Amrit Bhushan Gupta Vs. Union of India
& Ors  INSC 308 (29 November 1976)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) SINGH, JASWANT
CITATION: 1977 AIR 608 1977 SCR (2) 240 1977
SCC (1) 180
Penal Code--S. 84--Person convicted and sentenced
to death turning insane afterwards--If execution should be stayed till he
A petition under Art. 226 of the Constitution
was filed in the High Court on behalf of the. appellant, who was sentenced to
death, praying that, since the appellant was insane the State should be
restrained from carrying out the sentence. The High Court dismissed the
petition holding that if the appellant were really insane, the appropriate
authorities would take necessary action.
In appeal to this Court, it was contended
that convicted person who became insane after conviction and sentence could not
be executed until he regained sanity.
Dismissing the appeal,
HELD: (1) (a) Courts have no power to
prohibit the carrying out of a sentence of death legally passed upon an accused
person on the ground either that there is some rule in the common law of
England against the execution of an insane person sentenced to death or for
some theological religions or moral objection to it. Our statute law on the subject
is based entirely on secular considerations which place the protection and
welfare of society in the forefront. [249 B] (b) What the statute law does not
prohibit or enjoin cannot be enforced, by means of a writ of mandamus under
art. 226 of the Constitution, so as to set at naught a duly passed sentence of
a court of justice. [249 C] (2) (a) Section 30 of the Prisoners Act, 1900 has
nothing to do with the powers of courts. It only regulates the place and manner
of confinement of a person, who appears to be a lunatic, when his detention or
imprisonment is either during the trial or during the period when, after the
sentence, he is undergoing imprisonment. In the case of a person condemned to
death, no question of keeping him in prison would arise except for the period
elapsing between the passing of the sentence of death and its execution.
[243 F] (b) Insanity, to be recognised as an
exception to criminal liability must be such as to disable an accused person
from knowing the character of the act he was committing when he commits a
criminal act. If, at the time of the commission of the offence, the appellant
knew the nature of the act he was committing, he could not be absolved of
responsibility for the grave offence of murder. [245 B-D] Jagmohan Singh v. The
State of U.P.  2 S.C.R. 541 referred to.
In the instant case, the whole object. of the
proceedings in the High Court and before this Court seems to be to delay
execution of the sentence. In view of the number of times the appellant had
unsuccessfully applied the powers of the High Court and of this Court ought not
to have been invoked again. [244 A]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 383 of 1976.
(With Criminal Misc. Petitions Nos. 62 and
380 of 1976.) (Appeal by Special Leave from the Judgment and Order dated
22-8-1975 of the Delhi High Court in Crl. Writ Petition No. 135/75).
241 S.K. Sinha, for the Appellant.
V.P. Raman and Girish Chandra, for the Respondents.
Tek Chand Chanana (In person) for the applicant--Intervener.
The Judgment of the Court was delivered by
BEG J.--A petition under Article 226 of the Constitution was fled in the High
Court of Delhi, seeking a writ in the nature of Mandamus "or any other
appropriate Writ, direction or order", to restrain the respondents from
carrying out the sentence of death passed against Amrit Bhushan Gupta, a person
condemned to death for having committed culpable homicide amounting to murder.
The petition was flied by Smt. Shanti Devi, purporting to act on behalf of her
son Amrit Bhushan Gupta, who was alleged to be insane. A Division Bench of the
Delhi High Court passed the following order on it:
"We have no doubt in our minds that if
the petitioner is really insane, as stated in the petition, the appropriate
authorities will take necessary action. This petition, at this stage, we feel,
does not justify invocation of the powers of this Court under Article 226 of
the Constitution. Criminal Writ is dismissed." Before the grant of special
leave to the petitioner on 27th August, 1976 an application for intervention in
the matter had been filed by Tek Chand Chanana supported by an affidavit
stating the following facts which have not been controverted:
"Amrit Bhushan Gupta was sentenced to
death for burning alive three innocent sleeping children aged 14, 8 and 5 years
at Sriniwas Puri on the midnight of 21st June, 1968 by the learned Dist. &
Sessions Judge Delhi under Section 302 and 7 years R.I. u/s. 307 for attempting
to murder Tek Chand Chanana (Petitioner) on 6th June, 1969 with the remarks
'even the extreme penalty of death may appear too mild for the gruesome murder
of three children by burning them alive.' Delhi High Court confirmed the death
sentence on 23rd September, 1969. Amrit Bhushan Gupta's relatives made the plea
of insanity to the High Court but the Hon'ble High Court refused even to
entertain this petition of the accused, some dates are given below:
Writ petition dismissed on 20th July, 1971
Petition dismissed ........ 20th August,
Supreme Court had dismissed the various
petitions of Amrit Bhuahan Gupta noted below:
17--1458SCI/76 242 Special leave petition
dismissed on 3rd April, 1970.
Petition dismissed on 12th Sept. 1970.
Petition dismissed on 30th April, 1971.
Writ Petition filed on 11 May 1971 was
withdrawn on 2nd August, 1976.
Petition dismissed on 8th January, 1976
Rashtrapati had also rejected several mercy petitions of the accused some dates
are given below:
1. 10th August, 1970.
2. 6th December, 1970.
3. 8th November, 1971.
4. February, 1972.
Government of India had fixed various dates
for execution, details given below:
1.18th December, 1970.
2. 25th August, 1975 and 19th December, 1975.
Amrit Bhushan Gupta and his relatives have
been delaying the matter on one excuse, or the other.
Their latest plea is nothing new. It is
repetition of their modus operandi. The petitioner and his wife have been under
constant torment since the day their three innocent children were gruesomely
murdered in 1968 and the punishment awarded to the accused in 1969 is being
postponed on the making of the accused." This Court when granting special
leave in this case was obviously not aware of the facts stated above which were
Learned Counsel for the appellant, when asked
to state the question of law which called for the invocation of the
jurisdiction of this Court under Article 136 of the Constitution, could only
submit that the provisions of Section 30 of the Prisoners Act, 1900, should be
applied to the petitioner. This section reads as follows:
"30. Lunatic Prisoners how to be dealt
with.---(1) Where it appears to the State Government that any person detained
or imprisoned under any order or sentence of any Court is of unsound mind, the
State Government may, by a warrant setting forth the grounds of belief that the
person is of unsound mind, order his removal to a lunatic asylum or other place
of safe custody within the State there to be kept and treated as the State
Government directs during the remainder of the term for which he has been
ordered or sentenced to be detained or imprisoned, or, if on the expiration of
that term it is certified by a medical officer that it is necessary for the
safety of the prisoner or others that he should be further detained under
medical care or treatment, then until he is discharged according to law.
243 (2) Where it appears to the State Government
that the prisoner has become of sound mind, the State Government shall, by a
warrant directed to the person having charge of the prisoner, if still liable
to be kept in custody, remand him to the prison from which he was removed, or
to another prison within the State, or if the prisoner is no longer liable to
be kept in custody, order him to be discharged.
(3) The provisions of Section 9 of the Lunatic
Asylums Act, 1858, shall apply to every person confined in a lunatic asylum
under sub-section (1) after the expiration of the term for which he was ordered
or sentenced to be detained or imprisoned; and the time during which a prisoner
is confined in a lunatic asylum under that sub-section shall be reckoned as
part of the term of detention of imprisonment which he may have been ordered or
sentenced by the Court to undergo.
(4) In any case in which the State Government
is competent under sub-section (1) to order the removal of a prisoner to a
lunatic asylum or other place of safe custody within the State, the State
Government may order his removal to any such asylum or place within any other
State or within any part of India to Which this Act does not extend by agreement
with the State Government of such other State; and the-provisions of this
section respecting the custody, detention, remand and discharge of a prisoner'
removed under subsection (1) shall, so far as they can be made applicable,
apply to a prisoner removed under this sub-section." Thus, at the very
outset, the section invoked relates to the powers of the State Government. It
has nothing to do with powers of Courts. It only regulates the place and manner
of the confinement of a person, who appears to be a lunatic, when his detention
or imprisonment' is either during the trial or during the period when, after
the sentence, he is undergoing imprisonment. In the case of a person condemned
to death no question of keeping him in prison would arise except for the period
elapsing between the passing of the sentence of death and its execution. A
special provision for a person sentenced to death is to be found in Section 30
of the Prisons Act 1894, which lays down:
"30. Prisoners under sentence of
death.---(1) Every prisoner under sentence of death shall, immediately on his
arrival in the prison after sentence be searched by, or by order of, the Jailor
and all articles shall be taken from him which the Jailor deems it dangerous or
inexpediem to leave in his possession.
(2) Every such prisoner shall be confined in
a cell apart from all other prisoners, and shall be placed by day and by night under
the charge of a guard." 244 The whole objection of the proceedings in the
High Court and now before us seems to be to delay execution of the sentence of
death: passed upon the appellant. In view of the number of times the appellant
has unsuccessfully applied, there can be little doubt that the powers of the
High Court and of this Court ought not to have been invoked again. The repeated
applications constitute a gross abuse of the processes of Court of which we
would have taken more serious notice if we were not disposed to make some allowance
for the lapses of those who, possibly out of misguided zeal or for some other
reason, may be labouring under the belief that they were helping an unfortunate
individual desperately struggling for his life which deserves to be preserved.
A bench of this Court 100 was persuaded to pass orders for observation of the
convict and obtaining certificates of experts on the mental condition of the
Dr. P.B. Buckshey, Medical Superintendent and
Senior Psychiatrist, Hospital for Mental Diseases, Shahdata Delhi, certified as
"After careful consideration of the
entire mental state of the accused, including his behaviour, I am of opinion
that Shri Amrit Bhushan Gupta is a person of unsound mind suffering from
Schizophrenia. Schizophrenia is a basically incurable type of insanity
characterised by remissions and relapses at varying intervals.
Shri Gupta was also severely and overwhelmingly
depressed and appeared to have lost interest in life." Dr. S.C. Malik,
Assistant Professor of Psychiatry, G. B. Pant Hospital, New Delhi, gave a more
detailed certificate as follows:
"Amrit Bhushan Gupta remained mute
throughout the ten days period of observation.
He however started communicating to me
through writing on 3rd day of encounter. He exhibits gross disturbance in
thinking and his emotional life appears to be disorganised. He is suffering
from delusion that he is the incarnation of Christ and that I come to his
kingdom or 'Palace'. He does not mutter to himself but at times keeps on
staring vacantly in space. He is unable to write coherent meaningful sentences.
He coins new words and when asked to explain he says it is 'Technologem of me
as CHRIST'. He also had hallucinations e.g. that Russian planes are shooting
his Bunkers and that I should be helping him to drive them away. He exhibited
depressive and suicidal I tendencies towards later period of my observation
period and broke off all communication as I did not give him potassium Cyanide
'Poison' so that he (Christ) may go back to his Kingdom.
In my opinion he is suffering from 'SCHIZOPHRENIA'
(Chronic) which is a serious mental derangement.He is thus considered to be of
unsound mind under the Indian Lunacy Act.
1912." 245 We have not even got any appeal
from a conviction and sentence before us. We assume that, at the time of the
trial of the appellant, he was given proper legal aid and assistance and that
he did not suffer from legal insanity either during his trial or at the time of
the commission of the offence. Insanity, to be recognised as an exception to
criminal liability, must be such as to disable an accused person from knowing
the character of the act he was committing when he commits a criminal act.
Section 84 of the Indian Penal Code contains a principle which was laid down in
England in the form of Macnaughten Rules. The section provides:
"84. Nothing is an offence which is done
by a person who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law." If at the time of the commission of the
offence, the appellant knew the nature of the act he was committing, as we
assume he did, he could not be absolved of responsibility for the grave offence
of murder. A Constitution Bench of this Court has upheld the Constitutional
validity of the death penalty in Jagmohan Singh v. The State of U.P. (1).
We have to assume that the appellant was
rightly convicted because he knew the nature Of his acts when he committed the
offences with which he was charged. The legality or correctness of the sentence
of death passed upon him cannot be questioned before us now. So far as the
prerogative power of granting a pardon or of remitting the sentence is concerned,
it lies elsewhere. We cannot even examine the facts of the case in the
proceedings now before us and make any recommendation or reduce the sentence to
one of life imprisonment.
The contention which has been pressed before
us, with some vehemence, by learned Counsel for the appellant, is that a
convicted person who becomes insane after his conviction and sentence cannot be
executed at all at least until he regains sanity.
In support of this contention learned Counsel
has quoted the following passage from Hale's Pleas of the Crown Vol.
"If a man in his sound memory commits a
capital offence, and before his arraignment he becomes absolutely mad, he ought
not by law to be arraigned during such his phrenzy, but be remitted to prison
until that incapacity be removed; the reason is, because he cannot advisedly
plead to the indictment; and this holds as well in cases of treason, as felony,
even the delinquent in his sound mind were examined, and confessed the offence
before his arraignment; and this appears by the Statute of 33 H. 8 Cap. 20
which enacted a trial in case of treason after examination in the absence of
the party; but this statute stands repealed by the statute of 1 and 2 Phil
cap. 10 cv. P.C.p. 6 And, if such person
after his plea, and before his trial, become of non sane memory, he [1) 
2 S.C.R. 541, 0+-* 246 shall not be tried, or, if after his trial he becomes of
non sane memory he shah not receive judgment; or, if after judgment he becomes
of non sane memory, his execution shall be spared; for were he of sound memory,
he might allege somewhat in stay of judgment or execution".
He also cited a passage from Coke's Institutes,
Vol. III, p. 6, which runs as follows:
"It was further provided by the said act
of 33 H.S. that if a man attained of treason became mad, that notwithstanding
he should be executed; which cruel and inhuman law lived not long, but was
repelled, for in that point also it was against the common law, because by
intendment of law the execution of the offender is for example, ut poena ad
paucos, metus and omnes perveniat, as before is said; but so it is not when a
mad man is executed, but should be a miserable spectacle, both against law and
of extreme inhumanity and cruelty, and can be no example to others".
The following passage from Blackstone's Commentaries
on the Laws England VoL IV, page 18 and 19 was also placed before us :
"The second case of a deficiency in
will, which excuses: from the guilt of crimes, arises also from a defective or
vitiated understanding, viz., in an idiot or a lunatic.
For the rule of law as to the latter, which
may easily be adapted also to the former, is that 'furiosus furore solum
punitur'. In criminal cases, therefore, idiots and lunatics are not chargeable
for their own acts, if committed when under these incapacities; no, not even
for ,treason itself. Also, if a man in his sound 'mind' commits an offence, and
before arraignment for it he becomes mad, he ought not to be 'called on to
plead to it, because he is unable to do so' with that advice and caution that
he ought. And, if after he has pleaded, the prisoner becomes mad, he shall not
be tried; for how can he make his defence ? If, after he be tried and found
guilty, he loses his senses before judgment, judgment shall not be pronounced;
and if after judgment, he becomes of non sane
memory, execution shall be stayed; for paradventure, says the humanity of the
English law, had the prisoner been of sound memory, he might have alleged
something in stay of judgment or execution. Indeed, in the bloody reign of
Henry the Eighth, a statute was made, which enacted that if a person, being
compos roentis, should commit high treason, and after fall into madness, he
might be tried in his absence, and should suffer death, as if h6 were of
perfect memory. But this savage and inhuman law was repealed by the statute 1
& 2 Ph. & M.c. 10. For, as is observed by Sir Edward Coke 'the
execution of an offender is, for example, ut poena ad paucos, metus ad omnes perveniat;
but so it is not a miserable spectable, both against law, and of extreme
inhumanity and cruelty.. and can be of no example to others".
247 A passage from a modern work, 'An
Introduction to Criminal Law", by Rupert Cross, (1959), p.
67, was also read. It reads as follows:
"In conclusion it may be observed that
there are two other periods in the history of a person charged with a crime at
which his sanity may be relevant. First, although there may be no doubt 'that
he was sane when he did the act charged, he may be too insane to stand a trial
in which case he will be detained during the Queen's pleasure under the Criminal
Lunatics Act, 1800 and 1883, pending his recovery. Secondly, if he becomes
insane after sentence of death he cannot be hanged until he has recovered. In
each of these cases. the question of sanity is entirely a medical question of
fact and is in no way dependent on the principles laid down in M'Naghten's
The rule that insanity at the time of the
criminal act should be a defence is attributable to the fact that the idea of
punishing a man for that which was due to his misfortune is revolting to the
moral sense of most of the community. The rule that the accused must be fit to
plead is based on the undesirability of trying someone who is unable to conduct
his defence, or give instructions on the subject. The basis of the rule that an
insane person should not be executed is less clear. Occasionally, the rule is
said to be founded on theological grounds. A man should not be deprived of the
possibility of a sane approach to his last hours. Sometimes, the rule is said
to be based on the fact that condemned men must not be denied the opportunity
of showing cause by why they should not be reprieved".
Shri S.K. Sinha, learned Counsel for the
appellant, has, industriously, collected a number of statements of the position
in English law from the abovementioned and other works of several authorities
such as Theobald on Lunacy (p.
254), and Kenny's Criminal Law (p. 74).
On the other hand, learned Additional
Solicitor General has relied on the following statement of a modern point of
view contained in a book by Mr. Nigel Walker on "Crime and Insanity in
England" (Vol. I: The Historical Perspective) --at p. 213 -214:
"Home Secretaries have been even more
cautious in offering justifications for the practice of reprieving the
certifiably insane or the mentally abnormal. Shortt, though he cited Coke,
Hale, Hawkins, Blackstone, Hawles, and Stephen to prove that he was bound by
the common law, refrained from dwelling on their explanations of it. which are,
as we have seen, far from impressive. The Atkin Committee, being lawyers, were
more respectful to the institutional writers, and argued that 'many (sic) of
the reasons given for the merciful view of the common law continue to have
force even under modern conditions.
Everyone would revolt from dragging a gibbering
maniac to the gallows'. If 248 they had reflected they would Surely have
conceded that 'modern conditions' greatly weakened two out of the three
traditional reasons. The abolition of public executions made Coke's argument
irrelevant as well as illogical; and Hale's argument--that if sane the
condemned man might be able to produce a sound reason why he should not be
hanged--was greatly weakened now that the condemned man's interests were so
well looked after by his lawyerS. As for Hawles' argument that an insane man
was spiritually unready for the next world (which not even Hawles regarded as
the main objection)--were the Committee such devout Christians that they set
store by it ? Equally odd was their remark that 'everyone would revolt from
dragging a gibbering maniac to the gallows', which sounded as if it was meant
as an endorsement of one or more of the traditional justifications, but if so
could hardly have been more unfortunately phrased.
Why should it be more revolting to hang a
'maniac' than a woman, a seventeen-year-old boy or a decrepit old man ? Must
the maniac be 'gibbering' before it becomes revolting ? A more logical
justification was suggested by Lord Hewart, who opposed Lord Darling's attempt
to legislate on the lines recommended by the Atkin Committee (see Chapter 6).
Lord Hewart suggested that the medical inquiry should be concerned only with a
single, simple question: 'If this condemned person is now hanged, is there any
reason to suppose from the state of his mind that he will not understand why he
is being hanged ?' Although this Suggestion would have appealed to Covarrubias,
it had little attraction either for the Home Office or for humanitarians in
general, for it was clearly intended to. reduce the number of cases in which
the inquiry led to a reprieve. Nevertheless, given certain assumptions about
the purpose of the death penalty, it was at least more logical than the
traditional justifications which the Atkin Committee had so piously. repeated.
If, as Covarrubias and Hewart no doubt believed, the primary aim of a penalty
was retributive punishment, it could well be argued that the penalty would
achieve its aim only if the offender understood why it was being imposed.
This argument is not open, however, to
someone who believes that the primary aim of a penalty such as hanging is the
protection of society by deterrence or elimination. The Atkin Committee would
have been more realistic if they had contented themselves with the observation
that for at least four hundred years it had been accepted that common law
forbade the execution of a mad man, although the institutional writers'
explanations were obviously speculative and odd: and that since 1884
certifiable insanity had been accepted as the modern equivalent of 'madness'.
Any further attempt to justify the practice would have involved them in one
sort of difficulty or another. as Lord Goddard was to argue to the Gowers
249 Interesting as the statements on and
origins of the Common Law rules on the subject in England, against the
execution of an insane person, may be, we, in this country, are governed
entirely by our statute law on such a matter. The Courts have no power to
prohibit the carrying out of a sentence of death legally passed upon an accused
person on the ground either that there is some rule in the Common Law of
England against the execution of an insane person sentenced to death or some
theological, religious, or moral objection to it. Our statute law on the
subject is based entirely on secular considerations which place the protection
and welfare of society in the forefront. What the statute law does not prohibit
or enjoin 'cannot be enforced, by means of a writ of Mandamus under Article 226
of the Constitution, so as to set at naught a duly passed sentence of a Court
The question whether, on that facts and
circumstances of a particular ease, a convict, alleged to have became insane,
appears to be so dangerous that he ,must not be let loose upon society, lest he
commits similar crimes against other innocent persons when released, or,
because of his antecedents and character, or, for some other reason, he
deserves a different treatment, are matters for other authorities to ,consider
after a Court has duly passed its sentence. As we have already indicated, even
the circumstances in which the appellant committed the murders of which he was
convicted are not before us. As the High Court rightly observed, the
authorities concerned are expected to look into matters which lie within their
powers. And, as the President of India has already rejected the appellant's
mercy petitions, we presume that all relevant facts have received due consideration
in appropriate quarters.
We think that the application to the High
Court and the special leave petition to this. Court, in the circumstances
mentioned above, were misconceived. Accordingly, we dismiss this appeal.
We also dismiss Criminal Miscellaneous
Petition No. 62 of 1976, an application for summoning of the original record,
as it could be of no use, but we allow Criminal Miscellaneous Petition No. 380
of 1976, the application for intervention, whose contents we have quoted above.
Stay of execution order is vacated.
P.B.R. Appeal dismissed.