# ··~ v. BANI KANT DAS AND ORS

- **Citation:** [2010] 15 S.C.R. 957
- **Court:** Supreme Court of India
- **Decided:** 2010-11-19
- **Bench:** Aftab Alam, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-bani-kant-das-and-ors-26512
- **Pages:** 36

## Headnote

Constitution of India, 1950 -
Article~ 137 and 145 -
C
Review -
Scope of, by Supreme Court - Discussed -
Supreme Court Rules, 1966- Part VIII, Order XL- Code of
Civil Procedure, 1908 - Order XL VII, Rule 1.
Protection of Human Rights Act, 1993- ss. 2(d), 3 and
0
12 ... Jurisdiction of NHRC - Held: The NHRC has been
constituted to inquire into cases of violation of and for
protection and promotion of human rights - This power is an
extensive one - Such action includes inquiring into cases
where a party has been denied the protection of any law to
E
which he is entitled, whether by a private party, a public
institution, the government or even the Courts of law -
Definition of 'human rights' in the 1993 Act has been
designedly kept very broad to encompass within it all the
rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by Courts in India
F
. - On facts, from its order, it is revealed that NHRC was aware
that a review petition was filed against the judgment of this
Court, in addition to a mercy petition filed before the Governor
of Assam - NHRC did not commit any illegality by taking into
G
.consideration the article written by a Law Professor and then
making a mere recommendation to the Governor, for
considering the petitioner's plea for commutation - In doing
...
957
.
Hj
958 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A so, NHRC acted within its jurisdiction - Universal Declaration
of Human Rights (UDHR) adopted by the General Assembly
of the United Nations.
Constitution of India, 1950 - Articles 72 and 161 - Rights
8 of the petitioner to seek commutation - Scope of judicial
review in respect of exercise of power by the Governor under
Article 161, or by the President under Article 72 - Discussed
- Held: While exercising power of commuta·tion under Article
161, the Governor is to act on the aid and advice of the
C Council of Ministers - In view of the consistent view of two
Constitution Benches of the Supreme Court clearly stating
that unless the exercise of power by the Governor under
Article 161, is ex facie perverse or is based on a rule of thumb,
the Court should not interfere for mere non-disclosure of
0 reason, the finding to the contrary in the judgment under
review, is vifjafed by errors apparent on the face of the record
- In the instant case, the record shows that upon a detailed
consideration of the relevant facts, the Governor exercised his
power of commutation - The Governor considered, apart from
the recommendation of NHRC, other relevant materials also
E and, therefore, the order of the Governor is not vitiated in as
much as it is not solely based on the recommendations of
NHRC- Order of the Governor passed under Article 161 of
the Constitution restored and the order of commutation of
death sentence awarded to the petitioner to one · of life
F imprisonment stands.
The trial court held the petitioner guilty of murdering
four members of a family and that all the charges under
Sections 302, 323, 325 and 326 of IPC against him were
G proved beyond all reasonable doubt. The trial court also
opined that the crime fell within the category of 'rarest of
rare cases' and the petitioner deserved death penalty.
However, the defence raised the plea that at the time of
commission of the crime, the petitioner was below 16
H years of age. To determine the actual age of the petitioner,
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
959
BANI KANT DAS
Dr.'S', an Associate Professor of Forensic Medicine of A
Guwahati Medical College, with a team of doctors,
examined him. The trial Court, after considering the
medical evidence about the ·age of the petitioner along
with the ~~idence of the father of the petitioner, came to
the conclusion that the accused could not be below
8
sixteen years of age at the time of alleged occurrence to
· attract the provisions of Juvenile Ju~tice Act, 1986.
On appeal by the petitioner, the High Cou

## Text

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. .
[2010] 15 (ADDL.) S.C.R. 957REMDEO CHAUHAN @ RAJNATH CHAUHAN
A
··~
v.
BANI KANT DAS AND ORS.
Review Petition (C) No. 1378 of 2009
IN
Writ Petition (C) No. 457 of 2005
8
NOVEMBER 19, 2010
[AFTAB ALAM AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950 -
Article~ 137 and 145 -
C
Review -
Scope of, by Supreme Court - Discussed -
Supreme Court Rules, 1966- Part VIII, Order XL- Code of
Civil Procedure, 1908 - Order XL VII, Rule 1.
Protection of Human Rights Act, 1993- ss. 2(d), 3 and
0
12 ... Jurisdiction of NHRC - Held: The NHRC has been
constituted to inquire into cases of violation of and for
protection and promotion of human rights - This power is an
extensive one - Such action includes inquiring into cases
where a party has been denied the protection of any law to
E
which he is entitled, whether by a private party, a public
institution, the government or even the Courts of law -
Definition of 'human rights' in the 1993 Act has been
designedly kept very broad to encompass within it all the
rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by Courts in India
F
. - On facts, from its order, it is revealed that NHRC was aware
that a review petition was filed against the judgment of this
Court, in addition to a mercy petition filed before the Governor
of Assam - NHRC did not commit any illegality by taking into
G
.consideration the article written by a Law Professor and then
making a mere recommendation to the Governor, for
considering the petitioner's plea for commutation - In doing
...
957
.
Hj
958 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A so, NHRC acted within its jurisdiction - Universal Declaration
of Human Rights (UDHR) adopted by the General Assembly
of the United Nations.
Constitution of India, 1950 - Articles 72 and 161 - Rights
8 of the petitioner to seek commutation - Scope of judicial
review in respect of exercise of power by the Governor under
Article 161, or by the President under Article 72 - Discussed
- Held: While exercising power of commuta·tion under Article
161, the Governor is to act on the aid and advice of the
C Council of Ministers - In view of the consistent view of two
Constitution Benches of the Supreme Court clearly stating
that unless the exercise of power by the Governor under
Article 161, is ex facie perverse or is based on a rule of thumb,
the Court should not interfere for mere non-disclosure of
0 reason, the finding to the contrary in the judgment under
review, is vifjafed by errors apparent on the face of the record
- In the instant case, the record shows that upon a detailed
consideration of the relevant facts, the Governor exercised his
power of commutation - The Governor considered, apart from
the recommendation of NHRC, other relevant materials also
E and, therefore, the order of the Governor is not vitiated in as
much as it is not solely based on the recommendations of
NHRC- Order of the Governor passed under Article 161 of
the Constitution restored and the order of commutation of
death sentence awarded to the petitioner to one · of life
F imprisonment stands.
The trial court held the petitioner guilty of murdering
four members of a family and that all the charges under
Sections 302, 323, 325 and 326 of IPC against him were
G proved beyond all reasonable doubt. The trial court also
opined that the crime fell within the category of 'rarest of
rare cases' and the petitioner deserved death penalty.
However, the defence raised the plea that at the time of
commission of the crime, the petitioner was below 16
H years of age. To determine the actual age of the petitioner,
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
959
BANI KANT DAS
Dr.'S', an Associate Professor of Forensic Medicine of A
Guwahati Medical College, with a team of doctors,
examined him. The trial Court, after considering the
medical evidence about the ·age of the petitioner along
with the ~~idence of the father of the petitioner, came to
the conclusion that the accused could not be below
8
sixteen years of age at the time of alleged occurrence to
· attract the provisions of Juvenile Ju~tice Act, 1986.
On appeal by the petitioner, the High Court
, confirmed the conviction arid sentence of death against C
the petitioner. The appeal from the High Court judgment
was dismissed by a Bench of the Supreme Court and the
death sentence was upheld. A review petition was filed
against the abovementioned judgment of the Supreme
Court. A two Judge Bench of this Court held that the 0
question of conviction of the petitioner under section 302
!PC cannot be reopened. However, considering the fact
that the petitioner raised an important question that he
was a juvenile at the relevant time and there is a legal
prohibition against sentencing a juvenile, the first review
petition was referred to a three Judges Bench. Even
before the judgment on the review petition wa.~
pronounced, the petitioner filed a petition before the
~ Governor of Assam praying for mercy and for
commutation of hi$ death sentence to life imprisonment.
At about the same time when the petition for
commutation was pending, 'V' a Professor of the Faculty
F
of Law, University of Delhi, wrote a detailed article titled
" Has a child been executed in India", whereupon, NHRC
sent a notice to the Professor. In the meantime, the
judgment in the review petition, as aforesaid, was G
pronounced by this Court. Subsequently, the full
Commission of NHRC held its proceedings, in which the
judgment rendered in the review proceeding was
perused. NHRC, upon considering the materials on
H.
960 SUPREME COURT REPORTS [2010J 15 (ADDL.) S.C.R
A record, made recommendation for due consideration by
the Governor of Assam and/or the President of India, as
the case may be, !n the event of a mercy petition being
filed for the purpose. Thereafter, the Governor of Assam
commuted the death sentence of the petitioner to one of
B life imprisonment.
c
Challenging the aforesaid order of the Governor, of
Assam, the relatives of the deceased filed a writ petition
under Article 32 of the Constitution before the Supreme
Court which set aside the Governor's order of
commutation of death sentence to life imprisonment. In
passing that order, the Bench was of the opinion that the
NHRC proceedings were not in line with the procedure ·
established under the Protection of Human Rights Act,
1993 and therefore, NHRC's recommendations were void
D and further, that the order of the Governor of Assam
directing commutation did not indicate any reason and
was based on the recommendations of NHRC, which
itself were without jurisdiction. Thus, the writ petition was
allowed and the order of the Governor of Assam was
E quashed and this Court directed re-consideration afresh
of the petitioner's prayer for commutation of sentence.
This· instant review petition is directed against the said
order of this Court.
F
Allowing the review petition, the Court
HELD:1. In terms of Article 137 of the Constitution,
Rules have been framed under Article 145 of the
Constitution and Part VIII Order XL of the said Rules deals
with review. Order XL Rule 1 provides that in reviewing
G the judgment in a civil proceeding, the Court will follow
the grounds in Order XLVII Rule 1 of the CPC. However,
in case of review of criminal proceedings, no review is
permissible except on the ground of error apparent on ,
the face of the record. On a bare reading of the provision
H
REMDEO CHAUHAN @ RAJNATH· CHAUHAN v.
961
BANI KANT DAS
of Order XL Rule 1 of the Supreme Court Rules, one may
A
get the impression that the extent of review in criminal
cases is more restricted than in civil cases. But the said
impression has been given a quietus by this Court in its
Constitution Bench• judgment in Eswara case. [Paras 30,
31, 32 and 38] [976-C-G; 978-C]
8
M/s Northern India Caterers (India) Ltd. v. Lieutenant
Go1vernor of Delhi 1980 (2) SCC 167; Ram Chandra Singh
v. Savitri De vi and others 2004 (12) SCC 713; - ~uthendra
Raja alias Suthenthira Raja alias San than & Ors .. v. State C
through DSP/CBI, SIT, Chennai 1999 (9) SCC 323; P.N.
Eswara /yer and others v. Registrar, Supreme Court of India
{1980) 4 SCC 680; Girdhari La/ Gupta v. D.N. Mehta & Anr.
AIR 1971 SC 2162 - referred to.
2.1.The NHRC was constituted urider Section 3 of D
the Protection of Human Rights Act, 1993 for better
protection of human rights. The term 'human rig~ts' is
defined in Section 2(d) of the 1993 Act and the .functions
of NHRC have been set out in Section 12 of the 1993 Act.
The NHRC has been constituted to inquire into cases of E
vioiation of and for protection and promotion of human
rights. This power is an extensive one, which should not
be narrowly viewed. [Paras 44, 45 and 46] [979-E-G; 9818]
2.2. It must be jurisprudentially accepted that human
right is a broad concept and cannot be straitjacketed
within narrow confines. Any attempt to do so would
truncate its all-embracing scope and reach, and denude
F
it of its vigour and vitality. That is why, in seeking to
define human rights, the Legislature has used such a
G
wide expression in section 2(d) ·of the Act. It is also
significant to note that while defining the powers and
functions of NHRC under section 12 of the Act, the said
broad vision has been envisioned in the residuary clause
H
962
SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A in Section 12(j). Therefore, it is imperative that while
interpreting the powers and jurisdiction of NHRC, the
Court construes section 2(d) of the 1993 Act along with
its long title and also the Statement of Objects and
Reasons of the said Act. [Paras 46, 47 and 48] [981-8-E]
B
2.3. Section 120) of the 1993 Act confers on NHRC
"such other functions as it may consider necessary for
the promotion of human rights." It is not necessary· that
each an~ every case relating to the violation of human
C rights will fit squarely within the four corners of section
12 of the 1993 Act, for invoking the jurisdiction of the
NHRC. Human rights are not like edicts inscribed on a
rock. They are made and unmade on the crucible of
experience and through irreversible process of human
struggle for freedom. They admit of a certain degree of
D fluidity. Categories of human rights, being of infinite
variety, are never really closed. That is why the residuary
clause in sub-section (j) has been so widely worded to
take care of situations not covered by sub-sections (a)
to (i) of Section 12 of the 1993 Act. The jurisdiction of
E NHRC thus stands enlarged by section 12(j) of the 1993
Act, to take necessary action for the protection of human
rights. Such action would include inquiring into cases
where a party has been denied the protection of any law
to which he is entitled, whether by a private party, a
F public institution, the government or even the Courts of
law. If a person is entitled to benefit under a particular law,
and benefits under that law have been denied to him, it
will amount to a violation of his human rights. [Para 52]
[982-G-H; 983-A-C]
G
H
2.4. Human rights are the basic, inherent, immutable
and inalienable rights to which a person is entitled simply
by virtue of his being born a human. They are such rights
which are to be made available as a matter of right.
Constitution and Legislations of civilized country
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
963
BANI KANT DAS
recognise them since they are so quintessentially part of A
every human being. That is why every democratic
country committed to rule of Law put into force
mechanisms for their enforcement and protection.
Human rights are universal in. nature. The Universal
Declaration of Human Rights (UOHR) adopted by the
B
General Assembly of the United Nations on 10~h
December 1948 recognizes and requires the observance
of certain universal rights, articulated therein, to be
human rights, and these are acknowledged and accepted
as equal and inalienable and necessary for the inherent c
dignity and development of an individual. Consequently,
though the term 'human rights' itself has not been
defined in UOHR, the nature and content of human rights
can be understood from the rights enunciated therein.
Possibly considering the wide sweep of such basic 0
rights, the definition of 'human rights' in the 1993 Act has
been desi.gnedly kept very broad to encompass within it
all the rights relating to life, liberty, equality and dignity
of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable
by Courts in India. Thus, if a person has been guaranteed
certain rights either under the Constitution or under an
International Covenant or under a law, and he is denied
access to such a right, then it amounts to a clear violation
of his human right and NHRC has the jurisdiction to
intervene for protecting it. [Paras 53, 54 and 55] [983-GH; .. 984-A-C]
E
F
2.5. The contrary finding in the judgment under
review about the absence of jurisdiction of NHRC to
make some recommendations to the Governor is thus G
vitiated by errors apparent on the face of the record. Of
course NHRC cannot intervene in proceeding pending in
Court without its approval [Section 12(6)] as it is assymed
that Court will remedy any case of violation of human
rights. However, the assumption in the judgment under
H
964 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A review that there can be no violation of a person's
human right by a judgment of this Court is possibly not .
correct. This Court in exercise of its appellate jurisdiction
has to deal with many judgments of High Courts and
Tribunals in which the H!gh Courts or the Tribunals, on
B an erroneous perception of facts and law, have rendered
decisions in breach of human rights of the parties and
this Court corrects such errors in those judgments. The
instances of this Court's judgment violating the human
rights of f .e citizens may be extremely rare but it cannot
c be said that such a situation can never happen. [Paras
56, 57 and 58] [984-0-G]
2.6. But this Court hastens to add that NHRC cannot
function as a parallel seat of justice to rectify or correct
or comment upon orders passed by this Court or any
D other Courts of competent jurisdiction. For correcting an
E
, '
., a judicial proceeding, the aggrieved party has to
1 Jstablished gamut of the corrective
~ hinery of appeal, revision, review, curative petition
and so on. [Para 64] [985-H; 986-A-B]
2.7. In fact in this case the NHRC did not send any
recommendation as long as the first review proceedings
were pending in this court. The NHRC was keeping a
track of the proceeding in the Court. From its order, it is
F revealed that NHRC was aware that a review petition was
filed against the judgment of this Court in, in addition to
a mercy petition filed before the Governor of Assam. The
NHRC closely followed the proceedings of the review
petition. The NHRC made its recommendations only after
G the judgment in first r-eview was passed by this Court.
[Paras 65, 66] [986-C-D]
2.8. NHRC, a statutory body, in a given situation, may
have to act under the order or direction given by this
Court in exercise of its constitutional power of judicial
H review. However, in the facts of this case, NHRC ~as not
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
965
BAN I KANT DAS
qommitted any illegality by taking into consideration the A
article written by Professor 'V' and then making a mere
r,ecommendation to the Governor, for considering the
petitioner's plea for commutation. In doing so, NHRC
acted within its jurisdiction. [Paras 69, 70] [987 ·D·E]
.
.B
Additional District Magistrate Jabalpur v. Shtvakant \
'Shukla (1976) 2 SCC 521 and Paramjit Kaur ·v. State of
Punjab and ·Ors. (1999) 2 SCC 131 - referred to. ·
Liversidge v. Sir John Anderson (1942) AC 206 -
referred to.
C
3.1. In the judgment on Article 32 petition, it was
noted that the order of the Governor directing
commutation "does not indicate any reason". After
quoting that, the impugned judgment quashed the order 0
of commutation by the Governor and directed
rec~nsideration. On review of the aforesaid reasoning, it
is found that this finding In the judgment is vitiated by
errors apparent on the face of the record. [Paras 71, 72
and 73] [987 -G-H; 988-A-B]
3.2. In the instant case, the entire record relating to
exercise of power by the Governor was always available
E
for perusal of the Court. It is well·settled that while
exercising power of commutation under Article 161 of the
Constitution, the Governor is to act on the aid and advice
F
of the Council of Ministers. From a perusal of the
materials on the file, it appears that detailed consideration
has been made in the Chief Minister's Secretariat and
notes in detail have been put up by the Chief Minister's
Secretariat, wherein the entire factual aspect of the case G
has been considered. The different judgments given in
the first review petition were part of the note, and on a
c.onsideration of the detailed note, the Chief Minister
approved the note put up before him by the Secretary,
Judicial Department for commutation: Thereafter, the H
966
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
matter was placed before the Governor's Secretariat with
the entire record. The Hon'ble Governor thereafter
approved the proposal. Therefore, more than adequate
reasons are available on the records of the case. It was
open to the Bench passing the judgment under review
8
to peruse the entire record. [Paras 74, 75, 16 and 77] [988B-G]
3.3. In view of the consistent view of two Constitution
Benches of this court clearly stating that unless the
exercise of .power by the Governor under Article 161, is
C ex facie perverse or is based on a rule of thumb, the
Court should not interfere for mere non-disclosure of
reason, the finding to the contrary in the judgment under
review, is vitiated by errors apparent on the face of the
record. In the instant case, a perusal of the record shows
D that upon a detailed consideration of the relevant facts,
the Governor exercised his power of commutation. Such
an exercise does not call for any interference. [Paras 82,
83] [990-A-D]
E
3.4. From the perusal of the file this Court also notes
that in passing the order, the Governor considered all the
relevant materials, including the judgment of three ·
Judges in the first review petition filed by the petitioner,
as also the recommendation of NHRC. NHRC has the
F jurisdiction, in the facts of this case, to make its
recommendation to the Governor to take into account the
materials which NHRC considered. It is found that the
Governor
considered,
apart
from
the
said
recommendation of NHRC, other relevant materials also
G and, therefore, the order of the Governor is not vitiated
in as much as it is not solely based on the
recommendations of NHRC. [Para 84, 85] [990-0-F]
Maru Ram v. Union of India & Ors. (1981) 1 SCC 1 07;
Kehar Singh & Anr. v. Union of India & Anr. (1989) 1 SCC
H 204 - followed.
I
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
967
~AN I KANT DAS
.
Epuru Sudhakar and another v. Government of A.P. & ·A
Ors. 2006 (S) SCC 161 and G. Krishta Goud·& J. Bhoomaiah
v. Sf(!fe of Andhra Pradesh & Ors. 09i6) 1 SCC 157; -
referred to.
4. As regards the other qu~stion as to whether tne
petitioner is entitled to insist on a fresh _look at his
juvenility and a fresh consideration of his rights in view
of the changes· in the Juvenile Justice (Car-e & Protection
of Children)_Act, 2000 by 2006 amendment, this question
8
is argued for the first time in review even though it is n'ot ·
plead~d· in the review petition as a ground for revi.ew. In
C
the Article :32 petition,· notice was served on the review
petitioner and it was open to him to raise these p.pints in
that p~oceeding as by that time the Juvenile Justice (Care .
and .Protection- of .Children) A~t, 2QOO as amended by the
2006 amendment Act had.come into force.Even though. D
the ambi~ of the review. petition has been ~id~.oed-by this
· Court in Eswara's case, it has to follow broadly the
pri,ncipfes of review -...inder Order XLVII Rule 1 of the Code
of Civil Procedure. F-ollowing the discipline of Order XLVII,
Rule 1:·or' the concept.of 'an error apparent on· the face
E
of the:record', 'this Court possi~ly cannot pronounce in
a review petition on a question, which was open to be
raised in the original proceeding, but was not raised. That
apart,_ t(has not at all been pleaded it) the review petition.
For these reasons, this Court. refrains i~self from
· pronouncing on the rights of the petitioner under Juvenile
Justice-. (Care and Protection) Act, 2000 as· amended by
the 2006 Amendment. If he is so advised, it is open to the
petition_er. to agitate on his· rights u'nder.the said Act before
F
the appropriate Forum and in appropriate' pr<~ceedings .
G
If such a proceeding is . initiated by .the petitioner, the
same will be dealt' with without being impeded by any
observation made or fi_nding reached in any of the
judgments arising out of the concerned criminal case
against the petitioner, by any Court, including this Court.
H
968 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A [Paras 86, 87, 89 to 92] [990-G-H; 991-A-C-H]
P.N. Eswara /yer and others v. Registrar, Supreme Court
of India (1980) 4 SCC 680 - referred to.
5. In the judgment which is under review in the
B second review petition, the Court held that (a)
N H R C
has no jurisdiction to interfere and make a
recommendation, and (b) the order of .the Governor in
commuting the sentence of death to one of life is bad in
law as it did not disclose any reason. It is clear that both
C findings by this Court on (a) and (b) are vitiated by errors
apparent on the face of the record.The judgment of this
Court on Article 32 petition and which is under Review
is set aside. The order of the Governor passed under
Article 161 of the Constitution is restored and the order
D of commutation of death sentence awarded to the
petitioner to one of life imprisonment stands. In the facts
of this case, NHRC. had the jurisdiction to make the
relevant recommendation. [Paras 42, 43, 93] [979-B-0;
992-A-C]
E
Case Law Reference:
1980 (2) sec 167
referred to
Para 24
20o4 (12) sec 713
referred to
Para 34
F
1999 (9) sec 323
referred to
Para 35
(1980) 4 sec 680
referred to
Para 35, 38
AIR 1971 SC 2162
referred to
Para 37
G
(1976) 2 sec 521
referred to
Para 59, 62
(1942) AC 206
referred to
Para 62
(1999) 2 sec 131
referred to
Para 67
2006 (8) sec 161
referred to
Para 71 , 82
H
..J·
REMDEO CHAUHAN @ RAJNA)l-\ CHAUHAN v. . 969
BAN I KANT DAS
(1976) 1 sec 157 ·
(1981) 1 sec 101
(1989) 1 sec 204
referred to
followed
followed
Para 79
Para 80, 81,
82, 83
Para 80, 81,
82,83
CIVIL'ORIGINAL JURISDICTION : Review Petition (Civil)
No. 1378 of 2009
IN
Writ Petition (Civil) Nos. 457 of 2005.
Colin Gonsalves, Divya Jyoti,· Jyoti Mendiratta for the
Petitioners.
A
B
P.S. Patwalia, (A.C.), Vijay Panjwani (A.C), Riku Sharma
D
Vartika Sahay, Keshav Ray Chaudhari (for Corporate Law
Group), ~~obha, Arun Lal for the Respondents.
The Judgment of the Court was delivered by
E
GANGULY, J. 1. This case has a chequered background.
The facts, therefore, are to be appreciated in their sequence.
~
2. A criminar case was registered against the petitioner
under section 302 \PC, on an FIR lodged by. Bani Kant Das
(first respondent), elder brother of Bhabani Charan Das (the
F
deceased), in view of the offences committed by the petitioner
on 8.3.1992. After investigation and preparation of charge
sheet, the case was committed for trial to the Court of Sessions
and charges were framed against the petitioner under Sections
302, 323, 325 and 326 of !PC..
G
3. On 31.3.1998, the Trial Court held the petitioner guilty
of murdering four members of Bhabani Charan Das's family
and that all the charges under Sections 302, 323, 325 and 326
of \PC against him were proved beyond a\Lreasonable doubt.
H
'
........ --.... -
L
970 SUPREME COURT REPORTS [20101 15 (ADDL.) S.C.R.
A The Trial Court also opined that the crime f~ll within the category
of 'rarest of rare·· cases' arid the petitioner deserved death
penalty.
4. However, th~ defence raised the plea that at the time
8 of commission of the crime, the petitioner was below 16 years
of _age. To determine the actual age of the petitioner, Dr.
Bhushan.,Chandra Roy,' Associate Professor pf For~nsic
Medicine of Guwahati Medical College, with a team of doctors; .
examined him on 23.12.1997. The defence examined the father
c of the petitioner, Mr. Firato Chauhan and alsQ,placed reliance
on the school admission register. The school register was held
to· be unreliable, as it was not properly maintained. Further, the
.petiti6ner"s-father estimated the petitioner's ag~,to be 19 years:
at the time of oc~tmence of the crime. · .
·:·
• ·
D
5. Howeve·r, 'on t~·e· basi§" of the physical and radiolo.gical
examination done of the petitioner, the doctor was' definitely of
the ·opinion that his age was ... above 20 yea(S but coutd not be
moreJhan 21 year~ on the date of the examination. This
examination was conducted more than 5Y2 years after the date
E ·9fcommission ofthe.crime.
·
· 6. D~. Bhushar)_~handra Roy, who Was 'a prosecution
· witness, subjected the petitioner to scientific t~sts including ·
radiological tests. The medical opinion of Dr. Shushan Chandra
F Roy was ~ joint opinion and he consulted the doctor in the
. Department of Radiology and Dr. Kanak Chandra Das, the
Medical Officer on duty in the Department of Radiolqgy.
·
· 7. About the age of the petitioner, trial Court accepted the
G opinion of the team of doctors headed by Dr.· Shushan)
Chandra Roy. ·
·
8. The Trial Court's finding about the age of the petitioner
is as follows:
·
H
REMDEO CHAUHAN@ RAJNATH CHAUHAN v.
971
BANI KANT DAS [ASOK KUMAR GANGULY, J.]
"On the basis of the physical examination and radiological
A
examination done on Ramdeo Chauhan alias Raj Nath
Chauhan, they are of opinion that the age of the individual
is above 20 years."
9. The Trial Court, after considering the medical evidence
B
about the age of the petitioner along with the evidence of the
father of the petitioner, came to the following conclusion:
"Then the accused cannot be below sixteen years of. age
at the time of alleged occurrence to attract the provisions
of Juvenile Justice Act, 1986 as the alleged occurrence
C ·
took place before six years."
10. On appeal by the petitioner, the High Court, vide its
. judgment dated 1.2.1999, confirmed the conviction and
. sentence of death against the petitioner. Before the High Court
0
. the Counsel for the petitioner specifically submitted, that he was
not challenging the finding of the Trial Court on the point of age
of the accused-petitioner.
11 . The appeal from the High Court judgment was
E·
dismissed by a Bench of this Court, comprising K.T. Thomas
and R.P. Sethi, JJ, on 31.7.2000 and death sentence was
upheld. In that judgment, this court did not advert to the question
of age of the petitioner as it was possibly not argued.
12, A review petition (hereinafter, the first review petition)
F
was filed against the abovementioned judgment of this Court.!
After notice was issued, a two Judge Bench of this Court held
that the question of conviction of the petitioner under section
302 IPC cannot be reopened. However, considering the fact
that the petitioner raised an important question that he was a
G
juvenile at the relevant time and there is a legal prohibition
against sentencing a juvenile, tl"\e first review petition was
referred to a larger Bench comprising K.T. Thomas, R.P. Sethi
and S.N. Phukan, JJ.
H
972
SUPREME COURT REPORTS [2010] 15 (AODL.) S.C.R.
A
13. In the larger Bench decision dated 10.5.2001 , Sethi,
J., inter-alia, held- "From the evidence produced and the
material placed before the courts below, there is not an iota of
doubt in my mind to hold that the petitioner was not a child or
near or about the age of being a child within the meaning of
B the Juvenile Justice Act or the Children Act."
14. Thomas, J gave a dissenting judgment with respect to
imposition of death sentence upon the accused. His Lordship
observed that the Court had already held on facts that the
C petitioner had been unable to prove that he was below 16 years
of age on the date of the crime. However, Thomas J.
approached the question from a different angle and questioned
whether death sentence could be awarded to a person whose
age was not positively established by the prosecution as above
0 16 years on the crucial·date? The learned Judge opined that if
the age of the petitioner could not be held to be unquestionably ·
above 16 on the relevant date (and there was a doubt created ·
in view of the medical report of Dr. Shushan Chandra Roy}, its
corollary was that the lesser sentence also could not
E unquestionably be foreclosed, as per the Constitution Bench
judgment in the case of Bachan Singh v. State of Punjab,
[(1982) 3 SCC 24]. Thus, the learned Judge opined that the
sentence of death be altered to one of imprisonment for life. ·
15. Phukan, J., gave a concurring opinion with Sethi, J. and
F opined that the imposition of sentence of death could not be
reopened on review. However, His Lordship observed that if
any motion was made in terms of Sections 432, 433 and 433A
of the Code of Criminal Procedure and/or Article 72 or Article
161 of the Constitution, the same may be appropriately dealt
G with.
H
16. In the words of Phukan, J., "the factors which have
weighed with my learned Brother Mr. Justice Thomas can be
taken note of in the context of section 432(2) of the Code."
REMDEO 'CHAUHAN @ RAJNATH CHAUHAN v.
973
BANI KANT DAS [ASOK KUMI\_R GANGULY:, .J.]
17. Even before the juagment on the first review petition
A
was pronounced on 10.5.2001, the petitioner had already filed
on 17.8.2000 a petition before the Governor of Assam rraying
for mercy and for commutation of his death sentence to one of
life imprisonment.
18. At about the same time when the petition for
commutation was pending, Dr. Ved Kumari, Professor of the
B
F acuity of Law, University of Delhi, wrote a fairly detailed article
titled "Has ·a child been executed in India?" The said article
came to be noticed by National Human Rights Commission c
(NHRC). Thereupon, NHRC sent a notice to Dr. Ved_Kumari.
In the meantime, the judgment in the review petition, as
aforesaid, was pronounced by this Court on 1 0.5.2001.
19. On 21.5.2001, the full Commission of NHRC,
consisting of the Chairperson, Mr. Justice J.S. Verma, as also
D
two of its judicial members, namely, Dr. Justice K. Ramaswany
and Justice Ms. Sujata
"
V. Manohar, and the other\member Sri Virendra Dayal,
held its proceedings, in which the judgment rendered in the
E
review proceeding was perused.
20. NHRC, upon considering the materials on record,
maqe the following recomm~ndations:
F
''The Commission is of the view that the above opinion of
Thomas, J. in the judgment disposing of the review petition
and the above quoted observations of Phukan, J. are very
strong reasons to support the view and this is a fit case
for commutation of the sentence of Ram Oeo Chauhan @
G
Raj Nath Chauhan in the above case from death sentence
to that of imprisonment for life. This Commission is of the
considered view that the case, placing reliance on the
views of Thomas, J. and Phukan, J., who were two of the
three learned Judges, constituting the Bench deserves the
H
A
8
974 SUPREME COURT REPORTS [2010]15 (ADDL.) S.C.R.
highest consideration by the executive authority while
considering the question of commutation of sentence of
the said Ram Deo Chauhan @ Raj Nath Chauhan.
Accordingly, this Commission makes the above
recommendation in terms of the opinion of Thomas, J. for
due consideration by the Governor of Assam and/or the
President of India, as the case may be, in the event of a
mercy petition being filed for the purpose."
21 . Thereafter, on 28.1 .2002, the Governor of Assam
C commuted the death sentence of the petitioner to one of life
imprisonment. The Order of the Governor runs as under:
"The Governor of Assam after careful consideration of the
mercy petition and other relevant records is pleased to
o
commute the sentence of death to that of imprisonment for
. life of the above named condemned prisoner."
22. Challenging the aforesaid order of the Governor, of
Assam, the relatives of the deceased filed a writ petition under
Article 32 of the Constitution of India before this Court. In that
E proceeding, Secretary NHRC was impleaded. However, this .
court, by an order dated 21 .1.2009, issued notice to Prof. Ved
Kumari, asking her to state how her complaint before NHRC
was maintainable. Pursuant thereto, Prof. Ved Kumari
submitted an affidavit before this Court on 3.2.2009, stating that
. F '. the Juvenile Justice (Care & Protection of Children) Act, 2000
applied to all pending cases and was extended to all children
who had not completed 18 years of age; and thus it would also
be applicable to the present case.
G
23. After hearing the matter, the Bench comprising of one
of us passed an order on 8.5.2009, setting aside the
Governor's order dated 28.1.2002 of commutation of death
sentence to life imprisonment.
24. In passing that order, the Bench was of the opinion that
. H the NHRC proceedings were not in line with the procedure
'
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
975
BANI KANT DAS [AS)?K KU~AR GANGULY, J.]
: established under the Protection of Human Ri~hts Act, 1993 A
(hereinafter,· 'the 1993 Act') and ·, therefore, NHRC's
. ~ecomm_endations were void. Further, the order of the Governor
· of Assam directing commutation did not indicate any reason
· an~ was based on the recommendations of NHRC, which itself
w~e without jurisdiction. Thus, the writ petition was allowed and
B
the order·of the Governor of Assam was quashed and this Court
directed Je-consideration afresh of the petitioner's prayer for
cbmmu.tation of sen~ence .
·
25. This instant review petition (hereinafter, the second
review) is directed against this Court's order dated 8.5.2009. C
26. In this second review, notice was issued by this Bench
for formal hearing by an order dated 3rd September, 2009. One
of the reasons for issuing notice was that one of the grounds
put forward w~s that the judgment under review was passed .D
without hearin·g Ram Deo Chauha~ ; 'the petitioner, and without;
providing him leg_al aid. However,· i:dmost at the conclusion of
the heC:tring of this proceeding, this Court found that the
aforesaid representation was not correct. The correct position
was that by an. order dated 1-9th November, 2005, Mr.
E
Muralidhar ·was· appointed by_ the Registrar of this Court to
represe"nt the petitioner. After Mr. Muralidhar, became a Judge
of Delhi High Court, the Registrar appointed one Mr. Vijay
Panjwani,. an advocate of this Court, to represent the review
petWoner.:Mr. Parijwani filed a counter affidavit in the Article
F
. 32 proceeding. Ho~ever, from the judgment under review, it
! do~s _not appear ttia't Mr. Panjwani appeared before the Court
and made his submissions.
27. He that as· it may, it is not co.rrect to say that no notice
was given to the petitioner. Therefore, one of the grounds on G
! which notice fo'r r~view was issued became non-existent.
28. The question is whether this second review should be
dismissed in view of such misleading stand havi!lg been taken
H
...
976
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
by the petitioner while invoking this Court's jurisdiction of
review.
29. On a very careful consideration of this issue, this Court
thinks that in view of various other questions of far reaching
8
importance having been raised in this second review, it may
be a travesty of justice if this petition is dismissed on only the
ground mentioned above.
30. This Court on a contested hearing is of the opinion that
the second review should still be entertained and decided as
C
it raises various questions of signal significance, touching the
rights of the petitioner to seek commutation as also touching
questions regarding the jurisdiction of the NHRC, as also
various constitutional provisions relating to life and freedom.
Various concerns of public law have come up for consideration
0
in this second review and in the context of these issues the
constitutional provision of Article 137 for review of judgment and
order of this Court may have to be examined. Article 137 of
the Constitution provides as follows:
E
F
"137. Review of judgments or orders by the Supreme
Court: Subject to the provisions of any law made by
Parliament or any rules made under article 145, the
Supreme Court shall have power to review any judgment
pronounced or order made by it.
31. In terms of Article 137, Rules have been framed under
Article 145 of the Constitution and Part VIII Order XL of the said
Rules deals with review.
32. Order XL Rule 1 provides that in reviewing the
G judgment in a civil proceeding, the Court will follow the grounds
in Order XLVII Rule 1 of the CPC. However, in case of review
of criminal proceedings, no review is permissible except on the
ground of error apparent on the face of the record.
H
33. The extent of the review power of this Court came up
REMDEO CHAUHAN @ RAJNATH CHAUHAN v.
977
BANI KANT DAS [ASOK KUMAR GANGULY, J.]
for consideration in several cases. In M/s Northern India A
Caterers (India) Ltd. v. Lieutenant Governor of Delhi reported
in 1980 (2) SCC 167, a three Judge Bench of this Court
examined the scope of this power and held that if the attention
of the Court is not drawn to any material statutory provision
during the original hearing, that is a ground of review. The Court 8
also held that it may reopen its own judgment if a manifest
wrong has been done and it is necessary to pass an orde1 to
do full and effective justice.
.
34. In Ram Chandra Singh v. Savitri Devi and others
reported in 2004 (12) SCC 713, this Court dealing with its C
power of review held in para 19:
"19. It is no doubt true that in appropriate cases this Court
may pass an order ex debito justitiae by correcting
mi~takes in the judgment but inherent power of this Court D
can be exercised only when there does not exist any other
provision in that behalf ...... n
35. In a three Judge Bench of this Court in the case of
Suthendra Raja alias Suthenthira Raja alias Santhan & Ors. E
v. State through DSPICBI, SIT, Chennai reported in 1999 (9)
sec 323, this Court held that the scope of review in criminal
proceedings has been considerably widened in the P.N. Eswara
lyer and others v. Registrar, Supreme Court of India [1980 (4)
sec 680}. To maintain a review in a criminal case, what has F
to be considered is whether there has been a miscarriage of
justice.
36. In this connection, this Court finds that in the Supreme
Court Rules framed under Article 145 of the Constitution, there
is a clear provision in Order XL Rule 6 of the Rules to the G
following effect:
"6. Nothing in these Rules shalt be deemed to limit or
otherwise affect the inherent powers of the Court to make
su~h orders as may be necessary for the ends of justice H .
978
SUPREME COURT REPORTS [201 0] 15 (ADDL.) S.C.R.
A
or to prevent abuse of the process of the Court."
37. In Girdhari La/ Gupta v. D.N. Mehta & Anr. reported
in AIR 1971 SC 2162, this Court held when the attention of this
Court is not drawn to any particular provision of a statute, this
8
court can review the decision and it is not the case of a mere
mistaken judgment. (Para 16, pg 2164)
38. On a bare reading of the provision of Or.der XL Rule 1
of the Supreme Court Rules, one may get the impression that
the e):tent of review in criminal cases is more restricted than in
C civil cases. But the said impression has been given a quietus
by this Court in its Constitution Bench judgment in Eswara case
(supra).
39. Delivering the main judgment, Justice Krishna lyer heldD "So it is reasonable to assume that the framers of the rules
could not have intended a restrictive review over criminal orders
or judgments.