The exercise of the right to file a mercy petition is the prerogative of the convict and the courts cannot indefinitely defer a judicially upheld sentence.

JUDGMENT :

P.N. PRAKASH, J.

Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, calling for the records in D.No.1554 of 2019 dated 18.11.2019 in S.C.No. 44 of 2011 on the file of the Sessions Court (Mahila Court), Coimbatore and quash the same.

1. The petitioner faced a prosecution in S.C.No.44 of 2011 for the offences under Sections 376 (2)(f) and (g), 302 r/w 34, 364 A, 120 B and 201 I.P.C before the Mahila Court, Coimbatore, in which, on 01.11.2012, he was sentenced to death. On reference, the High Court confirmed the death sentence on 24.03.2014. The Supreme Court dismissed the appeal of the petitioner on 01.08.2019. The Supreme Court also dismissed the Review Petition of the petitioner on 07.11.2019. Thereafter, on 12.11.2019, a relative of the petitioner gave a representation to the Superintendent, Central Prison, Cuddalore, stating that the petitioner is going to file a mercy petition before the Hon'ble Governor, under Article 161 of the Constitution of India. However, on 18.11.2019, the trial Court issued a warrant under Form 42 and Sections 413 and 414 Cr.P.C to the Superintendent, Central Prison, Coimbatore and fixed the date of execution as 02.12.2019.

2. The petitioner filed the present writ petition on 21.11.2019 challenging the warrant by contending that the death sentence is being executed hurriedly and that he should be given the opportunity to appeal for mercy to the constitutional authorities. This Court, on 26.11.2019, heard the learned counsel for the petitioner and ordered that the death warrant dated 18.11.2019 shall be kept in abeyance until further orders. However, in paragraph 5 of the order dated 26.11.2019, this Court has stated as follows:

''5. We also make it clear that our order will not stand in the way of the petitioner making mercy plea before His Excellency The Hon'ble Governor of Tamil Nadu, as submitted by the learned Senior Counsel appearing for the petitioner.''

3. After 26.11.2019, this case did not see the light of the day and came up for final disposal on 01.03.2021. Mr.Yashod Vardhan, learned Senior Counsel representing Mrs. R. Poongkhulali, learned counsel on record for the petitioner, placed strong reliance on the judgement of the Supreme Court in Shabnam V. Union of India and contended that the trial Court ought not to have issued the warrant in Form 42 hurriedly and should have given sufficient opportunity to the petitioner to file a clemency petition. The relevant portion from the said judgment is as under:

“12.2. That apart, the right to file mercy petition to the Governor of the State as well as to the President of India also remains intact. These remedies are also of substance and not mere formalities. This remedy is again a constitutional remedy as the Executive Head is empowered to pardon the death sentence (this power lies with the President under Article 72 and with the Governor of the State under Article 161 of the Constitution). Thus, power to pardon is a part of the constitutional scheme which has been reposed by the people through the Constitutional in the Head of the State, and enjoys high status. In exercise of their powers, the President or the Governor, as the case may be, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary. It clarified by this Court that while exercising such a power, the Executive is not sitting as a court of appeal. Rather, power to grant remission of sentence is an act of grace, humanity in appropriate cases i.e distinct, absolute and unfettered in nature (see Shatrughan Chauhan). Even this Court in V.Sriharan v. Union of India observed that clemency procedure under Articles 72/161 of the Constitution provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment. Of course, in a given case, it would be for the convict to make out a justifiable case for remission of death sentence.