PIL 41/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE B.D.AGARWAL (Amitava Roy, J) The instant application which is inextricably related to the issues invo lved in W.P.(Crl.) No. 17/2011 represents to espouse a social cause in furtheran ce whereof a direction has been sought for from this Court to ensure the executi on of the death sentence awarded to Mahendra Nath Das vide judgment and order da ted 18.8.2006 rendered by the learned Sessions Judge, Kamrup in Sessions Case No . 114(K)/96 and eventually affirmed by the Apex Court on 14.5.99. Meanwhile the Mercy Petition submitted by the convict before Her Excellency the President of I ndia has been rejected on 25.5.2011. Situated thus, Smt. Kusumbala Tarun Das, the mother of the convict has i nitiated W.P.(Crl.) No. 17/2011 seeking judicial intervention for conversion of the death sentence to one of life imprisonment. This Court by order dated 17.6.2 011 passed in W.P.(Crl.) No. 17/2011, while requiring the respondents to file th eir affidavits, has in the interim, suspended the proposed execution of the conv ict who is presently lodged in Jorhat Jail. This proceeding awaits final adjudic ation. We have heard Mr K Choudhury, learned counsel for the petitioner; Mr R S harma, learned Assistant Solicitor General, Union of India, Gauhati High Court, Guwahati and Mrs. B Goyal, learned State counsel. Mr AK Bhattacharjee, Senior Ad vocate assisted by Mr AC Barbarah, Senior Advocate and Mr Y Choudhury, Advocate appeared for the respondent No.5. For the order proposed to be passed, it is considered inessential to iss ue formal notice. The petitioner has introduced himself to be a practicing Advocate of thi s Court as well as a socially conscious citizen of the country. The instant peti tion, he has averred, has been filed for projecting the social concern against c ommutation of the capital punishment to life imprisonment or otherwise in cases of conviction for a gruesome offence of the kind in which the complicity of the convict abovenamed has been assuredly proved. While underlining the finality of the rejection of the Mercy Petition by Her Excellency, the President of India, i n exercise of powers under Article 72 of the Constitution of India, the petition er has sought to assert that the plea of infringement of the right to life under Article 21 of the Constitution in view of the delayed execution of the death se ntence, if entertained, would be destructive of the institution of justice conce ived in a orderly society. This the petitioner has asserted, would ensue as a re sult of one-sided entertainment of the pleas raised on behalf of the convict by totally overlooking the unbearable distress, agony, pain and sufferings of the k ith and kin of the deceased. Thereby, not only the underlying objectives of capi tal punishment in the rarest of rare eventualities would be defeated, it would r esult in effacement of the social contract enfolding the State and the citizens to provide fair justice to them. Reiterating the above with all emphasis, Mr Choudhury has argued that ap art from the detrimental impact of any decision favouring commutation of the dea th sentence on the society, the same would restore the convict to his revengeful mental state, thus, resurrecting a potential danger to the life and security of the citizens at large. Not only such a decision would record a wrong precedent without affording any opportunity of hearing to the members of the deceased’s fa mily, it would be in transgression of their fundamental rights under Article 14 and 21 of the Constitution as well, he urged. Mr Choudhury also argued that it i s not unlikely that the delay in disposal of the Mercy Petition had been deliber ate to facilitate an opportunity to him to pray for commutation of the death sen tence. Whereas the learned counsel for the official respondents refrained from responding to these arguments, Mr Bhattacharjee has sharply reacted thereto. Acc ording to Mr Bhattacharjee, the petition per se is not maintainable in law as th e convict has not been impleaded therein. According to him, the relief for compe nsation prayed in the alternative also demonstrates obvious lack of bonafide on the part of the petitioner. Mr Bhattacharjee has urged with reference to the dec ision of the Apex Court in Ashok Kumar Pandey -vs- State of West Bengal & Ors., (2004) 3 SCC 349 that not only the instant petition lacks in the essential attri butes of a Public Interest Litigation recognized in law, the petitioner being a third party for all intents and purposes, he ought to be declined access to the adjudication of the issues raised in W.P.(Crl.) No. 17/2011. As the petitioner h as failed to prove his credentials entitling him in law to pursue the instant pe tition, the same ought to be rejected, he contended. Mr Bhattacharjee dismissed the plea of deliberate delay in the disposal of the Mercy Petition as hypothetic al and emphasized that entertainment of the present petition would not be a good precedent. The pleaded averments and the rival arguments have received our due consideratio n. Noticeably, the instant petition has been lodged in the proximity of the inst itution of W.P.(Crl.) No. 17/2011. Evidently the instant petition is not by any of the family members of the deceased for whose death the convict had been award ed death penalty. It is nor by any relative or friend of his as well. On being q ueried by this Court, the learned counsel for the petitioner did not own any com munity of interest with the family of the deceased in the matter. The convict is not a party respondent in the present proceeding though having regard to the fr amework of the petition and the reliefs prayed for he ought to have been implead ed as such. The impleadment of his mother alone, in our estimate, is not in comp liance of the requirement of pleadings. The prayer for the alternative relief f or appropriate compensation to the family members of the victim/ deceased, havin g regard to the front of espousal of social cause to enforce capital punishment, is also intriguing. In Ashok Kumar Pandey (supra), a petition under Article 32 of the Constitution o f India was filed to commute the death sentence imposed on one Dhananjoy Chatter jee by the Sessions Court, Alipur, West Bengal and affirmed by the Calcutta High Court as well as the Apex Court with a prayer to convert the same to life sente nce in view of the delay in execution of the death sentence. While rejecting the said petition in the contextual facts, their Lordships observed that neither un der the provisions of the Criminal Procedure Code, 1973 nor under any other stat ute a third party stranger is permitted to question the correctness of the convi ction and sentence. In absence of any endeavour on the part of the family members of the victim/ dec eased and/or any friend or companion of his directly concerned and/or effected, we do not feel persuaded in the facts and circumstances of the case and in the t eeth of the plethora of decisions of the Apex Court bearing on the issue before us to entertain the instant petition as a Public Interest Litigation. The plea o f violation of the fundamental rights of the family of the deceased guaranteed u nder Article 14 and 21 of the Constitution of India also does not appeal to us, the official respondents having been impleaded in W.P.(Crl.) No. 17/2011. The pl ea of deliberate delay in the disposal of the Mercy Petition with regard to the averments made in instant petition also is wholly unconvincing and to say the le ast, grossly speculative. On a totality of considerations as above, we are constrained to hold that the in stant proceeding lacks in the imperative essentialities of a Public Interest Lit igation as mandated by a catena of authoritative pronouncements of the Apex Cour t as well as this Court. This petition is, thus, rejected. In the facts and circumstances of the case, however, we leave the partie s to bear their own costs.