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International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Art. 41(1) has binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Art. 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.

Case BriefsSupreme Court

Supreme Court: In the case where a 4-year old girl was raped and battered to death by the petitioner, the bench of Dipak Misra, R.F. Nariman and U.U. Lalit, JJ refused to review the death sentence imposed by the bench in Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253. The petitioner had allegedly lured the victim by giving her chocolates, kidnapped and raped her and had then caused crushing injuries to her with the help of stones weighing about 8.5 kg and 7.5 kg.

The review was sought on the grounds that after the Court awarded him death sentence via judgment dated 26.11.2015, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It was also asserted that the jail record of the petitioner is without any blemish.

Rejecting the contention, the Court said that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Hence, it was held that no case was made out to take a different view in the matter. [Vasanta Sampat Dupare v. State of Maharashtra, 2017 SCC OnLine SC 524, decided on 03.05.2017]

Case BriefsHigh Courts

Calcutta High Court: The Court recently had to decide on a death reference under Section 366 CrPC against the order of conviction under Section 302 IPC and sentence of death passed last year by the Court of Additional Sessions Judge, Hoogly. Also, the accused appellant had appealed against his conviction.

The accused was charged of killing his 26 year old wife and 7 year old son. The Court found that the victim lady was beaten and tortured since the day she entered her matrimonial home by her husband and other family members. Also, the accused threatened her to cut with chopper and both the victims were actually killed by slicing their throats with sharp weapon. Motive was clear and the weapon was recovered.

The accused was found guilty on trial relying on all the witnesses and circumstantial evidence proving his conviction beyond reasonable doubt on which he was awarded death sentence. The Division Bench of the High Court too agreed that the prosecution proved its case beyond reasonable doubt. The next important question that the Court had to decide in this reference was whether the punishment given commensurates with the offence and to ascertain this, the aggravating and mitigating circumstance needs to be considered.

The aggravating circumstances as noted by the Court were that the accused killed his own wife and child, that he had an affair with his sister-in-law and he killed the lady and child in response to the refusal to proposal of marriage by the sister-in-law, that he consumed country liquor in order to prepare himself to commit the brutal and cold-blooded murder and that he informed everyone that his wife was bitten by a snake after killing her.

The Court tried to consider the mitigating circumstances like the reason he consumed liquor knowing that in senses, he would not be able to do it observing that aggravating circumstances clearly outweigh the mitigating circumstances. The Court also considered it important to study from which the appellant came. It noticed that his background was neither defined nor refined. He was a truck driver, was accustomed to consumer liquor showing the strata of the society that he came from. The Court discussed that had he been educated, he could have found some other means of marrying her lady love.

The Court had to look into whether the case could be classified as rarest of rare case and cited Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 wherein Supreme Court observed that the rarest of rare case comes when a convict is a menace and threat to harmonious and peaceful co-existence of the society. The High Court perceived that there was no reason to believe that the appellant couldn’t be rehabilitated and reformed and it doesn’t seem that he would continue with his criminal activities proving to be threat to society.

At the same time, the Court considered that his acts did not call for sympathy and awarded 30 years of sentence without remission as granted in  Swami Shraddananda (2) v. State of Karnataka(2008) 13 SCC 767State of U.P. v. Sanjay Kumar, (2012) 8 SCC 537 and Gurvail Singh @ Gala v. State of Punjab, (2013) 2 SCC 713. The death reference was accordingly dismissed. [State of West Bengal v. Lakhikanta Adhikary, 2017 SCC OnLine Cal 197, decided on 10th February, 2017]

Case BriefsSupreme Court

Supreme Court: Agreeing to hear the appeal against the capital punishment imposed on the convicts in the infamous ‘Nirbhaya’ case, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ allowed the accused persons to file affidavits along with documents stating about the mitigating circumstances.

It was argued that neither the trial Judge nor the Delhi Court had considered the aggravating and mitigating circumstances, as are required to be considered in view of the Constitution Bench decision in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. It was further argued that Section 235(2) Cr.P.C. is not a mere formality and in a case when there are more than one accused, it is obligatory on the part of the learned trial Judge to hear the accused individually on the question of sentence and deal with him.

Accepting the contention, the Court noticed that there are two modes of dealing the matter at hand, one is to remand the matter and the other is to direct the accused persons to produce necessary data and advance the contention on the question of sentence. However, considering the nature of the case, the bench decided to go with the second mode.

The Court also allowed the prosecution to file necessary affidavits with regard to the circumstances or reasons for sustenance of the sentence. Additionally, the prosecution can also put forth any refutation, after the copies of the affidavits by the learned counsel for the accused persons within a week.

In addition to the above order, the Court also directed the Superintendent of Jail to submit a report with regard to the conduct of the accused persons while they are in custody. [Mukesh v. State for NCT of Delhi, 2017 SCC OnLine SC 90, order dated 03.02.2017]

Case BriefsForeign Courts

Pakistan Supreme Court: While dismissing the present petition seeking the leave to appeal against the decision of Lahore High Court which confirmed the conviction and death sentence awarded to the petitioner’s husband by the Additional Sessions Judge, Burewala; the three-Judge Bench of A.Z. Jamali, C.J., A.H. Muslim and Ijaz Ul Ahsan, JJ., held that schizophrenia is not a permanent mental disorder, and that it is more of a mental imbalance whose increase or decrease depends upon an individual’s level of stress.

The Court further held that schizophrenia does not fall under the definition of “mental disorder” as defined in the Mental Health Ordinance, 2001. The Court also referred to the two judgments of the Supreme Court of India, namely, Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247 where the Supreme Court of India had held that merely branding a person as schizophrenic will not be sufficient under the requirements of Section 13 (1)(iii) of the Hindu Marriage Act, 1955; for the purposes of the section “‘schizophrenia’ is what schizophrenia does”; and Amrit Bhushan Gupta v. Union of India, (1977) 1 SCC 180 wherein the Supreme Court of India thwarted the attempts of the convict to wrest himself free from the clutches of law by taking the plea of lunacy.
As per the facts of the present case, the petitioner’s husband Imdad Ali was awarded death penalty by the trial court which was subsequently upheld by the Lahore HC and the Supreme Court. The Mercy Petition of Imdad Ali was also refused by the President of Pakistan, as a consequence of which a Black Warrant was issued against him. The counsel for the petitioner argued that Imdad suffers from paranoid schizophrenia, therefore in consonance with the Prison Rules, 1978 before the execution of the black warrant he should get a treatment so that he can make his will. The Additional Advocate General, Punjab, vehemently refuted the rival contention.

Perusing the contentions and the facts, the Court deemed it fit to ascertain the meaning of “schizophrenia”. Referring to New Webster’s Dictionary, Wharton’s Law Lexicon and Oxford Advanced Learner’s Dictionary, the Court observed that schizophrenia has been defined as “psychotic disorder”, “a mental illness in which a person is unable to distinguish between the real and unreal”. Referring to the abovementioned case laws, the Court observed that Imdad’s plea of mental illness was discarded by all the Courts; the medical reports reveal Imdad to be a psychiatric patient. The Bench further observed that in the present matter all the relevant facts have been considered by the appropriate authorities and the Mercy Petition having been rejected by the President, there remains nothing for the Court to grant the petitioners leave to appeal. Finally the Court opined that the “rules related to mental sickness, are not subjugative to delay the execution of death sentence awarded to the convict”. [Safia Bano v. Home Department, Government of Punjab2016 SCC OnLine Pak SC 37; decided on 27.09.2016]

Case BriefsForeign Courts

Supreme Court of Pakistan: While deciding 16 petitions filed by civilians who had been convicted for terror related activities and had been given death sentence by the Field General Court Martial, a five judge bench comprising of Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Azmat Saeed, Manzoor Ahmad Malik and Faizal Arab, JJ., upheld the death sentences observing that the petitioners could not prove that the trials by the FGCM were malafide with a collateral purpose.

In the instant case, the 16 petitioners were convicted by the Military Court (which was setup in the aftermath of the ghastly attack on a school in Peshawar) for conducting terrorist activities and threatening the security of Pakistan and attacking the military officers. The petitioners however contended that they have been subjected to secret trials without any legal assistance and that they have been deprived of the right to be represented by a lawyer of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973. On the contrary the respondents argued that each and every convict was given full opportunity to defend themselves. The option to engage a lawyer of their own choice was afforded and upon failure to take advantage of such option an Officer was deputed to defend them in terms of the Pakistan Army Act Rules, 1954.

Perusing the contentions, the Bench referred to the landmark decision of the Supreme Court of India in ADM Jabalpur v. Shivakant Shukla, (1977) 1 SCC 834, where it was observed that “between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence.” The Court further observed that the records clearly suggest that the FGCM was convened as per the provisions of the Pakistan Army Act and Rules, and the petitioners were unable to prove any kind of irregularity in this respect. It was further observed that the extraordinary circumstances which necessitated the institution of the FGCM, the act committed by the petitioners in the instant case clearly comes under the jurisdiction of the FGCM. [Said Zaman Khan v. Federation of Pakistan,  2016 SCC OnLine Pak SC 2 , decided on August 30, 2016]

Case BriefsHigh Courts

Bombay High Court: In a first sentencing of its kind, a bench comprising of Bhushan Gavai and Prasanna Varale, JJ. confirmed double death sentence and double life imprisonment in a case of rape and murder of a two year old girl by her uncle. The sentence was awarded under Section 376-A of the Penal Code, 1860  which was brought through the Criminal Law Amendment Act, 2014 after the gruesome Nirbhaya case. This section provides for death sentence for an offence of committing rape and inflicting injury which causes death or causes the woman to be in a persistent vegetative state.

Besides death sentence under Section 376A, the accused was awarded another death sentence under Section 302 of the Penal Code, 1860 for murder by the Yavatmal Sessions Court. He was also sentenced to two life terms under Section 376 (2) of the Penal Code, 1860 and Protection of Children from Sexual Offences Act (POCSO) 2012.

The Counsel for the accused, pleaded for leniency on account for his young age and poor family background and contended that there existed a possibility of him being rehabilitated and not committing any offence in the future.  However, the Court observed that these grounds cannot be mitigating circumstances in a case of such extreme depravity. Dismissing the plea, the Court observed that in the present case, the heinous and gruesome rape and murder of the child victim at the hands of the appellant/accused needs to be dealt with a deterrent punishment like death sentence. [State of Maharashtra vs. Shatrughna Baban Meshram, 2015 SCC OnLine Bom 5052, decided on 12-10-2015]

High Courts

Calcutta High Court: In a dreadful incident involving murder of a 13 year old step-son by his father and for having carnal intercourse with him against the order of nature and causing disappearance of evidence of unnatural offence, a division bench of Ashim K. Roy and Ishan Chandra Das JJ commuted the death sentence of the accused awarded by the trial court to an imprisonment of 25 years.

In the instant case, the trial court awarded death sentence to the accused (appellant) for his conviction under Section 302 IPC and sentenced him to undergo rigorous imprisonment for 10 years and 5 years concurrently for his conviction under Section 377 and 201 IPC, on the observation that in the present case (a) the victim was helpless child on whom the accused being his stepfather was in a dominating position, (b) the accused to fulfil his lust by making carnal intercourse on him for several days and taking advantage of his position in a very cold and pre-planned way took him away and for concealing the evidence of unnatural offence killed him brutally by strangulation with ligature (c) after committing the murder, he returned home in the evening and behaved normally with the unfortunate mother of the helpless boy (d) the conduct of the accused proves that he is a man without natural instinct and cannot be rectified and reformed and free movement of the accused in the society at large will be dangerous. If this kind of crime is treated leniently, wrong signal will go to the society that no proper justice is available in our society.

The Court observed that the case rests entirely on circumstantial evidence, and the chain of evidence and examination of witnesses clearly established the guilt of the accused beyond reasonable doubt. The Court also observed that the victim died a homicidal death and autopsy report clearly reveals that the deceased was subjected to regular carnal intercourse. The Court noted that though the crime committed by the appellant was grave, serious and heinous and that he had a dirty and perverted mind and no control over his carnal desire, however it cannot be held that he is such a dangerous person to spare his life would endanger the community and would constitute a continuing threat to the society. Accordingly, the Court while upholding the order of conviction, rejected the death reference and commuted it to an imprisonment of 25 years relying of a very recent case of  Sangeet and another v. State of Haryana (2013) 2 SCC 452. State of West Bengal v. Sanjay @ Batul Halder,2015 SCC OnLine Cal 700 decided on 30.03.2015

Supreme Court

Supreme Court: In a heinous crime committed by a married man aged 47 where he made a 4 year old girl the prey of his lust and deliberately caused her death, the 3-judge bench of Dipak Misra, R.F. Nariman and U.U. Lalit unhesitatingly held that the case fell within the rarest of the rare category, thereby, awarding death sentence to the accused.

The accused, who was a friend of the neighbour of the victim, had lured her with chocolate and had a forcible sexual intercourse with her before finally killing her by causing head injury by using 2 heavy stones. The accused, through his counsel Sanjiv Das, had alleged that he was being framed in the case owing to personal animosity; however, the Court rejected the said contention. The Court said that the injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. Holding that the act of the accused was barbaric in nature, the Court also took note of the coolness of the accused that was evident from the fact he had washed his clothes and took proper care of hiding the things after the assault. The contention that the accused was mid-aged and hence could be reformed, was thus rejected by the Court stating that there had been no remorse on the part of the accused and also that he was a history-sheeter who had number of cases pending against him. Hence, the Court held that there were no mitigating circumstances to be taken care of while awarding death sentence to the accused.

In the case where Shankar Chillarge represented the State of Maharashtra, the Court held that when a helpless and defenceless child gets raped and murdered by a man she considered to be her uncle, it is not only betrayal of an individual trust but destruction and devastation of social trust. Vasanta Sampat Dupare v. State of Maharshtra, 2014 SCC OnLine SC 942, decided on 26.11.2014

Supreme Court

Supreme Court: In a landmark judgment, where the 5 judge bench of R.M. Lodha, CJ and J.S. Khehar, Dr. A.K. Sikri, R.F. Nariman and J. Chelameswar, JJ were called upon to decide the issue relating to hearing of Review Petitions of death row convicts in an open court, the Court, with a 4-1 majority, answered in affirmative. Accepting the argument of K.K. Venugopal that death sentence cases are a distinct category of cases, the Court held that since death penalty is irreversible in nature and that once the death sentence is executed, the convict cannot be brought back to life if it is found later that such sentence was not warranted, a limited oral hearing even at the review stage is mandated by Article 21of the Constitution in all death sentence cases.

According further clarification to it’s decision, the Court said that the right of a limited oral hearing in review petitions where death sentence is given, shall be applicable only in pending review petitions and such petitions filed in future. In cases where review petition has already been dismissed but the death sentence has not been executed so far, the petitioners can apply for the reopening of their review petition within one month from the date of this judgment. However, it was held that in cases where even a curative petition is dismissed, it would not be proper to reopen such matters.

However, Chelameswar, J. giving his dissenting opinion disagreed with 2 out of 3 grounds taken into consideration by the Court to reach it’s majority decision. The minority view on the said issue was the possibility of different judicial minds reaching different conclusions on the same set of facts, as considered by the majority, does not arise since review petitions are normally heard by the same Bench which heard the appeal. Disagreeing with the ground that even a remote chance of deviating from the original decision would justify an oral hearing in a review petition, Chelameswar, J said that the same is equally applicable to all cases of review and cannot be specially made applicable to the death sentence cases. Mohd. Arif v. Supreme Court of India, Writ Petition (Criminal) No.77 of 2014, decided on 02.09.2014