Ramdeo Chauhan @ Rajnath Chauhan vs Bani Kant Das & Ors

1. This case has a chequered background. The facts, therefore, are to be appreciated in their sequence.

3. On 31.3.1998, the Trial Court held the petitioner guilty of murdering four members of Bhabani Charan Das's family and that all the charges under Sections 302, 323, 325 and 326 of IPC against him were proved beyond all reasonable doubt. The Trial Court also opined that the crime fell within the category of `rarest of rare cases' and the petitioner deserved death penalty.

4. However, the defence raised the plea that at the time of commission of the crime, the petitioner was below 16 years of age. To determine the actual age of the petitioner, Dr. Bhushan Chandra Roy, Associate Professor of Forensic 2 Medicine of Guwahati Medical College, with a team of doctors, examined him on 23.12.1997. The defence examined the father of the petitioner, Mr. Firato Chauhan and also placed reliance on the school admission register. The school register was held to be unreliable, as it was not properly maintained. Further, the petitioner's father estimated the petitioner's age to be 19 years at the time of occurrence of the crime.

5. However, on the basis of the physical and radiological examination done of the petitioner, the doctor was definitely of the opinion that his age was above 20 years but could not be more than 21 years on the date of the examination. This examination was conducted more than 5= years after the date of commission of the crime.

11. The appeal from the High Court judgment was dismissed by a Bench of this Court, comprising K.T. Thomas and R.P. Sethi, JJ, on 31.7.2000 and death sentence was upheld. In that judgment, this court did not advert to the question of age of the petitioner as it was possibly not argued.

18. At about the same time when the petition for commutation was pending, Dr. Ved Kumari, Professor of the Faculty of Law, University of Delhi, wrote a fairly detailed article titled "Has a child been executed in India?" The said 8 article came to be noticed by National Human Rights Commission (NHRC). Thereupon, NHRC sent a notice to Dr. Ved Kumari. In the meantime, the judgment in the review petition, as aforesaid, was pronounced by this Court on 10.5.2001.

19. On 21.5.2001, the full Commission of NHRC, consisting of the Chairperson, Mr. Justice J.S. Verma, as also two of its judicial members, namely, Dr. Justice K. Ramaswany and Justice Ms. Sujata V. Manohar, and the other member Sri Virendra Dayal, held its proceedings, in which the judgment rendered in the review proceeding was perused.

21. Thereafter, on 28.1.2002, the Governor of Assam commuted the death sentence of the petitioner to one of life imprisonment. The Order of the Governor runs as under:

26. In this second review, notice was issued by this Bench for formal hearing by an order dated 3rd September, 2009. One of the reasons for issuing notice was that one of the grounds put forward was that the judgment under review was passed without hearing Ram Deo Chauhan, the petitioner, and without providing him legal aid. However, 12 almost at the conclusion of the hearing of this proceeding, this Court found that the aforesaid representation was not correct. The correct position was that by an order dated 19th November, 2005, Mr. Muralidhar was appointed by the Registrar of this Court to represent the petitioner. After Mr. Muralidhar, became a Judge of Delhi High Court, the Registrar appointed one Mr. Vijay Panjwani, an advocate of this Court, to represent the review petitioner. Mr. Panjwani filed a counter affidavit in the Article 32 proceeding. However, from the judgment under review, it does not appear that Mr. Panjwani appeared before the Court and made his submissions.

24. In passing that order, the Bench was of the opinion that the NHRC proceedings were not in line with the procedure established under the 11 Protection of Human Rights Act, 1993 (hereinafter, `the 1993 Act') and therefore, NHRC's recommendations were void. Further, the order of the Governor of Assam directing commutation did not indicate any reason and was based on the recommendations of NHRC, which itself were without jurisdiction. Thus, the writ petition was allowed and the order of the Governor of Assam was quashed and this Court directed re-consideration afresh of the petitioner's prayer for commutation of sentence.

28. The question is whether this second review should be dismissed in view of such misleading 13 stand having been taken by the petitioner while invoking this Court's jurisdiction of review.

70. However, in the facts of this case, NHRC has not committed any illegality by taking into consideration the article written by Professor Ved Kumari and then making a mere recommendation to the Governor, for considering the petitioner's plea for commutation. We are of the opinion that in doing so, NHRC acted within its jurisdiction.

72. After quoting that, the impugned judgment quashes the order of commutation by the Governor and directed reconsideration.

73. On review of the aforesaid reasoning, we find that this finding in the judgment is vitiated by errors apparent on the face of the record.

77. It was open to the Bench passing the judgment under review to peruse the entire record.

88. Mr. P.S. Patwalia, the amicus appearing in the case, objected to this Court making a pronouncement on this question which is argued for the first time in review even though it is not pleaded in the review petition as a ground for review.

91. Following the discipline of Order XLVII, Rule 1 or the concept of `an error apparent on the face of the record', we possibly cannot pronounce in a review petition on a question, which was open to be raised in the original proceeding, but was not raised. That apart, it has not at all been pleaded in the review petition. For these reasons, this Court refrains itself from pronouncing on the rights of the petitioner under Juvenile Justice (Care and Protection) Act, 2000 as amended by the 2006 Amendment. If he is so advised, it is open to the petitioner to agitate on his rights under the said Act before the appropriate Forum and in appropriate proceedings.

92. If such a proceeding is initiated by the petitioner, the same will be dealt with without being impeded by any observation made or finding reached in any of the judgments arising out of the concerned criminal 43 case against the petitioner, by any Court, including this Court.

93. For the reasons discussed above and considering the aforesaid legal issues, this Court concludes as follows:

(ii) The order of the Governor dated 28.1.2002 passed under Article 161 of the Constitution is restored and the order of commutation of death sentence awarded to the petitioner to one of life imprisonment stands.

(iii) This Court holds that in the facts of this case, NHRC had the jurisdiction to make the relevant recommendation.

94. The review petition is allowed to the extent indicated hereinabove.

95. Parties are left to bear their own costs.