TaxTMI 
TaxTMI 
2015 (8) TMI 1508
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....urt 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 The writ petition was eventually withdrawn with liberty to the Petitioners to approach the jurisdictional High Court for redress.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 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....
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....70 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 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 inser....
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....al 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 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 ur....
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....r 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 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 m....
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....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 kidnapp....
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....s 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. Th....
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....d 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. (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 seek....
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....f two kinds viz. kidnapping from India and kidnapping from lawful guardianship. 'Kidnapping from India' is Under Section 360 of the Indian Penal Code while 'kidnapping from lawful guardianship' is covered by Section 361 of the Indian Penal Code. Both the situations 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 pro....
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....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 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: ....
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....r 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 b....
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.... 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 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 co....
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....r 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 Indian Penal Code. In Section 364A, the ....
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....e of Maharashtra (2009) 6 SCC 498 and Sushil Kumar v. State of 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 ....
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.... 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....
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...., 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 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 ....
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....rts 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 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 ....
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....able 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 t....
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....at, as a general matter, is "properly within the province of legislatures, not courts." Rumel, supra, at 275-276, 63 L. Ed. 2d 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 n....
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....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 concurring 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 ....
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....e 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 Section 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, th....
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....untry. 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 Indian Penal Code 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 j....