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Before

THE HONORABLE COURT HIGH COURT OF PURVA PRADESH

2020

UNDER ARTICLE 226 OF THE INDIAN CONSTITUTION OF INDICA

______________________________________________________________________________

IN THE MATTER OF:

LAWYER OF HUMAN RIGHTS ORGANISATON ----------------------------PETITIONER

V.

STATE OF PURVA PRADESH-------------------------------------------------------RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

INDEX OF ABBREVIATIONS -----------------------------------------------------------------------------03

INDEX OF AUTHORITIES ---------------------------------------------------------------------------------04

STATEMENT OF JURISDICTION ----------------------------------------------------------------------06

STATEMENT OF FACTS ---------------------------------------------------------------------------------07

ISSUE RAISED --------------------------------------------------------------------------------------------09

SUMMARY OF ARGUMENTS -------------------------------------------------------------------------10

ADVANCED ARGUMENT----------- -------------------------------------------------------------------11

I. WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226? ------11

II. WHETHER THE TRIAL OF THE ACCUSED WAS VITIATED BY ILLEGALITY? ------11-12

III. WHETHER THERE HAVE BEEN VIOLATIONS OF CONSTITUTIONAL PROVISION IN THE

PRESENT CASE? ----------------------------------------------------------------------------------------13-15

PRAYER-----------------------------------------------------------------------------------------------------16

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INDEX OF ABBREVIATIONS:

I.P.C Indian Penal Code

Cons. Constitution

Cr.P.C Code of Criminal Procedure

S.C Supreme Court

H.C High Court

S.C.C Supreme Court Cases

S.L.P Special Leave Petition

A.I.R All India Reporter

V. Versus

Up Uttar Pradesh

UOI Union of India

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INDEX OF AUTHORITIES

Cases Referred

1 2015 CriLJ 4141

2 2 Indian Banks' Association, Bombay & Ors, v. Devkala Consultancy Service and Ors. AIR
2004 SC 2615.

3.[2000] 245 ITR 360 (SCSC

4.Kartar Singh v. State of Punjab (1994 ) 3 SCC 569.
5.Md. Sukur Ali v. State of Assam, AIR 2011 SC 1222; See also: Man Singh v. State of M.P.,
2008 9 SCC 542;BapuLimbajiKamble v. State of Maharashtra, (2005) 11 SCC 412.
6.State of Madras v. G. Krishnan, AIR 1961 Mad 92.
7.Bhagvan Singh v. State of Punjab AIR 1952 SC 214.
8Epuru Sudhakar v. Govt. of A.P., AIR 2006 SC 338
9.(2014) 3 SCC 1
10.2015 (1) ACR 326 (SC)
11. Sher Singh v. State of Punjab, (1983) 2 SCC 344.
12Writ Petition (civil) 316 of 1999

Statutes

The Indian Penal Code, 1860

The Constitution of India, 1949

The Code of Criminal Procedure, 1973

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Books

Jain, MP; Indian Constitutional Law; Seventh edition, 2016; Lexis Nexis.

S.N. Mishra; Indian Penal Code; 20th edition; Central Law Publication

Websites

www.indiankanoon.org

www.scconline.in

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STATEMENT OF JURISDICTION

The counsels representing the petitioner have endorsed their pleadings before the Hon`ble High
Court of Purva Pradesh under Article 226 of the Constitution of Indica in which the Hon`ble Court
has the jurisdiction. Article 226, in The Constitution Of India 1950:

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relationto which it exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories.

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STATEMENT OF FACT

______________________________________________________________________________

The facts of the case are hereby, been summarized before the Hon’ble court:

1) Mr. Saini murdered his wife in a drunken rage at his house. The neighbors caught hold of
Mr. Saini and handed him to the police. Mr. Saini was tried by the Court and convicted of
offences punishable under S.302 of IPC and sentenced to life imprisonment in 1984.
2) Mr. Saini was then sent to central prison in Purva Prdesh, where he then became friend
with his cellmate Mr. Bagela. With time, they became friends, Mr. Bagela suggests Mr.
Saini to marry his daughter.
3) In the year 1987, Saini and Bagela both have been justified with the parole, from that
prison, and the marriage between Saini and Bagela’s daughter was formalized, after when
the Saini’s wife delivered with twin baby boys.
4) However, by the year 1990, Saini had started conjecturing the fidelity of his wife. One
night Saini was seized by rage. He seized an agricultural implement and hacked his wife
to death. He then killed his two children who were sleeping.
5) Through the point of view of the neighbors, who rushed there, Saini was trying to commit
suicide by hanging himself when they discovered him and overpowered him.
6) The lawyer was not interested in his case, due to which, he did not cross examine the
witnesses, nor produced any evidences on the behalf of the defenses. The Sessions Court
sentenced Saini under S.302 and 303 of the IPC to death.
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7) The matter was referred to a third judge of the High Court when division bench could not
come on consensus, third judge felt that there was no discretion in the matter and confirmed
the sentence of death. Mr. Saini submitted a mercy petition to the President of Indica which
came to be rejected in the year 1996.
8) Due to error on behalf of the prison authorities,Mr. Saini was however, not kept into the
death row cell prison, it; only in year in 2011that the same was discovered and the prisoner
was sent to death row confinement.
9) On 01.01.2013, the process of issue of black warrant regarding the execution of Mr. Saini
takes place. The very next day, lawyers representing a human rights organization filed a
writ petition claiming that Mr. Saini cannot be executed on the grounds that his trial is been
held by illegality and his execution would violate several provisions of the Constitution of
Indica.

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STATEMENT OF ISSUES

The following issues are raised before this Hon’ble court for adjudication in the instant matter:

1. WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE

226?
2. WHETHER THE TRIALOF THE EXECUTION WAS CONDUCTED OR
PROCEEDED FAIRLY OR LEGALLY?
3. WHETHER THE EXECUTION OF THE ACCUSED VIOLATING THE
PROVISIONS OF THE CONSTITUTION?

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SUMMERY OF ARGUMENTS:

1 WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226?

It is humbly submitted before this Hon’ble Court that, the writ of PIL has been maintainable, as it
set out regarding the public purposes, the this writ petition has been maintainable as public interest
litigation under article 226.

2 WHETHER THE TRIAL OF THE EXECUTION WAS CONDUCTED OR PROCEEDED

FAIRLY OR LEGALLY?

It is humbly submitted before this Hon’ble court that the trial of accused has been conducted by
enormous illegality. The lawyer was disinterested in the case due to which he did not cross examine
the witnesses nor produced any of the evidences by which the accused was somewhere, unaware
of his rights. Section 303 is unconstitutional, which shows the illegality of trial of an accused.

3 WHETHER THE EXECUTION OF THE ACCUSED VIOLATING THEPROVISIONS

OF THE CONSTITUTION?

It is humbly submitted before this Hon’ble court that the trial and the conviction of the accused
are violating his Fundamental rights regarding Article 14, 21 and 22 by High court, Executive and
State government. The Mercy petition which was also rejected by the President without taken the
relevant facts of the cases into consideration. The High court also sentenced Mr. Saini by section
303 of IPC, 1860 by overlooking the position of law.

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ADVANCED ARGUMENTS:

1 WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226?

It is humbly submitted before this Hon’ble court that, a writ when filed with the view of interest
of one person, and for a public purpose then the writ is said to be maintainable under article 2261.In
the case of Vaisakha v. State of Rajasthan2, the court also accepted the writ which was filed by
the NGO against the Stat of Rajasthan, its Women & Child Welfare Department, its Department
of Social Welfare, and the Union of India in order to restore the dignity of the victim. Thus, the
writ petition is been maintainable.

Supreme Court in the case of Kunhayammed v. State of Kerala 3, stated the implications and the
impacts of rejecting the SLP under the constitution of India. “Whatever be the phraseology
employed in the order of dismissal, it is non-speaking order, i.e., it would neither attract the
doctrine of merger so as to stand substituted in place of the order put in issue before it nor would
it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is
no law which has been declared. If the order of dismissal be supported by reasons then also the
doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate
jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal”

2015 CriLJ 4141

1

ndian Banks' Association, Bombay & Ors, v. Devkala Consultancy Service and Ors. AIR 2004
2I

SC 2615.
3[2000] 245 ITR 360 (SC).
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Thus, when SLP is dismissed, the same does not amount to confirmation by the Supreme Court
against the order in which leave was sought for.

2 WHETHER THE TRIAL OF THE EXECUTION WAS CONDUCTED OR PROCEEDED

FAIRLY OR LEGALLY?

It is humbly submitted before this Hon’ble court that the trial of the accused has vitiated by the
means of illegality which takes place in various areas. Firstly, he was convicted by the session
court under section 303 of IPC. which is just considered to be an unconstitutional provisionand
then the High court, also finally confirmed the punishment of the accused without applying its
discretion, and also without considering and ignoring the relevant facts, and ignoring the
illegalities of the trial.

2.1 DISINTEREST OF THE LAWYER TOWARDS THE CASE:

In the present case it is seen clear that the lawyer which was appointed in favor of the accused,
was not interested towards the case. As a result of which, the lawyer did not present any of the
cross witness and neither he produced any evidences on the behalf of the defense council. Due to
ineffectiveness of the defense counsel, accused was deprived of his significant rights during the
trial which finally resulted in his sentence to death.

First of all, it is the very fundamental and primary principle of jurisprudence, which says that the
cross – examination is an acid-test of the truthfulness of the statement made by a witness, the
objects of which are: 1) to destroy or weaken the evidentiary value of the witness of his adversary
2) To evoke or draw out the facts in favor of cross-examining lawyer's client from the mouth of
the witness of the adversary party. 3) To show that the witness is unworthy of belief by impeaching
the credit of the said witness. 4

The lawyer also did not even object for the sentence and decision of the session court which was
unconstitutional provision. It shows the ineffectiveness on the part of the lawyer for which the cost
has to pay by MR. Saini regarding his death sentence.5

4Kartar
Singh v. State of Punjab (1994 ) 3 SCC 569.
5Md.Sukur Ali v. State of Assam, AIR 2011 SC 1222; See also: Man Singh v. State of M.P., 2008 9 SCC 542;
BapuLimbajiKamble v. State of Maharashtra, (2005) 11 SCC 412.
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2.2 ILLEGALITY OF THE PROCEDURE FOLLOWED DURING THE TRIAL:

In the present case, the procedure which is been followed by the time of trial is clearly illegal. To
enhance the thinking towards this, we can see the basic and the foremost concept of the trial i.e.
the confession. The recording of statement is been mentioned under section 164 of Cr.P.C, which
is been done to record as a proof of confession, by a person in case, he may get charged under any
offence.6

But, in the present case, MR. Saini has confessed but in police custody, but however, when he
produced before the magistrate, under section (164) of Cr.P.C, he then refused to make the
statement.

And now regarding this concept, it can be said that, the accused has refused to make any
confession. Now, according to section 164(3) of Cr.P.C once accused refuses to give confession,
he has to be sent in judicial custody 7. However, in present case magistrate remanded him back to
the police custody.8 This is gross violation of section 164(3) of the Cr.P.C. and such negligence
committed by magistrate clearly establishes procedural illegality in the trial.By the period of the
trial was going on, the section 303 was kept as it is. The effort was not even made by the judicial
authority to check the provision such as of 303 which is unconstitutional, and to rectify according
to the necessity.

2.3 VIOLATION OF PRINCIPLE OF NATURAL JUSTICE:

It is clearly been seen that due to lack of interest of lawyer towards the case, the facts and the
evidences and cross- examination of the accused was not conducted fairly. And based on these
situations, the Session and the High court has ultimately taken decision and sentenced the accused
under section (303). And if the High Court judge confirm a death sentence without appreciating
the facts and evidence produced by both sides it is clearly a violation of Principle of Natural
hearing i.e. Audi Alteram Partem.

6State
of Madras v. G. Krishnan, AIR 1961 Mad 92.
7BhagvanSingh v. State of Punjab AIR 1952 SC 214.
8„Remand‟ meaning: to send back (as per Encyclopaedic law lexicon, pg. 4049)

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3 THE EXECUTION OF THE ACCUSED VIOLATING THE PROVISIONS OF THE

CONSTITUTION?

It is humbly submitted before this Hon’ble court that there is a violation of various fundamental
rights of MR. Saini regarding of Article 14, 21 & 22, by High Court, Executive and State
Government. First of all, the President of Indica has rejected Mr. Saini mercy petition without
taking relevant materials into consideration. Secondly, High Court has confirmed his death
sentence by overlooking the position of law related to Section 303 of IPC, 1860.Thirdly, State
government was also not able to fix a date of execution leading to constant torture & fear to the
accused.

3.1 THE MERCY PETITION REJECTED BY THE PRESIDENT:

In the present case, the mercy petition which is rejected by the President is rejected, without taking
the relevant facts into consideration, as because, at the time of rejecting the mercy petition the
report can be judicially reviewed. 9

In the Landmark Judgment of Shatrughan Chauhan v. Union of India,10 Apex Court held that
the power of the President per se under Article 72 of Constitution of India is beyond judicial
scrutiny but the materials that were relied upon by him to arrive at the conclusion can be reviewed.

Thus, the judicial trend over the year establishes that the power of the President under Article 72
of Constitution of India is to pass the order on mercy petition after thorough application of mind
taking into account all the relevant considerations which may or may not benefit the petitioner.
Since, the above positions has not been followed by the President in the present case the order
passed by the President is against the settled position of Law. Hence Mr. Saini should be given
benefit of the same.

3.2 VIOLATION OF ARTICLE 14 OF MR. SAINI:

9Epuru Sudhakar v. Govt. of A.P., AIR 2006 SC 3385.

10(2014) 3 SCC 1
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It is humbly submitted in the Hon’ble court that, in this case, the sentenced of death under section
303 of IPC, given by High court clearly shows the violation of ( equal protection of laws ), which
is guaranteed under Article 14 of the Constitution.

It is essential to mention here that, the section 303 of I.P.C, has already been held unconstitutional
in the case of Sher Singh v. State of Haryana11by a five judge constitutional bench of Supreme
Court of India on the ground of beingviolative of Article 14 of the Constitution.

3.3 VIOLATION OF ARTICLE 21 AND 22 OF MR. SAINI:

It is well known that, charging under the death sentences often leads to violation of article 21, and
there often violates the Right to Life. And here, in this case, due to delay on the part of the
execution of the MR. Saini somewhere getting mentally torture. Because, any person if knows
about his execution may gets him into mental illness and mental torture, which will be his clear
violation of (Right to life).12

Further, in case of Moorli S Deora v. Union of India,13the court observed that the fundamental
right guaranteed under Article 21 of the Indian Constitution, provides that no one shall deprived
of his life, without due process of law.

The legal aid was also not been given to the accused which is his clear violation of fundamental
rights, as because, the purpose of legal has been included in for the legal purposes, and not for
charity.

Therefore, it can be seen that there is a clear violation of fundamental rights regarding Article 14,
21 and 22 of MR. Saini.

112015 (1) ACR 326 (SC)

12Sher Singh v. State of Punjab, (1983) 2 SCC 344.
13Writ Petition (civil) 316 of 1999

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PRAYER:

Wherefore, in light of the facts stated, issues raised, authorities cited &arguments advanced,
Hon`ble Principal District and Sessions Court may be pleased to adjudge & declare that:

1. Petition is allowed.
2. Trial of Mr. Saini is vitiated by illegality.
3. There is violation of Article 14, 21 and 22 of Constitution of Indica.
4. Delay in the execution of Mr. Saini is unexplained and unreasonable.
5. Mr. Saini will not be executed.

AND

Pass any other order that it may deem fit in the interest of justice, equity & good conscience. All
of which is most humbly prayed.

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On the behalf of Petitioner

Council of state

Sd/

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