IMPORTANT POINT
Undue long delay in execution of the sentence of death will entitle the condemned person to approach Supreme Court under Article 32 of the Constitution of India to consider the question of commutation of sentence of death into imprisonment for life.

Headnote:(i) Sentencing-Judicial discretion - When the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. (Criminal Procedure Code, 1973-Section 354(3)). (Para 8)
       (ii) Indian Penal Code, 1860-Section 302 - Conviction under - Death Sentence-Delay in execution-What should be the starting point for computing this delay? - The date on which the Apex Court pronounced judgment.
       Held, (Per G. L. Oza, M. M. Dutt, K.N. Singh and L. M. Sharma, JJ). It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that .all this delay upto the final Judicial process is taken care of while the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final decision has weighed with the courts and lesser sentence awarded only on this account. (Para 10)
       Held further, even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us a Bench of five-Judges, was listed for hearing after a long interval of time. We do not know why this reference could not be listed except what is generally well-known the difficulty of providing a Bench of five. Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms-Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the Apex Court is pronounced i.e. when the judicial process has come to an end. (Para 13)
       Per K Jagannatba Shetty, J. (concurrent)
       Held, the time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trail to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for the against the accused. If the court a wards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which in impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappropriate to fall back upon the same delay to impeach the execution.
       If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Article 21. (Paras 46 and 47)
       (iii) Death Sentence - Delay in execution - Question of commutation of sentence of death into imprisonment for life-The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive.
       Held, it is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter attracting the jurisdiction of this Court, to consider the question of the execution of the sentence. While considering the question of delay after the final verdict is pronounced the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive. (Para 14)
       (iv) Constitution of India-Article 20 Death sentence-When the convicted person is committed to jail awaiting the execution of the sentence, it is not imprisonment-The prisoner has to be kept secured to make him available for execution-aspect of solitary confinement discussed (Criminal Procedure Code, 1973 Section 366). (Paras 16 and 17)
       (v) Constitution of India-Article 21 Death sentence-Question of delay in execution of the sentence -Whether entitles a prisoner to approach this court alleging violation of his right under Article 21? - (No, a judgment of Court can never be challenged under Articles, 14 or 21);
       Held, the only jurisdiction which could be sough to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. (Para 19)
       (vi) Indian Penal Code, 1860-Section 302 - Conviction under -Sentence of death - Confirmed by Supreme Court - The question of improvement in the conduct of the prisoner after the final verdict cannot be considered for coming to the conclusion whether the sentence could be altered on that ground. (Para 19)
       (vii) Constitution of India - Article 32 Death sentence-Question of delay in execution.
       Held, Undue long delay will entitle the condemned person to approach this court under Art. 32-However, no fixed period of delay could be held to make the sentence of death in-executable -consideration for the Court. (Vatheswaran's case (1983)2 SCR 348 : Overuled). (Para 20)
       Result: Petitions dismissed.

In the early eighteen hundreds the Australian penal statements were the scene of floggings of so severe a nature as to rival, for sheer savagery the worst that were inflicted in England during the sixteenth century, or in the southern State of America during the days of slavery. In the United States of America whipping was a favourite seventeenth century punishment for various offences, and both male and female culprits came under the lash. Of all the civilized nations, Russia may be considered to be the one which not only used the 'whip unmercifully, but also as the nation which continued to use it longer by far and for a greater variety of crimes than did any other. Next to Russia, for sheer love or whipping comes China and little less formidable than the Russian knout is the Chinese rod of split bamboo. The sharp edges of the bamboo cut into the fresh inflicting terrible lacerations. Little wonder that deaths as a result of these floggings, have been frequent and that those who escape this fate are often so terribly mutilated that they remain crippled for the rest of their lives. The History of Corporal Punishment by G.R. Scott (1948) pages 39 to 56).

Take the history or punishment of death in England. In 1810 Sir Samuel Romilly who asked the Parliament to abolish the death penalty for some of crimes said there is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England". (A History of English Criminal Law By L. Radzinowicz V (1) p(1).

The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences. There were two hundred or more such offences. There were several legislations providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theoretically punishable with death. From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases. Burning continued till 1790 to be this punishment inflicted on women for treason, high or petty. (which latter included not only the murder by a wife of her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo. 3, c. 48. In practice, women were strangled before they were burnt; this, however, depended on the executioner. In one notorious case a woman was actually burnt alive for murdering her husband, the executioner being afraid to strangle her because he was caught by the fire. In the reign or George II, an act was passed which was intended to make the punishment for murder more severe than the punishment for other capital crimes. This was 25 Geo. 2, c. 37, which provided that a person convicted of murder should be executed on the next day but one after his sentence (unless he was tried on a Friday. In which case he was to be hanged on the Monday). He was to be fed on bread and water in the interval and his body, after death, was either to be dissected or to be hung in chains. The judge, however, had power to respite or to remit these special severities. Under this act murderers were usually anatomized, but sometimes gibbeted. By the 2 3 will 4, c. 7 s. 16 (for the regulation of schools of anatomy), it was enacted that the bodies of murderers should no longer be anatomized but that the sentence should direct that they should either be hung in chains or be buried in the prison. Several persons were gibbeted under this act. These provisions distinguish English law in a marked manner from the continental laws down to the end of the last century. In most parts of the continent breaking on the wheel, burning in some cases quartering alive and tearing with red-hot pincers, were in use, as well as simpler forms of death. (History of the Criminal Law of England by Stephen Ch. XIII p. 477-478.

Through out the reign of Henry the Eighth, ther

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IMPORTANT POINTUndue long delay in execution of the sentence of death will entitle the condemned person to approach Supreme Court under Article 32 of the Constitution of India to consider the question of commutation of sentence of death into imprisonment for life.

Cases Referred (27)

IMPORTANT POINT
Undue long delay in execution of the sentence of death will entitle the condemned person to approach Supreme Court under Article 32 of the Constitution of India to consider the question of commutation of sentence of death into imprisonment for life.