D E R

The applications for oral hearing are rejected.

The applications for stay of execution of death sentence are also rejected.

The Curative Petitions are dismissed in terms of the signed order.

(SATISH KUMAR YADAV)
AR-CUM-PS

(RAJ RANI NEGI)
ASSISTANT REGISTRAR

(Signed order is placed on the file)

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IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CURATIVE PETITION (CRIMINAL) NO. 88 OF 2013
IN
REVIEW PETITION (CRIMINAL) NO. 435 OF 2013
IN
WRIT PETITION (CRIMINAL) NO. 146 OF 2011
Navneet Kaur … Petitioner(s)
versus
State of NCT of Delhi & Anr. … Respondent(s)
J U D G M E N T

P.Sathasivam, CJI.
1) Navneet Kaur w/o Devender Pal Singh Bhullar, filed the present Curative Petition against the dismissal of Review Petition (Criminal) No.435 of 2013 in Writ Petition (Criminal) No. 146 of 2011 on 13.08.2013, wherein she prayed for setting aside the death sentence imposed upon Devender Pal Singh Bhullar by commuting the same to imprisonment for life on the ground of supervening circumstance of delay of 8 years in disposal of mercy petition.

2) Considering the limited issue involved, there is no need to traverse all the factual details. The brief background of the case is: By judgment dated 25.08.2001, Devender Pal Singh Bhullar was sentenced to death by the Designated Judge, Delhi. Thereafter, he preferred an appeal being Criminal Appeal No. 993 of 2001 before this Court and by judgment dated 22.03.2002, this Court confirmed the death sentence and dismissed his appeal. Against the dismissal of the appeal by this Court, the accused preferred Review Petition (Criminal) No. 497 of 2002, which was also dismissed by this Court on 17.12.2002.

3) Soon after the dismissal of the review petition, the accused submitted a mercy petition dated 14.01.2003 to the President of India under Article 72 of the Constitution and prayed for commutation of his sentence. During the pendency of the petition filed under Article 72, he also filed Curative Petition (Criminal) No. 5 of 2003 which was also dismissed by this Court on 12.03.2003.

4) On 30.05.2011, a communication was sent from the Joint Secretary (Judicial) to the Principal Secretary, Home Department, Government of NCT of Delhi, stating that the President of India has rejected the mercy petition submitted on behalf of Devender Pal Singh Bhullar. The same was also communicated to the Superintendent, Central Jail No. 3, Tihar Jail, New Delhi on 13.06.2011.

5) On 24.06.2011, the wife of the accused (petitioner herein) preferred a Writ Petition (Criminal) No. 146 of 2011 before this Court praying for quashing the communication dated 13.06.2011. By order dated 12.04.2013, this Court, after examining and analyzing the materials brought on record by the respondents, arrived at the conclusion that there was an unreasonable delay of 8 years in disposal of mercy petition, which is one of the grounds for commutation of death sentence to life imprisonment as per the established judicial precedents. However, this Court dismissed the writ petition on the ground that when the accused is convicted under TADA, there is no question of showing any sympathy or considering supervening circumstances for commutation of death sentence.

6) Aggrieved by the said dismissal, the wife of the accused preferred Review Petition being (Criminal) No. 435 of 2013 which was also dismissed by this Court on 13.08.2013. Subsequently, the wife of the accused, petitioner herein has filed the above Curative Petition for consideration by this Court.

7) Heard Mr. KTS Tulsi, learned senior counsel appearing on behalf of the petitioner and Mr. G.E. Vahanvati, learned Attorney General for India appearing on behalf of the respondents.

8) Very recently, a three-Judge Bench of this Court, in Writ Petition (Criminal) No. 55 of 2013 Etc., titled Shatrughan Chauhan & Anr. vs. Union of India & Ors., 2014 (1) SCALE 437, by order dated 21.01.2014, commuted the sentence of death imposed on the petitioners therein to imprisonment for life which has a crucial bearing for deciding the petition at hand. In the aforesaid verdict, this Court validated the established principle and held that unexplained/unreasonable/inordinate delay in disposal of mercy petition is one of the supervening circumstances for commutation of death sentence to life imprisonment.

9) While deciding the aforesaid issue in the above decision, the Bench was simultaneously called upon to decide a specific issue viz., whether is there a rationality in distinguishing between an offence under Indian Penal Code, 1860 and Terrorist and Disruptive Activities (Prevention) Act for considering the supervening circumstance for commutation of death sentence to life imprisonment, which was the point of law decided in Writ Petition (Criminal) No. 146 of 2011.

10) The larger Bench in Shatrughan Chauhan (supra), after taking note of various aspects including the constitutional right under Article 21 as well as the decision rendered by the Constitution Bench in Triveniben vs. State of Gujarat (1988) 4 SCC 574, held:

“57) From the analysis of the arguments of both the counsel, we are of the view that only delay which could not have been avoided even if the matter was proceeded with a sense of urgency or was caused in essential preparations for execution of sentence may be the relevant factors under such petitions in Article 32. Considerations such as the gravity of the crime, extraordinary cruelty involved therein or some horrible consequences for society caused by the offence are not relevant after the Constitution Bench ruled in Bachan Singh vs. State of Punjab (1980) 2 SCC 684 that the sentence of death can only be imposed in the rarest of rare cases. Meaning, of course, all death sentences imposed are impliedly the most heinous and barbaric and rarest of its kind. The legal effect of the extraordinary depravity of the offence exhausts itself when court sentences the person to death for that offence. Law does not prescribe an additional period of imprisonment in addition to the sentence of death for any such exceptional depravity involved in the offence.

58) As rightly pointed out by Mr. Ram Jethmalani, it is open to the legislature in its wisdom to decide by enacting an appropriate law that a certain fixed period of imprisonment in addition to the sentence of death can be imposed in some well defined cases but the result cannot be accomplished by a judicial decision alone. The unconstitutionality of this additional incarceration is itself inexorable and must not be treated as dispensable through a judicial decision.”

*** *** ***
“64) In the light of the same, we are of the view that the ratio laid down in Devender Pal Singh Bhullar (supra) is per incuriam. There is no dispute that in the same decision this Court has accepted the ratio enunciated in Triveniben (supra) (Constitution Bench) and also noted some other judgments following the ratio laid down in those cases that unexplained long delay may be one of the grounds for commutation of sentence of death into life imprisonment. There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence. Each case requires consideration on its own facts.”

*** *** ***
“70) Taking guidance from the above principles and in the light of the ratio enunciated in Triveniben (Supra), we are of the view that unexplained delay is one of the grounds for commutation of sentence of death into life imprisonment and the said supervening circumstance is applicable to all types of cases including the offences under TADA. The only aspect the Courts have to satisfy is that the delay must be unreasonable and unexplained or inordinate at the hands of the executive. The argument of Mr. Luthra, learned ASG that a distinction can be drawn between IPC and non-IPC offences since the nature of the offence is a relevant factor is liable to be rejected at the outset. In view of our conclusion, we are unable to share the views expressed in Devender Pal Singh Bhullar (supra).”

11) Learned Attorney General, taking note of the conclusion arrived at in Shatrughan Chauhan (supra) wherein this Court held that the ratio laid down in Devender Pal Singh Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195 is per incuriam, fairly admitted that applying the said principle as enunciated in Shatrughan Chauhan (supra), death sentence awarded to Devender Pal Singh Bhullar is liable to be commuted to life imprisonment. We appreciate the rationale stand taken by learned Attorney General and accept the same.

12) In addition, it is also brought to our notice by letter dated 08.02.2014, which was received by the Registry on 12.02.2014 from the Institute of Human Behaviour and Allied Sciences, that the accused Devender Pal Singh Bhullar was examined by the Standing Medical Board on 05.02.2014 and the Board opined as under:

“1.The patient has been diagnosed with Severe Depression with Psychotic features (Treatment Refractory Depression) with Hypertension with Dyslipidemia with Lumbo-cervical Spondylosis with Mild Prostatomegaly.

2. He is currently receiving Anti-Depressant, AntiPsychotic, Anti-anxiety, Anti-Hypertensives, Hypolipedemic, Anit-Convulsant (for Neuropathic pain) and Antacid drugs in adequate doses along with supportive psychotherapy and physiotherapy.

3. Patient has shown partial and inconsistent response to the treatment with significant fluctuations in the severity of his clinical condition.

4.The treatment comprising of various combinations of pharmacological and non-pharmacological treatments have brought about partial and inconsistent improvement in his clinical condition in the last three years of hospitalization. The scope for effective treatment options is limited and thereby the chances of his recovery remain doubtful in the future course of his illness”.

The above report has been signed by the Director & Chairman as well as four Members of the Medical Board. The report clearly shows that he is suffering from acute mental illness.

13) The three-Judge Bench in Shatrughan Chauhan (supra) held that insanity/mental illness/schizophrenia is also one of the supervening circumstances for commutation of death sentence to life imprisonment. By applying the principle enunciated in Shatrughan Chauhan (supra), the accused cannot be executed with the said health condition.

14) In the light of the above discussion and also in view of the ratio laid down in Shatrughan Chauhan (supra), we deem it fit to commute the death sentence imposed on Devender Pal Singh Bhullar into life imprisonment both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity. To this extent, the Curative Petition stands allowed.

…………………………………………………CJI.
(P. SATHASIVAM)
……………………………………………………J.
(R. M. LODHA)
……………………………………………………J.
(H.L. DATTU)
……………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI;
MARCH 31, 2014.

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Heard Sri Colin Gonsalves, learned Senior Advocate assisted by Sri Fazal Abdali, Advocate, Sri A.Q. Zaidi, Advocate and Sri Mohd. Danish, Advocate appearing on behalf of the petitioner and Sri Mohd. Aman Khan, petitioner in person, Sri Manish Goyal, learned Additional Advocate General appearing on behalf of the State and Sri Ranjan Mishra, learned counsel appearing on behalf of Union of India-respondent no.4.

The petitioner, a practicing Advocate of this Court has preferred this petition for writ to have following reliefs:-
“(i) For a writ of mandamus or any other writ, order, directing the Respondents to set up a court-monitored committee headed by a retired High Court or Supreme Court Judge that shall conduct judicial inquiry into the acts of violence and arbitrary detentions by the State Police and Paramilitary Forces in a time-bound manner;
(ii) For a writ of mandamus or any other writ, order, directing the Respondents to declare on their website the full list with names of students and residents of Aligarh Muslim University that were detained by State Police and paramilitary forces;
(iii) For a writ of mandamus or any other writ, order, directing the Respondents to provide detained persons access to their family members and to legal counsel;
(iv) For a writ of mandamus or any other writ, order, directing the Respondents to release all the students and residents so detained;
(v) For a writ of mandamus or any other writ, order, directing the Respondents to provide instant and quality medical care to students and staff detained and other injured during the violence;
(vi) For a writ of mandamus or any other writ, order, directing the Respondents to immediately cease the violence being inflicted on to the students and residents of Universities;
(vii) For a writ of mandamus or any other writ, order, directing the Respondents to quash any and all criminal proceedings initiated against students of the Universities;
(viii) For a writ of mandamus or any other writ, order, directing the Respondents to preserve the CCTV footage of all cameras in and around the Universities;
(ix) For a writ of mandamus or any other writ, order, directing the Respondents to provide adequate monetary compensation to all persons detained and/or injured by the Police and paramilitary forces;
(x) For a writ of mandamus or any other writ, order directing the Respondents to ensure the safety of all students within AMU university campus and to ensure that no student is forced to leave the campus;
(xi) For a writ of mandamus or any other writ, order directing the Respondents to ensure reopening of the University;
(xii) For a writ of mandamus or any other writ, order directing the University administration and armed forces not to take any coercive action against the students for peaceful protests;
(xiii) For a writ of mandamus or any other writ, order directing the initiation of criminal proceedings against the armed force officials who can be recognized from the videos and audios committing violence.
(xiv) For a writ of mandamus or any other writ, order directing the initiation of criminal proceedings against the officials who ordered the barbaric violence against the students.
(xv) For a writ of mandamus or any other writ, order, directing the respondents to seek written permission from the University authorities before entering the campus;
(xvi) For a writ of mandamus or any other writ, order directing the respondents to provide compensation to the students who were injured in the violence by armed forces;
(xvii) For a writ of mandamus or any other writ, order directing the respondents to provide compensation for the vehicles destroyed by the armed forces;
(xviii) to issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case, and
(xix) to award the cost of the petition to the Petitioner.”

The background to claim the reliefs above is the alleged display of police brutality upon students who were protesting the introduction of Citizenship Amendment Act, 2019.

As per the averments contained in the petition for writ, the Act of 2019 received assent of the President of India and came to be published in gazette on 12th December, 2019. A resentment was shown against the enactment aforesaid by the students in different corners of the country. At Aligarh Muslim University a huge number of students assembled at Bab-e-Syed (University gate) on 14th December, 2019 to share solidarity with the students of other Universities. The students were raising slogans against the enactment.

In the evening of 15th December, 2019 a protest was lodged by the students of Aligarh Muslim University at Library canteen. According to the petitioner, a peaceful procession of the students commenced from the library and moved towards the Bab-e-Syed through University road.

A huge contingent of local police and Rapid Action Force was deployed at the University circle. The contingent moved towards Bab-e-Syed on seeing the procession of the students. The contingent aforesaid, as per the petitioners, provoked the students by different means including the intentional utterance of abusive words.
The contingent of local police and the Rapid Action Force was said to be armed with several equipments and weapon of repression and those were used too. The students were heavily injured by the brutal lathi charge, rubber bullets and pellets.

It is asserted that to disburse assembly of the students the State force used repressive means recklessly and inappropriately. The contingent of police forcefully entered in different parts of the University including library, hostels, classrooms, offices, etc. and brutally behaved with students, consequent to that several students suffered serious injuries. The police officials intentionally assaulted the students and also vandalized the vehicles parked in the University campus near library. The students in a big number were detained at different places by the State agencies and no medical aid was provided to them. The detained students were also alleged to be brutally tortured. On 16th December, 2019, the Registrar of the University issued notices to all the students to vacate the hostels though no reason was there to do so.

According to the petitioner, several photographs of brutal repression made by the State force have been taken and video thereof too has been recorded. Certain photographs are also placed on record.

Sri Colin Gonsalves, learned Senior Advocate while pursuing all the reliefs claimed in the petition for writ emphasized for constituting a Special Investigating Team consisting of independent police officials to have fair and objective investigation in the matter.

The Inspector General, Law & Order, U.P., Senior Superintendent of Police, Aligarh Range, Aligarh and Aligarh Muslim University, Aligarh through its Vice-Chancellor have filed counter to the petition today.

As per counter filed on behalf of Inspector General, Law & Order, U.P. and Senior Superintendent of Police, Aligarh Range, Aligarh, the contents of the petition for writ do not depict true facts. According to them, the students in violation of the precautions taken as per Section 144 of the Code of Criminal Procedure, 1973 gathered at University circle on 10th December, 2019. On 12th December, 2019, the University authorities noticed hindrance by some of the students in their routine functioning. Looking to overall circumstances, the Registrar, Aligarh Muslim University requested the District Magistrate, Aligarh to take appropriate steps so as to uphold sanctity of an order dated 17th May, 2019 passed by the High Court in Writ Petition No.16633 of 2019.

An another letter was sent by the Registrar of the University to the District Magistrate, Aligarh on 13th December, 2019 with a request to deploy adequate security forces outside the administrative block of the University to prevent any untoward incident. On 13th December, 2019, certain memorandums addressed to His Excellency, The President of India were tendered by the students as well as on behalf of Aligarh Muslim University Teachers Association to the Additional District Magistrate (City) and Superintendent of Police (City), who were present outside the University campus.

On 14th December, 2019 also a delegation of the students and Teachers of the Law faculty handed over a memorandum to Additional District Magistrate (City). The University administration on 15th December, 2019 also demanded adequate forces to maintain public order, accordingly, the force was deployed close to the University campus by the district administration. On 15th December, 2019, the district administration received certain intelligence inputs and also information from the Proctor of the University about assembly of the students inside the University campus and their march towards Bab-e-Syed apprehending unwarranted incidents. The force was deployed by the district administration being necessary looking to the tense prevailing. The police force deployed at administrative block kept restrain and requested the students to refrain themselves from illegal activities. According to the respondents, the students at that time pelting stones on the force, as well as on the public property. The gathering ignored the request and continued with violent activities. A water cannon then was used to disburse the gathering and also to prevent any violent happening by the mob. Tear gas shelling was also made at the spot, looking to the need thereof. The district administration noticed that the gathering taking advantage of darkness started pelting stones vigorously from various directions and that enormously destroyed University property. The University administration in such circumstances again made a request to take appropriate action. Having no other option, the district administration decided to enter into University campus to disburse gathering and preventing the property from being damaged. In the course of action, 26 persons were arrested and some of them were found injured. According to the respondents, no lethal weapon was used by the police force.

Along with counter affidavit, the respondents have also placed on record two compact disks said to be containing video footage of the incident.

It is submitted by Sri Manish Goyal, learned Additional Advocate General that the action was taken to prevent loss to public and public property at large. It is asserted that the right available under Article 19 of the Constitution of India is only to assemble peacefully and without arms. But in the incident under consideration the assembly was absolutely unlawful and was abating for violence at large. As such, whatever steps and actions taken by the state or its Officers’s is justifiable.

Reliance is placed upon the judgment of Supreme Court in Bimal Gurung Vs. Union of India and others reported in 2018 (15) SCC 480 to substantiate the contention that Article 19(1)(a) to (c) does not cover violent protests affecting or threatening rights of others.

Response to the notice has also been filed on behalf of Aligarh Muslim University, Aligarh. According to it, the police entered in the University campus being called by the University authorities looking to circumstances then prevailing. The hostels were also ordered to be vacated as the winter vacations were preponed. According to the University, the demonstration on 14 & 15 December, 2019 was having presence of several persons who are not students of the University. Out of the 26 persons detained, at least 15, as per the University are not its students.

No rejoinder has been filed on behalf of the petitioner. However, it is stated that the averments contained in the petition for writ and the photographs annexed thereto speak in volumes about high handedness of police authorities and that is nothing but atrocity on innocent students. It is asserted that the photographs and the videos available reflect predetermined brutality on the part of the State agencies.

Sri Colin Gonsalves, learned Senior Advocate stated that in entirety the demand of the petitioner is to have a complete investigation in the matter as there is apparent violation of human rights and also commission of cognizable crime.

During the course of hearing, it is also brought to notice of the Court that against the Citizenship Amendment Act, 2019, a protest was also made by the students of Jamia Milia Islamia University, New Delhi. The students and certain faculty members of Jamia Milia Islamis University, New Delhi have approached the National Human Rights Commission to have a complete inquiry and also investigation pertaining to the incidents taken place, where also the allegation is against the Delhi Police for causing atrocities on students.

Sri Colin Gonsalves, learned Senior Advocate while referring the observations made by the Supreme Court Extra Judicial Execution Victim Families Association and another Vs. Union of India and others reported in 2017 (8) SCC 417 states that the inquiry or investigation by the National Human Rights Commission is of civil nature and that too is not an effective measure to bring the culprits of doing wrong to board. According to him, looking to the facts of the case, it would be appropriate to constitute a Special Investigating Team to investigate the entire matter. He has suggested names of three former Officer of Uttar Pradesh Police to be nominated as member of the SIT.

We have considered all aspects of the matter.

Section 12 of Protection of Human Rights Act, 1993 charges National Human Rights Commission as well as the State Human Rights Commission with duty for proper implementation as well prevention of violation of the human rights and fundamental freedoms available to every human being. Under the Act of 1993 the Commission may inquire suo motu or on a petition relating to the students for violation of human rights or abatement thereof or negligence in prevention of such violation by a public servant.

Under the Act of 1993 a complete mechanism is given for having inquiry as well as investigation under Section 13 and 14 respectively. The procedure for such inquiry is given under Chapter IV of the Act and as per Section 18, the Human Rights Commission may take several actions during and after inquiry. The Commission after holding an inquiry may recommend to the concerned Government or authority to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against concerned person or persons. It may also recommend to take such further action as it may think fit.

It would also be appropriate to mention that the Commission as per Section 18(b) of the Act of 1993 approach the Supreme Court or the High Court concerned for such directions, orders or writs as the Court may deem necessary. As per clause (b) of Section 18, it is for the Commission to approach Supreme Court or the High Court concerned to have necessary directions, orders or writs and that is by way of judicial proceedings. The power aforesaid can also be exercised by the High Court by suo motu calling upon report of inquiry or the recommendations made by the Commission.

The facts of the instant case indicate alleged violation of human rights and also alleged negligence in the prevention of such violation. We have not looked into the video footage, which are said to be available with the petitioner and compact disks, which are placed on record by the respondents along with counter. However, the photographs annexed with the petition reflect certain serious happenings which are termed by the petitioner as brutal, violation of human rights that also amounts to commission of cognizable crime. The narration of facts certainly demands a probe.

Looking to the powers of the Human Rights Commission discussed above, at this stage, we are not inclined to constitute any Special Investigating Team but to get the entire matter inquired by the National Human Rights Commission. We would have an inquiry by the State Human Rights Commission also but in light of the fact that the National Human Rights Commission is already undertaking inquiry relating to similar allegations on a complaint said to be filed by the students and some faculty members of the Jamia Milia Islamia University, New Delhi, we deem it appropriate to have an inquiry in this matter too through the National Human Rights Commission.

The National Human Rights Commission is not a party to the writ proceedings but being a statutory body to protect human rights, we consider it appropriate to request the Commission to have an inquiry relating to the issues raised in this petition for writ.

Accordingly, the National Human Rights Commission, New Delhi is requested to have a complete inquiry or investigation as it deem fit in the matter. The Commission for the purpose of inquiry/investigation shall treat memo of this petition for writ as complaint submitted to it.

An Officer authorized by the Chief Justice of this Court shall present a photostat copy of the memo of writ petition (complaint) and photostat copies of all other record excluding the compact disks before the Registrar, National Human Rights Commission, New Delhi on or before 9th January, 2020.

The Commission is requested to complete the process of inquiry/investigation expeditiously as far as possible within a period of one month from the date of presentation of the complaint by the Officer authorized. The Commission is also requested to convey its findings and recommendations, if any, to this Court immediately after conclusion of the inquiry/investigation. The petitioner or his representative, as well as representative of the State of Uttar Pradesh, shall appear before the Registrar, National Human Rights Commission, New Delhi on 10th January, 2020 to have the schedule of the proceedings that is to be settled by the National Human Rights Commission.

Let this petition for writ be listed for further orders on 17th February, 2020.

Order Date :- 07.01.2020
Bhaskar

(Vivek Varma, J.)
(Govind Mathur, C.J.)

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 512 OF 2009
Surinder Kumar ..…Appellant
versus
State of Punjab …Respondent
J U D G M E N T

R.Subhash Reddy,J.
1. This Criminal Appeal is filed by the sole accused, aggrieved by the judgment dated 22.04.2008 passed in Criminal Appeal No.706-SB of 1999 passed by the High Court of Punjab and Haryana at Chandigarh.

2. The appellant herein was convicted for the offence punishable under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act, 1985’), vide the judgment dated 20.05.1999, passed by the Special Judge, Ferozepur, for offence under Section 18 of NDPS, 1985 and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-(Rupees One Lakh) in default of payment of the same, to undergo rigorous imprisonment for another period of one year.

3. The case of the prosecution, in brief, is that on 12.09.1996, Devi Lal, HC (PW-1), Darbara Singh, S.I.(PW-2), along with other police officials were going from Dalbir Khera towards Waryam Khera, in a private jeep, on patrol duty, and when they reached near the bridge of Canal minor, the appellant-accused was seen coming from the opposite direction, carrying a bag in his right hand. On seeing the police party, the appellant-accused turned towards the Southern bank of the canal, but was apprehended on suspicion. The search of the bag, carried by the accused, in the presence of ASP, Abohar, who was called to the spot, in accordance with the provisions of the law, resulted into recovery of 1 kg 750 grams of opium. Upon seizure, 2 samples of 10 grams each, were separated and the remaining opium was put into the same bag. The samples were duly sealed and taken into possession. Thereafter, Ruqa was sent to the police station, on the basis whereof an FIR was registered. The accused was arrested and after completion of the investigation, he was challaned. On appearance in the court, the documents relied upon by the prosecution were supplied to the accused. A charge under Section 18 of the Act was framed against him, to which he pleaded not guilty and claimed trial.

4. To prove the charge against the appellant on behalf of the prosecution, four witnesses were examined i.e Devi Lal, HC, (PW-1), Darbara Singh, SI, (PW-2), SI (PW-3), and Sham Lal, Constable (PW-4). After closure of evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded and he was explained of all incriminating circumstances appeared against him, in the prosecution evidence. He pleaded false implication, however, he did not lead any evidence in his defence. After appreciating the oral and documentary evidence on record, the learned Special Judge, Ferozepur, vide his judgment dated 20.05.1999, in Sessions Trial No.17/1999, by recording a finding that prosecution has proved the guilt of the accused for offence under Section 18 of the Act, in keeping in his possession 1 kg 750 grams of opium in the area of village Dalmir Khera, convicted the appellant, he was sentenced to rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh) in default, to undergo rigorous imprisonment for one year.

5. Aggrieved by the aforesaid judgment of the Trial Court, the appellant herein has filed a criminal appeal No. 706-SB before High Court of Punjab and Haryana at Chandigarh. The High Court by impugned judgment dated 22.04.2008, dismissed the appeal filed by the appellant herein and confirmed the judgment and order of sentence dated 20.05.1999, passed by the Special Judge, Ferozepur.

6. We have heard Sri Mahabir Singh, learned senior counsel appearing for the appellant assisted by Mr. D.Mahesh Babu, advocate-on-record and Ms. Ranjeeta Rohatgi, learned counsel appearing for the respondent-State.

7. In this appeal, it is mainly contended by learned senior counsel for the appellant that Sri Joginder Singh, ASI to whom Yogi Raj, SHO (PW-3) handed over the case property on 13.09.1996 was not examined thus link evidence was incomplete, in spite of the same Trial Court and High Court has committed error in convicting the appellant. Further it is submitted that though independent witnesses were there in the patrolling party, such witnesses were not examined and conviction was solely based on the official witnesses. Further it is submitted that S.K. Asthana, ASP who is claimed to have joined to the party by the police, was not even examined and in fact he was not there and opium was not recovered in his presence. It is also pleaded thus there is a violation of provision under Section 50 of NDPS Act, 1985.

8. Learned senior counsel appearing for the appellant, to buttress his submissions, placed reliance on the following judgments:
(i) Trimukh Maroti Kirkan v. State ofMaharashtra1.
(ii) Noor Aga v. State of Punjab & Anr2.
(iii) Mohan Lal v. State of Punjab3.

9. On the other hand, learned counsel for the respondent-state has submitted that the prosecution has proved the case by leading cogent evidence, which proved guilt of the appellant beyond reasonable doubt and there are no grounds to interfere with the same. Learned counsel has submitted that merely because prosecution has not examined any independent witness, same would not necessarily lead to the conclusion that the appellant has been falsely implicated. He placed reliance on the judgment in the case of Jarnail Singh v. State of Punjab4. Further recent judgment of this Court in the case of Varinder Kumar v. State of Himachal Pradesh5, is also relied on wherein this Court has held that all pending criminal prosecutions, trials and appeals prior to the law led down in Mohan Lal3, shall continue to be governed by the individual facts of the case.

10. According to learned senior counsel for the appellant, Joginder Singh, ASI to whom Yogi Raj, SHO (PW-3) handed over the case property for producing the same before the Illaqa Magistrate and who returned the same to him after such production was not examined, as such, link evidence was incomplete. In this regard, it is to be noticed that Yogi Raj SHO handed over the case property to Joginder Singh, ASI, for production before the Court. After producing the case property before the Court, he returned the case property to Yogi Raj, SHO (PW-3) with the seals intact. It is also to be noticed that Joginder Singh, ASI was not in possession of seals of either of the investigating officer or of Yogi Raj, SHO. He produced the case property before the Court on 13.09.1996 vide application Ex.P-13, the concerned Judicial Magistrate of First Class, after verifying the seals on the case property, passed the order Ex.P-14 to the effect that since there was no judicial malkhana at Abohar, the case property was ordered to be kept in safe custody, in Police Station Khuian Sarwar till further orders. Since Joginder Singh, ASI was not in possession of the seals of either of the SHO or of the Investigating Officer, the question of tampering with the case property by him did not arise at all.

11. Further he has returned the case property, after production of the same, before the Illaqa Magistrate, with the seals intact, to Yogi Raj, SHO. In that view of the matter, the Trial Court and the High Court have rightly held that non-examination of Joginder Singh, did not, in any way, affect the case of prosecution. Further, it is evident from the report of the Chemical Examiner, Ex.P-10, that the sample was received with seals intact and that the seals on the sample, tallied with the sample seals. In that view of the matter, the chain of evidence was complete.

12. The next contention of learned senior counsel Sri Mahabir Singh is that the ASP, who was summoned to the spot, in whose presence search and recovery was effected, was not examined. As such, it is submitted that the non-examination of ASP is fatal to the case of prosecution and it is in violation of Section 50 of NDPS Act, 1985.

13. It is the specific case of the prosecution that on 12.09.1996, Darbara Singh, SI, (PW-2) along with other police officials were going from Dalbir Khera-2 towards Waryam Khera in a private jeep, when they reached near the bridge of Canal Minor, the appellant-accused was seen coming from opposite direction carrying a bag. It is alleged that on seeing the police party, he turned towards the Southern bank of the canal but was apprehended on suspicion. It is specifically pleaded that the ASP, Abhor who was called at the spot and in his presence his bag was searched which resulted into recovery of 1 kg 750 grams of opium. The Trial Court as well as the High Court, has recorded a finding that the perusal of the record reveals the ASP was summoned number of times but either service was not effected or as and when he was served, he sent a request for exemption from personal attendance stating valid reasons. Further, it appears that the High Court has issued directions to the Trial Court to decide the case before 30.04.1999. As much as S.K. Asthana, ASP was not examined by 30.04.1999, a request for an extension was sought by the Special Judge, Ferozepur and it was adjourned to 17.05.1999. Even by 17.05.1999, the ASP could not be served as he was on leave. In view of such reasoning assigned by the Trial Court, as well as the High Court, merely because S.K. Asthana, ASP was not examined, it cannot be said that prosecution has failed to prove its case. It is clear from the evidence on record that he was summoned at the time of search and seizure and only in his presence search was conducted, as such, there is no violation of Section 50 of the NDPS Act.

14. Further, it is contended by learned senior counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of crossexamination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.

15. The judgment in the case of Jarnail Singh v. State of Punjab4, relied on by the counsel for the respondent-State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. In the case of State, Govt. of NCT of Delhi v. Sunil & Anr.6 it was held as under:
“It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature”.

16. Learned counsel also placed reliance on the judgment of this Court in the case of Mohan Lal3 to support his argument that informant and investigator cannot be the same person. But in the subsequent judgment, in the case of Varinder Kumar5 this Court held that all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan Lal3, shall continue to be governed by individual facts of the case.

17. Having regard to oral and documentary evidence placed on record, we are in agreement with the findings recorded by the Trial Court and High Court. From the evidence on record in this case the prosecution has proved the guilt of the appellant beyond reasonable doubt. The conviction recorded and the sentence imposed is in conformity with the provisions of law and evidence on record, thus no interference is called for. Accordingly, this appeal is devoid of merits, and the same is dismissed.

18. As the appellant-accused is on bail, the bail bonds are cancelled. He shall surrender within a period of four weeks from today, to serve remaining period of sentence, failing which, the Chief Judicial Magistrate, shall take necessary steps to take the appellant into custody to serve remaining period of sentence.

……………….J.
[N.V. Ramana]
……………….J.
[R. Subhash Reddy]
……………….J.
[B.R. Gavai]

New Delhi,
January 06, 2020.

FOOTNOTE
1 (2006) 10 SCC 681
2 (2008)16 SCC 417
3 (2018)17 SCC 627.
4 (2011)3 SCC 521.
5 (2019) SCC Online SC 170
6 (2001)1 SCC 652

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