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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) No.121 of 2020 (Arising out of W.P.(CRL.) Diary No(s). 10508 of 2020)

AKSHAY KUMAR SINGH                                 Petitioner(s)

                               VERSUS

UNION OF INDIA & ORS.                              Respondent(s)

O R D E R

1. We have heard Dr. A.P. Singh, learned counsel appearing for

the Akshay Kumar Singh-the convict.

2. In  this  writ  petition  filed  under  Article  32  of  the

Constitution  of  India,  the  petitioner  challenges  the  order  of

rejection of his mercy petition by His Excellency the President of

India, inter alia, on various grounds that the settled principles

of consideration of mercy petition have not been followed.

3. The  petitioner  has  earlier  sent  the  mercy  petition  on

31.01.2020  and  the  same  was  incomplete.  In  this  regard,  the

petitioner’s  counsel  had  also  sent  a  letter  on  01.02.2020.  The

petitioner had again sent mercy petition on 18.03.2020 and the same

came to be rejected by His Excellency the President of India on

19.03.2020.

4. In  this  writ  petition  filed  under  Article  32  of  the

Constitution  of  India,  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 of  Sunil Batra  vs.  Delhi

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Administration  &  Ors. reported  in  (1978)  4  SCC  494  (iii)  the

petitioner has been tortured in the prison for which the petitioner

has been given treatment; the petitioner had also referred to the

nature  of  treatment  and  the  medication  given  to  him  (iv)  The

persons in position have given interviews to the media and press

and according to the petitioner the rejection of the mercy petition

is influenced by such views. The petitioner had, inter alia, also

raised other grounds also.

5. The consistent view taken by this Court that the exercise of

power of judicial review of the decision taken by His Excellency

the President of India in Mercy Petition is very limited. In Epuru

Sudhakar and Another v. Govt. of A.P. and Others - 2006 (8) SCC 161

vide paras 34 and 35, the Supreme Court has held as under:

“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

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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.”

The  said  decision  was  followed  in  the  case  of  Shatrughan

Chauhan & Anr.    v.  Union of India and Ors. reported in (2014) 3

SCC 1.

6. Keeping in view the above principles, when we considered the

grounds raised by the petitioner, we do not find any ground to hold

that there was non-application of mind by the President of India.

Insofar as the alleged torture of the petitioner in the prison, as

we have held in earlier Writ Petition (criminal) Diary No. 3334 of

2020, the alleged torture in the prison cannot be a ground for

review of the order of rejection of the Mercy Petition by the

President of India.

7. Insofar as the grounds raised by the petitioner that the Press

interviews given by the persons in position of authority reported

in the newspapers have influenced the decision of the President of

India in rejection of the mercy petition is concerned, when the

decision has been taken by the highest constitutional authority

like the President of India it cannot be said that the President of

India was influenced by such interviews reported in the newspapers.

8. 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 counsel for the petitioner is that if the

death warrants scheduled for 20.03.2020 is executed what will be

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the fate of the wife who has filed the divorce petition who has

averred that she does not want to live as a widow of death row

convict.   

9. As we have pointed out earlier while considering the petition

seeking judicial review of the order of rejection of the Mercy

Petition by the President of India, the exercise of review power is

only on the grounds indicated in Epuru Sudhakar (supra) and other

judgments.  The divorce petition said to have been filed by the

wife of the petitioner and the petitions filed by the petitioner

before the Lieutenant Governor and Chief Minister of Delhi under

Sections  432  and  433  Cr.P.C.  cannot  a  ground  for  exercise  of

judicial review of the order of the President of India rejecting

the Mercy Petition.  Nor can it be said that these subsequent

events ought to have been taken note of by the President of India

who has gone through the records of the case and the evidence and

other materials placed before him.

10. Insofar  as  the  contention  of  learned  counsel  for  the

petitioner as to the sustaining of the injuries by the convict-

Pawan Kumar Gupta and treatment given to him and the sutures put on

head are not relevant consideration of this petition.

11. It is to be pointed out that we have passed a detailed order

in  Mukesh  Kumar  vs.  Union  of  India  &  Ors.  in  Writ  Petition

(criminal) Diary No. 3334 of 2020 dated 29.01.2020 while dismissing

the writ petition challenging the order of rejection of the Mercy

Petition by the President of India. The writ petition filed by

Vinay  Sharma  challenging  rejection  of  Mercy  Petition  was  also

dismissed by a detailed order.  Applying those orders, we do not

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find  any  ground  to  entertain  this  writ  petition  warranting  any

judicial review of the rejection of the order of the Mercy Petition

by the President of India.

12. The writ petition is accordingly dismissed.

..........................J.                 (R. BANUMATHI)

..........................J.                 (ASHOK BHUSHAN)

..........................J.         (A.S. BOPANNA)

NEW DELHI, MARCH 19, 2020.