# State of Maharashtra & Ors v. Pradeep Yashwant Kokade & Anr

- **Citation:** 2024 INSC 947
- **Court:** Supreme Court of India
- **Decided:** 2024-12-09
- **Case number:** Criminal Appeal No. 2831 of 2023
- **Bench:** Abhay S. Oka, Ahsanuddin Amanullah, Augustine George Masih
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-ors-v-pradeep-yashwant-kokade-anr-37349
- **Pages:** 43

## Headnote

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 s

## Text

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[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
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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
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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
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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 nonapplication 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
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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 respondentsconvicts 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.
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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
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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.