Death-row convict, Devender Pal Singh Bhullar, whose writ petition against the rejection of his mercy petition on the ground of inordinate and unexplained delay was dismissed by the Supreme Court on April 12, ?perhaps, has reason for hope with a former Judge of the Supreme Court, Justice M.B. Shah, reiterating his case for commuting his death sentence.

Justice Shah was the dissenting Judge who found Bhullar innocent, while two other Judges on the Supreme Court Bench found him guilty while dismissing in 2002 his appeal against TADA Court’s death sentence in the 1993 blasts case in New Delhi in which nine persons were killed and 17 injured. Justice Shah — again dissenting from his two colleagues on the Bench - partly accepted Bhullar’s review petition in 2002, by directing commutation of his death sentence to life imprisonment, in view of his dissent, which did not make it a ‘rarest of rare case’.

Justice Shah, who now lives in Ahmedabad, told The Hindu on Saturday that “the normal procedure in death penalty cases is that when there is a dissenting judgment, it gets converted into life sentence.”

?“I don’t know why this was not followed in this case,” he said, when asked further about the majority Judges’ suggestion (in their separate judgment in 2002) that the Government could consider Justice Shah’s dissent in the context of Section 432(2) of Code of Criminal Procedure (Cr.P.C.).

This provision states that whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the Government may require the presiding Judge of the Court which confirmed the sentence, to state his opinion as whether the application should be granted or refused, together with his reasons for such opinion.

Although this requirement is an option before the Government, the majority Judges suggested this as a way out of the possible dilemma before the Government in view of Justice Shah’s dissent. It clearly implied that the majority Judges too would have wanted Bhullar’s sentence finally commuted by the Government using the option provided by Section 432(2) Cr.P.C. Justice Shah was the Presiding Judge of the Bench which dismissed Bhullar’s appeal in 2002. The other two Judges were Justice Arijit Pasayat and Justice B.N.Agrawal.

When asked if according to Section 432(2) of Criminal Procedure Code, his opinion ought to have been taken while deciding on the mercy petition, Justice Shah replied: “There are laid procedures and I don’t wish to comment if I should or must have been consulted. And then, I had already retired by then,” he said.???

Bhullar submitted his mercy petition to the President on January 14, 2003. Justice Shah retired from the Supreme Court on September 24, 2003. The Ministry of Home Affairs sent its first recommendation to reject Bhullar’s mercy petition to the then President, Abdul Kalam on July 11, 2005. It was left to his successor, Ms.Pratibha Patil to finally reject his mercy petition on the basis of a fresh recommendation from the MHA in 2011.

The chronology clearly establishes that had the then NDA Government wanted, it could have obtained Justice Shah’s opinion and reasoning under Section 432(2) of Cr.P.C., as suggested by the majority Judges in their opinion, before Justice Shah retired in 2003.

Justice Shah’s reference to normal procedure in such cases – where the appropriate Government fails to follow the procedure laid down by Section 432(2) of Cr.P.C. and as suggested by the Supreme Court itself – thus assumes significance.?

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