P. C. JAIN, J. - (1.) PETITIONER condemned to death in this writ petition under Art. 226 of the Constitution of India has prayed for issuance of a writ, order or direction to quash the sentence of death passed by the learned Additional Sessions Judge, Gangapur City vide his judgment dated 1st March, 1983, in Sessions Case No. 36 of 1982, for an offence under Section 302, IPC (which was confirmed by this Court vide judgment dated 5th March, 1984) and in place of sentence of death to substitute the sentence of imprisonment for life, on the ground of inordinate delay in the execution of the death sentence by invoking Art 21 of the Constitution of India, placing reliance on Javed Ahmed Vs. State of Maharashtra (1 ).
(2.) A few facts may briefly be stated: Petitioner Sawai Singh was prosecuted for the offences under Sections 302, 452, 225 and 201, IPC by the learned Addl. Sessions Judge, Gangapur C,tv in Sessions Case No. 36/1982 and after trial he was held guilty and convicted. The petitioner was sentenced to death under Sec. 302, IPC vide judgment dated 1st March, 1983. The case was referred for confirmation of death sentence by the learned Addl. Sessions Judge to this Court. The reference was registered as Ref. No. 7 of 1983. The petitioner also preferred an appeal against his convic-tion, which was registered as D. B. Criminal Appeal No. 107/1983 Both the reference and appeal were disposed of together. This Court confirmed the death penalty and also maintained the order of conviction and sentence of death passed by the trial Court, vide its order dated 5th March, 1984. The petitioner had approached the Hon'ble Supreme Court by filing special leave petition No 2270/ 1984, but the same was dismissed by the Supreme Court vide order dated 25th February, 1985. A review petition No. 233/1985 also met the same fate on 19th April 1985. Thereafter the petitioner filed many petitions to His Excellency the President of India and the Governor of Rajasthan under Arts. 72 and 161 of the Constitution of India respectively on 1st March, 1985. His Excellency the Governor of Rajasthan rejected the mercy petition on 10th July 1985. The mercy petition to His Excellency the President of India is still pending The case of the petitioner is that 3 years have elapsed from the date of judgment of the trial Court who sentenced the petitioner to the penalty of death, but it has not been executed so far, whereby causing mental pre-hanging agony in a prolonged frightful environment. The petitioner also served a notice of demand (Annx. 1), but in vain. Being aggrieved by the inaction of the respondents for not commuting the sentence of death into one of imprisonment for life the petitioner has filed this writ petition. The question raised in this writ petition is whether in a case when after the sentence of death is given the execution of the sentence is inordinately delayed and the accused is made to suffer the most excruciating agony and anguish, is it open to the Court under Art. 226 of the Constitution to give relief. The Hon'ble Supreme Court considered the constitutional implication of prolonged delay in execution of a sentence of death in a number of cases. From the various cases, we may detect the following observations:- (i) That a prisoner under a lawful sentence of death or imprisonment could claim fundamental rights. A convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to the procedure established by law. (Bhuvan Mehta Patnaik v. State of A. P; AIR 1974 SC 2092), Sunil Batra V. Delhi Administration AIR 1978 SC 1675; State of Maharashtra V. Champalal AIR 1981 SC 1675; Hussainara Khatoon V. Home Secretary AIR 1979 SC 1360; T. V. Vatheiswami V. Slate of Tamil Nadu: AIR 1983 SC 361 ). (ii) That the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way so as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. (T. B. Vatheiswami V. State of T. N. 1983 SC 361 ). (iii) It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment. It is a logical extension of the self-same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust and unfair. (Sher Singh V. State of Punjab: AIR 1983 SC 465 ). (iv) That whenever the courts are called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it. (v) That the Supreme Court impressed upon the Government of India and the State Governments that petitions filed under Arts. 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self imposed rule should be followed by the executive authorities rigorously that every such petition should be disposed of within a period of three months from the date on which it is received. (Sher Singh) Vs. State of Punjab: 1983 SC 465 ). (vi) All exercise of power is pre-conditioned by the duty to be fair and quick. Delay defeats justice. In Vatheiswami's case, a Division Bench of the Supreme Court consisting of O. Chinnappa Reddy and R. B. Misra JJ held and observed as follows: - "making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of sentence of death. "
(3.) BUT, in Sher Singh vs. State of Punjab (2) another Division Bench consisting of Chandrachud CJ V. P. Tulzapurkar and Vardarajan JJ. of the Supreme Court did not agree with the aforesaid decision of the Supreme Court in Vatheiswami's case and observed as under:- "this period of two years purports to have been fixed in Vatheiswaran after making all reasonable allowance for the time necessary for appeal and consideration of reprieve. With great respect we find it impossible to agree with this part of the judgment. " Again, the same point came up for consideration before a Division Bench of the Supreme Court consisting of O. Chinnappa Reddy and B. S. Vankataramiah JJ. Javed Ahmed vs. State of Maharashtra (supra) and the Supreme Court reiterated the same view which it took in Vaiheiswaran's case in preference to the decision in Sher Singh's case and when it was contended that Sher Singh's case was a judgment of three Judges, as compared to two judges, judgment of Vatheeswaran's case, as such judgment of a Division Bench of three judges should be followed. However, the Supreme Court rejected the contention by observing that the Supreme Court cites in divisions of two and three judges for the sake of convenience and it may be inappropriate for a Division Bench of three judges to purport to over-rule the decision of a Division Bench of two judges. An extremely ticklish question has been posed before us. Learned Addl. Government Advocate Mrs. Jain has submitted that as per law of precedent a High Court should follow the opinion expressed by larger benches of the Supreme Court in preference to those expressed by smaller benches of the Court and, for supporting her contention, she has placed reliance on Union of India V. K. S. Subramaniam (3 ). Mrs. Jain has further submitted that a Division Bench is bound by the decision of an earlier Division Bench and placed reliance on Ram Jivan V. Phooli (4) and Shri Venkateswaria Rice Ginning and Ground-nut Mills Contractors Co. V. State of A. P. (5 ). ;