Supreme Court of India
STATE OF MAHARASHTRA & ORS.versusPRADEEP YASHWANT KOKADE & ANR.
- Citation
- 2024 INSC 947
- Decided
- 9 December 2024
- Disposal
- Disposed off
- Bench
- ABHAY S OKA
Holding
An inordinate and unexplained delay in executing a death sentence, caused by circumstances beyond the convict's control, mandates commutation of the death sentence to a term of imprisonment.
Summary
The Supreme Court examined the case of two convicts sentenced to death for the rape and murder of a woman, focusing on the inordinate and unexplained delay in executing the death sentence. The convicts filed mercy petitions with the Governor of Maharashtra and the President of India, which were rejected after prolonged periods, and the Sessions Court delayed issuing execution warrants for nearly three years. The Court held that such executive and judicial delays, which were beyond the prisoners' control, violated Article 21 of the Constitution, mandating commutation of the death penalty. It affirmed the Bombay High Court's order commuting the death sentences to a fixed term of thirty‑five years of imprisonment. The Court also issued comprehensive guidelines to prevent future delays, including the creation of dedicated cells for processing mercy petitions and procedural safeguards for issuing execution warrants. The appeals were dismissed, leaving the commuted sentences in force.
Issues considered
- The effect of inordinate and unexplained delay in the execution of a death sentence on the constitutional rights of the convict under Article 21.
- Whether the delay caused by the executive in processing mercy petitions and by the Sessions Court in issuing execution warrants warrants commutation of the death sentence.
- The appropriate procedural safeguards and guidelines to be imposed on the executive and the Sessions Court to prevent such delays.
Legislation cited
- Bhartiya Nagarik Suraksha Sanhita, 2023s. 453, s. 454
- Code of Criminal Procedure, 1973s. 413, s. 414
- Constitution of India
Subjects
Death penaltyExecution delayArticle 21Mercy petitionsCommutationSection 413 CrPCSection 414 CrPCSection 453 BNSSSection 454 BNSSSolitary confinementExecutive dutyHigh Court jurisdictionArticle 32
Judgment
[2024] 12 S.C.R. 574 : 2024 INSC 947
State of Maharashtra & Ors.
v.
Pradeep Yashwant Kokade & Anr.
(Criminal Appeal No. 2831 of 2023)
09 December 2024
[Abhay S. Oka,* Ahsanuddin Amanullah and Augustine
George Masih, JJ.]
Issue for Consideration
Effect of delay in executing the death sentence.
Headnotes†
Sentence – Death sentence – Inordinate, unexplained delay in
execution of – Delay in processing, disposal of mercy petitions
and issue of warrant of execution of the death sentence –
High Court commuted the death sentence of the convicts to
thirty-five years of imprisonment holding that there was an
undue and avoidable delay in executing the death sentence –
Challenge to:
Held: Impugned judgment upheld – An inordinate and unexplained
delay caused by circumstances beyond the prisoners’ control
mandates the commutation of a death sentence – When the delay
from the date of filing of mercy petitions till the date of issue of a
warrant of execution is inordinate and unexplained, the right of the
convicts guaranteed by Article 21 is violated – The time consumed
from the filing of mercy petitions before the Hon’ble Governor to
the date of issue of the execution of warrants by the Sessions
Court is of three years, eleven months and fourteen days – On
facts, time was consumed from 10th July 2015 till 10th April 2019
in deciding the mercy petitions filed before the Hon’ble Governor
of the State and the Hon’ble President of India, and in issuing
warrants for executing the death sentence – There has been an
undue, unexplained and inordinate delay at all three stages –
Undue delays occurred in placing the mercy petitions before the
Hon’ble Governor for the State and the Hon’ble President of India
which delay was on the part of the executive and not on the part
of the Constitutional functionaries – When the mercy petitions
* Author
[2024] 12 S.C.R. 575
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
were pending, the Sessions Court could not have issued a warrant
to execute the death sentence – 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 – High Court
rightly held that there was a violation of the rights of the convicts
guaranteed u/Article 21 – Commutation of the death sentence to
a fixed term sentence of thirty-five years cannot be faulted with.
[Paras 34-36, 42]
Directions by Supreme Court – Death Sentence – Administrative
delays in dealing with mercy petitions or execution of death
penalty – Directions/Guidelines issued to State Governments,
Union Territories and Sessions Court to curb the delays – Code
of Criminal Procedure, 1973 – ss.413, 414:
Held: A dedicated cell to 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 – An official of the Law and Judiciary or Justice Department
of the State Governments/Union Territories should be attached
to the dedicated cell – All the prisons to be informed about the
designation of the officer-in-charge of the dedicated cell and his
address and email ID – Further, 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 details/information, as stated, from the officer-in-charge
of the concerned Police Station and/or the concerned investigation
agency – On receipt of the request made by the jail authorities,
the officer-in-charge of the concerned police station shall furnish
the said information to the jail authorities immediately – On receipt
of the said information, without any delay, the jail authorities shall
forward the documents as enumertaed to the officer-in-charge of
the dedicated cell and the Secretary of the Home Department of
the State Government – As soon as mercy petitions are received
by the dedicated cell, copies thereof shall be forwarded to the
Secretariats of the Hon’ble Governor of the State or the Hon’ble
President of India, as the case may be so that the Secretariat can
initiate action at their end – All correspondence, as far as possible,
576 [2024] 12 S.C.R.
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be made by email, unless confidential – State Government to issue
office orders/executive orders containing guidelines for dealing with
the mercy petitions in terms of the present judgment – Guidelines to
be followed by Sessions Court, enumerated – Directions issued by
the Allahabad High Court in People’s Union for Democratic Rights
(PUDR) v. Union of India & Ors., further elaborated. [Para 43]
Sentence – Death Sentence – Inordinate, unexplained delay
in execution – Effect – Constitution of India – Articles 21, 32,
226 – Code of Criminal Procedure, 1973 – ss.413, 414:
Held: Undue, unexplained and inordinate delay in execution of
the sentence of death will entitle the convict to approach this
Court under Article 32 – However, this Court will only examine
the nature of the delay caused and circumstances that ensued
after the judicial process finally confirmed the sentence 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 commuted to
imprisonment for life – While exercising its jurisdiction under
Article 32 r/w Article 21, this Court must consider the effect of
inordinate delay in disposal of the clemency petition by the highest
Constitutional authorities and cannot excuse the agonising delay
caused only on the basis of the gravity of the crime – Article 21
does not end with the pronouncement of the sentence but extends
to the stage of execution of that sentence – An inordinate delay
in the execution of the sentence of death has a dehumanising
effect on the accused – An inordinate and unexplained delay
caused by circumstances beyond the prisoners’ control mandates
the commutation of a death sentence – The aforesaid principles
will also apply to a case where there is a long and unexplained
delay on the part of the Sessions Court in issuing the warrant of
execution in accordance with Section 413 or Section 414, CrPC –
A convict can also invoke the jurisdiction of High Court under
Article 226 in the event there is an inordinate and unexplained
delay in the execution of the death sentence, post confirmation
of the sentence – Furthermore, it is the duty of the Executive to
promptly process the mercy petitions invoking Articles 72 or 161
of the Constitution and forward the petitions along with requisite
documents to the concerned constitutional functionary without
[2024] 12 S.C.R. 577
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
undue delay – Bhartiya Nagarik Suraksha Sanhita, 2023 –
ss.453, 454. [Para 42]
Sentence – Death sentence – Delay in execution –
“Inordinate”/“undue” delay – Length of delay whether
inordinate:
Held: Terms “undue” or “inordinate” cannot be interpreted by
applying the rules of mathematics – No hard and fast rule can be
laid down as regards the length of delay, which can be said to be
inordinate – What delay is inordinate depends on the facts of the
case. [Para 42]
Case Law Cited
Triveniben v. State of Gujarat [1989] 1 SCR 509 : (1989) 1 SCC
678 – followed.
T.V. Vatheesswaran v. State of Tamil Nadu [1983] 2 SCR 348 :
(1983) 2 SCC 68; Sher Singh & Ors. v. State of Punjab [1983]
2 SCR 582 : (1983) 2 SCC 344; Shatrughan Chauhan & Anr. v.
Union of India & Ors. [2014] 1 SCR 609 : (2014) 3 SCC 1; Ajay
Kumar Pal v. Union of India & Anr [2014] 12 SCR 441 : (2015) 2
SCC 478; Mukesh v. Union of India & Ors. [2020] 1 SCR 761 :
(2020) 16 SCC 424; B.A. Umesh v. Union of India & Ors [2022] 8
SCR 628 : 2022 SCC OnLine SC 1528; Vinay Sharma v. Union of
India & Ors [2020] 10 SCR 393 : (2020) 4 SCC 391; Shabnam v.
Union of India [2015] 8 SCR 289 : (2015) 6 SCC 702 – referred to.
People’s Union for Democratic Rights (PUDR) v. Union of India &
Ors. 2015 SCC OnLine All 143 – referred to.
List of Acts
Constitution of India; Code of Criminal Procedure, 1973; Bhartiya
Nagarik Suraksha Sanhita, 2023.
List of Keywords
Death penalty/sentence; Confirmation of the death penalty/
sentence; ‘Rarest of the rare case’; Delay in execution of the
sentence of death; Undue, unexplained, avoidable, inordinate
delay; Effect of delay in executing the death sentence;
Commutation of death sentence; Death sentence commuted to
thirty-five years of imprisonment; Warrant to execute the death
578 [2024] 12 S.C.R.
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sentence; Circumstances beyond prisoners’ control; Right of
the convicts guaranteed by Article 21 violated; Delay in issuing
warrants for executing the death sentence; “Inordinate”/“undue”
delay; Length of delay; Review/curative petitions; Mercy petitions;
Mercy petitions before the Hon’ble Governor for the State and
the Hon’ble President of India; Duty of the Sessions Court; Issue
of the execution of warrants by the Sessions Court; Delay on
the part of the executive; Duty of the executive; Constitutional
functionaries; Administrative delays in dealing with the mercy
petitions or issuing warrants for execution of death sentence;
Solitary confinement; Directions/Guidelines; Dedicated cell;
Rights of the victims; Prison authorities.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2831 of 2023
From the Judgment and Order dated 29.07.2019 of the High Court
of Judicature at Bombay in WP No. 2607 of 2019
With
Criminal Appeal No. 2832 of 2023
Appearances for Parties
Shreeyash Lalit, Aaditya Aniruddha Pande, Siddharth Dharmadhikari,
Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse,
Adarsh Dubey, Ms. Runjhun Garg, Advs. for the Appellants.
Ms. Swarupama Chaturvedi, Sr. Adv., Ms. Payoshi Roy, Yug
Chaudhary, Siddhartha, S.Prabu Ramasubramanian, Bharathimohan
M., Vairawan A.S, Vinayak Sharma, Kritagya Kumar Kait, Sarthak
Karol, Arvind Kumar Sharma, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
1. The main question involved in these appeals is about the effect of
delay in executing the death sentence.
[2024] 12 S.C.R. 579
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
FACTUAL ASPECTS
2. The deceased was employed in a company as an Associate. The
deceased was required to attend the night shift between 11:00 pm
and 09:00 am. On 1st November 2007, one Purushottam Dasrath
Borate (Convict no.2) was scheduled to pick up the deceased from
her residence at 10:30 pm. Convict no.2 was the driver of the cab
hired by the employer of the deceased. As per usual practice, Convict
no.2 gave a missed call to the deceased. After receiving the missed
call, the deceased came down. After picking up the deceased, Convict
no.2 was supposed to pick up one Sagar Bidkar, an employee of the
same company. Though Sagar repeatedly called Convict no.2, there
was no response. At about 12:45 am, Convict no.2 came to pick
up Sagar. When Sagar sat in the vehicle, one Pradeep Yashwant
Kokade (Convict no.1/Respondent no.1) was already occupying the
car’s rear seat. Convict no.1 introduced convict no.2 to Sagar as
his friend. Before the vehicle reached the company’s office, Convict
no.1 alighted from the car. Convict no.2 requested Sagar to endorse
in the company’s record that the delay was due to the puncture of
a tyre in the vehicle.
3. On the morning of 2nd November 2007, when the deceased did not
return home, her sister enquired with the office of the deceased.
She was told that the deceased had not reported for duty. The
deceased’s sister lodged a missing person report with the local Police
Station. The body of the deceased was found on the morning of 2nd
November 2007. In the postmortem report, the cause of death was
stated as shock and haemorrhage due to grievous injuries to the
vital organs. There was a fracture of the skull involving the frontal,
left temporal, and parietal bones with a laceration to the brain. Rib
nos.2, 3 and 4 were fractured and the right lung was ruptured. The
postmortem report recorded that the deceased was raped before
her death. On 3rd November 2007, both the convicts were taken
into judicial custody. By the judgment dated 20th March 2012, the
learned Sessions Judge, Pune, convicted both the convicts for
the offences punishable under Sections 302, 376(2)(g), 364, and
404, read with Section 120-B of the Indian Penal Code, 1860 (for
short, ‘the IPC’). Both the convicts were sentenced to death. The
proceedings were sent to the High Court of Judicature at Bombay
in accordance with Section 366 of the Code of Criminal Procedure,
1973 (for short, ‘the CrPC’) for confirmation of the death penalty.
580 [2024] 12 S.C.R.
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By the judgment dated 25th September 2012, the High Court held
that the case of the convicts was falling in the category of ‘rarest of
the rare case’. Therefore, the High Court proceeded to confirm the
death sentence. This Court also confirmed the death sentence by
the judgment dated 8th May 2015.
4. On 29th May 2015, the Superintendent of Yerawada Central Prison,
Pune (for short, ‘the Superintendent of Prison’) informed the Registrar
of this Court that the contents of the judgment dated 8th May 2015 of
this Court had been explained to the convicts in the language known
to them. On 1st June 2015, the convicts gave a statement to the
jail officers that they were desirous of filing a review petition before
this Court. The decision was informed to the Home Department,
Government of Maharashtra on 2nd June 2015, by a letter issued by
the Superintendent of Prison. On 10th July 2015, the convicts filed
mercy petitions addressed to the Hon’ble Governor of the State
of Maharashtra. On 16th July 2015, the Superintendent of Prison
forwarded the mercy petitions to the Principal Secretary of the Home
Department, Government of Maharashtra. On 17th August 2015, the
Home Department, Government of Maharashtra, addressed a letter
to the Superintendent of Prison to verify whether the convicts had
filed any review petition before this Court. On 22nd August 2015, the
convicts confirmed to the Superintendent of Prison that they had not
filed any review petition. The Superintendent of Prison communicated
this fact to the Home Department, State of Maharashtra, vide a letter
dated 24th August 2015. Even the Office of the Additional Director
General of Police and Inspector General of Prisons (for short, ‘the
ADG (Prisons)’) addressed a similar communication on 26th August
2015, confirming that the convicts had filed no review petition.
5. Five months after receiving the mercy petitions, on 25th January 2016,
a note was prepared by the Section Officer of the Home Department,
State Government for the benefit of the Hon’ble Governor. Pursuant
to the letter dated 17th July 2015 sent by the ADG (Prisons), the
Superintendent of Prison by his letter dated 27th January 2016,
forwarded necessary factual details to the Principal Secretary of the
Home Department along with a copy of the judgment of conviction
of the Sessions Court. On 1st February 2016, the Superintendent of
Prison requested the Senior Inspector of Police of the concerned
Police Station to supply English translations of the police diary, a
short crime history in English, copies of FIR, dying declaration and a
[2024] 12 S.C.R. 581
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
copy of the charge and reason for commitment. On 29th March 2016,
the Hon’ble Governor rejected the mercy petitions. A communication
to that effect was issued by the Deputy Secretary to the Hon’ble
Governor to the Additional Chief Secretary of the Home Department,
Government of Maharashtra by a letter dated 29th March 2016.
On 9th April 2016, the Superintendent of Prison received a letter
dated 6th April 2016 from the Home Department, Government of
Maharashtra, informing about the rejection of the mercy petitions.
According to the case of the appellant state of Maharashtra, the
Hon’ble Governor’s rejection of the mercy petitions was communicated
to the convicts on the same day.
6. Convict no.1 intimated his desire to file a mercy petition before the
Hon’ble President of India. This desire was recorded in the statement
of Convict no.1 dated 11th April 2016 by the prison officials. After
that, there was correspondence exchanged by the ADG (Prisons),
the Superintendent of Prison, the concerned Police Station, the
State Government, etc., between 13th April 2016 and 31st May 2016.
7. On 11th June 2016, relatives of the convicts submitted fresh mercy
petitions before the Hon’ble President of India. On 15th June 2016 and
22nd July 2016, the Under Secretary (Judicial), Ministry of Home Affairs,
Government of India (for short, ‘Under Secretary (GOI)’) issued letters
of request to the Principal Secretary, Home Department, Government
of Maharashtra for the supply of documents. On 9th August 2016, the
Under Secretary, Home Department, Government of Maharashtra
addressed a letter to the ADG (Prisons) and the Superintendent of
Prison to supply information regarding the past criminal history of the
convicts, the economic condition of the families of convicts and the
filing of any review petitions by the convicts. On 5th September 2016,
the Superintendent of Prison addressed a letter to the concerned
Police Station requesting information regarding the past criminal
history and economic condition of the family of convicts. The Under
Secretary (GOI) addressed a reminder on 6th September 2016 to
the Home Department, Government of Maharashtra, requesting to
supply the documents. On 9th September 2016, the Superintendent
of Prison confirmed by addressing a letter to the Home Department,
Government of Maharashtra, that the convicts had not filed review
petitions. On 12th September 2016, the concerned Police Station
forwarded to the Home Department, Government of Maharashtra,
the details regarding the criminal history and economic condition of
582 [2024] 12 S.C.R.
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the convicts. On 30th September 2016, the Home Department of the
State Government addressed a letter to the Under Secretary (GOI)
giving information about the criminal history and economic condition
of the convicts and filing of review petitions by the convict. On 26th
December 2016, the Under Secretary (GOI) addressed a letter to
the Home Department, Government of Maharashtra, for confirmation
regarding the decision of the convicts not to file review petitions. This
information was sought by the Home Department, Government of
Maharashtra, by the letter dated 16th January 2017 from the ADG
(Prisons) and the Superintendent of Prison. Accordingly, on 21st
January 2017, statements of the convicts were recorded in which they
stated that though they intended to file review petitions, the same
have not been filed. This information was furnished by the Offices
of Superintendent of Prison and the ADG (Prisons) to the Home
Department of the State Government in separate letters dated 23rd
January 2017 and 7th February 2017, respectively. On 22nd February
2017, the Home Department, Government of Maharashtra, informed
the Under Secretary (Judicial), Home Department, Government of
India, confirming that the convicts intended to file review petitions.
The said letter recorded that both the convicts had decided to file
review petitions after the decision of the Hon’ble President of India
on the mercy petitions. The Hon’ble President on 26th May 2017
rejected the mercy petitions. 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 6th June 2017. By separate letters dated 19th June
2017 addressed to the family members of the convicts and the learned
Sessions Judge, Pune, the Superintendent of Prison informed them
about the rejection of the mercy petitions.
8. On 10th August 2017, the Superintendent of Prison addressed
a letter to the learned Sessions Judge, Pune, requesting him to
issue a warrant for the execution of the death sentence. On 24th
August 2017, the Superintendent of Prison addressed a letter to
the Registrar of this Court requesting him to provide information
about any review petition filed by the convicts. By a letter dated
9th September 2017, the Registrar of this Court communicated to
the Superintendent of Prison that no review petitions were filed by
the convicts. On 5th October 2017, 18th July 2018 and 29th August
2018, letters were addressed by the Superintendent of Prison to the
[2024] 12 S.C.R. 583
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
learned Sessions Judge, Pune, requesting him to issue a warrant of
execution of the death sentence. On 17th October 2018, a letter was
sent by the ADG (Prisons) to the learned Sessions Judge, Pune,
requesting him to fix a date for the execution of the death sentence.
As no action was taken by the Sessions Court, Pune, the Home
Department of the Government of Maharashtra on 30th October
2018, addressed a letter to the Law and Judiciary Department of the
State Government 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. By the letter
dated 12th November 2018, the Law and Judiciary Department of
the State Government informed the Home Department of the State
Government that the exclusive jurisdiction to issue warrants for
executing the death sentence was of the learned Sessions Court.
Meanwhile, on 2nd November 2018, the learned Sessions Judge,
Pune, addressed a letter to the Home Department, Government of
Maharashtra, seeking information about the status of mercy petitions.
On 7th December 2018 and 27th December 2018, the ADG (Prisons)
and the Superintendent of Prison addressed letters to the learned
Sessions Court, Pune, requesting him to fix a date for executing
the death sentence. On 31st January 2019, the Home Department
of the State Government wrote a letter to the ADG (Prisons) and
the Superintendent of Prison informing them about the letter dated
2nd November 2018 sent by the learned Sessions Court, Pune. On
10th April 2019, warrants for the execution of the death sentence
were issued by the Sessions Court, Pune.
GROUNDS OF CHALLENGE BEFORE THE HIGH COURT
9. On 2nd May 2019, the convicts filed separate writ petitions before
the High Court. A prayer was made in the petitions for quashing
the warrants of execution of the death sentence, inter alia, on the
following grounds:
i. Inordinate and unexplained delay in execution of death sentence
on the part of the State Government as well as the Sessions
Court, Pune;
ii. Inordinate and unexplained delay in deciding mercy petitions;
iii. The convicts were kept in solitary confinement during the
pendency of the appeals before this Court as well as the
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mercy petitions before the Hon’ble Governor of the State of
Maharashtra and the Hon’ble President of India;
iv. Rejection of mercy petitions was illegal on account of non-
application of mind due to non-placement of relevant information
before the concerned authorities; and,
v. The Sessions Court, Pune, issued death warrants without notice
to the convicts or their family members.
10. Counter affidavits were filed in the writ petitions before the High Court
by various officers. By the impugned judgment dated 29th July 2019,
the High Court held that there was an undue and avoidable delay
in executing the death sentence. Moreover, the convicts were kept
in solitary confinement from 20th March 2012. Therefore, the High
Court proceeded to commute 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 learned Sessions Court, Pune,
were set aside.
SUBMISSIONS
11. Mr Shreeyash Lalit, the learned counsel representing the appellants,
made detailed submissions. He referred to a decision of this Court
in the case of T.V.Vatheesswaran v. State of Tamil Nadu.1 He also
pointed out a decision of the three Judge Bench of this Court in the
case of Sher Singh & Ors. v. State of Punjab.2 He pointed out that
in the case of T.V. Vatheesswaran,1 it was held that a delay beyond
two years in the execution of the death sentence was enough to
commute the death sentence to life imprisonment. However, in the
case of Sher Singh & Ors,2 it was held that a delay of two years
is not enough for the commutation of a death sentence. Ultimately,
this conflict was resolved by a decision by the Constitution Bench of
this Court in the case of Triveniben v. State of Gujarat.3 He also
pointed out various decisions of this Court in the cases of Shatrughan
Chauhan & Anr. v. Union of India & Ors.,4 Ajay Kumar Pal v.
1 [1983] 2 SCR 348 : (1983) 2 SCC 68
2 [1983] 2 SCR 582 : (1983) 2 SCC 344
3 [1989] 1 SCR 509 : (1989) 1 SCC 678
4 [2014] 1 SCR 609 : (2014) 3 SCC 1
[2024] 12 S.C.R. 585
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
Union of India & Anr,5 Mukesh v. Union of India & Ors.6 and B.A.
Umesh v. Union of India & Ors.7 He submitted that though undue
delay in the execution of a death sentence will entitle convicts to
seek commutation, no fixed period of delay can be laid down as a
criterion for commutation. He submitted that in such a case, the twin
test must be satisfied. The first test is whether there was an avoidable
delay. The second test is whether the quantum of delay was unduly
long or inordinate, which must warrant the commutation of a death
sentence to life imprisonment. The learned counsel urged that both
the tests must be satisfied to make out a case for commutation of a
death sentence. He submitted that neither of these two tests alone
would be sufficient to commute the death sentence.
12. The learned counsel submitted that the High Court has committed an
error by holding that the quantum of delay is not material. He submitted
that the delay has to be inordinate and, therefore, the quantum of
delay is very material. He submitted that the time consumed for the
disposal of mercy petitions by the Hon’ble Governor and the Hon’ble
President of India was from 10th July 2015 to 26th May 2017, which
is about one year and ten months. His submission is that this delay
cannot be held to be inordinate or unexplained. He submitted that,
in any case, there is an explanation for the delay. He submitted that
there was some delay as time was required to ascertain whether
the convicts wanted to file review petitions. He submitted that the
time taken of a few months to prepare a note for presenting it to the
Hon’ble Governor could not be said to be unreasonable as it required
scanning of voluminous records. Even the time of three months
taken by the Hon’ble Governor cannot be said to be unreasonable.
13. As regards the delay in the disposal of mercy petitions by the Hon’ble
President of India, he submitted that the time of five months was
consumed in getting information on the criminal antecedents and
economic condition of the convicts. Time of about four months or
more was required to get the information on the issue of convicts
filing review petitions before this Court. The Hon’ble President of India
took about four months to decide on the mercy petitions, which is not
at all long or inordinate considering the fact that the issue was the
5 [2014] 12 SCR 441 : (2015) 2 SCC 478
6 [2020] 1 SCR 761 : (2020) 16 SCC 424
7 [2022] 8 SCR 628 : 2022 SCC OnLine SC 1528
586 [2024] 12 S.C.R.
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life and death of the convicts. He submitted that in the case of B.A.
Umesh,7 the delay of two years and three months in the disposal
of the mercy petition was held as not excessive.
14. The learned counsel submitted that the major delay is on the part of
the Sessions Court in issuing the warrants of execution of the death
sentence. He submitted that on 19th June 2017, the Superintendent
of Prison had communicated to the Sessions Court about the Hon’ble
President of India’s rejection of the mercy petitions. There was an
exchange of correspondence by the Government Officers with the
Sessions Court, and only on 10th April 2019 were warrants issued for
the execution of the death sentence issued by the Sessions Court.
He submitted that in view of the decision of the Constitution Bench
in the case of Triveniben,3 only the delay caused by the executive
could be taken into consideration to decide whether there was any
violation of Article 21 of the Constitution of India.
15. As regards the finding of the High Court on keeping the convicts in
solitary confinement before rejection of mercy petitions, the learned
counsel pointed out that in the affidavit of the Superintendent of
Prison, it was pointed out that the convicts were kept in a security
yard wherein they were allowed to access the veranda and interact
with other prisoners from 06:00 am to 06:30 pm. He pointed out that
there was a fan and light bulb in their cell. In their room, there was
usually more than one inmate. Moreover, they had access to an open
ground. He, therefore, submitted that in view of the law laid down by
this Court in the case of Vinay Sharma v. Union of India & Ors,8 it
cannot be said that the convicts were kept in solitary confinement.
16. The learned counsel submitted that in the execution warrants, more
than a reasonable period was provided from the date of warrants
till the date of execution. Copies of the warrants were immediately
supplied to the convicts. He submitted that merely because the
convicts were not brought before the Sessions Court while proceeding
with issuance of warrants, this lapse by itself, was not sufficient to
commute the sentence to life imprisonment. The learned counsel also
made suggestions for issuing guidelines for effective compliance with
Sections 413 and 414 of the CrPC corresponding to Sections 453 and
8 [2020] 10 SCR 393 : (2020) 4 SCC 391
[2024] 12 S.C.R. 587
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
454 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the
BNSS’). In short, the submission of the learned counsel appearing
for the appellants is that there was no warrant for commuting the
death sentence.
17. Ms. Payoshi Roy, the learned counsel representing the respondents-
convicts submitted that as held by this Court in the case of Sher
Singh & Ors,2 Article 21 of the Constitution of India inheres in
every person till his last breath. The learned counsel submitted that
unreasonable delay in adjudicating upon the mercy petitions makes
the punishment barbaric and, hence, unconstitutional. She submitted
that, in fact, avoidable delay in deciding the mercy petitions violates
constitutional due process, which includes fair, just and reasonable
procedure. The learned counsel relied upon the observations made
by this Court in the cases of Sher Singh & Ors2 and Ajay Kumar
Pal.5 The learned counsel submitted that the executive authorities
should follow a self-imposed rule that every mercy petition must
be disposed of within three months. The delay beyond a period of
three months must be, prima facie, presumed to be excessive, which
puts the burden on the State Government to explain the delay. She
submitted that no fixed length of delay can be determinative, and,
in that context, the High Court observed that the quantum of delay
is not material. She pointed out that the total delay in execution of
the death sentence, in this case, starting from the date of filing of
mercy petitions till the date of issuance of execution warrants, was
three years, eleven months and fifteen days.
18. The learned counsel for the convicts submitted that the poor economic
condition of the convicts was not considered by the Hon’ble Governor
of the State of Maharashtra and the Hon’ble President of India.
Even the fact of relatively young ages of the convicts has not been
considered while deciding the mercy petitions. In the facts of the
case, delay post the rejection of the mercy petitions will have to be
treated as executive delay as there was a gross delay in doing the
ministerial act of issuing execution warrants.
19. The learned counsel also submitted that the finding of the High Court
regarding keeping the convicts in solitary confinement is just and
proper, and no interference is called for with that finding.
588 [2024] 12 S.C.R.
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CONSIDERATION
LEGAL POSITION
20. Law on the subject has been laid down in the case of Triveniben3
by a Constitution Bench. G.L. Oza, J. rendered the main opinion for
himself and on behalf of three other Hon’ble Judges. The controversy
which led to a reference to the Constitution Bench has been set out
in the majority judgment in paragraphs 1, 2 and 3, which read thus:
“1. These matters came up before us because of the conflict
in the two decisions of this Court: (i) T.V. Vatheeswaran
v. State of T.N. [(1983) 2 SCC 68: 1983 SCC (Cri) 342 :
(1983) 2 SCR 348], Sher Singh v. State of Punjab [(1983)
2 SCC 344 : 1983 SCC (Cri) 461 : (1983) 2 SCR 582] and
observations in the case of Javed Ahmed Abdul Hamid
Pawala v. State of Maharashtra [(1985) 1 SCC 275: 1984
SCC (Cri) 653 : (1985) 2 SCR 8]. In Vatheeswaran case
[(1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2 SCR
348] a Bench of two Judges of this Court held that two
years delay in execution of the sentence after the judgment
of the trial court will entitle the condemned prisoner to ask
for commutation of his sentence of death to imprisonment
for life. The court observed that: [SCC p. 79 : SCC (Cri)
p. 353, para 21]
‘Making all reasonable allowance for the time
necessary for appeal and consideration of
reprieve, we think that delay exceeding two years
in the execution of a sentence of death should
be considered sufficient to entitle the person
under sentence of death to invoke Article 21 and
demand the quashing of the sentence of death.’
2. In Sher Singh case [(1983) 2 SCC 344 : 1983 SCC
(Cri) 461 : (1983) 2 SCR 582] which was a decision of a
three-Judges’ Bench it was held that a condemned prisoner
has a right of fair procedure at all stages, trial, sentence
and incarceration but delay alone is not good enough for
commutation and two years rule could not be laid down in
cases of delay. It was held that the court in the context of
the nature of offence and delay could consider the question
[2024] 12 S.C.R. 589
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
of commutation of death sentence. The court observed:
[SCC p. 356 : SCC (Cri) p. 473, para 19]
‘Apart from the fact that the rule of two years runs
in the teeth of common experience as regards
the time generally occupied by proceedings in
the High Court, the Supreme Court and before
the executive authorities, we are of the opinion
that no absolute or unqualified rule can be laid
down that in every case in which there is a long
delay in the execution of a death sentence, the
sentence must be substituted by the sentence of
life imprisonment. There are several other factors
which must be taken into account while considering
the question as to whether the death sentence
should be vacated. A convict is undoubtedly entitled
to pursue all remedies lawfully open to him to get
rid of the sentence of death imposed upon him and
indeed, there is no one, be he blind, lame, starving
or suffering from a terminal illness, who does not
want to live.’
It was further observed: [SCC p. 357 : SCC (Cri) p. 474,
para 20]
‘Finally, and that is no less important, the nature of
the offence, the diverse circumstances attendant upon
it, its impact upon the contemporary society and the
question whether the motivation and pattern of the
crime are such as are likely to lead to its repetition,
if the death sentence is vacated, are matters which
must enter into the verdict as to whether the sentence
should be vacated for the reason that its execution
is delayed. The substitution of the death sentence
by a sentence of life imprisonment cannot follow by
the application of the two years’ formula, as a matter
of quod erat demonstrandum.’
3. In Javed case [(1985) 1 SCC 275 : 1984 SCC (Cri) 653 :
(1985) 2 SCR 8] it was observed that the condemned man
who had suffered more than two years and nine months and
was repenting and there was nothing adverse against him
590 [2024] 12 S.C.R.
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in the jail records, this period of two years and nine months
with the sentence of death heavily weighing on his mind
will entitle him for commutation of sentence of death into
imprisonment for life. It is because of this controversy
that the matter was referred to a five-Judges’ Bench
and hence it is before us.”
(emphasis added)
Ultimately, in paragraph 23, the Constitution Bench held thus:
“23. So far as our conclusions are concerned we had
delivered our order on 11-10-1988 and we had reserved
the reasons to be given later. Accordingly in the light of
the discussions above our conclusion is as recorded in
our order dated 11-10-1988 [Triveniben v. State of Gujarat,
(1988) 4 SCC 574 : 1989 SCC (Cri) 25], reproduced below:
[SCC p. 576: SCC (Cri) pp. 26-27, para 2]
‘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 and
to this extent the decision in Vatheeswaran case
[(1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2
SCR 348] cannot be said to lay down the correct
law and therefore to that extent stands overruled.’’
(emphasis added)
In paragraph 16, the Constitution Bench held that while considering
the delay, the period consumed in the judicial process culminating
[2024] 12 S.C.R. 591
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
in confirmation of the death sentence should not be considered.
K. Jagannatha Shetty, J, rendered a concurring opinion. In paragraphs
75 and 76 of his opinion, it was observed thus:
“75. As between funeral fire and mental worry, it is the
latter which is more devastating, for, funeral fire burns only
the dead body while the mental worry burns the living one.
This mental torment may become acute when the judicial
verdict is finally set against the accused. Earlier to it, there
is every reason for him to hope for acquittal. That hope is
extinguished after the final verdict. If, therefore, there is
inordinate delay in execution, the condemned prisoner
is entitled to come to the court requesting to examine
whether it is just and fair to allow the sentence of
death to be executed.
76. What should be done by the court is the next point
for consideration. It is necessary to emphasise that the
jurisdiction of the court at this stage is extremely limited. If
the court wants to have a look at the grievance as to delay,
it is needless to state, that there should not be any delay
either in listing or in disposal of the matter. The person
who complains about the delay in the execution should
not be put to further delay. The matter, therefore, must be
expeditiously and on top priority basis, disposed of. The
court while examining the matter, for the reasons already
stated, cannot take into account the time utilised in the
judicial proceedings up to the final verdict. The court also
cannot take into consideration the time taken for disposal
of any petition filed by or on behalf of the accused either
under Article 226 or under Article 32 of the Constitution after
the final judgment affirming the conviction and sentence.
The court may only consider whether there was undue
long delay in disposing of mercy petition; whether
the State was guilty of dilatory conduct and whether
the delay was for no reason at all. The inordinate
delay, may be a significant factor, but that by itself
cannot render the execution unconstitutional. Nor
it can be divorced from the dastardly and diabolical
circumstances of the crime itself. The court has still to
consider as observed in Sher Singh case [(1983) 2 SCC
592 [2024] 12 S.C.R.
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344 : 1983 SCC (Cri) 461 : (1983) 2 SCR 582] : [SCR p.
596 : SCC p. 357 : SCC (Cri) p. 474, para 20]”
(emphasis added)
21. Thereafter, a Bench of three Hon’ble Judges in the case of Shatrughan
Chauhan & Anr.4 dealt with the same issue. Paragraphs 44 to 49 of
the decision are material, which read thus:
“44. In view of the above, we hold that undue long
delay in execution of sentence of death will entitle
the condemned prisoner to approach this Court under
Article 32. However, this Court will only examine the
circumstances surrounding the delay that has occurred
and those that have ensued after the sentence was
finally confirmed by the judicial process. This Court
cannot reopen the conclusion already reached but may
consider the question of inordinate delay to decide
whether the execution of sentence should be carried
out or should be altered into imprisonment for life.
45. Keeping a convict in suspense while consideration
of his mercy petition by the President for many years
is certainly an agony for him/her. It creates adverse
physical conditions and psychological stresses on
the convict under sentence of death. Indisputably,
this Court, while considering the rejection of the
clemency petition by the President, under Article 32
read with Article 21 of the Constitution, cannot excuse
the agonising delay caused to the convict only on the
basis of the gravity of the crime.
46. India has been a signatory to the Universal Declaration
of Human Rights, 1948 as well as to the United Nations
Covenant on Civil and Political Rights, 1966. Both these
conventions contain provisions outlawing cruel and
degrading treatment and/or punishment. Pursuant to the
judgment of this Court in Vishaka v. State of Rajasthan
[(1997) 6 SCC 241 : 1997 SCC (Cri) 932] , international
covenants to which India is a party are a part of domestic
law unless they are contrary to a specific law in force.
It is this expression (“cruel and degrading treatment
[2024] 12 S.C.R. 593
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
and/or punishment”) which has ignited the philosophy of
Vatheeswaran [T.V. Vatheeswaran v. State of T.N., (1983)
2 SCC 68 : 1983 SCC (Cri) 342] and the cases which
follow it. It is in this light, the Indian cases, particularly, the
leading case of Triveniben [Triveniben v. State of Gujarat,
(1989) 1 SCC 678 : 1989 SCC (Cri) 248] has been followed
in the Commonwealth countries. It is useful to refer the
following foreign judgments which followed the proposition:
(i) Pratt v. Attorney General for Jamaica [(1994) 2 AC 1 :
(1993) 3 WLR 995 : (1993) 4 All ER 769 (PC)], (ii) Catholic
Commission for Justice & Peace in Zimbabwe v. Attorney
General [(1993) 4 SA 239 (Zimbabwe SC)] , (iii) Soering v.
United Kingdom [ Application No. 14038 of 1988 : (1989)
11 EHRR 439], (iv) Attorney General v. Susan Kigula
[Constitutional Appeal No. 3 of 2006, decided on 21-1-2009
(Uganda SC)], (v) Herman Mejia v. Attorney General [ AD
2006 Action No. 296, decided on 11-6-2001 (Belize SC)].
47. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the Governor/
President, it is incumbent on the authorities to dispose of
the same expeditiously. Though no time-limit can be
fixed for the Governor and the President, it is the duty
of the executive to expedite the matter at every stage
viz. calling for the records, orders and documents filed
in the court, preparation of the note for approval of
the Minister concerned, and the ultimate decision of
the constitutional authorities. This Court, in Triveniben
[Triveniben v. State of Gujarat (1989) 1 SCC 678 : 1989
SCC (Cri) 248], further held that in doing so, if it is
established that there was prolonged delay in the
execution of death sentence, it is an important and
relevant consideration for determining whether the
sentence should be allowed to be executed or not.
48. Accordingly, if there is undue, unexplained and
inordinate delay in execution due to pendency of mercy
petitions or the executive as well as the constitutional
authorities have failed to take note of/consider the
relevant aspects, this Court is well within its powers
under Article 32 to hear the grievance of the convict and
594 [2024] 12 S.C.R.
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commute thone death sentence into life imprisonment
this ground alone however, only after satisfying that the
delay was not caused at the instance of the accused
himself. To this extent, the jurisprudence has developed
in the light of the mandate given in our Constitution as well
as various Universal Declarations and directions issued
by the United Nations.
49. The procedure prescribed by law, which deprives
a person of his life and liberty must be just, fair and
reasonable and such procedure mandates humane
conditions of detention preventive or punitive. In this line,
although the petitioners were sentenced to death based
on the procedure established by law, the inexplicable delay
on account of executive is inexcusable. Since it is well
established that Article 21 of the Constitution does not
end with the pronouncement of sentence but extends
to the stage of execution of that sentence, as already
asserted, prolonged delay in execution of sentence
of death has a dehumanising effect on the accused.
Delay caused by circumstances beyond the prisoners’
control mandates commutation of death sentence. In
fact, in Vatheeswaran [T.V.Vatheeswaran v. State of T.N.
(1983) 2 SCC 68 : 1983 SCC (Cri) 342] , particularly, in
para 10, it was elaborated where amongst other authorities,
the minority view of Lords Scarman and Brightman in the
1982 Privy Council case of Riley v. Attorney General of
Jamaica [Riley v. Attorney General of Jamaica (1983) 1
AC 719 : (1982) 3 WLR 557 : (1982) 3 All ER 469 : 1982
Cri Law Review 679 (PC)], by quoting: (Vatheeswaran
case [T.V.Vatheeswaran v. State of T.N. (1983) 2 SCC
68 : 1983 SCC (Cri) 342] , SCC p. 72)
“10. ‘… Sentence of death is one thing: sentence
of death followed by lengthy imprisonment prior to
execution is another.’” (Riley case [Riley v. Attorney
General of Jamaica, (1983) 1 AC 719 : (1982) 3 WLR
557 : (1982) 3 All ER 469 : 1982 Cri Law Review
679 (PC)] , AC p. 735 B)
(emphasis supplied)
[2024] 12 S.C.R. 595
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
The appropriate relief in cases where the execution of
death sentence is delayed, the Court held, is to vacate the
sentence of death. In para 13, the Court made it clear that
Articles 14, 19 and 21 supplement one another and the
right which was spelled out from the Constitution was a
substantive right of the convict and not merely a matter of
procedure established by law. This was the consequence of
the judgment in Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India (1978) 1 SCC 248] which made
the content of Article 21 substantive as distinguished from
merely procedural.”
(emphasis added)
In paragraph 244, the Bench proceeded to hold thus:
“244. It is well established that exercising of power
under Articles 72/161 by the President or the Governor
is a constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitution
Framers did not stipulate any outer time-limit for
disposing of the mercy petitions under the said
Articles, which means it should be decided within
reasonable time. However, when the delay caused
in disposing of the mercy petitions is seen to be
unreasonable, unexplained and exorbitant, it is the
duty of this Court to step in and consider this aspect.
Right to seek for mercy under Articles 72/161 of the
Constitution is a constitutional right and not at the
discretion or whims of the executive. Every constitutional
duty must be fulfilled with due care and diligence, otherwise
judicial interference is the command of the Constitution
for upholding its values.”
(emphasis added)
This Court also issued several other directions regarding the
procedure to be followed in placing mercy petitions before the Hon’ble
Governor or the Hon’ble President of India.
22. The decision of this Court in the case of B.A.Umesh7 does not make a
departure from the law laid down in the case of Shatrughan Chauhan
& Anr.4 On the contrary, paragraphs 44, 47 and 48 of the decision
596 [2024] 12 S.C.R.
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have been quoted therein with approval. We have carefully perused
several other decisions of this Court which have been rendered in
the facts of the case before this Court. The propositions laid down
in these decisions can be summarized as under:
(i) Undue, unexplained and inordinate delay in execution of the
sentence of death will entitle the convict to approach this Court
under Article 32. But this Court will only examine the nature
of the delay caused and circumstances that ensued after the
judicial process finally confirmed the sentence 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.
(ii) Keeping a convict sentenced to death in suspense while
considering his mercy petitions by the Governor or the President
for an inordinately long time is certainly agony for him/her. It
creates adverse physical conditions and psychological stress on
the convict under sentence of death. Therefore, this Court, while
considering the delay in the disposal of clemency petitions by the
highest constitutional authorities, while exercising its jurisdiction
under Article 32 read with Article 21 of the Constitution, cannot
excuse the agonising delay caused to the convict only based
on the gravity of the crime; and
(iii) It is well established that Article 21 of the Constitution 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.
23. In paragraph 16 of the decision of this Court in the case of Triveniben,3
the Constitution Bench held that while considering the delay in the
execution of the death sentence, 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
[2024] 12 S.C.R. 597
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
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. Therefore,
the period required for judicial consideration cannot be termed as a
delay in the execution of the death sentence, as till the conclusion of
judicial proceedings arising out of the order of conviction, a sentence
of death does not attain finality. The question of execution thereof
arises only when the death sentence becomes final.
24. We may refer to Sections 413 and 414 of the CrPC, which read thus:
“413. Execution of order passed under section 368.—
When in a case submitted to the High Court for the
confirmation of a sentence of death, the Court of Session
receives the order of confirmation or other order of the
High Court thereon, it shall cause such order to be carried
into effect by issuing a warrant or taking such other steps
as may be necessary.
414. Execution of sentence of death passed by High
Court.— When a sentence of death is passed by the
High Court in appeal or in revision, the Court of Session
shall, on receiving the order of the High Court, cause the
sentence to be carried into effect by issuing a warrant.”
There are identical provisions in the BNSS in the form of Sections 453
and 454. These provisions constitute a vital safeguard. These
provisions ensure 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.
25. The proceedings for issuing a warrant for executing a death sentence
under Sections 413 and 414 of the CrPC do not require any judicial
adjudication. 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. Before issuing a warrant, the Sessions Court has to issue
notice to the convict so that even the convict can state whether any
other proceedings are pending before the Courts or Constitutional
authorities. In a given case, the convict may not be interested in
pursuing remedies. The Sessions Court can verify this aspect after
598 [2024] 12 S.C.R.
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issuing a notice to the convict. The Sessions Court, in such a case,
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. The Sessions Court can direct the counselling of
the convict if it is not satisfied that the decision is a well-informed,
considered and conscious decision. If such a procedure is followed,
it enables the convict to take recourse to the available legal remedy.
Moreover, if an order of issue of warrant of execution is passed after
notice to the convict, it enables the convict to challenge the order
of issuing a warrant of execution. But after the convict exhausts
all remedies, including filing mercy petitions or after the Sessions
Court is satisfied that the convict has taken a conscious decision
of not availing the remedies, the execution warrant must be issued
without any delay. It is the responsibility of the trial court to take up
and conclude the proceedings of issuing a warrant of execution as
expeditiously as possible. The trial court must give necessary out
of turn priority.
26. After the decisions on mercy petitions, if there is an inordinate and
unexplained delay in actual execution for no fault on the part of the
convict, there is no reason why the principles set out in paragraph 23
should not apply. The principles will also apply to a case where there
is a long and unexplained delay on the part of the Sessions Court
in issuing the warrant of execution in accordance with Sections 413
and 414 of CrPC. After the order of rejection of mercy petitions is
communicated to a convict, the sword of Damocles cannot be kept
hanging on him for inordinately long time. This can be very agonising,
both mentally and physically. Such inordinate and unreasonable delay
will violate his rights under Article 21 of the Constitution. In such a
case, this Court will be justified in commuting the death penalty into
life imprisonment.
[2024] 12 S.C.R. 599
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
27. A convict can invoke even the jurisdiction of a High Court under
Article 226 of the Constitution if there is an inordinate and unexplained
delay in the execution of the death sentence post-confirmation of the
sentence. The High Court will apply the same principles summarised
in paragraphs 22 to 25.
28. No hard and fast rule can be laid down as regards the length of delay,
which can be said to be inordinate. It all depends on the facts of the
case. In a given case, a delay of two years may not be fatal. In another
case, a delay of six months can be a ground to commute sentence.
The terms “undue” or “inordinate” cannot be interpreted by applying
the rules of mathematics. The Courts, in such cases, deal with human
issues and the effect of the delay on a particular convict. What delay
is inordinate must depend on the facts of the case. For example, if a
convict is more than seventy years old and is suffering from multiple
ailments, an unexplained delay of even six months in deciding a mercy
petition can amount to a violation of Article 21. Ultimately, the Courts
will have to determine the effect of delay in the light of the principles
laid down as aforesaid, considering the facts of the case before it.
APPLICATION OF THE PRINCIPLES TO THE FACTS OF THE CASE
29. In this case, there is a delay in the following three stages:
i. On 10th July 2015, the convicts filed mercy petitions addressed
to the Hon’ble Governor of the State of Maharashtra, which were
rejected on 29th March 2016. This is the first part of the delay;
ii. On 11th June 2016, mercy petitions were addressed by the
convicts to the Hon’ble President of India, which were rejected
on 26th May 2017. This is the second part of the delay, and
iii. The third part of the delay started on 19th June 2017, when the
Superintendent of Prison informed the learned Sessions Judge,
Pune, about the rejection of mercy petitions by the Hon’ble
President of India. Ultimately, it was only on 10th April 2019 that
the learned Sessions Court, Pune, issued the warrants for the
execution of the death sentence.
Thus, from 10th July 2015 till 10th April 2019, time was consumed in
deciding the mercy petitions filed before the Hon’ble Governor of the
State and the Hon’ble President of India, and in issuing warrants for
executing the death sentence.
600 [2024] 12 S.C.R.
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DELAY IN PROCESSING AND DISPOSAL OF MERCY PETITIONS
30. We are dealing with the first part of the delay in deciding the mercy
petitions made to the Hon’ble Governor which was as follows:
Date Particulars Time taken
10th July 2015 Convicts filed mercy petitions -
addressed to the Hon’ble Governor
of the State of Maharashtra
16th July 2015 Prison authorities forwarded the 6 days
mercy petitions along with the
letter
20th July 2015 Home Department of the State 4 days
Government received the mercy
petitions forwarded by the prison
authorities
17th August Home Department of the State 28 days
2015 Government addressed a letter
to the Superintendent of Prison
seeking confirmation regarding
the decision of the convicts to
prefer review petitions
22nd August Superintendent of Prison recorded 5 days
2015 the statements of the convicts
stating that they had not preferred
review petitions.
24th August Fact of convicts not having 7/9 days since
2015 and 26th preferred review petitions was receipt of letter
August 2015. communicated by the prison dated 17th August
authorities and the ADG (Prisons) 2015 and 2/4 days
since recording
convicts’ statement
25th January Note prepared by the Home 152 days
2016 Department of the State
Government for the benefit of
the Hon’ble Governor
29th March Mercy petitions rejected by the 64 days
2016 Hon’ble Governor.
[2024] 12 S.C.R. 601
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
From the above table, it appears that nothing was done 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, a perusal of the note prepared for the benefit of the
Hon’ble Governor shows that it consists of three and a half pages.
The recommendation is in three lines in the last paragraph. It is
interesting to note that while forwarding the mercy petitions along
with the letter dated 16th July 2015, the following documents were
sent to the Home Department:
i. Nominal roll of the convicts;
ii. Medical report of mental and physical health;
iii. A summary of crime;
iv. Warrant of conviction issued by the Sessions Court; and
v. A copy of the judgment of the High Court confirming the death
sentence and the order/judgment of this Court.
The note appears to be based only on these documents, which were
available to the Home Department in July 2015. A lot of time was
wasted on correspondence made by various officers. All this was
avoidable. Immediately upon receipt of the mercy petitions, all the
required information/documents ought to have been called for by the
Home Ministry. That was not done. Perhaps the officers in the Home
Ministry showed a lack of sensitivity. Ultimately, on 29th March 2016,
mercy petitions were rejected by the Hon’ble Governor. Thus, the
delay of 5 months between 16th July 2015 and 25th January 2016 is
unexplained and unjustified.
31. Now, we come to the second part of the delay which was as follows:
Date Particulars Time taken
11 April 2016
th
Convict no.1 intimated that he was -
desirous of filing a mercy petition before
the Hon’ble President of India.
13th April 2016 Letter sent by the ADG (Prisons) to the 2 days
Superintendent of Prison, requesting to
forward updated nominal roll, report on
the mental and physical health of the
convicts and information about criminal
antecedents.
602 [2024] 12 S.C.R.
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28th April 2016 Home Department of the State Government -
informed the Under Secretary (GOI) that
the Hon’ble Governor had rejected mercy
petitions. Mercy petitions addressed to the
Hon’ble President were forwarded with this
letter. Apart from the copies of the mercy
petitions, the judgments of the Sessions
Court, Pune, the High Court and this
Court, along with the communication of
rejection of mercy petitions by the Hon’ble
Governor, were forwarded to the Under
Secretary (GOI).
31st May 2016 Under Secretary (GOI) addressed a 33 days
letter to the Home Department of the
State Government requesting to provide
criminal history, economic condition and
information regarding the filing of review
petition by the convicts within two weeks.
11th June 2016 Fresh set of mercy petitions were filed by -
the relatives of both convicts
15th June 2016 Under Secretary (GOI) reminded the Home -
Department of the State Government to
forward the documents mentioned in the
letter dated 31st May 2016.
22nd June 2016 Letter dated 31st May 2016 was received 22 days
by the Home Department of the State
Government.
22nd July 2016 Under Secretary (GOI) reminded the Home -
Department of the State Government to
forward the documents mentioned in the
letter dated 31st May 2016.
9th August 2016 Home Department of the State 48 days
Government wrote to the ADG (Prisons) since receipt
and Superintendent of Prison to supply of letter
documents as mentioned in the letter dated 31st
dated 31st May 2016. May 2016
5th September Superintendent of Prison acted upon 27 days
2016 letter dated 9th August 2016 by addressing
a letter to the Senior Inspector of the
concerned Police Station to forward details
regarding the antecedents and economic
condition of the family of the convicts.
[2024] 12 S.C.R. 603
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
6th September Under Secretary (GOI) reminded the Home -
2016 Department of the State Government to
forward the documents mentioned in the
letter dated 31st May 2016.
9th September Information was sent by the Superintendent 31 days
2016 of Prison to the Home Department of the since letter
State Government recording the fact dated 9th
that no review petitions were filed by the August 2016
convicts.
12th September The concerned Police Station forwarded 7 days
2016 a report regarding the criminal history
and economic condition of the convicts
to the Home Department of the State
Government.
30th September Home Department of the State Government 14 days
2016 communicated the information mentioned
above to the Under Secretary (GOI).
26th December Under Secretary (GOI) again requested 87 days
2016 confirmation about the review petitions
filed by the convicts, despite the State
Government having already provided this
information to the Under Secretary (GOI)
vide letter dated 30th September 2016.
16th January In view of the letter dated 26th December -
2017 2016, correspondences were again
started by the Home Department of the
State Government.
23rd January ADG (Prisons) communicated to the Home -
2017 Department of the State Government that
the review petitions were not filed.
7th February Superintendent of Prison communicated -
2017 to the Home Department of the State
Government that the review petitions
were not filed.
22nd February Home Department of the State Government 58 days
2017 confirmed to the Under Secretary (GOI)
that a review petition had not been filed.
26th May 2017 Ultimately, the Hon’ble President rejected 93 days
the mercy petitions.
A period of about three months taken by the Hon’ble President cannot
amount to undue delay. However, the delay from 28th April 2016, when
604 [2024] 12 S.C.R.
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the mercy petitions were forwarded to the Under Secretary (GOI) till
22nd February 2017, is entirely unexplained and unwarranted.
DELAY IN ISSUE OF WARRANT OF EXECUTION
32. We have already held that the undue delay in issuing a warrant of
execution can violate the rights of convicts under Article 21 of the
Constitution of India. Accordingly, the third part of the delay was as
follows:
Date Particulars Time taken
6 June 2017
th
Information was submitted by the 11 days since
Under Secretary, Ministry of Home rejection
Affairs, Government of India, to by Hon’ble
the Principal Secretary, Home President
Department, Government of
Maharashtra regarding rejection of
mercy petition
19th June 2017 Superintendent of Prison addressed 24 days since
separate letters to the family rejection
members of the convicts and by Hon’ble
learned Sessions Judge, Pune, President
informing them about the rejection
of the mercy petitions.
10th August 2017 Superintendent of Prison addressed -
a letter to the learned Sessions
Judge, Pune, requesting him to
issue a warrant for the execution
of the death sentence.
24th August 2017 Superintendent of Prison addressed -
a letter to the Registrar of this
Court requesting him to provide
information about any review
petition filed by the convicts.
9th September Registrar of this Court communicated 16 days
2017 to the Superintendent of Prison that
no review petitions were filed by
the convicts.
5th October 2017 Letter was addressed by the -
Superintendent of Prison to the
learned Sessions Judge, Pune,
requesting him to issue a warrant
of execution of the death sentence.
[2024] 12 S.C.R. 605
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
18th July 2018 Letter was addressed by the -
Superintendent of Prison to the
learned Sessions Judge, Pune,
requesting him to issue a warrant
of execution of the death sentence.
29th August 2018 Letter was addressed by the -
Superintendent of Prison to the
learned Sessions Judge, Pune,
requesting him to issue a warrant
of execution of the death sentence.
17th October Letter was addressed by the ADG -
2018, (Prisons) to the learned Sessions
Judge, Pune, requesting him to fix
a date for the execution of the death
sentence.
30th October 2018 As no action was taken by the -
Sessions Court, Pune, the Home
Department of the Government of
Maharashtra addressed a letter to
the Law and Judiciary Department
of the State Government 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.
2nd November Learned Sessions Judge, Pune, 502 days since
2018 addressed a letter to the Home letter dated
Department, Government of 19th June 2017
Maharashtra, seeking information
about the status of mercy petitions
12th November Law and Judiciary Department of 13 days
2018 the State Government informed
the Home Department of the State
Government that the exclusive
jurisdiction to issue warrants for
executing the death sentence was
of the learned Sessions Court
7th December ADG (Prisons) addressed letter to -
2018 the learned Sessions Court, Pune,
requesting him to fix a date for
executing the death sentence.
606 [2024] 12 S.C.R.
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27th December Superintendent of Prison addressed -
2018 letter to the learned Sessions Court,
Pune, requesting him to fix a date
for executing the death sentence.
31st January 2019 Home Department of the State 90 days
Government wrote a letter to the ADG
(Prisons) and the Superintendent of
Prison informing them about the
letter dated 2 nd November 2018
sent by the Learned Sessions
Judge, Pune
10th April 2019 Warrants for the execution of the 661 days since
death sentence were issued by the letter dated
Sessions Court, Pune. 19th June 2017
33. When the mercy petitions were pending, the Sessions Court could
not have issued a warrant to execute the death sentence. The most
straightforward procedure that the State Government could have
followed was to apply through the Public Prosecutor before the
learned 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. This delay from June 2017 to April 2019 was entirely
avoidable. This also is a delay post-confirmation of the death
sentence by this Court, which must be taken into consideration.
THE EFFECT OF THE DELAY
34. Thus, on facts, it can be said that there was undue and unexplained
delay at all three stages. The undue delays have occurred in placing
the mercy petitions before the Hon’ble Governor for the State and
the Hon’ble President of India. In the facts of the case, the inordinate
delay is on the part of the executive and not on the part of the
Constitutional functionaries.
35. The time consumed from the filing of mercy petitions before the
Hon’ble Governor to the date of issue of the execution of warrants by
the learned Sessions Court, Pune, is of three years, eleven months
[2024] 12 S.C.R. 607
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
and fourteen days. Even if we exclude the time actually taken by
the constitutional functionaries to decide mercy petitions, still the
delay will be of more than three years. The Court must consider
the cumulative effect of the delays at three stages after taking into
consideration the facts of the case. The reason is that in a given case,
there may not be an inordinate delay in one stage, but there may be
an inordinate delay in two other stages. The only conclusion in this
case is that the delay is unexplained and inordinate. Therefore, it is
impossible to find fault with the view taken by the High Court that
there was a violation of the rights of the convicts guaranteed under
Article 21 of the Constitution of India. Therefore, the commutation
of the death sentence to a fixed term sentence of thirty-five years
by the High Court cannot be faulted.
DUTY OF THE EXECUTIVE AND THE SESSIONS COURT
36. The Executive must promptly deal with the mercy petitions filed by
the convicts of the death sentence. In this case, the approach of the
Executive, and especially the State Government, has been casual and
negligent. Even the Sessions Court ought to have been pro-active.
When the delay from the date of filing of mercy petitions till the date
of issue of a warrant of execution is inordinate and unexplained, the
right of the convicts guaranteed by Article 21 of the Constitution of
India is violated. This right must be upheld, and it is the duty of the
Constitutional Courts to do so.
37. We must also consider the rights of the victims of the offences to
justice. Their right is to ensure that there is a prompt and proper
investigation. However, we hasten to add that there is no right
vested in the victim to insist on imposing capital punishment. The
law must be enforced with all the vigour, and the Executive Branch
of the State Government cannot show laxity in implementing
the orders of conviction passed by the competent Courts.
The very purpose of passing orders of sentence cannot be allowed
to be defeated. We cannot ignore the effect of the laxity shown by
law enforcement agencies on society. Therefore, we propose to
issue directions to ensure that there are no administrative delays in
dealing with the mercy petitions or issuing warrants for execution
of death sentence.
608 [2024] 12 S.C.R.
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DIRECTIONS TO CURB THE DELAYS
38. The first direction which we propose to issue is regarding the
nature of documents which ought to be immediately forwarded with
the mercy petitions. The second direction we propose is that the
State Government must set up a dedicated cell in either the Home
Department or Prison Department to ensure prompt and expeditious
processing of the mercy petitions. We also propose to direct the State
Government to issue executive orders to ensure prompt processing
of the mercy petitions.
39. Now, we come to the role of the Sessions Court. There cannot be
any dispute that unless a warrant is issued for the execution of the
death sentence under Section 413 or Section 414 of the CrPC, the
death sentence cannot be executed. On this aspect, we must refer to
a decision of this Court in the case of Shabnam v. Union of India9
and, in particular, paragraph 21. This Court held that the procedure
laid down by the High Court of Allahabad in its decision in the case
of People’s Union for Democratic Rights (PUDR) v. Union of
India & Ors.10 is in consonance with Article 21 of the Constitution of
India. Therefore, while executing the death sentence, it is mandatory
to follow the procedure laid down by the Allahabad High Court in
the decision mentioned above. The decision of the Allahabad High
Court can be summarised as follows:
i. The principles of natural justice must be drawn into the provisions
of Sections 413 and 414 of the CrPC, and sufficient notice ought
to be given to the convict before issuance of a warrant for the
execution of the death sentence by the Sessions Court, which
would enable the convict to consult an advocate and represent
him in the proceedings;
ii. The warrant for the execution of the death sentence must
specify the exact date and time of the execution and not
a range of dates within which the death sentence will be
executed, which places the convict in a state of uncertainty.
A reasonable time must be provided between the date of the
9 [2015] 8 SCR 289 : (2015) 6 SCC 702
10 2015 SCC OnLine All 143
[2024] 12 S.C.R. 609
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
order of issue of the execution warrant and the date fixed
for actual execution so that the convict gets an opportunity
to adopt a remedy against the warrant and to have a final
meeting with the family members;
iii. A copy of the warrant must be immediately supplied to the
convict, and
iv. After issuing a notice and before issuing a warrant of execution,
if the convict is not represented by an advocate, legal aid should
be provided to him.
As held by this Court, the procedure described above is in conformity
with Article 21 of the Constitution of India.
40. To avoid the situation that arose in this case, we need to elaborate
further upon the directions already issued by the Allahabad High Court.
When a death sentence is confirmed or the High Court imposes a
death sentence, a writ/order of the High Court is always sent to the
Sessions Court. When the Sessions Court receives intimation of
such order, the disposed of sessions case must be taken on board
by the Sessions Court, and notice should be issued to the Public
Prosecutor/investigating agency to ascertain whether the convicts
have challenged the judgment of the High Court. Depending upon
the rules of procedure of the concerned court, the proceeding can be
numbered as a Misc. Application in the disposed of case. If the Public
Prosecutor informs the Sessions Court that the challenge before this
Court is pending, the Sessions Court should pass no further order.
As soon as the intimation of confirmation of the death sentence by
this Court is received, the disposed of case should be taken on the
cause list and notice should be issued to the convicts through the
Jail Superintendent calling upon the convicts to disclose whether they
intend to file review petition and/or mercy petition. It is the duty of the
State/investigating agency to inform the Sessions Court about the
outcome of the review and mercy petitions by filing a proper application
in the disposed of case. The reason is that it is the responsibility of
the State/investigating agency to ensure that the death penalty is
executed. To ensure that there is no delay, the Sessions Court, after
confirmation of the death sentence by the Court, shall periodically
fix dates in the disposed of case so that an up-to-date report can
be submitted on behalf of the State Government/investigating
610 [2024] 12 S.C.R.
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agency through the Public Prosecutor. It will be the duty of the State
Government/investigating agency to make an application and inform
the Sessions Court about the rejection of the mercy petitions made
to the Constitutional authorities so that the Sessions Court can take
further steps. Such information shall be furnished by making a regular
application on the judicial side and not by sending a letter. After such
an application is filed before the Court, notice should be issued to
the convicts informing them that the Court is proposing to issue a
warrant for executing the death sentence. After hearing the convict
and/or his advocate or legal aid advocate provided to the convict,
the Court should pass an order directing issuance of the warrant of
execution, a copy of which shall be immediately forwarded to the
convict. As directed earlier by this Court, the warrant must contain
a precise date and time of execution. The time should be fixed in
such a manner that the convict gets at least a period of fifteen clear
days from the date of receipt of the warrant of execution of the death
sentence and the actual date of execution to enable him to take
recourse to legal remedies or to allow him to meet his relatives finally.
41. As we are confirming the impugned judgment on the ground of
inordinate and unexplained delay in the execution of the death
sentence, it is not necessary to decide the controversy whether the
convicts were kept in solitary confinement even before the rejection
of the mercy petitions.
OUR CONCLUSIONS
42. We hold that:-
(i) Undue, unexplained and inordinate delay in execution of the
sentence of death will entitle the convict to approach this Court
under Article 32. However, this Court will only examine the
nature of the delay caused and circumstances that ensued
after the judicial process finally confirmed the sentence 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
commuted to imprisonment for life;
[2024] 12 S.C.R. 611
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
(ii) Keeping a convict in suspense while considering his mercy
petitions by the Governor or the President for an inordinately
long time will certainly cause agony to him/her. It creates
adverse physical conditions and psychological stress on the
convict. Therefore, this Court, while exercising its jurisdiction
under Article 32 read with Article 21 of the Constitution, must
consider the effect of inordinate delay in disposal of the clemency
petition by the highest Constitutional authorities and cannot
excuse the agonising delay caused only on the basis of the
gravity of the crime;
(iii) It is well established that Article 21 of the Constitution does not
end with the pronouncement of the sentence but extends to the
stage of execution of that sentence. An inordinate delay in the
execution of the sentence of death has a dehumanising effect
on the accused. An inordinate and unexplained delay caused
by circumstances beyond the prisoners’ control mandates the
commutation of a death sentence;
(iv) The above principles will also apply to a case where there is a
long and unexplained delay on the part of the Sessions Court in
issuing the warrant of execution in accordance with Section 413
or Section 414 of CrPC. After the order of rejection of mercy
petitions is communicated to a convict, the sword of Damocles
cannot be kept hanging on him for an inordinately long time.
This can be very agonising, both mentally and physically.
Such inordinate delay will violate his rights under Article 21 of
the Constitution. In such a case, this Court will be justified in
commuting the death penalty into life imprisonment;
(v) No hard and fast rule can be laid down as regards the length of
delay, which can be said to be inordinate. It all depends on the
facts of the case. The terms “undue” or “inordinate” cannot be
interpreted by applying the rules of mathematics. The Courts, in
such cases, deal with human issues and the effect of the delay
on individual convicts. What delay is inordinate must depend
on the facts of the case;
(vi) A convict can invoke even the jurisdiction of a High Court under
Article 226 of the Constitution in the event there is an inordinate
and unexplained delay in the execution of the death sentence,
612 [2024] 12 S.C.R.
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post-confirmation of the sentence. The same principles will be
applied by the High Court, which are summarised above; and,
(vii) It is the duty of the Executive to promptly process the mercy
petitions invoking Articles 72 or 161 of the Constitution and
forward the petitions along with requisite documents to the
concerned constitutional functionary without undue delay.
OPERATIVE DIRECTIONS
43. Hence, we pass the following order:
i. The impugned judgment and order, by which the death sentence
of the convicts has been commuted to a fixed sentence of
thirty-five years of imprisonment, is upheld, and Criminal Appeals
are dismissed;
ii. As regards the mercy petitions, we issue the following directions
to all the State Governments and Union Territories:
A. 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. The dedicated cell 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;
B. 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;
C. All the prisons shall be informed about the designation of
the officer-in-charge of the dedicated cell and his address
and email ID;
D. 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
[2024] 12 S.C.R. 613
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
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 concerned police station shall be
under an obligation to furnish the said information to the
jail authorities immediately;
E. On receipt of the said information, without any delay, 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 of the CrPC with its
English translation;
614 [2024] 12 S.C.R.
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h. Copies of the judgments of the Sessions Court (with
its English translation, if it is in vernacular language),
High Court and this Court;
F. As soon as mercy petitions are received by the dedicated
cell, copies of the mercy petitions shall be forwarded to
the Secretariats of the Hon’ble Governor of the State or
the Hon’ble President of India, as the case may be so that
the Secretariat can initiate action at their end;
G. All correspondence, as far as possible, be made by email,
unless confidentiality is involved; and,
H. The State Government shall issue office orders/executive
orders containing guidelines for dealing with the mercy
petitions in terms of this judgment.
iii. The Registry of this Court shall forward copies of this judgment
to the Secretaries of the Home Department of the respective
State Governments/Union Territories for its implementation. The
Secretaries shall report compliance within three months from
today to the Registrar (Judicial) of this Court;
iv. The Sessions Court shall endeavour to follow the following
guidelines:
a. As soon as the order of the High Court confirming or
imposing the death sentence is received by the Sessions
Court, a note thereof must be taken, and the disposed of
case shall be listed on the cause list. The proceedings
can be numbered as Misc. Application depending upon
the applicable Rules of the procedure. The Sessions
Court shall immediately issue 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;
b. 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, again, the disposed
[2024] 12 S.C.R. 615
State of Maharashtra & Ors. v. Pradeep Yashwant Kokade & Anr.
of 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.
This will enable the Sessions Court to issue a warrant
for the execution of the death sentence as soon as all
the proceedings culminate;
c. However, before issuing the warrant, notice should be
issued to the convict, and the directions issued by the
Allahabad High Court in the case of People’s Union for
Democratic Rights (PUDR),10 and as elaborated above,
shall be implemented by the Sessions Court;
d. The Sessions Courts shall consider what is held in
Paragraph 25 above;
e. 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 by the Prison authorities for
challenging the warrant. There shall be a gap of fifteen
clear days between the date of the receipt of the order
as well as warrant by the convict and the actual date of
the execution; and,
f. It shall also be the responsibility of the concerned 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.
v. A copy of this judgment shall be forwarded to both the convicts
through the Jail Superintendent of the concerned jail.
616 [2024] 12 S.C.R.
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vi. A copy of this judgment shall be forwarded to the Registrar
Generals of all the High Courts, who in turn shall forward the
copies thereof to all the Sessions Courts.
vii. These disposed of appeals shall be listed on 17th March 2025
for considering compliance.
Result of the case: Appeals disposed of.
To be listed on 17.03.2025 for considering
compliance.
†
Headnotes prepared by: Divya Pandey
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