By:- Megha Sharma
HIGH COURT OF MADRAS
|NAME OF THE CASE||MANOHARAN V. STATE OF TAMIL NADU|
|CITATION||Writ Petition No. 33102 Of 2019|
|DATE OF THE JUDGMENT||March 10, 2021|
|RESPONDENT||State Of Tamil Nadu|
|BENCH/JUDGE||Justice P.N. Prakash and V. Sivagnanam|
|STATUETES / CONSTITIUTION INVOLVED||Constitution of India Indian Penal Code,1860 Criminal Procedure Code,1972 Tamil Nadu Prison Rules, 1983|
|IMPORTANT SECTION/RULES INVOLVED||Constitution of India – Article 226, 161, 72 Indian Penal Code,1860 – Sections 376(2)(f), 376(2)(g), 302, 364A, 120B, 201 Criminal Procedure Code, 1973 – Sections 413 and 414 Tamil Nadu Prison Rules, 1983 – Rule 913|
The petition was filled by the petitioner under Article 226 of the Constitution of India praying the High court of Madras to issue the writ of Certiorari. He was sentenced to death by the sessions court and was approved by the high court earlier .Thereafter When he approached the honourable Supreme court his appeal was dismissed by the court. A warrant was issued by the trial court to the Superintendent , Central prison, Coimbatore who fixed the date of execution as 02.12.2019.The petitioner filled this petition challenging the warrant issued by the trial court by contending that the death sentence is being executed hurriedly .
Quoting the line of King Martin Luther as “Injustice anywhere is a threat to justice everywhere”. It means that if anywhere around the world some wrongful act or injustice is being done to someone then it is contagious like a virus and not a matter that can be tolerated anywhere. It is a threat to society as one could think of the same injustice being done with them. So, there arises the need of a system which provides justice to all and removes bias. Hence the concept of writ were introduced in Common Law for keeping an eye on the work of the administration.
‘ Certiorari’is a latin word meaning ‘to be made certain’.The writ of certiorari gives the power to the honourable Supreme court and High courts to quash an order already passed by the lower court. The Supreme Court has the power to even transfer a particular matter to a superior authority or take up the same on its own for consideration. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents mistake but also cures them.
The writ of Certiorari has been pleaded in this case by the petitioner. This writ has been in use since 1200. In the beginning it was used largely for reviewing errors. Slowly and gradually its scope widened and it went on to add quashing orders and criminal judgments. It can be issued to all judicial and quasi judicial bodies.
Writs are the written orders issued by the Supreme court or the High court that orders a person to perform a particular task or cease to perform a specific action or deed. These are the constitutional remedies provided to citizen of India against violation of their Fundamental rights under Article 32 and Article 226 of the Indian Constitution.
Earlier in 2011 the petitioner was sentenced to death by the Sessions court, Coimbatore on 01.11.2011 under Sections 376(2)(f) and (g), 201, 220(B), 364(A) and 302 read with Section 32 of Indian Penal Code,1860. On reference, high court confirmed the death sentence passed by the court on 24.03.2014. The petitioner then moved to the Supreme court in 2019 where his appeal was dismissed by the honourable court. His Review petition was also dismissed by the court on 07.11.2019.Thereafter, a relative of the petitioner on 12.11.2019 gave a representation to the Superintendent, Central Prison, Coimbatore, stating that the petitioner is going to file a mercy petition before the Hon’ble Governor, under Article 161 of the Constitution of India. However the trial court issued a warrant under form 42 and Sections 413 and 414 of Criminal Procedure Code, 1972 to the Superintendent of Central Prison ,Coimbatore who fixed the date of execution as 02.12.2019.The petitioner filled the present petition before the high court challenging the warrant issued by the trial court stating that the execution is being done hurriedly and he should be given the opportunity to appeal for mercy to the constitutional authorities.
FACTS OF THE CASE
In this case, a petition was filled by the petitioner asking the court to issue the writ of certiorari. In 2019, when trial court issued death warrant to the petitioner he was suggested by the prison authorities to file a curative petition but he refused by saying that his advocate is going to submit mercy petition before the honorable Governor of Tamil Nadu. The petitioner submitted a petition to the prison authorities, seeking extension of time under Rule 917 for filing a mercy petition. This petition was forwarded by the prison authorities to the State Government and the State Government by its order W.P.No.33102 of 2019 dated 26.11.2019, accepted the petition and extended the time for submitting mercy petition. But the petitioner did not submit the same until 2021. The learned counsel knew that the court was unhappy with the act of petitioner and thereafter went on to submit the mercy petition before the honorable Governor of Tamil Nadu on 01.03.2021 that is on the same day when court reserved its order.
ISSUES RAISED BEFORE THE COURT
- Whether the trial court should wait for the prisoner to file a clemency petition?
- Whether the petitioner has submitted mercy petition to the Governor?
- Whether the petitioner was afforded the necessary advice by the prison authorities?
ARGUMENTS FROM THE APPELLANT SIDE
- Learned senior counsel, Mr. Yashod Vardhan , representing Mrs. R. Poongkhulali learned counsel on record for the petitioner, placed reliance on the judgment of the Supreme Court given in the case of Shabnam V. Union of India and contended that the trial court should have given the proper opportunity to the petitioner to file a clemency petition and should not have issued warrant in form 42 in hurry.
- He further argued that the death penalty should not be executed hurriedly. He has also placed strong reliance on the judgment of the Allahabad High Court in the case of Peoples’ Union for Democratic Rights (PUDR) Vs. Union of India, which has also been referred to in the case of Shabnam V. Union of India.
- When senior counsel was asked if the petitioner has submitted the mercy petition to the honourable Governor, he answered in negative and further contended that young anti death penalty activist lawyers are working on the mercy petition and will summit it once it gets done.
ARGUMENTS FROM THE RESPONDENT SIDE
- The learned counsel, Mr. R. Pratap Kumar, representing the respondent stated that the trial court has waited not only for the dismissal of SLP by the petitioner but also for the review petition .He further contended that the trial court cannot wait indefinitely for the prisoner to file a clemency petition.
- He further argued that the petitioner has taken advantage of the court’s stay order that was passed on 26.11.2019 in W.P.No.33102 of 2019. He read the court’s order which clearly stated that ” We also make it clear that our order will not stand in the way of the petitioner making mercy plea before His Excellency The Hon’ble Governor of Tamil Nadu, as submitted by the learned Senior Counsel appearing for the petitioner.”
Constitution of India
Article 226 : ‘It empowers high courts to issue certain writs – habeas corpus, mandamus, quo warranto, prohibition and certiorari or any appropriate writ.’
Article 161 : ‘Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.’
Article 72 : ‘Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.’
Indian Penal Code, 1860
Section 376(2)(f) : ‘This section talks about punishing a person who commits rape on a woman when she is under twelve years of age.’
Section 376(2)(g) : ‘It says the one who commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either.’
Section 302 : ‘ Punishment for murder.—Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.’
Section 364(A) : ‘Punishment for kidnapping for ransom, etc – Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel shall be punishable with death, or imprisonment for life, and shall also be liable to fine.’
Section 120(B) : ‘It talks about the punishment of criminal conspiracy.’
Section 201 : ‘Causing disappearance of evidence of offence, or giving false information to screen offender.’
Criminal Procedure Code, 1973
Section 413 : ‘When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.’
Section 414 : ‘Execution of sentence of death passed by High Court. When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.’
Tamil Nadu Prison Rules, 1983
Rule 913 : ‘Intimation of Submission of petition.‑ The Superintendent shall immediately on receipt of intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal to it lodged by or on behalf of the convict, in case the convict concerned has made no previous petition for mercy, inform the Convict concerned that if he desires to submit a petition for mercy, it shall be submitted in writing within seven days exclusive of the date on which the convict has been informed by the Superintendent. The petition for mercy shall be addressed to the Governor of Tamil Nadu and the President of India.’
The high court of Madras contended that the records have shown that the petitioner was well informed about the dismissal of his review petition by the honorable Supreme Court and the Prison authorities had advised the petitioner to submit a curative petition as they have received the death warrant from the trial court, fixing the date of execution as 02.12.2019 but the petitioner has refused to this and stated that his Advocate is in the process of submitting mercy petition. After this he pleaded the authorities to grant him time to submit the same, which was granted by the state government. But the petitioner took advantage of this and did not file the same till date. The court also stated that the anti death penalty lawyers should use fair methods to achieve their objective and should not use foul methods like obtaining an order of stay, but, not submitting the mercy petition despite a specific direction of this Court and not taking steps to list this case thereafter.
The court referred to the records from the Central Prison which showed that a mercy petition was filed in the afternoon on the same day when court reserved its order i.e. on 01.03.2021.This clearly demonstrates that the moment the advocates came to know the Court was unhappy with the conduct of the petitioner in not giving the mercy petition for more than a year, they were able to immediately submit the mercy petition in the afternoon.
The court pointed to the judgment given in the case of V. Sriharan V. Union of India in which it observed that clemency procedure under Articles 72/161 of the Constitution provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment. Mercy petition ensures that a chance is given to the prisoner and thereafter the execution will only be fixed by the prison authorities and not by the trial court. The Madras High court further placed a strong reliance on the judgment of the Allahabad High Court in Peoples’ Union for Democratic Rights (PUDR) V. Union of India in which the court stated that ‘One can have no quarrel with the preposition that the death penalty should not be hurriedly executed.’ This judgment of the Allahabad high court has also been referred in the case of Shabnam V. Union of India on which the learned counsel, Mr. Yashod Vardhan, representing the petitioner placed a strong reliance. In this case the trial court have ought not to issue the warrant in the form 42 hurriedly and gave the petitioner sufficient opportunity to file a clemency petition.
The honorable High court of Madras was of the view that petitioner has failed to prove its point. Hence, the writ petition fails and is accordingly dismissed.
Anti death penalty is based on the principle that the society has a moral obligation to protect the life of a human being and not of taking it. Capital punishment should not be given often except for the cases where the court finds the person of the evil nature that is not good for the society as whole and if done the objective should be only of balancing good over evil.
This case emphasized on the point that there are people who take advantage of the very law which was made to protect them. The court pointed out to the methods used by a prisoner to escape from the punishment which was given as the death penalty by the court for committing rigorous crime against society.
The court in a very comprehend manner dismissed the plea of ordering the writ of certiorari.
 Indian Penal Code, 1860, § 376(2)(f).
 Indian Penal Code, 1860, § 376(2)(g)
 Income tax India, https://www.incometaxindia.gov.in/forms/income-tax%20rules/103120000000007905.pdf (last visited July 3, 2022)
 The Tamil Nadu Prison Rules,1993, Rule 914.
 Indian kanoon, https://indiankanoon.org/doc/160771144/ (last visited July 3 2022).
 (2015) 6 SCC 702.
 2015 SCC ONLINE All 143.
 Indian kanoon , https://indiankanoon.org/doc/160771144/ (last visited July 4 2022)
 The Consti. Of India, Article 226.
 The Consti. Of India, Article 161.
 The Indian Penal Code, 1860, § 376(2)(f).
 The Indian Penal Code, 1860, § 376(2)(g).
 The Indian Penal Code, 1860, § 302.
 The Indian Penal Code, 1860, § 364(A).
 The Indian Penal Code, 1860, § 120(B).
 The Indian Penal Code, 1860, § 201.
 The Code of Criminal Procedure, 1973, § 413.
 The Code of Criminal Procedure, 1973, § 414.
 Indian kanoon, https://indiankanoon.org/doc/50602236/( last visited 4 July 2022)