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PETITIONER: HARBANS SINGH

       Vs.

RESPONDENT: STATE OF U.P. & OTHERS

DATE OF JUDGMENT12/02/1982

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1982 AIR  849            1982 SCR  (3) 235  1982 SCC  (2) 101        1982 SCALE  (1)95  CITATOR INFO :  R          1991 SC2176  (51)  R          1992 SC 248  (34)

ACT:      Penal Code-Death  Sentence imposed on three accused for the same  offence-One  accused  executed-Sentence  of  death commuted in  case of another accused-Mercy petition rejected by President in another-Court if could interfere.

HEADNOTE:      By a  common judgment  the petitioner and the two other accused (JS  and KS)  were convicted  and sentenced to death for the  murder of  four persons.  The High  Court  affirmed their conviction and sentence.      The special  leave petition  filed by  JS was dismissed and he  was executed. The sentence of death passed on KS was commuted by  this Court  into  imprisonment  for  life.  The petitioner’s (’HS’s)  special leave  petition and  later his review  petition  were  dismissed  by  this  Court  and  his petition to  the President of India for commutation of death sentence was  dismissed,  whereupon  he  filed  the  present petition.      (Per Chandrachud,  CJ and  D.A. Desai,  J. A.N. Sen, J. concurring.) ^      HELD: The  petitioner and the other two co-accused were sentenced to  death by  a common  judgment.  No  distinction could at  all be  made between the part played by KS and the petitioner.  Since  the  death  sentence  in  his  case  was commuted by  this Court  it would  be unjust  to confirm the death sentence imposed upon the petitioner. [238 B-C]      In view  of the  background of the case it would not be wrong if  this Court  had commuted  the  sentence  of  death imposed upon  the petitioner  but in  the interest of comity between the  powers of  this Court  and the  powers  of  the President it  would be more in the fitness of things if this Court were  to recommend that the President be so good as to exercise his  power under  Article 72 of the Constitution to commute  the  death  sentence  into  imprisonment  for  life because the  President  had  already  considered  the  mercy petition of the petitioner once and had rejected it. [238 E-

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G]           [The Court  directed  that  prior  to  the  actual      execution of any death sentence the Jail Superintendent      should ascertain  personally whether  the  sentence  of      death  imposed  upon  any  of  the  co-accused  of  the      prisoner 236      who was  due to  be hanged had been commuted. If it had      been commuted,  the Superintendent  should apprise  the      superior authorities  of  the  matter,  who  must  take      prompt steps  for bringing  the matter to the notice of      the Court concerned.] [239 A-B]      (Per A.N. Sen, J. concurring)      It would  be unjust to allow the death sentence imposed on the petitioner executed. [242 G]      Considering that  the responsibility,  involvement  and complicity of  the  petitioner  in  the  commission  of  the offence is  the same  as that  of the  other co-accused,  it would be  sheer travesty  of justice if for the same offence the petitioner had to pay the extreme penalty of death while the death  sentence imposed  on the co-accused, for the very same offence  had been commuted to one of life imprisonment. Had the  petitioner mentioned  either in  the special  leave petition  or  review  petition  or  mercy  petition  to  the President this  all important  and significant  fact,  death sentence imposed on him would have been commuted.[242 C-F]      Apart  from  the  very  wide  jurisdiction  and  powers conferred on  this Court  under Arts.  32  and  136  of  the Constitution this Court retains and must retain, an inherent power and  jurisdiction for  dealing with any extra-ordinary situation in  the  larger  interests  of  administration  of justice and  for preventing  manifest injustice  being done. This power must necessarily be sparingly used for furthering the  ends  of  justice.  Having  regard  to  the  facts  and circumstances of this and interfere case, this is a fit case where this Court should entertain the present petition. [243 A-C]      Since  in  the  instant  case  the  petitioner’s  mercy petition  had  earlier  been  considered  by  the  President propriety and  decorum require  that the  matter  should  be referred back to the President. [243 D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (Criminal)  No. 7453 of 1981.      (Under Article 32 of the Constitution of India)      A.P. Mohanty for the Petitioner.      R.K. Bhatt for the Respondent.      The following judgments of the Court were delivered      CHANDRACHUD C.J.  By this  writ petition the petitioner Harbans Singh prays that the death sentence imposed upon him should  not   be  executed   in  view   of   the   following circumstances. 237      The petitioner and three other persons, Mohinder Singh, Kashmira Singh  and Jeeta  Singh were involved in the murder of Jindi Singh, Surjeet Singh, Bira Singh and Gurmeet Singh. Mohinder Singh  died in  an "encounter" with the police. The petitioner and  the other  two accused,  Kashmira Singh  and Jeeta Singh,  were committed  to stand  their trial  for the murder of  the aforesaid  four persons.  By a judgment dated May 1, 1975 the learned Additional Sessions Judge, Pilibhit, convicted all of them for the murder of Jindi Singh, Surjeet

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Singh and Bira Singh and sentenced them to death. On October 20, 1975  the High  Court of Allahabad affirmed the judgment of the Trial Court in Criminal Appeal No. 1080 of 1975.      Jeeta Singh  filed Special  Leave Petition  No. 343  of 1976 in  this Court  which was  dismissed on April 15, 1976. Kashmira Singh  filed Special Leave Petition No. 104 of 1976 from jail and obtained leave on the question of sentence. By an order  dated April  10, 1977 his appeal (No. 172 of 1977) was allowed by a Bench consisting of Bhagwati and Fazal Ali, JJ. who commuted his sentence of death into imprisonment for life. The  petitioner, Harbans  Singh, filed  Special  Leave Petition No.  658 of  1978 from  jail which was dismissed by Sarkaria and  Shinghal, JJ.  on October 16, 1978. His Review Petition (No.  140/79) was  dismissed by  Sarkaria and  A.P. Sen, JJ. on May 9, 1980. It appears that though the Registry of this  Court had  mentioned  in  its  Office  Report  that Kashmira Singh’s  death sentence  was already commuted, that fact was not brought to the notice of the Court specifically when the  petitioner’s Special Leave Petition and his Review Petition were dismissed.      The petitioner had filed a petition to the President of India for  commutation of  his sentence, which was dismissed on August 22, 1981. Upon the dismissal of that petition, the execution of  the death sentence imposed upon the petitioner was fixed  for October  6, 1981,  whereupon  he  filed  this petition in this Court.      The course  which this  case  has  taken  makes  a  sad reading. Three  persons were  sentenced to death by a common judgment and,  regretfully, each one has eventually met with a different  fate. One  of those three persons, Jeeta Singh, who did  not file  any Review  Petition or  Writ Petition in this Court  was executed  on  October  6,  1981.  The  other person,  Kashmira  Singh,  succeeded  in  having  his  death sentence commuted into life imprisonment. The petitioner 238 was to  be executed on the same day on which Jeeta Singh was executed but,  fortunately, he  filed this  Writ Petition on which we  passed an order staying the execution of his death sentence.      As we  have stated  earlier, the petitioner and the two other  co-accused  were  sentenced  to  death  by  a  common judgment. We have seen the facts from which it is clear that no distinction at all can be made between the part played by Kashmira Singh  on the  one hand  and the  petitioner on the other. Since Kashmira Singh’s death sentence was commuted by this Court, it would be unjust to confirm the death sentence imposed upon  the petitioner. That will involve the Court as well as  the  authorities  concerned  in  the  violation  of rudimentary norms governing the administration of justice.      It is  unfortunate that  Jeeta Singh  could not get the benefit of  the commutation  of Kashmira  Singh’s  sentence. Were he  to approach  this Court  like the  petitioner,  the sentence imposed upon him would have been commuted into life imprisonment because  no distinction  could have  been  made between his  case and  that of Kashmira Singh whose sentence was commuted prior to the execution of Jeeta Singh.      The question  which then arises for consideration is as to the  proper course  to be adopted in the circumstances of the case. In view of the background of the case, to which we have referred  above, it  would not  be  wrong  if  we  were ourselves to  commute the sentence of death imposed upon the petitioner to  imprisonment for life. But in the interest of comity between  the powers  of this  Court and the powers of the President  of India,  it will  be more in the fitness of things if  we were  to recommend that the President of India

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may be  so good as to exercise his power under Article 72 of the Constitution  to commute the death sentence imposed upon the petitioner  into  imprisonment  for  life.  This  is  so because the  President of  India has  already considered the mercy petition  of the  petitioner once and has rejected it. We, therefore,  recommend that  for reasons aforesaid, which could not  have been  before the  President of India when he rejected the  mercy  petition,  he  may  commute  the  death sentence imposed upon the petitioner.      The fate of Jeeta Singh has a posthumous moral to tell. He cannot  profit by  the direction which we propose to give because he  is now  beyond the processes of human tribunals. But we direct 239 that prior  to the  actual execution  of any death sentence, the Jail  Superintendent should ascertain personally whether the sentence  of death imposed upon any of the co-accused of the prisoner  who is due to be hanged, has been commuted. If it has  been commuted, the Superintendent should apprise the superior authorities  of the matter, who, in turn, must take prompt steps  for bringing  the matter  to the notice of the Court concerned.      Order accordingly.  The execution of the death sentence is stayed until the decision of the President to whom a copy of this judgment should be forwarded forthwith.      AMARENDRA NATH  SEN, J.  I  have  had  the  benefit  of reading the  judgment to  be delivered  by the learned Chief Justice. I agree with the order proposed by him. I, however, wish to make some observations of my own.      The relevant facts of the case have been succinctly and briefly stated by the learned Chief Justice in his judgment. Three persons,  namely, the  petitioner, Kashmira  Singh and Jeeta Singh  were convicted under S. 302 of the Indian Penal Code and  sentenced to  death  by  the  Additional  Sessions Judge, Pilibhit  by his  judgment dated  1st May,  1975. The High Court  of Allahabad  affirmed the judgment of the Trial Judge in  Criminal Appeal No. 1080 of 1975 and confirmed the death sentence  of the  said three  accused by  its judgment dated 20th  October, 1975. Jeeta Singh filed in this Court a Special Leave Petition (No. 343 of 1976) which was dismissed by this Court on 15th April, 1976. It appears that after the dismissal of  the Special  Leave Petition  of Jeeta Singh by this Court,  Jeeta Singh was executed on the 6th of October, 1981. Kashmira  Singh filed a Special Leave Petition No. 104 of 1976 in this Court and leave was granted by this Court on the question  of sentence  only. By  an order passed by this Court on  the 10th  April 1977 this Court allowed the appeal of Kashmira Singh (172/1976) by leave of this Court and this Court commuted  his sentence of death to one of imprisonment of life.  The other accused Harbans Singh who has filed this petition had  also filed  a special leave petition No.658 of 1978. The  Special Leave Petition filed by Harbans Singh was dismissed by  this Court  on 16th  October 1978.  It appears that Harbans  Singh had applied for review of the said order of this  Court and the review petition of Harbans Singh (140 of 1979)  was also dismissed by this Court on 9th May, 1980. Harbans  Singh  had  thereafter  filed  a  petition  to  the President of  India under  Art. 72  of the Constitution. The Petition of Harbans 240 Singh to  the President  of India  was dismissed on the 22nd August, 1981. After the dismissal of the Petition of Harbans Singh to  the President, the date for execution of the death sentence imposed  upon him  was fixed and Harbans Singh, has thereafter moved this Court and has filed this writ petition

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praying for  commutation of  his death  sentence and  in the alternative praying  for a  direction to  the authorities to allow him  the facilities  to meet  his near  and dear  ones before the  sentence of  death imposed  upon him is actually executed.      The unfortunate  position appears to be that in respect of the  very same  offence committed,  one  of  the  accused persons, namely,  Jeeta Singh  has already  been hanged; the death sentence  imposed on another accused, namely, Kashmira Singh, has  been commuted  to one  of life imprisonment; and Harbans Singh, the present petitioner, is now awaiting death sentence to be executed.      When this Court dismissed the special leave petition of Jeeta Singh  by  its  order  dated  15th  April,  1976,  the decision of  this Court in the case of Bachan Singh v. State of Panjab,(1) was not there. It appears from the report that Bachan Singh’s  case in which constitutional validity of the death penalty was upheld by this Court came to be decided by this Court on 9th May, 1980. It further appears that in that case the  validity of  the death sentence was upheld by four of  the  learned  Judges  on  the  Bench,  but  Bhagwati  J. dissented from the view expressed by the majority and he was of the  opinion that  "S. 302  of the  IPC in  so far  as it provides for  imposition of  death penalty as an alternative to life sentence, is ultra vires and void as being violative of Art.  14 and  21 of  the Constitution,  as  it  does  not provide any legislative guidelines as to when life should be extinguished by  imposition of death sentence". The majority judgment of  the Bench  was delivered  by  Sarkaria,  J.  on behalf of himself, Chandrachud, C.J. and Gupta and Untwalia, JJ. While  upholding the  constitutional validity  of  death sentence, this  Court  in  Bachan  Singh’s  case  laid  down certain principles  on the basis of which capital punishment may normally  be imposed,  recognising at the same time that the punishment  to be  inflicted was  a matter  of  judicial discretion to be exercised with due care and caution.      When a  bench of this Court dismissed the special leave petition of  Jeeta Singh  who has  since been executed, this Court 241 must have  on a consideration of the facts and circumstances come to  the conclusion  that death penalty had been rightly imposed  on   Jeeta  Singh   and  there   was  no  need  for interference by this Court with the judgment or the sentence imposed. The  special leave  petition of  Kashmira Singh was entertained by  another Bench  of this Court. Though arising out of  the same  offence, this  Court must  have felt  that there  were   circumstances  which   did  not   justify  the imposition of  the extreme  penalty of  death and this Court commuted the  sentence of death to one of life imprisonment. It may  be noticed  that  at  the  time  the  special  leave petition of Kashmira Singh was entertained by this Court and his death  sentence was  commuted by  an order of this Court dated 10th  April, 1977,  the decision in the case of Bachan Singh was  not there,  though various  other decisions which came to  be considered  in the  case of  Bachan  Singh  were there.      The  Special  Leave  Petition  of  the  Petitioner  was dismissed by  this Court  on the  16th December,  1978.  The review petition  was also dismissed by a Bench presided over by Sarkaria,  J. on  the 9th  of May,  1980, the very day on which Bachan Singh’s case appears to have been decided.      It unfortunately  appears that  the  attention  of  the Bench which  dismissed the  special leave  petition and also the review  petition of  the petitioner was not drawn to the

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fact that  special leave petition of the co-accused Kashmira Singh had  already been  entertained by  this Court  and the death sentence  imposed on  Kashmira Singh had been commuted by this  Court to  one of life imprisonment. The Bench which dismissed the  special leave  petition and  also the  review petition of  the present  petitioner Harbans Singh must have felt on  consideration of  the facts  and circumstances that death penalty  had been rightly imposed on Harbans Singh and no interference  by this  Court was  called for.  Though the Bench must  have come  to its decision on a consideration of the facts  and circumstances  of the  case, yet, to my mind, the  Bench  would  not  have  dismissed  the  special  leave petition and  the review petition of Harbans Singh and would have  commuted   his  death   sentence  to   one   of   life imprisonment, had  the  Bench  been  informed  that  in  the identical case, the co-accused of the petitioner had earlier filed a  special  leave  petition  which  had  already  been entertained by  this Court and the capital punishment of the co-accused Kashmira Singh had been commuted by this Court to one of life imprisonment. It may be noticed that 242 the  responsibility,   involvement  and  complicity  of  the petitioner Harbans Singh in the commission of the offence is the same as that of the co-accused Kashmira Singh. As I have earlier noticed,  Harbans Singh  had filed a petition to the President of  India after  the dismissal of his petition for Special Leave  and his petition for review by this Court for commutation of  death sentence  and  the  said  Petition  of Harbans Singh has also been rejected by the President.      To my  mind, it will be a sheer travesty of justice and the course  of justice  will be  perverted, if  for the very same offence,  the petitioner  has  to  swing  and  pay  the extreme penalty  of death whereas the death sentence imposed on his  co-accused for  the very same offence is commuted to one of  life imprisonment  and the life of the co-accused is shared. The  case of  the Petitioner  Harbans Singh appears, indeed, to  be unfortunate,  as neither in his special leave petition and  the review  petition in  this Court nor in his mercy petition to the President of India, this all important and significant  fact that  the life sentence imposed on his co-accused in  respect of  the very  same offence  has  been commuted to one of life imprisonment has been mentioned. Had this fact  been brought  to the  notice of this Court at the time when the Court dealt with the special leave petition of the petitioner  or even his review petition, I have no doubt in my  mind that  this Court  would have  commuted his death sentence to  one of  life imprisonment. For the same offence and for  the same  kind of  involvement, responsibility  and complicity, capital  punishment on one and life imprisonment on the  other would  never have  been just. I also feel that had the petitioner in his mercy petition to the President of India made  any mention of this fact of commutation of death sentence to  one of  life imprisonment  on his co-accused in respect of  the very  same offence, the President might have been inclined to take a different view on his petition.      In the  circumstances hereinabove  stated, I  am of the opinion that it will be manifestly unjust to allow the death sentence imposed  on the  petitioner  to  be  executed.  The question that,  however, troubles  me is  weather this Court retains any power and jurisdiction to entertain and pass any appropriate orders  on the  question of  sentence imposed on the petitioner in view of the fact that not only his special leave petition  and review  petition have  been dismissed by this Court  but also  the further fact that his petition for clemency has also been rejected by the President.

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243      Very wide  powers have been conferred on this Court for due and  proper administration  of justice.  Apart from  the jurisdiction and  powers conferred on this Court under Arts. 32 and 136 of the Constitution I am of the opinion that this Court  retains  and  must  retain,  an  inherent  power  and jurisdiction for  dealing with  any extra-ordinary situation in the larger interests of administration of justice and for preventing manifest  injustice being  done. This  power must necessarily  be   sparingly   used   only   in   exceptional circumstances for  furthering the  ends of  justice.  Having regard to  the facts and circumstances of this case, I am of the opinion  that this is a fit case where this Court should entertain the  present petition  of Harbans  Singh and  this Court should interfere.      In the facts and circumstances of this case, this Court would have  been justified  in commuting  the death sentence imposed on  the petitioner  to one of life imprisonment. As, however,  the  case  of  the  Petitioner  had  earlier  been considered by  the President of India to whom the petitioner had presented  the petition  for mercy,  I am of the opinion that propriety and decorum require that the matter should be referred  back  to  the  President  instead  of  this  Court deciding to  commute the death sentence of the petitioner to one of life imprisonment.      With these  observations, I respectfully agree with the order passed by the learned Chief Justice. P.B.R.                                     Petition allowed. 244