Allahabad High Court
Saleem vs State Of U.P. And 2 Others on 19 June, 2020
Bench: Ramesh Sinha, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 5858 of 2020 Petitioner :- Saleem Respondent :- State Of U.P. and 2 Others Counsel for Petitioner :- Syed Imran Ibrahim,Anurag Vajpeyi,Manish Tiwary(Senior Adv.) Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Syed Imran Ibrahim, learned counsel for the petitioner and Sri Vikas Sahai, learned A.G.A. for the State and perused the record.
By means of this petition, the petitioner has prayed following principal reliefs:-
"i. issue a writ, order or direction in the nature of mandamus or any other appropriate writ directing the respondent no.2 and 3 to withdraw any mercy petition forwarded on behalf of the Petitioner; and ii. issue a writ, order or direction in the nature of Mandamus, any other appropriate writ directing the respondent no.2 and 3 to allow for legal meetings with the duly appointed legal representatives of the petitioner after the removal of all travel restrictions related to COVID-19;
iii. issue a writ, order or direction in the nature of Mandamus, any other appropriate writ directing respondent no.2 and 3 to permit the Petitioner to file a fresh mercy petition after reasonable opportunity to prepare a mercy petition after being provided legal assistance by his duly appointed legal representatives."
It appears from the record that the petitioner and his co-accused were convicted under Section 302 read with Section 34 IPC on 14.7.2010 by the Sessions Judge, Amroha in Sessions Trial No.293 of 2008 and they were sentenced to Death on 15.7.2010. The conviction of the petitioner was upheld by a Division Bench of this Court in Criminal Appeal Nos.5003 of 2010 and 5245 of 2010 and the Death sentences were confirmed in Capital Reference No.8 of 2010. They preferred Criminal Appeal Nos.804-805 of 2015 and 802-803 of 2015 before Hon'ble Supreme Court and the same were dismissed on 15.5.2015. Thereafter a warrant for execution of death sentence of the petitioner and his co-accused Shabnam was issued by learned Sessions Judge, Amroha on 21.5.2015. They preferred Writ Petition (Criminal) Nos.88 and 89 of 2015 for quashing the warrants for execution of death sentence and Hon'ble Apex Court had proceeded to quash the warrants for execution of the petitioner and his co-accused issued on 27.5.2015 on the ground that the death warrants were signed by the Sessions Judge in a haste, without waiting for the exhaustion of the remedies on the part of the convicts.
The petitioner filed a Review Petition (Crl.) Nos.632-633 of 2015 in Criminal Appeal Nos.804-805 of 2015. A Review Petition (Crl.) No.635-636 of 2015 was also filed by the co-convict of the petitioner in Criminal Appeal Nos.802-803 of 2015. These Review Petitions were dismissed by Hon'ble Apex Court on 23.1.2020. Thereafter, an email was sent by the legal representative of the petitioner to the Central Jail, Naini on 28.3.2020 requesting that no steps be taken until a legal meeting is conducted by the Advocate of the petitioner for future legal remedies available to him in pursuance of the directions of Hon'ble Supreme Court in Shatrughan Chauhan vs. Union of India (2014) 3 SCC 1 (para-241). As no response was received to the email dated 28.3.2020, a second e-mail was sent to the Central Jail, Naini on 01.4.2020 requesting that since the mercy petition has been filed by the jail administration of Central Jail, Naini on behalf of petitioner namely Saleem, S/O Abdul Rauf is in violation of directions of Hon'ble Supreme Court in Shatrughan Chauhan (supra), hence the present writ petition has been filed with the aforesaid reliefs.
Learned counsel for the petitioner has vehemently submitted that the right to life under Article 21 of Constitution of India alongwith all its other guarantees including procedural fairness inhere even in death sentenced prisoners and are to be observed at every stage, even till the last breath of life (Ref. Triveniben vs. State of Gujarat (1989) 1 SCC 678 (para-60). In this backdrop, he submits that even the review petition has been rejected by Hon'ble Apex Court but still the petitioner has got remedies under Section 433, 434 Cr.P.C. and Section 54 read with 55A IPC as well as constitutional rights under Article 161 and 72 of the Constitution of India. Therefore, his right is still to be protected as per aforesaid mandate. He submits that the right to file mercy petitions is not an empty formality, which also has constitutional backing (Ref. Shabnam vs. Union of India (2015) 6 SCC 702. He further submits that as per mandate in Shatrughan Chauhan (supra) the Hon'ble Apex Court had given a sweeping directions and guidelines and directed Superintendents of Prisons to ensure that the prisoners are given access to legal aid. He has placed reliance on para-241.2 and the same is reproduced herein below:-
"241.2. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected. Various judgments of this Court have held that legal aid is a fundamental right under Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of the death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition and legal aid should be provided to the convict at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts."
Learned counsel for the petitioner further submits that the mercy petition, which was moved by the petitioner through Superintendent of Central Jail, Naini to the State Government, was in fact not in accordance with the guidelines/mandate of the Apex Court in the case of Shatrughan Chauhan (supra). He prays that he may be allowed to move a fresh mercy petition as per law laid down by the Apex Court in the light of Shatrughan Chauhan (supra).
The matter was taken up on 18.6.2020 and the Court had asked Shri Vikas Sahai, learned A.G.A. to seek instructions in the matter and passed following order:-
"Heard Sri Manish Tiwari, learned Senior Advocate assisted by Sri Syed Imran Ibrahim, learned counsel for the petitioner and Sri Vikas Sahai, learned AGA for the State.
Learned counsel for the petitioner states that the petitioner's capital punishment has been upheld by the Apex Court against which the review petition has also been dismissed. A mercy petition is said to have been filed by the petitioner through Superintendent of Jail which has been disputed by learned counsel for the petitioner as the same is not in accordance with the guidelines as has been framed by Hon'ble Supreme Court in Shatrughan Chauhan v. Union of India (2014) 3 SCC 1 (Para 241.2. Legal Aid), hence, his right enshrined under Article 21 of the Constitution of India is being violated.
Learned AGA shall seek instructions in the matter by tomorrow.
Put up tomorrow."
On the matter being taken up today, learned AGA for the State submits that as per instructions received by him in compliance of the aforesaid order, the mercy petition, which has been filed by the petitioner through Superintendent of Jail as per para-384 of the Jail Manual, was forwarded to the State Government, where the matter is still pending consideration.
Hon'ble Apex Court in the case of Shatrughan Chauhan (supra) framed several guidelines and directed the Superintendents of Prisons to ensure that the prisoners are given access to legal aid. Article 21 of the Constitution of India inheres the rights of a prisoner, even if he/she is a convict. He/she has every right to invoke the remedy as available in law till his last breath. Hon'ble Apex Court in Mohd. Arif vs. Registrar, (2014) 9 SCC 737 has held that the death penalty once executed becomes irreversible and therefore every opportunity must be given to the condemned convict to establish that his life ought not to be extinguished, without according legal aid. The obligation to give such an opportunity takes within its sweep, that an oral hearing be given in a review petition, as a part of a "reasonable procedure" flowing from the mandate of Article 21 of the Constitution of India. In the case of Shabnam vs. Union of India (supra) Hon'ble Apex Court has held that the State cannot act with haste in death penalty cases, instead it will have to wait for the prisoner to exercise their rights. "However, what is emphasized in the present context is that this is again a constitutional remedy provided to the convicts of death sentence and they have a right to avail this remedy which cannot be snatched by executing the death sentence before even giving such convicts a chance or opportunity to avail the same. For this purpose, State has to wait for reasonable period, even after such convicts fail in the review petition, if they so file."
Considering the facts and circumstances of the case and taking into account the miserable condition prevailing due to Covid-19, the present petition is disposed of with the direction that the State Government shall provide legal aid to the petitioner as per mandate of the judgement passed by the Apex Court in Shatrughan Chauhan (supra) and also consider the additional material, in case the petitioner submits within two weeks from today along with the mercy petition, which is pending consideration before the State Government, may be decided in accordance with law.
It is made clear that we have not expressed any opinion on the merits of the case.
As the petitioner is in jail, the computer generated copy of the present order downloaded from the official website of High Court, Allahabad duly attested by the petitioner's counsel or the counsel, who is providing legal aid to the petitioner in jail, shall be served upon the respondents forthwith.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Shri Vikas Sahai, learned AGA shall also communicate this order to the respondents forthwith for its compliance and communication to the petitioner who is confined in Cental Jail, Naini.
Order Date :- 19.6.2020 Tamang