AKSHAY KUMAR SINGH versus UNION OF INDIA & ORS.

[2020] 4 S.C.R. 546

[2020] 4 S.C.R.

AKSHAY KUMAR SINGH

UNION OF INDIA & ORS.

(Writ Petition (Criminal) No. 121 of 2020)

BMARCH 19, 2020

[R. BANUMATHI, ASHOK BHUSHANAND A. S. BOPANNA, JJ.]

Nirbhaya Case – Order rejecting mercy petition by thePresident of India – Judicial review of – Writ petition filed u/Art.32Cby one of the convict – Held: Exercise of power of judicial reviewof the decision taken by the President of India in Mercy Petition isvery limited – Considering the grounds raised by the petitioner, noground to hold that there was non-application of mind by thePresident of India – Constitution of India – Art.32 – Code of Criminal

DProcedure, 1973 – ss. 432, 433.

Epuru Sudhakar and Another v. Govt. of A.P. and Ors.(2006) 8 SCC 161 : [2006] 7 Suppl. SCR 81 – reliedon.

Sunil Batra v. Delhi Administration (1978) 4 SCC 494E: [1979] 1 SCR 392; Shatrughan Chauhan &Anr. v.Union of India & Ors. (2014) 3 SCC 1 : [2014] 1 SCR609 – referred to.

Case Law Reference

F[1979] 1 SCR 392referred toPara 4[2006] 7 Suppl. SCR 81relied onPara 5[2014] 1 SCR 609referred toPara 5

CRIMINAL ORIGINAL JURISDICTION: Writ Petiton

(Criminal) No. 121 of 2020.G

(Under Article 32 of The Constitution of India.)

Dr. A. P. Singh, Ms. Geeta Chauhan, V. P. Singh and Sadashiv,Advs. for the Petitioner.

Tushar Mehta, SG, K. M. Nataraj, ASG, Kanu Agarwal, Ms. SwatiGhidiyal, Sharath Nambiar, B. V. Balram Das and Chirag M. Shroff,Advs. for the Respondents.

The following Order of the Court was passed:

1. We have heard Dr. A.P. Singh, learned counsel appearing forthe Akshay Kumar Singh-the convict.

2. In this writ petition filed under Article 32 of the Constitution ofIndia, the petitioner challenges the order of rejection of his mercy petitionby His Excellency the President of India, inter alia, on various groundsthat the settled principles of consideration of mercy petition have notbeen followed.

3. The petitioner has earlier sent the mercy petition on 31.01.2020and the same was incomplete. In this regard, the petitioner’s counselhad also sent letter on 01.02.2020. The petitioner had again sent mercypetition on 18.03.2020 and the same came to be rejected by His Excellencythe President of India on 19.03.2020.

4. In this writ petition filed under Article 32 of the Constitution ofIndia, the petitioner has, inter alia, raised various grounds namely: (i)that there was miscarriage of justice in rejection of the mercy petition(ii) that the petitioner was kept in solitary confinement in violation ofSunil Batravs. Delhi Administration & Ors.reported in (1978) 4 SCC494 (iii) the petitioner has been tortured in the prison for which thepetitioner has been given treatment; the petitioner had also referred tothe nature of treatment and the medication given to him (iv) The personsin position have given interviews to the media and press and accordingto the petitioner the rejection of the mercy petition is influenced by suchviews. The petitioner had, inter alia, also raised other grounds also.

5. The consistent view taken by this Court that the exercise ofpower of judicial review of the decision taken by His Excellency thePresident of India in Mercy Petition is very limited. In Epuru Sudhakarand Anotherv. Govt. of A.P. and Others- 2006 (8) SCC 161 vide paras34 and 35, the Supreme Court has held as under:

“34. The position, therefore, is undeniable that judicial review ofthe order of the President or the Governor under Article 72 or

AArticle 161, as the case may be, is available and their orders canbe impugned on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

B(c) that the order has been passed on extraneous or whollyirrelevant 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 amicusCcuriae; one relating to the desirability of indicating reasons in theorder granting pardon/remission while the other was an equallymore important question relating to power to withdraw the orderof granting pardon/remission, if subsequently, materials are placedto show that certain relevant materials were not considered orDcertain 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 beaffected.”

The said decision was followed in the case of Shatrughan ChauhanE& Anr.v. Union of India and Ors.reported in (2014) 3 SCC 1.

6. Keeping in view the above principles, when we considered thegrounds raised by the petitioner, we do not find any ground to hold thatthere was non-application of mind by the President of India. Insofar asthe alleged torture of the petitioner in the prison, as we have held inFearlier Writ Petition (criminal) Diary No. 3334 of 2020, the alleged torturein the prison cannot be ground for review of the order of rejection ofthe Mercy Petition by the President of India.

7. Insofar as the grounds raised by the petitioner that the Pressinterviews given by the persons in position of authority reported in theGnewspapers have influenced the decision of the President of India inrejection of the mercy petition is concerned, when the decision has beentaken by the highest constitutional authority like the President of India itcannot be said that the President of India was influenced by suchinterviews reported in the newspapers.

H8. Dr. A.P. Singh, learned counsel appearing for the petitioner,has also contended that the wife of the petitioner has filed divorce petition

and the same is pending consideration. The contention of learned counselfor the petitioner is that if the death warrants scheduled for 20.03.2020is executed what will be the fate of the wife who has filed the divorcepetition who has averred that she does not want to live as widow ofdeath row convict.

9. As we have pointed out earlier while considering the petitionseeking judicial review of the order of rejection of the Mercy Petition bythe President of India, the exercise of review power is only on the groundsindicated in Epuru Sudhakar (supra) and other judgments. The divorcepetition said to have been filed by the wife of the petitioner and thepetitions filed by the petitioner before the Lieutenant Governor and ChiefMinister of Delhi under Sections 432 and 433 Cr.P.C. cannot groundfor exercise of judicial review of the order of the President of Indiarejecting the Mercy Petition. Nor can it be said that these subsequentevents ought to have been taken note of by the President of India whohas gone through the records of the case and the evidence and othermaterials placed before him.

10. Insofar as the contention of learned counsel for the petitioneras to the sustaining of the injuries by the convict-Pawan Kumar Guptaand treatment given to him and the sutures put on head are not relevantconsideration of this petition.

11. It is to be pointed out that we have passed detailed order inMukesh Kumar vs. Union of India & Ors. in Writ Petition (criminal)Diary No. 3334 of 2020 dated 29.01.2020 while dismissing the writ petitionchallenging the order of rejection of the Mercy Petition by the Presidentof India. The writ petition filed by Vinay Sharma challenging rejection ofMercy Petition was also dismissed by detailed order. Applying thoseorders, we do not find any ground to entertain this writ petition warrantingany judicial review of the rejection of the order of the Mercy Petition bythe President of India.

12. The writ petition is accordingly dismissed.

Divya Pandey

Writ Petition dismissed.