JAVED AHMED ABDUL HAMID PAWALA versus STATE OF MAHARASHTRA

Citation: [1985] 2 S.C.R. 8 · Decided: 09-11-1984 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Case Allowed
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Judgment (excerpt)

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JAVED AHMED ABDUL HAMID PA WALA 
v. 
STATE OF MAHARASHTRA 
November 9, 1984 
(0. CHINNAPPA REDDY AND E. S. VENKATARAMIAI!, JJ.] 
Constitution of lndia-Article 2I-Scope of-Protection of Art. 21 can be 
invoked by a person awaiting execution of sentence of death for corrrmutfng death 
sentence into imprison1nelit for life if there is delay exceeding twa years in the ex· 
ecution of sentence of death. 
Practice&: Procedure-A Division Bench of three Judges cannot purport to 
overrule deciJion of a Division Bench of two Judges. 
The petitioner was convicted and sentenced to death by the Sessions 
Juage on 6. 2. 1982 . The High Court confirme<j the sentence of death on 
29/30. 4. 1982. An appeal preferred by the petitioner to this Court under Art. 
136 of the Constitution was dismissed on 2:0. 4. 1983. The petition for review 
was dismissed on 12, 8. 1983. A petition for clemency was also rejected by the 
President of India. The petitioner filed the present writ petition under Art. 32 
of the Constitution praying that in view of his tender age, his reformation in 
jail and the Jon2 lapse of time since the passing of the sentence of death on him 
the execution of the sentence of death may be stopped and the sentence may be 
commuted to one of imprisonment for life. On being asJ..ed by this Court, the 
Superintend.::nt of the jail where the petitioner had been kept reported that so 
far nothing adverse to the petitioner had came to the notice of the authority. 
AUowina: the petition, 
HELD: In T. V. Vatheeswatan v. State of Tamil Nadu, a Division 
Bench of this Court consisting of one of us and R.B. Misra, J. held that making 
all reasonable allowance for the time necessary for appeal and consideration of 
reprieve, delay exceeding two years in the execution of a sentence of death 
should be considered sufficient to entitle. the person under sentence of death to 
invoke Art. 21 of the Constitution and demand the quashing of the sentence of 
death. ShortJy thereafter in Sher Singh v. State of Punjab, another Division 
Bench of three learned Judges of this Court presided over by Chandracbud, 
C.J while ~xpressing almost complete agreement with most of what had been 
said in Vathee1warants case dissented from the opinion expressed therein that a 
delay of two years and more was sufficient to entitle a person under sentence of 
death to invoke Art 21. of the Constitution. The reason was, they said ''The 
fixation of time limit of two years does not seem to us to accord with the 
.I.A.A. HAMiD v. MAHARASHTRA (Chinnappa Reddy, i.) 
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common experience of the time normally consumed by the litigative process and 
the proceedings before the executive". They also said that besides.delay there 
were also other factors to be taken into account while considering the question 
whether the sentence of death should be vacated. Referred Trials and Confir-
mations Cases are dealt with speedily by High Courts and are never kept pen-
ding longer than two or three months. It is only when they reach this Court 
that the delay occurs. But surely, our inability to devise a procedure to deal 
expeditiously with such matters of life and death can be no justification for 
silencing what the learned Chief Jllstice has himself so eloquently described as 
'the voice of justice and fairplay' which demands -that 'so long as life lasts, so 
long shall it be the duty and endeavour of this ~Court to give to the provisions 
of our Constitution a meaning which will prevent human suffering and 
degradation. [17A-F] 
T. V. Vatheeswaran v. State of Tamil Nadu, [1983) 2 S. C.C. 68, Furman 
v. State ofCeorgia, 408 US 238, Noel Riley v. Attorney-General, 1982 Cr!. Law 
Review 679 and Sher Singh v. State of Punjoh, AIR 1983 SC 465, referred to. 
Whether a Division Bench of three Judges can purport to overrule the 
judgment of a Division Bench of two Judges merely because three is larger than 
two. The Court sits in Divisions of two and three Judges for the sake of 
convenience and it may be in-appropriate for a Divii,ion Bench of three Judges 
to purport to overrule the decision of a Division Bench of two Judges. Vide 
Young .v. Bristol Aeroplane Co. Ltd. It may b~ otherwise where a Full Bench 
or a Constitution Bench does so. [l?G-H; ISA] 
Young v. Bristol Aeroplane Co. Ltd., 1944 (2) All ER. 293, referred to. 
In the instant case, an over all view of all the circumstances appears to us 
to entitle the petitionrr to invoke the protectio
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