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PETITIONER: DAYA SINGH

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT24/04/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 1548            1991 SCR  (2) 462  1991 SCC  (3)  61        JT 1991 (2)   349  1991 SCALE  (1)780

ACT:      Constitution of India: Art. 32-Death sentence-Delay  in execution-Writ  petition once rejected-Same plea not  to  be raised  by repeated petitions-Subsequent mercy petition  not disposed of expeditiously-Continued detention in prison  not rendered   completely   irrelevant  and  considered   as   a circumstance    assuming   significance   with    subsequent circumstances-Death     sentence-Substituted     by     life imprisonment.

HEADNOTE:      The   petitioner  was  convicted  of  murder  and   was sentenced to death by the Sessions Court on 13.12.1978.  His appeal to the High Court and Special Leave petition to  this Court were dismissed. His mercy petitions to the  Government and  to  the  President of India  were  also  rejected.  The execution  of  the sentence remained stayed  till  it  stood vacated  on  11.10.1988 on dismissal of  a  writ  petition** under  Article 32 of the Constitution filed by  his  brother for  conversion  of  the death sentence  into  one  of  life imprisonment  on  the ground of delay in its  execution.  On 18.11.1988  the  petitioner  again filed  a  mercy  petition before the Governor and his execution was once more  stayed, and  since  then he was  awaiting the final outcome  of  his petition.      meanwhile,  on  24.12.1990, a prisoner  sent  a  letter praying for release of the petitioner, which was treated  as a writ petition on behalf of the convict under Article 32 of the Constitution.      It  was contended on behalf of the petitioner that  the death sentence awarded to him should be quashed as there had been inexcusable delay in executing the same.      On  consideration on nature and effect of the delay  in execution  of the sentence after the petitioner filed  mercy petition on 18.11.1988, in the light of the principles  laid down in Triveniben’s case**.      Allowing the appeal, this Court,      HELD:  1.  Once  a petition  for  conversion  of  death sentence into one of life imprisonment is rejected, the plea raised in the petition so                                                        463

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rejected,  cannot  be  permitted to be  raised  by  repeated petitions.  But  this does not deprive the  convict  of  his right  to  renew the prayer on fresh  circumstances  arising later and, therefore, not considered. [465B-C]      2.  In  the  instant case,  the  petitioner  could  not succeed on the basis of the delay prior to October, 1988  as it  had  been considered in the earlier petition  which  was dismissed;  but  the  fact  that  the  petitioner  had  been continuously detained in prison since 1972 was not  rendered completely  irrelevant and should be considered merely as  a circumstance  assuming  significance  as  a  result  of  the relevant  circumstance, arising subsequent to  the  judgment rendered in October, 1988. [465E-F, 467C-D]      3. The initial reason for the further delay has been  a fresh mercy petition filed by the petitioner.  Althought the stay of the execution was certainly appropriate in the event of  not rejecting the prayer at once, yet the matter  should have been disposed of expeditiously and not kept in abeyance as  was  done. If the concerned officers  had  bestowed  the necessary  attention to the matter and devoted the time  its urgency  needed,  undoubtedly,  the entire  process  of  the consideration  of  the questions referred  would  have  been completed  within  a reasonable period without  leaving  any yawning  or "embarrassing gap". There had been an  avoidable delay  considerable  in the totality of  circumstances,  for which  the  petitioner was in no way  responsible.  [466D-E; 467A-B]      4.  The  only relief a convict  awaiting  execution  of death  sentence  can get from this Court on  the  ground  of delay  is  conversion  of the sentence  into  that  of  life imprisonment. [467F]      5.  In view of all the circumstances of the  case,  the petitioner’s  death sentence is substituted by  imprisonment for life and he would be governed and dealt with as a  life convict for all purposes. [476E, G]      **Smt. Tribeniben v. State of Gujarat, [1989] 1  S.C.C. 678, followed.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 133 of 1991.      (Under Article 32 of the Constitution of India).      R.K. Jain, Ravi Prakash, Mrs. Swati Kapoor Ms. Abha  R. Sharma and Ms. Rajni K. Prasad for the Petitioner.                                                        464      Altaf  Ahmed, Additional Solicitor General,  Ms.  Kusum Choudhary,   C.  Ramesh  and  Ms.  A.  Subhashini  for   the Respondents.      The Judgment of the Court was delivered by      SHARMA,  J.  On the basis of a letter received  from  a prisoner detained in Alipore Central Jail, Calcutta, drawing the  attention of this Court to the long wait of Daya  Singh, the  petitioner  convicted  for the  murder  of  late  Chief Minister  of Punjab  Pratap Singh Kairon, lodged at  present in  Rohtak Jail Haryana, pending the execution of his  death sentence,  this case was registered as a writ  petition  and was  listed before us on 27.3.1991. All the  relevant  facts were  not  available from the letter but   from  the  Office Report  it appeared that the case of the condemned  prisoner had earlier come to this Court. We directed the Registry  to examine  the earlier files and place before us the  relevant details.  In  the meantime we stayed the  execution  of  the death  sentence.  The  learned carousel  for  the  State  of Haryana  was also informed about the case. As directed,  the

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case  was placed before us again on Monday, the  1st  April, 1991,  when Ms. Kusum Chaudhary appeared on behalf of  State of Haryana and orders were passed for notice to the  counsel representing  the  Union of India. Having  heard  about  the case,  the  convict Daya Singh engaged his  own  counsel  to represent   him  and  to  press  this  writ   petition   and accordingly  Mr. R.K. Jain appeared for him on 5.4.1991.  We have, in the circumstances, treated this application as  one directly by Daya Singh. The Union of India is represented by Additional Solicitor General of India. The case was  further adjourned  at the request of the counsel and was  ultimately heard on 16.4.1991.      2.  Mr.  Jain  has  contended  that  if  the   relevant circumstances of this case are examined in the light of  the decisions of this Court, the conslusion is irresistible that there  has  been inexcusable delay in  executing  the  death sentence  of  the  petitioner,  and  the  sentence   should, therefore, be quashed by this Court under Article 32 of  the Constitution.      3.  The petitioner was tried for the murder  of  Sardar Pratap  Singh  Karion  which took  place  in  1965  and  was convicted  and  sentenced  to death by the  trial  court  on 13.12.1978. The sentence was confirmed by the High Court  on 22.3.1980. His Special leave petition was dismissed by  this Court  on  21.8.1980  and a further prayer  for  review  was rejected  on 2.9.1981. He filed mercy petitions  before  the Governor  and  the  President  of  India,  which  were  also rejected.                                                        465 Seveal  orders  of stay were passed from time to  time,  the details  whereof  are not very significant in  view  of  the rejection  by  this Court of an  earlier  application  under Article  32,  being  Writ Petition No. 191  of  1986,  filed through  his brother Lal Singh. The  case was  dismissed  on October  11,  1988  and the stay of  the  execution  of  the sentence stood vacated. The reasoned judgment, however,  was pronounced  later  and is resported in  Smt.  Triveniben  v. State  of  Gujarat, [1989] 1 SCC 678. The  petitioner  filed another  mercy  petition thereafter before the  Governor  of Haryana on 18.11.1988 and an order for stay of execution was again passed. The matter remained pending and the petitioner has been awaiting the final outcome of his last petion since then. On the basis of a newspaper report dated December  24, 1990  it is alleged that the attention of the  Deputy  Prime Minister  was drawn to the petitioner’s case and the  Deputy Prime  Minister gave an assurance that he would examine  the matter.  The  report  drew the  attention  of  Alipore  Jail prisoner which prompted him to send the letter which led the Registry  of  this  Court  to  register  the  present   writ petition.      4.  The  earlier writ petition of the  petitioner  Writ petition  No.  191 of 1986, filed through  his  brother  Lal Singh, was initially heard by a Division Bench of this Court and the matter, along with a number of other applications on behalf  of other convicts was referred for the  decision  of the Constitution Bench. The cases were heard at considerable length  by  the  Constitution  Bench  of  which  one  of  us (Sharma,L)  was  a member and the leading argument  at  that stage was also made by Mr. R.K. Jain when all aspects of the cases  were  thoroughly  considered.  Finally,  this   Court substituted the sentence of death of one convict  (Harbhajan Singh)  in another case by the sentence of imprisonment  for life,  but  the other writ petitions including that  of  the prisoner were dismissed. In the circumstances the petitioner cannot  succeed  on  the basis of  the  earlier  delay.  The

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operative  part  of  the judgment, as  stated  earlier,  was passed  in  October,  1988  and what   is  now  relevant  to consider is the delay subsequent to this date.      5.  Before  proceeding  further we  may  refer  to  the decision in Smt. Triveniben’s case laying down the principle which governs the present petition. Although the cases  were disposed  of by two judgements, according to the opinion  of the Bench, which was unanimous, undue delay in execution  of the  sentence  of death entitles the condemned  prisoner  to approach  this Court under Article 32, but this  Court  will examine  only the nature of delay caused  and  circumstances ensued  after  the  sentence was finally  confirmed  by  the judicial  process, and will have no jurisdiction  to  reopen the conclusions reached by the                                                        466 Court  while  finally  maintaining the  sentence  of  death. Further, while considering the grievance of inordinate delay this  Court may consider all the circumstances of  the  case for  deciding as to whether the sentence of death should  be altered  into imprisonment for life, and no fixed period  of delay   could  be  held  to  make  to  sentence   of   death inexecutable.  In  the  light  of  these  observations   the circumstances of the present case are to be examined.      6.  It is true that while rejecting the earlier  prayer of  the  petitioner  on October 11, 1988  all  the  relevant considerations  were taken into account and  the  petitioner cannot be permitted to raise the same plea once rejected, by repeated petitions. But this does not deprive the petitioner the right to renew the prayer on fresh circumstances arising later  and, therefore, not considered. This is the  position in the present case. Although the matter was finally  closed by this Court in October, 1988, the petitioner continues  to remain in a state of suspense since then. The main  question is as to what is the effect of this delay.      7. The initial reason for the further  delay has been a fresh mercy petition filed by the petitioner. Does this fact justify  keeping him under a sence of anticipation for  more than  two  years? If the prayer was not  considered  fit  be rejected at once it was certainly appropriate to have stayed the  execution, but the matter should have been disposed  of expeditiously and not kept in abeyance as has been done. The counter  affidavit  filed on behalf of the  Union  of  India states  that on the receipt of the last mercy  petition  the Governor  of  Haryana immediately made a  reference  to  the President of India seeking enlightenment on the question  as to   whether   the  Governor,  while   dealing   with   such applications,  is bound by the advice of the Chief  Minister of  the  State  and whether it is open to  the  Governor  to exercise his constitutional power in a case where an earlier application  to  the same effect had been  rejected  by  the President.  Soon after the receipt of  this   communication, the matter was referred to the Department of Legal  Affairs, Ministry  of  Law and Justice for advice, and  the  Ministry suggested  that  the question should be discussed  with  the Attorney  General of India. Since the matter remained  under consideration  no  reply  could be sent to  the  quarry  and ultimately  it was only in March this year, that  the  reply could  be  sent in the shape of a  directive  under  Article 257(1)  of the Constitution to all the Chief Secretaries  of the State Governments and Union Territories. The  affidavit, however,  does  not  furnish any  fact  or  circumstance  in justification  of  the delay. In absence of  any  reasonable explanation by the respondents we are of                                                        467 the  view  that if the concerned officers had  bestowed  the

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necessary  attention to the matter and devoted the time  its urgency needed, we have no doubt that the entire process  of consideration  of  the questions referred  would  have  been completed  within  a reasonable period without  leaving  any yawning  gap  rightly described by  the  learned  Additional Solicitor  General as "embarrassing gap". There  has,  thus, been  an  avoidable  delay, which  is  considerable  in  the totality of circumstances in the present case, for which the condemned prisoner in in no way responsible.      8. As was cautioned by this Court in Smt.  Triveniben’s case we are not laying down any rule of general  application that  the  delay  of  two  years  will  entitle  a  convict, sentenced  to death, to conversion of his sentence into  one for life imprisonment, rather we have taken into account the cumulative  effect of all the circumstances of the case  for considering the prayer of the petitioner. Although the  fact that the petitioner has been continuously detained in prison since  1972  was  taken into  account  while  rejecting  his earlier  writ petition, the same is not rendered  completely irrelevant  for the purpose of the present case and we  have taken  it  into  consideration  merely  as  a   circumstance assuming   significance   as  a  result  of   the   relevant circumstances arising subsequent to the judgment rendered in October, 1988.      9. Having regard to all the circumstances of the  case, we deem it fit to and accordingly substitute the sentence of imprisonment  for  life in place of the  petitioner’s  death sentence. The writ petition is accordingly allowed.      10.  In the letter from Alipore Jail a prayer has  been made for the release of the petitioner. As was indicated  in Triveniben’s  case,  the  only  relief  a  convict  awaiting execution  of death sentence can get from this Court on  the ground  of delay is conversion of the sentence into that  of life  imprisonment.  However,  on conversion  of  the  death sentence  to life imprisonment, the petitioner would now  be governed and dealt  with as a life convict for all purposes. We  are  not required to say anything more in  this  behalf. This prayer made in the letter is rejected.  R.P.                                     Petition allowed.                                                        468