TaxTMI 
TaxTMI 
2015 (8) TMI 1508
X X X X Extracts X X X X
X X X X Extracts X X X X
....iminal 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 The writ petition was eventually withdrawn with liberty to the Petitioners to approach the jurisdictional High Court for redress.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 Indian Penal Code 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 Indian Penal Code 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y.... 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 Indian Penal Code 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 Indian Penal Code, 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 Conventi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Indian Penal Code 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 contention....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 irremediable 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opose 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 S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the offence of hostage taking. (iii) India acceded to the Convention with effect from 7th September, 1994. (iv) 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 Indian Penal Code 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. (v) 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are made punishable Under Section 363 of the Indian Penal Code with imprisonment for a term which may extend to seven years besides fine. 'Abduction' defined in Section 362 of the Indian Penal Code, is not by itself punishable as is the case with kidnapping.' 21. Section 383 of the Indian Penal Code defines 'extortion', while Section 384 of the Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code were sufficient to deal with ordinary situations involving kidnapping for ransom, thereby, making it unnecessary for the Parliament to introduce Section 364A of the In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plication. 24. In 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 wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ir 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....truck 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 Indian Penal Code 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 Indian Penal Code 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 quan....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 Indian Penal Code. 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 discre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....actable 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 co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilitation. 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 dispropor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reme 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....