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1989 DIGILAW 77 (GUJ)

TRIVENIBEN WIDOW OF KESHAVLAL PARMAR v. STATE

1989-05-05

P.M.CHAUHAN, P.R.GOKULAKRISHNAN

body1989
P. M. CHAUHAN, P. R. GOKULAKRISHNAN, J. ( 1 ) PETITIONER the mother of Shashikant Keshavlal Parmar who is sentenced to death in Sessions Case No. 57 of 1980 by the Sessions Judge Rajkot for committing the triple murder of (1) Vibha Narendra Dave (2) Ashaben Narendra Dave and (3) Gaurishanker Ishwarlal Dave which was confirmed in Confirmation Case No. 1 of 1981 and the Criminal Appeal No. 826 of 1981 arising from the aforesaid sessions case was dismissed by the High Court on 19/01/1982 and the appeal was dismissed by the Supreme Court of India on 26/07/1982 has preferred this petition under Arts. 14 21 and 226 of the Constitution of India for directing the concerned authorities not to implement the order of execution of Shashikant Keshavlal Parmar until the mercy petition preferred by the petitioner is considered by the President of India. ( 2 ) AFTER the appeal was dismissed by the Supreme Court mercy petition under Art. 161 of the Constitution of India was submitted by Shashikant Keshavlal Parmar on 7/08/1982 to the Governor of Gujarat and the mercy petition under Art. 72 of the Constitution of India was submitted to the President of India After that Criminal Writ Petition No. 1349 of 1985 was preferred before the Supreme Court which was dismissed on 4/09/1985 Criminal Writ Petition No. 1566 of 1985 was then preferred before the Supreme Court and on 8/11/1985 the Supreme-Court stayed the execution of the sentence of death and directed the writ petition to be heard along with other writ petitions. The Supreme Court dismissed the writ petition on 7/02/1989. ( 3 ) ACCORDING to the petitioner the preferred mercy petition dated October 18 1985 and presented at the registry of the President on that day. On 13/12/1985 the then President of India Honble Shri Gnani Zailsingh visited the State of Gujarat and Haribhai Panchal handed over the mercy petition personally to the President of India. According to the petitioner that mercy petition is not decided as yet and therefore till it is decided the execution of the sentence of death should be stayed by this Court. ( 4 ) MR. According to the petitioner that mercy petition is not decided as yet and therefore till it is decided the execution of the sentence of death should be stayed by this Court. ( 4 ) MR. M. D. Pandya learned Public Prosecutor appearing for the respondents Stated that the mercy petition submitted to the Governor of Gujarat on 7/08/1982 was rejected on 16/10/1982 and the mercy petition submitted to the President of India was rejected on 21/04/1983 The previous mercy petitions to the Governor of Gujarat and the President of India were therefore rejected quite in reasonable time and for that no grievence is made by the petitioner. ( 5 ) THE Supreme Court considered the various aspects of the procedural fairness under Art. 21 of the Constitution of India in the case of Triveniben v. State if Gujarat 1589 (1) SCC 678 [1989 (1) GLR 622 (SC)]. The present petitioner Triveniben preferred Writ Petition (Criminal) No. 1566 of 1985 in the Supreme Court and that was heard by the five Judges of the Supreme Court along with other petitions. The Supreme Court ultimately dismissed the writ petition observing:"the delay which would be material for consideration will be subsequent to the final decision of the Court the delay in disposal of the mercy petition or delay Ocurring at the instance of the executive. Therefore when such petitions under Art. 72 or 161 are received by the authorities concerned it is expected that the Petitioners shall be disposed of expeditiously. However while considering the. question of such delay the time spent co petitions for review and repeated mercy petitions at the instance of the convicted person himself shall not be considered". It is also observed at para 73 (at page No. 648 of GLR) that"under Art. 12 of the Constitution the President shall have the power to grant pardons reprieves respects or remissions of punishment or suspend. remit or commute the sentence of any person convicted of and offence. Under Art. 161 of the Constitution similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to ws the executive power of the State extends. The time taken by the executive for disposal of mercy petition may depend upon the nature of the case and the scope of enquiry to be made. The time taken by the executive for disposal of mercy petition may depend upon the nature of the case and the scope of enquiry to be made. It way also depend upon the number of mercy petitions submitted by or behalf of the accused. The Court therefore cannot prescribe time limit for disposal of even for mercy petitions". In the instant case it is clear that the execution of the death sentence could not be carried out as the Supreme Court granted stay in the year 1985 and the writ petition is dismissed only recently 6 It is clear that the previous mercy petition was dismissed by. the Governor in October 1982 and by the President of India in April 1983 It is not clear as to what happened to the mercy petition submitted to the President of India in December 1985. It is however order that the previous mercy petition was dismissed by the resident of India. In second a mercy petition only of which is produced almost all the contentions which are landed including delay in execution of death sentence improvement in behavior in Criminal writ petition No. 1566 of 1985 where raised. The Supreme Court has consider the contention raised before it and rejected. ( 6 ) MERELY because second mercy petition was submitted in December 15. 85 that by itself should not be taken for staying the execution of the death sentence by this Court. As such that is not the ground or reason for staying the execution of the death sentence by this Court. The position should been quite different if the first mercy petition could not have been dismissed by the President of India. In that case this Court mile exercising the extraordinary jurisdiction should have stayed the execution of the death sentence for the limited period with a view to give offence to the contention prisoner. Merely because the repeated applications the submitted that should not be the ground for staying the execution of the death sentence. The petitioner does nor appear to have waged that contention before the Supreme Court even though that Criminal Writ Petition is denied in 1989. ( 7 ) THE Supreme Court has categorically observed that it is necessary to emphasis that the jurisdiction of the Court at this stage is extremely limited. The petitioner does nor appear to have waged that contention before the Supreme Court even though that Criminal Writ Petition is denied in 1989. ( 7 ) THE Supreme Court has categorically observed that it is necessary to emphasis that the jurisdiction of the Court at this stage is extremely limited. There Court tray only consider whether there was under long delay in deposing of mercy petition whether the State was guilty or dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be significcant factor but that-by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. The contention that the accused improved after the death sentence is also considered by the Supreme Court and observed that such a ground is unavailable as it seeks to substitute new procedure which the Code does not provide for. The fact that the accused Shashikant Keshavlal Parmar donated one of the kidneys by itself should notice a ground for staying the execution of the death sentence. ( 8 ) W c therefore do not find any reason to stay the execution of the death sentence. This petition is therefore rejected. Notice discharged. Application dismissed. .