Paragraph numbers below are the court’s original numbering, recovered from the source text.
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. 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.
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 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.
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.
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.