Supreme Court of India
PAWAN KUMAR GUPTA versus STATE OF NCT OF DELHI on 20 March 2020
[2020] 4 S.C.R. 1055
PAWAN KUMAR GUPTA
v.
STATE OF NCT OF DELHI
(Writ Petition (Criminal) No. 122 of 2020)
MARCH 20, 2020
[R. BANUMATHI, ASHOK BHUSHANAND A. S. BOPANNA, JJ.]
Constitution of India: Arts.32 and 72 – Writ petitionchallenging the rejection of mercy petition by the President of Indiaon the ground that the settled principles of consideration of mercypetition were not followed – Contention of writ petitioner that thepetitioner’s plea of juvenility was not finally determined and thisaspect was not kept in view while rejecting mercy petition u/Art.72of the Constitution – Held: There is no merit in the contention ofthe writ petitioner – The petitioner had earlier raised plea ofjuvenility before the Juvenile Justice Board and after consideringthe same, the Juvenile Justice Board transferred the petition to theSessions Judge – Sessions Judge dismissed the application filedby the petitioner as being not maintainable – High Court dismissedthe Revision Petition – Special Leave Petition was also dismissed– Therefore, the petitioner was not right in contending that the pleaof juvenility was not finally determined by the Courts – The pleaof juvenility raised by the petitioner was duly considered andrejected by the Courts – The petitioner further contended that hewas tortured in the prison and had sustained head injuries andproper treatment was not given to him – The alleged torture, if any,in the prison cannot be a ground for judicial review of theexecutive order passed under Art.72 of the Constitution of Indiarejecting the mercy petition – The contention that the petitionermight not have shared the common intention along with other co-accused and that he cannot be imposed the grave capitalpunishment were already considered by all the Courts and he wasfound guilty and convicted – While exercising the power of judicialreview, this contention cannot be entertained – Detailed orderswere passed while dismissing the writ petitions filed by the co-convicts – Applying the ratio of those orders, no ground made outto entertain this writ petition – When the power is vested in the
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Avery high constitutional authority, it must be presumed that the saidauthority had acted carefully after considering all the aspects ofthe matter – It cannot be said that the mercy petition was notconsidered with open mind – Writ petition dismissed – Mercypetition – Administrative Law – Judicial Review.
BEpuru Sudhakar & Another v. Govt. of A.P. & Others(2006) 8 SCC 161 : [2006] 7 Suppl. SCR 81 ;Shatrughan Chauhan & Another v. Union of India &Others (2014) 3 SCC 1 : [2014] 1 SCR 609 – reliedon.
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Case Law Reference
CRIMINAL ORIGINAL JURISDICTION : Writ PetitionD(Criminal) No. 122 of 2020.
Under Article 32 of the Consitution of India Dr. A.P. Singh, Shams Khwaja, Ms. Geeta Chauhan, V.P. Singh,Ms. Pratima Rani, Ms. Richa Singh, Sadashiv, Advs. for the Petitioner.
ETushar Mehta,SG, Kanu Agarwal, Ms. Swati Ghildiyal, RajatNair,/ Manan Popli, Shantnu Sharma,/Rajeev Ranjan, Bhuvan Kapoor/Varun Chugh, Digvijay D., B.V. Balram Das, Advs. for the Respondent.
The following Order of the Court was passed:
Citations and Judicial Treatment
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1. In this writ petition filed under Article 32 of the Constitutionof India, the petitioner Pawan Kumar Gupta has challenged rejectionof mercy petition by His Excellency the President of India inter aliaon various grounds; that settled principles of consideration of mercyGpetition have not been followed. The contention of the petitioner is thatthe petitioner’s plea of juvenility has not been finally determined andthis aspect was not kept in view by His Excellency the President ofIndia.
2. By the order of Hon’ble the Chief Justice of India, this BenchHhas been constituted and we held the sitting at 2.30 a.m. on 20.03.2020.
3. We have heard Dr. A.P. Singh and Mr. Shams Khwaja, learnedcounsel appearing for the petitioner/convict Pawan Kumar Gupta. Wehave also heard Mr. Tushar Mehta, learned Solicitor General appearingfor Union of India and also for NCT of Delhi. The matter was heardfrom 2.30 am till 3.15 a.m.
4. We have carefully gone through the grounds raised by thepetitioner and also submissions of the learned counsel appearing for theparties and perused the materials on record.
5. The petitioner has filed a mercy petition on 02.03.2020 andsame was rejected by His Excellency the President of India on04.03.2020. The petitioner has filed the second mercy petition on18.03.2020 repeating the same grounds.
6. In this writ petition, the petitioner has inter alia raised variousgrounds, namely:- (i) that there was miscarriage of justice in rejectionof the mercy petition; (ii) the petitioner’s date of birth is 08.10.1996and on the date of the incident that is 16.12.2012, he was only aged 16years and that he was a juvenile and his claim of juvenility has not beenfinally determined; (iii) the petitioner has been tortured in the prisonand had sustained head injuries for which he has not been given propertreatment.
7. The learned counsel for the petitioner Mr. Shams Khwaja hasalso raised the contention that the petitioner might not have sharedcommon intention along with the other co-accused and therefore thepetitioner cannot be imposed with the grave capital punishment withother co-convicts.
8. Mr. Shams Khwaja has also drawn our attention to the pressreport as per which His Excellency the President of India is said tohave expressed concern about “attacks on women” and also said tohave expressed his views that the persons who have been convictedof a crime under Protection of Children from Sexual Offences(POCSO) Act, should not be given the right to file a mercy petition. Itwas, therefore, submitted that having regard to the above press report,it cannot be said that His Excellency the President of India hasconsidered the mercy petition with an open mind.
9. The learned Solicitor General has submitted that the clippingsrelied upon by the learned counsel for the petitioner is only a press reportand in any event, the views expressed by His Excellency the President A
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Aof India could only said to be on the line of the reforms insofar asPOCSO is concerned.
10. The consistent view taken by this Court that the exercise ofpower of judicial review of the decision taken by His Excellency thePresident of India in mercy petition is very limited. In Epuru SudhakarB& Another v. Govt. of A.P. & Others, (2006) 8 SCC 161, this Courtheld thus:
“34. The position, therefore, is undeniable that judicial review ofthe order of the President or the Governor under Article 72 orArticle 161, as the case may be, is available and their orders canCbe impugned on the following grounds:
(a) that the order has been passed without application ofmind; (b) that the order is mala fide;
(c) that the order has been passed on extraneous or whollyirrelevant considerations; D
(d) that relevant materials have been kept out ofconsideration; (e) that the order suffers from arbitrariness.
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35. Two important aspects were also highlighted by learnedamicus curiae; one relating to the desirability of indicating reasonsin the order granting pardon/remission while the other was anequally more important question relating to power to withdrawthe order of granting pardon/remission, if subsequently, materialsFare placed to show that certain relevant materials were notconsidered or certain materials of extensive value were kept outof consideration. According to learned amicus curiae, reasons areto be indicated, in the absence of which the exercise of judicialreview will be affected.”
GThe decision in Epuru Sudhakar (Supra) was followed inShatrughan Chauhan & Another v. Union of India & Others, (2014)3 SCC 1.
11. In the light of the above pronouncement, we have consideredthe submissions of the learned counsel appearing for the petitioners andHalso the grounds raised in the writ petition.
12. In this writ petition, primarily the writ petitioner has againraised the plea of juvenility by contending that his date of birth is08.10.1996 and that he was a juvenile on the date of the incident on16.12.2012. The petitioner relies upon the School Certificate issued bythe School, namely, Gayatri Bal Sanskar Shala, Narayanpur, DistrictAmbedkar Nagar, which was issued on 12.12.2019. The learned counselDr. A.P. Singh submitted that the petitioner’s claim of juvenility has notbeen finally determined based on the above certificate issued by thesaid School on 12.12.2019.
13. We do not find merit in the above contention of the learnedcounsel Dr. A.P. Singh. The petitioner has earlier filed an applicationon 30.08.2018 raising the plea of juvenility before the Juvenile JusticeBoard-II, Prayas, Delhi, and after considering the same, the JuvenileJustice Board transferred the petition to the District & Sessions Judge,Patiala House, New Delhi, vide order dated 14.09.2018. By order dated21.12.2018, the learned Additional Sessions Judge, Patiala House, NewDelhi, dismissed the application filed by the petitioner as being notmaintainable.
14. Challenging that order, the petitioner has filed CriminalRevision Petition No.1301 of 2019 before the Delhi High Court. Bythe order dated 19.01.2019, the Delhi High Court dismissed the CriminalRevision Petition. Challenging that order the petitioner had filed the SLP(Crl.) No.547 of 2020. After considering the submissions of the petitioner,this Court had passed the detailed order dismissing the Special LeavePetition on 20.01.2020.
15. The petitioner is not right in contending that the plea ofjuvenility has not been finally determined by the Courts. The plea ofjuvenility raised by the petitioner has been duly considered and rejectedby the Courts as noted above.
16. The contention of the petitioner is that due to torture in theprison the petitioner had sustained head injuries and that he was suturedwith more than 10 sutures and proper treatment was not given to thepetitioner. As pointed out earlier, the exercise of judicial review of theorder of rejection of the mercy petition by His Excellency the Presidentof India is subject to challenge only on the grounds indicated in EpuruSudhkar (Supra) and Shatrughan Chauhan (Supra) and otherdecisions. The learned Solicitor General has submitted that the petitionerwas given proper treatment. The learned Solicitor General also denied AB
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Athe torture allegedly meted out to the petitioner. The alleged torture, ifany, in the prison cannot be a ground for judicial review of the executiveorder passed under Article 72 of the Constitution of India rejecting themercy petition.
17. Insofar as the contention of Mr. Shams Khwaja that theBpetitioner might not have shared the common intention along with otherco-accused and that he cannot be imposed the grave capital punishmentis concerned, these grounds have been already considered both by theTrial Court as well as the High Court and by this Court and the petitionerPawan Kumar Gupta has been found guilty and convicted.
C18. While exercising the power of judicial review, this contentionraised by the learned counsel Mr. Shams Khwaja cannot be entertainedas a ground for judicial review of the order of rejection passed by HisExcellency the President of India.
19. We have decided the writ petition filed by the co-convictMukesh Kumar in Mukesh Kumar v. Union of India - Writ PetitionD(Crl.) No..40 of 2020 (29.01.2020) and the writ petition filed by co-convict Vinay Kumar Sharma in Vinay Kumar Sharma v. Union ofIndia & Others - Writ Petition (Crl.) No.65 of 2020 (dated 14.02.2020),and Writ Petition filed by co-convict Akshay Kumar Singh in AkshayKumar Singh v. Union of India & Others - Writ Petition (Crl.) No.121Eof 2020 (19.03.2020) challenging the order of rejection of mercy petitionby His Excellency the President of India. We have passed detailedorders while dismissing those writ petitions challenging the order ofrejection of mercy petitions by His Excellency the President of India.
20. Applying the ratio of those orders, we do not find any groundFto entertain this writ petition warranting judicial review of the orderrejecting the mercy petition by His Excellency the President of India.
21. As we have pointed out in the earlier judgments in the abovewrit petitions, when the power is vested in the very high contitutionalauthority, it must be presumed that the said authority had acted carefullyafter considering all the aspects of the matter. It cannot be said thatGHis Excellency the President of India did not consider the mercy petitionwith open mind filed by the petitioner Pawan Kumar Gupta.
22. The writ petition is accordingly dismissed.
HDevika Gujral