Question in this appeal is effect of delay in executing death sentence
1. The main question involved in these appeals is about the effect of delay in executing the death sentence.
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 Criminal Appeal Nos.2831 and 2832 of 2023 Page 2 of 58 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.
Conviction under sections 302, 376(2)(g), 364, 404, and 120-B of the Indian Penal Code (IPC) which was confirmed by Hon’ble High Court and Apex court
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. 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.
Mercy petitions filed by the convicts but no review petitions filed before Apex court
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.
Mercy petitions were rejected after five months
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 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.
President also rejected convicts mercy petitions
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 Criminal Appeal Nos.2831 and 2832 of 2023 Page 6 of 58 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 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.
Hon’ble Supreme court paragraph 8 of its judgment detailed the procedural steps taken by the –prison authorities and the Sessions Court regarding the execution of the death sentence. It highlights the communication between the Superintendent of Prison and the Sessions Court, requesting the issuance of a warrant for the execution of the death sentence. Despite multiple requests and reminders from the prison authorities, the Sessions Court delayed issuing the warrant. This delay, from June 2017 to April 2019, was deemed inordinate and avoidable, contributing to the overall delay in the execution process. The paragraph 8 underscores the lack of prompt action by the Sessions Court, which ultimately violated the convicts’ rights under Article 21 of the Constitution of India.
Legal proposition
22. The decision of this Court in the case of B.A.Umesh does not make a departure from the law laid down in the case of Shatrughan Chauhan & Anr4. On the contrary, paragraphs 44, 47 and 48 of the decision have been quoted therein with approval. We have carefully perused several other decisions of this Court which have been rendered in the facts of the case before this Court. The propositions laid down in these decisions can be summarized as under:
(i) Undue, unexplained and inordinate delay in execution of the sentence of death will entitle the convict to approach this Court under Article 32. But 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 altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable.
(ii) Keeping a convict sentenced to death in suspense while considering his mercy petitions by the Governor or the President for an inordinately long time is certainly agony for him/her. It creates adverse physical conditions and psychological stress on the convict under sentence of death. Therefore, this Court, while considering the delay in the disposal of clemency petitions by the highest constitutional authorities, while exercising its jurisdiction under Article 32 read with Article 21 of the Constitution, cannot excuse the agonising delay caused to the convict only based on the gravity of the crime; and
(iii) It is well established that Article 21 of the Constitution does not end with the pronouncement of the sentence but extends to the execution stage of that sentence. An inordinate delay in the execution of the sentence of death has a dehumanising effect on the accused. An inordinate delay caused by circumstances beyond the prisoners’ control mandates the commutation of a death sentence.
23. In paragraph 16 of the decision of this Court in the case of Triveniben3, the Constitution Bench held that while considering the delay in the execution of the death sentence, the period consumed in the judicial process culminating in the confirmation of the death sentence should not be taken into consideration. The reason for the said conclusion is that only after the judicial process in the form of the judgment of this Court in appeal / special leave petition arising out of the order of conviction does the order of death sentence become final. Therefore, the period required for judicial consideration cannot be termed as a delay in the execution of the death sentence, as till the conclusion of judicial proceedings arising out of the order of conviction, a sentence of death does not attain finality. The question of execution thereof arises only when the death sentence becomes final.
Execution procedure explained
24. We may refer to Sections 413 and 414 of the CrPC, which read thus:
“413. Execution of order passed under section 368.— When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
414. Execution of sentence of death passed by High Court.— When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.”
There are identical provisions in the BNSS in the form of Sections 453 and 454. These provisions constitute a vital safeguard. These provisions ensure that the execution of the death sentence takes place only after all remedies available to the convicts are exhausted. The executive cannot execute the death sentence unless the Sessions Court issues a warrant.
25. The proceedings for issuing a warrant for executing a death sentence under Sections 413 and 414 of the CrPC do not require any judicial adjudication. Before issuing the warrant, the Sessions Court must satisfy itself that the order of death sentence has attained finality and the review/curative or mercy petitions, if filed, have been finally rejected. Before issuing a warrant, the Sessions Court has to issue notice to the convict so that even the convict can state whether any other proceedings are pending before the Courts or Constitutional authorities. In a given case, the convict may not be interested in pursuing remedies. The Sessions Court can verify this aspect after issuing a notice to the convict. The Sessions Court, in such a case, must appraise the convict of the remedies available and, if required, provide legal aid to enable the convict to take recourse to such remedies. After the convict has been made aware of the remedies available, reasonable time be granted to the convict to consider, weigh and even consult a member of his family or friend to finally take a decision on adopting remedies as the possibility of thinking logically and rationally may be impeded or hampered because of the situation being faced by the convict. The Sessions Court can issue a warrant only after providing such reasonable time to the convict and after satisfying itself that the convict has taken a conscious decision of not pursuing the available remedies. The reasonable time can be of seven days. The Sessions Court can direct the counselling of the convict if it is not satisfied that the decision is a well-informed, considered and conscious decision. If such a procedure is followed, it enables the convict to take recourse to the available legal remedy. Moreover, if an order of issue of warrant of execution is passed after notice to the convict, it enables the convict to challenge the order of issuing a warrant of execution. But after the convict exhausts all remedies, including filing mercy petitions or after the Sessions Court is satisfied that the convict has taken a conscious decision of not availing the remedies, the execution warrant must be issued without any delay. It is the responsibility of the trial court to take up and conclude the proceedings of issuing a warrant of execution as expeditiously as possible. The trial court must give necessary out of turn priority.
Inordinate delay
27. A convict can invoke even the jurisdiction of a High Court under Article 226 of the Constitution if there is an inordinate and unexplained delay in the execution of the death sentence post-confirmation of the sentence. The High Court will apply the same principles summarised in paragraphs 22 to 25.
28. No hard and fast rule can be laid down as regards the length of delay, which can be said to be inordinate. It all depends on the facts of the case. In a given case, a delay of two years may not be fatal. In another case, a delay of six months can be a ground to commute sentence. The terms “undue” or “inordinate” cannot be interpreted by applying the rules of mathematics. The Courts, in such cases, deal with human issues and the effect of the delay on a particular convict. What delay is inordinate must depend on the facts of the case. For example, if a convict is more than seventy years old and is suffering from multiple ailments, an unexplained delay of even six months in deciding a mercy petition can amount to a violation of Article 21. Ultimately, the Courts will have to determine the effect of delay in the light of the principles laid down as aforesaid, considering the facts of the case before it.
Directions to curb the delays
38. The first direction which we propose to issue is regarding the nature of documents which ought to be immediately forwarded with the mercy petitions. The second direction we propose is that the State Government must set up a dedicated cell in either the Home Department or Prison Department to ensure prompt and expeditious processing of the mercy petitions. We also propose to direct the State Government to issue executive orders to ensure prompt processing of the mercy petitions.
39. Now, we come to the role of the Sessions Court. There cannot be any dispute that unless a warrant is issued for the execution of the death sentence under Section 413 or Section 414 of the CrPC, the death sentence cannot be executed. On this aspect, we must refer to a decision of this Court in the case of Shabnam v. Union of India and, in particular, paragraph 21. This Court held that the procedure laid down by the High Court of Allahabad in its decision in the case of People’s Union for Democratic Rights (PUDR) v. Union of India & Ors. is in consonance with Article 21 of the Constitution of India. Therefore, while executing the death sentence, it is mandatory to follow the procedure laid down by the Allahabad High Court in the decision mentioned above. The decision of the Allahabad High Court can be summarised as follows:
i. The principles of natural justice must be drawn into the provisions of Sections 413 and 414 of the CrPC, and sufficient notice ought to be given to the convict before issuance of a warrant for the execution of the death sentence by the Sessions Court, which would enable the convict to consult an advocate and represent him in the proceedings;
ii. The warrant for the execution of the death sentence must specify the exact date and time of the execution and not a range of dates within which the death sentence will be executed, which places the convict in a state of uncertainty. A reasonable time must be provided between the date of the order of issue of the execution warrant and the date fixed for actual execution so that the convict gets an opportunity to adopt a remedy against the warrant and to have a final meeting with the family members;
iii. A copy of the warrant must be immediately supplied to the convict, and
iv. After issuing a notice and before issuing a warrant of execution, if the convict is not represented by an advocate, legal aid should be provided to him. As held by this Court, the procedure described above is in conformity with Article 21 of the Constitution of India.
Operative directions
43. Hence, we pass the following order:
i. The impugned judgment and order, by which the death sentence of the convicts has been commuted to a fixed sentence of thirty-five years of imprisonment, is upheld, and Criminal Appeals are dismissed;
ii. As regards the mercy petitions, we issue the following directions to all the State Governments and Union Territories:
A. A dedicated cell shall be constituted by the Home Department or the Prison Department of the State Governments/Union Territories for dealing with mercy petitions. The dedicated cell shall be responsible for the prompt processing of the mercy petitions within the time frame laid down by the respective governments. An officer-incharge of the dedicated cell shall be nominated by designation who shall receive and issue communications on behalf of the dedicated cell;
B. An official of the Law and Judiciary or Justice Department of the State Governments/Union Territories should be attached to the dedicated cell so constituted;
C. All the prisons shall be informed about the designation of the officer-in-charge of the dedicated cell and his address and email ID;
D. As soon as the Superintendent of Prison/officerin-charge receives the mercy petitions, he shall immediately forward the copies thereof to the dedicated cell and call for the following details/information from the officer-in-charge of the concerned Police Station and/or the concerned investigation agency;
a. The criminal antecedents of the convict;
b. Information about family members of the convict;
c. Economic condition of the convict and his/her family;
d. The date of arrest of the convict and the period of incarceration as an undertrial; and,
e. The date of filing charge sheet and a copy of the committal order, if any.
On receipt of the request made by the jail authorities, the officer-in-charge of the concerned police station shall be under an obligation to furnish the said information to the jail authorities immediately;
E. On receipt of the said information, without any delay, the jail authorities shall forward the following documents to the officer-in-charge of the dedicated cell and the Secretary of the Home Department of the State Government:
a. Information furnished as aforesaid by the concerned Police Station with its English translation;
b. Copy of the First Information Report with its English translation;
c. Details, such as date of arrest of the convict, date of filing of chargesheet and actual period of incarceration undergone by the convict;
d. A copy of the committal order, if any, passed by the learned Judicial Magistrate;
e. A copy of charge-sheet with its English translation;
f. Report about the conduct of the convict in prison;
g. Copies of the notes of evidence, all exhibited documents in the trial and copies of statements of convicts under Section 313 of the CrPC with its English translation;
h. Copies of the judgments of the Sessions Court (with its English translation, if it is in vernacular language), High Court and this Court;
F. As soon as mercy petitions are received by the dedicated cell, copies of the mercy petitions 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;
G. All correspondence, as far as possible, be made by email, unless confidentiality is involved; and,
H. The State Government shall issue office orders/executive orders containing guidelines for dealing with the mercy petitions in terms of this judgment.
iii. The Registry of this Court shall forward copies of this judgment to the Secretaries of the Home Department of the respective State Governments/Union Territories for its implementation. The Secretaries shall report compliance within three months from today to the Registrar (Judicial) of this Court;
iv. The Sessions Court shall endeavour to follow the following guidelines:
a. As soon as the order of the High Court confirming or imposing the death sentence is received by the Sessions Court, a note thereof must be taken, and the disposed of case shall be listed on the cause list. The proceedings can be numbered as Misc. Application depending upon the applicable Rules of the procedure. The Sessions Court shall immediately issue notice to the State Public Prosecutor or the investigating agency calling upon them to state whether any appeal or special leave petition has been preferred before this Court and what is the outcome of the said petition/appeal;
b. If the State Public Prosecutor or the investigating agency reports that the appeal is pending, as soon as the order of this Court confirming or restoring the death sentence is received by the Sessions Court, again, the disposed of case or miscellaneous applications should be listed on the cause list and notice be issued to the State Public Prosecutor or the investigating agency to ascertain whether any review/curative petitions or mercy petitions are pending. If information is received regarding the pendency of review/curative petitions or mercy petitions, the Sessions Court shall keep on listing the disposed of case after intervals of one month so that it gets the information about the status of the pending petitions. This will enable the Sessions Court to issue a warrant for the execution of the death sentence as soon as all the proceedings culminate;
c. However, before issuing the warrant, notice should be issued to the convict, and the directions issued by the Allahabad High Court in the case of People’s Union for Democratic Rights (PUDR), and as elaborated above, shall be implemented by the Sessions Court;
d. The Sessions Courts shall consider what is held in Paragraph 25 above;
e. Copies of the order issuing the warrant and the warrant shall be immediately provided to the convicts, and the Prison authorities must explain the implications thereof to the convicts. If the convict so desires, legal aid be immediately provided to the convicts by the Prison authorities for challenging the warrant. There shall be a gap of fifteen clear days between the date of the receipt of the order as well as warrant by the convict and the actual date of the execution; and,
f. It shall also be the responsibility of the concerned State Government or the Union Territory administration to apply to the Sessions Court for the issuance of a warrant immediately after the death penalty attains finality and becomes enforceable.
v. A copy of this judgment shall be forwarded to both the convicts through the Jail Superintendent of the concerned jail.
vi. A copy of this judgment shall be forwarded to the Registrar Generals of all the High Courts, who in turn shall forward the copies thereof to all the Sessions Courts.
vii. These disposed of appeals shall be listed on 17th March 2025 for considering compliance.
Party
State Of Maharashtra & Ors. … Appellants versus Pradeep Yashwant Kokade & Anr. … Respondents – Criminal Appeal Nos.2831 and 2832 of 2023 – 2024 INSC 947 – December 9, 2024 – 3 Judge Bench
