Harbans Singh Vs. State of U.P. &
Ors [1982] INSC 19 (12 February 1982)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION: 1982 AIR 849 1982 SCR (3) 235 1982
SCC (2) 101 1982 SCALE (1)95
CITATOR INFO :
R 1991 SC2176 (51) R 1992 SC 248 (34)
ACT:
Penal Code-Death Sentence imposed on three
accused for the same offence-One accused executed-Sentence of death commuted in
case of another accused-Mercy petition rejected by President in another-Court
if could interfere.
HEADNOTE:
By a common judgment the petitioner and the
two other accused (JS and KS) were convicted and sentenced to death for the
murder of four persons. The High Court affirmed their conviction and sentence.
The special leave petition filed by JS was
dismissed and he was executed. The sentence of death passed on KS was commuted
by this Court into imprisonment for life. The petitioner's ('HS's) special
leave petition and later his review petition were dismissed by this Court and
his petition to the President of India for commutation of death sentence was
dismissed, whereupon he filed the present petition.
(Per Chandrachud, CJ and D.A. Desai, J. A.N.
Sen, J.
concurring.)
HELD: The petitioner and the other two
co-accused were sentenced to death by a common judgment. No distinction could
at all be made between the part played by KS and the petitioner. Since the
death sentence in his case was commuted by this Court it would be unjust to
confirm the death sentence imposed upon the petitioner. [238 B-C] In view of
the background of the case it would not be wrong if this Court had commuted the
sentence of death imposed upon the petitioner but in the interest of comity
between the powers of this Court and the powers of the President it would be
more in the fitness of things if this Court were to recommend that the
President be so good as to exercise his power under Article 72 of the
Constitution to commute the death sentence into imprisonment for life because
the President had already considered the mercy petition of the petitioner once
and had rejected it. [238 E- G] [The Court directed that prior to the actual
execution of any death sentence the Jail Superintendent should ascertain
personally whether the sentence of death imposed upon any of the co-accused of
the prisoner 236 who was due to be hanged had been commuted. If it had been
commuted, the Superintendent should apprise the superior authorities of the
matter, who must take prompt steps for bringing the matter to the notice of the
Court concerned.] [239 A-B] (Per A.N. Sen, J. concurring) It would be unjust to
allow the death sentence imposed on the petitioner executed. [242 G]
Considering that the responsibility, involvement and complicity of the
petitioner in the commission of the offence is the same as that of the other
co-accused, it would be sheer travesty of justice if for the same offence the
petitioner had to pay the extreme penalty of death while the death sentence
imposed on the co-accused, for the very same offence had been commuted to one
of life imprisonment.
Had the petitioner mentioned either in the
special leave petition or review petition or mercy petition to the President
this all important and significant fact, death sentence imposed on him would
have been commuted.[242 C-F] Apart from the very wide jurisdiction and powers
conferred on this Court under Arts. 32 and 136 of the Constitution this Court
retains and must retain, an inherent power and jurisdiction for dealing with
any extra-ordinary situation in the larger interests of administration of
justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used
for furthering the ends of justice. Having regard to the facts and
circumstances of this and interfere case, this is a fit case where this Court
should entertain the present petition. [243 A-C] Since in the instant case the
petitioner's mercy petition had earlier been considered by the President
propriety and decorum require that the matter should be referred back to the
President. [243 D]
ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 7453 of 1981.
(Under Article 32 of the Constitution of
India) A.P. Mohanty for the Petitioner.
R.K. Bhatt for the Respondent.
The following judgments of the Court were
delivered CHANDRACHUD C.J. By this writ petition the petitioner Harbans Singh
prays that the death sentence imposed upon him should not be executed in view
of the following circumstances.
237 The petitioner and three other persons,
Mohinder Singh, Kashmira Singh and Jeeta Singh were involved in the murder of
Jindi Singh, Surjeet Singh, Bira Singh and Gurmeet Singh.
Mohinder Singh died in an
"encounter" with the police. The petitioner and the other two
accused, Kashmira Singh and Jeeta Singh, were committed to stand their trial
for the murder of the aforesaid four persons. By a judgment dated May 1, 1975
the learned Additional Sessions Judge, Pilibhit, convicted all of them for the
murder of Jindi Singh, Surjeet Singh and Bira Singh and sentenced them to
death. On October 20, 1975 the High Court of Allahabad affirmed the judgment of
the Trial Court in Criminal Appeal No. 1080 of 1975.
Jeeta Singh filed Special Leave Petition No.
343 of 1976 in this Court which was dismissed on April 15, 1976.
Kashmira Singh filed Special Leave Petition
No. 104 of 1976 from jail and obtained leave on the question of sentence. By an
order dated April 10, 1977 his appeal (No. 172 of 1977) was allowed by a Bench
consisting of Bhagwati and Fazal Ali, JJ. who commuted his sentence of death
into imprisonment for life. The petitioner, Harbans Singh, filed Special Leave
Petition No. 658 of 1978 from jail which was dismissed by Sarkaria and
Shinghal, JJ. on October 16, 1978. His Review Petition (No. 140/79) was
dismissed by Sarkaria and A.P.
Sen, JJ. on May 9, 1980. It appears that
though the Registry of this Court had mentioned in its Office Report that
Kashmira Singh's death sentence was already commuted, that fact was not brought
to the notice of the Court specifically when the petitioner's Special Leave
Petition and his Review Petition were dismissed.
The petitioner had filed a petition to the
President of India for commutation of his sentence, which was dismissed on
August 22, 1981. Upon the dismissal of that petition, the execution of the
death sentence imposed upon the petitioner was fixed for October 6, 1981,
whereupon he filed this petition in this Court.
The course which this case has taken makes a
sad reading. Three persons were sentenced to death by a common judgment and,
regretfully, each one has eventually met with a different fate. One of those
three persons, Jeeta Singh, who did not file any Review Petition or Writ
Petition in this Court was executed on October 6, 1981. The other person,
Kashmira Singh, succeeded in having his death sentence commuted into life
imprisonment. The petitioner 238 was to be executed on the same day on which
Jeeta Singh was executed but, fortunately, he filed this Writ Petition on which
we passed an order staying the execution of his death sentence.
As we have stated earlier, the petitioner and
the two other co-accused were sentenced to death by a common judgment. We have
seen the facts from which it is clear that no distinction at all can be made
between the part played by Kashmira Singh on the one hand and the petitioner on
the other. Since Kashmira Singh's death sentence was commuted by this Court, it
would be unjust to confirm the death sentence imposed upon the petitioner. That
will involve the Court as well as the authorities concerned in the violation of
rudimentary norms governing the administration of justice.
It is unfortunate that Jeeta Singh could not
get the benefit of the commutation of Kashmira Singh's sentence.
Were he to approach this Court like the
petitioner, the sentence imposed upon him would have been commuted into life
imprisonment because no distinction could have been made between his case and
that of Kashmira Singh whose sentence was commuted prior to the execution of
Jeeta Singh.
The question which then arises for
consideration is as to the proper course to be adopted in the circumstances of
the case. In view of the background of the case, to which we have referred
above, it would not be wrong if we were ourselves to commute the sentence of
death imposed upon the petitioner to imprisonment for life. But in the interest
of comity between the powers of this Court and the powers of the President of
India, it will be more in the fitness of things if we were to recommend that
the President of India may be so good as to exercise his power under Article 72
of the Constitution to commute the death sentence imposed upon the petitioner
into imprisonment for life. This is so because the President of India has
already considered the mercy petition of the petitioner once and has rejected
it.
We, therefore, recommend that for reasons
aforesaid, which could not have been before the President of India when he
rejected the mercy petition, he may commute the death sentence imposed upon the
petitioner.
The fate of Jeeta Singh has a posthumous
moral to tell.
He cannot profit by the direction which we
propose to give because he is now beyond the processes of human tribunals.
But we direct 239 that prior to the actual
execution of any death sentence, the Jail Superintendent should ascertain
personally whether the sentence of death imposed upon any of the co-accused of
the prisoner who is due to be hanged, has been commuted. If it has been
commuted, the Superintendent should apprise the superior authorities of the
matter, who, in turn, must take prompt steps for bringing the matter to the
notice of the Court concerned.
Order accordingly. The execution of the death
sentence is stayed until the decision of the President to whom a copy of this
judgment should be forwarded forthwith.
AMARENDRA NATH SEN, J. I have had the benefit
of reading the judgment to be delivered by the learned Chief Justice. I agree
with the order proposed by him. I, however, wish to make some observations of
my own.
The relevant facts of the case have been
succinctly and briefly stated by the learned Chief Justice in his judgment.
Three persons, namely, the petitioner,
Kashmira Singh and Jeeta Singh were convicted under S. 302 of the Indian Penal
Code and sentenced to death by the Additional Sessions Judge, Pilibhit by his
judgment dated 1st May, 1975. The High Court of Allahabad affirmed the judgment
of the Trial Judge in Criminal Appeal No. 1080 of 1975 and confirmed the death
sentence of the said three accused by its judgment dated 20th October, 1975.
Jeeta Singh filed in this Court a Special Leave Petition (No. 343 of 1976)
which was dismissed by this Court on 15th April, 1976. It appears that after
the dismissal of the Special Leave Petition of Jeeta Singh by this Court, Jeeta
Singh was executed on the 6th of October, 1981. Kashmira Singh filed a Special
Leave Petition No. 104 of 1976 in this Court and leave was granted by this
Court on the question of sentence only. By an order passed by this Court on the
10th April 1977 this Court allowed the appeal of Kashmira Singh (172/1976) by
leave of this Court and this Court commuted his sentence of death to one of
imprisonment of life. The other accused Harbans Singh who has filed this
petition had also filed a special leave petition No.658 of 1978. The Special
Leave Petition filed by Harbans Singh was dismissed by this Court on 16th
October 1978. It appears that Harbans Singh had applied for review of the said
order of this Court and the review petition of Harbans Singh (140 of 1979) was
also dismissed by this Court on 9th May, 1980.
Harbans Singh had thereafter filed a petition
to the President of India under Art. 72 of the Constitution. The Petition of
Harbans 240 Singh to the President of India was dismissed on the 22nd August,
1981. After the dismissal of the Petition of Harbans Singh to the President, the
date for execution of the death sentence imposed upon him was fixed and Harbans
Singh, has thereafter moved this Court and has filed this writ petition praying
for commutation of his death sentence and in the alternative praying for a
direction to the authorities to allow him the facilities to meet his near and
dear ones before the sentence of death imposed upon him is actually executed.
The unfortunate position appears to be that
in respect of the very same offence committed, one of the accused persons,
namely, Jeeta Singh has already been hanged; the death sentence imposed on
another accused, namely, Kashmira Singh, has been commuted to one of life
imprisonment; and Harbans Singh, the present petitioner, is now awaiting death
sentence to be executed.
When this Court dismissed the special leave
petition of Jeeta Singh by its order dated 15th April, 1976, the decision of
this Court in the case of Bachan Singh v. State of Panjab,(1) was not there. It
appears from the report that Bachan Singh's case in which constitutional
validity of the death penalty was upheld by this Court came to be decided by
this Court on 9th May, 1980. It further appears that in that case the validity
of the death sentence was upheld by four of the learned Judges on the Bench,
but Bhagwati J.
dissented from the view expressed by the
majority and he was of the opinion that "S. 302 of the IPC in so far as it
provides for imposition of death penalty as an alternative to life sentence, is
ultra vires and void as being violative of Art. 14 and 21 of the Constitution,
as it does not provide any legislative guidelines as to when life should be
extinguished by imposition of death sentence". The majority judgment of
the Bench was delivered by Sarkaria, J. on behalf of himself, Chandrachud, C.J.
and Gupta and Untwalia, JJ. While upholding the constitutional validity of
death sentence, this Court in Bachan Singh's case laid down certain principles
on the basis of which capital punishment may normally be imposed, recognising
at the same time that the punishment to be inflicted was a matter of judicial
discretion to be exercised with due care and caution.
When a bench of this Court dismissed the
special leave petition of Jeeta Singh who has since been executed, this Court
241 must have on a consideration of the facts and circumstances come to the
conclusion that death penalty had been rightly imposed on Jeeta Singh and there
was no need for interference by this Court with the judgment or the sentence
imposed. The special leave petition of Kashmira Singh was entertained by
another Bench of this Court. Though arising out of the same offence, this Court
must have felt that there were circumstances which did not justify the
imposition of the extreme penalty of death and this Court commuted the sentence
of death to one of life imprisonment.
It may be noticed that at the time the
special leave petition of Kashmira Singh was entertained by this Court and his
death sentence was commuted by an order of this Court dated 10th April, 1977,
the decision in the case of Bachan Singh was not there, though various other
decisions which came to be considered in the case of Bachan Singh were there.
The Special Leave Petition of the Petitioner
was dismissed by this Court on the 16th December, 1978. The review petition was
also dismissed by a Bench presided over by Sarkaria, J. on the 9th of May,
1980, the very day on which Bachan Singh's case appears to have been decided.
It unfortunately appears that the attention
of the Bench which dismissed the special leave petition and also the review
petition of the petitioner was not drawn to the fact that special leave
petition of the co-accused Kashmira Singh had already been entertained by this
Court and the death sentence imposed on Kashmira Singh had been commuted by
this Court to one of life imprisonment. The Bench which dismissed the special
leave petition and also the review petition of the present petitioner Harbans
Singh must have felt on consideration of the facts and circumstances that death
penalty had been rightly imposed on Harbans Singh and no interference by this
Court was called for. Though the Bench must have come to its decision on a
consideration of the facts and circumstances of the case, yet, to my mind, the
Bench would not have dismissed the special leave petition and the review
petition of Harbans Singh and would have commuted his death sentence to one of
life imprisonment, had the Bench been informed that in the identical case, the
co-accused of the petitioner had earlier filed a special leave petition which
had already been entertained by this Court and the capital punishment of the
co-accused Kashmira Singh had been commuted by this Court to one of life
imprisonment. It may be noticed that 242 the responsibility, involvement and
complicity of the petitioner Harbans Singh in the commission of the offence is
the same as that of the co-accused Kashmira Singh. As I have earlier noticed,
Harbans Singh had filed a petition to the President of India after the
dismissal of his petition for Special Leave and his petition for review by this
Court for commutation of death sentence and the said Petition of Harbans Singh
has also been rejected by the President.
To my mind, it will be a sheer travesty of
justice and the course of justice will be perverted, if for the very same
offence, the petitioner has to swing and pay the extreme penalty of death
whereas the death sentence imposed on his co-accused for the very same offence
is commuted to one of life imprisonment and the life of the co-accused is
shared. The case of the Petitioner Harbans Singh appears, indeed, to be
unfortunate, as neither in his special leave petition and the review petition
in this Court nor in his mercy petition to the President of India, this all
important and significant fact that the life sentence imposed on his co-accused
in respect of the very same offence has been commuted to one of life
imprisonment has been mentioned. Had this fact been brought to the notice of
this Court at the time when the Court dealt with the special leave petition of
the petitioner or even his review petition, I have no doubt in my mind that
this Court would have commuted his death sentence to one of life imprisonment.
For the same offence and for the same kind of involvement, responsibility and
complicity, capital punishment on one and life imprisonment on the other would
never have been just. I also feel that had the petitioner in his mercy petition
to the President of India made any mention of this fact of commutation of death
sentence to one of life imprisonment on his co-accused in respect of the very
same offence, the President might have been inclined to take a different view
on his petition.
In the circumstances hereinabove stated, I am
of the opinion that it will be manifestly unjust to allow the death sentence
imposed on the petitioner to be executed. The question that, however, troubles
me is weather this Court retains any power and jurisdiction to entertain and
pass any appropriate orders on the question of sentence imposed on the
petitioner in view of the fact that not only his special leave petition and
review petition have been dismissed by this Court but also the further fact
that his petition for clemency has also been rejected by the President.
243 Very wide powers have been conferred on
this Court for due and proper administration of justice. Apart from the
jurisdiction and powers conferred on this Court under Arts.
32 and 136 of the Constitution I am of the
opinion that this Court retains and must retain, an inherent power and
jurisdiction for dealing with any extra-ordinary situation in the larger
interests of administration of justice and for preventing manifest injustice
being done. This power must necessarily be sparingly used only in exceptional
circumstances for furthering the ends of justice. Having regard to the facts
and circumstances of this case, I am of the opinion that this is a fit case
where this Court should entertain the present petition of Harbans Singh and
this Court should interfere.
In the facts and circumstances of this case,
this Court would have been justified in commuting the death sentence imposed on
the petitioner to one of life imprisonment. As, however, the case of the
Petitioner had earlier been considered by the President of India to whom the
petitioner had presented the petition for mercy, I am of the opinion that
propriety and decorum require that the matter should be referred back to the
President instead of this Court deciding to commute the death sentence of the
petitioner to one of life imprisonment.
With these observations, I respectfully agree
with the order passed by the learned Chief Justice.
P.B.R. Petition allowed.
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