PAWAN KUMAR GUPTA Vs STATE OF NCT OF DELHI
Bench: HON'BLE MRS. JUSTICE R. BANUMATHI, HON'BLE MR. JUSTICE ASHOK BHUSHAN, HON'BLE MR. JUSTICE A.S. BOPANNA
Case number: W.P.(Crl.) No.-000122 / 2020
Diary number: 10611 / 2020
Advocates: SADASHIV Vs
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) No. 122 OF 2020 (Arising out of Diary No.10611 of 2020)
PAWAN KUMAR GUPTA .....PETITIONER
STATE OF NCT OF DELHI .....RESPONDENT
O R D E R
(1) In this writ petition filed under Article 32 of the Constitution of
India, the petitioner Pawan Kumar Gupta has challenged rejection
of mercy petition by His Excellency the President of India inter alia
on various grounds; that settled principles of consideration of mercy
petition have not been followed. The contention of the petitioner is
that the petitioner’s plea of juvenility has not been finally
determined and this aspect was not kept in view by His Excellency
the President of India.
(2) By the order of Hon’ble the Chief Justice of India, this Bench
has been constituted and we held the sitting at 2.30 a.m. on
(3) We have heard Dr. A.P. Singh and Mr. Shams Khwaja, learned
counsel appearing for the petitioner/convict Pawan Kumar Gupta.
We have also heard Mr. Tushar Mehta, learned Solicitor General
appearing for Union of India and also for NCT of Delhi. The matter
was heard from 2.30 am till 3.15 a.m.
(4) We have carefully gone through the grounds raised by the
petitioner and also submissions of the learned counsel appearing
for the parties and perused the materials on record.
(5) The petitioner has filed a mercy petition on 02.03.2020 and
same was rejected by His Excellency the President of India on
04.03.2020. The petitioner has filed the second mercy petition on
18.03.2020 repeating the same grounds.
(6) In this writ petition, the petitioner has inter alia raised various
grounds, namely: (i) that there was miscarriage of justice in
rejection of the mercy petition; (ii) the petitioner’s date of birth is
08.10.1996 and on the date of the incident that is 16.12.2012, he
was only aged 16 years and that he was a juvenile and his claim of
juvenility has not been finally determined; (iii) the petitioner has
been tortured in the prison and had sustained head injuries for
which he has not been given proper treatment.
(7) The learned counsel for the petitioner Mr. Shams Khwaja has
also raised the contention that the petitioner might not have shared
common intention along with the other coaccused and therefore
the petitioner cannot be imposed with the grave capital punishment
with other coconvicts.
(8) Mr. Shams Khwaja has also drawn our attention to the press
report as per which His Excellency the President of India is said to
have expressed concern about “attacks on women” and also said to
have expressed his views that the persons who have been convicted
of a crime under Protection of Children from Sexual Offences
(POCSO) Act, should not be given the right to file a mercy petition.
It was, therefore, submitted that having regard to the above press
report, it cannot be said that His Excellency the President of India
has considered the mercy petition with an open mind.
(9) The learned Solicitor General has submitted that the clippings
relied upon by the learned counsel for the petitioner is only a press
report and in any event, the views expressed by His Excellency the
President of India could only said to be on the line of the reforms
insofar as POCSO is concerned.
(10) 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 & Another v. Govt. of A.P. & Others, (2006) 8 SCC
161, this Court held thus:
“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 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 decision in Epuru Sudhakar (Supra) was followed in
Shatrughan Chauhan & Another v. Union of India & Others,
(2014) 3 SCC 1.
(11) In the light of the above pronouncement, we have considered
the submissions of the learned counsel appearing for the petitioners
and also the grounds raised in the writ petition.
(12) In this writ petition, primarily the writ petitioner has again
raised the plea of juvenility by contending that his date of birth is
08.10.1996 and that he was a juvenile on the date of the incident
on 16.12.2012. The petitioner relies upon the School Certificate
issued by the School, namely, Gayatri Bal Sanskar Shala,
Narayanpur, District Ambedkar Nagar, which was issued on
12.12.2019. The learned counsel Dr. A.P. Singh submitted that the
petitioner’s claim of juvenility has not been finally determined based
on the above certificate issued by the said School on 12.12.2019.
(13) We do not find merit in the above contention of the learned
counsel Dr. A.P. Singh. The petitioner has earlier filed an
application on 30.08.2018 raising the plea of juvenility before the
Juvenile Justice BoardII, Prayas, Delhi, and after considering the
same, the Juvenile Justice Board transferred the petition to the
District & Sessions Judge, Patiala House, New Delhi, vide order
dated 14.09.2018. By order dated 21.12.2018, the learned
Additional Sessions Judge, Patiala House, New Delhi, dismissed
the application filed by the petitioner as being not maintainable.
(14) Challenging that order, the petitioner has filed Criminal
Revision Petition No.1301 of 2019 before the Delhi High Court. By
the order dated 19.01.2019, the Delhi High Court dismissed the
Criminal Revision Petition. Challenging that order the petitioner
had filed the SLP (Crl.) No.547 of 2020. After considering the
submissions of the petitioner, this Court had passed the detailed
order dismissing the Special Leave Petition on 20.01.2020.
(15) The petitioner is not right in contending that the plea of
juvenility has not been finally determined by the Courts. The plea
of juvenility raised by the petitioner has been duly considered and
rejected by the Courts as noted above.
(16) The contention of the petitioner is that due to torture in the
prison the petitioner had sustained head injuries and that he was
sutured with more than 10 sutures and proper treatment was not
given to the petitioner. As pointed out earlier, the exercise of
judicial review of the order of rejection of the mercy petition by His
Excellency the President of India is subject to challenge only on the
grounds indicated in Epuru Sudhkar (Supra) and Shatrughan
Chauhan (Supra) and other decisions. The learned Solicitor
General has submitted that the petitioner was given proper
treatment. The learned Solicitor General also denied the torture
allegedly meted out to the petitioner. The alleged torture, if any, in
the prison cannot be a ground for judicial review of the executive
order passed under Article 72 of the Constitution of India rejecting
the mercy petition.
(17) Insofar as the contention of Mr. Shams Khwaja that the
petitioner might not have shared the common intention along with
other coaccused and that he cannot be imposed the grave capital
punishment is concerned, these grounds have been already
considered both by the Trial Court as well as the High Court and by
this Court and the petitioner Pawan Kumar Gupta has been found
guilty and convicted.
(18) While exercising the power of judicial review, this contention
raised by the learned counsel Mr. Shams Khwaja cannot be
entertained as a ground for judicial review of the order of rejection
passed by His Excellency the President of India.
(19) We have decided the writ petition filed by the coconvict
Mukesh Kumar in Mukesh Kumar v. Union of India Writ Petition
(Crl.) No..40 of 2020 (29.01.2020) and the writ petition filed by co
convict Vinay Kumar Sharma in Vinay Kumar Sharma v. Union
of India & Others Writ Petition (Crl.) No.65 of 2020 (dated
14.02.2020), and Writ Petition filed by coconvict Akshay Kumar
Singh in Akshay Kumar Singh v. Union of India & Others Writ
Petition (Crl.) No.121 of 2020 (19.03.2020) challenging the order of
rejection of mercy petition by His Excellency the President of India.
We have passed detailed orders while dismissing those writ
petitions challenging the order of rejection of mercy petitions by His
Excellency the President of India.
(20) Applying the ratio of those orders, we do not find any ground
to entertain this writ petition warranting judicial review of the order
rejecting the mercy petition by His Excellency the President of India.
(21) As we have pointed out in the earlier judgments in the above
writ petitions, when the power is vested in the very high
contitutional authority, it must be presumed that the said authority
had acted carefully after considering all the aspects of the matter.
It cannot be said that His Excellency the President of India did not
consider the mercy petition with open mind filed by the petitioner
Pawan Kumar Gupta.
(22) The writ petition is accordingly dismissed.
...........................J. (R. BANUMATHI)
...........................J. (ASHOK BHUSHAN)
...........................J. (A.S. BOPANNA)
NEW DELHI, MARCH 20, 2020.