LAWS(MAD)-1990-8-94

K.M. SUBRAMANIAM Vs. COMMISSIONER AND SECRETARY HOME DEPARTMENT, GOVERNMENT OF TAMIL NADU, FORT ST. GEORGE MADRAS-6000 09 AND SUPERINTENDENT OF CENTRAL PRISON, COIMBATORE

Decided On August 31, 1990
K.M. Subramaniam Appellant
V/S
Commissioner And Secretary Home Department, Government Of Tamil Nadu, Fort St. George Madras -6000 09 And Superintendent Of Central Prison, Coimbatore Respondents

JUDGEMENT

(1.) THE prisoners concerned in these petitions were verdicted by Court to die and are awaiting execution. Originally these writ petitions were listed along with several other similar writ petitions which we have disposed of by a common order dated 15 -12 -1989. These writ petitions were kept in abeyance since the Petitioners had desired to implead the Central Government as a party, for consideration of one of their pleas raised in each one of these petitions. The disposals, of the earlier writ petitions, were based mainly on the long delay of the Executive, in disposing of the mercy petitions of those Petitioners, who had claimed to have suffered mental agony of living under the shadow of death for a long long period.

(2.) IN all these writ petitions the arguments advanced were two -fold. One was that there was long delay in the disposal of the mercy petitions preferred by them to the Governor of Tamil Nadu and the President of India and the second was that though they had addressed their mercy petitions to the President of India, the Governor had chosen to consider them and forward the same to the President with his opinion, thereby preventing as independent consideration by the President, on the inherent merits of their plea for mercy. In W.P. No. 2320 of 1987 if was further argued, that the mercy petition had not yet been disposed of by the President of India and that alone will be sufficient to hold in favour of the Petitioner therein.

(3.) THE occurrence had taken place on the midnight of 26th May, 1985 and the deceased are four in number. Palaniswami Gounder, one of the deceased, his wife and one Challappa Gounder, who were in the field shed, heard some explosion which prompted them to run towards the house of one of the other deceased Vathiyar Palaniswami. They found the latter's house burning. They also noticed all the accused standing in the front of the burning house. A -1 was armed with a koduval, while A -2 wielded a kuthecti. When Vathiyar Palaniswami Gounder came out of the burning house followed by his father -in -law Thriumalaiswami Gounder, his wife Selvalakshmi and children Jayaprakash and selvadurai, the Petitioners Nataraya Gounder and Nattudurai alias Natarayan attacked them, resulting in the death of Vathiyar Palaniswami, Thirumalaiswami Gounder, Selvalakhmi and Palaniswami Gounder, who went to their rescue. The learned Sessions Judge, after the trial found the Petitioners guilty as charged and awarded the extreme penalty of law by his judgment dated 23 -7 -1986. Apart from the appeals preferred by the Petitioners themselves on a reference made under Section 366 , Code of Criminal Procedure to this Court, their case was taken up as referred trial No. 12 of 1986. The referred trial was disposed of along with their appeals and by a judgment dated 8 -4 -1987, the sentence of death imposed on each of the Petitioners were confirmed by this Court. The Petitioners filed S.L.P. (Criminal) 1776 of 1987 before the Supreme Court of India, challenging their conviction and sentence, but the same was dismissed on 25 -1 -1988. A common mercy petition addressed to the President of India in duplicate dated 15 -3 -1988 was forwarded by the prison authorities to the State Government. The State Government received them on 21st March, 1988. The case file was put up before the Governor of Tamil Nadu, who rejected the plea for mercy on 15 -4 -1988. On 22 -4 -1988 along with a covering letter, the State Government forwarded to the President of India the petition for mercy, stating that the State Government had rejected the plea for clemency and further recommended that the mercy petition may be rejected. The letter was addressed to the Secretary, Ministry of Home Affairs, Government of India, by the Special Commissioner and Secretary to the Government of Tamil Nadu, Home Department, Madras. The President of India rejected the mercy petition on 17 -6 -1988. W.P. Nos. 7874 and 7875 of 1988 were admitted on 14 -7 -1988 by this Court after the President had rejected the 'mercy plea'. W.P. No. 7825 of 1988 was also admitted on the same date. There was also a stay of execution of the death sentence imposed on both the prisoners. In the grounds taken in the affidavits filed in support of the writ petitions the Petitioners have stated that the President of India had kept the mercy petition pending for four years and had ultimately dismissed it without assigning any reason and considering the grounds urged therein, which was violative of the law laid down by the apex Court in Sher Singh's case. Further the President of India had not independently applied his mind on the mercy petition, but was weighed by the note of rejection of the Governor of Tamil Nadu appended to the petition. The procedure adopted was violative of Article 21 of the Constitution of India. Further the appeal preferred by the prisoners before the Supreme Court was pending and the mercy petition had yet to be disposed of by the Governor of Tamil Nadu.