PETITIONER:
AMRIT BHUSHAN GUPTA
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT29/11/1976
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1977 AIR 608 1977 SCR (2) 240
1977 SCC (1) 180
ACT
Penal Code--S. 84--Person convicted and sentenced to death
turning insane afterwards--If execution should be stayed
till he became sane.
HEADNOTE
A petition under Art. 226 of the Constitution was filed
in the High Court on behalf of the. appellant, who was sen-
tenced to death, praying that, since the appellant was
insane the State should be restrained from carrying out the
sentence. The High Court dismissed the petition holding
that if the appellant were really insane, the appropriate
authorities would take necessary action.
In appeal to this Court, it was contended that convicted
person who became insane after conviction and sentence could
not be executed until he regained sanity.
Dismissing the appeal,
HELD: (1) (a) Courts have no power to prohibit the
carrying out of a sentence of death legally passed upon an
accused person on the ground either that there is some rule
in the common law of England against the execution of an
insane person sentenced to death or for some theological
religions or moral objection to it. Our statute law on the
subject is based entirely on secular considerations which
place the protection and welfare of society in the fore-
front. [249 B]
(b) What the statute law does not prohibit or enjoin
cannot be enforced, by means of a writ of mandamus under
art. 226 of the Constitution, so as to set at naught a duly
passed sentence of a court of justice. [249 C]
(2) (a) Section 30 of the Prisoners Act, 1900 has nothing
to do with the powers of courts. It only regulates the
place and manner of confinement of a person, who appears to
be a lunatic, when his detention or imprisonment is either
during the trial or during the period when, after the
sentence, he is undergoing imprisonment.In the case of a
person condemned to death, no question of keeping him in
prison would arise except for the period elapsing between
the passing of the sentence of death and its execution.
[243 F]
(b) Insanity, to be recognised as an exception to crimi-
nal liability must be such as to disable an accused person
from knowing the character of the act he was committing when
he commits a criminal act. If, at the time of the commis-
sion of the offence, the appellant knew the nature of the
act he was committing, he could not be absolved of responsi-
bility for the grave offence of murder. [245 B-D]
Jagmohan Singh v. The State of U.P. [1973] 2 S.C.R. 541
referred to.
In the instant case, the whole object. of the proceed-
ings in the High Court and before this Court seems to be to
delay execution of the sentence. In view of the number of
times the appellant had unsuccessfully applied the powers of
the High Court and of this Court ought not to have been
invoked again. [244 A]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
383 of 1976.
(With Criminal Misc. Petitions Nos. 62 and 380 of 1976.)
(Appeal by Special Leave from the Judgment and Order
dated 22-8-1975 of the Delhi High Court in Crl. Writ Peti-
tion No. 135/75).
241
S.K. Sinha, for the Appellant.
V.P. Raman and Girish Chandra, for the Re-
spondents.
Tek Chand Chanana (In person) for the appli-
cant--Intervener.
The Judgment of the Court was delivered by
BEG J.--A petition under Article 226 of the Constitution
was fled in the High Court of Delhi, seeking a writ in
the nature of Mandamus "or any other appropriate Writ,
direction or order", to restrain the respondents from
carrying out the sentence of death passed against Amrit
Bhushan Gupta, a person condemned to death for having com-
mitted culpable homicide amounting to murder. The petition
was flied by Smt. Shanti Devi, purporting to act on behalf
of her son Amrit Bhushan Gupta, who was alleged to be
insane. A Division Bench of the Delhi High Court passed
the following order on it:
"We have no doubt in our minds that if
the petitioner is really insane, as stated in
the petition, the appropriate authorities
will take necessary action. This petition,
at this stage, we feel, does not justify
invocation of the powers of this Court under
Article 226 of the Constitution. Criminal
Writ is dismissed."
Before the grant of special leave to the petitioner on
27th August, 1976 an application for intervention in the
matter had been filed by Tek Chand Chanana supported by an
affidavit stating the following facts which have not been
controverted:
"Amrit Bhushan Gupta was sentenced to
death for burning alive three innocent sleep-
ing children aged 14, 8 and 5 years at Srini-
was Puri on the midnight of 21st June, 1968 by
the learned Dist. & Sessions Judge Delhi under
Section 302 and 7 years R.I. u/s. 307 for
attempting to murder Tek Chand Chanana (Peti-
tioner) on 6th June, 1969 with the remarks
’even the extreme penalty of death may appear
too mild for the gruesome murder of three
children by burning them alive.’ Delhi High
Court confirmed the death sentence on 23rd
September, 1969. Amrit Bhushan Gupta’s
relatives made the plea of insanity to the
High Court but the Hon’ble High Court refused
even to entertain this petition of the ac-
cused, some dates are given below:
Writ petition dismissed on 20th July,
1971 ............
Petition dismissed ........ 20th August, 1975.
Supreme Court had dismissed the var-
ious petitions of
Amrit Bhuahan Gupta noted below:
17--1458SCI/76
242
Special leave petition dismissed on 3rd
April, 1970.
Petition dismissed on 12th
Sept. 1970.
Petition dismissed on 30th
April, 1971.
Writ Petition filed on 11 May 1971
was withdrawn on 2nd
August, 1976.
Petition dismissed on 8th
January, 1976
Rashtrapati had also rejected several
mercy petitions of the accused some dates are
given below:
1. 10th August, 1970.
2. 6th December, 1970.
3. 8th November, 1971.
4. February, 1972.
Government of India had fixed various
dates for execution, details given below:
1.18th December, 1970.
2. 25th August, 1975 and 19th December,
1975.
Amrit Bhushan Gupta and his relatives
have been delay-
ing the matter on one excuse, or the other.
Their latest
plea is nothing new. It is repetition of
their modus
operandi. The petitioner and his wife have
been under
constant torment since the day their three
innocent child-
ren were gruesomely murdered in 1968 and the
punishment
awarded to the accused in 1969 is being
postponed on the
making of the accused."
This Court when granting special leave in this case was
obviously
not aware of the facts stated above which were concealed.
Learned
Counsel for the appellant, when asked to state the question
of law which called for the invocation of the jurisdiction
of this Court under Article 136 of the Constitution, could
only submit that the provisions of Section 30 of the Prison-
ers Act, 1900, should be applied to the petitioner. This
section reads as follows:
"30. Lunatic Prisoners how to be dealt
with.----
(1) Where it appears to the State Government
that any person detained or imprisoned under
any order or sentence of any Court is of
unsound mind, the State Government may, by a
warrant setting forth the grounds of belief
that the person is of unsound mind, order his
removal to a lunatic asylum or other place of
safe custody within the State there to be
kept and treated as the State Government
directs during the remainder of the term for
which he has been ordered or sentenced to be
detained or imprisoned, or, if on the expira-
tion of that term it is certified by a medical
officer that it is necessary for the safety of
the prisoner or others that he should be
further detained under medical care or treat-
ment, then until he is discharged according to
law.
243
(2) Where it appears to the State Gov-
ernment that the prisoner has become of
sound mind, the State Government shall, by a
warrant directed to the person having charge
of the prisoner, if still liable to be kept in
custody, remand him to the prison from which
he was removed, or to another prison within
the State, or if the prisoner is no longer
liable to be kept in custody, order him to be
discharged.
(3) The provisions of Section 9 of the Luna-
tic Asylums Act, 1858, shall apply to every
person confined in a lunatic asylum under
sub-section (1) after the expiration of the
term for which he was ordered or sentenced to
be detained or imprisoned; and the time during
which a prisoner is confined in a lunatic
asylum under that sub-section shall be reck-
oned as part of the term of detention of
imprisonment which he may have been ordered or
sentenced by the Court to undergo.
(4) In any case in which the State Government
is competent under sub-section (1) to order
the removal of a prisoner to a lunatic
asylum or other place of safe custody within
the State, the State Government may order his
removal to any such asylum or place within any
other State or within any part of India to
Which this Act does not extend by agree-
ment with the State Government of such other
State; and the-provisions of this section
respecting the custody, detention, remand and
discharge of a prisoner’ removed under sub-
section (1) shall, so far as they can be made
applicable, apply to a prisoner removed under
this sub-section."
Thus, at the very outset, the section invoked relates to
the powers of the State Government. It has nothing to do
with powers of Courts. It only regulates the place and
manner of the confinement of a person, who appears to be a
lunatic, when his detention or imprisonment’ is either
during the trial or during the period when, after the
sentence, he is undergoing imprisonment. In the case of a
person condemned to death no question of keeping him in
prison would arise except for the period elapsing between
the passing of the sentence of death and its execution. A
special provision for a person sentenced to death is to be
found in Section 30 of the Prisons Act 1894, which lays
down:
"30. Prisoners under sentence of
death.----
(1) Every prisoner under sentence of death
shall, immediately on his arrival in the
prison after sentence be searched by, or by
order of, the Jailor and all articles shall be
taken from him which the Jailor deems it
dangerous or inexpediem to leave in his
possession.
(2) Every such prisoner shall be con-
fined in a cell apart from all other pris-
oners, and shall be placed by day and by night
under the charge of a guard."
244
The whole objection of the proceedings in the High Court
and now before us seems to be to delay execution of the
sentence of death: passed upon the appellant. In view of
the number of times the appellant has unsuccessfully ap-
plied, there can be little doubt that the powers of the High
Court and of this Court ought not to have been invoked
again. The repeated applications constitute a gross abuse
of the processes of Court of which we would have taken more
serious notice if we were not disposed to make some allow-
ance for the lapses of those who, possibly out of misguided
zeal or for some other reason, may be labouring under the
belief that they were helping an unfortunate individual
desperately struggling for his life which deserves to be
preserved. A bench of this Court 100 was persuaded to
pass orders for observation of the convict and obtaining
certificates of experts on the mental condition of the
convict.
Dr. P.B. Buckshey, Medical Superintendent and Senior
Psychiatrist, Hospital for Mental Diseases, Shahdata Delhi,
certified as follows:
"After careful consideration of the
entire mental state of the accused, including
his behaviour, I am of opinion that Shri Amrit
Bhushan Gupta is a person of unsound mind
suffering from Schizophrenia. Schizophrenia
is a basically incurable type of insanity
characterised by remissions and relapses at
varying intervals.
Shri Gupta was also severely and over-
whelmingly depressed and appeared to have lost
interest in life."
Dr. S.C. Malik, Assistant Professor of
Psychiatry, G. B. Pant Hospital, New Delhi,
gave a more detailed certificate as follows:
"Amrit Bhushan Gupta remained mute
throughout the ten days period of observation.
He however started communicating to me through
writing on 3rd day of encounter. He exhibits
gross disturbance in thinking and his emotion-
al life appears to be disorganised. He
is suffering from delusion that he is the
incarnation of Christ and that I come to his
kingdom or ’Palace’. He does not mutter to
himself but at times keeps on staring vacantly
in space. He is unable to write coherent
meaningful sentences. He coins new words
and when asked to explain he says it
is ’Technologem of myself as CHRIST’. He
also had hallucinations e.g. that Russian
planes are shooting his Bunkers and that I
should be helping him to drive them away. He
exhibited depressive and suicidal I tendencies
towards later period of my observation period
and broke off all communication as I did not
give him potassium Cyanide ’Poison’ so that
he (Christ) may go back to his Kingdom.
In my opinion he is suffering from ’SCHIZO-
PHRENIA’ (Chronic) which is a serious mental
derangement.He is thus considered to be of
unsound mind under the Indian Lunacy Act.
1912."
245
We have not even got any appeal from a conviction and
sentence before us. We assume that, at the time of the
trial of the appellant, he was given proper legal aid and
assistance and that he did not suffer from legal insanity
either during his trial or at the time of the commission of
the offence. Insanity, to be recognised as an exception to
criminal liability, must be such as to disable an accused
person from knowing the character of the act he was commit-
ting when he commits a criminal act. Section 84 of the
Indian Penal Code contains a principle which was laid down
in England in the form of Macnaughten Rules. The section
provides:
"84. Nothing is an offence which is
done by a person who, at the time of doing it,
by reason of unsoundness of mind, is incapable
of knowing the nature of the act, or that he
is doing what is either wrong or contrary to
law."
If at the time of the commission of the offence, the
appellant knew the nature of the act he was committing, as
we assume he did, he could not be absolved of responsibility
for the grave offence of murder. A Constitution Bench of
this Court has upheld the Constitutional validity of the
death penalty in Jagmohan Singh v. The State of U.P. (1).
We have to assume that the appellant was rightly convicted
because he knew the nature Of his acts when he committed the
offences with which he was charged. The legality or cor-
rectness of the sentence of death passed upon him cannot be
questioned before us now. So far as the prerogative power
of granting a pardon or of remitting the sentence is con-
cerned, it lies elsewhere. We cannot even examine the facts
of the case in the proceedings now before us and make any
recommendation or reduce the sentence to one of life impris-
onment.
The contention which has been pressed before us, with
some vehemence, by learned Counsel for the appellant, is
that a convicted person who becomes insane after his convic-
tion and sentence cannot be executed at all at least until
he regains sanity.
In support of this contention learned Counsel has quoted
the following passage from Hale’s Pleas of the Crown Vol.
I--p. 33:
"If a man in his sound memory commits a
capital offence, and before his arraignment he
becomes absolutely mad, he ought not by law to
be arraigned during such his phrenzy, but be
remitted to prison until that incapacity be
removed; the reason is, because he cannot
advisedly plead to the indictment; and this
holds as well in cases of treason, as felony,
even the delinquent in his sound mind were
examined, and confessed the offence before his
arraignment; and this appears by the Statute
of 33 H. 8 Cap. 20 which enacted a trial in
case of treason after examination in the
absence of the party; but this statute stands
repealed by the statute of 1 and 2 Phil & Mr.
cap. 10 cv. P.C.p. 6 And, if such person
after his plea, and before his trial, become
of non sane memory, he
[1) [1973] 2 S.C.R. 541,
0+-*
246
shall not be tried, or, if after his trial he
becomes of non sane memory he shah not receive
judgment; or, if after judgment he becomes of
non sane memory, his execution shall be
spared; for were he of sound memory, he might
allege somewhat in stay of judgment or execu-
tion".
He also cited a passage from Coke’s Insti-
tutes, Vol. III, p. 6, which runs as follows:
"It was further provided by the said act of
33 H.S. that if a man attained of treason
became mad, that notwithstanding he should
be executed; which cruel and inhuman law lived
not long, but was repelled, for in that
point also it was against the common law,
because by intendment of law the execution
of the offender is for example, ut poena ad
paucos, metus and omnes perveniat, as before
is said; but so it is not when a mad man is
executed, but should be a miserable spectacle,
both against law and of extreme inhumanity and
cruelty, and can be no example to others".
The following passage from Blackstone’s Com-
mentaries on the Laws England VoL IV, page 18
and 19 was also placed before us :
"The second case of a deficiency in
will, which excuses: from the guilt of crimes,
arises also from a defective or vitiated
understanding, viz., in an idiot or a lunatic.
For the rule of law as to the latter, which
may easily be adapted also to the former, is
that ’furiosus furore solum punitur’. In
criminal cases, therefore, idiots and lunatics
are not chargeable for their own acts, if
committed when under these incapacities; no,
not even for ,treason itself. Also, if a man
in his sound ’mind’ commits an offence, and
before arraignment for it he becomes mad, he
ought not to be ’called on to plead to it,
because he is unable to do so’ with that
advice and caution that he ought. And, if
after he has pleaded, the prisoner becomes
mad, he shall not be tried; for how can he
make his defence ? If, after he be tried and
found guilty, he loses his senses before
judgment, judgment shall not be pronounced;
and if after judgment, he becomes of non sane
memory, execution shall be stayed; for parad-
venture, says the humanity of the English law,
had the prisoner been of sound memory, he
might have alleged something in stay of judg-
ment or execution. Indeed, in the bloody
reign of Henry the Eighth, a statute was made,
which enacted that if a person, being compos
roentis, should commit high treason, and after
fall into madness, he might be tried in his
absence, and should suffer death, as if h6
were of perfect memory. But this savage and
inhuman law was repealed by the statute 1 & 2
Ph. & M.c. 10. For, as is observed by Sir
Edward Coke ’the execution of an offender is,
for example, ut poena ad paucos, metus ad
omnes perveniat; but so it is not a miserable
spectable, both against law, and of extreme
inhumanity and cruelty.. and can be of no
example to others".
247
A passage from a modern work, ’An Introduction
to Criminal Law", by Rupert Cross, (1959), p.
67, was also read. It reads as follows:
"In conclusion it may be observed that there
are two other periods in the history of a
person charged with a crime at which his
sanity may be relevant. First, although there
may be no doubt ’that he was sane when he did
the act charged, he may be too insane to stand
a trial in which case he will be detained
during the Queen’s pleasure under the Crimi-
nal Lunatics Act, 1800 and 1883, pending
his recovery. Secondly, if he becomes insane
after sentence of death he cannot be hanged
until he has recovered. In each of these
cases. the question of sanity is entirely a
medical question of fact and is in no way
dependent on the principles laid down in
M’Naghten’s case.
The rule that insanity at the time of
the criminal act should be a defence is
attributable to the fact that the idea of
punishing a man for that which was due to his
misfortune is revolting to the moral sense of
most of the community. The rule that the
accused must be fit to plead is based on the
undesirability of trying someone who is unable
to conduct his defence, or give instructions
on the subject. The basis of the rule that an
insane person should not be executed is less
clear. Occasionally, the rule is said to be
founded on theological grounds. A man should
not be deprived of the possibility of a sane
approach to his last hours. Sometimes, the
rule is said to be based on the fact that
condemned men must not be denied the opportu-
nity of showing cause by why they should not
be reprieved".
Shri S.K. Sinha, learned Counsel for the appellant, has,
industriously, collected a number of statements of the
position in English law from the abovementioned and other
works of several authorities such as Theobald on Lunacy (p.
254), and Kenny’s Criminal Law (p. 74).
On the other hand, learned Additional Solicitor General
has relied on the following statement of a modern point of
view contained in a book by Mr. Nigel Walker on "Crime and
Insanity in England" (Vol. I: The Historical Perspective)
--at p. 213 -214:
"Home Secretaries have been even more
cautious in offering justifications for the
practice of reprieving the certifiably insane
or the mentally abnormal. Shortt, though
he cited Coke, Hale, Hawkins, Blackstone,
Hawles, and Stephen to prove that he was bound
by the common law, refrained from dwelling on
their explanations of it. which are, as we
have seen, far from impressive. The Atkin
Committee, being lawyers, were more respectful
to the institutional writers, and argued that
’many (sic) of the reasons given for the
merciful view of the common law continue to
have force even under modern conditions.
Everyone would revolt from dragging a gibber-
ing maniac to the gallows’. If
248
they had reflected they would Surely have
conceded that ’modern conditions’ greatly
weakened two out of the three traditional
reasons. The abolition of public executions
made Coke’s argument irrelevant as well as
illogical; and Hale’s argument--that if sane
the condemned man might be able to produce a
sound reason why he should not be hanged--was
greatly weakened now that the condemned
man’s interests were so well looked after by
his lawyerS. As for Hawles’ argument that an
insane man was spiritually unready for the
next world (which not even Hawles regarded as
the main objection)--were the Committee such
devout Christians that they set store by it ?
Equally odd was their remark that ’everyone
would revolt from dragging a gibbering maniac
to the gallows’, which sounded as if it was
meant as an endorsement of one or more of the
traditional justifications, but if so could
hardly have been more unfortunately phrased.
Why should it be more revolting to hang a
’maniac’ than a woman, a seventeen-year-old
boy or a decrepit old man ? Must the maniac
be ’gibbering’ before it becomes revolting ?
A more logical justification was sug-
gested by Lord Hewart, who opposed Lord
Darling’s attempt to legislate on the lines
recommended by the Atkin Committee (see Chap-
ter 6). Lord Hewart suggested that the medi-
cal inquiry should be concerned only with a
single, simple question: ’If this condemned
person is now hanged, is there any reason to
suppose from the state of his mind that he
will not understand why he is being hanged ?’
Although this Suggestion would have appealed
to Covarrubias, it had little attraction
either for the Home Office or for humanitar-
ians in general, for it was clearly intended
to. reduce the number of cases in which the
inquiry led to a reprieve. Nevertheless, given
certain assumptions about the purpose of the
death penalty, it was at least more logical
than the traditional justifications which the
Atkin Committee had so piously. repeated. If,
as Covarrubias and Hewart no doubt believed,
the primary aim of a penalty was retributive
punishment, it could well be argued that the
penalty would achieve its aim only if the
offender understood why it was being imposed.
This argument is not open, however, to someone
who believes that the primary aim of a penalty
such as hanging is the protection of society
by deterrence or elimination. The Atkin
Committee would have been more realistic if
they had contented themselves with the obser-
vation that for at least four hundred years it
had been accepted that common law forbade the
execution of a mad man, although the
institutional writers’ explanations were
obviously speculative and odd: and that since
1884 certifiable insanity had been accepted as
the modern equivalent of ’madness’. Any fur-
ther attempt to justify the practice would
have involved them in one sort of difficulty
or another. as Lord Goddard was to argue to
the Gowers Commission".
249
Interesting as the statements on and origins of the Common
Law rules on the subject in England, against the execution
of an insane person, may be, we, in this country, are gov-
erned entirely by our statute law on such a matter. The
Courts have no power to prohibit the carrying out of a
sentence of death legally passed upon an accused person on
the ground either that there is some rule in the Common Law
of England against the execution of an insane person sen-
tenced to death or some theological, religious, or moral
objection to it. Our statute law on the subject is based
entirely on secular considerations which place the protec-
tion and welfare of society in the forefront. What the
statute law does not prohibit or enjoin ’cannot be enforced,
by means of a writ of Mandamus under Article 226 of the
Constitution, so as to set at naught a duly passed sentence
of a Court of justice.
The question whether, on that facts and circumstances of
a particular ease, a convict, alleged to have became insane,
appears to be so dangerous that he ,must not be let loose
upon society, lest he commits similar crimes against other
innocent persons when released, or, because of his anteced-
ents and character, or, for some other reason, he deserves a
different treatment, are matters for other authorities to
,consider after a Court has duly passed its sentence. As we
have already indicated, even the circumstances in which the
appellant committed the murders of which he was convicted
are not before us. As the High Court rightly observed, the
authorities concerned are expected to look into matters
which lie within their powers. And, as the President of
India has already rejected the appellant’s mercy petitions,
we presume that all relevant facts have received due consid-
eration in appropriate quarters.
We think that the application to the High Court and the
special leave petition to this. Court, in the circumstances
mentioned above, were misconceived. Accordingly, we dismiss
this appeal.
We also dismiss Criminal Miscellaneous Petition No. 62
of 1976, an application for summoning of the original re-
cord, as it could be of no use, but we allow Criminal Mis-
cellaneous Petition No. 380 of 1976, the application for
intervention, whose contents we have quoted above. Stay of
execution order is vacated.
P.B.R. Appeal dis-
missed.
250