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                          In a major and significant development, the Supreme Court just recently on April 24, 2019 in a latest, landmark and laudable judgment titled Union of India and Ors. Vs. Dharam Pal in Criminal Appeal No. 804 of 2019 [@Special Leave Petition (Crl.) No. 498 of 2016] has clearly, categorically and convincingly observed that solitary confinement of a person sentenced to death prior to the rejection of mercy petition is palpably illegal. There can be no denying it! But simultaneously it has also to be borne in mind that the Bench of Apex Court comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice S. Abdul Nazeer in this noteworthy and commendable judgment have also upheld the Punjab and Haryana High Court judgment that had commuted the death sentence awarded to a murder accused whose mercy petition was rejected by the President of India in 2013.

First and foremost, it is pointed in para 2 of the judgment that, “The instant criminal appeal is directed by the State against the decision of the High Court of Judicature of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 7436 of 2013 (O&M) whereby the High Court allowed the Writ Petition filed by the Respondent Dharam Pal and commuted the death sentence awarded to him to life imprisonment. The Respondent was tried and convicted under Section 302/34 of the Indian Penal Code (hereinafter, “IPC”) for the commission of murder of five persons belonging to the same family.”

To recapitulate, it is then pointed out in para 3 that, “The brief facts leading to the impugned Writ Petition are that, the Respondent Dharam Pal, in an earlier incident was convicted under Section 376/452 of the IPC vide judgment dated 04.07.1992 passed by the Additional Sessions Judge, Sonepat, in Sessions Case 11 of 1991 and sentenced to undergo rigorous imprisonment for ten years. The Respondent was released on bail by the High Court while admitting his appeal, however on the intervening night of 09.06.1993 and 10.06.1993 at around 03:30 a.m., the Respondent accompanied by his brother Nirmal Singh committed the murder of five persons who were the family members of the prosecutrix for whose rape the Respondent was convicted.”

Furthermore, para 4 then points out that, “The Respondent and his brother were tried and convicted under Section 302/34 of the IPC by the Sessions Court, Sonepat in Sessions Case No. 65 of 1993. Vide its judgment dated 05.05.1997, the said Court sentenced both the accused to be hanged until death. Death Reference was heard and the conviction and sentence was affirmed by the High Court by its judgment dated 29.09.1998. The Respondent and his brother, further filed an appeal before this Court, which came to be partly allowed, commuting the death sentence of the Respondent’s brother Nirmal Singh into life imprisonment, but upheld the death sentence of the Respondent taking into account his conviction in the rape case, and commission of murder of five family members of the prosecutrix of that case while on bail. Thus, this Court vide judgment and order dated 18.03.1999 confirmed his death sentence and directed that he be hanged until death.”

Moving on, it is then observed in para 5 that, “The Respondent filed a mercy petition before the Governor of the State of Haryana under Article 161 of the Constitution of India, which came to be rejected after which, on 02.11.1999, the Respondent sought pardon from the President of India in exercise of powers under Article 72 of the Constitution. However, on 25.03.2013, the President rejected his application, after an inordinate and unexplained delay of 13 years and 5 months, and a date was fixed for his execution. It is pertinent to mention that in the meantime, the Respondent had filed an appeal against his conviction in Sessions Case No. 11 of 1991 under Section 376/452 of the IPC before the High Court, which came to be allowed acquitting him for the said offence vide order dated 19.11.2003.”

What’s more, para 6 then enunciates that, “It is under these circumstances that the Respondent filed the impugned Writ Petition before the High Court praying for his death sentence to be commuted to life imprisonment in light of the changes in circumstances viz. his acquittal in the rape case, which was an important deciding factor by this Court in negating his appeal. He also challenged it on grounds of delay in deciding his mercy petition by the President, among other grounds.”

To be sure, it is then unfolded in para 7 that, “The High Court while allowing his Writ Petition held that it is a case of violation of the fundamental rights of the Respondent, which makes him eligible for getting his death sentence commuted to life imprisonment, and orders were passed accordingly. The State has filed this appeal against the decision of the High Court.”

Needless to say, para 8 then discloses that, “In the Statement of Objections filed by the State of Haryana before the High Court, it is admitted that the Respondent has remained in solitary confinement for a period of 18 years, and has undergone imprisonment for a total period of more than 25 years till date. It is also an admitted position that the order of acquittal of the Respondent in the Sessions Case No. 11 of 1991 was not put to the notice of the President while deciding the mercy petition, the failure of which is argued to be pivotal in deciding the mercy petition causing prejudice against the Respondent.”

While presenting the version of the appellant and the respondent, it is then brought out in para 9 that, “The learned counsel for the appellant argued that the impugned judgment is erroneous as the delay in disposing the mercy petition pending before the President was justified. He tried to explain the various stages and reasons for the delay in deciding the petition. He further brought to our attention the nature of the offence committed by the Respondent, i.e. the gruesome cold-blooded murder of five persons. He finally prayed the impugned judgment be set aside and orders for executing the Respondent be passed.

Per contra, the counsel for the Respondent supported the judgment of the High Court inasmuch as there is a real and apparent violation of the Respondent’s fundamental rights due to the inordinate delay in deciding the mercy petition, 18 years of solitary confinement before the rejection of the mercy petition and that the acquittal in the rape case was not put on record before the President at the time of deciding the mercy petition causing grave prejudice and injustice against the Respondent. He prayed that the appeal may be dismissed, and the Respondent be released from prison upon remission of sentence as he has already spent over 25 years in prison.”

After hearing both the parties, the Bench then observed in para 10 that, “We have heard the parties at length and have perused the case records. It is our considered opinion that the High Court is entirely justified in allowing the Writ Petition filed by the Respondents. We find no error or illegalities with the order passed, and concur with its findings.”

For the sake of brevity, only the key points of para 11 deserves mention. It very clearly and convincingly states that, “As mentioned supra, it is admitted that the Respondent has undergone incarceration for a total period of over 25 years, out of which 18 years were in solitary confinement. Throughout the period of deciding his mercy petition by the President, he was kept in solitary confinement in various jails.”

More importantly, it is then further very rightly pointed out in this same para 11 that, “Solitary confinement prior to the disposal of the mercy petition is per se illegal and amounts to separate and additional punishment not authorized by law.”

It would be worthwhile to also mention here that in this same para 11, it is then also rightly pointed out while referring to landmark case titled Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494, (Constitution Bench)] that, “The sum and substance of the judgment in Sunil Batra, (supra), is that even if the Sessions Court has sentenced the convict to death, subject to the confirmation of the High Court, or even if the appeal is filed before the High Court and the Supreme Court against the imposition of death punishment and the same is pending, the convict cannot be said to be “under sentence of death” till the mercy petition filed before the Governor or the President is rejected.”

Not stopping here, it is then further held in this same para 11 that, “This Court in Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1, (3 Judge Bench)] with approval of Sunil Batra (supra) has observed thus:

“90. It was, therefore, held in Sunil Batra case [ Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri.) 155] that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners “under sentence of death”. The crucial holding under Section 30(2) is that a person is not “under sentence of death”, even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not “under sentence of death” even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be “under sentence of death” means “to be under a finally executable death sentence”.

91. Even in Triveniben [Triveniben v. State of Gujarat, (1989) 1 SCC 678 : 1989 SCC (Cri) 248], this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155]”.”

To say the least, it is then held in para 12 that, “Thus, solitary confinement prior to the rejection of mercy petition, which has taken place in spite of various decisions of this Court to the contrary, is unfortunate and palpably illegal. In the present case, the Respondent underwent such a long period of solitary confinement that too, prior to his mercy petition being rejected, thereby making it a formidable case for commuting his death sentence into life imprisonment, as rightly held by the High Court.”

It cannot be lost on us that it is rightly elaborated upon in para 14 that, “In our considered opinion, the High Court examined the inordinate delay in disposing the mercy petition in the right perspective to hold it illegal, and thereafter commuted the sentence to life imprisonment in light of the aforementioned principles of law laid down in Shatrughan Chauhan (supra). These aspects, coupled with the fact that the authorities did not place the records regarding the acquittal of the Respondent in the rape case before the President for consideration of the mercy petition has caused grave injustice and prejudice against the Respondent. On receipt of a mercy petition, the Department concerned has to call for all the records and materials connected with the conviction. When the matter is placed before the President, it is incumbent on the part of the concerned authority to place all the materials such as judgments of the courts, as well as any other relevant material connected with the conviction. In the present case, this Court while upholding the death sentence of the Respondent and commuting the sentence of his brother to life imprisonment had placed reliance on the fact that the Respondent was convicted in the rape case, and the persons who he had killed were the family members of the prosecutrix of the rape case. The fact that he was subsequently acquitted for that case has great bearing on the quantum on sentence that ought to be awarded to the Respondent and the same should have been brought to the notice of the President while, deciding his mercy petition. Failure to do so has caused irreparable prejudice against the Respondent.”

Finally and perhaps most importantly, it is then held in para 15 that, “Therefore, considering the facts and circumstances of this case, it is our considered opinion that the High Court has not erred in setting aside the sentence of death of the Respondent and commuting the same into life imprisonment. Considering the aforementioned reasons discussed by us such as the unconscionable delay of more than 13 years in deciding the mercy petition, the failure to produce the relevant documents regarding the Respondent before the President for deciding the mercy petition and that the Respondent has undergone 18 years of illegal solitary confinement, we find no reason to interfere with the decision of the High Court. However, considering the fact that the Respondent had violated the conditions of bail imposed on him by the High Court in criminal appeal, inasmuch as he had committed the murder of five persons while on bail, cannot be overlooked while quantifying the actual sentence. In our considered opinion, having regard to the totality of facts and circumstances, and for the reasons mentioned supra, it would be appropriate to direct the release of the Respondent after the completion of 35 years of actual imprisonment including the period already undergone by him.”

In closing, it may well be said that the Apex Court has by this landmark ruling has sought to send an unmistakable and loud message that, “Solitary confinement of death convict prior to rejection of mercy petition is palpably illegal.” It cannot be justified on any ground. All courts must always bear this in mind while deciding on such cases!

In this significant ruling, we saw how Dharam Pal remained in solitary confinement for a period of 18 years in gross violation of the rules and how he also underwent imprisonment for a period of more than 25 years till date! This should never have happened but happened in case of Dharam Pal! This noteworthy judgment has also made it amply clear that prolonged delay in execution of death sentence violates the fundamental rights for which there can be no justification whatsoever!

No doubt, this commendable judgment also sends a very loud, clear and categorical message that all relevant material should always without fail be placed before the President while he considers mercy petition of convicts like the judgments of the courts as well as any other relevant material connected with the conviction! We saw how in this notable case the Bench itself observed that the fact that he was subsequently acquitted in the rape case (SC while confirming his death sentence had taken note of the conviction by Trial Court) has great bearing on the quantum on sentence that ought to be awarded to him and the same should have been brought to the notice of the President while deciding his mercy petition! There can be no denying or disputing it!

Sanjeev Sirohi


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