Supreme Court To Lay Down Procedure To Avoid Delays In Execution Of Death Penalty After Mercy Petition Is Rejected

The Supreme Court on Thursday(September 5) said that it will lay down procedure to be followed by the state and the judiciary after the Supreme Court confirms death sentence of a convict and mercy petition is rejected, in order to avoid delay in execution of the sentence.

During the hearing, the Court asked what procedure would be followed if the Sessions Court issued a warrant without verifying whether any mercy petitions were pending. The bench suggested that once the Supreme Court confirms the death sentence, the State must approach the Sessions Court for an execution warrant. The convict would then be notified, informed of the right to legal representation, and allowed the opportunity to confirm whether any mercy petition is pending.

“Can we not provide a procedure that as soon the Supreme Court confirms the sentence, the State must approach the Sessions court, point out whether any mercy petition is filed? On the basis of that application conforming with the PUDR judgment, the court will issue notice to the convict. He will be informed that he is entitled to have legal representation and then after the convict appears naturally the court will find out whether mercy petition is pending even if the convict does not point out. So state has to play a very proactive role in this because there are both sides of it - one is Article 21 and secondly responsibility of the state to ensure that the orders of the court are implemented. We have to see the functioning of court in modern era. Nobody imagined what kind of number of cases which are filed in the court. We need to lay down this procedure that the state should apply and therefore safeguards should be there, notice issued to the convicts…”, the Court said.

A bench of Justice Abhay Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih reserved its judgment in an appeal by the State of Maharashtra against the 2019 Bombay High Court decision commuting the death sentence of two convicts in the 2007 Pune BPO gangrape and murder case. The President rejected the mercy pleas of the convicts on May 26, 2017.

“Ultimately why does delay matter? Because the accused remain under the hanging sword of execution that could fall. That is why delay is material”, Justice Oka remarked.

Convicts Purshottam Borate and Pradeep Kokade were sentenced to death for the rape and murder of a 22-year-old woman employed with a BPO in Pune. The Bombay High Court had commuted their death sentence to life imprisonment, with a fixed term of 35 years, citing inordinate delays in the execution process.

During the hearing, the bench highlighted the issue of the long delay in executing the death sentence, questioning whether it is now reasonable to convert the punishment back to death after so many years. The convicts, since 2015, had been left in uncertainty, waiting for their execution under the “the hanging sword of gallows”, the bench remarked.

“Ultimately there is something known as Article 21. After so many years, can we convert again into death sentence? Nine years delay is not inordinate delay?” Justice Oka asked the State.

The Court pointed out the delay in executing the death sentence after it was confirmed by the Supreme Court in 2015. The mercy petition of the convicts was submitted to the Governor of Maharashtra in 2015. However, the Governor's decision was made on April 28, 2016.

The Court noted that there was an eight-month delay by the Governor of Maharashtra in deciding the mercy petition. Justice Oka pointed out the casual approach adopted by the state government in dealing with the mercy petition, highlighting that the state's correspondence regarding essential case documents stretched unnecessarily.

The Court also pointed out the administrative delay in both the Governor and President's offices in processing the mercy petitions. Justice Oka said that such insensitivity also affects the relatives of the victims, as it court potentially work in favour of the accused.

The State's counsel argued that the powers of the Governor and President to grant mercy cannot be exercised hastily. However, Justice Oka noted that there was little explanation for the delay by both the Governor and President.

The Court also pointed out the delay in issuing the death warrants after the rejection of the mercy petitions. Justice Oka questioned why the State did not apply for an execution warrant from the Sessions Court after the rejection of the mercy petition instead of writing letters to the Sessions Court.

“Why didn't the prosecutor apply to the sessions court for warrant for execution? Why was he writing letters to court? What is this procedure adopted by the state of not making applications? Somebody should have gone to the court and made an application to the court. We will have to lay down the procedure that after mercy petitions are rejected public prosecutor must produce all the documents to the sessions court.”

Justice Amanullah added, “There is no concept of writing letters in judicial procedure.”

The State's Counsel argued that as per Sections 413 and 414 of the CrPC, once the mercy petition is rejected, the Sessions Court need only be informed of the decision. After that, the sessions court has to issue notice to the convict and grant him opportunity of hearing before issuance of death warrant.

The bench also noted judicial delay, highlighting that the Sessions Court after receiving information about the rejection of mercy petition could have acted on its own to initiate the process of issuance of execution warrant. “Advisedly, the State should have filed an application. But there were many letters. We will lay down guidelines on this. All the court needed to do was to issue notice to the convict. So, court is not absolved of its duty. Can we stretch it to say that sessions court in spite of receiving letters, judgement of this court, cannot issue notice?”, Justice Oka said.

Background

The Bombay High Court, in 2019, had commuted the death sentence of the convicts due to significant delays in the execution process. The High Court found that there had been an unreasonable delay of 1507 days, or over four years, between the Supreme Court's dismissal of the convicts' appeal in 2015 and the scheduled execution in June 2019.

The HC observed that the delay in processing the mercy petitions could have been avoided if the authorities had acted with a sense of urgency. The HC also said that the convicts had spent eight years in solitary confinement, in violation of their constitutional rights under Article 21.

Advocates Shreeyash Lalit, Angad Pahel and Runjhun Garg appeared for the State of Maharashtra. Advocate Payoshi Roy appeared for the convicts.

Case no. – Crl.A. No. 2831-2832/2023

Case Title – State of Maharashtra and Ors. v. Pradeep Yashwant Kokade and Anr. with connected case