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1989 Supreme(Del) 406
High Court Of Delhi
KHEM CHAND - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 676 of 1989
Decided On : 11/03/1989
Asha Takkar, RAJENDER DUTT, RAJIV SHARMA, S.T.SINGH
Inordinate delay in the execution of a death sentence violates the right to life under Article 21 of the Constitution and may lead to the commutation of the death sentence to life imprisonment.
Headnote:
DEATH SENTENCE - DELAY IN EXECUTION - INORDINATE DELAY IN EXECUTION OF DEATH SENTENCE - VIOLATION OF ARTICLE 21 OF THE CONSTITUTION - COMMUTATION OF DEATH SENTENCE TO LIFE IMPRISONMENT.
Fact of the Case:
The petitioner, an old man of 70 years, was convicted and sentenced to death for the murder of his daughter's lover and his family. After the dismissal of his appeal and special leave petition, he sent a mercy petition to the President of India. The mercy petition was rejected after a delay of more than 65 months. The petitioner filed a petition in the High Court seeking the quashing of the death sentence and the substitution of a sentence of imprisonment for life.
Finding of the Court:
The High Court held that the inordinate delay of more than 65 months in the execution of the death sentence had caused inhuman degradation and misery to the petitioner, violating his right to life under Article 21 of the Constitution. The Court also held that the President had not exercised his powers vested in him under Article 72 of the Constitution as he had not examined the case on merits. The Court further held that the petitioner had not been guilty of prolonging the disposal of the judicial process by filing frivolous petitions and had not obtained any stay of execution of his sentence.
Issues: 1. Whether the inordinate delay in the execution of the death sentence violated the petitioner's right to life under Article 21 of the Constitution? 2. Whether the President had exercised his powers vested in him under Article 72 of the Constitution? 3. Whether the petitioner had been guilty of prolonging the disposal of the judicial process by filing frivolous petitions and had obtained any stay of execution of his sentence?
Ratio Decidendi: 1. The Court held that the inordinate delay of more than 65 months in the execution of the death sentence had caused inhuman degradation and misery to the petitioner, violating his right to life under Article 21 of the Constitution. The Court relied on the Supreme Court's decision in T. V. Vatheeswaran vs. State of Tamil Nadu, where it was held that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death. 2. The Court held that the President had not exercised his powers vested in him under Article 72 of the Constitution as he had not examined the case on merits. The Court relied on the Supreme Court's decision in Kehar Singh and another vs. Union of India and another, where it was held that the President is not precluded from entering into the merits of a case decided finally by the Supreme Court while exercising his power under Article 72. 3. The Court held that the petitioner had not been guilty of prolonging the disposal of the judicial process by filing frivolous petitions and had not obtained any stay of execution of his sentence.
Final Decision: The High Court allowed the petition, quashed the death sentence imposed on the petitioner, and substituted a sentence of imprisonment for life.
( 1 ) THE petitioner Shri Khem Chand is an old man of 70 years. He has a young and good looking unmarried daughter. One Kishori Lal, though married, had developed intimate relations with the petitioner s daughter. Petitioner came to know of this affair. He asked Kishori Lal either to stop meeting his daughter or marry her. Kishori Lal initially promised, but subsequently resiled. The case of the prosecution is that on the night of 23rd March, 1978, the petitioner in conspiracy with one Babu Lal committed the murder of not only Kishori Lal, against whom he had a grouse, but also of his wife, Kamla, his daughter Krishna and son Sushil Kumar. The petitioner (and Babu Lal) were convicted and sentenced to imprisonment for life by the order of Additional Sessions Judge, Delhi on 17th November, 1980 as the petitioner was quite old. Against this Judgment, the petitioner preferred an appeal before the High Court, wheres the Delhi Administration moved the petition for enhancement of sentence of imprisonment awarded to the petitioner, to that of death. Vide order dated 13th October, 1983, this Court dismissed the appeal of the petitioner but allowed the revision and sentenced the petitioner to death. The special leave petition of the petitioner was dismissed in limine by the Supreme Court on 20th February, 1984.
( 2 ) AFTER few days, the petitioner sent a mercy petition to the President of India. When more than two years elapsed in the disposal of his mercy petition, the petitioner approached the Supreme Court by way of writ petition under Article 32 of the Constitution of India seeking the issuance of an appropriate writ, order or direction to quash the sentence of death and substituting in its place a sentence of imiprisonment for life. Since the mercy petition was still pending, the petition was dismissed in limine by the Supreme Court on 14th April, 1987 as being premature. Ultimately, on 16th December 1988, the petitioner was informed that his mercy petition has been rejected by the President.
( 3 ) IN the present petition, the petitioner seeks the issuance of a writ, order or direction for quashing the sentence of death awarded to him and substitute in its place a sentence for imprisonment for life, on the short ground that the inordinate delay of more than 65 months in the execution of the sentence of death has caused inhuman degradation and misery. During this period, he has suffered tuberculosis (TB) and now is at an advanced stage, and without any medical relief, he is being confined to condemned cell. The player is being opposed by the respondent State.
( 4 ) IN case reported Bachan Singh vs. State of Punjab, 1980 (2)S. C. C. 684 (1 ). The sentence of death has been held to be constitutional and not violative of Articles 14, 19 and 21. Speaking for the Court, Sarkaria, J. (Bhagwati, J. dissenting) observed :- "there are several indications in the constitution which show that the Constitution makers were fully cognisant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. The mention in the Legislative list, right of Governor and President to suspend, commute or remit death sentence and right of appeal to the Supreme Court under Article 134, show that death penalty or its execution cannot be regarded as an unreasonable cruel or unusual punishment. Nor can it be said to defile "the dignity of the individual" within the preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty violates the basic structure of the Constitution. " So far so good. But the question posed before us is, whether in a case where after the sentence of death is given, the accused person is made to undergo inhuman and degrading punishment and the execution of the sentence is endlessly delayed as a result of which the accused is made to suffer the most excruciating agony and anguish, is its not open to a court of appeal or a court exercising writ jurisdi
