Triveniben vs State of Gujarat and Others

P.M. Chauhan, J.—Petitioner, the mother of Shashikant Keshavlal Parmar, who is sentenced to death in Sessions Case No. 57 of 1980 by the Sessions Judge, Rajkot, for committing the triple murder of (1) Vibha Narendra Dave, (2) Ashaben Narandra Dave and (3) Gaurishankar Ishwarlal Dave, which was confirmed in confirmation Case No. 1 of 1981 and the Criminal Appeal No. 826/81 arising from the aforesaid Sessions case was dismissed by the High Court on Jan., 19, 1982 and the Appeal dismissed by the Supreme Court of India on July 26, 1982, but preferred this petition under Articals 14, 21 and 226 of the Constitution of India for directing the concerned authorities not to implement the order of execution of Shashikant Keshavlal Parmar until the mercy petition preferred by the petitioner is considered by the President of India.

After the Appeal was dismissed by the Supreme Court Mercy Petition under Article 161 of the Constitution of India was submitted by Shashikant Keshavlal Parmar on Aug. 7, 1982 to the Governor of Gujarat and the Mercy Petition under Article 72 of the Constitution of India was submitted to the President of India. After that Criminal Writ Petition No. 1349/85 was preferred before the Supreme Court which was dismissed on Sept. 4, 1985. Criminal Writ Petition No. 1566/85 was then preferred before the Supreme Court and on Nov. 8, 1985 the Supreme Court stayed the execution of the sentence of death and directed the writ petition to be heard along with other Writ petitions. The Supreme Court dismissed the Writ Petition on Feb. 7, 1989.

According to. the petitioner, she preferred Mercy Petition dt. Oct. 18, 1985 and presented at the registry of the President on that day. On Dec. 13, 1985 the then President of India, Hon''ble Shri Gyani Zailsingh, visited the State of Gujarat and Haribhai Panchal handed over the Mercy Petition personally to the President of India. According to the petitioner that mercy petition is not decided as yet and therefore, till it is decided the execution of the sentence of death should be stayed by this Court.

Mr. M.D. Pandya, learned Public Prosecutor appearing for the respondents stated that the Mercy Petition submitted to the Governor of Gujarat on Aug. 7, 1982 was rejected on Oct. 16, 1982 and the Mercy Petition submitted to the President of India was rejected on Apr. 21, 1983: The previous Mercy Petitions to the Governor of Gujarat and the President of India were, therefore, rejected quite in reasonable time and for that no grievance is made by the petitioner.

The Supreme Court considered the various aspects of the procedural, fairness under the provision of Article 21 of the Constitution of India, in the case of Triveniben Vs. State of Gujarat, . The present petitioner Triveniben preferred writ petition (Criminal) No. 1566/85 in the Supreme Court and that was heard by the five judges of the Supreme Court along with other petitions. The Supreme Court ultimately dismissed the writ petition observing--

"The delay which would be material for consideration will be, subsequent to the final decision of the Court, the delay in disposal of the mercy petition or delays occurring at the instance of the executive. Therefore, when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that the petitions shall be disposed of expeditiously. However, while considering the question of such delay the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself shall not be considered.

It is also observed at para 73 (of SCC) : (at para 70 of AIR) that: --

"Under Article 72 of the Constitution, the President shall have the power to grant pardons reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence". Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the Executive power of the State extends. The time taken by the executive for disposal of mercy petition may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore cannot prescribe a time limit for disposal of qven for mercy petitions."

In the instant case, it is clear that the execution of the death could not be carried out as the Supreme Court granted stay in the year 1985 and the Writ petition is dismissed only recently.

It is clear that the previous mercy petition was dismissed by the Governor in Oct. 1982 and by the President of India in Apr. 1983. It is not clear as to what happened to the mercy petition submitted to the President of India in Dec. 1985. It is, however, clear that the previous mercy petition was dismissed by the President of India. In second mercy petition, copy of which is produced, almost all the contentions which are raised including delay in execution of death sentence, improvement in behaviour in Criminal Writ Petition No. 1665/89 were raised. The Supreme Court has considered the contentions raised before it and rejected.

Merely because second mercy petition was submitted in Dec. 1985, that by itself should not be a reason for staying the execution of the death sentence by this Court. As such that is not the ground or reason for staying the execution of the death sentence by this Court. The position would have been quite different if the first mercy petition would not have been dismissed by the President of India. In that case, this Court while exercising the extraordinary jurisdiction, would have stayed the execution of the death sentence for the limited period with a view to give chance to the condemned prisoner. Merely because the repeated applications are submitted that should not be the ground for staying the execution of the death sentence. The petitioner does not appear to have urged that contention before the Supreme Court even though that Criminal Writ Petition is decided in 1989.

The Supreme Court has categorically observed that it is necessary to emphasise that the jurisdiction of the Court at this stage is extremely limited. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. The contention that the accused improved after the death sentence is also considered by the Supreme Court and observed that such a ground is unavailable as it seeks to substitute new procedure which the Code does not provide for. The fact that the accused Shashikant Keshavlal Parmar donated one of the kidneys by itself should not be a ground for staying the execution of the death sentence.

We, therefore, do not find any reason to stay the execution of the death sentence. This petition is therefore, rejected. Notice discharged.