Presentation on execution of death penalty

1. WARENTO NESCIUNT MORTEM
DEATH WARRANT/BLACKWARRENT
24-04-2020
M/S.GIRIDHAR & SAI
1
ADVOCATE:- BHERU SINGH

3. •Dhananjoy Chatterjee v. State of W.B (2004)
FACT OF CASE
Dhananjoy Chatterjee was a convicted rapist and murderer of an 18-year-old
schoolgirl, Hetal Parekh. He was working as a security guard in an apartment.
The victim lived in the same apartment that Dhananjoy was working as a
security guard. On the afternoon of 5th March 1990, the victim was found dead
inside her home by her mother. Since Dhananjoy was not seen in the area after
the murder had been discovered, he was accused of raping and killing the girl
in her apartment. He was arrested on 12 May 1990 by the Kolkata police
charging him with rape, murder, and theft of a wristwatch.
LANDMARK JUDGMENT OF SUPREME COURT IN BLACK
WARRENT

4. The sessions court convicted Dhananjoy of all offenses and sentenced him to death. The Alipore
Sessions Court sentenced Dhananjoy to death in 1991. THIS DECISION WAS UPHELD BY BOTH
THE CALCUTTA HIGH COURT AS WELL AS THE SUPREME COURT. Even though he filed mercy
petitions with the Governor of West Bengal and President A.P.J. Abdul Kalam, both were
rejected. Dhananjoy was executed at 4:30 am on August 14, 2004, on his 39th birthday, in
Alipore Central Jail Kolkata.

5. •Mohammed Ajmal Amir Kasab v. State of Maharashtra (2012)
The infamous 26/11 Mumbai attack witnessed Kasab and 9 other terrorists carrying out a series of coordinated
shooting and bombing attacks across the city. The terrorists targeted major landmarks of Ajmal Kasab and Ismail
Khan carried out the attack killing as many as 58 people and injuring over 100 at CST station. Kasab who was 21
at the time, was the only surviving member of the group that launched wide destruction across the Mumbai city
killing 166 people. He was captured after a shoot-out with police and was interrogated and captured with 86
offenses including murder and waging war on India. Though the prosecutors said he had confessed, Kasab's
lawyers said his statement had been compelled and it was retracted.

6. His trial began in March 2009. In May 2010, Kasab was sentenced to death by a special court.
Though Kasab's lawyer called for leniency saying that his client had been brainwashed by a
terrorist organization (Lashkar-e-Taiba) and could be rehabilitated, on May 7, trial judge ML
Tahaliyani remarked "he should be hanged by the neck until he is dead" adding that he had lost
his right to "humanitarian treatment". Kasab appealed against the sentence and the Mumbai High
Court began hearing his case in October 2010. Initially, he attended the proceedings through a
video link for security reasons. Though he demanded to attend court in person, the same was
refused and he was reprimanded for his outburst. The Mumbai High Court rejected his appeal in
February 2011.

7. In July 2011, Kasab took his appeal against his death penalty to the Supreme Court.
In the statement submitted in the court, Kasab said the prosecution had failed to prove beyond
a reasonable doubt the charges against him. He said, " he may be guilty of killing people and
carrying out a terrorist act but I am not guilty of waging war against the state." On 29 August 2012,
the Supreme Court rejected his appeal and upheld the death penalty by the trial court. The mercy
petition filed by him was also rejected by President Pranab Mukherjee. Ajmal Kasab was hanged in
prison on November 21, 2012, in Yerwada Jail, Pune.

8. •State v. Mohd. Afzal & Ors. (Afzal Guru's case, 2013) “CONFESSION CASE”
On December 13, 2001, five armed personnel drove into Parliament in a car and inflicted
heavy casualties on the security men on duty. In the gun battle, the five terrorists who tried to
enter into Parliament when it was in session, were killed. Nine persons including eight
security personnel and one gardener succumbed to the bullets of the terrorists. 16 persons
including 13 security men received injuries. On December 15, 2001, the special of the Delhi
Police arrested Afzal Guru from Srinagar, his cousin Shaukat Husain Guru, Shaukat's wife
Afsan Guru and S.A.R. Gilani, a lecturer of Arabic at Delhi University with the help of leads
relating to car and cellphone records. An FIR was lodged by the police on 13 December and all
the accused were tried under charges of waging war, conspiracy, murder, attempt to
murder, etc. Provisions of the Prevention Of Terrorism Act (POTA) 2002, was later added
along with the original charges.

9. On 18 December 2002, the special court awarded capital punishment to Guru, Shaukat, and Gilani.
Shaukat's wife Afsan was found guilty for concealing the plot and was sentenced to 5 years in jail. Delhi
High Court in 2003, on an appeal, upheld the conviction of Guru and Shaukat. The co-accused in the
case, SAR Geelani and Afsan Guru (wife of Shaukat Husain), were acquitted by the High Court 29 October
2003. On 24 August 2005, the Supreme Court upheld the death sentence for Afzal Guru while it
commuted Shaukat's sentence from death to 10 years imprisonment. Though Guru filed a review
petition before the Supreme Court, in 2005 September the same came to be dismissed by the Supreme
Court.
In October 2006, Guru's wife filed a mercy petition with the then President of India, A.P.J. Abdul Kalam. In
June 2007, the Supreme Court dismissed Guru's plea seeking review of his death sentence. In 2010,
Shaukat Hussain Guru was released from Delhi's Tihar Jail due to his good conduct. On 3 February
2013, the President rejected Afzal Guru's mercy petition. Afzal Guru was hanged on 9 February 2013 at
8 am in Tihar Jail, Delhi.

10. •Yakub Memon v. State of Maharashtra (2015)
Yakub Memon was the brother of one of the prime suspects in the bombings Tiger Memon. A chartered
accountant by profession, Yakub Memon was alleged to have participated in the Bombay that were
masterminded by Tiger Memon and underworld mafia Dawood Ibrahim. The blasts claimed the lives of
257 people. The police claimed that Yakub Memon was arrested at New Delhi Railway Station on August
5, 1994. According to him, he surrendered himself to the police at Kathmandu in Nepal on July 28, 1994.
On July 27, 2007, The trial was conducted by Justice P.D. Kode under Terrorist and Disruptive Activities
(Prevention) Act (TADA) court and found him guilty of the offenses. He was held guilty for criminal
conspiracy to carry out terrorist activities and murder, aiding and abetting terrorist activities. He was
also held for illegal possession and transportation of arms and ammunition and was punished for 14
years to 10 years and then with the death penalty.

11. Memon appealed for the revision of his death sentence and the same was rejected by
the Supreme Court by upholding the death sentence. He also filed a review petition of
the Supreme Court decision confirming his death sentence. On July 30, 2013,
Justice P. Sathasivam rejected his application for oral hearings and dismissed the
review petition. Later on June 1, 2014, Justices J. Khehar and C. Nagappan imposed
a stay on the execution of Yakub Memon. Maharashtra Government-issued capital
punishment by fixing July 30, 2015, as the date for Yakub Memon's execution. On 22
May 2015, Memon filed a curative petition before the Supreme Court. The same was
denied on 21 July 2015. He also filed a mercy petition before the Governor of
Maharashtra for a stay of his execution of Yakub Memon.Maharashtra Government-
issued capital punishment by fixing July 30, 2015, as the date for Yakub Memon's
execution. On 22 May 2015, Memon filed a curative petition before the Supreme Court.
The same was denied on 21 July 2015. He also filed a mercy petition before the
Governor of Maharashtra for a stay of his execution and the same was denied. Yakub
Memon was executed on 30 July 2015 in Nagpur Central Jail.

12. DEATH SENTENACE
REVIEW PETITIONCURATIVE PETITION
MERCY
PETITION

13. In India, a binding decision of the Supreme Court/High Court can be reviewed in a review petition.
A review petition cane be filed by the parties aggrieved by the decisions of Supreme Court. The
provision of review is an exception to the principle of stare decisis as courts generally do not
unsettle a decision, without a strong case.
As per Article 137 of the Constitution of India and the rules made under Article 145, the Supreme
Court of India has the power to review its judgment pronounced by it. As per Supreme Court rules,
1966 such a petition is to be filed within 30 days of the pronouncement of judgment or order
and that petition should be circulated without oral arguments to the same bench that delivered the
judgment.
Furthermore, if a review petition is dismissed by the Supreme Court, it may consider a curative
petition filed by the petitioner so as to prevent abuse of process. In accordance with Order XVII,
Rule1(1) of Code of Civil Procedure, 1908, a civil review petition can be moved. While a criminal
review petition can be filed only on the ground of error apparent on the face of record.

14. Curative petition is the last constitutional remedy available to a person whose review petition
has been dismissed by the Supreme Court.
Though the Constitution explicitly speaks about the review power of the Supreme Court under Article
137, it is silent about 'curative power'.
The curative petition was given shape and form in the case of Rupa Ashok Hurra v. Ashok Hurra &
Anr.,where the apex court reconsidered its judgment in exercise of its inherent power to prevent abuse
of its process and to cure a gross miscarriage of justice.

15. The Supreme court of India evolved the concept of curative petition in the landmark case
of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where a question was raised that
whether an aggrieved person is entitled to any relief against the final order/judgment of the
Supreme court after dismissal of review petition.
In this case it was held by the Supreme court that so as to prevent abuse of process as well
as to cure miscarriage of justice, it may reconsider its judgments. The court has devised a
term ‘curative’ for this purpose. The petitioner is required to aver specifically that the
grounds mentioned that had been taken in the review petition filed earlier and also it was
dismissed by circulation.
A curative petition is required to be certified by a senior advocate and then it is circulated
to the three senior most judges and the judges who delivered the impugned judgment. There
is no time limit for filing a curative petition and it is guaranteed under Article 137 of the
Constitution of India.
CURATIVE PETITION

16. Essentials
The Supreme court has laid down specific conditions in order to entertain curative petition
which are as follows:
❖ It has to be established by the petitioner that there was a genuine violation of principles of
natural justice.
❖ It shall be specifically stated in the petition that the grounds mentioned had been taken in
the petition and that it was dismissed by circulation.
❖ The curative petition shall be certified by a senior advocate.
❖ The curative petition is then circulated to the three senior most judges and also to the
judges who passed the impugned judgment.
❖ If majority of the judges agree that the matter needs hearing, then it would be sent to the
same bench.
❖ Exemplary costs could be imposed by the court to the petitioner if his plea lacks
merit.

17. Some examples of curative petitions being allowed.
The curative petition was allowed in the case of Navneet Kaur v.
State of NCT of Delhi where the curative petition was filed by
Navneet Kaur w/o Devender Pal Singh against the dismissal of review
petition wherein she prayed for setting aside the death sentence
imposed upon him on the grounds of supervening circumstance of
delay of 8 years in disposal of mercy petition. The apex court in this
case allowed the curative petition by commuting the death sentence
to life imprisonment on the ground of inordinate delay of 8 years in
disposal of mercy petition and on the ground of insanity.

18. In another case, the Supreme Court set aside its own judgment which held
that the action of a the woman merely kicking her daughter-in-law or
threatening her with divorce would not come within the meaning of
"cruelty" under Section 498 A of the Indian Penal Code. The three judge
Bench allowed the curative petition filed by the National Commission for
Women (NCW) by restoring the Special Leave Petition.

19. .
Provisions under Indian Law:-
Article 72 of the Indian Constitution deals with the power of President to grant pardons,
to suspend, remit or commute sentences in certain cases. Under this article, President
alone has the sole authority to grant mercy petition in criminal cases on the aid and
advice of the council of ministers.
Also, Article 161 of the Indian Constitution grants power to the Governor to grant
pardons, to suspend or remit or commute sentences of any person convicted of any
offence against any law relating to matter to which the executive power of the State
extends

20. Procedure for mercy petition.
The Shatrughnan case judgment laid down certain procedural guidelines for mercy petition. They
are :
• As soon as a mercy petition is received, the Ministry of Home Affairs should place it along
with court records and files before the President without delay.
• Rejection of mercy petition must be forthwith communicated to the prisoner and his family in
writing.
• Death row convicts are entitled to a copy of the rejection of the mercy plea.
• Minimum 14 days interval should be there between the receipt of communication of rejection
and the date of execution. This time gap will enable the prisoner to prepare mentally, "make
peace with god", and to "settle his earthly affairs". This will also enable the prisoner to have a
final meeting with family.
• The Superintendent of Jail has the obligation to ensure that the family members of the prisoner
receives the communication of rejection in time.

21. Judicial review of mercy power:-
Judicial review of the order of the President or the Governor under Article 72 or Article 161, as the
case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness".

22. When there is delay in disposal of mercy petition?
Shatrughnan Chauhan &Anr. v. UoI.
Here, the apex court held that the condemned prisoner's death sentence can be
commuted to life imprisonment if there is inordinate delay in deciding the mercy
plea. In this judgment, a three- judge overruled the decision of a two-judge bench
in the case of Devender Pal Singh Bhullar & Anr. v. State of NCT of
Delhi, which had held that the delay in deciding mercy plea cannot be a ground
for commutation of death sentence.

23. The limitations of judicial review over exercise of powers under Articles 72 and
161 of the Constitution have been delineated in Maru Ram v Union of India by the
constitution Bench. It has been observed that all public power, including
constitutional power, should not be exercised arbitrarily or mala fide. The bench
stressed the point that the "power being of the greatest moment, cannot be a
law unto itself but it must be informed by the finer canons of
constitutionalism".
• Remission of life sentence was granted by the Governor of UP in Swaran Singh
v. State of U.P. to the Minister of the State Legislature Assembly convicted for
the offence of murder. The Supreme Court in this case quashed the Governor's
order and said that if clemency power has been exercised in absolute disregard
of the "finer cannons of constitutionalism", such an order cannot get approval of law

24. In Maru Ram v. Union of India, the apex court said that Articles 72 and 161 of the Constitution of
India can be exercised by the Central and State Governments, not by the President and Governor on
their own. The advice of the appropriate Government binds the Head of the State.
n Kehar Singh and Anr. v. Union of India, the Supreme Court said that it is appropriate that in the
matter of life and personal liberty, another degree of protection should be extended by entrusting
power further to some high authority to consider the option of commutation. The power so entrusted
is a power belonging to the people and lies in the highest dignitary of the State. The power to
pardon is a part of the constitutional scheme and it should be so treated also in the Indian
Republic. It has been reposed by the people through the Constitution in the Head of the State, and
enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion
arises in accordance with the discretion contemplated by the context".

25. What law says on who can witness an
execution
The Delhi Jail Manual prescribes a detailed process involving various steps that are required to be followed
before a hanging takes place. As per Indian laws, hanging is the only mode of executing a death sentence
for civilians. The law however allows death by shooting in cases related to the armed forces if the court
martial hearing the case deems it fit.
Paragraph 872 of the Delhi Jail Manual says an execution shall take place early in the morning before
it gets bright. It also says that a prisoner can't be hanged on a day that has been notified as a public
holiday.
The jail manual categorically says that no prisoner should be allowed to witnesses the execution of a fellow
inmate and neither should the convict who is to be hanged be made to see the gallows.
"Prisoners of all categories shall be kept locked up until the execution is over and the body removed from
the prison," the manual states.

26. WITNESS TO AN EXECUTION
As per the jail manual, the jail superintendent, deputy superintendent and medical officer in charge
and resident medical officer shall be present at all executions.
• Apart from this, the manual says the local district magistrate, and in his absence additional district
magistrate, shall attend the execution and countersign the warrant.
• "If the convict desires, a priest of his/her faith may be allowed, at the discretion of jail
superintendent, to be present at the place of execution, subject to the requirements of security and
prison discipline," the manual states.
• Relatives and other prisoners are not allowed to witness an execution.
• However, the jail manual grants an exception to those who can witness an execution. It states that
after taking prior permission from the government, the jail superintendent can allow social
scientists, psychologists, psychiatrists etc. who are conducting a research on matters related to
death sentence to be present during the execution.
• "The jail superintendent's discretion shall prevail in the matters relating to grant of permission to
witness execution," the manual states.
Apart from those listed above, at least 12 guards, including 10 constables and two head
constables, shall be present at every execution.

27. THE ANATOMY OF A HANGING
The day before an execution prisoner goes through a harrowing experience of being
weighed, measured for length of drop to assure breaking of the neck, the size
of the neck, body measurements etc. When the trap springs he dangles at the end of
rope. There are times when the neck has not been broken and the prisoner strangles
to death. His eyes pop almost out of his head, his tongue swells and protrudes from
his mouth, his neck may be broken and the rope many times takes large portion of
skins and flesh from the side of the face that the noose is on. He urinates, he
defecates and droppings fall to the floor while witnesses look on and at almost all
executions one or more faint or have to be helped out of the witness room. The
prisoner remains dangling from the end of the rope from 8 to 14 minutes before the
Doctor, who has climbed up a small ladder and listen to his heartbeat with a
stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged
person and holds the body steady, because during the first few minutes there is
usually considerable struggling in an effort to breathe. – Warden Duffy of San
Quention Prison Law Commission of India, 187th Report

28. KILL THE SIN AND NOT THE
SINNER
THANK YOU
ADVOCATE:BHERU SINGH