TaxTMI 
TaxTMI 
1979 (5) TMI 148
X X X X Extracts X X X X
X X X X Extracts X X X X
....failing tests of the civilization of any country."( Sentencing and Probation, National College of the State Judiciary, Reno, Neveda p.68.) Without academic aura and maukish sentimentalism the court has to rise to principled pragmatism in the choice of the penal strategy provided by the Penal Code. The level of culture is not an irrelevant factor in the punitive exercise. So we must be forwarned against deeply embedded sadism in some sectors of the community, demanding retributive death penalty disguised as criminal justice-a trigger-happy pathology curable only by human rights literacy. But the dignity of man, a sublime value of our Constitution and the heart of penological humanisation, may find expression through culturisation of the judicial art of interpretation and choice from alternatives. If the court reads the text of s. 302 Penal Code, englightened by the fundamental right to life which the Father of Nation and the(Acharya Kripalani and the Lok Nayak have condemned death penalty publicly) founding fathers of the Constitution made manifest, the judicial oath to uphold the Constitution will unfold profound implications beyond lip service to Form VIII of the Third Schedule an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ution for explosive tensions and return to tranquility is curing the inner man through proven meditational, mental-moral neural technology, elimination of social provocation and economic injustice and of addiction to inebriants which dement the consumer. Timely vigilance of policing agencies to nip in the bud burgeoning confrontations and prompt and potent enforcement of the Arms Act the failure to do which makes weapons freely available also account for escalating violence. The. social autospsy of murders is more significant than the medical post-mortem of cadavers or the forensic close-up of crime after it has occurred. The escapation of violence cannot be arrested (l) Harijan, March 19, 1937 by inert police presence going into action after tragic clashes, but only A by a holistic ministering to the inner man as well as collective consciousness. It is obvious, yet obscure, that a crime-firee society is beyond the gift of severe judges or heavy-handed policemen. And the myopic view that public cxecutions backed by judicial sentence's will perform the funeral of all criminals and scare away potential offenders is a die-hard superstition of sociologically and psychologically il....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cative invitation for the fracas. The tipsy response brought the opposite party out. Jarnail Singh, the 3rd appellant, who was the victim of the earlier beating, ignited the attack by instigation and his party went into violent action. Guns boomed, dangs, dived, three men and later a fourth,, feel dead and the curtain was drawn after the catastrophe was complete. Probably, the accused party was also drunk. And alcohol makes men beside themselves and buries sanity. The role of intoxicating drinks and drugs in aggressive behaviour and explosive crime has not been the subject of sufficient criminological research in the country. Impressionistically speaking, half of violent crime, explosive sex and reckless driving, has its 'kick' in alcohol and the gains of 'prohibition' have new dimensions. That apart, in the case on hand, the High Court analysed the evidence, liberally applied the rule of benefit of doubt and climaxed its judgments with sentences of death and imprisonment for life on the various accused who were eventually held guilty. We are concerned only with those who received capital penalty, and the court expressed itself thus on this momentous issue of death....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) Cr.P.C., has been a functional failure because of the casual way the punishment factors are dealt with, as if the nature of the crime was the sole determinant of the punishment. We have explained in Rajendra Prasad's case how the prosecution must make out, by special factors, why me graver penalty should be inflicted. Evidence may be led and arguments addressed by both sides, but in practice b. 235(2) has been frustratingly ritualised. Nor do we think that the court's attention been drawn to Ediga Annamma's case. The two recent decisions of this Court could not have been within the ken of the Court because they were delivered later. Be that as it may, one has only to read the ratio in these three cases side by side with facts of the present case to hold that death Ir penalty is unmerited. Here, the earlier provocation came from the deceased's side by beating up Appellant No. 3. The parties, including the prosecution group, were tipsy. There had been antecedent irrigation irrigation between them. There was no prepalanned, well laid attack, hell-bent on liquidating the enemy. A quarrel over turn af water; a pacification pro tempore; an afternoon exuberance with joc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erous and often plunderous crimes social justice steps in to demand penalty dependent on the totality of circumstances." We see no need to expand on the narrow survival of death sentence in our Code confined to those exceptional situations explained in Rajendra Prasad's case. It is heartening, though unheeded that the framers of the Code themselves state-d: "We are convinced that the Death penalty should be very sparingly inflicted. To a great majority of mankind nothing is so dear as life."(') Death sentence on death sentence is the upsurge of world opinion and Indian cultural expression. In Shanti Parva of the Mahabharata, Prince Satyavana in the discussion on the capital penalty says: "Destruction of the individual by the king can never be a virtuous act. By killing the wrong-doer the king kills a large number of innocent persons, wife, father, mother and children are killed. A wicked person is seen to imbibe good conduct from a pious person. Good children spring from wicked persons. The extermination of the wicked is hot in consonance with eternal law."(2) while such unanimity in sublimity may not, by itself, repeal the legislated text, judicial dispensers do not be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, even brutal murder, may in all but not negligible cases be traced to brain tumour. In such cases cerebral surgery, not hanging until he is dead, is the rational recipe. This factor is relevant to conviction for crime, but more relevant to the irrevocable sentence of death. We allow the appeal in regard to appellants Nos. One and Two and reduce their death sentence to one of life imprisonment. SEN, J.-I do not see, any reason to differ from the view expressed by me in my dissenting opinion in Rajendra Prasad's case([1979] 3 S.C.R. 78). I Still adhere to the view that it is not within the province of the Court while dealing with an appeal confined to sentence under Art 136, to curtail the scope of death sentence under s. 302 I.P.C., 1860, nor is it constitutionally or legally permissible for this Court while hearing such an appeal to lay down that on grounds of compassion and humanism the sentence of death on a conviction for murder under s. 302, as a rule of universal application, be substituted by a sentence of imprisonment for life, irrespective of the gravity of the clime as the surrounding circumstances i.e., virtually abolish the extreme penalty. The question of abolit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the direct, or perceptible facts, (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii)judgment based on the combined effect of (i) and (ii) above. H for the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purposes of The doctrine of precedents ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi(R. J. Walker & M. G. Walker, The English Legal System, Butterworths 1972 3rd Edn., pp. 123-124. namely). It is not every thing said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge decision binding party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes(L. R. [1959] A.C. 743.) it was laid down that the ratio decidendi may be defined if a statemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t seems to me clear that it does not lay down many legal principle applied to any legal problem disclosed by the facts and, therefore the majority decision cannot be said to have 'declared any law' within the meaning of Art. 141 so as to bind all Courts in the country. General observations made in the context of sentencing jurisprudence will have to be regarded as the view of the Judge/Judges concerned-and not 'law declared by this Court under Art. 141 of the Constitution. And attempt to limit or circumscribe the connotation of 'special reasons' mentioned in s. 354(3) of the Code of Criminal Procedure by indulging in classification of murders such as white collar offences and non- white collar offences or laying down so-called guidelines for imposition of the extreme penalty, would amount to unwarranted abridgement of the discretion legally vested in the trial court and constitutionally upheld by this Court. If the general observations on sentencing jurisprudence made in Rajendra Prasad's case (supra) are to be regarded as 'law declared By this Court' within the meaning of Art. 141 so as to bind all Court's in the country, then the observation o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for that is elsewhere. There is increasing concern today about the judiciary transgressing its limits by usurping the function of the legislature. Many critics think that the courts should 'apply', but not 'make', the law and that they should not intrude into the field of policy-making. The problem appears to the also acute in the United States of America. In a recent article, a learned writer(Evan Thomas, "Have the Judges Done Too Much?" Time Essay, Time January 22, 1979, pp. 49-SO. ) views the complex situation with deep concern, stating: "Today many Americans do resent all ever-more activist judiciary. Beware, warns a vocal group of scholars: The Imperial Presidency might have faded, but now an Imperial Judiciary has the Republic in its clutches'' (Emphasis supplied) ." He then goes on to say: "For all their power, Judges remain remarkably unaccountable and unknown." Mr. Justice Robert Jackson, Associated Justice of` the Supreme Court of the United States in the Roosevelt and Truman years, delineates the correct picture: "We are not final because we are infallible, but we are infallible because we are final." In the end, that means relying on Judg....