JUDGMENT :

B. P. DHARMADHIKARI, J.

1. By these petitions under Article 226 of the Constitution of India the petitioners -convicts pray for declaration that the execution of sentence of death in their respective cases is unconstitutional and bad in law, the directions to commute the same into punishment of imprisonment for life be issued and death warrants be quashed and set aside. There is also challenge to orders passed by Hon'ble the President of India and Hon'ble the Governor of Maharashtra rejecting their mercy petitions.

2. Before proceeding further it will be appropriate to briefly mention the grounds of attack. It is submitted that after judgment of Hon'ble Apex Court dated 8/5/2015, there is huge delay of 1507 days i.e. 4 years 1 month and 6 days till 24/6/2019 when death sentence was to be executed. There is no application of mind by Hon'ble the Governor and Hon'ble the President to their respective mercy petitions. After the judgment of Sessions Court dated 20/3/2012 sentencing them to death, they have continued in solitary confinement and they have thus undergone more than 8 years of solitary confinement. This sentence inflicted upon them is in violation of Article 21 of the Constitution of India. Lastly, it is urged that issuance of death warrant ex-parte without any opportunity to them is bad in law and unsustainable.

3. Dr. Chaudhary appearing for the petitioners state that the judgment of Sessions Court in Sessions Case No.284/2008 holding them guilty of offence under section 302, 376(ii)(g), 364 and 404 read with 120-B of IPC was upheld by this Court on 25/9/2012 while dismissing Criminal Appeal No.632/2012 filed by both the petitioners in Confirmation Case No.1/2012. On 4/7/2013 Hon'ble Apex Court issued notices confined to sentences in Criminal Appeal No.1439/2013. On 8/5/2015 said Criminal Appeal was dismissed & therefore after 8/5/2015, the sentence of death ought to have been executed within 90 days. Time taken thereafter is unconstitutional.

4. Petitioners were informed of dismissal of their appeal by Hon. Apex Court on 27/6/2015 and thereafter on 10/7/2015, they presented mercy petitions to the Government of Maharashtra through Superintendent of Yerwada Central Prison. On 16/7/2015 that prison forwarded mercy petitions to the Principal Secretary of Home Department of Maharashtra State and it was without complete documents. On 25/1/2016 the Home Department finalized the process of application of mind to mercy petitions and thus complete documents were not on record. On 27/1/2016 the Yerwada prison forwarded a copy of Sessions Court Judgment and other documents to Home Department of Maharashtra Government. On 1/2/2016 IG prison informed Chief Secretary of Home Department accordingly. On 1/2/2016 Yerwada Central Prison sent a reminder to Talegaon Police Station calling for information as per its letter dated 24/6/2015. Ultimately, on 29/3/2016 Hon'ble the Governor of Maharashtra rejected mercy petitions. According to petitioners this order of rejection is mechanically processed in as much as Hon'ble the Governor has put his signature on note dated 25/1/2016 prepared by Department of State Government. At that time the judgment of learned Sessions Court was not on record. Other documents from Talegaon police were also not received till 25.1.2016 or 1.2.2016 and the kind attention of Hon. Governor was not drawn to these lacunae.

5. Mr. Chaudhary, learned counsel also pointed out that on 24/6/2015 respondent No.4 Superintendent of Jail had called for 5 important documents, but those documents did not form record till 25/1/2016 when Department of State Government finalized the note to be submitted to office of Hon'ble the Governor. Documents forwarded on 16/7/2015 along with mercy petitions were different and then the operative order of Session Court was forwarded. On 17/8/2015, exercise to verify filing of review petition if any, was undertaken and on 26/8/2015 Inspector General of Prison informed State Government th