{"id":336981,"date":"2024-12-10T17:30:24","date_gmt":"2024-12-10T12:00:24","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=336981"},"modified":"2024-12-13T09:45:55","modified_gmt":"2024-12-13T04:15:55","slug":"sc-issues-directions-to-tackle-delays-execution-of-death-penalty","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/12\/10\/sc-issues-directions-to-tackle-delays-execution-of-death-penalty\/","title":{"rendered":"\u2018Undue delay in issuing execution warrant for death penalty violates convicts right under Art. 21\u2019; SC issues directions to tackle delays"},"content":{"rendered":"
\n

Supreme Court:<\/span> In a set of two criminal appeals dealing with the effect of delay in executing the death sentence, the three Judge Bench of Abhay S Oka<\/span>*, Ahsanuddin Amanullah and Augustine George Masih, JJ. noted that there was undue and unexplained delay at the stage of placing the mercy petitions before the Governor for the State and the President of India, and also during the issuance of warrant for execution. In the facts of the case. Hence, the impugned judgment and order of the Bombay High Court, by which the death sentence of the convicts was commuted to a fixed sentence of thirty-five years of imprisonment, was upheld.<\/p>\n

The Court held that an undue delay in issuing a warrant of execution can violate the rights of convicts under Article 21<\/a> of the Constitution of India<\/a><\/span> and issued directions to tackle delays while dealing with death penalty matters.<\/p>\n

Factual Matrix<\/h3>\n

The deceased, an associate in a corporate was raped before her death. Subsequently, the Sessions Judge, Pune, convicted both the convicts for the offences punishable under Sections 302<\/a>, 376(2)(g)<\/a>, 364<\/a>, and 404<\/a>, read with Section 120-B<\/a> of the Penal Code, 1860<\/a> (‘IPC’). Both the convicts were sentenced to death. The High Court confirmed the death sentence, followed by a confirmed by the Court. On 29-03-2016, the Governor rejected the mercy petitions. On 9-04-2016, the Superintendent of Prison received a letter dated 6-04-2016 from the Home Department informing about the rejection of the mercy petitions. According to the case of the State the rejection of the mercy petitions was communicated to the convicts on the same day. Convict 1 intimated his desire to file a mercy petition before the President of India. On 11-06-2016, relatives of the convicts submitted fresh mercy petitions before the President of India. On 26-05-2017, the President rejected the mercy petitions and this information was submitted by the Under Secretary, Ministry of Home Affairs, Government of India, to the Principal Secretary, Home Department, Government of Maharashtra, in a letter dated 6-06-2017. By separate letters dated 19-06-2017 addressed to the family members of the convicts and the Sessions Judge, Pune, the Superintendent of Prison informed them about the rejection of the mercy petitions.<\/p>\n

Timeline of warrant for execution of death sentence<\/h3>\n

On 10-08-2017, the Superintendent of Prison requested the Sessions Judge, Pune, to issue a warrant for the execution of the death sentence. The Registrar of the Court communicated to the Superintendent of Prison that no review petitions were filed by the convicts. No action was taken by the Sessions Court, Pune on the warrant, even after several reminders. The Home Department, Maharashtra addressed a letter to the Law and Judiciary Department of the State making a query whether the Home Department could proceed with the execution of death sentence in accordance with the provisions of the Maharashtra Prison Manual. The Law and Judiciary Department informed that the exclusive jurisdiction to issue warrants for executing the death sentence was of the Sessions Court. On 10-04-2019, warrants for the execution of the death sentence were issued by the Sessions Court, Pune.<\/p>\n

Impugned decision<\/h3>\n

The convicts preferred separate writ petitions before the High Court. In Pradeep Yashwant Kokade<\/span> v. Union of India<\/span>, 2019 SCC OnLine Bom 1390<\/a>, the High Court held that there was an undue and avoidable delay in executing the death sentence. Therefore, the High Court commuted the death sentence to life imprisonment for a total period of thirty-five years. The warrants for the execution of the death sentence issued by the Sessions Court were set aside.<\/p>\n

Analysis and Decision<\/h3>\n

The Court noted that the law on the subject has been laid down in several authorities, In Triveniben<\/span> v. State of Gujarat<\/span> (1989) 1 SCC 678<\/a>, it was observed that- ‘Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable.’<\/span> On perusal of several decisions, the Court summarised the following points:<\/p>\n

    \n
  1. \n

    While considering the delay in the disposal of clemency petitions by the highest constitutional authorities, while exercising its jurisdiction under Article 32<\/a> read with Article 21<\/a> of the Constitution<\/a>, cannot excuse the agonising delay caused to the convict only based on the gravity of the crime; and<\/p>\n<\/li>\n

  2. \n

    It is well established that Article 21<\/a> of the Constitution<\/a> does not end with the pronouncement of the sentence but extends to the execution stage of that sentence. An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. An inordinate delay caused by circumstances beyond the prisoners’ control mandates the commutation of a death sentence.<\/p>\n<\/li>\n

  3. \n

    The period consumed in the judicial process culminating in the confirmation of the death sentence should not be taken into consideration. The reason for the said conclusion is that only after the judicial process in the form of the judgment of this Court in appeal \/ special leave petition arising out of the order of conviction does the order of death sentence become final.<\/p>\n<\/li>\n<\/ol>\n

    Referring to Sections 413<\/a> and 414<\/a> of the Code of Criminal Procedure, 1973<\/a> (‘CrPC’) which provides for ‘Execution of order passed under Section 368<\/span>’ and ‘Execution of sentence of death passed by High Court’<\/span>, the Court said that they together constitute a vital safeguard, ensuring that the execution of the death sentence takes place only after all remedies available to the convicts are exhausted. The executive cannot execute the death sentence unless the Sessions Court issues a warrant.<\/p>\n

    The Court explained that, before issuing the warrant, the Sessions Court must satisfy itself that the order of death sentence has attained finality and the review\/curative or mercy petitions, if filed, have been finally rejected. The Sessions Court, must appraise the convict of the remedies available and, if required, provide legal aid to enable the convict to take recourse to such remedies. After the convict has been made aware of the remedies available, reasonable time be granted to the convict to consider, weigh and even consult a member of his family or friend to finally take a decision on adopting remedies as the possibility of thinking logically and rationally may be impeded or hampered because of the situation being faced by the convict. The Sessions Court can issue a warrant only after providing such reasonable time to the convict and after satisfying itself that the convict has taken a conscious decision of not pursuing the available remedies. The reasonable time can be of seven days.<\/p>\n

    The Court added that a convict can invoke the jurisdiction of the High Court under Article 226<\/a> of the Constitution<\/a> if there is an inordinate and unexplained delay in the execution of the death sentence post-confirmation of the sentence. No hard and fast rule can be laid down as regards the length of delay, which can be said to be inordinate.<\/p>\n

    In the matter at hand, the Court noted delay at three stages:<\/p>\n

      \n
    1. \n

      On 10-07-2015, the convicts filed mercy petitions addressed to the Governor of the State, which were rejected on 29-03-2016.<\/p>\n<\/li>\n

    2. \n

      On 11-06-2016, mercy petitions were addressed by the convicts to the President of India, which were rejected on 26-05-2017.<\/p>\n<\/li>\n

    3. \n

      On 19-06-2017, when the Superintendent of Prison informed the Sessions Judge, Pune, about the rejection of mercy petitions by the President of India. Ultimately, it was only on 10-04-2019 that the Sessions Court, Pune, issued the warrants for the execution of the death sentence.<\/p>\n<\/li>\n<\/ol>\n

      The Court pointed out that no efforts were made by the Home Department of the State Government for five months (152 days) after receiving confirmation that the convicts had not preferred a review petition. Further, the Court said that lot of time was wasted on correspondence made by various officers. Ultimately, on 29-03-2016, mercy petitions were rejected by the Governor, thus, the delay of 5 months was unexplained and unjustified. The Court clarified that the time taken by the President to decide the mercy plea cannot amount to undue delay. However, the delay from 28-04-2016, when the mercy petitions were forwarded to the Under Secretary (GOI) till 22-02-2017, was entirely unexplained and unwarranted.<\/p>\n

      Regarding the third aspect of delay, the Court pointed out that when the mercy petitions were pending, the Sessions Court could not have issued a warrant to execute the death sentence, but the most straightforward procedure that the State Government could have followed was to apply through the Public Prosecutor before the Sessions Court on the judicial side by placing on record the rejection of the mercy petitions and seeking the issuance of warrants for the execution. Even the Sessions Court ought to have acted upon the several letters from the Prison and issued notice to the State Government. However, that was not done. Thus, there was an inordinate delay in issuing warrants for executing the death sentence, which was avoidable.<\/p>\n

      Considering the delays, the Court said that even if the time actually taken by the constitutional functionaries to decide mercy petitions is excluded, still the delay will be of more than three years. Highlighting the effect of inordinate and unexplained delay, the Court held that the view taken by the High Court that there was a violation of the rights of the convicts guaranteed under Article 21<\/a> of the Constitution of India<\/a> was not faulty. Therefore, the commutation of the death sentence to a fixed term sentence of thirty-five years by the High Court was upheld. The Court concluded that it is the duty of the Executive to promptly process the mercy petitions invoking Articles 72<\/a> or 161<\/a> of the Constitution<\/a> and forward the petitions along with requisite documents to the concerned constitutional functionary without undue delay.<\/p>\n

      Directives for mercy petitions<\/h3>\n
        \n
      1. \n

        A dedicated cell shall be constituted by the Home Department or the Prison Department of the State Governments\/Union Territories for dealing with mercy petitions which shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective Governments. An officer-in-charge of the dedicated cell shall be nominated by designation who shall receive and issue communications on behalf of the dedicated cell.<\/p>\n<\/li>\n

      2. \n

        An official of the Law and Judiciary or Justice Department of the State Governments\/Union Territories should be attached to the dedicated cell so constituted;<\/p>\n<\/li>\n

      3. \n

        All the prisons shall be informed about the designation of the officer-in-charge of the dedicated cell and his address and email ID.<\/p>\n<\/li>\n

      4. \n

        As soon as the Superintendent of Prison\/officer-in-charge receives the mercy petitions, he shall immediately forward the copies thereof to the dedicated cell and call for the following details\/information from the officer-in-charge of the concerned Police Station and\/or the concerned investigation agency; a. The criminal antecedents of the convict; b. Information about family members of the convict; c. Economic condition of the convict and his\/her family; d. The date of arrest of the convict and the period of incarceration as an undertrial; and, e. The date of filing charge sheet and a copy of the committal order, if any. On receipt of the request made by the jail authorities, the officer-in-charge of the police station shall be under an obligation to furnish the said information to the jail authorities immediately.<\/p>\n<\/li>\n

      5. \n

        The jail authorities shall forward the following documents to the officer-in-charge of the dedicated cell and the Secretary of the Home Department of the State Government: a. Information furnished as aforesaid by the concerned Police Station with its English translation; b. Copy of the First Information Report with its English translation; c. Details, such as date of arrest of the convict, date of filing of chargesheet and actual period of incarceration undergone by the convict; d. A copy of the committal order, if any, passed by the learned Judicial Magistrate; e. A copy of charge-sheet with its English translation; f. Report about the conduct of the convict in prison; g. Copies of the notes of evidence, all exhibited documents in the trial and copies of statements of convicts under Section 313<\/a> of CrPC<\/a> with its English translation; h. Copies of the judgments of the Sessions Court (with its English translation, if it is in vernacular language), High Court and this Court.<\/p>\n<\/li>\n

      6. \n

        As soon as mercy petitions are received by the dedicated cell, copies of the mercy petitions shall be forwarded to the Secretariats of the Governor of the State or the President of India, as the case may be so that the Secretariat can initiate action at their end.<\/p>\n<\/li>\n

      7. \n

        All correspondence, as far as possible, be made by email, unless confidentiality is involved.<\/p>\n<\/li>\n

      8. \n

        The State Government shall issue office orders\/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment.<\/p>\n<\/li>\n<\/ol>\n

        Referring to Shabnam<\/span> v. Union of India<\/span>, (2015) 6 SCC 702<\/a>, wherein, the Court held that the procedure laid down by the Allahabad High Court in People’s Union for Democratic Rights (PUDR)<\/span> v. Union of India<\/span>, 2015 SCC OnLine All 143<\/a> was in consonance with Article 21, the Court stated that while executing the death sentence, it is mandatory to follow the procedure laid down by the Allahabad High Court<\/span>.<\/p>\n

        Directions to be followed by the Sessions Court<\/h3>\n
          \n
        1. \n

          As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, a notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition\/appeal, shall be immediately issued.<\/p>\n<\/li>\n

        2. \n

          If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of this Court confirming or restoring the death sentence is received by the Sessions Court, the case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review\/curative petitions or mercy petitions are pending. If information is received regarding the pendency of review\/curative petitions or mercy petitions, the Sessions Court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions.<\/p>\n<\/li>\n

        3. \n

          However, before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in People’s Union for Democratic Rights (supra)<\/span> shall be implemented by the Sessions Court.<\/p>\n<\/li>\n

        4. \n

          Copies of the order issuing the warrant and the warrant shall be immediately provided to the convicts, and the Prison authorities must explain the implications thereof to the convicts. If the convict so desires, legal aid be immediately provided to the convicts. There shall be a gap of fifteen days between the date of the receipt of the order as well as warrant by the convict and the actual date of the execution.<\/p>\n<\/li>\n

        5. \n

          It shall also be the responsibility of the State Government or the Union Territory administration to apply to the Sessions Court for the issuance of a warrant immediately after the death penalty attains finality and becomes enforceable.<\/p>\n<\/li>\n<\/ol>\n

          <\/p>\n

          \n

          CASE DETAILS<\/p>\n\n\n\n\n<\/colgroup>\n\n\n
          \n

          Citation:<\/span>
          2024 SCC OnLine SC 3662<\/a><\/span><\/p>\n

          Appellants :<\/span>
          State of Maharashtra<\/p>\n

          Respondents :<\/span>
          Pradeep Yashwant Kokade<\/p>\n<\/td>\n

          		\n

          Advocates who appeared in this case<\/p>\n

          For Petitioner(s):<\/span> <\/p>\n

          For Respondent(s):<\/span> <\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

          CORAM :<\/span><\/p>\n

          \n
          \n

          \"Abhay
          Abhay S Oka, J.<\/span><\/a><\/p>\n<\/div>\n

          \n

          \"Ahsanuddin
          Ahsanuddin Amanullah, J.<\/span><\/a><\/p>\n<\/div>\n

          \n

          \"Augustine
          Augustine George Masih, J.<\/span><\/a><\/p>\n<\/div>\n

          \n<\/div>\n
          <\/div>\n
          <\/div>\n
          <\/div>\n<\/div>\n<\/div>\n

          Buy Code of Criminal Procedure, 1973  HERE<\/a><\/h3>\n

          \"Code<\/a><\/p>\n

          Buy Constitution of India  HERE<\/a><\/h3>\n

          \"Constitution<\/a><\/p>\n

          Buy Penal Code, 1860   HERE<\/a><\/h3>\n

          \"penal<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

          “Article 21<\/a> of the Constitution<\/a> does not end with the pronouncement of the sentence but extends to the execution stage of that sentence. An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. An inordinate delay caused by circumstances beyond the prisoners’ control mandates the commutation of a death sentence.”<\/p>\n","protected":false},"author":67517,"featured_media":336986,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,9],"tags":[13681,3035,2896,3066,26354,32237,47247,55017,58527,44635,21614,5363],"class_list":["post-336981","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-casebriefs","category-supremecourt","tag-article-21","tag-death_penalty","tag-Death_sentence","tag-delay","tag-directions","tag-execution","tag-justice-abhay-s-oka","tag-justice-ahsanuddin-amanullah","tag-justice-augustine-george-masih","tag-sc","tag-sessions-court","tag-supreme-court"],"yoast_head":"\nSC issues directions to tackle delays in execution of death penalty | SCC Times<\/title>\n<meta name=\"description\" content=\"\u2018Undue delay in issuing execution warrant for death penalty violates convicts right under Art. 21\u2019; 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The three convicts are Akshay Singh, Pawan Gupta and Vinay Sharma. 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2020","format":false,"excerpt":"Supreme Court: The 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ has sought response from the four death row convicts in the Nirbhaya gang rape and murder case on the Centre's appeal challenging the Delhi High Court verdict which dismissed its plea against stay on their execution.\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2017\/09\/Supreme-Court_Colour.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2017\/09\/Supreme-Court_Colour.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2017\/09\/Supreme-Court_Colour.jpg?resize=525%2C300&ssl=1 1.5x, 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