Case title:
Balwant Singh vs Union of India and Others
Date of Order:
May 3, 2023
Bench:
Hon’ble Justice Vikram Nath
Parties:
Petitioner– Balwant Singh
Respondent(s) – Union of India and Others
SUBJECT:
1)The current petition has been filed under Article 32 of the Indian Constitution, seeking the following reliefs combined:
Call for the records of a Mercy Petition dated March 25, 2012, requesting leniency for the petitioner and directing the respondents to commute the petitioner's death sentence to imprisonment for an unjustifiable delay of 8 years, filed before the Hon'ble President of India under Article 72 of the Indian Constitution.
2). The present petitioner and 8 others were put to trial for their role in a bomb blast that killed 16 people and injured a dozen others. The Trial Court convicted the petitioner and co-accused Jagtar Singh Hawara, Gurmeet Singh, Lakhwinder Singh, Shamsher Singh, and Nasib Singh and awarded them the death sentence under Sections 120-B, 302, 307, and Explosives Substances Act, 1908.
3) The Trial Court condemned the petitioner and co-accused, Jagtar Singh Hawara, to death after finding him guilty of the aforementioned offenses.
4) In a death reference, the High Court affirmed the petitioner's conviction and sentence in a ruling dated 10.12.2010. According to the petition, the petitioner's complaint is that, because no judgment on his Mercy Petition has been made in more than ten years, he should be granted the commuting of his death sentence into life imprisonment.
IMPORTANT PROVISIONS
1) Article 72 of the Indian Constitution (1949)
The President has the authority to grant pardons, reprieves, respites, or forgiveness of punishment, as well as to suspend, remit, or mitigate the sentence of any individual convicted of any offense
a) in all situations when the punishment or sentence is handed out by a military tribunal
b) in all situations when the punishment or sentence is for a violation of any legislation related to an issue to which the Union's executive power applies
c) in all situations where the sentence is a death penalty
2)Indian penal code (1860)-
Section 120B of the IPC deals with the offense of criminal conspiracy. It states that anyone who is a party to a criminal conspiracy to commit an offense punishable with imprisonment.
Murder is punishable by death or life imprisonment, as well as a fine, according to Section 302 of the Indian penal code.
3) The Explosive Substances Act (1908)
Section 3 - Punishment for causing an explosion likely to endanger life or property includes imprisonment for life, rigorous imprisonment of either description, and a fine. Any person who unlawfully and maliciously causes an explosion of a nature likely to endanger life or cause serious injury to property is punished with imprisonment for life or rigorous imprisonment of either description. Special category explosions of a nature likely to endanger life or cause serious injury to property are punished with death, or rigorous imprisonment for life, and a fine.
Section 4 - Explosives include gunpowder, nitroglycerine, nitroglycol, gun-cotton, di-nitro-toluene, tri-nitro-toluene, picric acid, di-nitro-phenol, tri-nitro-resorcinol, cyclo-trimethylene-tri-nitramine, penta-erythritol-tetranitrate, tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate of mercury, diazo-di-nitro-phenol, colored fires, fog-signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition, and any adaptation or preparation of an explosive.
OVERVIEW
1) In Sessions Case No.2-A of 1995, the petitioner and co-accused were prosecuted in respect of charges punishable under Sections 302/307/120-B of the Indian Penal Code, 1860 and Sections 3 and 4 of the Explosive Substances Act for assassinating the then Chief Minister of Punjab.
2) Following that, the High Court reviewed Murder Reference No.6 of 2007 as well as Criminal Appeal No.731-DB of 2007 filed by co-accused Jagtar Singh Hawara and others in its ruling dated 12.10.2010.
It should be emphasized that the petitioner had not contested his death sentence or filed an appeal from the Trial Court's ruling.
3) The High Court found substance in the co-accused Jagtar Singh Hawara's plea and commuted the death sentence to life imprisonment. The High Court, however, upheld the petitioner's conviction and punishment.
In terms of the conviction and sentence handed down to co-accused Jagtar Singh Hawara, Criminal Appeal No.1013 of 2013 at his instance, together with other related matters, is under consideration in this Court. During this period, the Ministry of Home Affairs, Government of India, wrote a letter to the Chief Secretaries of the governments of Punjab, Gujarat, Haryana, Karnataka, and the National Capital Territory of Delhi on September 27, 2019, on the occasion of the commemoration of the 550th Birth Anniversary of Guru Nanak Dev Ji proposing special remission and release of prisoners.
4) The concern with this writ petition is with the claimed inactivity on the part of the involved authorities in not commuting the petitioner's death sentence in accordance with the aforementioned message of 27.09.2019. In light of this, the current writ petition requests that the petitioner's compassion plea, filed on March 25, 2012, be heard quickly and that his death sentence be converted to life imprisonment.
Notably, the prosecution of the immediate crime was undertaken by the Central Bureau of Investigation, and as such, the Central Government would have the authority to address the questions of commutation and remission. It must be stated here that the petitioner never preferred any appeal, that is to say, no appeal was preferred by him either before the High Court or before this Court.
5) As a result, Mr. K.M. Nataraj, learned ASG, requests time to make a comment concerning the proposal included in the letter dated September 27, 2019 to be forwarded for processing under Article 72 of the Indian Constitution.
Following that, specific instructions were provided to ensure that the petitioner's complaint was handled as soon as possible.
ISSUES RAISED
According to the respondent, the petitioner himself has not filed any Mercy Petition to date. On his behalf, the Shiromani Gurudwara Prabandhak Committee filed the aforementioned Mercy Petition, whereas the petitioner's complaint is that, because no judgment on his Mercy Petition has been made in more than ten years, he should be awarded the commuting of his death sentence into life imprisonment.
ARGUMENTS ADVANCED BY THE RESPONDENT
Shri K.M.Natraj, an Additional Solicitor General, has submitted that the petitioner does not deserve mercy due to his conduct. The Mercy Petition which was not even filed by him, dated 25.03.2012 is by the SGPC under Article 72 of the Constitution of India, and the Ministry of Home Affairs communication dated 27.09.2019 is a request to the state government to send a proposal for the commutation of the death sentence to life imprisonment.
1)The following are the two main arguments/appeals offered by the skilled counsel for respondent no. 1:
(a) Because the appeal of the co-accused is currently ongoing before this Court, the petitioner's mercy petition would logically be ripe for hearing only after the appeal is resolved.
(b) . It was submitted that certain organizations had preferred mercy petitions on the accused’s behalf.
The learned ASG then stated that, given the current situation, the Ministry of Home Affairs has decided to postpone any decision on the Mercy Petition because it has the serious potential of jeopardizing national security or creating a law-and-order situation. Shri Natraj produced the relevant record relating to the Ministry of Home Affairs resulting in the decision taken for deferring the disposal of the Mercy Petition as communicated vide affidavit dated 29.09.2022.
ARGUMENTS ADVANCED BY THE PETITIONER
In response to (a)- it is submitted by the counsel for the petitioner that the order dated 04.12.2020 passed by this Court was sufficient and the respondents were obliged to consider the mercy petition despite the pending appeals preferred on behalf of the co-accused.
In response to (b) - It is stated on behalf of the petitioner that such mercy petition has always piqued the interest of the relevant authorities, and communications from the authorities to the petitioner suggest that such mercy petition is being considered.
Shri Mukul Rohtagi, senior counsel for the petitioner, relied on a letter dated 27.09.2019 issued by the Ministry of Home Affairs, Government of India to the Chief Secretary, the government of Punjab, granting special remission to 8 Sikh persons and a proposal for commutation of death sentence to life imprisonment of one prisoner (petitioner). The letter also included a list of 9 Sikh prisoners, 8 of whom were given special remission and one (petitioner) whose case was to be considered for commutation of death sentence to life imprisonment.
According to the learned ASG, the outcome of the appeals mentioned below before this Court would be relevant information and might have an impact on the Mercy Petition. As a result, it would be advisable to await the outcome of the ongoing appeals. In support of his contention, he cites a decision of this Court in the case of Harbans Singh v. State of U.P.
Sl.No. Particulars Appeal details Status
1) Appeal by accused Lakhwinder Singh Crl.Appeal No.1464/2011 – Pending
2) Appeal by accused Jagtar Singh Hawara Crl.Appeal No.1013/2013 - Pending
3) Appeal by CBI Crl.Appeal No.2277/2011- Pending
JUDGEMENT ANALYSIS
1) According to the directive given by this Court in its order dated 04.12.2020, the subject be addressed by the appropriate authorities without regard to the fact that the co-accused’s appeal is still awaiting consideration before this Court.
2) Although Shri Mukul Rohtagi, learned senior counsel acting for the petitioner, asked for a review of the Ministry of Home Affairs dossier, Shri Natraj, learned ASG, strongly opposed it. This Court likewise did not believe it was essential to grant the petitioner access to the abovementioned file, which dealt with a sensitive topic.
3) The argument that the Mercy Petition was delayed for more than 10 years cannot be sustained due to the fact that the petitioner never submitted any Mercy Petition and the proposal for considering the commutation of the death sentence of the petitioner was kept pending until disposal of the pending appeals before this Court.
4) The three decisions relied on by Shri Rohtagi in support of his submission regarding an excessive delay in the disposition of the Mercy Petition and, as a result, commutation in such cases being granted by this Court do not help the petitioner because the facts and situation in each of these cases and in the present case are different.
5) The Court has issued orders to dispose of the Mercy Petition of the petitioner, and the Ministry of Home Affairs has decided to defer the consideration as it could have an impact on the security of the nation. This Court does not deem it appropriate to issue further directions, as it is within the executive's domain to take a call on sensitive issues.
CONCLUSION
Keeping in view the aforementioned analysis, the Writ Petition is disposed of accordingly. Pending applications, if any, have been disposed of.
