TMI Blog2010 (11) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... oner guilty of murdering four members of Bhabani Charan Das's family and that all the charges under Sections 302, 323, 325 and 326 of IPC against him were proved beyond all reasonable doubt. The Trial Court also opined that the crime fell within the category of `rarest of rare cases' and the petitioner deserved death penalty. 4. However, the defence raised the plea that at the time of commission of the crime, the petitioner was below 16 years of age. To determine the actual age of the petitioner, Dr. Bhushan Chandra Roy, Associate Professor of Forensic Medicine of Guwahati Medical College, with a team of doctors, examined him on 23.12.1997. The defence examined the father of the petitioner, Mr. Firato Chauhan and also placed reliance on the school admission register. The school register was held to be unreliable, as it was not properly maintained. Further, the petitioner's father estimated the petitioner's age to be 19 years at the time of occurrence of the crime. 5. However, on the basis of the physical and radiological examination done of the petitioner, the doctor was definitely of the opinion that his age was above 20 years but could not be more than 21 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to a larger Bench comprising K.T. Thomas, R.P. Sethi and S.N. Phukan, JJ. 13. In the larger Bench decision dated 10.5.2001, Sethi, J., inter-alia, held- From the evidence produced and the material placed before the courts below, there is not an iota of doubt in my mind to hold that the petitioner was not a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act. 14. Thomas, J gave a dissenting judgment with respect to imposition of death sentence upon the accused. His Lordship observed that the Court had already held on facts that the petitioner had been unable to prove that he was below 16 years of age on the date of the crime. However, Thomas J. approached the question from a different angle and questioned whether death sentence could be awarded to a person whose age was not positively established by the prosecution as above 16 years on the crucial date? The learned Judge opined that if the age of the petitioner could not be held to be unquestionably above 16 on the relevant date (and there was a doubt created in view of the medical report of Dr. Bhushan Chandra Roy), its corollary was that the lesser sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing reliance on the views of Thomas, J. and Phukan, J., who were two of the three learned Judges, constituting the Bench deserves the highest consideration by the executive authority while considering the question of commutation of sentence of the said Ram Deo Chauhan @ Raj Nath Chauhan. Accordingly, this Commission makes the above recommendation in terms of the opinion of Thomas, J. for due consideration by the Governor of Assam and/or the President of India, as the case may be, in the event of a mercy petition being filed for the purpose. 21. Thereafter, on 28.1.2002, the Governor of Assam commuted the death sentence of the petitioner to one of life imprisonment. The Order of the Governor runs as under: The Governor of Assam after careful consideration of the mercy petition and other relevant records is pleased to commute the sentence of death to that of imprisonment for life of the above named condemned prisoner. 22. Challenging the aforesaid order of the Governor, of Assam, the relatives of the deceased filed a writ petition under Article 32 of the Constitution of India before this Court. In that proceeding, Secretary NHRC was impleaded. However, this Court, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made his submissions. 27. Be that as it may, it is not correct to say that no notice was given to the petitioner. Therefore, one of the grounds on which notice for review was issued became non-existent. 28. The question is whether this second review should be dismissed in view of such misleading stand having been taken by the petitioner while invoking this Court's jurisdiction of review. 29. On a very careful consideration of this issue, this Court thinks that in view of various other questions of far reaching importance having been raised in this second review, it may be a travesty of justice if this petition is dismissed on only the ground mentioned above. 30. This Court on a contested hearing is of the opinion that the second review should still be entertained and decided as it raises various questions of signal significance, touching the rights of the petitioner to seek commutation as also touching questions regarding the jurisdiction of the NHRC, as also various constitutional provisions relating to life and freedom. Various concerns of public law have come up for consideration in this second review and in the context of these issues the constitutional provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 145 of the Constitution, there is a clear provision in Order XL Rule 6 of the Rules to the following effect: 6. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 37. In Girdhari Lal Gupta v. D.N. Mehta and Anr. reported in AIR 1971 SC 2162, this Court held when the attention of this Court is not drawn to any particular provision of a statute, this Court can review the decision and it is not the case of a mere mistaken judgment. (Para 16, pg 2164) 38. 38. On a bare reading of the provision of Order XL Rule 1 of the Supreme Court Rules, one may get the impression that the extent of review in criminal cases is more restricted than in civil cases. But the said impression has been given a quietus by this Court in its Constitution Bench judgment in Eswara case (AIR 1980 SC 808) (supra). 39. Delivering the main judgment, Justice Krishna Iyer held- So it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any court, into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant; b. intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; c. visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government; d. review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; e. review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; study treaties and other international instruments on human rights and make recommendations for their effective implementation; g. undertake and promote research in the field ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. Remember, we are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future. 50. We share the same view. 51. What was said by Alexander Hamilton, the great constitutional expert and political philosopher, way back in 1775, is poignant still today for having a clear perception of what human rights are. The words of Hamilton still resonate with a strange relevance and immediacy, and are quoted below: The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power. 52. Keeping those broad principles in our mind if we look at Section 12(j) of the 1993 Act, we find that it confers on NHRC such other functions as it may consider necessary for the promotion of human rights. It is not necessary that each and every case relating to the violation of human rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very broad to encompass within it all the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. 55. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it. 56. The contrary finding in the judgment under review about the absence of jurisdiction of NHRC to make some recommendations to the Governor is thus vitiated by errors apparent on the face of the record. Of course NHRC cannot intervene in proceeding pending in Court without its approval [Section 12(6)] as it is assumed that Court will remedy any case of violation of human rights. 57. The assumption in the judgment under review that there can be no violation of a person's human right by a judgment of this Court is possibly not correct. This Court in exercise of its appellate jurisdiction has to deal with many judgments of High Courts and Tribunals in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension during emergency. 64. But we hasten to add that NHRC cannot function as a parallel seat of justice to rectify or correct or comment upon orders passed by this Court or any other Courts of competent jurisdiction. For correcting an order in a judicial proceeding, the aggrieved party has to avail of the well established gamut of the corrective machinery of appeal, revision, review, curative petition and so on. 65. In fact in this case the NHRC did not send any recommendation as long as the first review proceedings were pending in this Court. The NHRC was keeping a track of the proceeding in the Court. From its order dated 16.10.09, it is revealed that NHRC was aware that a review petition was filed against the judgment of this Court in Criminal Appeal No. 4/2000, in addition to a mercy petition filed before the Governor of Assam. The NHRC closely followed the proceedings of the review petition. 66. The NHRC made its recommendations on 21.5.2001 only after the judgment in first review (No. 1105/2000) was passed on 10.5.2001 by this Court. 67. About NHRC, this Court in Paramjit Kaur v. State of Punjab and Ors. (1999) 2 SCC 131 held: 10. The Commission headed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 38 from Epuru (supra). 72. After quoting that, the impugned judgment quashes the order of commutation by the Governor and directed reconsideration. 73. On review of the aforesaid reasoning, we find that this finding in the judgment is vitiated by errors apparent on the face of the record. 74. In this case, the entire record relating to exercise of power by the Governor was always available for perusal of the Court. 75. It is well-settled that while exercising power of commutation under Article 161 of the Constitution, the Governor is to act on the aid and advice of the Council of Ministers. 76. From a perusal of the materials on the file, it appears that detailed consideration has been made in the Chief Minister's Secretariat and notes in detail have been put up by the Chief Minister's Secretariat, wherein the entire factual aspect of the case has been considered. The different judgments given in the first review petition were part of the note, and on a consideration of the detailed note, the Chief Minister approved on 22.10.2001 the note put up before him by the Secretary, Judicial Department for commutation. Thereafter, the matter was placed before the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mulations of principles in Maru Ram (supra). Paras 7 and 15 of Kehar Singh (supra) would also show that Maru Ram (supra) ratio was followed in Kehar Singh (supra). 82. In view of such consistent view of the two Constitution Benches of this Court clearly stating that unless the exercise of power by the Governor under Article 161, is ex facie perverse or is based on a rule of thumb, the Court should not interfere for mere non-disclosure of reason, the finding to the contrary in the judgment under review, by relying on a two-judge Bench decision in Epuru (supra) case, is vitiated by errors apparent on the face of the record. Even in para 37 in Epuru (supra), the observation of Kehar Singh (supra), underlined hereinabove were noted. 83. In the instant case, a perusal of the record shows that upon a detailed consideration of the relevant facts, the Governor exercised his power of commutation. Such an exercise does not call for any interference, in view of the law laid down both in Maru Ram (supra) and Kehar Singh (supra). 84. From the perusal of the file this Court also notes that in passing the order, the Governor considered all the relevant materials, including the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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