JAGDISHversusSTATE OF MADHYA PRADESH

                          [2019] 4 S.C.R. 815                          815


                             JAGDISH                                   A
                                  v.
                STATE OF MADHYA PRADESH
              (Review Petition (Crl.) No.591 of 2014)
                                  in                                   B
                 (Criminal Appeal No.338 of 2007)
                                with
                (Writ Petition (Crl.) No. 197 of 2014)
                                                                       C
                       FEBRUARY 21, 2019
           [N. V. RAMANA, DEEPAK GUPTA AND
                   INDIRA BANERJEE, JJ.]
       Sentence/Sentencing – Commutation of death sentence to life
imprisonment – Petitioner was convicted and sentenced to death         D
for the murder of his wife and five children by both Trial Court and
High Court – Petitioner’s appeal dismissed by Supreme Court and
the death sentence was confirmed vide order dated 18.09.2009 –
Petitioner filed mercy petition addressed to the President of India
through the jail authorities on 13.10.2009 – Petition forwarded by
the authorities on 15.10.2013 – President of India rejected the        E
petition on 16.07.2014 – Writ petition filed by the petitioner
challenging the rejection of his mercy petition – Review Petition
also filed seeking review of the judgment of Supreme Court dated
18.09.2009 – Held: Review Petition not entertained on the merits
of the case – Three courts have come to concurrent finding of fact     F
that it was the petitioner who murdered his wife and five children –
No reason to take a view different from the one taken earlier –
However, in the present case there was an inordinate and
un-explained delay of more than 4 years on the part of the State in
forwarding the mercy petition leading to delay of almost 5 years in
deciding the mercy petition – State also did not file any counter      G
affidavit in the Writ Petition even though notice was issued 4 years
back on 18.11.2014 and service was effected within a month of
issuance of notice – Petitioner has been behind bars for almost
about 14 years – Death sentence is the exception and has to be
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                                 815
816            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     awarded in the rarest of rare cases – Keeping in view all the
      circumstances of the case, regardless of the brutal nature of crime,
      the present is not a fit case where death sentence should be executed
      – Death sentence commuted to life imprisonment – However, keeping
      in view the nature of crime and the fact that 6 innocent lives were
      lost, life imprisonment in this case shall mean the entire remaining
B
      life of the petitioner and he shall not be released till his death.
             Partly allowing the review petition as well as the writ
      petition, the Court
            HELD: 1.1 As far as the Government of India or the
C     Secretariat of the President of India is concerned, there is no
      delay in dealing with the mercy petition and the same has been
      dealt with expeditiously. However, the State of Madhya Pradesh
      has given no explanation for the delay of more than 4 years in
      forwarding the mercy petition.[Para 8] [820-D-E]

D            1.2 Not only was there a long, inordinate and un-explained
      delay on the part of the State of Madhya Pradesh but to make
      matters worse, the State of Madhya Pradesh did not even care to
      file any counter affidavit in the Writ Petition even though notice
      was issued 4 years back on 18.11.2014 and service was effected
      within a month of issuance of notice. The delay in forwarding the
E     petition is totally un-explained and this Court cannot countenance
      an un-explained delay of more than 4 years. The mercy petition
      is the last hope of a person on death row. In cases where death
      sentence has to be executed the same should be done as early as
      possible. [Paras 9, 10] [820-E-H; 821-A]
F           1.3 Death sentence is the exception and has to be awarded
      in the rarest of rare cases. Keeping in view all the circumstances
      of the case, including the un-explained delay of 4 years in
      forwarding the mercy petition by the State of Madhya Pradesh
      leading to delay of almost 5 years in deciding the mercy petition
G     and the fact that the petitioner has been incarcerated for almost
      14 years, regardless of the brutal nature of crime this is not a fit
      case where death sentence should be executed and we,
      accordingly commute the death sentence to that of life. However,
      keeping in view the nature of crime and the fact that 6 innocent

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         JAGDISH v. STATE OF MADHYA PRADESH                              817


lives were lost, it is directed that life imprisonment in this case      A
shall mean the entire remaining life of the petitioner and he shall
not be released till his death. [Para 12] [821-B-D]
      V. Sriharan alias Murugan v. Union of India and Others
      (2014) 4 SCC 242 : [2014] 1 SCR 1093; Ajay Kumar
      Pal v. Union of India and Another (2015) 2 SCC 478 :               B
      [2014] 12 SCR 441 – relied on.
                       Case Law Reference
      [2014] 1 SCR 1093            relied on            Para 5
      [2014] 12 SCR 441            relied on            Para 6           C


      CRIMINAL APPELLATE/ORIGINAL JURISDICTION :
Review Petition (Criminal) No. 591 of 2014 in Criminal Appeal
No. 338 of 2007.
                                                                         D
      From the Judgment and Order dated 27.06.2006 of the High Court
of Madhya Pradesh, Bench at Indore in Death Reference Case No.1
of 2006 and Criminal Appeal No. 530 of 2006
                                With
      Writ Petition (Criminal) No.197 of 2014.                           E
       V. Shekhar, Sr. Adv., Aldanish Rein, Chander Shekhar Ashri,
Shashank Shekhar, Prithviraj Singh, Shakti Pandey, Ms. Sheetal Rajput,
Arjun Garg, Ms. Binu Tamta, Harish Pandey, Ms. Rekha Pandey,
B. V. Balaram Das, Mrs. Swarupama Chaturvedi, B. N. Dubey, Mukesh
Kumar, Ms. Indira Bhakar, Ms. Aparna Trivedi, Santanu Singh, Advs.       F
for the appearing parties.
      The Judgment of the Court was delivered by
       DEEPAK GUPTA, J. 1. Petitioner Jagdish was tried for the
murder of his wife and five children. He was convicted by the trial
court vide judgment dated 24.04.2006 and sentenced to death. He filed    G
an appeal which was dismissed by the High Court on 27.06.2006 and
the death sentence was confirmed. Thereafter, he filed Criminal Appeal
in this Court which was dismissed and again death sentence was
confirmed vide judgment dated 18.09.2009.
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818                SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A             2. The petitioner filed mercy petition before the jail authorities on
      13.10.2009, which came to be rejected by the President of India on
      16.07.2014. The petitioner has filed Writ petition (Crl.) No.197 of 2014
      challenging the rejection of his mercy petition and the main ground is
      that there is a delay of almost 5 years in deciding the mercy petition and
      this itself is a ground to commute the death sentence to life imprisonment.
B
      Thereafter, the petitioner also filed Review Petition No. 591 of 2014 in
      which review of the judgment of this Court dated 18.09.2009 is sought
      both on merits and the question of sentence in Criminal Appeal No. 338
      of 2007. Hence this matter is before this Bench.
             3. At the outset we may note that we are not inclined to entertain
C     the Review Petition on the merits of the case. Three courts have come
      to a concurrent finding of fact that it was the petitioner who murdered
      his wife and five children. We have gone through the written submissions
      filed by the learned counsel appearing on behalf of the petitioner and
      find no reason to take a view different from the one taken earlier.
D            4. We are only dealing with the issue whether the sentence of
      death should be upheld or not? In the Writ Petition it has been urged that
      delay in deciding the mercy petition and the delay in legal proceedings is
      sufficient to recall the sentence of death. In the Review Petition some
      other arguments have been raised. It has been urged that this case does
E     not fall in the category of the rarest of rare cases; this is a case based on
      circumstantial evidence; that the petitioner Jagdish was suffering from
      mental illness; the petitioner has been incarcerated for almost 14 years
      and execution of the death sentence at this stage would virtually mean
      imposing two sentences upon him – a sentence of life imprisonment and
      then a sentence of death.
F
                5. Delay in dealing with mercy petition:
             This Court in V. Sriharan alias Murugan vs. Union of India
      and Others1 held that one of the circumstances recognized by this Court
      for commutation of death sentence into life imprisonment is the undue,
G     inordinate and unreasonable delay in the execution of death sentence.
      The Court, however, held that whether the delay is unreasonable or not,
      it has to be appreciated in the facts of each case. In Sriharan’s case,
      there was a delay of 5 years and one month in disposing of the mercy
      petition and this Court held as follows :-
      1
H         (2014) 4 SCC 242
             JAGDISH v. STATE OF MADHYA PRADESH                                  819
                     [DEEPAK GUPTA, J.]

          “17. Exorbitant delay in disposal of mercy petition renders the        A
          process of execution of death sentence arbitrary, whimsical and
          capricious and, therefore, inexecutable. Furthermore, such
          imprisonment, occasioned by inordinate delay in disposal of mercy
          petitions, is beyond the sentence accorded by the court and to
          that extent is extra-legal and excessive. Therefore, the apex
                                                                                 B
          constitutional authorities must exercise the power under Articles
          72/161 within the bounds of constitutional discipline and should
          dispose of the mercy petitions filed before them in an expeditious
          manner.
          18. ……….
                                                                                 C
          19. Before we advert to respond the aforesaid contention, it is
          relevant to comprehend the primary ground on the basis of which
          the relief was granted in cases of delayed disposal of the mercy
          petition and that is, such delay violates the requirement of a fair,
          just and reasonable procedure. Regardless and independent of
          the suffering it causes, delay makes the process of execution of       D
          death sentence unfair, unreasonable, arbitrary and capricious and
          thereby, violates procedural due process guaranteed under Article
          21 of the Constitution and the dehumanising effect is presumed in
          such cases. It is in this context, this Court, in the past, has
          recognised that incarceration, in addition to the reasonable time      E
          necessary for adjudication of mercy petitions and preparation for
          execution, flouts the due process guaranteed to the convict under
          Article 21 which inheres in every prisoner till his last breath.”
          Consequently, the Court commuted the death sentence to life.
       6. In Ajay Kumar Pal vs. Union of India and Another2 this                 F
Court was dealing with a case where there was a delay of 3 years and
10 months in dealing with the mercy petition. In this case it was also
admitted that the petitioner had been kept in solitary confinement after
the death sentence was confirmed by this Court. This Court held that
the combined effect of the inordinate delay in disposal of the mercy             G
petition and solitary confinement for such a long period caused deprivation
of the cherished right to liberty of the petitioner and, therefore, the death
sentence was converted to life imprisonment.

2
    (2015) 2 SCC 478                                                             H
820            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A            7. As far as the present case is concerned the occurrence took
      place on the intervening night of 19/20.08.2005. The trial court completed
      the trial swiftly and delivered its judgment on 24.04.2006. The High
      Court confirmed the sentence within 2 months on 27.06.2006, and this
      Court dismissed the appeal on 18.09.2009. The petitioner filed a mercy
      petition addressed to the President of India and the Governor of Madhya
B
      Pradesh through the jail authorities on 13.10.2009. This application was
      forwarded by the Madhya Pradesh authorities to the Ministry of Home
      Affairs after more than 4 years on 15.10.2013. Thereafter, the Ministry
      of Home Affairs called for some records from the State of Madhya
      Pradesh on 20.11.2013. These documents were supplied by the State of
C     Madhya Pradesh on 12.12.2013. The file was forwarded to the President
      of India on 02.04.2014. The file was returned to the Ministry of Home
      Affairs for reconsideration. It was re-submitted to the President of
      India on 07.07.2014 and finally the mercy petition was rejected on
      16.07.2014.
D            8. As far as the Government of India or the Secretariat of the
      President of India is concerned, there is no delay in dealing with the
      mercy petition and the same has been dealt with expeditiously. However,
      the State of Madhya Pradesh has given no explanation for the delay of
      more than 4 years in forwarding the mercy petition.
E            9. We are constrained to observe that not only was there a long,
      inordinate and un-explained delay on the part of the State of Madhya
      Pradesh but to make matters worse, the State of Madhya Pradesh has
      not even cared to file any counter affidavit in the Writ Petition even
      though notice was issued 4 years back on 18.11.2014 and service was
      effected within a month of issuance of notice.
F
             10. The delay in forwarding the petition is totally un-explained
      and this Court cannot countenance an un-explained delay of more than
      4 years. We are dealing here with the case of a person who has been
      sentenced to death. The mercy petition is the last hope of a person on
      death row. Every dawn will give rise to a new hope that his mercy
G     petition may be accepted. By night fall this hope also dies. Inordinate
      and unexplained delay in deciding the mercy petition and the consequent
      delay in execution of death sentence for years on end is another form of
      punishment which was awarded by the Court. This Court has repeatedly
      held that in cases where death sentence has to be executed the same
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          JAGDISH v. STATE OF MADHYA PRADESH                                       821
                  [DEEPAK GUPTA, J.]

should be done as early as possible and if mercy petitions are not                 A
forwarded for 4 years and no explanation is submitted we cannot but
hold that the delay is inordinate and un-explained.
      11. We are not only dealing with the issue of delay in disposal of
the mercy petition. The petitioner has now been behind bars for almost
about 14 years. This is also a factor which will have to be taken into             B
consideration.
       12. Death sentence is the exception and has to be awarded in the
rarest of rare cases. Keeping in view all the circumstances of the case,
including the un-explained delay of 4 years in forwarding the mercy
petition by the State of Madhya Pradesh leading to delay of almost 5               C
years in deciding the mercy petition and the fact that the petitioner has
been incarcerated for almost 14 years, we are of view that regardless of
the brutal nature of crime this is not a fit case where death sentence
should be executed and we, accordingly commute the death sentence to
that of life. However, keeping in view the nature of crime and the fact
that 6 innocent lives were lost, we direct that life imprisonment in this          D
case shall mean the entire remaining life of the petitioner and he shall
not be released till his death. The Review Petition as well as the Writ
Petition are partly allowed in the aforesaid terms and, accordingly,
disposed of. Pending application(s) if any shall stand disposed of.
                                                                                   E

Divya Pandey                            Review and Writ Petition partly allowed.




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