Crucial legal provision ignored by all could save Bhullar

Tuesday, 16/04/2013

http://punjabnewsline.com/news/Crucial-legal-provision-ignored-by-all-could-save-Bhullar-.html

CHANDIGARH: Davinderpal Singh Bhullar’s mercy plea might have been rejected by the Apex Court despite the grounds of delay and the Centre, as suggested by some media reports, may have already started the process of weighing the pros and cons of executing him secretly, the but there is one crucial legal provision ignored by the legal luminaries which has the potential of saving the man from the gallows.

Bhullar's death sentence warrants a revision and deserves commutation into life imprisonment as his lawyers can again file a fresh appeal citing the split verdict in his case.

His mercy petition was rejected  by a three-member bench of the Supreme Court in March 2002, however, it was not a unanimous decision as the most senior of the three judges found the accused not guilty and directed that he should be released. In general, death penalty is not handed down in case of a split decision.

While the Supreme Court considered Bhullar’s appeal, armed militants attacked Indian Parliament on Dec 13, 2001. Observers believe that heightened rhetoric about the threat of ‘terrorism’ in India and hardening of government policies many have influenced the judges’ decision.

The two judges Justice Arijit Pasayat and Justice BN Agrawal who confirmed death penalty indeed wanted the President to commute his death sentence.

They had directed that the President should consider his mercy petition after seeking report from Presiding Judge of the Apex Court. Justice MB Shah, the presiding judge differed from his fellow judges not just on execution but also on the very question of guilt that he had actually voted to acquit Davinderpal Bhullar.

Justices Pasayat and Agrawal were not convinced by Bhullar’s plea that his  confession on the basis of which he was sentenced to death by trial court  was neither voluntary nor true, Justice Shah on the other h and concluded  that there was nothing on record to corroborate Bhullar’s confessional statement, and that when the co-accused who were named in the confessional  statement were not convicted or tried, this would not be a fit case for  conviction solely on the basis of such a statement recorded by a police  officer. Justice Phukan was clear that under Section 432, of the Code of Criminal Procedure “the government can revise  the judgement of the Court and remit death sentence and that remission does not mean acquittal.”

Section 432(2) of the Code deserves to be reproduced verbatim:

“Whenever an application is made to the appropriate Government for the  suspension or remission of a sentence, the appropriate Government may  require the presiding Judge of the Court before or by which the conviction  was had or confirmed, to state his opinion as to whether the application  should be granted or refused, together with his reasons for such opinion and  also to forward with the statement of such opinion a certified copy of the  record of the trial or of such record thereof as exists.”

Comparing the case to Bhullar, Justice Pasayat dismissed the review  petition, saying that just because one of the judges had dissented could not  be considered a ground for reopening the case. However, Justice Shah opined that his dissent showed that the case was not the rarest of rare and Bhullar’s death sentence could be commuted, even if Bhullar was guilty because of majority verdict.

The three judges have retired from the Supreme Court, however, the government could have come under legal compulsion to accept Bhullar’s mercy  plea, had it sought opinion from Justice Shah, and as reasoned under Section  432 (2) of Cr Pc and directed by the two judges who rejected mercy plea in  2002.

The mercy petition files obtained by RTI activist Subhash Agrawal in 2011  that former President Pratibha Patil and the then Home Minister P  Chidambram, both ignored Supreme Court’s direction to invoke Section 432  (2)of Cr Pc while considering Bhullar’s mercy petition.

His plea was rejected by Patil on May 25, 2011 on Home Ministry recommendation.

Pratibha Patil’s predecessor Abdul Kalam had also received Ministry of Home Affairs recommendation to reject the mercy petition on July 11, 2005.  However, Kalam did not act on the recommendation till his office ended as it seems that he disagreed with it. He also appeared to have missed the direction of the Apex Court to invoke Section 432 (2).

Bhullar’s counsel challenged rejection of mercy plea by Patil on the ground of inordinate delay in Supreme Court making him eligible for commutation.

His counsel also failed to identify the need to challenge President’s failure to invoke Section 432 (2) of Cr Pc and follow Supreme Court’s directions.

The Supreme Court April 12 verdict rejecting Bhullar’s mercy petition also avoided the question.Section 432 (2), the most crucial aspect in Bhullar’s case has been ignored not only by the President but also by Supreme Court and even his counsel forgot to invoke the provision in securing commutation of death sentence.