- (1.) THE petitioner is a condemned prisoner, as he was punished under charges framed against him under Section 302 of the Indian Penal Code. Though the Sessions Court, Erode held that the prosecution had failed to prove that the petitioner had committed the offence, the High Court, .n appeal, reversed the said judgment and awarded capital punishment of death to the petitioner. Even further appeal to the Supreme Court, ended in dismissal. Thereafter, the petitioner made an application to The President of India invoking His mercy under Article 72 of the Constitution of India, to remit the sentence imposed on him. The same has been rejected by The President of India, which has been informed to the petitioner, under the impugned order, which is now under challenge in this .Writ Petition. People's Union for Civil Liberties, Tamil Nadu and Pondicherry, and the President Co-ordinator, Campaign against death penalty have filed petitions to implead them as parties-respondents in the Writ Petition so as to enable them to assist the Court to decide the issue and they have been imp leaded as respondents 7 and 8. The State Government and the Government of India have filed their respective counter affidavits explaining the reasons for the delay.
(2.) THE learned counsel appearing for the petitioner has given up the respondents 1 and 2. Before dealing with the respective submissions of the learned counsel appearing for the petitioner and the respondents, it is beneficial to extract the facts leading to the filing of this Writ Petition so as to appreciate the case of the petitioner. One Nagamalai Gounder who is the paternal uncle of the petitioner was living with his wife Ponnuthai Ammal alias Ramathal, his sons (Balasubramaniam and Moorthy alias Ramakrishnan), and his daughter (Selvi alias Anbu Selvi) in a thatched house in the outskirts of Kondayampalayam village. There was a dispute between the said Nagamalai Gounder and the petitioner's father with respect to the land bearing Survey No.26. It was the case of the prosecution that on 29/30.5.1984 between 11.00 and 11.30 p.m. the petitioner murdered all the abovesaid persons. So a charge sheet was filed against the petitioner under Section 302 of I.P.C. (5 in numbers) by the State Crime Branch, Coimbatore Investigation Agency, in Cr.No.133 of 1984. The learned Sessions Judge, Coimbatore in S.C.No.104 of 1985, after examining the witnesses, held that the charges framed under Section 302 of I.P.C. against the petitioner had not been proved beyond doubt, and therefore the petitioner was acquitted. The State filed Appeal in Crl. Appeal No.30 of 1988 before this Court. The Division Bench of this Court in the judgment dated 2.9.1997 reversed the judgment of the learned Sessions Judge and awarded capital punishment of death against the petitioner. To come to such conclusion, the Division Bench has found as to follows:- " (58) Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on hand. Admittedly, as seen from the facts and circumstances of the case, the following are proved beyond doubt: (1) There is no provocation or any quarrel between the accused and the five deceased. All the five deceased were unarmed and sleeping during midnight and also they were helpless. There was no scope or chance for them to face the attack. (2) It is proved beyond doubt that it was a pre-meditated one, but not on account of any sudden provocation. (3) There is no mental derangement for the accused to kill 5 human beings in five strokes one after another and they were killed during the course of their sleep. (4) The nature and the manner in which the accused committed the five murders found to be gruesome calculated, heinous, atrocious and cold-blooded murder. Accordingly, in the above circumstances, it is proved beyond doubt that the said heinous and calculated offence committed by the respondent/accused in killing the 5 persons with five strokes one after the another is a rarest of the rare cases of the present age in this State as a whole. (59) We are of the clear view that the way in which he cut the neck of five individuals, while they were sleeping during midnight, is really a pre-medidated, atrocious and calculated murder. As such we are of the clear opinion that if a human being of this nature viz., the respondent/accused is allowed to continue to live in the present society, there is great threat to the co-human beings. There is no safety or protection for the innocent, helpless, unarmed fellow human beings in the society. In view of the above special reason and the peculiar circumstances of the case on hand, we are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the respondent/accused". The petitioner filed appeal before the Apex Court in Crl. Appeal No.900 of 1997. In the judgment dated 22.4.1998, reported in Govindaswamy v. State of T.N., 1998 (4) SCC 531, the Apex Court confirmed the punishment awarded by the High Court. While dealing with the submission of the learned counsel for the appellant therein regarding the imposition of extreme penalty of death, the Apex Court has held as follows :- "19. From the impugned judgment we find that the High Court first discussed the principles laid down by this Court, for imposing death sentence in Bachan Singh v. State of Punjab, 1980 (2) SCC 684 : 1980 SCC (Crl.) 580 : AIR 1980 SC 898 and other cases, and then stated as under: Now, we are going to consider the law laid down by the Apex Court of our land in the above rulings with reference to the present case on hand. Admittedly, as seen from the facts and circumstances of the case, the following are proved beyond doubt: (1) There is no provocation or any quarrel between the accused and the five deceased. All the five deceased were unarmed and sleeping during midnight and also they were helpless. There was no scope or chance for them to face the attack. (2) It is proved beyond doubt that it was a pre-meditated one, but not on account of any sudden provocation. (3) There is no mental derangement for the accused to kill 5 human beings in five strokes one after another and they were killed during the course of their sleep. (4) The nature and the manner in which the accused committed the five murders was found to be gruesome, calculated, heinous, atrocious and cold-blooded murder. Accordingly, in the above circumstances, it is proved beyond doubt that the said heinous and calculated offence committed by the respondent/accused in killing the 5 persons with five strokes one after the other is a rarest of the rare case of the present age in this state as a whole. We are of the clear view that the way in which he cut the neck of five individuals, while they were sleeping during midnight, is really a pre-meditated, atrocious and calculated murder. As such we are of the clear opinion that if a human being of this nature, viz., the respondent/accused is. allowed to continue -to live in the present society, there is great threat to the co-human beings. There is no safety or protection for the innocent, helpless, unarmed fellow human beings in the society. In view of the above special reason and the peculiar circumstances of the case on hand, we are of the clear view that it is just, proper, appropriate, fit and deserving case where the capital punishment of death could be awarded to the respondent/accused'. (20) From the above quoted observations, it is seen that the High Court did not base its decision to impose the penalty of death solely on the fact that 5 persons were murdered but also other attending circumstances relating to the murders. Having given our anxious and deep consideration to this aspect of the matter we are in complete agreement with the reasons canvassed by the High Court to impose the capital punishment. We only wish to add that the brutal manner in which the appellant wiped out the entire family of his uncle (except one of his sons, (P.W-8) who, fortunately at the material time was studying in Coimbatore), obviously to grab his properties, has shocked our judicial conscience. Nonetheless we looked into the record to find out whether there was any extenuating or mitigating circumstances in favour of the appellant but found none. If, in spite thereof, we commute the death sentence to life imprisonment we will be yielding to spasmodic sentiment, unregulated benevolence and misplaced sympathy. (21) In Mahesh v. State of M.P. 1987 (3) SCC 80 : 1987 SCC (Crl.) 379 this Court,while refusing to commute the death sentence, observed: (SCC p.82, para 6) '...It will be mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases he understands and appreciates the language of deterrence more than the reformative jargon'. As the above observations squarely apply in the facts of the instant case we uphold the sentence of death imposed upon the appellant". Thereafter, the petitioner submitted his mercy petitions both to The President of India and The Governor of Tamil Nadu on 6.5.1998 itself. The same were forwarded by the Superintendent of Central Prison, Coimbatore to the Home Department, Government of Tamil Nadu on 6.5.1998 itself. The Government of Tamil Nadu forwarded the same on 13.8.1998 to The President of India. The Governor of Tamil Nadu rejected the mercy petition on 2.9.1998 itself. The President of India rejected the mercy petition on 27.10.1999, which has been communicated to the petitioner on 30.10.1999. The said proceedings are now under challenge in this Writ Petition. Mr.Manoj Pandian, learned counsel appearing for the petitioner has submitted that the mercy petition was disposed of with the delay of one year and five months and so the capital punishment has to be commuted to life imprisonment. He has further submitted that there is no explanation for the said delay of one year and five months in passing the said proceedings and so the petitioner is entitled for the relief sought for. In support of his submission, the learned counsel has relied on a number of decisions of this Court and of the Apex Court, which will be dealt with later.
(3.) MR.Prasad and Mr.Giridhar, learned counsel for respondents 7 and 8 respectively while supporting the above said submission of the learned counsel appearing for the petitioner, have submitted that every day's delay has to be explained and the reason for such rejection should be given by The President of India, as the said proceedings are subjected to judicial review on merits. It is also submitted that The President of India has to act only on the advice of the Council of Ministers before exercising powers under Article 72 of the Constitution of India. According to them, in the present case, no such advice has been given to The President of India. The power to be exercised under Article 72 of the Constitution of India is an executive function and not executive power and so such executive function cannot be the subject matter of Business Rules. Mr.Prasad and Mr.Giridhar, learned counsel appearing for the 7th and 8th respondents have further submitted, with eager to save the life of the petitioner, that though it is well settled that the delay in disposing of the case by the Courts cannot be taken into consideration, the delay in the hands of the Executive in disposing of the mercy petition has to be taken into consideration due to which the petitioner has suffered mental agony. They have also submitted that the act of pardon by The President of India under Article 72 of the Constitution of India is not a private act of grace, but it is a part of the constitutional scheme. Mr.Ramakrishna Reddy, learned counsel appearing for the 3rd respondent with his usual persuasion placed the facts and law on the point to defend the stand taken by the respondents 1 and 3. He has submitted that merely on the basis of the delay in disposing of the mercy petition filed by the petitioner, the relief as sought for cannot be granted, especially when the delay has been explained reasonably and properly. It is his further submission that the delay occurred in this case cannot be construed as an unreasonable one. He has also submitted that the petitioner was on bail from 1988 and he was again put inside the prison only in 1997. He has further submitted that the order of The President of India cannot be subjected to judicial review, except under certain circumstances, and so The President of India need not give any reason in support of His conclusion arrived at in deciding the mercy petition. His further submission is that advice was given by the concerned Minister to The President of India in compliance of the scope of Article 72 of the Constitution. It is also vehemently submitted by him that the gravity of the offence committed by the petitioner has also been taken into consideration. According to him, the fact that the petitioner had taken away the lives of five persons has to be taken into consideration. ;