CRL No 133 of 1991
Under Article 32 of the Constitution of India
RK Jain Ravi Prakash Mrs Swati Kapoor Ms Abha R Sharma and Ms Rajni K Prasad for the Petitioner
464 Altaf Ahmed Additional Solicitor General Ms Kusum Choudhary C Ramesh and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by SHARMA J
On the basis of a letter received from a prisoner detained in Alipore Central Jail Calcutta drawing the attention of this Court to the long wait of Daya Singh the petitioner convicted for the murder of late Chief Minister of Punjab Pratap Singh Kairon lodged at present in Rohtak Jail Haryana pending the execution of his death sentence this case was registered as a writ petition and was listed before us on 2731991
All the relevant facts were not available from the letter but from the Office Report it appeared that the case of the condemned prisoner had earlier come to this Court
We directed the Registry to examine the earlier files and place before us the relevant details
In the meantime we stayed the execution of the death sentence
The learned carousel for the State of Haryana was also informed about the case
As directed the case was placed before us again on Monday the 1st April 1991 when Ms Kusum Chaudhary appeared on behalf of State of Haryana and orders were passed for notice to the counsel representing the Union of India
Having heard about the case the convict Daya Singh engaged his own counsel to represent him and to press this writ petition and accordingly Mr RK Jain appeared for him on 541991
We have in the circumstances treated this application as one directly by Daya Singh
The Union of India is represented by Additional Solicitor General of India
The case was further adjourned at the request of the counsel and was ultimately heard on 1641991
Mr Jain has contended that if the relevant circumstances of this case are examined in the light of the decisions of this Court the conslusion is irresistible that there has been inexcusable delay in executing the death sentence of the petitioner and the sentence should therefore be quashed by this Court under Article 32 of the Constitution
The petitioner was tried for the murder of Sardar Pratap Singh Karion which took place in 1965 and was convicted and sentenced to death by the trial court on 13121978
The sentence was confirmed by the High Court on 2231980
His Special leave petition was dismissed by this Court on 2181980 and a further prayer for review was rejected on 291981
He filed mercy petitions before the Governor and the President of India which were also rejected
465 Seveal orders of stay were passed from time to time the details whereof are not very significant in view of the rejection by this Court of an earlier application under Article 32 being Writ Petition No 191 of 1986 filed through his brother Lal Singh
The case was dismissed on October 11 1988 and the stay of the execution of the sentence stood vacated
The reasoned judgment however was pronounced later and is resported in Smt
Triveniben vs State of Gujarat  The petitioner filed another mercy petition thereafter before the Governor of Haryana on 18111988 and an order for stay of execution was again passed
The matter remained pending and the petitioner has been awaiting the final outcome of his last petion since then
On the basis of a newspaper report dated December 24 1990 it is alleged that the attention of the Deputy Prime Minister was drawn to the petitioner s case and the Deputy Prime Minister gave an assurance that he would examine the matter
The report drew the attention of Alipore Jail prisoner which prompted him to send the letter which led the Registry of this Court to register the present writ petition
The earlier writ petition of the petitioner Writ petition No 191 of 1986 filed through his brother Lal Singh was initially heard by a Division Bench of this Court and the matter along with a number of other applications on behalf of other convicts was referred for the decision of the Constitution Bench
The cases were heard at considerable length by the Constitution Bench of which one of us SharmaL was a member and the leading argument at that stage was also made by Mr RK Jain when all aspects of the cases were thoroughly considered
Finally this Court substituted the sentence of death of one convict Harbhajan Singh in another case by the sentence of imprisonment for life but the other writ petitions including that of the prisoner were dismissed
In the circumstances the petitioner cannot succeed on the basis of the earlier delay
The operative part of the judgment as stated earlier was passed in October 1988 and what is now relevant to consider is the delay subsequent to this date
Before proceeding further we may refer to the decision in Smt
Triveniben s case laying down the principle which governs the present petition
Although the cases were disposed of by two judgements according to the opinion of the Bench which was unanimous undue delay in execution of the sentence of death entitles the condemned prisoner to approach this Court under Article 32 but this Court will examine only the nature of delay caused and circumstances ensued after the sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the 466 Court while finally maintaining the sentence of death
Further while considering the grievance of inordinate delay this Court may consider all the circumstances of the case for deciding as to whether the sentence of death should be altered into imprisonment for life and no fixed period of delay could be held to make to sentence of death inexecutable
In the light of these observations the circumstances of the present case are to be examined
It is true that while rejecting the earlier prayer of the petitioner on October 11 1988 all the relevant considerations were taken into account and the petitioner cannot be permitted to raise the same plea once rejected by repeated petitions
But this does not deprive the petitioner the right to renew the prayer on fresh circumstances arising later and therefore not considered
This is the position in the present case
Although the matter was finally closed by this Court in October 1988 the petitioner continues to remain in a state of suspense since then
The main question is as to what is the effect of this delay
The initial reason for the further delay has been a fresh mercy petition filed by the petitioner
Does this fact justify keeping him under a sence of anticipation for more than two years If the prayer was not considered fit be rejected at once it was certainly appropriate to have stayed the execution but the matter should have been disposed of expeditiously and not kept in abeyance as has been done
The counter affidavit filed on behalf of the Union of India states that on the receipt of the last mercy petition the Governor of Haryana immediately made a reference to the President of India seeking enlightenment on the question as to whether the Governor while dealing with such applications is bound by the advice of the Chief Minister of the State and whether it is open to the Governor to exercise his constitutional power in a case where an earlier application to the same effect had been rejected by the President
Soon after the receipt of this communication the matter was referred to the Department of Legal Affairs Ministry of Law and Justice for advice and the Ministry suggested that the question should be discussed with the Attorney General of India
Since the matter remained under consideration no reply could be sent to the quarry and ultimately it was only in March this year that the reply could be sent in the shape of a directive under Article 2571 of the Constitution to all the Chief Secretaries of the State Governments and Union Territories
The affidavit however does not furnish any fact or circumstance in justification of the delay
In absence of any reasonable explanation by the respondents we are of 467 the view that if the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed we have no doubt that the entire process of consideration of the questions referred would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned Additional Solicitor General as embarrassing gap
There has thus been an avoidable delay which is considerable in the totality of circumstances in the present case for which the condemned prisoner in in no way responsible
As was cautioned by this Court in Smt
Triveniben s case we are not laying down any rule of general application that the delay of two years will entitle a convict sentenced to death to conversion of his sentence into one for life imprisonment rather we have taken into account the cumulative effect of all the circumstances of the case for considering the prayer of the petitioner
Although the fact that the petitioner has been continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition the same is not rendered completely irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of the relevant circumstances arising subsequent to the judgment rendered in October 1988
Having regard to all the circumstances of the case we deem it fit to and accordingly substitute the sentence of imprisonment for life in place of the petitioner s death sentence
The writ petition is accordingly allowed
In the letter from Alipore Jail a prayer has been made for the release of the petitioner
As was indicated in Triveniben s case the only relief a convict awaiting execution of death sentence can get from this Court on the ground of delay is conversion of the sentence into that of life imprisonment
However on conversion of the death sentence to life imprisonment the petitioner would now be governed and dealt with as a life convict for all purposes
We are not required to say anything more in this behalf
This prayer made in the letter is rejected
RP Petition allowed


Summary:
One R the wife of S disappeared from her husband s house
She was traced to the house of the appellants A and his brother B
When S went there and asked A to let his wife go with him A told him that he had married her and B threatened S and asked him to go away
The appellants were charged under section 498 Indian Penal Code for detaining R when they knew or had reason to believe that she was the wedded wife of S with intent to have illict intercourse with her
The appellants pleaded that R was not validly married to S and that she had not been detained by them inasmuch as she was tired of living with S and had voluntarily and of her free will come to stay with them
The Magistrate found the appellants guilty convicted them and sentenced them to undergo simple imprisonment for two months each
On appeal the Sessions Judge confirmed the conviction but reduced the sentence to a fine of Rs 50 each
The appellants filed a revision before the High Court
The High Court issued a notice of enhancement and after hearing the appellants dismissed the revision and enhanced the sentence to rigorous imprisonment for six months each
Held that detention in section 498 means keeping back a wife from her husband or any other person having the care of her on behalf of her husband
Such keeping back may be by force but it need not be by force
It can be the result of persuasion allurement or blandishments which may have either caused the willingness of the woman or may have encouraged or co operated with her initial inclination to leave her husband
The object of the section is to protect the rights of the husband and it cannot be any defence to the charge to say that though the husband has been deprived of his rights the wife is willing to injure the said rights and so the person who is responsible for the willingness has not detained her
A was rightly convicted as the charge of detention was proved against him on the findings of the Courts below that he had offered to marry R and had thereby either persuaded or encouraged her to leave her husband s house
But the charge was not made out against B as it was not proved that he had offered any inducement blandishment or allurement to R for leaving the protection of her husband and for refusing to return to him
465 Sundara Dass Teva 1868 IV Mad H C R 20 Ramaswamy Udayar vs Raju Udayar A 1
R  Emperor vs Jan Mohomed 1902 IV Bom
LR 435 Broomfield J in Emperor vs
Mahiji Fula Bom
88 Emperor vs Ram Narayan Baburao Kapur  Mahadeo Rama vs Emperor AIR 1943 Bom
179 Prithi Missir vs Harak Nath Singh ILR  Bipad Bhanjan Sarkar vs Emperor ILR  Banarsi Raut vs Emperor AIR 1938 Pat
432 and Bansi Lal vs The Crown 19I3 Punj
LR 1066 approved
Divatia J in Emperor vs Mahiji Fula Bom
88 Mabarak Sheikh vs Ahmed Newaz and Harnam Singh vs Emperor AIR 1939 Lah
295 disapproved
Held further that the High Court was not justified in en hancing the sentence to six months rigorous imprisonment and it should have only restored the sentence passed by the trial Court
The question of sentence is normally in the discretion of the trial Court and the High Court can enhance the sentence only if it is satisfied that the sentence imposed by the trial Court is unduly lenient or that in passing the order of sentence the trial Court had manifestly failed to consider the relevant facts
The sentence of two months simple imprisonment imposed by the trial Court was not so unduly or manifestly lenient as not to meet the ends of justice