- (1.) A petition under Article 226 of the Constitution was filed in the High Court of Delhi, seeking a writ in the nature of Mandamus "or any other appropriate writ, direction or order", to restrain the respondents from carrying out the sentence of death passed against Amrit Bhushan Gupta, a person condemned to death for having committed culpable homicide amounting to murder. The petition was filed by Smt. Shanti Devi, purporting to act on behalf of her son Amrit Bhushan Gupta, who was alleged to be insane. A Division Bench of the Delhi High Court passed the following order on it: "We have no doubt in our minds that if the petitioner is really insane, as stated in the petition, the appropriate authorities will take necessary action. This petition, at this stage, we feel, does not justify invocation of the powers of this Court under Article 226 of the Constitution. Criminal Writ is dismissed."
(2.) Before the grant of special leave to the petitioner on 27th August, 1976, an application for intervention in the matter had been filed by Tek Chand Chandra supported by an affidavit stating the following facts which have not been controverted: "Amrit Bhushan Gupta was sentenced to death for burning alive three innocent sleeping children aged 14, 8 and 5 years at Sriniwas Puri on the midnight of 21st June, 1968 by the learned Dist. and Sessions Judge Delhi under Section 302 and 7 years R. I. under Section 307 for attempting to murder Tek Chand Chanana (Petitioner) on 6th June, 1969 with the remarks 'even the extreme penalty of death may appear too mild for the gruesome murder of three children by burning them alive.' Delhi High Court confirmed the death sentence on 23rd September, 1969. Amrit Bhushan Gupta's relatives made the plea of insanity to the High Court but the Hon'ble High Court refused even to entertain this petition of the accused, some dates are given below: Writ petition dismissed on 20th July, 1971 ........ ........ ........ ....... ....... ........ .......... ........ ........ ........ ....... ....... ........ .......... ........ ........ ........ ....... ....... ........ .......... Petition dismissed ...... 20th August, 1975. Supreme Court had dismissed the various petitions of Amrit Bhushan Gupta noted below: Special leave petition dismissed on 3rd April, 1970. Petition dismissed on 12the Sept. 1970. Petition dismissed on 30th April, 1971. Writ Petition filed on 11th May, 1971. was withdrawn on 2nd August, 1976. Petition dismissed on 8th January, 1976 Rashtrapati had also rejected several mercy petitions of the accused some dates are given below: 1. 10th August, 1970 2. 6th December, 1970 3. 8th November, 1971 4. February, 1972. Government of India had fixed various dates for execution, details given below: 1. 18th December, 1970. 2. 25th August, 1975 and 19th December, 1975. Amrit Bhushan Gupta and his relatives have been delaying the matter on one excuse or the other. Their latest plea is nothing new. It is repetition of their modus operandi. The petitioner and his wife have been under constant torment since the day their three innocent children were gruesomely murdered in 1968 and the punishment awarded to the accused in 1969 is being postponed on the making of the accused."
(3.) This Court when granting special leave in this case was obviously not aware of the facts stated above which were concealed. Learned Counsel for the appellant, when asked to state the question of law which called for the invocation of the jurisdiction of this Court under Article 136 of the Constitution, could only submit that the provisions of Section 30 of the Prisoners Act, 1900, should be applied to the petitioner. This section reads as follows: "30. Lunatic Prisoners how to be dealt with.- (1) Where it appears to the State Government that any person detained or imprisoned under any order or sentence of any Court is of unsound mind, the State Government may, by a warrant setting forth the grounds of belief that the person is of unsound mind, order his removal to a lunatic asylum or other place of safe custody within the State there to be kept and treated as the State Government directs during the remainder of the term for which he has been ordered or sentenced to be detained or imprisoned, or, if on the expiration of that term it is certified by a medical officer that it is necessary for the safety of the prisoner or others that he should be further detained under medical care or treatment, then until he is discharged according to law. (2) Where it appears to the State Government that the prisoner has become of sound mind, the State Government shall, by a warrant directed to the person having charge of the prisoner, if still liable to be kept in custody, remand him to the prison from which he was removed, or to another prison within the State, or if the prisoner is no longer liable to be kept in custody, order him to be discharged. (3) The provisions of Section 9 of the Lunatic Asylums Act, 1858, shall apply to every person confined in a lunatic asylum under sub-section (1) after the expiration of the term for which he was ordered or sentenced to be detained or imprisoned: and the time during which a prisoner is confined in a lunatic asylum under that sub-section shall be reckoned as part of the term of detention or imprisonment which he may have been ordered or sentenced by the Court to undergo. (4) In any case in which the State Government is competent under sub-section (1) to order the removal of a prisoner to a lunatic asylum or other place of safe custody within the State, the State Government may order his removal to any such asylum or place within any other State or within any part of India to which this Act does not extend by agreement with the State Government of such other State; and the provisions of this section respecting the custody, detention, remand and discharge of a prisoner removed under sub-section (1) shall, so far as they can be made applicable, apply to a prisoner removed under this sub-section.";