Sawai Singh vs State of Rajasthan and Another

P C. Jain, J.—Petitioner condemned to death in this writ petition under Article 226 of the Constitution of India has prayed for issuance of a writ, order direction to quash the sentence of death passed by the learned Additional Sessions Judge, Gangapur City vide his judgment dated 1st March, 1983, in Sessions Case No. 36 of 1982, for an offence u/s 302, IPC (which was confirmed by this Court vide judgment dated 5th March, 1984) and in place of sentence of death to substitute the sentence of imprisonment for life, on the ground of inordinate delay in the execution of the death sentence by invoking Article 21 of the Constitution of India, placing reliance on Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, .

A few facts may briefly be stated. Petitioner Sawai Singh was prosecuted for the offences under Sections 302, 452, 325 and 201, IPC by the learned Additional Sessions Judge, Gangapur City in Sessions Case No. 36/1982 and after trial he was held guilty and convicted. The petitioner was sentenced to death u/s 302, IPC vide judgment dated 1st March, 1983. The case was referred for confirmation of death sentence by the learned Additional Sessions Judge to this Court. The reference was registered as Ref. No. 7 of 1983. The petitioner also preferred an appeal against his conviction, which was registered as D.B. Criminal Appeal No. 107/1983. Both the reference and appeal were disposed of together. This Court confirmed the death penalty and also maintained the order of conviction and sentence of death passed by the trial Court, vide its order dated 5th March, 1984. The petitioner had approached the Hon''ble Supreme Court by filing SLP No 2270/1984, but the same was dismissed by the Supreme Court vide order dated 25th February, 1985. A review petition No. 233/1985 also met the same fate on 19th April, 1985. Thereafter the petitioner filed mercy petitions to His Excellency the President of India and the Governor of Rajasthan under Article 72 and 161 of the Constitution of India respectively on 1st March, 1985. His Excellency the Governor of Rajasthan rejected the mercy petition of 10th July, 1985. The mercy petition to His Excellency the President of India is still pending. The case of the petitioner is that 3 years have elapsed from the date of judgment of the trial court who sentenced the petitioner to the penalty of death, but it has not been executed so far, where by causing mental pre-hanging in a prolonged frightful environment. The petitioner also served a notice of demand (Annx. 1) but in vain. Being aggrieved by the action of the respondents for not commuting the sentence of death into one of imprisonment for life the petitioner has filed this writ petition.

The question raised in this writ petition is whether in a case when after the sentence of death is given the execution of the sentence is inordinately delayed and the accused is made to suffer the most excruciating agony and anguish, is it open to the Court under Article 226 of the Constitution to give relief.

The Hon''ble Supreme Court considered the constitutional implication of prolonged delay in execution of a sentence of death in a number of cases. From the various cases, we may detect the following observations:

(i) That a prisoner under a lawful sentence of death or imprisonment could claim fundamental rights. A convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to the procedure established by law. D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra Pradesh and Others, , Sunil Batra Vs. Delhi Administration and Others etc., State of Maharashtra Vs. Champalal Punjaji Shah, ; Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, ; Vasanta Vs. State of Maharashtra, .

(ii) That the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the constitutional guarntee that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. T.V. Vatheeswami v. State Tamil Nadu 1983 SC 361.

(iii) It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment. It is a logical extension of the selfsame principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust and unfair Jagtar Singh Vs. State of Punjab, ;

(iv) That when ever the courts are called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it;

(v) That the Supreme Court impressed upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self imposed rule should be followed by the executive authorities rigorously that every such petition should be disposed of within a period of three months from the date on which it is received. Sher Singh and Others Vs. State of Punjab, ;

(vi) All exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice.

In Vatheeswami''s case, Division Bench of the Supreme Court consisting of O. Chinnappa Reddy and R.B. Misra, JJ. held and observed as follows:

Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of sentence of death.

But, in Sher Singh and Others Vs. State of Punjab, another Division Bench consisting of Chandrachud, C.J., V.D. Talapurkar and Vardarajan, JJ. of the Supreme Court did not agree with the aforesaid decision of the Supreme Court in Vatheesawami''s case and observed as under:

This period of two years purports to have been fixed in Vatheeswaran case after making all reasonable allowance for the time necessary for appeal and consideration of reprieve. With great respect we find it impossible to agree with this part of the judgment.

Again, the same point came up for consideration before a Division Bench of the Supreme Court consisting of Javed Ahmed Abdul Hamid Pawala Vs. State of Maharashtra, and the Supreme Court reiterated the same view which it took in Vatheeswaran''s case in preference to the decision in Sher Singh''s case. And when it was contended that Sher Singh''s case was a judgment of three Judges, as compared to two judges, judgment of Vatheesworan''s case as such judgment of a Division Bench of three Judges should be followed. However, the Supreme Court rejected the contention by observing that the Supreme Court sits in divisions of two and three judges for the sake of convenience and it may be inappropriate for Division Bench of three judges to purport to over-rule the decision of a Division Bench of two judges.

An extremely ticklish question has been posed before us. Learned Addl. Government Advocate Mrs. Jain has submitted that as per law of precedent a High Court should follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court and, for supporting her contention, she has placed reliance on Union of India (UOI) and Another Vs. K.S. Subramanian, , Mrs. Jain has further submitted that a Division Bench is bound by the decision of an earlier Division Bench and placed reliance on Ram Jivan Vs. Smt. Phoola (Dead) by Lrs. and Others, and Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. and Others Vs. State of Andhra Pradesh and Others, .

We have carefully considered the submission, made by Mrs. Jain learned Addl. Government Advocate and we are of the opinion that the cases referred by her are for the guidance to the High Courts with respect to their Division Benches, but the law of precedent with respect to Division Benches of the Supreme Court is different as the Supreme Court sits in Division Benches of two or three judges, as observed by the Supreme Court in Javed Ahmed''s case following a decision in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All. ER 293. In Javed Ahmed''s case the Supreme Court observed that it may be inappropriate for a Division Bench of three judges to purport to over rule the decision of a Division Bench of two judges, although it may be otherwise where a Full Bench or a Constitution bench does so.

Under the Constitution of India in view of Article 141, our duty is "to do or die,'', though not giving up the right to ask how or why. At this juncture we may remind ourselves What Lord Diplock said in Broome v. Cessel and Co. (1972) AC 1027 that "The judicial system only works if some one is allowed to have the last word and if that last word once spoken, is loyally accepted."

Thus, following the dictum laid down by Lord Diplock, we take the proposition of law laid down in Javed Ahmed''s case as "the last word spoken."

Shri O.P. Sharma, learned Additional Government Advocate has placed reliance on K. Govindaswami v. Government of India 1986 Cr. LJ 1326 a full bench decision of the Kerala High Court, to support his contention that delay in execution of death sentence, irrespective of the circumstances under which the death was caused will not by itself constitute an adequate ground for modification of the death sentence into one of imprisonment for life. The Full Bench of the Kerala High Court distinuished Javed Ahmed''s case by stating that in that case, the Supreme Court had taken into consideration certain relevant factors besides the question of delay in disposal of the appeals and the relevant factors were that it was a case where the condemned prisoner was a young man of 22 years of age and had been convicted for a single murder and his conduct and behaviour in the jail was reported to be good and remarkable. He manifested genuine repentance and expressed his desire to atone for the grievous wrong that had been done by him. It further stated that the Supreme Court in that case had stated that since the repentance and the desire appeared to be sincere and since the sentence of death was hanging over his head for over two years and nine months, they would be justified in modifying the death sentence into one of imprisonment for life. We respectfully disagree with the view taken by the Full Bench of the Kerala High Court in K. Govindswami''s case (supra). Our reasons being, firstly that the learned Full Bench did not consider the impact of law of precedent. Reliance has not been placed on Javed Ahmed''s case wherein the Supreme Court has clearly observed that it would be inappropriate for a Division Bench of three Judges to purport to over-rule the decision of a Division Bench of two Judges and, thus, the Supreme Court itself in a latter judgment did not follow the principles laid down by it in Sher Singh''s case. In Javed Ahmed''s case the case of Vathreeswaran and Sher Singh were considered at length and the Division Bench of the Supreme Court once again affirmed the view it took in Vatheeswaran''s case and another reason being is that after the confirmation of death sentence was approved by the High Court and confirmed by the Supreme Court, where the Supreme Court did not agree to commute the sentence of death into one for imprisonment for life on the ground of young age of the prisoner or other relevant grounds. This Court in a petition under Article 226 of the Constitution of India should not take into consideration the factors which may be valid and good grounds when an appeal is filed either before the High Court or before the Supreme Court against the sentence of death on the ground that such an extereme penalty is not warranted by the facts and circumstances of the case. In the circumstances, the only question which remains for our consideration is, whether in a case where after the sentence of death is given, the execution of the sentence is ordinarily inordinately delayed and the accused is made to suffer the most excruciating agony and anguish, what relief the court should give in a petition under Article 226 of the Constitution. The Supreme Court in Javed Ahmed''s case following its previous judgment in Vathreewaran''s case said that making a reasonable allowance for the period necessary for appeal and consideration of reprieve, a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under the sentence of death to invoke Article 226 of the Constitution.

We are, thus left with no other alternative but to follow the verdict given by the Supreme Court in Javed Ahmed''s case which is, so far, the latest case on the question involved in this case. Our duty under Article 141 of the Constitution is to follow the judgment of the Supreme Court and on the rule of precedent the latest judgment is to be followed as that is the last word spoken by the Apex Court of this country. Being the last and latest word once spoken by the Supreme Court, it is our duty to accept the same. This duty can aptly be described in the words of a Speaker who once in the British Parliament said:

I have neither eyes to see, nor tongue to speak in this place but as the House is pleased to direct me.

After crystalising the position of law referred to above, we may once again refer to the facts of the case. In this case, the learned Additional Sessions Judge convicted the petitioner and awarded the penalty of death vide his judgment dated 1st March, 1983. The High Court confirmed the death penalty by its judgment dated 5th March, 1984. Leave to appeal filed by the Supreme Court was also dismissed. Even the review petition was dismissed by the Supreme Court on 19th April, 1985. The mercy petition filed by the petitioner before His Excellency the President of India on 1st March, 1985, is still pending. Thus, from 19th March, 1985, till today, there has been no execution of the sentence imposed on the petitioner on 1st March, 1983. This period is more than a period of two years, which has been considered sufficient by the Supreme Court in Vatheeswaran''s case for invoking Article 21 of the Constitution and demand quashing of sentence of death by the petitioner.

In the premises aforesaid, we allow the writ petition, issue a writ to quash the sentence to death passed by the learned Additional Sessions Judge, Gangapur City vide his order dated 1st March, 1983 in Sessions case No. 36 of 1982 and, in place of sentence of death to substitute the sentence of imprisonment for life.