April 13, 2013
1. H.E. The President of India,
2. The Hon’ble Prime Minister of India,
7, Race Course Road,
3. The Hon’ble Home Minister of India,
2, Krishna Menon Marg,
4. Lt. Governor of Delhi
Re: Appeal for Pardon/Commutation of Death Sentence to Devender Pal Singh Bhullar.
I am appealing to you for Pardon/Commutation of the to death sentence awarded to Devender Pal Singh Bhullar in connection with the 1993 Delhi bomb blast case.
In its judgment of 2002 by a 2-1 majority the Supreme Court upheld the death sentence to Bhullar. Thereafter, the appeal for mercy under Article 72 Constitution of India was rejected. He then filed a petition in the Hon’ble Supreme Court against the order rejecting his mercy petition on the ground of delay in the proceeding but that petition was rejected by the Supreme Court yesterday. I am appealing to you for Pardon/commutation of the death sentence.
In this connection, I wish to state as follow:
(1) There is nothing in Article 72 Constitution of India to debar a second mercy petition if the first has been rejected.
(2) Article 72 does not state who can make the mercy petition. Hence, I as a citizen of India am also entitled to move this mercy petition.
(3) The reasons for making this mercy petition are as fellow:
(a) By the judgment dated 22.3.2002 the Hon’ble Supreme Court rejected Bhullar’s appeal against his death sentence by a 2-1 majority, not by a unanimous decision. The senior most judge on the bench, Justice M.B. Shah, acquitted Bhullar. I have carefully perused the judgment of Justice M. B. Shah. Justice Shah has noticed that the only evidence against Bhullar is his alleged confessional statement to the investigating office. Justice Shah has observed that “when the rest of the accused who are named in the confessional statement are not convicted or tried, this was not a fit case for convicting the appellant solely on the basis of the so called confessional statement recorded by the police officer”
Justice Shah has noticed in his judgment that there was nothing on record to corroborate the aforesaid alleged confessional statement.
Justice Shah in his judgment has further observed:
“In any set of circumstances, none of the main culprits i.e. Harnaik or Lahoria is convicted. In these set of circumstances, without there being corroborative evidence, it would be difficult to solely rely upon the so-called confessional statement and convict the accused and that too when the confessional statement is recorded by the investigating officer.
For this purpose, it would be worthwhile to refer to the decision in Topandas v. State of Bombay (AIR 1956 SCC 33 para 6):
“Criminal conspiracy has been defined in Section 120A Penal Code:
“When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.”
By the terms of the definition itself, there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If therefore, 4 named individuals were charged with having committed the offence under Section 120-B Penal Code and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.”
The court further discussed the aforesaid question and referred to the decision in R. V. Plummer [1902 (2) KB 339 (C)] and held as under:
“(1902) 2 KB 339 (C) which is cited in support of this proposition was a case in which, on a trial of indictment charging three persons jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted. It was held that the judgment passed against one who had pleaded guilty was bad and could not stand. Lord Justice Wright observed at p. 343:
“There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the other alleged co-conspirators, no judgment could have been passed on the appellant, because the verdict must have regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him: see –‘Harison v. Errington’ , (1627) Poph 202 (D), whereupon an indictment of three for riot, two were found not guilty and one guilty, and upon error brought it was held as a “void verdict”, and said to be “like to the case in 11 Hen 4 c.2 conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire.”
In this view of the matter, when rest of the accused who are named in the confessional statement are not convicted or tried, this would not be a fit case for convicting the appellant solely on the basis of so-called confessional statement recorded by the police officer.
Finally, such type of confessional statement as recorded by the investigating officer cannot be the basis for awarding death sentence”.
It is true that the majority view of the bench has to be accepted as the judgment of the court, not the minority view. However, the considerations in pardon proceedings under Article 72/161 of the Constitution are different from those in judicial proceeding. In the Constitution Bench judgment of the Supreme Court in Kehar Singh Vs Union of India A.I.R. 1989 S.C. it was observed:
“We are of the view that it is open to the President in the exercise of the power vested in him by Art. 72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. In U.S. v. Benz, 75 L. Ed. 354 at 358 Sutherland, J. observed: "The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is judicial act as much as the imposition of the sentence in the first instance." The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative. In Sarat Chandra Rabha and Others v. Khagendranath Nath and Others,  2 S.C.R. 133 at 138-140, Wanchoo, J. speaking for the Court addressed himself to the question whether the order of remission by the Governor of Assam had the effect of reducing the sentence imposed on the appellant in the same way in which an order of an appellate or revisional court has the effect of reducing the sentence passed by a trial court, and after discussing the law relating to the power to grant pardon, he said:
" ....Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out, and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched. In this view of the matter the order of remission passed in this case though it had the effect that the appellant was released from jail before he had served the full sentence of three years' imprisonment and had actually served only about sixteen months' imprisonment, did not in any way affect the order of conviction and sentence passed by the Court which remained as it was .. "
" .....Now where the sentence imposed by a trial court is varied by way of reduction by the appellate or revisional court, the final sentence is again imposed by the court; but where a sentence imposed by the court is remitted in part under section 401 of the Code of Criminal Procedure that has not the effect in law of reducing the sentence imposed by the court, though in effect the result may be that the convicted person suffers less imprisonment than that imposed by the court. The order of remission affects the execution of the sentence imposed by the court but does not affect the sentence as such, which remains what it was in spite of the order of remission....."
It is apparent that the power under Art. 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court”.
(b) A perusal of the judgment of the Constitution bench (five judge bench) decision by the Supreme Court in Kehar Singh’s case shows that the President can scrutinize the evidence in the case and come to a different conclusion regarding the guilt and sentence of the accused.
Hence even though the judgment of the Supreme is the judgment of the majority of the 3 judge bench in Bhullar’s case, the President can agree with the minority view of Justice Shah.
(c)Bhullar has been in detention since his arrival in India in January 1995 i.e. over 18 years. I am not questioning the Supreme Court verdict delivered yesterday. However I respectfully submit that Bhullar has already suffered prolonged mental agony and trauma for this long period in death row with a damocles sword hanging over his head. Hence in pardon proceeding under Article 72 this is also one of the factors, among others, which the President should take into account in deciding this petition under Article 72.
(d) I also understand that Bhullar has been having some chronic psychiatric problem. In these circumstances, considering all of them cumulatively, I respectfully request Your Excellency to pardon/commute the death sentence of Bhullar who has been on death row for a long period.
I conclude by referring to Portia’s famous speech in Shakespeare’s ‘The Merchant of Venice’ where she pleaded that justice should be tempered with mercy.
(Former Judge, Supreme Court of India)