Jasbir Singh @ Jassa vs The State Of Punjab

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. OF 2021 (Arising out of SLP (Crl.) Nos.9650-9651/2019)

JASBIR SINGH @ JASSA ETC. …Appellant

VERSUS

STATE OF PUNJAB & OTHERS …Respondents

WITH

SPECIAL LEAVE PETITION (CRIMINAL) No.9875/2019

JASBIR SINGH @ JASSA & ANOTHER …Appellant

VERSUS

STATE OF PUNJAB & OTHERS …Respondents

O R D E R

CRIMINAL APPEAL NOS. OF 2021 (Arising out of SLP (Crl.) Nos.9650-9651/2019)

Leave granted.

These appeals challenge the final judgment and order

dated 19.08.2019 passed by the Division Bench of the High

Court of Punjab & Haryana at Chandigarh in Letters Patent

Appeal Nos.1397 of 2019 and 1395 of 2019.

Signature Not Verified Digitally signed by Dr. Mukesh Nasa Date: 2021.12.15

The appellants Jasbir Singh alias Jassa and Vikram Singh 17:31:16 IST Reason:

alias Vicky Walia and one Sonia were tried in the Court of

Sessions Judge, Hoshiarpur (in Sessions Trial No.24 of 2

03.09.2005) for having committed offences punishable under

Sections 302, 364A, 201 read with 120-B of the Indian Penal

Code, 1860. By judgment dated 20.12.2006, the Trial Court

found them guilty of the offences with which they were

charged. By sentencing order dated 21.12.2006, they were given

death sentence under Sections 302 and 364A IPC.

While dealing with Murder Reference No.01/2007 and

Criminal Appeal No.105 (DB) of 2007 filed by the accused, the

High Court of Punjab & Haryana at Chandigarh affirmed the view

taken by the Trial Court and the award of death sentence.

The matter was carried to this Court and by its judgment

and order in Vikram Singh & Others v. State of Punjab (2010) 3

SCC 56, the death sentence awarded to the present appellants

was confirmed by this Court. However, the sentence of

co-accused Sonia was modified to life imprisonment.

Review Petition (Crl.) Nos.192-193 of 2011 arising from

the decision of this Court was dismissed by this Court on

20.04.2011.

After the decision of the Constitution Bench of this

Court in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court

of India & Others, (2014) 9 SCC 737, another review petition

was preferred which was also dismissed by this Court. 3

The death sentence having thus been affirmed right

through, Civil Writ Petition being CWP No.21274 of 2016 was

filed by the appellants submitting inter alia that there was

undue and unexplained delay on the part of the concerned

authorities in disposing of their Mercy Petitions and thus

they were entitled to commutation of death sentence to one for

imprisonment for life.

The aforesaid Writ Petition came up before a Single Judge

of the High Court, who by his judgment and order dated

26.07.2019 dismissed the same. The correctness of the

decision of the Single Judge was put in challenge by the

appellants by filing Letters Patent Appeal Nos.1395 and 1397

of 2019. Both these appeals were disposed of by the Division

Bench of the High Court by its judgment and order which is

presently under challenge.

The Division Bench was of the view that the intra-Court

appeal under the Letters Patent would not be maintainable.

Reliance was placed on the decision of this Court in Ram

Kishan Fauzi v. State of Haryana & Others, (2017) 5 SCC 533

and particularly on the following observations of this Court:

“On a plain reading of the aforesaid clause of the Letters Patent, it is manifest that no appeal lies against the order passed by the Single Judge in exercising of criminal jurisdiction. Thus, the question that is required to be posed is whether the 4

learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not.”

While the challenge against the decision of the Division

Bench was pending in this Court, Special Leave Petition

(Criminal) No.9875 of 2019 was preferred by the appellants

challenging the judgment and order passed by the Single Judge

dismissing Civil Writ Petition No.21274 of 2016 (O&M).

In these appeals, we have heard Mr. Shri Singh, learned

Advocate appearing for the appellants, Mr. K.M. Nataraj,

learned Additional Solicitor General for Union of India, and

Ms. Jaspreet Gogia, learned Advocate for the State.

The scope of matters where supervening circumstances are

relied upon to submit that the delay in disposal of either

mercy petitions or applications seeking commutation/remission

afforded a ground seeking commutation of death sentence to

life imprisonment, was considered in Shatrughan Chauhan &

Another v. Union of India & Others, (2014) 3 SCC 1 by a three-

Judge bench of this Court.

After considering all the earlier decisions on the point,

broadly five heads were noticed by this judgment which were

urged to be coming under the category as “Supervening

Circumstances”. In the discussion beginning from paragraph 28 5

onwards, those five Supervening Circumstances were noticed and

dealt with.

Out of these circumstances, insofar as issue of “delay”

was concerned, this Court concluded that unexplained delay

would be one of the grounds for commutation of sentence of

death into life imprisonment and such supervening

circumstances would be applicable to all types of cases,

including the offences under TADA.

During the course of its discussion, this Court dealt

with the issue whether while considering a writ petition

founded on unexplained delay in disposal of mercy petitions or

applications for commutation, the concerned Court would be

reopening the case on merits. Paragraph 61 of the decision

was as under:

“61. As already asserted, this Court has no jurisdiction under Article 32 to reopen the case on merits. Therefore, in the light of the aforesaid elaborate discussion, we are of the cogent view that undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Article 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e. whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.”

A clear-cut distinction was, therefore, recognized and

accepted that consideration of a writ petition founded on the 6

ground of delay in disposal of mercy petition or application

for commutation of sentence, would be distinct and different

from the original proceedings which culminated in the

affirmation of death sentence.

The decision of this Court in Ram Kishan Fauzi (supra)

arose out of a writ petition where relief in the nature of

quashing of the recommendations of Lokayukta, which would have

led to launching of criminal prosecution, was in issue. The

relief prayed for was thus integrally connected with the

criminal proceedings which could have been launched as a

result of the recommendations of Lokayukta. It was in this

context that this Court held that no appeal would be

maintainable against the decision of the Single Judge which

had dealt with such writ petition.

If a clear-cut distinction is accepted that while dealing

with a writ petition based on the ground of delay in disposal

of mercy petition or application for commutation, the

Court does not and will not enter into the merits of the

matter, the proceedings so initiated by way of writ petition

are not connected with the earlier determination of guilt in

regular proceedings. The nature of such proceedings by way of

a writ petition would be independent, original and founded on

circumstances which occurred after the guilt stood determined 7

by the criminal courts; and, therefore, such proceedings will

certainly be one where remedy by way of an intra-Court appeal,

if the concerned Rules of Letters Patent so permit, would be

maintainable.

In the premises, in our view, the Division Bench of the

High Court was in error in finding the Letters Patent Appeal

to be not maintainable.

We, therefore, allow this appeal and set-aside the view

taken by the Division Bench of the High Court and remit the

matter for fresh consideration by the Division Bench. The

Letters Patent Appeals are, therefore, restored to the file of

the High Court.

Considering the fact that the issue has been pending

consideration for a fairly long time, we request the Division

Bench of the High Court to dispose of the pending Letters

Patent Appeals as early as possible and preferably within

three months from the receipt of the copy of this order.

The instant facts have raised a matter of concern. The

first round of proceedings leading to the determination of

guilt itself would normally take considerable length of time.

Going by the provisions of the Code of Criminal Procedure,

1973 any award of death sentence would be subject to

confirmation by the High Court and the matter would lie before 8

a Division Bench of the High Court. If any subsequent appeal

is preferred after the death sentence is confirmed by the High

Court, going by the norms laid down by this Court, the matter

would be taken up by a three-Judge Bench of this Court. Even

a review arising therefrom would be considered by a three-

Judge Bench.

After all these proceedings are over, a second round

based on the alleged delay or other grounds in disposal of

mercy petition or application for commutation can certainly be

availed of by the concerned convicts, if the facts so justify.

If such matters are listed before a Single Judge of the High

Court from whose decision a further intra-Court appeal would

be maintainable in certain cases, the entire process would

lead to tremendous delay. At the same time, the matter having

been seen by a Division Bench and by a three-Judge Bench in

the Supreme Court, in the fitness of things, the second round

if initiated ought to be considered by a Division Bench of the

High Court and that too, as early as possible.

We may, therefore, observe that if the concerned Rules or

Procedure or the provisions of the Letters Patent Appeal

permit so, the High Courts may do well to list the original

writ petitions in the second round of litigation before the

Division Bench itself for consideration. 9

With these observations, the instant appeals are allowed.

Let copies of this Order be sent to all the High Courts.

SPECIAL LEAVE PETITION (CRIMINAL) No.9875/2019

In view of the order passed in the appeals arising from

the decision of the Division Bench, no orders are called for

in this Special Leave Petition challenging the order passed by

the Single Judge.

The Special Leave Petition stands disposed of.

Pending applications, if any, also stand disposed of.

........................J. (UDAY UMESH LALIT)

........................J. (S. RAVINDRA BHAT)

........................J. (BELA M. TRIVEDI)

New Delhi, December 09, 2021.

10

ITEM NO.10 COURT NO.2 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (Crl.) Nos.9650-9651/2019

(Arising out of impugned final judgment and order dated 19-08-2019 in LPA No.1397/2019, 19-08-2019 in LPA No.1395/2019 passed by the High Court Of Punjab & Haryana At Chandigarh)

JASBIR SINGH @ JASSA ETC. Petitioner(s)

VERSUS

STATE OF PUNJAB & ORS. Respondent(s)

(IA No.117180/2020 - FOR PAROLE; IA No.117663/2020 – FOR EXEMPTION FROM FILING AFFIDAVIT; and, IA No.161098/2019 – FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

WITH SLP(Crl) No.9875/2019 (II-B) (IA No.161311/2019 – FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 09-12-2021 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE BELA M. TRIVEDI

For Petitioner(s) Mr. Shri Singh, Adv.

Mr. Amartja Kanjilal, Adv.

Mr. Rajat Mittal, AOR

For Respondent(s) Ms. Jaspreet Gogia, AOR Mr. Karanvir Gogia, Adv.

Ms. Shivangi Singhal, Adv.

Ms. Varnika Gupta, Adv.

Ms. Rooh-e-hina Dua, AOR

Mr. K.M. Nataraj, ASG Mr. Anmol Chandan, Adv.

Mr. Sanjay Tyagi, Adv.

Mr. Adit Khorana, Adv.

Mr. Udai Khanna, Adv.

Mr. Arvind Kumar Sharma, AOR 11

UPON hearing the counsel the Court made the following O R D E R

SLP (Crl.) Nos.9650-9651/2019

Leave granted.

The appeals are allowed and the matter is remitted to the High

Court for consideration afresh by the High Court.

Let copies of this Order be sent to all the High Courts.

Pending applications, if any, also stand disposed of.

SPECIAL LEAVE PETITION (CRIMINAL) No.9875/2019

In view of the order passed in the appeals arising from

the decision of the Division Bench, no orders are called for

in this Special Leave Petition challenging the order passed by

the Single Judge.

The Special Leave Petition stands disposed of.

Pending applications, if any, also stand disposed of.

(MUKESH NASA) (VIRENDER SINGH) COURT MASTER BRANCH OFFICER (Signed Order is placed on the File)