JUDGMENT

CHANDRACHUD, CJI. (for himself and behalf of Desai, 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.

2. 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 Singh and Bira Singh and sentenced them to death. On Oct. 20, 975 the High Court of Allahabad affirmed the judgment of the trial Court in Criminal Appeal No. 1080 of 1975.

3. Jeeta Singh Mod 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 Beach 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 jag which was dismissed by Sarkaria and Shinghal, JJ. on Oct 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 Singhs death sentence was already commuted, that fact was not brought to the notice of the Court specifically when the petitioners special Leave Petition and his Review Petition were dismissed.

4. 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 Oct. 6, 1981 whereupon he filed this petition in this Court.

5. 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 Oct 6, 1981. The other person, Kashmira Singh, succeeded in having his death sentence commuted into life imprisonment. The petitioner 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.

6. 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 Singhs 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.

7. It is unfortunate that Jeeta Singh could not get the benefit of the commutation of Kashmira Singhs sentence. Were he to approach this Court like the petitioner, the sentence imposed upon him would have been communated 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.

8. 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