Delhi high court has jurisdiction where mercy petition of accused of another state rejected by President


Delhi high court has today held that it has territorial jurisdiction to hear a writ petition challenging the rejection of the mercy petition of a death-convict by the President even though the crime was committed in the state of Chhattisgarh. The State of Chhattisgarh had taken a strong objection to the writ petition against rejection of mercy petition being heard by Delhi high court, contending that such a petition can be heard only by the Chhattisgarh high court since the crime was committed in Chhattisgarh and the convict was also presently jailed in Chhattisgarh. However, a division bench of Delhi high court, comprising Justices G.S. Sistani and Vinod Goel rejected the objection of the State of Chhattisgarh and held that it has the jurisdiction to hear the said petition challenging the rejection of mercy petition. This order was issued in the case of Sonu Sardar v. Union of India & Anr. [W.P. (CRL) 441/2015, decided on 6 December 2016].

In this case, the death-convict petitioner had filed a writ petition in Delhi high court challenging the orders of the President and the Governor of Chhattisgarh rejecting the mercy petition of the petitioner herein, inter alia, on account of delay, non-application of mind, ignorance of relevant considerations and without taking into account that the petitioner was kept in solitary confinement.

The petitioner had been accused of killing 5 persons at Village Cher, Baikunthpur District, Chhattisgarh on the intervening night of 26-27.11.2004. He was convicted by the Sessions Court at Koriya District, Chhattisgarh and sentenced to death. On an appeal filed, the High Court of Chhattisgarh confirmed the sentence of death and dismissed the appeal preferred by the petitioner herein on 08.03.2010. On 23.02.2012, the Supreme Court upheld the death sentence and dismissed the appeal. The petitioner filed a mercy petition to the President on 09.04.2012. As per procedure, the petition was first sent to the Government of Chhattisgarh for placing the same before the Governor of Chhattisgarh under Article 161 of the Constitution of India. The Governor rejected the mercy petition on 08.04.2013 and thereafter, the President also rejected the mercy petition on 05.05.2014. The Supreme Court has dismissed the review petition on 10.02.2015. Aggrieved by the rejection of his mercy petition by the Governor of Chhattisgarh and the President of India, the petitioner filed the writ petition before Delhi high court.

State of Chhattisgarh (respondent No. 2) filed an application before Delhi high court praying for dismissal of the said petition on the grounds of the court not having territorial jurisdiction. It was pointed out that the petition was filed in Delhi on two grounds, namely that the respondent no. 1 (Union of India) is situated in Delhi and second, the cause of action also arises in Delhi. The petitioner had relied upon the decision of the Supreme Court in Kusum Ingots vs. Union of India, (2004) 6 SCC 254, and submittd that the cause of action which was the subject matter of challenge related to procedural lapses in the decision of the Mercy Petition, and it was submitted that Mercy Petition was decided in Delhi by the President of India.

However, the State of Chhattisgarh submitted that the crime was committed at Chhattisgarh; the trial took place at Chhattisgarh; appeal was heard by the Chhattisgarh High Court; in the proceedings before the Supreme Court, the respondent no. 2/ State of Chhattisgarh was the sole respondent; the mercy petition was submitted through the Jail Superintendent, Raipur, Chhattisgarh; and the rejection was initially communicated to the Secretary (Home) (Jail), Government of Chhattisgarh. As per procedure, the rejection of a mercy petition by the President is communicated by the Central Government to the State Government, the respondent no. 2 in the present case, with a direction to inform the petitioner, thus no cause of action had arisen within the terroritial jurisdiction of this Court. It was further submitted that that the rejection of the mercy petition does not give rise to any cause of action as the order of rejection was not communicated to the convict. It was submitted that the order of rejection was communicated only through the concerned state, i.e. the State of Chhattisgarh in the present matter, and that it is the communication which may give rise to a cause of action and not the order of rejection of the mercy petition itself. It was also submitted that it is a well established principle in criminal jurisprudence that crime is always local and the consequent investigation is also carried out by the local police. It was thus contended that the deciding of a mercy petition is part and parcel and in continuation of the criminal proceedings and is subject to the same rules. As an alternative submission, it was contended that in case Delhi high court comes to a conclusion that it is vested with jurisdiction to entertain the present petition, it should still refrain from doing so, on the basis of the concept of forum non conveniens.

The high court relied upon the observations in Kehar Singh and Another v. Union of India and Anr., (1989) 1 SCC 204, as per which while exercising the powers under Article 72, 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. It was also held therein that the proceeding before the President is of an executive character.

The high court also referred to its own previous decision in the case of Khem Chand v. State, (1989) ILR 2 Del 429: 40 (1990) DLT 168, wherein, while holding that writ petitions to the Delhi high court were also maintainable against rejection of mercy petitions, held that clemency was an executive decision and the Delhi high court was under an equivalent obligation to protect the life and liberty of the citizens.

The observations of the Supreme Court in the recent case of Shatrughan Chauhan and Another v. Union of India and Others, (2014) 3 SCC 1, were also referred to wherein it was held that the power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it.

The high court held that the act of the President of India under the constitutional power is entirely different from the judicial power and cannot be regarded as an extension of it. Accordingly, it cannot be said that the power exercised by the President of India is in continuation of the judicial proceedings.

Referring to the jurisdiction of the courts under Article 226, the observations of the Supreme Court in Kusum Ingots & Alloy Ltd. v. Union of India and Another, (2004) 6 SCC 254, were also relied upon where the court had clearly drawn a distinction between legislative and executive actions, and it was held that “even if a small fraction of cause of action accrues within the territorial jurisdiction of the Court, the Court will have jurisdiction in the matter.” In that case, the Supreme Court had also held:

“When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.”

Also, in the case of Sterling Agro Industries Ltd. v. Union of India & Ors., 2011 (124) DRJ 633, Delhi high court (a bench of 5 judges) had held that “[e]ven if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this court.”

In the case of Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335, the Supreme Court had approvingly referred to a classic definition of the expression “cause of action” in an English case, Cooke v. Gill [(1873) 8 CP 107 : 42 LJCP 98] wherein Lord Brett observed: “Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”

The high court held that the concept of cause of action in respect of criminal proceedings cannot apply sensu stricto to the present proceedings as the same are not a continuation of the judicial proceedings but premised upon executive orders. The high court held that the present proceedings have arisen as a consequence of executive actions and by no means can be said to be an extension of the criminal proceedings, which have attained finality. It was held that the rejection of mercy petition does give rise to a cause of action at Delhi.

With regard to the argument of the State of Chhattisgarh on the principle of forum non conveniens as per which it had been argued that the convenient forum would be Chhattisgarh High Court and not Delhi high court, the high court observed that the courts should generally decide disputes upon which they have jurisdiction. They may decline to exercise such jurisdiction only if there are compelling reasons for not doing so. In doing so, the courts must apply a balancing test and reject to exercise jurisdiction only if there are compelling reasons keeping the Latin maxim Judex tenetur impertiri judicium suum in mind.

The high court held that the scope of judicial review in rejection of mercy petitions is limited, it extends only to the material upon which the decision is based, i.e. whether all relevant material was considered before arriving at a conclusion. It was observed that the material to be examined was the advice tendered by the cabinet and all the documents and records pertaining to the same were in Delhi and the decision had also been taken in Delhi. Further the location of the convict also made no difference, as the convict being the dominus litis is free to invoke the jurisdiction of the Delhi high court.

Accordingly, Delhi high court held that it is vested with the jurisdiction to entertain the present writ petition, and the application of the State of Chhattisgarh raising objection to jurisdiction was dismissed as devoid of any merit.

Read full order of the court:


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