HAJA MOIDEEN AND Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) A few of the convicts, who are now in prison for a few years in pursuance of the verdict of this Court and the Apex Court, sentencing them to the extreme penalty of law and who are awaiting execution, have thronged this Court by these writ petitions with a cry "I want to live-let me not die", though the Court had verdicted, they deserve to die. These writ petitions are mainly based on the long delay on the part of the executive in disposing of their mercy petitions. They claim to have suffered mental agony of living under the shadow of death for a long long period and clamour that they should not suffer that agony any longer. W.P.No.10239 of 1985 Haja Mohideen, the petitioner in this writ now confined in Central Prison, Trichirapalli, was tried in Sessions Case No.38 of 1978 on the file of the Court of Session, East Thanjavur Division at Nagapattinam and sentenced to death, subject to confirmation by this Court, by judgment dated 30/12/1978. He was alleged to have committed the murder of Katheeja Ammal, Jainabgani Ammal and Abdul Majeed either by cutting with a knife or by administering cyanide poison to them. There were also charges u/Ss. 392 read with S. 397 I.P.C.,201 and 307 IPC. The murders had taken place between 6/07/1976 and 14/03/1977. The petitioner filed C.A. No. 208 of 1979 in this Court, challenging his conviction and the reference made u/S. 366 Cr. P.C. was taken up as Referred Trial No. 2 of 1979. R.T. No. 2 of 1979 and C.A. No. 208 of 1979 were disposed of together and by judgment dated 14/02/1990, this Court confirmed the sentence of death imposed on the petitioner by the trial court. The petitioner had filed an appeal to the Supreme Court of India, which was dismissed on 12/04/1982 in S.L.P. (Crl.) 285 of 1982. The petitioner filed W.P. No.286 of 1983 before the Supreme Court, which was also dismissed on 21-10-1983. Review Petition (Crl.) 152 of 1985 preferred by the petitioner in the Supreme Court was dismissed on 15-3-1985. While filing the present writ petition, the petitioner had filed W.M.P. of 1985 for stay of all further proceedings in S.C. No. 38 of 1978 as confirmed by this Court in R.T.No. 2 of 1979. An order of stay was granted and execution had been stayed. The petitioner filed a mercy petition on 28-8-1985 addressed to the President of India. This petition was forwarded from prison and routed through the Governor of Tamil Nadu. The mercy petition was rejected by the Governor of Tamil Nadu on 10-12-1985. After such rejection, the mercy petition was forwarded to the President of India on 19-12-1985. The mercy petition was rejected by the President on 21-6-1988. Thus, there has been a delay of 2 years and 6 months in the disposal of the mercy petition by the President of India. It is also to be noticed that there is no explanation why it took 4 months for the State Government to forward the mercy petition of the petitioner to the President of India.

(2.) This writ petition was admitted by this Court on 14-10-1985. In the counter filed by the Joint Secretary to Government, Home Department, Madras, sworn to on behalf of Respondents 2 to 5, various dates of the different proceedings in Court have been listed with a statement that in view of the stay order made by this Court in W.M.P. No. 15483 of 1985 in W.P.No. 10239 of l985, the execution could not be carried out. The affidavit further states that by letter No. F.9/1/86 Judicial dated 21-6-1988, the Under Secretary to Government of India, Ministry of Home Affairs, New Delhi, had informed the Special Commissioner and Secretary to Government, Home Department, Madras, that the mercy petition preferred by the petitioner to the President of India had been rejected and that the President of India was pleased to decline to interfere on behalf of the condemned prisoner Haja Mohideen. The affidavit further states that no condemned prisoner was kept in solitary confinement unless he was under sentence of death based on the decision of the Supreme Court in Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : (1978 Cri LJ 1741). No explanation has been offered regarding the delay in consideration of the mercy petition by the Governor of Tamil Nadu as well as the President of India, undoubtedly the petitioner having a two pronged right to approach the Governor and the President for mercy. W.P. No. 6456 of 1988

(3.) The petitioner in this writ petition Panchalingam is the friend of' the prisoner Ekambaram, who is now confined in the Central Prison, Vellore, Ekambaram was tried in S.C. No. 143 of 1983 on the file of the Court of Session, North Arcot at Vellore, for having caused the death of his brother Chandran Chettiar, his two sons and daughters by cutting them one after another with an axe on the night of 18/19-7-1983 at their residence in Athimakulampalli village. The trial court sentenced the petitioner to death, by judgment dated 27/04/1984, which was confirmed by this Court in R.T. No. 3 of 1984, by judgment dated 10-9-1984. The petitioner's approach to the Supreme Court did not yield fruit end on 17-12-1985 the sentence of death stood confirmed. The petitioner preferred a mercy petition on 5-9-1985 addressed to the President of India. The mercy petition, which was routed through the Governor of Tamil Nadu, was considered by the Governor end rejected on 18-10-1985. The mercy petition was then forwarded by the State of Tamil Nadu to the President of India on 25- 10- 1985. The mercy petition was rejected on 17-5-1988. There was no explanation furnished for the delay between 18-12-1985 and 17-5-1988 the period during which the mercy petition was pending before the President of India after the final verdict of the Supreme Court was rendered on 17-12-1985. Approximately 21/2 years delay stands unexplained. In the counter filed by the Joint Secretary to the Government. Home Deartment. Madras, it is stated that the contention of inordinate delay in considering the mercy petition being in violation of Art. 21 of the Constitution of' Indict was untenable. The allegation of the prisoner being kept in prolonged detention in illegal solitary confinement was also denied The independent non-application of the mind by the President of India alleged in the affidavit of the petitioner was refuted as untenable. The several dates extracted earlier form part of the counter-affidavit. W.P.Nos. 7825 and 7876 of 1988