Indian Kanoon - Search engine for Indian Law

3. The Petitioners, Renuka alias Rinku alias Ratan alias Kiran Shinde and Seema alias Devki Gavit, are sisters. Petitioners and their mother - Anjanabai, were tried by the learned Additional Sessions Judge Kolhapur in Sessions Cases Nos. 55 and 56 of 1997 for having kidnapped 13 children, attempting to kidnap one more child and committing murders of 9 of the 13 children kidnapped by them in a period starting from June 1990 to October 1996. The learned Sessions Judge convicted them on 28 June 2001, and the Petitioners were sentenced to death. Reference of Confirmation Case No.2 of 2001 was made, and Criminal Appeal No. 718 of 2001 was filed by the Petitioners in the High Court. Anjanabai expired while in custody. The Division Bench of this Court, by the judgment and order dated 8 September 2004, convicted the Petitioners for the following main offences. Criminal conspiracy of kidnapping children and using them for thefts. Kidnapping the children- Santosh, Bunty, Swati, Guddu, Meena, Raja, Shradha, Kranti, Gauri and Pankaj from lawful guardianship. The kidnapping of the children- Santosh, Bunty, Swati, Guddu, Meena, Rajan, Shradha, Gauri and Pankaj with intent to cause the child to be 4 CRI.WP-3103.2014.doc secretly and wrongfully confined. For the murder of the children- Santosh, Anjali, Shradha, Gauri and Pankaj, the Petitioners were accordingly convicted and sentenced to death. The Criminal Appeal No. 722 of 2005 filed by the Petitioners in the Supreme Court was dismissed on 31August 2006, and the Supreme Court confirmed the death sentence. The application of mercy petition made to the Governor of Maharashtra to invoke the power of pardon under Article 161 of the Constitution of India was rejected on 17 August 2013. The application to the President of India to invoke the power of pardon under Article 72 of the Constitution of India was rejected on 30 July 2014. Thereafter the present Writ Petition is filed.

7. We have heard Mr. Aniket Vagal, the learned Counsel for the Petitioners. Mr. Sandesh Patil for Respondent No.1 and Ms. A.S. Pai, Public Prosecutor for Respondent Nos. 2 to 5.

8. The President of India, under Article 72 of the Constitution of India, has the power to grant pardons, reprieves, 6 CRI.WP-3103.2014.doc respites or remissions of punishment or to suspend, remit or commute the sentence of death. Under Article 161, the Governor of a State has 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 against any law relating to a matter to which the executive power of the State extends. As regards the power to be exercised by the Governor of the State under Article 161 of the Constitution of India, and the power of the President of India and the position after the President of India under Article 72 of the Constitution rejects the mercy petition, the MHA issued a clarification on 5 March 1991. It is stated that once the President of India has exercised the powers under Article 72 of the Constitution of India, it would not be open to the Governor under Article 161 to exercise similar powers in respect of the same cause and even if the convicts want to apply in the change of circumstances, the same should be made to the President of India. Therefore even if the mercy petitions are made to the President of India, they first are forwarded to the Governor (in the case of the States) for the decision of the Governor.

Sir, I am directed to forward herewith the petitions received from the President's Secretarial on behalf of the condemned prisoners Renuka Kiran Shinde and Seema Mohan Gavit for the commutation of their death penalty. As per the procedure prescribed by this Ministry (copy enclosed), the mercy petitions has to be considered by the Governor of Maharashtra before consideration of the same by the President of India under Article 72 of the Constitution. It is a pre-requisite that the Governor considers the mercy petition under Article 161 of the Constitution before it is submitted to the President of India because once the petition is considered and decided under Article 72, the Governor will not be able to exercise his constitutional powers.

31. Point to underscore is that an unexplained and prolonged delay in executing a death sentence may result in the court commuting the sentence, was the position of law when the petitioners' mercy petitions were being processed. The Respondents are bound to know this legal position. In the case of Sher Singh, the 35 CRI.WP-3103.2014.doc Supreme Court observed thus:

"23. We must take this opportunity to impress 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 shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. The latest instance is to be found in Criminal Writ Petitions Nos.345-348 of 1983, from which it would appear that petitions filed under Article 161 of the Constitution are pending before the Governor of Jammu & Kashmir for anything between five to eight years. A pernicious impression seems to be growing that whatever the courts may decide, one can always turn to the executive for defeating the verdict of the court by resorting to delaying tactics. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all