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TMI Blog1983 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... t delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death. We therefore accept the special leave petition, allow the appeal as also the Writ Petition and quash the sentence of death. In the place of the sentence of death, we substitute the sentence of imprisonment for life. Appeal allowed. - Criminal Appeal No. 75 of 1983 - - - Dated:- 16-2-1983 - REDDY, O. CHINNAPPA AND MISRA, R.B., JJ. R.K Garg and R. Satish for the Appellant/Petitioner A.V. Rangam for the Respondent JUDGMENT CHINNAPPA REDDY, J. A prisoner condemned to death over eight years ago claims that it is not lawful to hang him now. Let us put the worst against him first. He was the principal accused in the case and, so to say, the archvillian of a villainous piece. He was the brain behind a cruel conspiracy to impersonate Customs officers' pretend to question unsuspecting visitors to the city of Madras, abduct them on the pretext of interrogating them, administer sleeping pills to the unsuspecting victims steal their cash and jewels and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mane significance in the sentencing context . In State of U.P. v. Lalla Singh([1978] S.C 168) Gupta and Kailasam, JJ, were dealing with a case of gruesome murder of three persons, the head of one of whom was severed. The learned judges, while of the view that the Sessions Judge was perfectly in order in imposing the sentence of death, thought that as the offences had been committed More than six years ago, the ends of justice did not require the sentence of death to be confirmed. In Bhagwan Baux Singh v. State of U.P.( A.I R [1978] S.C. 34), the sentence of death was commuted to imprisonment for life by Murtaza Fazal Ali and Kailasam, JJ, having particular regard to the fact that the sentence of death had been imposed more than two and a half years ago. In Sadhu Singh v. State of U.P.( A.I.R. [1978] S.C. 1506), Sarkaria, Sen, JJ, and one of us (Chinnappa Reddy, JJ took into account the circumstance that the appellant was under spectre of the sentence of death for over three years and seven months to alter the sentence of death to one of imprisonment for life. In State of U.P. v. Sahai ([1981] S.C. 1442), Murtaza Fazal Ali, Baharul Islam and Varadarajan, JJ, while holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e do not doubt that the appellants have proved that they have been subjected to a cruel and dehumanising experience Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment. It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading. Such a case has been established, in our view, by these appellants. While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay. What are the constitutional imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: But apart altogether from these observations in A.K Gopalan's case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Art. 21, having regard to the impact of Art. 14 on Art. 21. Again he said: The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be right and just and fair and pot arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Art. 21 would A not be satisfied. In Sunil Batra v. Delhi Administration (supra), Krishna Iyer, J. while dealing with the question whether solitary confinement could be indicted on a person awaiting death sentence, observed: True our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi, the consequence is the same. For what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not 'arbitrary, fanciful or oppressive' otherwise it should be no procedure at all and the requirement of Art. 21 would not be satisfied . The learned judge then referred to Art. 21 and said, If this article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows: No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law . In the converse positive form, the expanded Article will read as below: A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law . Thus expanded and read for interpretative purposes, Art. 21 clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law . The question whether a prisoner under a lawful sentence of A'. death or imprisonment could claim Fundamental Rights was considered in Bhuvan Mohan Patnaik v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with or without proof of something more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial. A fair trial implies a speedy trial. Earlier in Hussainara Khatoon (I) v. Home Secretary ([1980] 1 S.C.C. 81), it was observed by Bhagwati. J.: If a person is deprived of his liberty under aprocedure which is not reasonable, fair or just , such deprivation would be violative of his fundamental right under Art. 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Art. 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case ii tn vacate the sentence of death. What may be considered prolonged delay so as to attract the constitutional protection of Art. 21 against the execution of a sentence of death is a ticklish question. In Ediga Annamma's case, two years was considered sufficient to justify interference with the sentence of death. In Bhagwan Baux's case, two and a half years and in Sadhu Singh's case, three and a half years were taken as sufficient to justify altering the sentence of death into one of imprisonment for life. The Code of Criminal Procedure provides that a sentence of death imposed by a court of Session must be confirmed by the High Court. The practice, to our knowledge, has always been to give top priority to the hearing of such cases by the High Courts. So, also in this Court. There are provisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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