Nithari case

Reprieve for Koli

Print edition : March 06, 2015

Surendra Koli being taken to a CBI court from Dasna Jail in Ghaziabad, a file picture. Photo: PTI

IN the Nithari serial killings case in the Allahabad High Court, on January 28 the Bench of Chief Justice Dhananjaya Yeshwant Chandrachud and Justice Pradeep Kumar Singh Baghel commuted the death sentence of Surendra Koli after finding that the Executive was unable to explain the inordinate delay in disposing of his mercy petition. The People’s Union for Democratic Rights (PUDR), which filed the petition in the High Court on Koli’s behalf, contended that there was a prolonged, unnecessary and avoidable delay of three years and three months in the disposal of the mercy petition.

The period of unexplained delay amounts to two years and six months. Koli was arrested on December 29, 2006, and was convicted and sentenced to death by the trial court in 2009. The sentence was confirmed by the High Court and the Supreme Court, which dismissed his appeal against the High Court’s judgment on February 15, 2011.

Koli addressed a mercy petition to the Governor of Uttar Pradesh on May 7, 2011, after the Additional Sessions Judge, Ghaziabad, issued a death warrant. The Governor rejected the mercy petition on April 2, 2013. This almost-two-year delay was because the State government received the Ghaziabad District Magistrate’s report only on October 26, 2012, and then the report was with the State Home Department for a month and a half.

After the Governor rejected the mercy petition, it took three months and five days for the government to communicate the rejection to the prisoner and to send the record to the President.

The Central government took four months to ask for information from the State government, and the District Magistrate took three months and five days to submit the relevant information to the Centre. The President rejected Koli’s mercy petition on July 20, 2014.

The Supreme Court stayed Koli’s execution on September 12, 2014, as the hearing of his review petition was scheduled in open court on October 28, 2014. Subsequent to the Supreme Court’s dismissal of the review petition, the PUDR moved the High Court for relief on the grounds of delay, and cited the fact that Koli had been kept in solitary confinement since the trial court judgment on February 13, 2009, in violation of the constitutional safeguards enunciated in “Sunil Batra vs Delhi Administration” (1978).

The official admission of delay was in the form of submissions by the Uttar Pradesh government to the High Court through counteraffidavits that as many as five reminders were addressed to the District Magistrate and to the Prison Superintendent to furnish documents to process the mercy petition. This was in addition to the reminder addressed by the Central government to the State government.

As “unexplained” delay in disposing of a mercy petition had been held to be a mitigating factor by the Supreme Court in commuting a death sentence, the High Court had no option but to commute Koli’s death sentence.

The High Court made it clear that Koli’s conduct after his conviction was not such as to disentitle him from claiming relief under the head of delay since the execution of the death sentence was not postponed by any dilatory tactic adopted by him.

The High Court also concluded that the Uttar Pradesh Governor’s decision to reject Koli’s mercy petition was vitiated by the flawed advice he received from the Governor’s Legal Adviser regarding his constitutional power. The Adviser opined that the Governor had no independent power to consider a convict’s mercy petition once the High Court and the Supreme Court had found him guilty. The Governor, in accepting the recommendation of his Legal Adviser, denuded himself of the consideration of vital aspects of the case which fell within his constitutional authority, the High Court held.

The High Court also held that Koli’s solitary confinement without a judicial order even when he was not under an executable sentence of death was illegal. The High Court took note of the Supreme Court’s decision last year that the nature of the crime committed by the convict was not a relevant factor while determining whether he was entitled to commutation on the grounds of delay in disposing of his mercy petition.

The High Court’s judgment is significant for reiterating certain safeguards while carrying out execution warrants against death row convicts. The court found no reason or justification for the issuance of an open-ended warrant of death, as happened in Koli’s case, prescribing a range of dates within which the sentence of death would have to be carried out. “The essence of a warrant of death is the determination of a specific time and place for the execution of sentence,” the High Court held.

Issuance of sufficient notice to the convict before the issuance of a warrant of death by the sessions court, to enable him to consult his advocates and to be represented in the proceedings; allowing a reasonable period of time between the date of the order on the warrant and the date fixed in the warrant for the execution to have a final meeting with members of his family; immediate supply of the warrant to the convict and provision of legal aid if the convict is not in a position to afford legal assistance are procedural safeguards which must be observed if the right to life under Article 21 is not to be denuded of its meaning and content, the High Court observed.

V. Venkatesan

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