advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, August 27, 2015

The appellants were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana in appeal and eventually by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012 before this Court for a declaration that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty. = whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative. A sentence of death in a case of murder may be rare, but, if the courts have, upon consideration of the facts and evidence, found that the same is the only sentence that can be awarded, it is difficult to revisit that question in collateral proceedings like the one at hand.

                                                     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.824 OF 2013


Vikram Singh @ Vicky & Anr.                  …Appellants

Vs.

Union of India & Ors.                        …Respondents



                               J U D G M E N T

T.S. THAKUR, J.

1.     This  appeal,  by  special  leave,  arises   in   somewhat   peculiar
circumstances. The appellants were tried, convicted and sentenced  to  death
for commission of offences punishable under Sections 302  and  364A  of  the
Indian Penal Code, 1860. The conviction and sentence  awarded  to  them  was
affirmed by the High Court of Punjab and Haryana in  appeal  and  eventually
by this Court in Criminal Appeals No.1396-1397 of 2008. The  appellants  did
not, however, give-up. They filed Writ Petition (Crl.) D  No.15177  of  2012
before this Court for a declaration that Section 364A inserted  in  the  IPC
by Act 42 of 1993 was ultra vires the Constitution to the  extent  the  same
prescribes death sentence for anyone found guilty.  The  petitioner  further
prayed for quashing the death sentence awarded  to  the  petitioner  by  the
trial court as affirmed by the High Court and  by  this  Court  in  Criminal
Appeals No.1396-1397 of  2008.  A  mandamus  directing  commutation  of  the
sentence awarded to the petitioner to imprisonment for life was also  prayed
for. The  writ  petition  was  eventually  withdrawn  with  liberty  to  the
petitioners to approach the  jurisdictional  High  Court  for  redress.  The
appellant, thereafter, moved  the  High  Court  of  Punjab  and  Haryana  at
Chandigarh in CWP No.18956 of 2012 praying  for  a  mandamus  striking  down
Section 364A of the IPC and for an order restraining the  execution  of  the
death sentence awarded to them. Reopening of the case of the appellants  and
commutation of the death  sentence  for  imprisonment  for  life  were  also
prayed for in the writ petition. A Division  Bench  of  the  High  Court  of
Punjab and Haryana has, while dismissing the said petition by  its  judgment
and order dated 3rd October, 2012, taken the view that the question  whether
Section 364A of the IPC was attracted to the case  at  hand  and  whether  a
person found guilty of an offence punishable under the  provision  could  be
sentenced to death was not only raised by  the  appellants  as  an  argument
before this Court in appeal filed  by  them,  but,  was  noticed  and  found
against them. The High Court while  saying  so  relied  upon  the  following
passage of the judgment of this Court in the appeal filed by the  appellants
against their conviction:

“…  A plain reading of the Objects and Reasons which led  to  the  amendment
shows the concern of Parliament in dealing  with  kidnapping  for  ransom  a
crime which called for a deterrent punishment, even  in  a  case  where  the
kidnapping had not resulted in the death  of  the  victim.   The  statistics
further reveal that  kidnapping  for  ransom  had  become  a  lucrative  and
thriving industry all over the country which must  be  dealt  with,  in  the
harshest possible manner and an obligation rests on Courts as well.   Courts
to lend a helping hand in that direction. In the case  before  us,  we  find
that not only was Abhi Verma kidnapped for ransom which act would by  itself
attract the death penalty but  he  was  murdered  in  the  process.   It  is
relevant that even before the aforesaid amendments, this  Court  in  Henry’s
case (supra) observed that death sentence could be awarded even  in  a  case
of kidnapping and murder based on circumstantial evidence...”



2.    The High Court further held that the question of quantum  of  sentence
had also been examined by this Court  in  the  following  paragraph  of  the
judgment delivered in the criminal appeal filed by the appellants:

“24. Some of the judgments aforesaid refer to the ongoing debate as  to  the
validity and propriety of the death sentence in  a  modern  society.   There
are the moralists who say that as God has  given  life,  he  alone  has  the
right to take it away and this privilege cannot  be  usurped  by  any  human
being.  There are others who believe  that  the  death  sentence  cannot  be
taken as a retributive or deterrent factor as the statistics show  that  the
possibility of a death sentence has never acted as a  deterrent  to  serious
crime. The theory which is widely accepted in India,  however,  is  that  as
the death penalty is on the statute book it has to be awarded  provided  the
circumstances justify it. The  broad  principle  has  been  laid  in  Bachan
Singh’s case (supra) as the “rarest of the rare cases”.  Bachan  Singh  case
has been followed by a series of judgments of  this  Court  delineating  and
setting out as to the kind of matters that would fall within this  category.
In Machhi Singh & Ors. Vs. State of Punjab 1983 (3) SCC 470 this Court  gave
an indication as to what could constitute this category…”



3.    The High Court on the above reasoning concluded that  this  Court  had
considered the nature of the offence and  its  gravity  and  held  that  the
appellants deserved the maximum punishment prescribed for both the  offences
proved against them. The High Court held that the  plea  now  sought  to  be
raised by the writ-petitioners to the effect that Section 364A  of  the  IPC
was attracted only when the offence was committed against the government  or
a foreign country etc. or that no such offence was made out in the  case  of
the petitioners, had been  examined  and  decided  against  the  petitioners
which plea could not be  re-agitated  by  them  in  collateral  proceedings.
Having said that the High Court proceeded to examine the plea raised by  the
appellants on its merit, referred to the historical background in which  the
provisions of Section 364A were added to the  statute  book  and  held  that
Section 364A of IPC, even in the form in which it was initially  introduced,
made kidnapping by any person in the circumstances  indicated  in  the  said
provision an offence no matter at the time of initial insertion  of  Section
364A, India was not committed to the International  Convention  Against  the
Taking of Hostages, 1979 to which it became a party only on  7th  September,
1994. It was only thereafter that Section 364A was  amended  to  incorporate
the  expression  “any  foreign  state  or  international  inter-governmental
organization or any other person” to honour the commitment  under  the  said
Convention. The High Court, accordingly, repelled the argument that  Section
364A was attracted only in situations where kidnapping was meant  to  coerce
the government or any international organization  to  do  or  not  to  do  a
particular act  including  the  demand  for  payment  of  ransom.  The  writ
petition was,  on  that  reasoning,  dismissed  by  the  High  Court,  which
dismissal is what is under challenge in this appeal before us.

4.    When the appeal initially came up before a  two-Judge  Bench  of  this
Court, the same was directed to be placed  before  a  larger  Bench  for  an
authoritative pronouncement  especially  because  the  appellants  had  been
awarded a death sentence which stood  affirmed  by  a  Bench  of  coordinate
jurisdiction. That is precisely how the matter has come  up  before  us  for
final hearing.

5.    Appearing for the appellants, Mr. Tripurari Ray followed by M/s  Altaf
Ahmad and R.S. Sodhi, senior advocates, who appeared  for  the  interveners,
strenuously argued that Section 364A  of  the  IPC  was  attracted  only  in
situations where an  offence  was  committed  against  the  Government,  any
foreign  State  or  international   inter-governmental   organisation.   The
provision, argued the learned counsel, had no application to  situations  in
which a victim was abducted or kidnapped for ransom demand  from  a  private
individual. The provisions of Section 364A, it was contended, were meant  to
deal with kidnapping by terrorists  for  ransom  or  where  terrorists  take
hostages with a view to compelling the Government  or  a  foreign  State  or
international inter-governmental organisation to do or  abstain  from  doing
any act including payment of ransom.

6.    On behalf of the respondents, it was contended by  Mr.  Ranjit  Kumar,
Solicitor General, that the question whether Section 364A IPC was  attracted
to the fact situation of the case at hand was examined and decided  by  this
Court  in  the  criminal  appeal  filed  by  the  appellants  against  their
conviction and sentence. The view taken by this Court in the  appeal  having
attained finality, it was not open  to  the  appellants  to  re-agitate  the
issue in collateral proceedings. Reliance in support of that submission  was
placed upon the decisions of this Court in Naresh Shridhar Mirajkar etc.  v.
State  of  Maharashtra  (AIR  1967  SC  1),  Prem  Chand  Garg   v.   Excise
Commissioner, U.P., Allahabad (AIR 1963 SC 996) and  Rupa  Ashok  Hurra   v.
Ashok Hurra and Anr. (2002) 4 SCC 388.

7.    Alternatively, it was contended that  Section  364A  of  the  IPC  was
widely worded to cover not only situations where  terrorists  take  hostages
to compel the Government or a foreign  State  or  any  international  inter-
governmental organisation but also where any person abducts or  kidnaps  the
victim for no more than compelling payment of ransom by the  family  of  the
victim. It was contended that  the  High  Court  had  rightly  analysed  the
provisions, examined the historical perspective to hold  that  Section  364A
was not  confined  only  to  cases  involving  acts  of  terrorism  but  was
attracted even in cases where the crime is committed for securing ransom.

8.    There is no gainsaying that in an appeal directed against an order  of
conviction and  sentence,  the  appellant  is  entitled  to  urge  all  such
contentions as are open to him in law and on facts. One of  the  contentions
open to the aggrieved convict in such cases  is  that  the  provision  under
which he has been convicted has no application  to  his  case  or  that  the
ingredients  of  the  offence  with  which  he  has  been  charged  are  not
established to justify his conviction. It follows that the  contention  that
Section 364A was  not  attracted  in  the  present  case  was  open  to  the
appellants and was in fact advanced on their behalf in the appeal  filed  by
them. Not only that, the contention was examined and rejected.  So  long  as
that rejection holds the field, there is no  room  for  this  Court  or  any
other court for that matter to take  a  contrary  view.  The  writ  petition
filed by the appellants to the extent the same sought to urge  that  section
364A was not attracted to the case at hand was, thus,  not  maintainable  in
law.
9.    In Rupa Ashok Hurra’s case  (supra),  a  Constitution  Bench  of  this
Court examined the options available to a  litigant  aggrieved  of  a  final
judgment/order of this Court after the  dismissal  of  the  review  petition
filed by him. This Court reviewed the case law on the subject and held  that
a final judgment/order passed  by  this  Court  cannot  be  assailed  in  an
application under Article 32 of the Constitution of India  by  an  aggrieved
person regardless whether he was or was not a party to the case. This  Court
also examined  the  competing  considerations  of  giving  finality  to  the
judgments of the Court of last resort, on the one  hand,  and  the  need  to
dispense justice on reconsideration of a judgment  on  the  other  and  held
that in rarest of rare  situations,  a  final  judgment  of  the  Court  may
require re-consideration to set right the miscarriage of justice  complained
of. In such cases it would not only be proper but even  obligatory  for  the
Court to both legally and morally rectify  the  error.  This  Court  further
held that the duty to do justice in such rarest of rare cases shall  prevail
over the policy of certainty or finality of  judgments.  The  following  two
passages from the decision are apposite:
“40. The petitioners in these writ petitions seek  re-consideration  of  the
final judgments of this Court after they have been  unsuccessful  in  review
petitions and in that these cases are different from the cases  referred  to
above. The provision of Order XL Rule 5 of  the  Supreme  Court  Rules  bars
further application for review in the same matter. The concern of the  Court
now is whether any relief can be given to the petitioners who challenge  the
final judgment of this Court, though after  disposal  of  review  petitions,
complaining of the gross abuse  of  the  process  of  Court  and  irremedial
injustice. In a State like India, governed by rule of law, certainty of  law
declared and the final decision rendered on merits  in  a  lis  between  the
parties by the highest court in the country is of paramount importance.  The
principle of finality is insisted upon not on the  ground  that  a  judgment
given  by  the  apex  Court  is  impeccable  but  on  the  maxim   "Interest
reipublicae ut sit finis litium”.

41. xxxxxxxxxx

42. The concern of this Court for rendering justice in a cause is  not  less
important than the principle of finality of its judgment. We are faced  with
competing principles - ensuring certainty and finality of a judgment of  the
Court of  last  resort  and  dispensing  justice  on  reconsideration  of  a
judgment on the ground that  it  is  vitiated  being  in  violation  of  the
principle of natural justice or giving scope for apprehension  of  bias  due
to a Judge who participated in the decision making  process  not  disclosing
his links with a party to the case or on account of abuse of the process  of
the court. Such a judgment, far from ensuring finality, will  always  remain
under the cloud of uncertainty. Almighty alone is the dispenser of  absolute
justice - a concept which is not disputed but by a few. We are of  the  view
that though Judges of the highest Court do their best, subject of course  to
the limitation of human  fallibility,  yet  situations  may  arise,  in  the
rarest of the rare cases, which would require  reconsideration  of  a  final
judgment to set right miscarriage of justice complained of. In such case  it
would not only be proper but also obligatory both  legally  and  morally  to
rectify the error. After giving our anxious consideration to  the  question,
we are persuaded to hold that the duty to do  justice  in  these  rarest  of
rare cases shall have to prevail over the policy of  certainty  of  judgment
as though it is essentially in public interest that a final judgment of  the
final court in the country should not be open to challenge,  yet  there  may
be circumstances, as mentioned above, wherein declining  to  reconsider  the
judgment would be oppressive to judicial conscience and  cause  perpetuation
of irremediable injustice.”



10.   In the case at hand, the writ petition filed by the  appellants  under
Article 32 of the Constitution of India  was  dismissed  as  withdrawn  with
liberty reserved to the appellants to approach the High Court. Even  so,  in
the light of the pronouncement of this Court  in  Rupa  Ashok  Hurra’s  case
(supra), if against a final  judgment  of  this  Court,  a  remedy  was  not
available under Article 32 of the Constitution the same would  also  not  be
available under Article 226. If this Court could not take resort to  Article
32 for reopening for examination its final judgement, the High  Court  could
also not do so under Article 226.  The  only  remedy  which  the  appellants
could resort to  in terms of the view  taken  in  Rupa  Ashok  Hurra’s  case
(supra) is by invoking this Court’s inherent powers under Articles  129  and
142 of the Constitution of India for recall,  reversal  or  modification  of
the order passed  by  this  Court  in  the  criminal  appeal  filed  by  the
appellants. A writ petition before  the  High  Court  for  that  relief  was
clearly untenable in law.
11.   Legal impediments in  the  choice  of  the  remedy  available  to  the
appellants have not dissuaded the High Court from  examining  and  answering
the contentions sought to be raised on  the  merits  of  the  case.  We  too
propose to go into the merits of the contentions  urged  on  behalf  of  the
appellants, no matter it may not be necessary to do so in the light of  what
we have said about the maintainability of the  proceedings  brought  by  the
appellants. We do so not only because the matter was argued at  considerable
length before us but also because the lives of the appellants  hang  in  the
balance.  We will, therefore,  be  loathe  in  shutting  out  the  arguments
advanced on behalf of the appellants on  a  technical  ground  touching  the
maintainability of the petition filed by the appellants.
12.   Any attempt to properly understand  the  true  scope  and  purport  of
Section 364A must, in our opinion, start with the historical  background  in
which the provision came on the statute book. When we do so,  we  find  that
the proposal for addition of Section 364A  to  the  Indian  Penal  Code  was
first modified by the Law Commission of India in its 42nd  Report  submitted
in 1971. The relevant portion of the report reads as under:

“16.100 We consider it desirable  to  have  a  specific  section  to  punish
severely kidnapping or abduction for ransom, as such cases  are  increasing.
At present, such kidnapping or abduction is  punishable  under  Section  365
since the kidnapped or abducted  person  will  be  secretly  and  wrongfully
confined.

We also considered the question whether a provision for  reduced  punishment
in case of release of the person kidnapped without harm should be  inserted,
but we have come to the conclusion that there is no need for it. We  propose
the following section:-

“364A. Kidnapping or abduction for ransom – Whoever kidnaps or  abducts  any
person with intent to hold that person for ransom  shall  be  punished  with
rigorous imprisonment for a term which may extend to  14  years,  and  shall
also be liable to fine.”

xxxxxxxxxxxxxxxxxxx



                                 Chapter 25

                         SUMMARY OF RECOMMENDATIONS

25.1. xxxxxxxxxxx

A brief summary of the principal recommendations made  in  each  chapter  is
given below:

xxxxxxxxxxxxxxx

(14)  Kidnapping or abduction for ransom should be  an  aggravated  form  of
the  offence  of  kidnapping   or   abduction   punishable   with   rigorous
imprisonment upto fourteen years and fine.”



13.   The recommendations of the Law Commission appear  to  have  languished
for nearly two decades before the Criminal Law (Amendment)  Bill,  1992  was
presented to the Parliament by the Government proposing to add  to  the  IPC
Section 364A in a form slightly different from the  one  in  which  the  Law
Commission had recommended such addition. What is important is that  in  the
statement  of  Objects  and  Reasons,  accompanying  the  bill,  a  two-fold
justification was given by the Government for the proposed addition  namely:
(i) that kidnappings by terrorists for ransom  for  creating  panic  amongst
the people and for securing release  of  their  associates  and  cadres  had
assumed serious dimensions and (ii) The  Law  Commission  had  in  its  42nd
Report  recommended  a  specific  provision  to  deal  with  the  menace  of
kidnapping and abductions  for  ransom.  The  Bill  eventually  led  to  the
Criminal Law Amendment Act 1993 (Act 42 of 1993), introducing  Section  364A
to the Indian Penal Code with effect from 22nd May, 1993, in  the  following
words:

”364A. Kidnapping for ransom, etc.— Whoever kidnaps or  abducts  any  person
or keeps a person in  detention  after  such  kidnapping  or  abduction  and
threatens to cause death or hurt to such person, or  by  his  conduct  gives
rise to a reasonable apprehension that such person may be put  to  death  or
hurt, or causes hurt or  death  to  such  person  in  order  to  compel  the
Government or any other person to do or abstain from doing  any  act  or  to
pay a ransom, shall be punishable with death, or imprisonment for life,  and
shall also be liable to fine.”



14.   Shortly after the introduction of the above provision arose  the  need
for an amendment to the same. The amendment was necessitated  by  reason  of
India acceding  to  the  international  convention  against  the  taking  of
hostages adopted by the General assembly  of  the  United  Nations  on  17th
December, 1979 in the background of Iranian hostage crisis.  The  Convention
aimed at fighting international terrorism, came into force with effect  from
3rd June, 1983 but was acceded to by India with effect from  7th  September,
1994.

15.   The Indian Penal Code (Amendment) Bill 1994, Bill No.LXV of 1994  was,
in the above background, introduced in the Rajya Sabha on 25th August,  1994
to amend Section 364A so as to substitute the expression “any other  person”
by  the  words  “any  foreign  State  or  international   inter-governmental
organisation or any other person” in the  said  section.  The  Statement  of
Objects and Reasons for the amendment also gave the background in which  the
amendment was considered necessary. The Statement  of  Objects  and  Reasons
accompanying the bill were as under:

“STATEMENT OF OBJECTS AND REASONS

An international convention against the taking of Hostages  was  adopted  by
the United Nations General Assembly on the 17th December, 1979

The said convention seeks to develop international cooperation  between  the
states  in  devising  and  adopting  effective   measures   for   prevention
prosecution and punishment of all acts of hostage taking.

India has decided to accede to the said convention since it is  one  of  the
important conventions aimed at fighting  international  terrorism.  For  the
purpose of implementing the convention it is proposed to amend section  364A
of the Indian Penal Code  which  provides  punishment  for  the  offence  of
kidnapping for ransom etc.  It is proposed to widen the scope  of  the  said
section by including therein situations where the offence is committed  with
a view to compelling foreign  states  or  international  inter  governmental
organisations to do or abstain from doing any act or to pay a ransom.

The bill seeks to achieve the above object.”


16.   A Committee of Home Affairs constituted by Rajya  Sabha  examined  the
issue and submitted a report dated 29th November, 1994  in  support  of  the
amendment to Section 364A. The existing Section 364A  did  not,  it  opined,
take care of situation where the  offence  was  committed  with  a  view  to
compel a foreign State or international inter-governmental  organisation  to
do or abstain from doing any act or paying ransom. The relevant  extract  of
the Report is as under:

“In its note furnished to  the  Committee,  the  Ministry  of  Home  Affairs
explained the background and the necessity for  amending  section  364-A  of
the Indian Penal Code, 1860, as under:-

An International Convention Against the Taking of Hostages  was  adopted  by
the General Assembly of the United Nations  on  17th  December,  1979.   The
Convention was adopted in the  background  of  Iranian  hostage  crisis  and
aimed at fighting  international  terrorism.  The  Convention  entered  into
force on 3rd June, 1983.

As per the Convention, if any person seizes  or  detains  and  threatens  to
kill, to injure or to continue to detain another person in order  to  compel
a  third   party,  namely,  a  State,  an  International  inter-governmental
organisation, a natural or juridical  person or a group of persons to do  or
abstain from doing any act as an explicit  or  implicit  condition  for  the
release of the hostages, it will constitute the offence of hostage taking.

India acceded to the Convention with effect from 7th September, 1994.

At present, the offence of hostage taking is not defined in the Indian  law.
However, vide Criminal Law (Amendment) Act, 1993, Section 364A was added  to
the Indian Penal Code  to  make  kidnapping  for  ransom,  etc.  An  offence
punishable with  death  or  imprisonment  for  life  and  also  fine.   This
provision read with other provisions of the Indian Penal  Code  on  abetment
and  attempt,  would  already  cover  hostage  taking,  as  defined  in  the
Convention to the extent that this Act  is  confined  to  the  territory  of
India. Section 364A IPC does not take care of situations where  the  offence
is committed with a view  to  compelling  foreign  States  or  international
inter-governmental organisation to do or abstain from doing any  act  or  to
pay a ransom.



Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the  said
section  364A  on  kidnapping  for  ransom,  etc.  to  make  it  clear  that
kidnapping a person to  compel  the  Government  or  any  foreign  State  or
international  inter-governmental  organization  or  any  other  person   is
punishable under that section.”


17.   It is evident from the above that Section 364A  came  on  the  statute
book initially in the year 1993 not only because  kidnapping  and  abduction
for ransom were becoming rampant and  the  Law  Commission  had  recommended
that a separate provision making the same  punishable  be  incorporated  but
also because activities of terrorist  organisations  had  acquired  menacing
dimensions that called for an effective  legal  framework  to  prevent  such
ransom situations and punish those responsible for  the  same.  It  is  also
manifest that the further amendment to Section 364A in the year 1994  simply
added the expressions “foreign  state  or  international  inter-governmental
organisation” to the provision without deleting the pre-existing  expression
“any other person”.

18.   A conspectus  of  the  above  leaves  no  manner  of  doubt  that  the
expression “any other person” appearing in Section 364A right from the  time
of its initial incorporation in the Code was meant to apply  the  provisions
not only to situations where the Government was asked to pay  ransom  or  to
do any other act but even to situations where any other person  which  would
include a private person also  was  asked  to  pay  ransom.  The  subsequent
amendment in the year 1994 also did not remove  the  expression  “any  other
person” in Section 364A  while  adding  the  expression  “foreign  State  or
international  inter  Government  organisation”  to  the  provision  as   it
originally existed.

19.   There is nothing  in  the  provision  to  suggest  that  the  same  is
attracted only in ransom situations arising in acts  of  terrorism  directed
against  the  Government  or  any  foreign  state  or  international  inter-
governmental organization. The language employed in  the  provision  is,  in
our view, wide enough to cover even cases where the  demand  for  ransom  is
made not as a part of any terrorist act but also for monetary  gain  from  a
private individual.
20.   It was next argued  by  Mr.  Sodhi  that  kidnapping  for  ransom  was
already covered by the  existing  provisions  in  the  IPC.  He  urged  that
Sections 359,  360  and  361  of  the  IPC  deal  with  ‘kidnapping’,  which
according to Section 359 is of two kinds  viz.  kidnapping  from  India  and
kidnapping from  lawful  guardianship.  ‘Kidnapping  from  India’  is  under
Section 360 of the  IPC  while  ‘kidnapping  from  lawful  guardianship’  is
covered by Section 361 of the IPC. Both the situations are  made  punishable
under Section 363 of the IPC with imprisonment for a term which  may  extend
to seven years besides fine. ‘Abduction’ defined in Section 362 of the  IPC,
is not by itself punishable as is the case with kidnapping.

21.   Section 383 of the IPC defines ‘extortion’, while Section 384  of  the
IPC makes the same punishable with imprisonment that  may  extend  to  three
years, or with fine, or with both. Similarly, Sections 386,  387,  388,  389
of the IPC deal with aggravated forms of extortion  and  are  made  suitably
punishable. It was contended that once a person  is  kidnapped  and  put  in
fear of death or injury to coerce the  person  so  kidnapped  or  any  other
person to deliver any property  or  valuable  security  or  anything  signed
which may be converted into a valuable security  can  be  punished  suitably
under the provisions mentioned above. This, according to Mr.  Sodhi  implies
that the existing provisions  in  the  IPC  were  sufficient  to  deal  with
ordinary situations involving kidnapping  for  ransom,  thereby,  making  it
unnecessary for the Parliament to introduce  Section  364A  of  the  IPC  to
cover an ordinary crime situation. The corollary, according  to  Mr.  Sodhi,
is that Section 364A was added only to deal with  terrorist  related  ransom
situations and not ordinary crimes, like the one in the case at hand.

22.   The argument though attractive does not stand on closer scrutiny.  The
reasons are not far to seek.  Section 364A  has  three  distinct  components
viz. (i) the person concerned kidnaps or abducts  or  keeps  the  victim  in
detention after kidnapping or abduction; (ii) threatens to  cause  death  or
hurt or causes apprehension of death or hurt or  actually  hurts  or  causes
death; and (iii) the kidnapping, abduction or detention and the  threats  of
death or hurt, apprehension for such death or hurt or actual death  or  hurt
is caused to coerce the person concerned or someone else to do something  or
to forbear from doing something or to pay ransom. These ingredients are,  in
our opinion, distinctly  different  from  the  offence  of  extortion  under
Section 383 of the IPC. The deficiency in the existing legal  framework  was
noticed by the Law Commission and  a  separate  provision  in  the  form  of
Section 364A proposed for  incorporation  to  cover  the  ransom  situations
embodying the ingredients mentioned above. The argument that  kidnapping  or
abduction for ransom was effectively covered under the  existing  provisions
of the IPC must, therefore, fail.

23.   We may before parting with this aspect of the matter  also  deal  with
the argument that the expression ‘any other  person’  appearing  in  Section
364A ought to be read ejusdem generis  with  the  expression  preceding  the
said words. The argument needs notice only  to  be  rejected.  The  rule  of
ejusdem generis is a rule of construction and not  a  rule  of  law.  Courts
have to be very careful in applying the rule  while  interpreting  statutory
provisions. Having said that the rule applies in situations  where  specific
words forming a distinct genus class or category  are  followed  by  general
words. The first stage of any forensic application of the  rule,  therefore,
has to be to find out whether the preceding words constitute a  genus  class
or category so that the general words that follow  them  can  be  given  the
same colour as the words preceding. In cases where it  is  not  possible  to
find the genus in the use of the words  preceding  the  general  words,  the
rule of ejusdem generis will have no application.

24.   In M/s.  Siddeshwari Cotton Mills (P) Ltd.  v.   Union  of  India  and
Anr. (1989) 2 SCC 458 M.N. Venkatachaliah, J., as  His  Lordship  then  was,
examined the rationale underlying ejusdem generis as a rule of  construction
and observed:

“14. The principle underlying this approach  to  statutory  construction  is
that the subsequent general words were only intended to guard  against  some
accidental omission in the objects of the kind mentioned  earlier  and  were
not intended to extent to objects of a wholly  different  kind.  This  is  a
presumption and operates unless there is some contrary indication.  But  the
preceding words or expressions of restricted meaning must be susceptible  of
the import that they represent a class. If no class can  be  found,  ejusdem
generis rule is not attracted and such broad construction as the  subsequent
words may admit will be favoured. As a learned author puts it:



 ..... if a class can be found, but the specific words  exhaust  the  class,
then rejection of the rule may be favoured because its adoption  would  make
the general words unnecessary;  if,  however,  the  specific  words  do  not
exhaust the class, then adoption of the rule may  be  favoured  because  its
rejection would make the specific words unnecessary."



(See: Construction of Statutes by  EA  Driedger  P.  95  quoted  by  Francis
Bennion in his tatutory Construction, pp. 829 and 830)



25.    Relying  upon  the  observations  made  by  Francis  Bennion  in  his
“Statutory Construction” and English decisions in SS  Magnhild  v.  McIntyre
Bros. & Co. (1920) 3 KB 321 and those rendered by this  Court  in  Tribhuban
Prakash Nayyar v. Union of India (1969) 3 SCC 99,  UPSEB  v.   Hari  Shanker
(1978) 4  SCC  16,  his  Lordship  summed-up  the  legal  principle  in  the
following words:

“19. The preceding words  in  the  statutory  provision  which,  under  this
particular rule of construction,  control  and  limit  the  meaning  of  the
subsequent words must represent a genus  or  a  family  which  admits  of  a
number of species or members. If there is only one species it cannot  supply
the idea of a genus.”



26.   Applying the above to the case at hand,  we  find  that  Section  364A
added to the IPC made use of only two expressions viz. ‘government’ or  ‘any
other person’.  The Parliament did  not  use  multiple  expressions  in  the
provision constituting a distinct genus class or  category.   It  used  only
one single expression viz. ‘government’ which does not constitute  a  genus,
even when it may be a specie. The situation, at hand,  is  somewhat  similar
to what has been enunciated in ‘Craies on Statute Law’ (7th Edn.)  at  pages
181-182 in the following passage:

"The modern tendency of the law, it was said, [by  Asquith  J  in  Allen  v.
Emmerson (1944) KB 362)] is " to attenuate the application of  the  rule  of
ejusdem generis." To invoke the application  of  the  ejusdem  generis  rule
there must be a distinct genus category. The specific words must  apply  not
to different objects of a widely differing character but to something  which
can be called a class or kind of objects. Where this is  lacking,  the  rule
cannot apply, (Hood-Barrs v. IRC (1946) 2 All ER 768) but the mention  of  a
single species does not constitute a genus. (Per Lord Thankerton  in  United
Towns Electric Co. Ltd. v. Attorney General for Newfoundland  (1939)  1  All
ER 423). "Unless you can find a category," said Farwell L.J.,  (in  Tillmans
and Co. v. S.S. Knutsford (1908) 2  KB  385)  "there  is  no  room  for  the
application of the ejusdem  generis  doctrine,"  and  where  the  words  are
clearly wide in their meaning they ought not to be qualified on  the  ground
of their association with other words.  For  instance,  where  a  local  Act
required that "theatres and other places of public entertainment" should  be
licensed, the question arose whether a  "fun-fair"  for  which  no  fee  was
charged for admission was within the Act. It was held to  be  so,  and  that
the ejusdem generis rule did not apply to confine the words  "other  places"
to places of the same kind as theatres. So the insertion of such words as  "
or things  of  whatever  description"  would  exclude  the  rule.  (Attorney
General v. Leicester Corporation (1910) 2 Ch. 359). In N.A.L.G.O. v.  Bolton
Corpn. (1943) AC 166) Lord Simon L.C. referred to a definition of  "workman"
as any person who has  entered  into  a  works  under  a  contract  with  an
employer whether the contract be by way of manual labour, clerical work  "or
otherwise" and said: "The use of the words ’or  otherwise’  does  not  bring
into play the ejusdem generis principle: for ’manual labour’  and  ’clerical
work’ do not belong to a single limited genus" and Lord Wright in  the  same
case said: "The ejusdem generis rule is often useful or convenient,  but  it
is merely a rule of construction, not a rule of law. In the present case  it
is entirely inapt. It presupposes a ’genus’ but here the only ’genus’  is  a
contract with an employer".

                                        (emphasis supplied)



27.   The above passage was quoted with approval by  this  Court  in  Grasim
Industries Ltd. v.  Collector of Customs, Bombay (2002) 4  SCC  297  holding
that  note  1(a)  of  Chapter  84  relevant  to  that  case  was  clear  and
unambiguous.  It did not speak of a class, category  or  genus  followed  by
general words making the rule of ejusdem generis inapplicable.

28.   There is yet another angle from which the issue  can  be  viewed.  The
term ‘person’ used in  the  expression  ‘any  other  person’,  appearing  in
Section 364A of the IPC must be  understood  as  referring  to  ‘person’  as
defined in Section 11 of the IPC. Section 11 of the  IPC  defines  the  term
‘person’ as under:

“The word “person” includes any Company or Association or body  of  persons,
whether incorporated or not.”



29.   This would mean that the  term  ‘person’  appearing  in  Section  364A
would  include  a  company  or  association  or  body  of  persons   whether
incorporated  or  not,  apart  from  natural  persons.  The  tenor  of   the
provision, the context  and  the  statutory  definition  of  the  expression
‘person’ all militate against any attempt to restrict  the  meaning  of  the
term ‘person’ to the  ‘government’  or  ‘foreign  State’  or  ‘international
inter-governmental organisations’ only.


30.   That brings us to the only other contention urged  on  behalf  of  the
appellants. It was argued that Section 364A to the extent it denied  to  the
Courts the  discretion  to  award  a  sentence  other  than  death  or  life
imprisonment was ultra  vires  of  the  right  to  life  guaranteed  to  the
appellants  under  Article  21  of  the  Constitution.   Support  for   that
proposition was drawn from the decision of  this  Court  in  Mithu  etc.  v.
State of Punjab etc. (1983) 2 SCC 277 whereby a Constitution Bench  of  this
Court, struck down Section 303 of the IPC as unconstitutional. It was  urged
that denial of judicial discretion to award a sentence other than death  was
held by this Court to be a reason  good  enough  to  declare  the  provision
constitutionally invalid.  Since  Section  364A,  also  did  not  leave  any
discretion with the Court in the matter of sentence  except  death  or  life
imprisonment, it was on a parity of reasoning liable to be  struck  down  as
unconstitutional.
31.   On behalf of the respondents, it was argued that Mithu’s case  (supra)
was clearly distinguishable inasmuch as the Court was in that  case  dealing
with Section 303 IPC which did not leave any option for the Court except  to
award death sentence to a convict who  while  undergoing  life  imprisonment
committed a murder. That is not the position in the case at hand  where  the
Parliament has prescribed alternative sentences leaving it  for  the  courts
concerned  to  award  what  is  considered  suitable  in   the   facts   and
circumstances of a given case. It was also submitted that there was  nothing
outrageous about the sentence provided under Section 364A, keeping  in  view
the nature and gravity of the offence and  the  fact  that  kidnappings  and
abductions for ransom had assumed alarming dimensions in the  country  apart
from the fact that terrorists were also using that method to  achieve  their
nefarious ends. Similar  sentences  were  prescribed  for  several  offences
under the IPC that were considered grave by  the  Parliament  who  represent
the will of the people.  There was at any rate no reason for this  Court  to
go into the question of quantum  of  sentence  after  the  matter  had  been
thoroughly  examined  in  the  criminal  appeal  filed  by  the   appellants
including on the question of sentence to  be  awarded  to  them.  The  issue
whether a lesser punishment would meet the ends of justice may  arise  in  a
given case where the victim is  released  soon  after  he  is  kidnapped  or
abducted without doing any harm to him.   But  in  the  case  at  hand,  the
victim was done to death  which  called  for  the  extreme  penalty  rightly
awarded to the appellants upon consideration of the relevant  circumstances.
 Reference was also made to the decisions  of  this  Court  in  Malleshi  v.
State of Karnataka (2004) 8 SCC 95; Suman Sood  @ Kamal Jeet Kaur  v.  State
of Rajasthan (2007) 5 SCC 634; Vinod  v. State of Haryana (2008) 2  SCC  246
and Akram Khan v. State of West Bengal (2012) 1 SCC 406, in which  too  life
sentence was awarded even when the victim  was  released  unharmed.  It  was
lastly argued that  courts  must  show  deference  to  parliamentary  wisdom
underlying a legislation and as far as possible avoid interference with  the
quantum of sentence prescribed by law unless  of  course  the  same  was  so
outrageously brutal, barbaric or disproportionate as to be  unacceptable  by
any civilised society. That not  being  the  case  at  hand,  there  was  no
compelling need for this Court to interfere, argued the learned Counsel.
32.   In Mithu’s case (supra), this Court had before it a challenge  to  the
constitutional validity of Section 303, which prescribed  but  one  sentence
for an offender who committed  a  murder  while  undergoing  a  sentence  of
imprisonment for life. This  Court  struck  down  Section  303  of  the  IPC
holding that there  was  no  rational  basis  for  classifying  persons  who
committed murder while they are under a sentence of  life  imprisonment  and
those who are not under any such sentence for purposes of  awarding  to  the
former category a mandatory death sentence. The Court held that Section  303
assumed that life convicts are a dangerous breed of  humanity  as  a  class,
without there being any scientific data for such an assumption.  This  Court
further found that prescription  of  a  mandatory  death  sentence  for  the
offence of murder as a  second  offence  merely  for  the  reason  that  the
offender was under a sentence  of  life  imprisonment  for  the  first  such
offence is arbitrary and unreasonable, and  that  mandatory  death  sentence
would not serve any social purpose. The motivation of the two  offences  may
be different, the circumstances in  which  they  may  be  committed  may  be
different and even the two offences may be basically different  genre.  This
Court also found that there was no rational  distinction  between  a  person
who commits murder while undergoing the sentence of  life  imprisonment  and
another who does so after he  has  already  undergone  such  sentence.  This
Court in the above backdrop took the view that the mandatory death  sentence
deprived the Court of its wise and beneficial discretion in  the  matter  of
life and death, making it harsh, unjust and unfair.
33.   The above features, noticed by this Court  in  Mithu’s  case  (supra),
are not present in the case at hand for Section  364A  does  not  mandate  a
death sentence as was the case with Section  303  of  the  IPC.  In  Section
364A, the Court enjoys the discretion whether to award the  extreme  penalty
of death or the lesser alternative of a life imprisonment.   There  is  also
no element of any discrimination between persons  who  commit  the  offence,
like the one noticed by this Court in Mithu’s case  (supra).   Whether  life
or death would be the proper sentence is in the absolute discretion  of  the
Court which the Courts are expected to exercise wisely having regard to  the
facts of the case and the  gravity  of  the  offence  and  its  severity  or
barbarity.  To that extent, there is indeed no  comparison  between  Mithu’s
case (supra) and the case of the appellants  who  have  been  awarded  death
sentence not because the law  so  mandated  but  because  this  Court  after
considering the attendant circumstances found that to be the  only  sentence
which would meet the ends of justice. This is  evident  from  the  following
passages appearing in the judgment of this  Court  in  the  criminal  appeal
filed by the appellants [Vikram Singh & Ors. v. State  of  Punjab  (2010)  3
SCC 56]:

“56. Much argument and passion have been expended by the learned counsel  as
to the propriety of the death sentence in the facts of the case.  Mr  Sharan
has emphasised that  as  the  prosecution  story  rested  on  circumstantial
evidence, this fact by itself was a relevant consideration in  awarding  the
lesser sentence. It has also been  pleaded  that  the  appellants  were  all
young persons and the possibility that they could be reformed  during  their
incarceration could not be ruled out and this too was a factor which had  to
be considered in awarding the sentence.

57. Mr. Sharan has also referred us to Dhondiba Gundu  Pomaje  v.  State  of
Maharashtra (1976) 1 SCC 162  that  an  accused  of  young  age  should  not
ordinarily be meted out a death sentence. Reference has also  been  made  by
Mr Sharan to some observations in Bachan Singh v. State of Punjab  (1980)  2
SCC 684 that the mitigating circumstance in favour of an accused  must  also
be factored in. It has also been pleaded that  the  additional  circumstance
in favour of Sonia was that she was not only young but she was also  a  lady
and as it was possible that she had  been  influenced  into  the  unpleasant
situation by her husband, the death sentence should not be given to  her  in
any case. Mr Sharan has also placed reliance  on  two  recent  judgments  of
this Court in Santosh Kumar Satishbhushan Bariyar v.  State  of  Maharashtra
(2009) 6 SCC 498 and Sushil Kumar v. State of [pic]Punjab (2009) 10 SCC  434
whereby it has been indicated that the latest  trend  in  jurisprudence  was
that  the  death  penalty  should  not  be  awarded  except  in   the   most
extraordinary  of  cases  and  that  the  position  and  background  of  the
appellant-accused was to be kept in mind  in  evaluating  the  circumstances
for and against the imposition of the death sentence.

58. These submissions have been strongly controverted by  Mr.  Jaspal  Singh
and Mr. Kuldeep Singh, the learned counsel representing the complainant  and
the State of Punjab respectively. It has been emphasised that Sections  364-
A and 302 both provided for the  imposition  of  a  death  sentence  and  as
kidnapping for ransom was perhaps the most heinous of offences, no  latitude
should be shown to the appellants as they had poisoned a young boy to  death
for  money.  The  learned  counsel  have  also  placed  reliance  on   Henry
Westmuller Roberts v. State of Assam (1985) 3 SCC 291 and Mohan v. State  of
T.N. (1998) 5 SCC 336 where the kidnap  victim  was  a  young  boy  and  had
subsequently been done to death, the Court had awarded the death penalty.

xxxxxxxxxxxxxxxxxxxxxxxxxxx

64. A plain reading of the Objects and Reasons which led  to  the  amendment
shows the concern of Parliament in dealing with  kidnapping  for  ransom,  a
crime which called for a deterrent punishment, even  in  a  case  where  the
kidnapping had not resulted in the  death  of  the  victim.  The  statistics
further reveal that  kidnapping  for  ransom  has  become  a  lucrative  and
thriving industry all over the country which  must  be  dealt  with  in  the
harshest possible manner and an obligation rests on the courts as well.  The
courts to lend a helping hand in that direction.

65. In the case before us, we find that not only was  Abhi  Verma  kidnapped
for ransom which act would by itself attract the death penalty  but  he  was
murdered in the process. It is  relevant  that  even  before  the  aforesaid
amendments, this Court in Henry case (1985) 3 SCC 291  observed  that  death
sentence could be awarded even in a case of kidnapping and murder  based  on
circumstantial evidence holding that: (SCC p. 313, para 40)

“40. … We are of the opinion that  the  offences  committed  by  Henry,  the
originator of the idea of kidnapping children of rich people for  extracting
ransom, are very heinous and pre-planned. He had been attempting to  extract
money from the unfortunate boy’s father, PW 23 even after the boy  had  been
murdered by making the father to believe that the boy was  alive  and  would
be returned to him if he paid the ransom. In our opinion,  this  is  one  of
the rarest of rare cases in which the extreme penalty  of  death  is  called
for the murder of the innocent young boy, Sanjay in cold blood after he  had
been kidnapped with promise to be given sweets. We, therefore,  confirm  the
sentence of death and the other sentences  awarded  to  Henry  by  the  High
Court under Sections 302, 364, 201 and 387 IPC and dismiss  Criminal  Appeal
No. 545 of 1982 filed by him.”

66. Moreover, as already indicated, we have the eyewitness statement  of  PW
13 Baljeet Saini with regard to the kidnapping of Abhi  Verma  from  outside
the school.

67. Likewise, in Mohan case (1998) 5  SCC  336  which  again  related  to  a
kidnapping for ransom and murder under Sections 364-A and  302  of  a  young
boy aged ten [pic]years, while  assessing  the  aggravating  and  mitigating
circumstances, it was observed that the former far  outweighed  the  others.
It was held as under: (SCC p. 343, para 14)

“14. So far as appellant Gopi is concerned, he not only did  participate  by
pulling the rope around the neck of the boy, as already narrated,  but  went
to his house and brought a coir rope. After removing the rope from the  neck
of the boy, he encircled the coir rope  again  around  the  boy’s  neck  and
pulled the said rope for about half a minute and the boy stopped  breathing.
Thereafter he took out one Keltron  TV  box  from  underneath  the  cot  and
packed the boy in the box. These aggravating circumstances on  the  part  of
accused Mohan and Gopi clearly demonstrate their depraved state of mind  and
the brutality with which they took the life  of  a  young  boy.  It  further
transpires that after killing the boy and disposing of the dead body of  the
boy, Mohan also did not lose his lust for money and got the ransom of  Rs  5
lakhs.”

68. We must also emphasise that in this tragic scenario and in  the  drawing
up of the balance sheet, the plight of the hapless victim,  and  the  abject
terror that he must have undergone while in the grip of his  kidnappers,  is
often ignored. Take this very case. Abhi Verma was only  16  years  of  age,
and had been picked up by Vikram Singh who was known to  him  but  had  soon
realised the predicament that he faced and had shouted for help. His  terror
can further be visualised when he would have heard the threatening calls  to
his father and seen the preparations to do away  with  him,  which  included
the taping of his mouth and the administration of an overdose  of  dangerous
drugs. The horror, distress and the devastation felt in the  family  on  the
loss of an only son, can also be imagined.”


34.   Reliance upon Mithu’s case  (supra)  does  not,  therefore,  help  the
appellant in their challenge to the  vires  of  Section  364A.  Having  said
that, we must add that a legislation  is  presumed  to  be  constitutionally
valid with the burden of showing the contrary lying  heavily  upon  any  one
who challenges its validity. Not only that, courts  show  due  deference  to
the parliamentary wisdom and exercise self  restraint  while  examining  the
vires of legislations validly enacted.  Reference  may  in  this  regard  be
made to the decision of this Court in Maru Ram v.  Union  of  India  &  Ors.
(1981) 1 SCC 107 where Fazal Ali, J. in his concurring judgment observed:
“93. Thus, on a consideration of the  circumstances,  mentioned  above,  the
conclusion is inescapable that Parliament  by  enacting  Section  433-A  has
rejected the reformative character of punishment,  in  respect  of  offences
contemplated by it, for the time being in view of the prevailing  conditions
in our country. It is well settled  that  the  legislature  understands  the
needs and requirements of its people much better  than  the  courts  because
the [pic]Parliament consists of the elected representatives  of  the  people
and if the Parliament decides to enact a legislation for the benefit of  the
people, such a legislation must be meaningfully construed and  given  effect
to so as to subserve the purpose for which it is meant.”

35.   Reference may also be made to the decision of  this  Court  in  Bachan
Singh v. State of Punjab (1980) 2 SCC 684 where Sarkaria,  J.  speaking  for
majority observed:

“175.  We  must  leave  unto  the   Legislature,   the   things   that   are
Legislature’s. “The highest judicial duty is  to  recognise  the  limits  on
judicial power and to permit the democratic processes to deal  with  matters
falling outside  of  those  limits.”  As  Judges,  we  have  to  resist  the
temptation to substitute our own value-choices for the will of  the  people.
Since   substituted   judicial    “made-to-order”    standards,    howsoever
painstakingly made, do not bear the people’s imprimatur, they may  not  have
the same authenticity and efficacy as the  silent  zones,  and  green  belts
designedly marked out [pic]and left open by Parliament  in  its  legislative
planning for fair play of judicial discretion to take care of the  variable,
unpredictable  circumstances  of   the   individual   cases,   relevant   to
individualised   sentencing.   When   Judges,   acting    individually    or
collectively, in their benign anxiety to do what they think is morally  good
for the people, take upon themselves  the  responsibility  of  setting  down
social norms of conduct, there is every  danger,  despite  their  effort  to
make a rational guess of the notions of right and wrong  prevailing  in  the
community at large and despite their intention to abide by the  dictates  of
mere reason, that they might write  their  own  peculiar  view  or  personal
predilection into the law, sincerely  mistaking  that  changeling  for  what
they perceive to be the  community  ethic.  The  perception  of  “community”
standards or ethics may vary from Judge to Judge. In this  sensitive  highly
controversial  area  of  death  penalty,  with  all  its  complexity,   vast
implications  and  manifold  ramifications,  even  all  the  Judges  sitting
cloistered in this Court and acting  unanimously,  cannot  assume  the  role
which properly belongs to  the  chosen  representatives  of  the  people  in
Parliament,  particularly  when  Judges  have  no  divining  rod  to  divine
accurately the will of the  people.  In  Furman  408  US  238  ((1992),  the
Hon’ble Judges claimed to articulate the contemporary standards of  morality
among the American people. But speaking  through  public  referenda,  Gallup
Polls and the State  legislatures,  the  American  people  sharply  rebuffed
them. We must draw a lesson from the same.”


36.   To the same effect are the observations made by this  Court  in  State
of M.P. v. Bala alias Balaram (2005) 8 SCC 1 where this Court said:
“12. The punishments prescribed by the Penal Code  reflect  the  legislative
recognition of the social needs, the gravity of the offence  concerned,  its
impact on the society and what the legislature  considers  as  a  punishment
suitable for the particular offence. It  is  necessary  for  the  courts  to
imbibe that legislative wisdom and to respect it.”


37.   In a Parliamentary democracy  like  ours,  laws  are  enacted  by  the
Parliament or the State  legislature  within  their  respective  legislative
fields specified under the Constitution. The presumption attached  to  these
laws is that they are meant to cater to the societal demands  and  meet  the
challenges of the time, for the legislature  is  presumed  to  be  supremely
wise and aware of such needs and challenges.  The  means  for  redressing  a
mischief are also in the realm of legislation and so  long  as  those  means
are not violative  of  the  constitutional  provisions  or  the  fundamental
rights of the citizens, the Courts will show deference towards  them.  That,
however, is  not  to  say  that  laws  that  are  outrageously  barbaric  or
penalties that are palpably inhuman or shockingly  disproportionate  to  the
gravity of  the  offence  for  which  the  same  are  prescribed  cannot  be
interfered with.   As observed by Chandrachud, CJ in  Mithu’s  case  (supra)
if the Parliament were tomorrow to amend the IPC and make  theft  of  cattle
by a farmer punishable with cutting of the hands of the  thief,  the  Courts
would step in to declare the provision as constitutionally  invalid  and  in
breach of the right to life.  The Court observed:



“6……………………………………
Two instances, undoubtedly extreme, may be taken by way of illustration  for
the purpose of showing how the courts are not  bound,  and  are  indeed  not
free, to apply a fanciful procedure by a blind adherence to  the  letter  of
the law or to impose a savage sentence. A  law  providing  that  an  accused
shall not be allowed to  lead  evidence  in  self-defence  will  be  hit  by
Articles 14 and 21. Similarly, if a law were to provide that the offence  of
theft will be punishable with the penalty of the cutting of hands,  the  law
will be bad as violating Article 21. A savage sentence is  anathema  to  the
civilized jurisprudence  of  Article  21.  These  are,  of  course,  extreme
illustrations and we need have no fear that our legislatures will ever  pass
such laws. But these examples serve to illustrate that the last word on  the
question of justice and fairness does not rest with  the  legislature.  Just
as reasonableness of restrictions under clauses (2) to (6) of Article 19  is
for the courts to determine so is it for the courts to  decide  whether  the
procedure prescribed [pic]by a law for depriving a person  of  his  life  or
liberty is fair, just and reasonable.”

38.   That punishment must be proportionate to the offence is recognised  as
a fundamental principle of  criminal  jurisprudence  around  the  world.  In
Weems v. United States (217 US 349; 54 L.Ed 793; 30 S.  Ct  544  (1910)  the
petitioner  had  been  convicted  for  falsifying  a  public  document   and
sentenced to 15 years of what was described as ‘cadena temporal’, a form  of
imprisonment that  included  hard  labour  in  chains  and  permanent  civil
disabilities. The US Supreme Court, however, declared  the  sentence  to  be
cruel not only in terms of length of  imprisonment  but  also  in  terms  of
shackles and restrictions that were imposed  by  it.   That  punishment  for
crime should be graduated and proportionate to the offence, is a precept  of
justice, declared the Court.

39.   That decision was followed by Enmund v. Florida 647 458 US 782  (1982)
where the Court held that death penalty was  excessive  for  the  felony  of
murder where the petitioner did not take  life,  attempt  to  take  life  or
intend that life be taken or that lethal force be used. In Coker v.  Georgia
433 US 584 (1977) US Supreme Court held sentence  of  death  to  be  grossly
disproportionate and excessive for the crime of rape.  In  Herman  Solem  v.
Jerry Buckley Helm 463 US 277, 77 Led 2d 637, 103 S Ct 3001, the US  Supreme
Court was dealing with a case  where  Helm  was  found  guilty  of  what  is
described as “uttering a no  account  check”  for  100  dollars,  ordinarily
punishable with imprisonment for a period of five years and a fine  of  5000
dollars but was sentenced under the recidivist statute of  South  Dakota  to
undergo imprisonment for life. The question that fell for determination  was
whether the sentence was disproportionate to the crime  committed  by  Helm.
The Court by majority held that the  general  principle  of  proportionality
was applicable as much to sentence of imprisonment  as  it  was  to  capital
sentences and that while applying the proportionality principle  in  capital
cases, the Court had not drawn any distinction  between  capital  cases,  on
the one hand, and case of imprisonment, on the other, even when the  penalty
of death differs from all other forms of punishment not  in  degree  but  in
kind. The Court held that decisions rendered in capital cases  were  not  of
much assistance while deciding the constitutionality of punishments in  non-
capital  cases,  with  the  result  that  outside  the  context  of  capital
punishment, successful challenges to the proportionality of  sentences  were
exceedingly rare. That did not,  observed  the  Court,  however,  mean  that
proportionality  analysis  was  entirely  inapplicable  to  the  non-capital
cases.  The  Court  summed-up  its  conclusion  regarding  the  doctrine  of
proportionality as applicable to cases involving  sentence  of  imprisonment
in the following words:
“[6a, 7, 8] In sum, we hold  as  a  matter  of  principle  that  a  criminal
sentence must be proportionate to the crime  for  which  the  defendant  has
been convicted.  Reviewing  courts,  of  course,  should  grant  substantial
deference to the broad authority that legislatures  necessarily  possess  in
determining the types and limits of punishments for crimes, as  well  as  to
the discretion that trial courts possess in sentencing convicted  criminals.
 But no penalty is per se constitutional. As the Court noted in Robinson  v.
California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417,  a  single  day  in
prison may be unconstitutional in some circumstances.”


40.    More  importantly,  the  Court  recognised  the   following   guiding
principles  for  determining  whether  the  sentence  of  imprisonment   was
disproportionate to the offence allegedly committed by the accused:

“[10] In sum, a court’s proportionality analysis under the Eighth  Amendment
should be guided by objective criteria, including (i)  the  gravity  of  the
offense and the harshness of the penalty;  (ii)  the  sentences  imposed  on
other criminals in the same jurisdiction; and (iii)  the  sentences  imposed
for commission of the same crime in other jurisdictions.”

41.   Applying the above  principles  to  the  case  before  it,  the  Court
declared:

“[1c] The Constitution requires us to examine Helm’s sentence  to  determine
if it is proportionate to his crime.  Applying objective criteria,  we  find
that Helm  has  received  the  penultimate  sentence  for  relatively  minor
criminal conduct.  He has been treated more harshly than other criminals  in
the State who have committed more serious crimes.  He has been treated  more
harshly than he  would  have  been  in  any  other  jurisdiction,  with  the
possible exception of a single State.  We  conclude  that  his  sentence  is
significantly disproportionate to his crime, and is therefore prohibited  by
the Eighth Amendment.  The judgment of the Court of Appeals  is  accordingly
affirmed.”


42.   More recently in Ronald Allen Harmelin v.  Michigan  501  US  957  the
U.S. Supreme Court revisited the approach to be  adopted  while  determining
the question of constitutionality of  sentences  for  non-capital  offences.
This was a case where the petitioner was convicted for possessing  672  gms.
of cocaine and sentenced to a mandatory  term  of  life  in  prison  without
possibility of  parole.   The  question  that  fell  for  consideration  was
whether the mandatory life imprisonment was in consonance  with  the  Eighth
Amendment to the U.S. Constitution. Kennedy, J. in his  concurring  judgment
noted the view taken by the Court in Weems v. United States (supra),  Enmund
v. Florida 458 US 782, Rummel v. Estelle 445 U.S 263, and Solem v. Helm  463
US 277 to observe that although the said decisions recognise  the  principle
of proportionality, its precise contours remain unclear.  The  Court,  based
on  a  conspectus  of  the  decisions,  formulated  some  common  principles
applicable  in  situations  that   required   examination   of   limits   of
proportionality. The first principle culled out from the  decisions  earlier
pronounced by the Court was that prescribing  punishment  for  crimes  rests
with the legislature and not Courts and that Courts ought to show  deference
to the wisdom of the legislature. The Court observed:

“The first of these principles is  that  the  fixing  of  prison  terms  for
specific crimes involves a  substantive  penological  judgment  that,  as  a
general matter, is  “properly  within  the  province  of  legislatures,  not
courts.”  Rumel,  supra,  at  275-276,  63  L  Ed2d  382,  100  S  Ct  1133.
Determinations about the nature and  purposes  of  punishment  for  criminal
acts implicate difficult and enduring questions respecting the  sanctity  of
the individual, the nature of law, and the  relation  between  law  and  the
social order.  “As a moral or political issue [the punishment of  offenders]
provokes intemperate emotions, deeply conflicting interests and  intractable
disagreements.”  D. Garland, Punishment and Modern Society  1  (1990).   The
efficacy of any sentencing system cannot be  assessed  absent  agreement  on
the purposes and objectives of the penal  system.   And  the  responsibility
for making these fundamental choices and implementing  them  lies  with  the
legislature.  See Gore  v.  United States [51 US 999] 357 US 386, 393,  2  L
Ed 2d 1405, 78  S  Ct  1280  (1958)  (“whatever  views  may  be  entertained
regarding severity of punishment, whether one believes in  its  efficacy  or
its futility…these are peculiarly questions of legislative  policy).   Thus,
“[r]eviewing  courts…should  grant  substantial  deference  to   the   broad
authority that legislatures necessarily possess  in  determining  the  types
and limits of punishments for crimes.”  Solem, supra, at 290,  77  L  Ed  2d
637, 103 S Ct 3001.  See also Rummel, supra, at 274, 63 L Ed 2d 382,  100  S
Ct 1133 (acknowledging “reluctance to review  legislatively  mandated  terms
of imprisonment”); Weems, supra, at 379, 54 L Ed 793,  30  S  Ct  544  (“The
function  of  the  legislature  is  primary,  its  exercises  fortified   by
presumptions of right and  legality,  and  is  not  to  be  interfered  with
lightly, nor by any judicial conception of their wisdom or propriety”).”



43.   The second principle recognised  by  the  Court  was  that  the  Eight
Amendment does not mandate adoption of any one penological theory  and  that
principles that guide criminal sentencing have varied with the times.

44.   The third principle recognised that divergences,  both  in  underlying
theories of sentencing and in the length  of  prescribed  prison  terms,  is
inevitable, because of the federal structure.  The fourth  principle  shaped
by the court was that proportionality  review  by  federal  courts  must  be
informed by objective factors to the maximum possible extent.  While  saying
so, the Court held that penalty of death differs from  all  other  forms  of
criminal punishments and  that  the  easiest  comparison  between  different
sentences is the comparison  between  capital  punishment  and  non  capital
punishment.  The  decision  also  recognised  that  objective  standards  to
distinguish between sentences for different terms of years are lacking  with
the result that  outside  the  context  of  capital  punishment,  successful
challenges to the proportionality of particular  sentences  are  exceedingly
rare. The Court summed-up in the following words:

      “[3b] All of these principles – the primacy of  the  legislature,  the
variety of  legitimate  penological  schemes,  the  nature  of  our  federal
system, and  the  requirement  that  proportionality  review  be  guided  by
objective factors – inform the final one:  The  Eighth  Amendment  does  not
require strict proportionality  between  crime  and  sentence.   Rather,  it
forbids only extreme sentences that are “grossly disproportionate.....”



45.   In Ewing v. California [538 US 11]  the US Supreme Court held that  it
is enough if the state  has  a  reasonable  basis  for  believing  that  its
punishment advances  the  goals  of  its  criminal  justice  system  in  any
substantial way.   The  Court  upheld  the  sentence  of  life  imprisonment
awarded to Ewing for theft of three  golf  sticks  because  it  reflected  a
rational legislative judgment, entitled to deference.  The Court observed:

            “Our traditional deference to legislative policy  choices  finds
a corollary in  the  principle  that  the  Constitution  “does  not  mandate
adoption of any one penological theory.”  Id., at 999, 115 L Ed 2d 836,  111
S Ct 2680 (Kennedy, J., concurring in part and conrurring in  judgment).   A
sentence can have a  variety  of  justifications,  such  as  incapacitation,
deterrence, retribution, or rehabilitation.  See 1 W.  LaFave  &  A.  Scott,
Substantive Criminal Law  1.5,  pp  30-36  (1986)  (explaining  theories  of
punishment).  Some or all of these justifications  may  play  a  role  in  a
State’s  sentencing  scheme.   Selecting  the   sentencing   rationales   is
generally a policy choice to be made  by  state  legislatures,  not  federal
courts.

xxxx             xxxx                   xxxx
xxxx             xxxx                   xxxx

      Ewing’s sentence is justified by the  State’s  public-safety  interest
in incapacitating and deterring recidivist felons, and  amply  supported  by
his own long, serious criminal record.  … … … To be sure,  Ewing’s  sentence
is a long one.  But it reflects a rational  legislative  judgment,  entitled
to deference, that offenders who have committed serious or violent  felonies
and who continue to commit felonies must be  incapacitated.   The  State  of
California “was entitled to place upon  [Ewing]  the  onus  of  one  who  is
simply unable to bring his conduct within the  social  norms  prescribed  by
the criminal law of the State.”  Rummel, supra, at 284 63 L Ed 2d  382,  100
S Ct 1133.  Ewing’s is not “the rare case in which  a  threshold  comparison
of the crime committed and the sentence imposed leads  to  an  inference  of
gross disproportionality.”



46.   The Canadian view on the principle of proportionality of  sentence  is
no different. Several decisions of the Canadian  Supreme  Court,  have  held
proportionality of punishment  to  the  gravity  of  the  offence  to  be  a
constitutional requirement. In R. v. Smith (1987) 1 SCR  1045,  the  Supreme
Court of Canada said:

“In assessing whether a sentence  is  grossly  disproportionate,  the  court
must  first  consider   the   gravity   of   the   offence,   the   personal
characteristics of the offender and  the  particular  circumstances  of  the
case in  order  to  determine  what  range  of  sentences  would  have  been
appropriate to punish, rehabilitate or deter this particular offender or  to
protect the public from this particular offender. The other  purposes  which
may  be  pursued  by  the  imposition  of  punishment,  in  particular   the
deterrence of other potential offenders,  are  thus  not  relevant  at  this
stage of the inquiry. This does not mean that the judge  or  the  legislator
can no longer consider general  deterrence  or  other  penological  purposes
that go beyond the particular offender in determining a sentence,  but  only
that the resulting sentence must not be  grossly  disproportionate  to  what
the offender deserves.”



47.   In R. v. Goltz (1991) 3 SCR  485,  the  Canadian  Supreme  Court  also
recognised  the  principle  that  legislative  edicts  as  to   quantum   of
punishment should not be lightly upset. The Court observed:

“Moreover, it is clear from both Smith and Lyons, that the test is  not  one
which is quick to invalidate sentences crafted by  legislators.   The  means
and purposes of  legislative  bodies  are  not  to  be  easily  upset  in  a
challenge under s.12.
xxx              xxx                    xxx

This acknowledgement that sanctions serve numerous purposes underscores  the
legitimacy of a legislative concern that sentences be geared in  significant
part  to  the  continued  welfare  of  the  public  through  deterrent   and
protective  aspects  of  a  punishment.   This  perspective  is   explicitly
affirmed in R. v. Luxton per Lamer C.J.  Thus, while  the  multiple  factors
which constitute the  Smith  test  are  aimed  primarily  at  ensuring  that
individuals not be subjected to grossly disproportionate punishment,  it  is
also supported by a concern to uphold other legitimate values which  justify
penal sanctions.  These values unavoidably play a role in the  balancing  of
elements in a S.12  analysis.”



48.   In R. v. Fergusson (2008) 1 SCR 96, the Canadian  Supreme  Court  held
that for the Court to interfere with the sentencing  provision  it  was  not
enough to say that the sentence was excessive. What must be demonstrated  is
that the sentence is so outrageously  disproportionate  that  the  Canadians
would  find  the  punishment  abhorrent  or   intolerable.   The   following
observations succinctly sum up the test to be adopted:

“The test for whether a particular sentence constitutes  cruel  and  unusual
punishment is whether the sentence is grossly disproportionate: R. v.  Smith
(1987) 1 SCR 1045. As this Court  has  repeatedly  held,  to  be  considered
grossly disproportionate, the sentence must be more than  merely  excessive.
The sentence must be “so excessive as to outrage standards of  decency”  and
disproportionate to the extent that Canadians  “would  find  the  punishment
abhorrent or intolerable”.



49.   To sum up:

(a) Punishments must be proportionate to  the  nature  and  gravity  of  the
offences for which the same are prescribed.

(b)   Prescribing punishments is the function of  the  legislature  and  not
the Courts’.

(c) The legislature is presumed to be supremely wise and aware of the  needs
of the people and the measures that are necessary to meet those needs.

Courts show deference to the legislative will and wisdom  and  are  slow  in
upsetting the enacted provisions dealing  with  the  quantum  of  punishment
prescribed for different offences.

(e)    Courts,  however,  have  the  jurisdiction  to  interfere  when   the
punishment prescribed is so outrageously disproportionate to the offence  or
so inhuman or brutal that the same cannot be accepted  by  any  standard  of
decency.

(f)   Absence of objective standards for determining  the  legality  of  the
prescribed sentence makes the job of  the  Court  reviewing  the  punishment
difficult.

(g)   Courts cannot interfere with the prescribed  punishment  only  because
the punishment is perceived to be excessive.

(h)   In dealing with questions of  proportionality  of  sentences,  capital
punishment is considered to be different in kind and  degree  from  sentence
of imprisonment. The result is that while there are several  instances  when
capital punishment  has  been  considered  to  be  disproportionate  to  the
offence  committed, there are very few  and  rare  cases  of   sentences  of
imprisonment being held disproportionate.

      50.   Applying the above to the case at hand, we find  that  the  need
to bring in  Section  364A  of  the  IPC  arose  initially  because  of  the
increasing incidence  of  kidnapping  and  abduction  for  ransom.  This  is
evident from the recommendations made by the  Law  Commission  to  which  we
have made reference in the  earlier  part  of  this  judgment.  While  those
recommendations were pending with the government, the specter  of  terrorism
started raising its head threatening not only the  security  and  safety  of
the citizens but the very sovereignty and integrity of the country,  calling
for adequate measures to curb what has the potential  of  destabilizing  any
country. With terrorism  assuming  international  dimensions,  the  need  to
further amend the law arose, resulting in the amendment to Section 364A,  in
the year 1994. The gradual growth of the challenges posed by kidnapping  and
abductions for ransom, not only by ordinary criminals for monetary  gain  or
as an organized activity for economic gains but by  terrorist  organizations
is what necessitated the incorporation of Section 364A  of  the  IPC  and  a
stringent punishment for those indulging  in  such  activities.   Given  the
background in which the law  was  enacted  and  the  concern  shown  by  the
Parliament for the safety and  security  of  the  citizens  and  the  unity,
sovereignty and integrity of the  country,  the  punishment  prescribed  for
those committing any act contrary to Section 364A cannot  be  dubbed  as  so
outrageously disproportionate to the nature of the offence as  to  call  for
the same being declared unconstitutional.  Judicial discretion available  to
the Courts to choose one of the two sentences prescribed for  those  falling
foul of Section 364A  will  doubtless  be  exercised  by  the  Courts  along
judicially recognized lines and death sentences awarded only in  the  rarest
of rare cases. But  just  because  the  sentence  of  death  is  a  possible
punishment that may be awarded in appropriate cases cannot make  it  per  se
inhuman or barbaric.  In the ordinary course and in cases which  qualify  to
be called rarest of the rare, death may be awarded only where kidnapping  or
abduction has resulted in the death either of the victim or anyone  else  in
the course of the commission of the offence. Fact situations where  the  act
which the accused is charged with is  proved  to  be  an  act  of  terrorism
threatening  the  very  essence  of  our  federal,  secular  and  democratic
structure may possibly  be  the  only  other  situations  where  Courts  may
consider awarding the  extreme  penalty.    But,  short  of  death  in  such
extreme and rarest of rare cases, imprisonment for life for  a  proved  case
of kidnapping or abduction will not qualify for being described as  barbaric
or inhuman so as to infringe the right to life guaranteed under  Article  21
of the Constitution.

51.   It was argued that in certain situations even  imprisonment  for  life
may be disproportionate to the gravity  of  the  offence  committed  by  the
accused. Hypothetical situations are pressed into service to bring home  the
force of the contention. The question, however, is  whether  the  Court  can
merely on a hypothetical situation strike down a provision disregarding  the
actual facts in which the challenge has been mounted. Our answer is  in  the
negative.  Assumed  hypothetical  situations  cannot,  in  our  opinion,  be
brought to bear upon the vires of Section 364A.  The stark facts  that  have
been held proved in the present case would at any rate take the case out  of
the purview of any such  hypothetical  situation.  We  say  so  because  the
appellants in the case at hand have been held guilty not only under  Section
364A, but even for murder punishable under Section 302 of the IPC.  Sentence
of death awarded to them for both  was  considered  to  be  just,  fair  and
reasonable, even by the standards of  rarest  of  rare  cases,  evolved  and
applied by this Court. It is not a case where the  victim  had  escaped  his
fate and lived to tell his woeful tale. It is a case where he  was  done  to
death, which is what appears to have weighed with the ourts in  awarding  to
the appellants  the  capital  punishment.  We  are  not  in  this  round  of
litigation sitting in judgment over what has already attained finality.  All
that we are concerned with is whether the provisions of Section 364A  in  so
far as the same prescribes death or life  imprisonment  is  unconstitutional
on account of the punishment being disproportionate to the  gravity  of  the
crime committed by the appellants. Our answer to that  question  is  in  the
negative. A sentence of death in a case of murder may be rare, but,  if  the
courts have, upon consideration of the facts and evidence,  found  that  the
same is the only sentence that can be awarded, it is  difficult  to  revisit
that question in collateral proceedings like the one at hand.







52.   In the result this appeal fails and is, hereby, dismissed.





                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)


                                                        ………………………………….…..…J.
                                                              (R.K. AGRAWAL)




                                                       …………………………..……………..J.
                                                         (ADARSH KUMAR GOEL)
New Delhi
August 21, 2015

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.