Holding

The Court held that a previously rejected plea cannot be re‑raised, but a fresh petition may be entertained on new circumstances, and the avoidable delay after October 1988 justified commuting the death sentence to life imprisonment.

Summary

Daya Singh was convicted of murder and sentenced to death in 1978. After his appeals and mercy petitions were rejected, a writ petition under Article 32 filed by his brother in 1986 was dismissed in October 1988. A fresh mercy petition filed in November 1988 led to a stay of execution, but the matter remained pending for over two years, during which the petitioner was continuously detained since 1972. The Supreme Court examined whether the delay after the 1988 dismissal, including administrative inaction, constituted inexcusable delay justifying commutation, and held that while a previously rejected plea cannot be re‑raised, a new petition may be filed on fresh circumstances. Finding an avoidable and considerable delay, the Court substituted the death sentence with life imprisonment.

Issues considered

Can a convict raise the same plea for conversion of a death sentence to life imprisonment in a fresh petition after an earlier petition on the same ground has been rejected?
Does the delay in execution of a death sentence after a stay, caused by administrative inaction, amount to inexcusable delay warranting commutation under Article 32?
Whether continuous detention since 1972 is a relevant circumstance in assessing the delay.
What relief, if any, is available under Article 32 for a condemned prisoner facing delay in execution of a death sentence?

Legislation cited

Constitution of Indias. Article 257(1), s. Article 32

Subjects

death sentencecommutationdelay in executionArticle 32mercy petitionlife imprisonmentSupreme Courtconstitutional law

Judgment

I

DAYA SINGH
A
V.
UNION OF INDIA AND ORS.

APRIL 24, 1991

B [LALIT MOHAN SHARMA AND J.S. VERMA, JJ.]

Constitution of India: Art. 32-Death sentence-Delay in execu-
tion-Writ petition - once rejected-Same plea not to be raised by
repeated petitions-Subsequent mercy petition not disposed of expedi-
tiously-Continued detention in prison not rendered completely irrele-
vant and considered as a circumstance assuming sign_ificance with subse-
c quent circumstances-Death sentence-Substituted by life imprisonment.

The petitioner was convicted of murder and was sentenced to death
by the Sessions Court on 13.12.1978. His appeal to the High Court and
Special Leave Petition to this Court were dismissed. His mercy petitions
D to the Government and to the President of India were also rejected. The
execution of the sentence remained stayed till it stood vacated on.
11.10.1988 on dismissal of a writ petition•• under Article 32 of the
Constitution flied by his brother for conversion of the death sentence
into one of life imprisonment on the ground of delay in its execution. On
18.11.1988 the petitioner again filed a mercy petition before the Gover-
E nor and his execution was once more stayed, and since then he was
awaiting the f"mal outcome of his petition.

Meanwhile, on 24.12.1990, a prisoner sent a letter praying for
release of the petitioner, which was treated as a writ petition on behalf
of the convict under Article 32 of the Constitution.
F
It was contended on behalf of the petitioner that the death sen-
tence awarded to him should be quashed as there had been inexcusable
delay in executing the same.

On consideration of nature and effect of the delay in execution of
G the sentence after the petitioner med mercy petition on 18.) 1.1988, In
the light of the principles laid down in Triveniben' s case**. ·

Allowing the appeal, this Court,

HELD: 1. Once a petition for conversion of death sentence into
H one of life imprisonment is rejected, the plea raised in the petition so

462
DAYA SINGH v. U.0.1. 463

A
•
"I
rejected, cannot be permitted to be raised by repeated petitions. But
this does not deprive the convict of his right to renew the prayer on
fresh circumstances arising later and, therefore, not considered. [46511-C l
"" J.
2. In the instant case, the petitioner could not succeed on the
basis of the delay prior to October, 1988 as it had been considered in the
B
earlier petition which was dismissed; but the fact that the petitioner had
been continuously detained in prison since 1972 was not rendered com-
pletely irrelevant and should be considered merely as a circumstance
assuming significance as_ a result of the relevant circumsta!ll'.!· arisin_B
subsequent to the judgment rendered in October, 1988. [465E-F; 467C-D l
~

3. Tbe initial reason for tbe further delay has been a fresh mercy c
petition filed by the petitioner. Althougbt tbe stay of the execution was
certainly appropriate in the event of not rejecting the prayer at once,
yet the matter should have been disposed of expeditiously and not kept
in abeyance as was done. If the concerned officers had bestowed the
necessary attention to the matter and devoted the time its urgency
D
needed,_ undoubtedly, the entire proceS!i of t~ consideration of the
questions refe_rred would__ have been completed within a reasonable
~ period without leaving any yawning or "embarrassing gap". There bad
· been an avoidable delay, considerable in the totality of circumstances,
for which the petitioner was in no way responsible. [466D-E; 467A-B]

4. The only relief a convict awaiting execution of death sentence E
can get from this Court on the ground of de_lay. is conversion of the
sentence into that of life imprisonment. [467F J
"I
y 5. In view of all the circumstances of the case, the petitioner's
death sentence is substituted by imprisonment for life and he would be
F
governed and dealt with as a life convict for all purposes. [476E, G J

** Smt. Triveniben v. State of Gujarat, [1989] 1 S.C.C. 678,
followed.

ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 133 of G
' -1-- 1991.

(Under Article 32 of the Constitution of India).

R.K. Jain, Ravi Prakash, Mrs. Swati Kapoor Ms. Abha R.
Sharma and Ms. Rajni K. Prasad for the Petitioner.
H
464 SUPREME COURT REPORTS [1991] 2 S.C.R.

Altaf Ahmed, Additional Solicitor General, Ms. Kusum
A
Choudhary, C. Ramesh and Ms. A. Subhashini for the Respondents.

The Judgment of the Court was delivered by

Sharma, J. On the basis of a letter received from a prisoner
B detained in Alipore Central Jail, Calcutta, drawing the attention of
this Court to the long wait of Daya Singh, the petitioner convicted for
the murder of late Chief Minister of Punjab Pratap Singh Kairon,
lodged at present in Rohtak Jail Haryana, pending the execution of his
death sentence, this case was registered as a writ petition and was
listed before us on 27.3.1991. All the relevant facts were not available
from the letter but from the Office Report it appeared that the case of
c the condemned prisoner had earlier come to this Court. We directed
the Registry to examine the earlier files and place before us the rele·
van! details. In the meantime we stayed the execution of the death
sentence. The learned counsel for the State of Haryana was also
informed about the case. As directed, the case was placed before us
D again on Monday, the 1st April, 1991, when Ms. Kusum Chaudhary
appeared on behalf of State of Haryana and orders were passed for
notice to the counsel representing the Union of India. Having heard
about the case, the convict Daya Singh engaged his own counsel to
represent him and to press this writ petition and accordingly Mr. R.K.
Jain appeared for him on 5.4.1991. We have, in the circumstances,
E treated this application as one directly by Daya Singh. The Union of
India is represented by Additional Solicitor General of India. The case
was further adjourned at the request of the counsel and was ultimately
heard on 16.4.1991.

2. Mr. Jain has contended that if the relevant circumstances of
1p this case are examined in the light of the decisions of this Court, the
conclusion is irresistible that there has been inexcusable delay in
executing the death sentence of the petitioner, and the sentence
should, therefore, be quashed by this Court under Article 32 of the
Constitution.

G 3. The petitioner was tried for the murder of Sardar Pratap
Singh Kairon which took place in 1965 and was convicted and
sentenced to death by the trial court on 13.12.1978. The sentence was
confirmed by the High Court on 22.3.1980. His special leave petition
was dismissed by this Court on 21.8.1980 and a further prayer for
review was rejected on 2.9.1981. He filed mercy petitions before the
H Governor and the President of India, which were also rejected.
DAYA SINGH v. U.O.L !VERMA, J.J 465
I
I' Several orders of stay were passed from time to time, the details
A
whereof are not very significant in view of the rejection by this Court
> of an earlier application under Article 32, being Writ Petition No. 191
j_.. of 1986, filed through his brother Lal Singh. The case was dismissed on
October 11, 1988 and the stay of the execution of the sentence stood
vacated. The reasoned judgment, however, was pronounced later and
t. is reported in Smt. Triveniben v. State of Gujarat, [1989) 1 SCC 678. B
The petitioner filed another mercy petition thereafter before the
Governor of Haryana on 18.11.1988 and an order for stay of execution
was again passed. The matter remained pending and the petitioner has
')- been awa;ting the final outcome of his last petition since then. On the
basis of a m;wspaper report dated December 24, 1990 it is alleged that
the attention of the Deputy Prime Minister was drawn to the peti- C
tioner's case and the Deputy Prime Minister gave an assurance that he
would examine the matter. This report drew the attention of Alipore
Jail prisoner which prompted him to send the letter which led the
Registry of this Court to register the present writ petition.

4. The earlier writ petition of the petitioner Writ Petition No. D
191 of 1986, filed through his brother Lal Singh, was initially heard by
a Division Bench of this Court and the matter, along with a number of
other applications on behalf of other convicts was referred for the
decision of the Constitution Bench. The cases were heard at consider-
able length by the Constitution Bench of which one of us (Sharma,J)
was a member and the leading argument at that stage was also made by E
Mr. R.K. Jain when all aspects of the cases were thoroughly consi-
dered. Finally, this Court substituted the sentence of death of one
convict (Harbhajan Singh) in another case by the sentence of impri-
'r sonment for life, but the other writ petitions including that of the
prisoner were dismissed. In the circumstances the petitioner cannot
succeed on the basis of the earlier delay. The operative part of the F
judgment, as stated earlier, was passed in October, 1988 and what is
now relevant to consider is the delay subsequent to this date.

5. Before proceeding further we may refer to the decision in
Smt. Triveniben's case laying down the principle which governs the
':.., present petition. Although the cases were disposed of by two judg- G
ments, according to the opinion of the Bench, which was unanimous,
undue delay in execution of the sentence of death entitles the con-
demned prisoner to approach this Court under Article 32, but this
Court will examine only the nature of delay caused and circumstances
ensued after the sentence was finally confirmed by the judicial process,
and will have no jurisdiction to reopen the conclusions reached by the H
466 SUPREME COURT REPORTS [1991] 2 S.C.R.

Court while finally maintaining the sentence of death. Further, while
A
considering the grievance of inordinate delay this Court may consider
all the circumstances of the case for deciding as to whether the sen-
tence of death should be altered into imprisonment for life, and no
fixed period of delay could be held to make the sentence of death
inexecutable. In the light of these observations the circumstances of
B the present case are to be examined.

6. It is true that while rejecting the earlier prayer of the
petitioner on October 11, 1988 all the relevant considerations were
taken into account and the petitioner cannot be permitted to raise the
same plea, once rejected, by repeated petitions. But this does not
C deprive the petitioner the right to renew the prayer on fresh circums-
tances arising later and, therefore, not considered. This is the position
in the present case. Although the matter was finally closed by this
Court in October, 1988, the petitioner continues to remain in a state of
suspense since then. The main question is as to what is the effect of this
delay.
D
7. The initial reason for the further delay has been a fresh mercy
petition filed by the petitioner. Does this fact justify keeping him
under a sence of anticipation for more than two years? If the prayer
was not considered fit to be rejected at once it was certainly appro-
periate to have stayed the execution, but the matter should have been
E disposed of expeditiously and not kept in abeyance as has been done.
The counter affidavit filed on behalf of the Union of India states that
on the receipt of the last mercy petition the Governor of Haryana
immediately made a reference to the President of India seeking enligh-
tenment on the question as to whether the Governor, while dealing
with such applications, is bound by the advice of the Chief Minister of
F the State and whether it is open to the Governor to exercise his con-
stitutional power in a case where an earlier application to the same
effect had been rejected by the President. Soon after the receipt of this
communication, the matter was referred to the Department of Legal
Affairs, Ministry of Law and Justice for advice, and the Ministry
suggested that the question should be discussed with the Attorney
G General of India. Since the matter remained under consideration no
reply could be· sent to the querry and ultimately it was only in March
this year, that the reply could be sent in the shape of a directive under
Article 257(1) of the Constitution to all the Chief Secretaries of the
State Governments and Union Territories. The affidavit, however,
does not furnish any fact or circumstance in justification of the delay.
H In absence of any reasonable explanation by the respondents we are of
DAYA SINGH v. U.0.1. [VERMA, J.j 467

the view that if the concerned officers had bestowed the necessary
A
attention to the matter and. devoted the time its urgency needed, we
have no doubt that the entire process of consideration of the questions
referred would have been completed within a reasonable poriod with-
out leaving any yawning gap rightly described by the learned Addi-
tional Solicitor General as "embarrassing gap". There has, thus, been
an avoidable delay, which is considerable in the totality of circums- B
tances in the present case, for which the condemned prisoner is in no
way responsible.

--· ...... 8. As was cautioned by this Court in Smt. Triveniben's case we
are not laying down any rule of general application that the delay of
two years will entitle a convict, sentenced to death, to conversion of
his sentence into one for life imprisonment, rather we have taken into
c
account the cumulative effect of all the circumstances of the case for
considering the prayer of the petitioner. Although the fact that the
petitioner has been continuously detained in prison since 1972 was
taken into account while rejecting his earlier writ petition, the same is
not rendered completely irrelevant for the purpose of the present case D
and we have taken it into consideration merely as a circumstance
assuming significance as a result of the relevant circumstances arising
subsequent to the judgment rendered in October, 1988.

9. Having regard to all the circumstances of the case, we deem it
fit to and accordingly substitute the sentence of imprisonment for life E
in place of the petitioner's death sentence. The writ petition is accord-
ingly allowed.

10. In the letter from Alipore Jail a prayer has been made for the
release of the petitioner. As was indicated in Triveniben's case, the
only relief a convict awaiting execution of death sentence can get from F
this Court on the ground of delay is conversion of the sentence into
that of life imprisonment. However; on conversion of the death sen-
tence to life imprisonment, the petitioner would now be governed and
dealt with as a life convict for all purposes. We are not required to say
'i..-- anything more in this behalf. This prayer made in the letter is rejected.

R.P. Petition allowed.

"''