Babasaheb Maruti Kamble
The State of Maharashtra
|CITATION||R.P.(Crl.) No. 388/2015 In SLP(Crl) No. 458/2015, (2019) 13 SCC 631|
|Court||Supreme Court of India|
|Bench||Justice A. K. Sikri Justice Ashok Bhushan Justice Indira Banerjee|
|Petitioner||Babasaheb Maruti Kamble|
|Respondent||The State of Maharashtra|
The sentence of death penalty in India is a very debatable issue and is also often criticised on its practical implementation. While some argue that it is arbitrarily decided judgement, on the other hand others find its irreversibility is repugnant in nature. However, it has to be accepted as a product of judicial process. To declare the punishment as an arbitrary, it has to be necessarily proved that the process is flawed. In any situation, a principle is accepted widely and that is- In the cases of imposition of the death penalty, the courts have to make sure that caution is exercised and carefully judgements should be reviewed in giving the punishment. The case explained below is a distinctive landmark of the same principle.
SLP- Special Leave Petition is the highest form of permission in judicial system. It provides for any aggrieved party a special permission to be heard in the Supreme Court of India in appeal against any judgment or order passed by any lower courts/tribunals in the territory of India. So, the only way a person appeals to the Apex Court is by way of SLP. But what happens when SLP is dismissed before hearing? It is not a common practice of the Supreme Court to give reasons if it dismisses any special leave petition. Since the Supreme Court orders are not liable to further scrutiny any Court further, the need for recording of reasons has not been mandated yet. Although in this landmark judgement, the issue of whether recording of reasons for dismissal has been confirmed as far as death penalty cases are concerned, because as sure as the Court can be about an accused’s conviction, a proper procedure for appeal is extremely crucial in cases od death penalty.
The case revolves around a rape followed by murder incident occurred on 28 October 2011 in Kranti Nagar, Goregaon, Mumbai. On the eve of Bhaubij, deceased girl’s mother Sharda was giving food to her children. The accused in the case Babasheb Maruti Kamble, was a neighbour to Sharda’s family, he called the victim girl, younger daughter of Sharda, around 7 years old and asked her to bring chili and coriander around 2.30 pm.Sharda sent her daughter, the victim girl. Her daughter did not return for around 40 minutes, she asked Kamble but he obstructed her way into his house and denied seeing her, The search for the girl went on till 6.00 p.m. Finally, Sharda’s husband asked her to go again to Kamble’sand search for the girl in his house. Finally, after going back to his house, she saw a pair of slippers and identified them to be of her daughter’s. She bent down to see a small hand, and found her daughter lying naked underneath the bed. There were injuries on her private part and blood was oozing out, she took her daughter to Siddharth Hospital, where she was declared as dead. Case was filed against Kamble in the Sessions Court, by judgment dated 27 September 2013 in Sessions Case No.87 of 2012, the learned Sessions Judge convicted the accused for the offence under Section 302 of IPC ,376(2)(f) and 342 of IPC. For the offence under Section 376(2)(f) of IPC, the accused was sentenced to life imprisonment and for the offence under Section 342 of IPC, the accused was sentenced to suffer simple imprisonment for two months. As the sentence of death was imposed on the accused, the learned Sessions Judge made a reference to this Court for confirmation of death sentence. The accused being aggrieved by the very same judgment and order, preferred Criminal Appeal No.80 of 2014 and as both the Confirmation Case and the Appeal are directed against the very same judgment and order, both these matters were heard and decided together. The High Court upheld the conviction under above mentioned offences and also confirmed the death penalty. Against that judgement petitioner filed a Special Leave Petition (Criminal) No. 458 of 2015.
The filed by the review petitioner in this case was dismissed by the Supreme Courtby stating- “Delay condoned. Dismissed.” Hence a review petition was filedseek review of the above-mentionedorder. The Court was expected to affirm the allowance or not of the same.
Learned senior counsel, Naphade referred to the provisions of Article 137 of the Constitution which provide for review of judgments or orders given by the Supreme Court and reads as under:
“137. Review of judgments or orders by the Supreme Court “ Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it”.
Order XX11 Rule 7 of the Supreme Court Rules which state the provisions for summoning of records given before trial court for deciding the appeals and it is briefly explained as under: In this case the petitioner is in jail and is not represented by an advocate-on-record for the Supreme Court proceedings, he may present his petition for special leave to appeal this shall be accompanied with judgement of the lower court and his brief contention. This shall be procured by officer in charge who shall forward the same to the Registrar of this Court. Upon receiving of the same, he shall call authorised officer of Court or the Tribunal and ask for necessary documents. Once the documents are available, Registrar arrange the engagement of an Advocate or assign a Panel Advocate at the cost of the state. So, in cases of appeals, even before the proceedings are initiated, necessary documents are expected to be procured and examined by the Apex Court.
The review petitioner’s counsel, Mr. Naphade has referred to judgments-
- Mohammad Ajmal Mohammad Amir Kasab alias Abu Mujahid vs State of Maharashtra[i]
- Dayanidhi Bisoi vs. State of Orissa[ii]
- Mohd. Arif Alias Ashfaq vs. Registrar, Supreme Court of India and Others[iii]
- Rajesh Kumar vs. State Through Government of NCT of Delhi
Since the judgement revolves around the opinion of Court while considering a ‘review petition’, the contentions of ‘review petitioner’ argued by the representing counsel are of great importance here.
This landmark judgment was delivered on November 1, 2018 and had far reaching consequences, the Bench of Supreme Court comprising of Justice AK Sikri, Justice Ashok Bhushan and Justice Indira Banerjee in Babasaheb Maruti Kamble v State of Maharashtra (Review Petition (Criminal) No. 388of 2015 in Special Leave Petition (Criminal) No. 458 of 2015) examined the said petition carefully and considered it to produce the judgement explained further-
The Bench firstly recalled two similar orders in two different cases where the Court had dismissed SLPs filed by the accused against death sentence. Senior advocate Shekhar Naphade appeared in the case for the review petitioner, Kamble, whose appeal regarding his death sentence was rejected by the Apex Court in January 2015 by dismissing the SLP filed by him in limine[iv].
Firstly[v] it is brought to the Court’s attention that the Review Petition filed by the petitioner, who is convicted for offences under the Sections 302, 376(2)(f) and 342 of the Indian Penal Code, 1860. According to the Sessions Court judgement dated September 27, 2013 the petitioner was sentenced to life imprisonment for offence under Section 376(2)(f) of IPC, for the offence under Section 342 of IPC, the lower court awarded simple imprisonment for a period of two months. [vi]
Secondly it was pointed out, for confirmation of death sentence, the Sessions Judge made a reference to the High Court. Criminal Appeal No. 80 of 2014 before the High Court was also filed by the petitioner to challenge the decision made by lower court. Both were heard together by the High Court. The High Court upheld the conviction supported by judgment dated 10 July, 2014. Aggrieved by which the Petitioner, filed Special Leave Petition (Criminal) No. 458 of 2015 in the Supreme Court of India.
Thirdly, The SLP came up for preliminary hearing before the Apex Court on January 06, 2015 but was dismissed.
Mr. Shekhar Naphade, senior counsel appearing on behalf of the petitioner submitted that if in a case, conviction is followed by death sentence, then SLPs should not be dismissed in limine and rather in case the Court finds it fit to do so, some reasons should berecorded. He further argued that criminal cases have a broader scope of review than civil and if reasons for dismissal of such cases SLPs is not recorded then the whole concept of remedial review becomes illusive in nature.[vii]Mr. Naphade also referred to the provisions of Order XX11 Rule 7 of the Supreme Court rules explained above. He put forward the contention that the provision of Order XX11 Rule 7 prescribe that even in the absence of Advocate on Record, if a person wants to file SLP before the Supreme Court, his records (documents and statement) are summoned only after the SLP is granted, but cases where petitioner is imposed to death penalty, the Court is responsible to summon the record when making the final order at the stage of SLP also. Kasab’s case was referred to and the Court’s attention was brought to paragraph 5 of his case[viii]. The case, Rajesh Kumar vs. State Through Government of NCT of Delhi[ix]explains as to how important is a proper hearing in cases where the accused is sentenced to death. As per the Section 235 of the Code of Criminal Procedure even the Sessions Court is mandated to conduct proper hearing of the accused on question of sentence.
The Bench[x] put forth that it was convinced to consider some key points to Mr. Naphade’s arguments because it has been held in the landmark case of Bachan Singh that death penalty can be awarded only in the ‘rarest of rare cases’, the Court is obligated to give ‘special reasons’ when it affirms death sentence to an individual. The legislature has also deliberately added a provision where the Session Judge can impose death penalty but it has to be affirmed and approved by the next court in order – High Court, the addition of the provision is done so as to obviate any possibility of error. An independent examination by the Supreme Court while dealing with appeals related to death convictions in mandatory and such examination are expected to be ‘unbound by the findings of the trial court and the High Court’. This approach and procedureis the ‘time-honoured practice of this Court’, as was observed in Kasab’s case.
It was emphasised upon that the accepted practice of Supreme Court is to afford hearings in the cases where death penalty is imposed and this has also been distinctively acknowledged in Dayanidhi Bisoi vs. State of Orissa[xi] and in Mohd. Arif Alias Ashfaq v. Registrar, Supreme Court of India and Others[xii]. In the case of Mohd. Arif, the Supreme Court made an exception to the rule of hearing review petitions in Chambers to hearing them in open courts with a three judge bench.
The Court also quoted he case EswaraIyer case [P.N. EswaraIyer v. Registrar, Supreme Court of India[xiii].
It was observed from the above mentioned judgement:“Justicing is an art even as advocacy is an art. Happy interaction between the two makes for the functional fulfillment of the court system. No judicial ’emergency’ can jettison the vital breath of spoken advocacy in an open forum. Indeed, there is no judicial cry for extinguishment of oral argument altogether.”
Further the Court summed up this landmark case by stating that, all of the above mentioned and well explained circumstances collectively suggest that SLPs in cases where death sentence is awarded by the courts below Supreme Court, should not be dismissed without recording appropriate reasons, at least in cases of qua death sentence. Even if the Court finds that as far as conviction is concerned there can be no scope for interference at all (under Section 302) , because the prosecution has been successful in proving the guilt of the accused beyond any shadow of doubt. Even for dismissal of a Special Leave Petition, reasons should be recorded.
The Court held that in the immediate case, since the SLP filed was dismissed in limine with one word: Delay Condoned, Dismissed and without giving any recorded reasons, the Court shall allow the review petition and recall the order dated January 06, 2015.
As much as guilty Kamble was for raping and murdering a innocent girl, the decision to his review petitions came out as landmark judgment and will be an important one in the history of Criminal law in India as far as ‘Death penalty’ is concerned. It has distinctively sent out a very loud and clear message for future incidents of hearing special leave petitions against death sentences. SLP against death sentence should not be dismissed by the Apex Court6without recording reasons. This must be followed without any exception whatsoever.
[i](2012) 9 SCC 1
[ii](2003) 9 SCC 310
[iii](2014) 9 SCC 737
[iv]on the threshold : as a preliminary matter —used for motions regarding the admissibility of evidence brought up at a pretrial hearing; from https://www.merriam-webster.com/dictionary/in%20limine on 22 May 2020.
[vi] Para 2 https://indiankanoon.org/doc/28102290/
[vii] Para 7
[ix](2011) 13 SCC 706
[x] Para 9
[xi](2003) 9 SCC 310
[xii](2014) 9 SCC 737
[xiii]1980) 4 SCC 680], SCC p. 692, para 29-A