MUKESH KUMAR   versus UNION OF INDIA AND OTHERS
[2020] 1 S.C.R. 761, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Body
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MUKESH KUMAR
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) 40 of 2020)
JANUARY 29, 2020
[R. BANUMATHI, ASHOK BHUSHAN
AND A.S. BOPANNA, JJ.]
Constitution of India – Arts. 32, 72 and 161 – Rejection of
mercy petition filed by a death-row convict – Judicial review of –
Petitioner was convicted in Nirbhaya’s case which relates to the
gang rape of the victim – The Trial Court recorded the incident
within the category of ‘rarest of rare cases’ and sentenced the
petitioner to death – The High Court and the Supreme Court
confirmed the death sentence – The petitioner, after exhausting all
his remedies filed mercy petition on 14.01.2020 addressed to the
President of India u/Art. 72 and Lieutenant Governor u/Art. 161 of
the Constitution through the Superintendent, Tihar Jail – The
Petitioner’s mercy petition was rejected by respondent no.1-
Lieutenant Governor on 15.01.2020 and by the President of India
on 17.01.2020 – Writ Petition by the petitioner before the Supreme
Court – The petitioner sought commutation of his death sentence
inter alia on the grounds: (i) Relevant materials were not placed
before the President of India and they were kept out of consideration
while considering the mercy petition; (ii) There was a pre-determined
stance and complete non-application of mind in rejection of the
mercy petition; (iii) the petitioner was under solitary confinement
for more than one and half years; (iv) Non-consideration of relevant
circumstances likes
prisoners’ suffering in the Prison; (v) Non-
observance of established rules and guidelines in considering the
petitioner’s mercy petition – Held: The Supreme Court has taken
the consistent view that the executive orders u/Arts. 72 and 161 of
the constitution should be subject to limited Judicial review–The
two files containing communications of the Ministry of Home Affairs,
NCT of Delhi and the office of Lieutenant Governor and file
containing the note put up before the President of India were perused
– It was found that all the relevant documents viz. the judgment of
   [2020] 1 S.C.R. 761
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the Trial Court, High Court and the Supreme Court, records of the
case, details of the review/curative petitions and other details of
the petitioner like past criminal history etc., the recommendation of
the Government of NCT of Delhi were all sent and placed before
the President of India along with mercy petition – Thus, there is no
merit in the contention that the relevant materials were kept out of
the consideration of the President – Further, it must be presumed
where the power is vested in a very high authority, it must be
presumed that the said authority would act carefully after an
objective consideration of all the aspects – The quick rejection
petitioner’s mercy petition is not a ground for review nor does it
suggest that there was pre-determined and non-application of mind
– Insofar as alleged sufferings of the petitioner in the prison is
concerned, as per the settled legal position held in Narayan Dutt
and others v. State of Punjab and another, Epuru Sudhakar and
Another v. Govt. of A.P. & Ors. and Shatrughan Chauhan and
another v. Union of India and others, the exercise of power u/Art.
72/161 of the Constitution is subject to challenge only on the grounds
indicated thereon – The alleged sufferings in prison cannot be a
ground for judicial review of the executive order passed u/Art. 72
of the Constitution rejecting the petitioner’s mercy petition –
Resultantly, there were no grounds for exercise of judicial
review of
the order of the President of India rejecting the petitioner’s mercy
petition.
Shatrughan Chauhan and another v. Union of India
and others (2014) 3 SCC 1 : [ 2014] 1 SCR 609 (6);
Bikas Chatterjee v. Union of India and Another (2004)
7 SCC 634 (14); Epuru Sudhakar and Another v. Govt.
of A.P. and Others (2006) 8 SCC 161 : [2006] 7 Suppl.
SCR 81 (16) – relied on.
Mukesh and Another v. State (NCT of Delhi) and Others
(2017) 6 SCC 1 : [2017] 6 SCR 1 (2); Sunil Batra v.
Delhi Administration and Others (1978) 4 SCC 494 :
[1979] 1 SCR 392 (6); Devender Pal Singh Bhullar v.
State of (NCT of Delhi) (2013) 6 SCC 195 : [2013] 6
SCR 676 (10); Kehar Singh v. Union of India (1989) 1
SCC 204 : [1988] 3 Suppl. SCR 1102 (11); Satpal v.
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State of Haryana (2000) 5 SCC 170 : [2000] 3 SCR
858 (14); Narayan Dutt and others v. State of Punjab
and another (2011) 4 SCC 353 : [2011] 4 SCR 983(16);
Maru Ram v. Union of India and others (1981) 1 SCC
107(26); Narayan Dutt and others v. State of Punjab
and another (2011) 4 SCC 353 : [2011] 4 SCR 983
(31) – referred to.
Case Law Reference
[2017] 6 SCR 1
referred to
Para 2
[2014] 1 SCR 609
relied on
Paras 6, 11
[1979] 1 SCR 392
referred to
Paras 6, 27
[2013] 6 SCR 676
referred to
Para 10
[1988] 3 Suppl. SCR 1102
referred to
Para 11
[2000] 3 SCR 858
referred to
Para 14
(2004) 7 SCC 634
relied on
Para 14
[2006] 7 Suppl. SCR 81
relied on
Paras 16, 31
[2011] 4 SCR 983
referred to
Paras 16, 31
(1981) 1 SCC 107
referred to
Para 26
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 40 of 2020.
[UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]
Ms. Anjana Prakash, Ms. Rebecca John, Sr. Advs., Ms. Vrinda
Grover, Siddhartha Sharma, Mrigank Prabhakar, Ms. Naulshree Pathak,
Harsh Bora, Ms. Ratha Appnender, Ms. Praavita Kashyap, Ms. Joshika
Saraf, Gautam Prabhakar, Ms. Sakshi Banga, Ms. Tanima Kishore, Advs.
for the Petitioner.
Tushar Mehta, SG, Chirag M. Shroff, Ms. Supriya Juneja,
Ms. Swati Ghildiyal, Kanu Agrawal, Jitendra Kr. Jha, Ms. Seema
Koshwaha, S. Nayanam, Abhilasha Bharti, Ms. Vandana Ranjan, Rajat
Nair, B.V. Balaram Das, Advs. for the Respondents.
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
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The Order of the Court was passed by
R. BANUMATHI, J.
This writ petition has been filed under Article 32 of the Constitution
of India by the petitioner-Mukesh Kumar - a death-row convict. The
petitioner has filed the writ petition challenging the rejection of his mercy
petition by the President of India and seeking commutation of his death
sentence inter alia on the following grounds:-
(i)
Relevant materials were not placed before the President of
India and they were kept out of consideration while
considering the mercy petition;
(ii)
The mercy petition was rejected swiftly and there was pre-
determined stance and complete non-application of mind in
rejection of the mercy petition;
(iii) Solitary confinement of the petitioner for more than one and
half years due to which the petitioner has developed severe
psychiatric ailments;
(iv) Non-consideration of relevant circumstances like prisoners’
suffering in the prison and consideration of extraneous and
irrelevant circumstances; and
(v)
Non-observance of established rules and guidelines in
considering the petitioner’s mercy petition.
2. The present writ petition relates to rejection of petitioner’s mercy
petition by the President of India. The petitioner is a death-row convict
in Nirbhaya’s case which relates to the gangrape of the victim in the
moving bus in Delhi on the night of 16.12.2012. The trial court convicted
the petitioner and other co-accused by judgment dated
13.09.2013. The
High Court confirmed the death sentence by its judgment dated
13.03.2014 and the Supreme Court confirmed the same vide judgment
dated 05.05.2017. In the judgment dated 05.05.2017 in Mukesh and
Another v. State (NCT of Delhi) and Others (2017) 6 SCC 1, this
Court after referring to various judgments and by elaborate reasonings
held that there were no extenuating or mitigating circumstances. Likewise,
the trial court and the High Court have also recorded detailed reasonings
that the incident was brutal and falling within the category of “rarest of
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rare cases”. The review petition was heard by the Supreme Court in
open court and the same was considered and dismissed by judgment
dated 09.07.2018. In the writ petition, the petitioner has enumerated
dates and events right from day of petitioner’s arrest i.e. 18.12.2012
from his village in connection with FIR No.413/2012 registered at Vasant
Vihar P.S. till 14.01.2020 – the date on which the Supreme Court dismissed
the petitioner’s curative petition.
3. According to the petitioner, after exhausting all his remedies,
he has filed mercy petition on 14.01.2020 addressed to the President of
India under Article 72 of the Constitution of India and to the Lieutenant
Governor under Article 161 of the Constitution and the through the
Superintendent, Tihar Jail No.2. The Superintendent, Tihar Jail No.2
forwarded the petitioner’s mercy petition along with his nominal roll,
latest medical report of the petitioner, trial court judgment and details of
the punishment of the petitioner to Officer in Charge – Legal, Prison,
Tihar Jail for processing of the petitioner’s mercy petition. The grievance
of the petitioner is that despite a provision for recommendation by the
jail superintendent in nominal roll, the Superintendent (Prison), Tihar Jail
who had the opportunity to observe the petitioner on a daily basis is the
person who is best placed to opine whether the petitioner has repented
and reformed and is eligible for grant of pardon. According to the
petitioner, his
conduct in prison and his capacity to reform, is a crucial
consideration for mercy.
4. It is alleged that within 24 hours of petitioner’s mercy petition,
on 15.01.2020, the Deputy Chief Minister announced that the Government
has recommended the rejection of the mercy petition of the petitioner
and sent it to the Lieutenant Governor. The petitioner’s mercy petition
was rejected by respondent No.1 – Lieutenant Governor on 15.01.2020.
On 16.01.2020, respondent No.2-NCT of Delhi has recommended the
rejection of petitioner’s mercy petition and the same was forwarded to
the President of India. The petitioner’s mercy petition was rejected by
the President of India on 17.01.2020. Pursuant to the rejection of
petitioner’s mercy petition, learned Sessions Judge on 17.01.2020 issued
a fresh execution warrant directing the petitioner to be executed on
01.02.2020.
5. Since the petitioner did not possess any documents pertaining
to the consideration of his mercy petition, on 17.01.2020, petitioner through
his lawyer moved the application before the Superintendent, Tihar Jail,
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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Secretary Home Department, Government of NCT and Secretary Home
Department, UOI requesting for all documents pertaining to his mercy
petition. On 20.01.2020, petitioner also filed RTI application before the
Superintendent, Tihar Jail, Secretary Home Department, Government
of NCT and Secretary Home Department, UOI requesting for supply of
all documents pertaining to his mercy petition. In response to the
application moved through petitioner’s lawyer as well as his RTI
application dated 20.01.2020, the Superintendent, Tihar Jail provided the
petitioner with the documents pertaining to the petitioner’s mercy petition
between 20.01.2020 and 23.01.2020.
6. Ms. Anjana Prakash, learned Senior counsel for the petitioner
submitted that power under Article 72 of the Constitution is the
constitutional duty and is to be exercised in the light of the guidelines and
with great care and circumspection. Placing reliance upon Shatrughan
Chauhan and another v. Union of India and others (2014) 3 SCC
1, it was submitted that while forwarding the mercy petition, all the relevant
documents like case records, judgment of the trial court, High Court and
the Supreme Court should be placed before the President of India an the
Home Ministry is to send their views within reasonable time.  Placing
reliance upon communication from the Superintendent, Tihar Jail dated
14.01.2020, the learned Senior counsel submitted that as laid down in
Shatrughan
Chauhan, the relevant materials had not been placed before
the President of India and the relevant materials had been kept out of
consideration.  The learned Senior counsel inter alia submitted that in
violation of the principles laid down in Sunil Batra v. Delhi
Administration and Others (1978) 4 SCC 494, the petitioner had been
kept in solitary confinement and this aspect has not been taken into
consideration. It was further contended that the sufferings of the petitioner
in the prison during the custody has not been taken into consideration
while considering his mercy petition.
7. Refuting the contention of the petitioner, Mr. Tushar Mehta,
learned Solicitor General submitted that while forwarding the mercy
petition all the relevant materials as laid down in paras 23 and 24.2 of
Shatrughan Chauhan have been placed before the President of India.
The learned Solicitor General submitted that all the guidelines laid down
in Shatrughan Chauhan and other judgments have been substantially
complied with.  Insofar as the averments of solitary confinement, the
learned Solicitor General submitted that as per the affidavit of the Director
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General, Prisons, the petitioner was only kept in a single room with iron
bars open to air and the petitioner was intermingling with other prisoners
as per rules and the same cannot be equated to solitary confinement.  So
far as the averment as to quick rejection of the mercy petition, the learned
Solicitor General submitted that delay in disposal of the mercy petition
may be a ground for consideration of the mercy petition; whereas quick
consideration of the mercy petition and rejection of the same cannot be
a ground for judicial review of the order of the President under Article
72 of the Constitution nor does it suggest that there was pre-determined
mind and non-application of mind.
8. We have heard Ms. Anjana Prakash, learned Senior counsel
appearing for the petitioner and Mr. Tushar Mehta, learned Solicitor
General appearing for Union of India and Govt. of NCT of Delhi and
considered their submission and perused the averments made in the
petition.
9. What is impugned in this writ petition is the rejection of petition
under Article 72 of the Constitution of India by the President of India on
17.01.2020. In this writ petition filed under Article 32 of the Constitution,
the petitioner challenges the order of rejection of his mercy petition by
the President of India inter alia on the various grounds that the settled
principles of consideration of mercy petition have not been followed.
10. As per Article 72 of the Constitution, the President of India
shall have the power to grant pardons, reprieves, respites or remissions
of punishment or to suspend, remit or commute the sentence of any
person convicted of any offence. As per Article 72(1)(c) of the
Constitution, the power is inclusive of commutation in cases where the
sentence is a sentence of death. Under Article 161 of the Constitution,
similar is the power of the Governor to give relief to any person convicted
of any offence against any law relating to a matter to which the executive
power of the State extends. The disposal of the petitions filed under
Articles 72 and 161 of the Constitution requires consideration of various
factors i.e. the nature of crime, the manner in which the crime is
committed and its impact on the society and that the time consumed in
this process cannot be characterised as delay. As held in Devender Pal
Singh Bhullar v. State of (NCT of Delhi) (2013) 6 SCC 195 that the
disposal of the mercy petitions filed under Articles 72 and 161 of the
Constitution of India requires consideration of various factors.
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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11. After referring to Kehar Singh v. Union of India (1989) 1
SCC 204 and other judgments, in Shatrughan Chauhan and another
v. Union of India and others (2014) 3 SCC 1, the Supreme Court
considered the power of the President or the Governor of the State
under Articles 72 and 161 of the Constitution and observing that it is a
constitutional duty, held as under:-
“14. Both Articles 72 and 161 repose the power of the People in
the highest dignitaries i.e. the President or the Governor of a State,
as the case may be, and there are no words of limitation indicated
in either of the two Articles. The President or the Governor, as
the case may be, in exercise of power under Articles 72/161
respectively, may examine the evidence afresh and this exercise
of power is clearly independent of the judiciary. This Court, in
numerous instances, clarified that the executive is not sitting as a
court of appeal, rather the power of President/Governor to grant
remission of sentence is an act of grace and humanity in
appropriate cases i.e. distinct, absolute and unfettered in its
nature.”
…….
19. In concise, the power vested in the President under Article 72
and the Governor under Article 161 of the Constitution is a
constitutional duty. As a result, it is neither a matter of grace nor
a matter of privilege but is an important constitutional responsibility
reposed by the People in the highest authority. The power of
pardon is essentially
an executive action, which needs to be
exercised in the aid of justice and not in defiance of it. Further, it
is well settled that the power under Articles 72/161 of the
Constitution of India is to be exercised on the aid and advice of
the Council of Ministers.”
12. The manner of exercise of the power under the said Articles
is a matter of discretion. In Shatrughan Chauhan in para (25), the
Supreme Court held that “the manner of exercise of the power under
the said Articles is primarily a matter of discretion and ordinarily
the courts would not interfere with the decision on merits. However,
the courts retain the limited power of judicial review to ensure that
the constitutional authorities consider all the relevant materials
before arriving at a conclusion.”
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13. The Supreme Court has taken the consistent view that the
executive orders under Articles 72 and 161 of the Constitution should be
subject to limited judicial review. In Shatrughan Chauhan, it was held
as under:-
“22. ….. Accordingly, there is no dispute as to the settled legal
proposition that the power exercised under Articles 72/161 could
be the subject-matter of limited judicial review. (Vide Kehar Singh
v. Union of India (1989) 1 SCC 204, Ashok Kumar v. Union of
India (1991) 3 SCC 498, Swaran Singh v. State of U.P. (1998)
4 SCC 75, Satpal v. State of Haryana (2000) 5 SCC 170 and
Bikas Chatterjee v. Union of India (2004) 7 SCC 634.)”
14. The grounds for judicial review of rejection petition under
Article 72 of the Constitution of India by the President of India has been
laid down in Satpal v. State of Haryana (2000) 5 SCC 170 which has
been referred to with approval by the Constitution Bench in Bikas
Chatterjee v. Union of India and Another (2004) 7 SCC 634 wherein
it was held as under:-
“9. In a Division Bench decision of this Court in Satpal v. State
of Haryana (2000) 5 SCC 170 these very grounds have been
restated as: (i) the Governor exercising the power under Article
161 himself without being advised by the Government; or (ii) the
Governor transgressing his jurisdiction; or (iii) the Governor passing
the order without application of mind; or (iv) the Governor’s
decision is based on some extraneous consideration; or (v) mala
fides. It is on
these grounds that the Court may exercise its power
of judicial review in relation to an order of the Governor under
Article 161, or an order of the President under Article 72 of the
Constitution, as the case may be.
10. In the case of Maru Ram v. Union of India, the Bench
noted that the power conferred by Article 72 is a high prerogative
power vested by the Constitution in the highest functionary of the
Union. The Constitution Bench has also held that while exercising
the power of judicial review the Court shall keep in mind that
where a power is vested in a very high authority, it must be
presumed that the said authority would act properly and carefully
after an objective consideration of all the aspects of the matter
and further, the higher the power the more cautious would be its
exercise.”
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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15. Although the decision of the President of India under Article
72 of the Constitution of India is open to judicial review but the grounds
therefore are very limited, the Constitution Bench in Bikas Chatterjee
held as under:-
“8. Although the decision of the President of India on a petition
under Article 72 of the Constitution is open to judicial review but
the grounds therefor are very very limited. In the Constitution
Bench decision in Maru Ram v. Union of India (1981) 1 SCC
107 this Court has held that it is only a case of no consideration or
consideration based on wholly irrelevant grounds or an irrational,
discriminatory or mala fide decision of the President of India which
can provide a ground for judicial review.”
16. In Epuru Sudhakar and Another v. Govt. of A.P. and Others
(2006) 8 SCC 161, it was held as under:-
“34. The position, therefore, is undeniable that judicial review of
the order of the President or the Governor under Article 72 or
Article 161, as the case may be, is available and their orders can
be impugned on the following grounds:
(a) that the order has been passed without application of
mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness.
35. Two important aspects were also highlighted by learned
amicus curiae;
one relating to the desirability of indicating reasons in the
order granting pardon/remission while the other was an equally more
important question relating to power to withdraw the order of granting
pardon/remission, if subsequently, materials are placed to show that certain
relevant materials were not considered or certain materials of extensive
value were kept out of consideration. According to learned amicus curiae,
reasons are to be indicated, in the absence of which the exercise of
judicial review will be affected.”
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The same view was reiterated in Narayan Dutt and others v.
State of Punjab and another (2011) 4 SCC 353.
17. It is the consistent view taken by this Court that the exercise
of power of judicial review of the decision taken by the President of
India on mercy petition is very limited and the same can be subject to
challenge only on the following grounds:-
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly
irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
and
(e) that the order suffers from arbitrariness.
18. In the light of the above principles, let us consider the present
writ petition and the grounds urged by the petitioner, the petitioner has
primarily raised the following grounds to challenge the order of rejection
of the mercy petition:-
(i)
non-sending of relevant materials and non-application of mind
and failure to consider relevant circumstances;
(ii)
absence of recommendation of the Superintendent, Tihar Jail
in nominal roll;
(iii) sufferings of the petitioner in the prison;
(iv) solitary confinement;
(v)
the petition has been rejected swiftly without application of
mind.
19. Re: Contention: Non-placing of relevant materials before
the President of India and relevant materials were kept out of
the consideration:- Placing reliance upon Shatrughan Chauhan, It
was submitted that the power to commute a death
sentence is not an act
of grace but a constitutional responsibility of the President of India or
Governor of a State. It was submitted that all the relevant documents
and materials as laid down in Shatrughan Chauhan case and other
judgments ought to have been placed before the President of India.
Drawing our attention to the communication dated 14.01.2020 from the
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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Office of the Superintendent, Central Jail, Tihar, it was submitted that
only four documents as stated in Annexure P/2 viz. (i) Nominal Roll of
Mukesh S/o Mange Lal; (ii) Latest Medical Report; (iii) Trial Court
Judgment; and (iv) Details of Punishments are said to have been forwarded
and all the relevant materials have not been placed before the President.
Learned Senior counsel has submitted that the documents like (i) DNA
Report exhibited by PW 45; (ii) Odontology Report; (iii) Complaint under
Section 154 Cr.P.C.; (iv) Case diary and charge sheet and such other
documents which would prove the innocence of the petitioner were not
placed before the President and thus the relevant materials were kept
out of the consideration of the President of India.
20. Considering the question as to the relevant documents to be
placed before the President of India and after referring to Epuru
Sudhakar v. State of A.P. (2006) 8 SCC 161, in Shatrughan Chauhan,
the Supreme Court held as under:-
“24.2. ……. in Epuru Sudhakar v. State of A.P. (2006) 8 SCC
161, this Court held thus:
……..
35. Two important aspects were also highlighted by learned
amicus curiae; one relating to the desirability of indicating
reasons in the order granting pardon/remission while the other
was an equally more important question relating to power to
withdraw the order of granting pardon/remission, if subsequently,
materials are placed to show that certain
relevant materials
were not considered or certain materials of extensive value
were kept out of consideration. According to learned amicus
curiae, reasons are to be indicated, in the absence of which
the exercise of judicial review will be affected.
103.  ……. For illustration, on receipt of mercy petition, the
Department concerned has to call for all the records/materials
connected with the conviction. Calling for piecemeal records
instead of all the materials connected with the conviction should
be deprecated. When the matter is placed before the President, it
is incumbent on the part of the Home Ministry to place all the
materials such as judgment of the trial court, High Court and the
final court viz. Supreme Court as well as any other relevant material
connected with the conviction at once and not call for the
documents in piecemeal.”
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21. The documents stated in Annexure P/2 sent by the
Superintendent, Central Jail, Tihar for consideration of the mercy petition
filed by the petitioner were the documents sent to the Officer In-Charge
(Legal), Prison Headquarters, Tihar. The four documents viz. (i) Nominal
Roll of Mukesh S/o Mange Lal; (ii) Latest Medical Report; (iii) Trial
Court Judgment; and (iv) Details of Punishments in Annexure P/2 were
probably the only documents available with the Superintendent or called
for from the Superintendent, Central Jail, Tihar. There is no merit in the
contention that only the above four documents were the materials placed
before the President of India.
22. In this regard, the Joint Secretary, Ministry of Home Affairs
has filed an affidavit stating that all the relevant documents as laid down
in Paras (23) and (24.2) of Shatrughan Chauhan case were placed
before the President and after detailed examination, the President has
rejected the mercy petition on 17.01.2020. To satisfy ourselves, we have
perused two files containing the communications of the Ministry of Home
Affairs, NCT of Delhi and the office of Lieutenant Governor and the
file containing the note put up before the President of India.  From the
covering letter dated 15.01.2020 from NCT of Delhi addressed to Deputy
Secretary (Judicial), Ministry of Home Affairs, it is seen that all the
relevant documents viz., the judgment of the trial court, High Court and
the Supreme Court and legible and
clean copy of records of the case
and the details of the review/curative petitions filed by the petitioner and
other co-accused along with the present status and other details of the
petitioner like past criminal history, economic condition of the family of
the petitioner and the recommendation of the Government of NCT of
Delhi were all sent by the NCT of Delhi along with mercy petition to be
placed before the President of India. By perusal of the note, we have
seen that all the documents were taken into consideration and upon
consideration of the relevant records and the facts and circumstances
of the surrounding crime, the President has rejected the mercy petition.
There is no merit in the contention that the relevant materials were kept
out of the consideration of the President.
23. Insofar as the documents like (i) DNA Report exhibited by
PW 45; (ii) Odontology Report; (iii) Complaint under Section 154 Cr.P.C;
(iv) Case diary and charge sheet and other documents like Dying
Declaration, etc. are concerned, they are the materials upon which
reliance has been placed upon by the petitioner to put forth his defence.
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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The defence of the petitioner and the above materials were considered
by the trial court, High Court and the Supreme Court and the defence to
put forth by the petitioner has been rejected. It is not necessary that
each and every material relied upon by the petitioner-accused should
have been placed before the President. There is no merit in the contention
of the petitioner that relevant materials were kept out of the consideration
of the President.
24. Absence of recommendation of the Superintendent, Tihar
Jail:- The Superintendent, Central Jail, Tihar has sent the Nominal Roll.
Column No.23 of the Nominal Roll relates to “recommendations of the
Jail Superintendent, if any”. One of the grounds urged by the petitioner
is that forwarding of the mercy petition without recommendation of the
Superintendent of Jail which is the essential requirement as per the
guidelines.  According to the petitioner, the Superintendent of Jail is the
right person to make recommendation as to the conduct of the petitioner
in the jail and about his repentance and that the petitioner has reformed.
The learned counsel for the petitioner contended that Column No. 23
was left blank and thus, the guidelines had not been followed. It was
submitted that recommendation of the Superintendent, Central Jail, Tihar
ought to have been called for as he is the only person who could have
given his opinion that the prisoner’s conduct in prison is good and
whether
the petitioner repented and whether it is a fit case for consideration of
mercy petition.
25. The nominal roll is sent by the Superintendent to give various
details as per the columns contained thereon. Though Column No.23
relates to recommendations of the Jail Superintendent, it is not incumbent
upon the Jail Superintendent to give his recommendations as the column
contains the word “recommendations of the Jail Superintendent, if any”.
Though Column No.23 relates to recommendation by the Superintendent,
Tihar Jail, the word “if any” indicates that the Superintendent may or
may not give his remarks/recommendations. That apart, as rightly
contended by the learned Solicitor General, considering the high position
of the President of India and the constitutional duty which the President
is discharging, it may not be appropriate for the Superintendent to make
the recommendation nor was it necessary for the authorities to call for
the opinion of the Jail Superintendent as to the subsequent conduct of
the prisoner while in prison unless the situation warrants.
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26. It is stated that the guidelines “Procedure Regarding Petitions
for Mercy in Death Sentence Cases” issued by the Ministry of Home
Affairs, Government of India have been mentioned and the said seven
point guidelines are called “Guidelines for Dealing with Mercy Petitions”,
read as under:-
(i)
Personality of the convict (such as age, sex or mental
deficiency).
(ii)
Has the appellate court express doubt on the reliability of
evidence but has nevertheless decided on conviction?
(iii)
Is it alleged that fresh evidence is obtainable, mainly with a
view to seeing whether a fresh inquiry is justified?
(iv)
Has the Court, on appeal, enhanced the sentence?
(v)
Is there any difference of opinion in the Bench of High
Court judges necessitating reference to a third judge?
(vi)
Was the evidence duly considered in fixing responsibility, if
it was a gang murder case?
(vii)
Were there long delays in the investigation and the trial?
The grievance of the petitioner is that respondents have rejected
the petitioner’s mercy petition without any application of mind on account
of extraneous considerations which is wholly unsustainable in law. As
held by the Constitution Bench in Maru Ram v. Union of India and
others (1981) 1 SCC 107 and others and referred to Bikas Chatterjee,
the court must keep in view that where the power is vested in a very
high authority, it must be presumed that the said authority would take
into consideration all the aspects of the matter. We find no
reason to
hold that the above guidelines were not kept in view.
27. Learned counsel appearing for the petitioner has inter alia
submitted that the petitioner has been in solitary confinement for more
than one and a half years and it is in gross violation of law laid down by
the Supreme Court in Sunil Batra v. Delhi Administration and Others
(1978) 4 SCC 494 and Shatrughan Chauhan.
28. Observing that the custodial segregation specified in Section
30(2) of the Prisons Act is attracted, only after the mercy petition is
rejected by the President or the Governor and only then the person is
“under sentence of death” attracting custodial segregation specified in
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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Section 30(2) of the Prisons Act, in Shatrughan Chauhan, it was held
as under:-
“90. It was, therefore, held in Sunil Batra v. Delhi Administration
(1978) 4 SCC 494 that the solitary confinement, even if mollified
and modified marginally, is not sanctioned by Section 30 of the
Prisons Act for prisoners “under sentence of death”. The crucial
holding under Section 30(2) is that a person is not “under sentence
of death”, even if the Sessions Court has sentenced him to death
subject to confirmation by the High Court. He is not “under
sentence of death” even if the High Court imposes, by confirmation
or fresh appellate infliction, death penalty, so long as an appeal to
the Supreme Court is likely to be or has been moved or is pending.
Even if this Court has awarded capital sentence, it was held that
Section 30 does not cover him so long as his petition for mercy to
the Governor and/or to the President permitted by the Constitution,
has not been disposed of. Of course, once rejected by the Governor
and the President, and on further application, there is no stay of
execution by the authorities, the person is under sentence of death.
During that interregnum, he attracts the custodial segregation
specified in Section 30(2), subject to the ameliorative meaning
assigned to the provision. To be “under sentence of death” means
“to be under a finally executable death sentence”.
29. Though it is alleged that the petitioner has been
in solitary
confinement for 08 months and 09 days in violation of the principles of
the Sunil Batra, the same is refuted by the respondents. In his affidavit,
Director General, Prisons has denied the averment that the petitioner
was kept in solitary confinement. It is stated that for security reasons,
the petitioner was kept in one ward having multiple single rooms and
barracks and the said single room had iron bars open to air and the same
cannot be equated with solitary confinement/single cell. It is stated that
the prisoner/petitioner who was kept in the single room comes out and
mixes up with the other inmates in the prison on daily basis like other
prisoners as per rules. Considering the averments in the affidavit filed
by the Director General, Prisons, the contention of the petitioner that he
has been kept in solitary confinement in violation of the principles of
Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494
cannot be countenanced. This cannot therefore be a ground for review
of the order rejecting the petitioner’s mercy petition.
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30. Alleged sufferings in the prison:- Taking us through the
mercy petition, learned Senior counsel for the petitioner submitted that
in the mercy petition, the petitioner has narrated about the alleged
sufferings and that he was beaten up in the prison and sexually harassed
and was suffering everyday in the prison. The petitioner has further
averred that his brother Ram Singh was actually murdered though his
death was projected as “suicide” and that due to death of his brother, the
petitioner was living in “perpetual fear”. The learned Senior counsel
contended that the averments made by the petitioner as to his sufferings
in the prison had not been taken into consideration while rejecting his
mercy petition.
31. As per the settled legal position held in Narayan Dutt and
others v. State of Punjab and another (2011) 4 SCC 353, Epuru
Sudhakar and Another v. Govt. of A.P. and Others (2006) 8 SCC
161 and Shatrughan Chauhan, the exercise of power under Article
72/161 of the Constitution is subject to challenge only on the grounds
indicated thereon. The alleged sufferings in the prison cannot be a ground
for judicial review of the executive order passed under Article 72 of the
Constitution rejecting the petitioner’s mercy petition.
32. Consideration and quick rejection of petitioner’s Mercy
Petition- Not a ground for review:- On behalf of the petitioner, it was
contended that there was non-application of mind and the entire matter
proceeded with bias and
pre-determined mind. The learned Senior counsel
for the petitioner submitted that after dismissal of the curative petition
on 14.01.2020, the petitioner submitted the mercy petition which was
forwarded by the Superintendent on the very same day and in less than
24 hours of having received the petitioner’s mercy petition, the Deputy
Chief Minister, Govt. of NCT of Delhi announced that the government
had made the recommendation for rejection of the petitioner’s mercy
petition. The learned Senior counsel for the petitioner contended that the
petitioner’s mercy petition was sent to the Lieutenant Governor at
“lightening speed” and on 16.01.2020, the Delhi Govt. recommended
the rejection of petitioner’s mercy petition in less than 24 hours and
forwarded it to the President of India and the same was rejected by the
President on 17.01.2020. It was therefore submitted that there was non-
application of mind in rejection of the petitioner’s mercy petition as the
same has been rejected with “lightening speed” and with pre-determined
mind.
MUKESH KUMAR v. UNION OF INDIA AND OTHERS
[R. BANUMATHI, J.]
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33. The petitioner filed the curative petition before the Supreme
Court on 08.01.2020 and the same was dismissed by the Supreme Court
on 14.01.2020. The petitioner filed mercy petition addressed to the
President of India under Article 72 of the Constitution of India and also
to the Lieutenant Governor under Article 161 of the Constitution of India
on 14.01.2020. The Lieutenant Governor forwarded the same to the
Ministry of Home Affairs on 15.01.2020 with the relevant records. The
Ministry of Home Affairs forwarded the same to the President of India
on 16.01.2020 with the relevant records. After consideration of the matter,
the President of India rejected the petitioner’s mercy petition on
17.01.2020 and the petitioner was informed about the rejection.
34. As held by the Constitution Bench in Maru Ram and referred
to Bikas Chatterjee, the court shall keep in mind that where the power
is vested in a very high authority, it must be presumed that the said
authority would act carefully after an objective consideration of all the
aspects of the matter. As pointed out earlier, the note put up before the
President of India is a detailed one and that all the relevant materials
were placed before the President of India and upon consideration of the
same, the mercy petition was rejected. Merely because there was quick
consideration and rejection of the petitioner’s mercy petition, it cannot
be assumed that the matter was
proceeded with pre-determined mind.
35. As rightly contended by the learned Solicitor General, delay in
disposal of mercy petition may be a ground calling for judicial review of
the order passed under Article 72/161 of the Constitution. But the quick
consideration of the mercy petition and swift rejection of the same cannot
be a ground for judicial review of the order passed under Article 72/161
of the Constitution. Nor does it suggest that there was pre-determined
mind and non-application of mind.
36. In the result, we do not find any ground for exercise of judicial
review of the order of the President of India rejecting the petitioner’s
mercy petition and this petition is liable to be dismissed.  The writ petition
is dismissed accordingly.
Ankit Gyan
Writ Petition dismissed.