G. M. LODHA, J. - (1.) THE two applications have been filed, one for grant of leave to appeal to the Supreme Court from the judgment of this Court dated 29th November, 1985 rejecting the appeal of the accused-Jagdish and enhancing the sentence from life imprisonment to death sentence and the second one, is for suspension of execution of sentence of death.
(2.) ON November 29, 1985, we have rejected the appeal of the accused -Jagdish and enhanced the sentence of life imprisonment to the sentence of death, for committing the offence under S. 302 I. P. C. on the proved allegations that he burnt his wife, Smt. Chand, alive by pouring kerosene oil on her body and setting fire. So far as the first application for grant of leave to appeal is concerned, Shri M. I. Khan, the learned Government Advocate assisted by Shri S. B. Mathur, the learned Additional Government Advocate, opposed it on the ground that a certificate is to be issued certifying that the case is fit one to appeal and it can only be granted under the provisions of Art. 134 (1) read with Art. 134a of the Constitution of India. The condition for such a certificate are mentioned in Art. 132 (1) of the Constitution of India which requires that the Court must certify that the case involves a substantial question of law as to the interpretation of this Constitution. Normally, we are inclined to hold that there is no question involved of interpretation of the Constitution in the present case, and, therefore, on that ground the appellant cannot claim the grant of any certificate. However, we are of the opinion that though the finding of the guilt is based purely on appreciation of the evidence which has been confirmed in appeal by this Court, yet as we have exercised the powers of suo-moto revisions for enhancing the sentence, we are of the view that it would be in the interest of justice that this aspect of legal position which normally according to us, is settled as per the decision of the Apex Court in Nadir Khan Vs. Delhi Administration (1) should further be examined and considered in order to consider whether this Court was justified in exercising the powers of suo-moto revisions for enhancement of sentence even in the absence of appeal or revision by the State, in view of the provisions of S. 386 (b) (iii) Cr. P. C, 1973. It is, therefore, certified that the present one is a fit case which should be considered in appeal by the Supreme Court and we direct that the certificate be issued, accordingly. The second application relates to the postponement of the execution of sentence of death, under S. 415 (1), Cr. P. C.
(3.) SINCE we have already grant a certificate and in pursuance of that certificate, Hon'ble the Supreme Court would be considering the appeal against the judgment dated the 29th November, we 1985 think it just and proper to postpone the execution of the sentence of death for the period of 60 days from today. Consequently, the execution of sentence of death against Jagdish-appellant is postponed for a period of sixty days from today. We may here clarify that even otherwise the death sentence according to the instructions regarding the procedure to be observed by the State contained in the Jail Manual cannot be executed until the dismissal of the appeal by the Supreme Court or in case an appeal is dismissed then during the pendency of petition for mercy before the President. The relevant instructions under the instructions to R. 22 of the Jail Manual read as under: "appeal to the Supreme Court and Application for special leave to appeal to the Supreme Court. IX. Whenever a sentence of death has been passed by any court or tribunal, the sentence shall not be executed until after the dismissal of the appeal to the Supreme Court or, the application for special leave to appeal to the Supreme Court or, in case no such appeal has been preferred or no such application has been lodged, until after the expiry of the period allowed for an appeal to the Supreme Court or for lodging of an application for special leave to appeal to the Supreme Court: Provided that if a petition for mercy has been submitted by or on on behalf of the convict, execution of the sentence shall further be postponed pending the orders of the President thereon. Note: If the sentence of death has been passed on more than one person in the same case and if an appeal to a higher court or an application for special leave to appeal to the Supreme Court is lodged by, or on behalf of only one more but not all of them, the execution of the sentence shall be postponed in the case of all such persons and not only in the case of the person or persons by whom, or on whose behalf, the appeal or the application is lodged. " ;