JAGDISH versus STATE OF MADHYA PRADESH

[2019] 4 S.C.R. 815

JAGDISH

STATE OF MADHYA PRADESH

(Review Petition (Crl.) No.591 of 2014)

(Criminal Appeal No.338 of 2007)

with

(Writ Petition (Crl.) No. 197 of 2014)

FEBRUARY 21, 2019

[N. V. RAMANA, DEEPAK GUPTA ANDINDIRA BANERJEE, JJ.]

Sentence/Sentencing – Commutation of death sentence to lifeimprisonment – Petitioner was convicted and sentenced to deathfor the murder of his wife and five children by both Trial Court andHigh Court – Petitioner’s appeal dismissed by Supreme Court andthe death sentence was confirmed vide order dated 18.09.2009 –Petitioner filed mercy petition addressed to the President of Indiathrough the jail authorities on 13.10.2009 – Petition forwarded bythe authorities on 15.10.2013 – President of India rejected thepetition on 16.07.2014 – Writ petition filed by the petitionerchallenging the rejection of his mercy petition – Review Petitionalso filed seeking review of the judgment of Supreme Court dated18.09.2009 – Held: Review Petition not entertained on the meritsof the case – Three courts have come to concurrent finding of factthat it was the petitioner who murdered his wife and five children –No reason to take view different from the one taken earlier –However, in the present case there was an inordinate andun-explained delay of more than 4 years on the part of the State inforwarding the mercy petition leading to delay of almost 5 years indeciding the mercy petition – State also did not file any counteraffidavit in the Writ Petition even though notice was issued 4 yearsback on 18.11.2014 and service was effected within month ofissuance of notice – Petitioner has been behind bars for almostabout 14 years – Death sentence is the exception and has to be

Aawarded in the rarest of rare cases – Keeping in view all thecircumstances of the case, regardless of the brutal nature of crime,the present is not fit case where death sentence should be executed– Death sentence commuted to life imprisonment – However, keepingin view the nature of crime and the fact that 6 innocent lives werelost, life imprisonment in this case shall mean the entire remainingBlife of the petitioner and he shall not be released till his death.Partly allowing the review petition as well as the writpetition, the Court

HELD: 1.1 As far as the Government of India or theCSecretariat of the President of India is concerned, there is nodelay in dealing with the mercy petition and the same has beendealt with expeditiously. However, the State of Madhya Pradeshhas given no explanation for the delay of more than 4 years inforwarding the mercy petition.[Para 8] [820-D-E]

D1.2 Not only was there long, inordinate and un-explaineddelay on the part of the State of Madhya Pradesh but to makematters worse, the State of Madhya Pradesh did not even care tofile any counter affidavit in the Writ Petition even though noticewas issued 4 years back on 18.11.2014 and service was effectedwithin month of issuance of notice. The delay in forwarding theEpetition is totally un-explained and this Court cannot countenancean un-explained delay of more than 4 years. The mercy petitionis the last hope of person on death row. In cases where deathsentence has to be executed the same should be done as early aspossible. [Paras 9, 10] [820-E-H; 821-A]

1.3 Death sentence is the exception and has to be awardedin the rarest of rare cases. Keeping in view all the circumstancesof the case, including the un-explained delay of 4 years inforwarding the mercy petition by the State of Madhya Pradeshleading to delay of almost 5 years in deciding the mercy petitionGand the fact that the petitioner has been incarcerated for almost14 years, regardless of the brutal nature of crime this is not fitcase where death sentence should be executed and we,accordingly commute the death sentence to that of life. However,keeping in view the nature of crime and the fact that 6 innocentlives were lost, it is directed that life imprisonment in this caseshall mean the entire remaining life of the petitioner and he shallnot be released till his death. [Para 12] [821-B-D]

V. Sriharan alias Murugan v. Union of India and Others(2014) 4 SCC 242 : [2014] 1 SCR 1093;Ajay KumarPal v. Union of India and Another (2015) 2 SCC 478 :[2014] 12 SCR 441 – relied on.

Case Law Reference

[2014] 1 SCR 1093 relied on

Para 5

[2014] 12 SCR 441

relied on

Para 6

CRIMINAL APPELLATE/ORIGINAL JURISDICTION :Review Petition (Criminal) No. 591 of 2014 in Criminal AppealNo. 338 of 2007.

From the Judgment and Order dated 27.06.2006 of the High Courtof Madhya Pradesh, Bench at Indore in Death Reference Case No.1of 2006 and Criminal Appeal No. 530 of 2006

With

Writ Petition (Criminal) No.197 of 2014.

V. Shekhar, Sr. Adv., Aldanish Rein, Chander Shekhar Ashri,Shashank Shekhar, Prithviraj Singh, Shakti Pandey, Ms. Sheetal Rajput,Arjun Garg, Ms. Binu Tamta, Harish Pandey, Ms. Rekha Pandey,B. V. Balaram Das, Mrs. Swarupama Chaturvedi, B. N. Dubey, MukeshKumar, Ms. Indira Bhakar, Ms. Aparna Trivedi, Santanu Singh, Advs.for the appearing parties.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J. 1. Petitioner Jagdish was tried for themurder of his wife and five children. He was convicted by the trialcourt vide judgment dated 24.04.2006 and sentenced to death. He filedan appeal which was dismissed by the High Court on 27.06.2006 andthe death sentence was confirmed. Thereafter, he filed Criminal Appealin this Court which was dismissed and again death sentence wasconfirmed vide judgment dated 18.09.2009.

A2. The petitioner filed mercy petition before the jail authorities on13.10.2009, which came to be rejected by the President of India on16.07.2014. The petitioner has filed Writ petition (Crl.) No.197 of 2014challenging the rejection of his mercy petition and the main ground isthat there is delay of almost 5 years in deciding the mercy petition andthis itself is ground to commute the death sentence to life imprisonment.BThereafter, the petitioner also filed Review Petition No. 591 of 2014 inwhich review of the judgment of this Court dated 18.09.2009 is soughtboth on merits and the question of sentence in Criminal Appeal No. 338of 2007. Hence this matter is before this Bench.

3. At the outset we may note that we are not inclined to entertainCthe Review Petition on the merits of the case. Three courts have cometo concurrent finding of fact that it was the petitioner who murderedhis wife and five children. We have gone through the written submissionsfiled by the learned counsel appearing on behalf of the petitioner andfind no reason to take view different from the one taken earlier.

4. We are only dealing with the issue whether the sentence ofdeath should be upheld or not? In the Writ Petition it has been urged thatdelay in deciding the mercy petition and the delay in legal proceedings issufficient to recall the sentence of death. In the Review Petition someother arguments have been raised. It has been urged that this case doesEnot fall in the category of the rarest of rare cases; this is case based oncircumstantial evidence; that the petitioner Jagdish was suffering frommental illness; the petitioner has been incarcerated for almost 14 yearsand execution of the death sentence at this stage would virtually meanimposing two sentences upon him – sentence of life imprisonment andthen sentence of death.F

5. Delay in dealing with mercy petition:

This Court in V. Sriharan alias Murugan vs. Union of Indiaand Others[1] held that one of the circumstances recognized by this Courtfor commutation of death sentence into life imprisonment is the undue,Ginordinate and unreasonable delay in the execution of death sentence.The Court, however, held that whether the delay is unreasonable or not,it has to be appreciated in the facts of each case. In Sriharan’s case,there was delay of 5 years and one month in disposing of the mercypetition and this Court held as follows :-

H1(2014) 4 SCC 242

“17. Exorbitant delay in disposal of mercy petition renders theprocess of execution of death sentence arbitrary, whimsical andcapricious and, therefore, inexecutable. Furthermore, suchimprisonment, occasioned by inordinate delay in disposal of mercypetitions, is beyond the sentence accorded by the court and tothat extent is extra-legal and excessive. Therefore, the apexconstitutional authorities must exercise the power under Articles72/161 within the bounds of constitutional discipline and shoulddispose of the mercy petitions filed before them in an expeditiousmanner.

18. ……….

19. Before we advert to respond the aforesaid contention, it isrelevant to comprehend the primary ground on the basis of whichthe relief was granted in cases of delayed disposal of the mercypetition and that is, such delay violates the requirement of fair,just and reasonable procedure. Regardless and independent ofthe suffering it causes, delay makes the process of execution ofdeath sentence unfair, unreasonable, arbitrary and capricious andthereby, violates procedural due process guaranteed under Article21 of the Constitution and the dehumanising effect is presumed insuch cases. It is in this context, this Court, in the past, hasrecognised that incarceration, in addition to the reasonable timenecessary for adjudication of mercy petitions and preparation forexecution, flouts the due process guaranteed to the convict underArticle 21 which inheres in every prisoner till his last breath.”

Consequently, the Court commuted the death sentence to life.

6. In Ajay Kumar Pal vs. Union of India and Another[2] thisCourt was dealing with case where there was delay of 3 years and10 months in dealing with the mercy petition. In this case it was alsoadmitted that the petitioner had been kept in solitary confinement afterthe death sentence was confirmed by this Court. This Court held thatthe combined effect of the inordinate delay in disposal of the mercypetition and solitary confinement for such long period caused deprivationof the cherished right to liberty of the petitioner and, therefore, the deathsentence was converted to life imprisonment.

A7. As far as the present case is concerned the occurrence tookplace on the intervening night of 19/20.08.2005. The trial court completedthe trial swiftly and delivered its judgment on 24.04.2006. The HighCourt confirmed the sentence within 2 months on 27.06.2006, and thisCourt dismissed the appeal on 18.09.2009. The petitioner filed mercypetition addressed to the President of India and the Governor of MadhyaBPradesh through the jail authorities on 13.10.2009. This application wasforwarded by the Madhya Pradesh authorities to the Ministry of HomeAffairs after more than 4 years on 15.10.2013. Thereafter, the Ministryof Home Affairs called for some records from the State of MadhyaPradesh on 20.11.2013. These documents were supplied by the State ofCMadhya Pradesh on 12.12.2013. The file was forwarded to the Presidentof India on 02.04.2014. The file was returned to the Ministry of HomeAffairs for reconsideration. It was re-submitted to the President ofIndia on 07.07.2014 and finally the mercy petition was rejected on16.07.2014.

8. As far as the Government of India or the Secretariat of thePresident of India is concerned, there is no delay in dealing with themercy petition and the same has been dealt with expeditiously. However,the State of Madhya Pradesh has given no explanation for the delay ofmore than 4 years in forwarding the mercy petition.

E9. We are constrained to observe that not only was there long,inordinate and un-explained delay on the part of the State of MadhyaPradesh but to make matters worse, the State of Madhya Pradesh hasnot even cared to file any counter affidavit in the Writ Petition eventhough notice was issued 4 years back on 18.11.2014 and service waseffected within month of issuance of notice.F

10. The delay in forwarding the petition is totally un-explainedand this Court cannot countenance an un-explained delay of more than4 years. We are dealing here with the case of person who has beensentenced to death. The mercy petition is the last hope of person ondeath row. Every dawn will give rise to new hope that his mercyGpetition may be accepted. By night fall this hope also dies. Inordinateand unexplained delay in deciding the mercy petition and the consequentdelay in execution of death sentence for years on end is another form ofpunishment which was awarded by the Court. This Court has repeatedlyheld that in cases where death sentence has to be executed the same

should be done as early as possible and if mercy petitions are notforwarded for 4 years and no explanation is submitted we cannot buthold that the delay is inordinate and un-explained.

11. We are not only dealing with the issue of delay in disposal ofthe mercy petition. The petitioner has now been behind bars for almostabout 14 years. This is also factor which will have to be taken intoconsideration.

12. Death sentence is the exception and has to be awarded in therarest of rare cases. Keeping in view all the circumstances of the case,including the un-explained delay of 4 years in forwarding the mercypetition by the State of Madhya Pradesh leading to delay of almost 5Cyears in deciding the mercy petition and the fact that the petitioner hasbeen incarcerated for almost 14 years, we are of view that regardless ofthe brutal nature of crime this is not fit case where death sentenceshould be executed and we, accordingly commute the death sentence tothat of life. However, keeping in view the nature of crime and the factDthat 6 innocent lives were lost, we direct that life imprisonment in thiscase shall mean the entire remaining life of the petitioner and he shallnot be released till his death. The Review Petition as well as the WritPetition are partly allowed in the aforesaid terms and, accordingly,disposed of. Pending application(s) if any shall stand disposed of.

Divya Pandey Review and Writ Petition partly allowed.