Mohd. Arif @ Ashfaq vs The Reg. Supreme Court Of India & Ors

Rule 3 as it exists today was added on 9th August, 1978 with effect from 19th August, 1978.

21. I agree with my learned brother that death penalty results in deprivation of the most fundamental liberty guaranteed by the Constitution resulting in an irreversible situation. Therefore, such deprivation should be only in accordance with the law (both substantive and procedural) which is consistent with the constitutional guarantee under Articles 14 and 21 etc.

We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.

16. We may like to state at this stage itself that we are going to answer the above question in the affirmative as our verdict is that in review petitions arising out of those cases where the death penalty is awarded, it would be necessary to accord oral hearing in the open Court. We will demonstrate, at the appropriate stage, that this view of ours is not contrary to P.N. Eswara Iyer (supra), and in fact, there are ample observations in the said Constitution Bench judgment itself, giving enough space for justifying oral hearing in cases like the present.

31. We are of the opinion that “reasonable procedure” would encompass oral hearing of review petitions arising out of death penalties. The statement of Justice Holmes, that the life of law is not logic; it is experience, aptly applies here.

34. We feel that this oral hearing, in death sentence cases, becomes too precious to be parted with. We also quote the following observations from that judgment :

36. If a pyramidical structure is to be imagined, with life on top, personal liberty (and all the rights it encompasses under the new doctrine) immediately below it and other fundamental rights below personal liberty it is obvious that this judgment will apply only to death sentence cases. In most other cases, the factors mentioned by Krishna Iyer, J. in particular the Supreme Court’s overcrowded docket, and the fact that a full oral hearing has preceded judgment of a criminal appeal on merits, may tilt the balance the other way.

41. We are of the view that the justice of the situation in this class of cases demands a limited oral hearing for the reasons given above.

43. Turning now to the facts of W.P.No.77/2014, we find that the petitioner was arrested on 25.12.2000 and convicted by the learned Sessions Judge on 31-10-2005. The High Court dismissed his appeal on 13.9.2007 and the Supreme Court dismissed the appeal from the High Court’s judgment on 10.8.2011. The Review Petition of the petitioner was, thereafter, dismissed on 28.8.2012. We are informed at the bar that a curative petition was thereafter filed sometime in 2013 which was dismissed on 23.1.2014. All along, the petitioner has been in jail for about 13½ years. Since the curative petition also stands dismissed after the dismissal of review petition, we would not like to reopen all these proceedings at this stage. Also, time taken in court proceedings cannot be taken into account to say that there is a delay which would convert a death sentence into one for life. [See: Triveniben v. State of Gujarat, (1989) 1 SCC 678, at paras 16, 23, 72]. Equally, spending 13½ years in jail does not mean that the petitioner has undergone a sentence for life. It is settled by Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 that awarding a sentence of life imprisonment means life and not a mere 14 years in jail. In this case, it was held as follows:

53. Punishments- The punishments in which offenders are liable under the provisions of this Code are-

First - Death;

Secondly – Imprisonment for life;

Thirdly – [Omitted by Act 17 of 1949, sec. 2 (wef 6.4.1949)] Fourthly – Imprisonment, which is of two descriptions, namely -

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly - Forfeiture of property;

Sixthly- Fine.

[3] The offences for which death is one of the alternative punishments under IPC are under Sections 121, 132, 194, 302, 305, 307(3), 364A and 376A, 376E and 396.

[4] 28. Sentences which High Courts and Sessions Judges may pass:

(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered.