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Updated: April 16, 2013 01:29 IST

Judges wanted Bhullar sentence commuted

V. Venkatesan
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Differing with his brother judges, Justice M.B. Shah had actually voted to acquit Bhullar

His plea for mercy on the grounds of delay may have been rejected by the Supreme Court last week but there is one more argument his lawyers can make in their final push to save Devender Pal Singh Bhullar from the gallows: the two judges who confirmed the death sentence in a 2:1 split verdict delivered in his original appeal before the Supreme Court on March 22, 2002 had indeed wanted the President to commute his death sentence.

Despite showing no mercy on Bhullar themselves, Justice Arijit Pasayat and Justice B.N. Agrawal directed that the President should consider his mercy petition after seeking a report from the Presiding Judge of the Supreme Court, which confirmed his conviction and death sentence. The Presiding Judge was Justice M.B. Shah, who had differed with his brother judges on the Bench not just on the death sentence but on the very question of guilt: in his dissenting opinion, he had actually voted to acquit Bhullar.

While Justices Pasayat and Agrawal found no merit in Bhullar’s plea that his ‘confession’ on the basis of which he was sentenced to death by the trial court was neither voluntary nor true, the dissenting Presiding Judge, Justice Shah, had concluded that there was nothing on record to corroborate Bhullar’s confessional statement, and that when the co-accused who were named in the confessional statement were not convicted or tried, this would not be a fit case for conviction solely on the basis of such a statement recorded by a police officer.

In Paragraph 60 of the majority judgment, Justice Pasayat said: “However, a question arises as to the effect of Brother Shah, J. holding the accused (Bhullar) innocent, while deciding the question of sentence. Observations made by this Court in Ramdeo Chauhan v. State of Assam ((2001)5 SCC 714) are relevant. It was inter alia observed as follows: (SCC pp.749-50, paras 56-59)....”

Justice Pasayat went on to reproduce Paragraphs 56, 57, 58 and 59 of the judgment in Ramdeo Chauhan and concluded in Paragraph 61: “The principles set out above have application to the present case.”

This makes the case of Ramdeo Chauhan — which went through various twists and turns before ending in commutation — of direct and immediate relevance to the question of whether Bhullar’s death sentenced should be commuted to life.

Chauhan was found guilty of killing four persons of a family. His appeal against the death sentence was heard by a two-judge Bench comprising Justice R.P. Sethi and Justice K.T. Thomas, which dismissed it on July 31, 2000.

Chauhan’s review petition was admitted on the ground that his claim of being a juvenile during the commission of the crime was not heard earlier. This was decided by a three-judge Bench comprising Justice Sethi, Justice Thomas and Justice S.N. Phukan on May 10, 2001. Justice Sethi dismissed his review petition. Justice Thomas dissented and commuted his death sentence to life imprisonment.

Justice Phukan agreed with Justice Sethi, but added that the factors which weighed with Justice Thomas could be duly taken note of in the context of Section 432(2) of the Code of Criminal Procedure (Paragraph 59, which was reproduced by Justice Pasayat later). Justice Phukan, on whose concurrent judgment Justice Pasayat relied, was clear that under Section 432, the government can revise the judgment of the Court, and remit the sentence of death, and that a remission of sentence does not mean acquittal.

Section 432(2) of the Code deserves to be reproduced verbatim:

“Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.”

In a recent judgment in Sangeet v. State of Haryana, the Supreme Court found this statutory procedure quite reasonable in as much as there is an application of mind to the issue of grant or refusal of remission.

In January 2002, the then Governor of Assam commuted Chauhan’s death sentence to life imprisonment on the intervention of National Human Rights Commission. In May 2009, the Supreme Court struck down the commutation of Chauhan’s death sentence saying the Governor’s order was not reasoned, and that the NHRC had no locus to intervene in the matter. However, in a judgment delivered on November 19, 2010, the Supreme Court reversed its ruling, and found that the NHRC was well within its mandate to intervene even after the Supreme Court had confirmed the death penalty, and upheld the Governor’s decision to commute Chauhan’s death sentence to life imprisonment.

Coming back to Bhullar, the Bench comprising Justice Shah, Justice Pasayat, and Justice Agrawal agreed to hear his review petition at length, and gave an equally reasoned set of two separate judgments. On December 17, 2002, Justice Pasayat dismissed the review petition, holding that just because one of the three Judges had dissented could not be a ground for reopening the case. Justice Shah, on the contrary, held that his dissent only showed that the case was not the rarest of rare, and therefore, Bhullar’s death sentence could be commuted on this ground alone, even if the finding of Bhullar’s guilt could not be altered because of the majority verdict.

Justice Shah and the other two judges have since retired from the Supreme Court. The government could well have come under legal compulsion to accept Bhullar’s mercy petition, had it sought Justice Shah’s opinion, and reasoning under Section 432(2) of the Cr.P.C, and as directed by the majority judges in the case in 2002.

It is clear from the mercy petition files obtained by RTI activist Subhash Agrawal in 2011 that the former President, Pratibha Patil, and the then Home Minister, P. Chidambaram, both ignored the clear direction of the Supreme Court to invoke Section 432(2) of the Cr.P.C. while considering Bhullar’s mercy petition. Ms. Patil rejected Bhullar’s mercy petition on May 25, 2011 on the basis of the Ministry of Home Affairs’ recommendation.

Ms. Patil’s predecessor, Abdul Kalam, too had received MHA’s recommendation to reject Bhullar’s mercy petition on July 11, 2005. Dr. Kalam, who did not act on the recommendation till the end of his tenure — apparently because he disagreed with it — also appeared to have missed the significance of this direction of the Supreme Court.

Bhullar’s lawyers challenged Ms. Patil’s rejection of his mercy petition in the Supreme Court on the ground that there was inordinate delay, which made him eligible for commutation. Inexplicably, his counsel did not find it necessary to challenge the President’s failure to follow the Supreme Court’s direction to invoke Section 432(2) of Cr.P.C. The Supreme Court’s April 12 judgment, which dismissed Bhullar’s petition against the President’s rejection, also conveniently avoided this question.

Ironically, this is one aspect of Bhullar’s saga for justice which has the potential to secure commutation of his death sentence, and would be consistent with the Supreme Court’s 2002 split judgment in his case.

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A true example of factual journalism. Thumbs Up The Hindu

from:  Jaspreet Singh
Posted on: Apr 18, 2013 at 15:27 IST

After Justice M B Shah, the Presiding judge of the Bench dissented
with the view of the majority with 1-2 and noted categorically that
an accused, howsoever ghastly crime may be, can't be hanged solely on
the basis of his confessional statement before the police which is
not admissible as an evidence without corroboration from other
evidences. Even the Bench handing him out the death penalty also
provided him lease of life by giving the President of India
opportunity to consider his mercy plea. But Pratibha Patil being
loyal congress leader didn't apply her mind and just proved herself
rubber stamp of the Congress Govt. In cases of death penalty, the
President acts in mechanical manner without application of mind on
the otherwise merits of the case warranting commutation, this is
sufficient for the Supreme Court to invoke the powers of judicial
review. It's high time for the President invite Justice Shah and
taking into account his views on the case afresh decide it lawfully.

from:  Radha Raman
Posted on: Apr 16, 2013 at 23:00 IST

its not a rarest of rare case.. its a judicial murder.....recently
punjab DGP saini's appointment challenged before Pb n Hr high court for
killing, wrongful confinement, kidnapping and abduction, and for High
court this would not constitute moral turpitude.judiciary always tries
to oblige the higher ups......then why SC has strike down the
appointment of pj thomas as CVC

from:  gagan
Posted on: Apr 16, 2013 at 19:38 IST

No one has the right to take others life including the Politicians and the Judiciary. There is always room for miscarriage of justice as we see people are released from jail after serving decades in Jail as judgement is reversed. Today, many politically motivated crimes, state terrorism and state sponsored massacres are unpunished.

from:  Shiva
Posted on: Apr 16, 2013 at 16:07 IST

The ultimate outcome of any Punishment is 3R's.......Regret, Remorse and
Rehabilitation. Death sentence defies the very basis of punishment. I
rest my case......

from:  Surendra
Posted on: Apr 16, 2013 at 10:20 IST

In case of Mercy/Clemency petition, President and Governor should not act on advice of Council of Ministers but of a special council consisting of PM, NHRC Chairman and eminent Jurists nominated by Chief Justice of India.

from:  Atma Gandhi
Posted on: Apr 16, 2013 at 09:18 IST

Whether guilty or not, capital punishment is an inhuman act and to
continue on the brazen path- we, as Nation, are reducing our selves
to the lowest bottom of the reason or humanity.

Be it Bhullar or any one else, a just and fair trial along with a
belief in transformation is the key to bring a change. I will request
one and all especially the 'common man' to please think on the issue
and 'The Hindu' may organize a debate of all the stakeholders in a
step towards ultimately stopping it and removing it from our law
books as well.

from:  Mohd Afzal
Posted on: Apr 16, 2013 at 07:55 IST

There is a parallel here to Afzal Guru's case, who was held guilty on the sole basis of his confession before police. None within the political, legal, or executive found his conviction doubtful. How then, his (in)justice would be held in light if Bhullar has been considered for acquittal? This is a catch-22 for the system, and I hope the innocent are not hung for confessions to police.

from:  khan
Posted on: Apr 16, 2013 at 07:41 IST

Is it logical for the Supreme Court to give unsolicited direction to the President of India, on what decision he should take or how he should take it?
Will Supreme Court entertain a similar direction from a high court?

Supreme Court being the final level of judicial review of the sentence given by trial court, must stop beating around the bush and make a proper verdict.

Once president have decided reject the plea for leniency, why is Supreme Court again getting involved? Supreme Court has twice reviewed this case and that decisions should be final from Judiciary side.
A judicial review of executive's delay in expediting the mercy plea may have some merits, but it must stop there.

Supreme Court review of president’s decision is ridicule of Indian justice system and the victim of extreme crimes.

from:  Sumesh Soman
Posted on: Apr 16, 2013 at 02:01 IST
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