PAWAN KUMAR GUPTA versus STATE OF NCT OF DELHI
[2020] 4 S.C.R. 1055, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Arguments
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PAWAN KUMAR GUPTA
v.
STATE OF NCT OF DELHI
(Writ Petition (Criminal) No. 122 of 2020)
MARCH 20, 2020
[R. BANUMATHI, ASHOK BHUSHAN
AND A. S. BOPANNA, JJ.]
Constitution of India: Arts.32 and 72 – Writ petition
challenging the rejection of mercy petition by the President of India
on the ground that the settled principles of consideration of mercy
petition were not followed – Contention of writ petitioner that the
petitioner’s plea of juvenility was not finally determined and this
aspect was not kept in view while rejecting mercy petition u/Art.72
of the Constitution – Held: There is no merit in the contention of
the writ petitioner – The petitioner had earlier raised plea of
juvenility before the Juvenile Justice Board and after considering
the same, the Juvenile Justice Board transferred the petition to the
Sessions Judge – Sessions Judge dismissed the application filed
by the petitioner as being not maintainable – High Court dismissed
the Revision Petition – Special Leave Petition was also dismissed
– Therefore, the petitioner was not right in contending that the plea
of juvenility was not finally determined by the Courts – The plea
of juvenility raised by the petitioner was duly considered and
rejected by the Courts – The petitioner further contended that he
was tortured in the prison and had sustained head injuries and
proper treatment was not given to him – The alleged torture, if any,
in the prison cannot be a ground for judicial review of the
executive order passed under Art.72 of the Constitution of India
rejecting the mercy petition – The contention that the petitioner
might not have shared the common intention along with other co-
accused and that he cannot be imposed the grave capital
punishment were already considered by all the Courts and he was
found guilty and convicted – While exercising the power of judicial
review, this contention cannot be entertained – Detailed orders
were passed while dismissing the writ petitions filed by the co-
convicts – Applying the ratio of those orders, no ground made out
to entertain this writ petition – When the power is vested in the
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[2020] 4 S.C.R.
very high constitutional authority, it must be presumed that the said
authority had acted carefully after considering all the aspects of
the matter – It cannot be said that the mercy petition was not
considered with open mind – Writ petition dismissed – Mercy
petition – Administrative Law – Judicial Review.
Epuru Sudhakar & Another v. Govt. of A.P. & Others
(2006) 8 SCC 161 : [2006] 7 Suppl. SCR 81 ;
Shatrughan Chauhan & Another v. Union of India &
Others (2014) 3 SCC 1 : [2014] 1 SCR 609 – relied
on.
Case Law Reference
[2006] 7 Suppl. SCR 81
relied on
Para 10
[2014] 1 SCR 609
relied on
Para 10
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 122 of 2020.
Under Article 32 of the Consitution of India
Dr. A.P. Singh, Shams Khwaja, Ms. Geeta Chauhan, V.P. Singh,
Ms. Pratima Rani, Ms. Richa Singh, Sadashiv, Advs. for the Petitioner.
Tushar Mehta,SG, Kanu Agarwal, Ms. Swati Ghildiyal, Rajat
Nair,/ Manan Popli, Shantnu Sharma,/Rajeev Ranjan, Bhuvan Kapoor/
Varun Chugh, Digvijay D., B.V. Balram Das, Advs. for the Respondent.
The following Order of the Court was passed:
O R D E R
1. In this writ petition filed under Article 32 of the Constitution
of India, the petitioner Pawan Kumar Gupta has challenged rejection
of mercy petition by His Excellency the President of India inter alia
on various grounds; that settled principles of consideration of mercy
petition have not been followed. The contention of the
petitioner is that
the petitioner’s plea of juvenility has not been finally determined and
this aspect was not kept in view by His Excellency the President of
India.
2. By the order of Hon’ble the Chief Justice of India, this Bench
has been constituted and we held the sitting at 2.30 a.m. on 20.03.2020.
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3. We have heard Dr. A.P. Singh and Mr. Shams Khwaja, learned
counsel appearing for the petitioner/convict Pawan Kumar Gupta.  We
have also heard Mr. Tushar Mehta, learned Solicitor General appearing
for Union of India and also for NCT of Delhi.  The matter was heard
from 2.30 am till 3.15 a.m.
4. We have carefully gone through the grounds raised by the
petitioner and also submissions of the learned counsel appearing for the
parties and perused the materials on record.
5. The petitioner has filed a mercy petition on 02.03.2020 and
same was rejected by His Excellency the President of India on
04.03.2020. The petitioner has filed the second mercy petition on
18.03.2020 repeating the same grounds.
6. In this writ petition, the petitioner has inter alia raised various
grounds, namely:- (i) that there was miscarriage of justice in rejection
of the mercy petition; (ii) the petitioner’s date of birth is 08.10.1996
and on the date of the incident that is 16.12.2012, he was only aged 16
years and that he was a juvenile and his claim of juvenility has not been
finally determined; (iii)  the petitioner has been tortured in the prison
and had sustained head injuries for which he has not been given proper
treatment.
7. The learned counsel for the petitioner Mr. Shams Khwaja has
also raised the contention that the petitioner might not have shared
common intention along with the other co-accused and therefore the
petitioner cannot be imposed with the grave capital
punishment with
other co-convicts.
8. Mr. Shams Khwaja has also drawn our attention to the press
report as per which His Excellency the President of India is said to
have expressed concern about “attacks on women” and also said to
have expressed his views that the persons who have been convicted
of a crime under Protection of Children from Sexual Offences
(POCSO) Act, should not be given the right to file a mercy petition.  It
was, therefore, submitted that having regard to the above press report,
it cannot be said that His Excellency the President of India has
considered the mercy petition with an open mind.
9. The learned Solicitor General has submitted that the clippings
relied upon by the learned counsel for the petitioner is only a press report
and in any event, the views expressed by His Excellency the President
PAWAN KUMAR GUPTA v. STATE OF NCT OF DELHI
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of India could only said to be on the line of the reforms insofar as
POCSO is concerned.
10. The consistent view taken by this Court that the exercise of
power of judicial review of the decision taken by His Excellency the
President of India in mercy petition is very limited.  In Epuru Sudhakar
& Another v. Govt. of A.P. & Others, (2006) 8 SCC 161, this Court
held thus:
“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.”
The decision in Epuru Sudhakar (Supra) was followed in
Shatrughan Chauhan & Another v. Union of India & Others, (2014)
3 SCC 1.
11. In the light of the above pronouncement, we have considered
the submissions of the learned counsel appearing for the petitioners and
also the grounds raised in the writ petition.
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12. In this writ petition, primarily the writ petitioner has again
raised the plea of juvenility by contending that his date of birth is
08.10.1996 and that he was a juvenile on the date of the incident on
16.12.2012. The petitioner relies upon the School Certificate issued by
the School, namely, Gayatri Bal Sanskar Shala, Narayanpur, District
Ambedkar Nagar, which was issued on 12.12.2019. The learned counsel
Dr. A.P. Singh submitted that the petitioner’s claim of juvenility has not
been finally determined based on the above certificate issued by the
said School on 12.12.2019.
13. We do not find merit in the above contention of the learned
counsel Dr. A.P. Singh.  The petitioner has earlier filed an application
on 30.08.2018 raising the plea of juvenility before the Juvenile Justice
Board-II, Prayas, Delhi, and after considering the same, the Juvenile
Justice Board transferred the petition to the District & Sessions Judge,
Patiala House, New Delhi, vide order dated 14.09.2018. By order dated
21.12.2018, the learned Additional Sessions Judge,  Patiala House, New
Delhi, dismissed the application filed by the petitioner as being not
maintainable.
14. Challenging that order, the petitioner has filed Criminal
Revision Petition No.1301 of 2019 before the Delhi High Court. By
the order dated 19.01.2019, the Delhi High Court dismissed the Criminal
Revision Petition. Challenging that order the petitioner had filed the SLP
(Crl.) No.547 of 2020. After considering
the submissions of the petitioner,
this Court had passed the detailed order dismissing the Special Leave
Petition on 20.01.2020.
15. The petitioner is not right in contending that the plea of
juvenility has not been finally determined by the Courts.  The plea of
juvenility raised by the petitioner has been duly considered and rejected
by the Courts as noted above.
16. The contention of the petitioner is that due to torture in the
prison the petitioner had sustained head injuries and that he was sutured
with more than 10 sutures and proper treatment was not given to the
petitioner. As pointed out earlier, the exercise of judicial review of the
order of rejection of the mercy petition by His Excellency the President
of India is subject to challenge only on the grounds indicated in Epuru
Sudhkar (Supra) and Shatrughan Chauhan (Supra) and other
decisions. The learned Solicitor General has submitted that the petitioner
was given proper treatment. The learned Solicitor General also denied
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the torture allegedly meted out to the petitioner.  The alleged torture, if
any, in the prison cannot be a ground for judicial review of the executive
order passed under Article 72 of the Constitution of India rejecting the
mercy petition.
17. Insofar as the contention of Mr. Shams Khwaja that the
petitioner might not have shared the common intention along with other
co-accused and that he cannot be imposed the grave capital punishment
is concerned, these grounds have been already considered both by the
Trial Court as well as the High Court and by this Court and the petitioner
Pawan Kumar Gupta has been found  guilty and convicted.
18. While exercising the power of judicial review,  this contention
raised by the learned counsel Mr. Shams Khwaja cannot be entertained
as a ground for judicial review of the order of rejection passed by His
Excellency the President of India.
19. We have decided the writ petition filed by the co-convict
Mukesh Kumar in Mukesh Kumar v. Union of India - Writ Petition
(Crl.) No..40  of 2020 (29.01.2020) and the writ petition filed by co-
convict Vinay Kumar Sharma in Vinay Kumar Sharma v. Union of
India & Others - Writ Petition (Crl.) No.65 of 2020 (dated 14.02.2020),
and Writ Petition filed by co-convict Akshay Kumar Singh in Akshay
Kumar Singh v. Union of India & Others - Writ Petition (Crl.) No.121
of 2020 (19.03.2020) challenging  the order of rejection of mercy petition
by His
Excellency the President of India. We have passed detailed
orders while dismissing those writ petitions challenging the order of
rejection of mercy petitions by His Excellency the President of India.
20. Applying the ratio of those orders, we do not find any ground
to entertain this writ petition warranting judicial review of the order
rejecting the mercy petition by His Excellency the President of India.
21. As we have pointed out in the earlier judgments in the above
writ petitions, when the power is vested in the very high contitutional
authority, it must be presumed that the said authority had acted carefully
after considering all the aspects of the matter. It cannot be said that
His Excellency the President of India did not consider the mercy petition
with open mind filed by the petitioner Pawan Kumar Gupta.
22. The writ petition is accordingly dismissed.
Devika Gujral
Writ petition dismissed.