Gujarat High Court
Triveniben Keshavlal Parmar vs State Of Gujarat And Ors. on 22 June, 1989
Equivalent citations: 1990CRILJ1341, (1989)2GLR201
JUDGMENT P.R. Gokulakrishnan, C.J.
1. The mother of the condemned prisoner, who is the petitioner herein has filed this Special Criminal Application under Article 226 of the Constitution read with Articles 14 and 21 for issuing a writ of mandamus or any other appropriate writ, order or directions directing His Excellency the President of India to consider again the Mercy Petitions of the convict dated 7-8-1982, 18-10-1985 and 10-5-1989 preferred by the petitioner in the light of the judgment of Kerharsingh reported in 1989 (1) SCC 204. Consequently, the prayer for staying the execution and implementation of the order of hanging the accused Shashikant Keshavlal Parmar to death scheduled on 23-6-1989 at 7-00 a.m. at Rajkot District Jail is prayed for. The petitioner had earlier filed Special Criminal Application No. 1286 of 1988 praying the very same relief, but in relation to the Mercy Petition dated 18-10-1985. There also, the petitioner had prayed that until the President of India decides the Mercy Petition dated 18-10-1985 fully and finally, the execution had to be stayed. While considering the prayer in that petition, the Bench of the High Court of which I was one of the Judges, in detail, considered and rejected the prayer made therein.
2. This is a case in which the condemned prisoner was sentenced to death in Sessions Case No. 57 of 1980, by the Sessions Court, Rajkot for committing triple murder. The said decision of the Sessions Court was confirmed by the High Court in Confirmation Case No. 1 of 1981 and Criminal Appeal No. 826 of 1981 arising out of the said decision was dismissed by the High Court in 1982 itself. On 26-7-1982, the Supreme Court dismissed the Special Leave Petition. Subsequent to all these things, the petitioner preferred Special Criminal Application No. 1286 of 1988. According to the petitioner in that case, she preferred Mercy Petition dated October, 18, 1985 and presented at the registry of the President on that day. It is further stated that on December, 13, 1985, the then President of India Hon'ble Shri Gnyani Zailsingh visited the State of Gujarat and Shri Haribhai Panchal handed over the Mercy petition personally to the President of India. According to the petitioner, that Mercy Petition was not decided as yet and therefore till it is decided, the execution of death sentence should be stayed. In that case, Mr. M. D. Pandya, learned public prosecutor appearing for the State stated that the Mercy Petition submitted to the Governor of Gujarat on August 7, 1982 was rejected on August, 16, 1982 and the Mercy Petition submitted to the President of India was rejected on April, 21, 1983. The previous Mercy Petitions to the Governor of Gujarat and the President of India were, therefore, rejected quite in reasonable time and therefore no grievance can be made by the petitioner.
3. The Supreme Court considered various aspects of the procedural fairness under Article 21 of the Constitution of India in the case of Triveniben v. State of Gujarat (1989) 1 SCC 678 : (AIR 1989 SC 1335). The present petitioner Triveniben preferred Writ Petition (Criminal) No. 1566/1985 in the Supreme Court and that was heard by the five Judges of the Supreme Court along with other petitions. The Supreme Court 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 delay 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): (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 even for mercy petitions."
4. In Special Criminal Application No. 1286 of 1989, it has been made clear that the execution of death sentence should not be carried out as the Supreme Court granted stay in the year 1985 and the writ petition was dismissed only recently. We had also considered in that Special Criminal Application the dismissal of the original mercy petition by the President in the year 1983 and have observed that it is not clear as to what happened to the Mercy Petition submitted to the President of India in December, 1985. Nevertheless, we have observed therein that the original Mercy Petition filed in the year 1983 was dismissed by the President of India. We have also perused the second Mercy Petition, copy of which was produced at that time and that was almost on the same lines as that of the original petition. The Supreme Court in Writ Petition (Criminal) No. 1556 of 1985 considered and rejected all the contentions raised by the petitioner herein. In Special Criminal Application No. 1286 of 1989, we have also observed :--
"Merely because second mercy petition was submitted in December 1985 that by itself should not be 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."
After considering the decision of the Supreme Court which considered as to whether undue delay in execution will give any right to the condemened prisoner, we have dismissed the Special Criminal Application. Subsequent to the dismissal of the said Special Criminal Application on 5-5-1989, the petitioner has come forward with the present Special Criminal Application. We have already extracted the prayer made therein.
5. It is clear from the records now produced by the learned Public Prosecutor Mr. M. D. Pandya that there is a letter to the Secretary to the Government of Gujarat, Home Department, Sachivalaya, Gandhinagar by the Government of India, Ministry of Home Affairs dated April, 22, 1983 stating:
"Reference your letter No. JLK-4882-J dated 2nd November, 1982.
The President of India declined to interfere on behalf of condemened prisoner Shashikant Keshavlal Parmar alias Mali, resident of Veraval in Junagadh District, under sentence of death in the Ahmedabad Central Prison, Sabarmati. The petitioner may be informed accordingly.
3. Necessary steps may now be taken to give effect to the Court's sentence unless any judicial proceeding is pending in this case and specific stay of execution has been ordered by any Court. The date of execution may please be intimated to this Ministry as soon as it is decided upon.
4. Please acknowledge receipt."
There is a copy of the said letter with an endorsement from the condemned prisoner that he has been informed about the rejection of the Mercy petition by the President. To this, the condemned prisoner has subscribed his signature. From the record, Mr. Pandya, learned Public Prosecutor also produced for our persual a letter from the Government of India, New Delhi, dated May, 31, 1989. It reads as under :--
"I am directed to refer to the correspondence resting with your telex message No. JLK/4982/ Part 5/J dated the 24th May 1989 on the above subject and to say that as indicated in this Ministry's Wireless Message of even number dated the 10th May, 1989, further mercy petition had been received on behalf of convict Shashikant Keshavlal Parmar. All such petitions received so far have been carefully considered. The decision of the President not to interfere on behalf of this prisoner, as communicated in this Ministry's letter of even number dated 22nd April 1983 does not require any change. The stay of execution directed in this Ministry's Wireless Message of even number dated 10th May 1989, is hereby vacated.
2. The prisoner may be informed of these decisions. He may be executed on the date fixed in the warrant issued by the Additional Sessions Judge, Rajkot unless any judicial proceeding instituted by the prisoner is pending before any Court and that Court has specifically stayed the execution. This Ministry may kindly be informed as soon as the petitioner is executed.
The receipt of this letter may kindly be acknowledged."
A copy of the said letter was explained to the condemned prisoner in his mother tongue Gujarati and in token of that, the condemned prisoner has signed in the said letter. These letters shown to us were also perused by Mr. Nanavaty, the learned counsel appearing for the petitioner herein. It is the say of Mr. Nanavaty that the Government should put all these letters by affidavit with their explanation and that the petitioner must be given an opportunity to counter all the averments made therein and also the service of the same upon the condemned prisoner. The learned counsel also makes a point to the effect that the letter dated May, 31, 1989 was shown to the condemned prisoner only on June, 21, 1989.
6. In the main Special Criminal Application, the petitioner has produced letter dated June, 13, 1989 and states that this has given rise to the filing of the present Special Criminal Application. It is at Annexure-C to the Special Criminal Application and it reads as follows:--
"Madam, With respect to the aforementioned subject, it is stated that all your mercy petitions including the one dated 18-10-1985 to H.E. the President has been received by the Central Government and all these mercy petitions have been carefully considered by the Central Govt. But H.E. the President does not desire to intervene in this case of the condemned prisoner Shashikant Keshavlal Parmar as also the decision which has been communicated by a leter dated 28-4-1983. Since H.E. the President does not desire to make any change in those decisions, all your mercy petitions are hereby rejected which may be noted.
2. Further, your mercy petition dated 27-12-1988 to H.E. the Governor has also been rejected by the H.E. Governor which may also be noted."
7. According to Mr. Nanavaty, learned counsel for the petitioner, unless the reasons and the decisions are communicated to the condemned prisoner or to the petitioner, it is not possible for the condemned prisoner to effectively represent his case and it is not known as to whether the President has considered all the averments made in various mercy petitions that were filed before he came to the conclusion for rejecting the same. It is the say of the learned counsel appearing for the petitioner that the President would not have interfered in the Mercy Petition simply on the ground that the High Court and the Supreme Court have rejected the plea of the accused who is condemned prisoner as on date. For this proposition, the learned counsel appearing for the petitioner relies on the decision reported in (1989) 1 SCC 204 : (1989 Cri LJ 941) in the case of Kehar Singh v. Union of India. In this case, the powers of the President under Article 72 of the Constitution were considered in detail and certain observations have been made by the Bench of the Supreme Court. As far as the case reported in this decision is concerned, there was a letter dated November, 15, 1988 written by the Secretary to the President to the learned counsel of the accused. It reads as follows (at p. 944 of Cri LJ) :--
"Reference is invited to your letter dated November, 3, 1988 on the subject mentioned above. The letter has been perused by the President and its contents carefully considered. The President is of the opinion that he cannot go into the merits of a case finally decided by the Highest Court of the Land.
Petition for grant of pardon on behalf of Shri Kehar Singh will be dealt with in accordance with the provisions of the Constitution of India."
The Supreme Court was of the view that the grant of pardon by the President empowered under Article 72 of the Constitution of India is independent and that it is not dependent upon the decision of the High Court or Supreme Court. The Supreme Court observed as under :-- [1989 Cri LJ 941: AIR 1989 SC 653, Para 11] "In the course of argument, the further question raised was whether judicial review extends to an examination of the order passed by the President under Article 72 of the Constitution. At the outset, we think it should be clearly understood that we are confined to the question as to the area and scope of the President's power and not with the question whether it has been truly exercised on the merits. Indeed, we think that the order of the President cannot be subjected to Judicial review on its merits except within the strict limitations defined in Maru Ram v. Union of India (1980 Cri LJ 1440 : AIR 1980 SC 2147). The function of determining whether the act of a constitutional or statutory functionary falls within the consitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power is a matter for the court. In Special Reference No. 1 of 1964, Gajendragadkar, C.J., speaking for the majority of this Court observed: [AIR 1965 SC 745 at p. 763] ".....whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution....."
This Court in fact proceeded in State of Rajasthan v. Union of India (1977 (3) SCC 592 : AIR 1977 SC 1361) to hold: (SCC p. 661, para 149) : (at p. 1413, para 143 of AIR).
So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed, it would be its constitutional obligation to do so..... This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule to law.
and in Minerva Mills Ltd. v. Union of India, Bhagwati, J. said : (SCC p. 677, para 87):
"..... the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded..... The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review....."
It will be noted that the learned Judge observed in S. P. Sampath Kumar v. Union of India (AIR 1987 SC 386) that this was also the view of the majority Judges in Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789).
After observing so, the Supreme Court has stated that : [1989 Cri LJ 941 : AIR 1989 SC 653, para 13] "It seems to us that none of the submissions outlined above meets the case set up on behalf of the petitioner. We are concerned here with the question whether the President is precluded from examining the merits of the criminal case concluded by the dismissal of the appeal by this Court or it is open to him to consider the merits and decide whether he should grant relief under Article 72. We are not concerned with the merits of the decision taken by the President, nor do we see any conflict between the powers of the President and the finality attaching to the judicial record, a matter to which we have adverted earlier. Nor do we dispute that the power to pardon belongs exclusively to the President and the Governor under the Constitution. There is also no question involved in this case of asking for the reasons for the President's order. And none of the cases cited for the respondents beginning with Mohinder Singh Gill (AIR 1976 SC 2299 : 1976 Cri LJ 1755) advance the case of the respondent any further. The point is a simple one, and needs no elaborate exposition. We have already pointed out that the courts are the constitutional instrumentalities to go into the scope of Article 72 and no attempt is being made to analyse the exercise of the power under Article 72 on the merits. As regards Michael de Freitas (1975 (3) WLR 388), that was a case from the Court of appeal of Trinidad and Tobago and in disposing it, the Privy Council observed that the prerogative of mercy lay solely in the discretion of the sovereign and it was not open to the condemned person or his legal representatives to ascertain the information desired by them from the Home Secretary dealing with the case. None of these observations deal with the point before us and therefore they need not detain us."
Continuing further, the Supreme Court observed (Para 15):
"The manner of consideration of the petition lies within the discretion of the President and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal."
Continuing further, the Supreme Court held (para 15) :
"The matter lies entirely within his discretion. As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Meru Ram (1980 Cri LJ 1440)."
Finally, the Supreme Court has observed (Para 16):
"We must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kind; and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme."
We do find in this judgment of the Supreme Court a reference to the case of Maru Ram v. Union of India (1981) 1 SCC 107 : (1980 Cri LJ 1440). In this case, the Supreme Court has clearly and categorically held that:
"It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter."
8. Taking into consideration the principles laid down in these decisions and as far as the present case is concerned, it is clear from the records produced before us that the President has carefully considered all the relevant materials. In the letter dated May, 31, 1989, it has been specifically stated that :
"all such petitions received so far have been carefully considered."
Even in the letter dated April 22, 1983, it has been specifically stated that the President of India declines to interfere on behalf of the condemned prisoner Shashikant Keshavlal Parmar alias Mali. It has also been stated in the said letter that the contents of the said letter may be informed to the -petitioner concerned. Thus, when the order has been passed by the President of India exercising power under Article 72 of the Constitution of India, it has to be presumed that it has been done after proper application of mind and on perusal of the record and it is not for the Court to ask for the reasons. There is absolutely nothing on record as it was in Keharsingh's case cited before us that it was because the High Court and the Supreme Court confirmed the case, the President is not interfering in Mercy Petition. Thus, from the principles laid down in the aforesaid decision. We have to presume that the President has used properly the power vested in him under Article 72 of the Constitution of India. The records produced before us amply establish that the condemned prisoner is aware of the rejection of the petition of 1983. Subsequent petitions for mercy in effect cannot change the position. Nevertheless, we find from the record that all these petitions have been considered and after taking into consideration everything, the President has rejected the Mercy Petition. The contention of the learned counsel that he must be given copies of these records for enabling him to counter certain averments in the same cannot be entertained, in view of the clear power vested in the President of India under Article 72 of the Constitution of India, and which has been properly spelt out by the decision reported in Keharsingh's case (supra).
9. For all these reasons, we do not find any merit in any of the contentions raised by the petitioner herein and accordingly this Special Criminal Application is dismissed.
Mr. Nanavati, learned counsel appearing for the petitioner at this stage prays that the execution of the condemned prisoner may be stayed to enable him to assail this order before the Supreme Court. It is the say of Mr. Nanavati that unless the execution is postponed, there would not be any purpose of agitating the matter before the Supreme Court regarding the order passed by this Court. In all fairness, the execution of the condemned prisoner has to be stayed for giving him an opportunity to agitate the matter before the Supreme Court as prayed for by the learned counsel for the petitioner herein. As such, we can consider the request of Mr. Nanavati for the purpose of directing to postpone the execution for some period. Accordingly, the authorities concerned including the first and second respondent will postpone the order of hanging till death of the convict Shashikant Keshavlal Parmar which is scheduled to be done on 23-6-1989 at 7-00 a.m. at District Jail, Rajkot and will refrain from executing the sentence of death until 25-7-1989. The office is directed to send intimation of the operative portion by telegram to first and second respondent and the Sessions Court, Rajkot. The Registrar is also directed to telephonically inform the second respondent regarding the stay of the execution of the condemned prisoner Shashikant Keshavlal Parmar.