2024 Supreme(SC) 1156

SUPREME COURT OF INDIA
Abhay S Oka, Ahsanuddin Amanullah, Augustine George Masih, JJ.
State of Maharashtra & Ors. – Appellants
Versus
Pradeep Yashwant Kokade & Anr. – Respondents
Criminal Appeal No. 2831 of 2023 with Criminal Appeal No. 2832 of 2023
Decided On : 09-12-2024

IMPORTANT POINTS
(1) Death sentence – Undue delay in issuing warrant of execution can violate rights of convicts under Article 21 of Constitution of India.
(2) Death sentence – Delay in executing death sentence – Article 21 of Constitution does not end with pronouncement of sentence but extends to stage of execution of that sentence.
(3) Delay in executing death sentence – Convict can invoke even jurisdiction of a High Court under Article 226 of Constitution if there is inordinate and unexplained delay in execution of death sentence post-confirmation of sentence – No hard and fast rule can be laid down as regards length of delay which can be said to be inordinate – It all depends on facts of the case.

Headnote:

(A) Criminal Procedure Code, 1973 – Sections 413 and 414 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 453 and 454] – Constitution of India – Article 32 read with Article 21 – Delay in executing death sentence – Undue, unexplained and inordinate delay in execution of sentence of death will entitle convict to approach Supreme Court under Article 32 – But Supreme Court will only examine nature of delay caused and circumstances that ensued after judicial process finally confirmed sentence and will have no jurisdiction to reopen conclusions reached by court while finally maintaining sentence of death – Supreme Court, however, may consider question of inordinate delay in light of all circumstances of case to decide whether execution of sentence should be carried out or should be altered into imprisonment for life – No fixed period of delay could be held to make sentence of death inexecutable – Keeping a convict sentenced to death in suspense while considering his mercy petitions by Governor or President for an inordinately long time is certainly agony for him/her – It creates adverse physical conditions and psychological stress on convict under sentence of death – Supreme Court, while considering delay in disposal of clemency petitions by highest constitutional authorities, while exercising its jurisdiction under Article 32 read with Article 21 of Constitution, cannot excuse agonising delay caused to convict only based on gravity of crime – Article 21 of Constitution does not end with pronouncement of sentence but extends to execution stage of that sentence – Inordinate delay in execution of sentence of death has dehumanising effect on accused – Inordinate delay caused by circumstances beyond prisoners' control mandates commutation of death sentence – These provisions ensure that execution of death sentence takes place only after all remedies available to convicts are exhausted – Executive cannot execute death sentence unless Sessions Court issues a warrant – Sessions Court can issue a warrant only after providing such reasonable time to convict and after satisfying itself that convict has taken a conscious decision of not pursuing available remedies – Reasonable time can be of seven days. (Paras 21, 22, 24, 25 and 26)

(B) Constitution of India – Article 226 read with Article 21 – Criminal Procedure Code, 1973 – Sections 413 and 414 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 453 and 454] – Delay in executing death sentence – Convict can invoke even jurisdiction of a High Court under Article 226 of Constitution if there is inordinate and unexplained delay in execution of death sentence post-confirmation of sentence – No hard and fast rule can be laid down as regards length of delay which can be said to be inordinate – It all depends on facts of the case – In a given case, delay of two years may not be fatal – In another case, delay of six months can be a ground to commute sentence – Terms “undue” or “inordinate” cannot be interpreted by applying rules of mathematics – Courts, in such cases, deal with human issues and effect of delay on a particular convict – What delay is inordinate must depend on facts of the case – Executive must promptly deal with mercy petitions filed by convicts of death sentence – There is no right vested in victim to insist on imposing capital punishment – Law must be enforced with all vigour – Executive Branch of State Government cannot show laxity in implementing orders of conviction passed by competent Courts – Very purpose of passing orders of sentence cannot be allowed to be defeated. (Paras 27, 28, 36 and 37)

(C) Indian Penal Code, 1860 – Sections 302, 376(2)(g), 364 and 404 read with Section 120-B [Bharatiya Nyaya Sanhita, 2023 – Sections 103(1), 64, 140(1) and 315 read with Section 61(2)] – Criminal Procedure Code, 1973 – Section 366 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 407] – Gang rape, murder and conspiracy – Death sentence – Delay in executing death sentence – Article 21 of Constitution does not end with pronouncement of sentence but extends to stage of execution of that sentence – After order of rejection of mercy petitions is communicated to a convict, sword of Damocles cannot be kept hanging on him for inordinately long time – This can be very agonising, both mentally and physically – Such inordinate delay will violate his rights under Article 21 of Constitution – In such a case, Supreme Court will be justified in commuting death penalty into life imprisonment – It is duty of Executive to promptly process mercy petitions invoking Articles 72 or 161 of Constitution and forward petitions along with requisite documents to concerned constitutional functionary without undue delay – Impugned judgment and order, by which death sentence of convicts has been commuted to a fixed sentence of thirty-five years of imprisonment, upheld. (Paras 42 and 43)

(D) Constitution of India – Articles 72 and 161 – Mercy petitions by death convicts – Speedy disposal: –

A. A dedicated cell shall be constituted by Home Department or Prison Department of State Governments/Union Territories for dealing with mercy petitions. Dedicated cell shall be responsible for prompt processing of mercy petitions within time frame laid down by respective governments. An officer-in- charge of dedicated cell shall be nominated by designation who shall receive and issue communications on behalf of dedicated cell;

B. An official of Law and Judiciary or Justice Department of State Governments/Union Territories should be attached to dedicated cell so constituted;

C. All prisons shall be informed about designation of officer-in-charge of dedicated cell and his address and email ID;

D. As soon as Superintendent of Prison/officer- in-charge receives mercy petitions, he shall immediately forward copies thereof to dedicated cell and call for following details/information from officer-in-charge of concerned Police Station and/or concerned investigation agency: –

a. Criminal antecedents of convict;

b. Information about family members of convict;

c. Economic condition of convict and his/her family;

d. Date of arrest of convict and the period of incarceration as an undertrial; and,

e. Date of filing charge-sheet and a copy of committal order, if any.

On receipt of request made by jail authorities, officer-in-charge of concerned police station shall be under an obligation to furnish said information to jail authorities immediately;

E. On receipt of said information, without any delay, jail authorities shall forward following documents to officer-in-charge of dedicated cell and Secretary of Home Department of State Government:

a. Information furnished as aforesaid by concerned Police Station with its English translation;

b. Copy of First Information Report with its English translation;

c. Details, such as date of arrest of convict, date of filing of charge-sheet and actual period of incarceration undergone by convict;

d. A copy of committal order, if any, passed by Judicial Magistrate;

e. A copy of charge-sheet with its English translation;

f. Report about the conduct of convict in prison;

g. Copies of notes of evidence, all exhibited documents in trial and copies of statements of convicts under Section 313 of Cr.P.C. with its English translation;

h. Copies of judgments of Sessions Court (with its English translation, if it is in vernacular language), High Court and this Court;

F. As soon as mercy petitions are received by dedicated cell, copies of mercy petitions shall be forwarded to Secretariats of Governor of State or President of India, as the case may be so that Secretariat can initiate action at their end;

G. All correspondence, as far as possible, be made by email, unless confidentiality is involved; and,

H. State Government shall issue office orders/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment.

Before issuing warrant, notice should be issued to convict and directions issued by Allahabad High Court in case of People’s Union for Democratic Rights (PUDR), 2015 SCC OnLine All 143, shall be implemented by Sessions Court. (Para 43)

Facts of the case:

Main question involved in these appeals is about effect of delay in executing death sentence. Both convicts were sentenced to death. Proceedings were sent to High Court of Judicature at Bombay in accordance with Section 366 of the Code of Criminal Procedure, 1973 for confirmation of death penalty. By judgment dated 25th September 2012, High Court held that the case of the convicts was falling in the category of ‘rarest of the rare case’. Therefore, High Court proceeded to confirm death sentence. This Court also confirmed death sentence by Judgment dated 8th May 2015.

Findings of Court:

After hearing convict and/or his advocate or legal aid advocate provided to convict, Court should pass an order directing issuance of warrant of execution, a copy of which shall be immediately forwarded to the convict. Warrant must contain a precise date and time of execution. Time should be fixed in such a manner that convict gets at least a period of fifteen clear days from date of receipt of the warrant of execution of the death sentence and actual date of execution to enable him to take recourse to legal remedies or to allow him to meet his relatives finally.

Result : Criminal Appeals dismissed. Copy of this judgment to be forwarded to Registrar Generals of all High Courts, who in turn shall forward copies thereof to all Sessions Courts.