Execution of Death Sentence cannot be indefinitely deferred in waiting for convict to file mercy plea: Madras High Court

While a death row convict undoubtedly has a right to file a mercy petition, courts cannot indefinitely defer the execution of a death sentence in waiting for the mercy petition to be filed, the Madras High Court recently said (Manoharan v. State of Tamil Nadu). .The order was passed by the Bench of Justices PN Prakash and V Sivagnanam last week. ."While it is no doubt true that the convict has a right to prefer a petition for mercy, it cannot be lost sight of that the exercise of this right is still the prerogative of the convict and the Courts cannot indefinitely order deferment of a judicially upheld sentence on the supposition that an application for mercy would be filed by the convict," the Court said. .The death row prisoner in this case, was convicted under the following provisions of the Indian Penal Code:Section 376 (2)(f) (punishment for rape on a woman when she is under twelve years of age) and (g) (gang rape), Section 302 (murder), Section 34 (acts done by several persons in furtherance of common intention), Section 364A (kidnapping for ransom etc.), Section 120B (criminal conspiracy), and Section 201 (causing disappearance of evidence, giving false information)..In 2012, he was sentenced to death by a Mahila Court at Coimbatore. The High Court confirmed the sentence. His appeals against the sentence were dismissed, including by the Supreme Court which went on to dismiss his review plea as well. .In November 2019, his relative gave a representation to the Superintendent of the Central Prison, Cuddalore, informing that he would be filing a mercy petition before the Governor. However, days later, on November 18, 2019, the trial court issued a death warrant, fixing the date of execution on December 12, 2019..A petition was, therefore, filed in the Madras High Court challenging the warrant by contending that the death sentence is being executed hurriedly. On November 26, 2019, the High Court stayed the death warrant until further orders. The Court also added that the case would not stand in the way of the petitioner filing his mercy plea..Thereafter, the case did not see the light of day for over a year. The matter stood resurrected when the Court directed the listing of old and buried matters for disposal, the Bench narrated. .When it came up for final disposal on March 1, the Court noted that the petitioner was yet to file his mercy plea. The Court was informed that anti-death penalty activist lawyers have taken up the petitioner's cause and are working on the mercy petition. .The Court, however, expressed disapproval over the delay in filing the mercy petition, opining that the petitioner appeared to have taken advantage of the Court's 2019 stay. The Bench also expressed concern that anti-death penalty activists may lose their credibility if they were hand-in-glove with such tactics. ."From this conduct of the petitioner, it is obvious that he has taken advantage of the stay order that was passed by this Court on 26.11.2019... This Court does appreciate the concern of the anti-death penalty activist lawyers to save the life of the petitioner, but, they should achieve their objective by adopting fair means and not by 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....These activists will lose their credibility if they were to adopt sharp practices and tomorrow, their word will not carry weight with the Courts. We do not want to say anything beyond this.".Coupled with this, the Court opined that the observations made against hurried executions of death warrants in the case of Shabnam V. Union of India cannot be read divorced from the context in which the judgment was passed. .In Shabnam's case, death warrants were issued prior to the filing of a review petition by the convict. On the other hand, in this case, the Court observed that the death warrant was issued after the petitioner's review plea in the Supreme Court was dismissed. In this backdrop, the trial court cannot be expected to wait indefinitely for the death row convict to file a mercy petition, the High Court said. ."... the trial Court cannot indefinitely wait for the prisoner to file a clemency petition. The role of the judiciary stops when a person is convicted and sentenced finally and thereafter, the ball goes to the court of the executive to execute the sentence passed by the Courts. Even in Shabnam [supra], it has been clearly held that the State has to wait for a reasonable period, even after the convict fails in the review petition. There is no provision in the Cr.P.C. calling upon the trial Judge to wait for the issuance of the warrant in Form 42," read the order..The Bench added that the expression “reasonable period” used in Shabnam's case "can, by no stretch of imagination, be for a year and more as in this case." .After the prison records of the petitioner was perused, the Court also took note of additional factors, such as:On November 15, 2019, the petitioner was informed about the dismissal of his review plea by the Supreme Court and advised to file a curative petition.On November 19, 2019, the prison authorities informed the petitioner that they have received the death warrant. The same day, he said that he does not want to file a curative petition and that he has engaged a lawyer to submit a mercy plea.The petitioner later sought an extension of time from the prison authorities under Rule 917 of the Tamil Nadu Prison Rules, 1983 for filing the mercy petition. On November 26, 2019, the extension of time sought was granted. ."These facts were never brought to the notice of this Court either by the petitioner or by his counsel till date and they surfaced only when this Court called for the records from the prison," the Bench observed. .It proceeded to dismiss the writ petition challenging the 2019 death warrant. .However, since the petitioner filed a mercy plea on March 1 (after the Court posed queries on the same), the Bench pointed out "he can be rest assured that he will not be hanged, till the same is disposed of.".[Read Order]