NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (CRIMINAL) NOS. 383-385 OF 2011
L.K. Venkat … Petitioner
Versus
Union of India and others … Respondents
WITH
TRANSFER PETITION (CRIMINAL) NOS. 462-464 OF 2011
Javid Iqbal & others … Petitioners
Versus
V. Sriharan @ Murugan and others … Respondents
J U D G M E N T
G.S. SINGHVI, J.
1. Although, the parties have made diametrically opposite assertions
about the atmosphere which prevailed in the State after rejection by the
President of India of the mercy petitions filed by V. Sriharan @ Murugan
and two others, we do not consider it necessary to decide whether the
support extended by the political outfits and others to those who were
found guilty of killing the former Prime Minister Shri Rajiv Gandhi may
impede fair adjudication of the writ petitions filed by them warrants
transfer of the three writ petitions from the Madras High Court to this
Court. However, keeping in view the fact that an identical question is
pending consideration before this Court in Writ Petition (Criminal) D. No.
16039 of 2011 titled Devender Pal Singh Bhullar v. State of NCT of Delhi,
we deem it proper to exercise power under Article 139A(1) of the
Constitution.
2. L. K. Venkat and Javid Iqbal and others have filed these petitions
for transfer of Writ Petition No. 20287 of 2011 titled V. Sriharan @
Murugan v. Union of India and others, Writ Petition No. 20288 of 2011
titled T. Suthendraraja @ Santhan v. Union of India and others and Writ
Petition No. 20289 of 2011 titled A.G. Perarivalan @ Arivu v. Union of
India and others which are pending before the Madras High Court to this
Court.
3. The writ petitioners and some others were convicted by the Special
Judge for offences under Section 302 read with Section 120B IPC and
Sections 3, 4 and 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short, ‘TADA’) and were sentenced to death. The
appeals filed by them were dismissed by this Court vide judgment reported
as State v. Nalini (1999) 5 SCC 253.
4. The mercy petitions filed by the writ petitioners were rejected by
the President of India on 11.8.2011. Thereafter, they filed three writ
petitions, of which particulars have been mentioned hereinabove, for
quashing the rejection of the petitions filed by them under Article 72 of
the Constitution on the ground of violation of the principles laid down in
various judgments of this Court including T.V. Vatheeswaran v. State of
Tamil Nadu (1983) 2 SCC 68, Sher Singh v. State of Punjab (1983) 2 SCC 344,
K.P. Mohammed v. State of Kerala 1984 (Supp.) SCC 684, Javed Ahmed Abdul
Hamid Pawala v. State of Maharashtra (1985) 1 SCC 275, Triveniben v. State
of Gujarat, (1989) 1 SCC 678, Madhu Mehta v. Union of India (1989) 4 SCC
62, Daya Singh v. Union of India (1991) 3 SCC 61, Shivaji Jaising Babar v.
State of Maharashtra (1991) 4 SCC 375 and Jagdish v. State of Madhya
Pradesh (2009) 9 SCC 495.
5. The petitioners have sought transfer of the writ petitions by
asserting that hearing thereof in the Madras High Court may not be possible
in congenial atmosphere because of the agitation launched by different
political outfits, extremist groups and lawyers and also because thousands
of people gathered in the High Court premises and raised slogans outside
and inside the Court premises. The petitioners in the second case have
also pleaded that the main question raised in the writ petitions pending
before the High Court is identical to the question raised in the cases of
Devender Pal Singh Bhullar and Mahendra Nath Das, which are pending before
this Court.
6. The Government of Tamil Nadu and some of the private respondents have
controverted the petitioners’ assertion that the atmosphere in the State is
highly surcharged and fair hearing of the writ petitions filed by the
convicts is not possible in the Madras High Court. They have pleaded that
there is no impediment in the hearing of the writ petitions by the Madras
High Court and the same should not be transferred merely because similar
issue is pending before this Court. They have also questioned the locus
standi of the petitioners to seek transfer of the writ petitions from the
Madras High Court by alleging that they are merely busy-body and are
interested in publicity.
7. We have heard learned counsel for the parties. While the counsel
representing the Union of India submitted that his client does not have any
objection to transfer of the writ petitions from the Madras High Court
because similar matters are pending before this Court, Shri Gurukrishna
Kumar, learned Additional Advocate General representing the State of Tamil
Nadu took up the position that the State Government is not in favour of
transfer of the writ petitions because there is no impediment in the
hearing of the writ petitions by the High Court. Shri Anil Diwan, learned
senior counsel and Shri Jayant Muthraj, learned counsel appearing for the
writ petitioners argued that the prayer made in the transfer petitions
should not be entertained because the petitioners do not have locus standi
in the matter and pre-requisites enumerated in Article 139A(1) of the
Constitution for the exercise of power by this Court have not been
satisfied. Shri Anil Diwan submitted that even though the issue raised in
the writ petitions pending before the High Court is similar to the one
raised in the petitions, there is no necessity to transfer the same to this
Court because the law laid down in the two writ petitions pending before
this Court will govern final adjudication of the cases pending before the
High Court.
8. Article 139A which provides for transfer of certain cases reads as
under:
“139A. Transfer of certain cases.—(1) Where cases involving the same
or substantially the same questions of law are pending before the
Supreme Court and one or more High Courts or before two or more High
Courts and the Supreme Court is satisfied on its own motion or on an
application made by the Attorney-General of India or by a party to any
such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending
before the High Court or the High Courts and dispose of all the cases
itself:
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy of
its judgment on such questions to the High Court from which the case
has been withdrawn, and the High Court shall on receipt thereof,
proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the
ends of justice, transfer any case, appeal or other proceedings
pending before any High Court to any other High Court.”
9. A reading of the plain language of Clause (1) of Article 139A shows
that the power to transfer the particular case or cases can be exercised by
this Court either on its own motion or on an application made by the
Attorney General of India or by a party to such case(s) provided that the
cases involve the same or substantially the same question(s) of law which
is pending before this Court and one or more High Courts or before two or
more High Courts and such questions are substantial questions of general
importance.
10. There is no dispute between the parties that the question which
arises for consideration in the writ petitions filed by V. Sriharan @
Murugan, T. Suthendraraja @ Santhan and A.G. Perarivalan @ Arivu, that is,
whether long delay in the decision of the mercy petitions entitles the
convicts to seek commutation of death sentence is similar to the one raised
in the cases filed by Devender Pal Singh Bhullar and Mahendra Nath Das. In
our opinion, that question is of substantial general importance and
decision thereof is likely to affect large number of persons who have been
convicted by the competent Courts and sentenced to death and whose mercy
petitions have remained pending for years together. Therefore, we are
satisfied that it will be in the interest of justice to transfer the three
writ petitions pending before the Madras High Court to this Court.
11. In the result, the transfer petitions are allowed and Writ Petition
No. 20287 of 2011 titled V. Sriharan @ Murugan v. Union of India and
others, Writ Petition No. 20288 of 2011 titled T. Suthendraraja @ Santhan
v. Union of India and others and Writ Petition No. 20289 of 2011 titled
A.G. Perarivalan @ Arivu v. Union of India and others pending before the
Madras High Court are transferred to this Court.
12. The Registrar General of the Madras High Court is directed to ensure
that the records of the three writ petitions are sent to this Court per
messenger within two weeks of the receipt of communication from the
Registry of this Court.
13. The transferred cases shall be listed before the Court on 10.7.2012
for final disposal. Notice be issued to the writ petitioners that their
case will be taken up for hearing by this Court on 10.7.2012. One set of
the notices be also sent to the Superintendent, Central Jail, Vellore,
Tamil Nadu, who shall ensure that the same are served upon the writ
petitioners well before 10.7.2012.
14. The Registry is directed to send copies of this order to the
Registrar General of Madras High Court and Superintendent, Central Jail,
Vellore, Tamil Nadu by fax.
…..……….....……..….………………….…J.
[G.S. SINGHVI]
…………..………..….………………….…J.
[SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
May 1, 2012.
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