//
you're reading...
legal issues

whether a pronouncement as to the vires of Section 364A will have any impact on the sentence awarded to the petitioners would arise only if Section 364A is held to be constitutionally invalid. = Death penalty under two counts one under sec. 320 and another under sec. 364 A kidnap for ransom – after attaining finality – filed the writ petition to declare that the sec.364 A is un-constitutionality with a hope that if that section declared as he desired, a fresh out look of consideration was arise for granting death sentence under sec.302 I.P.C as per the guidelines – referred to three bench judges = The petitioners have been, as noticed earlier, convicted both under Sections 302 and 364A of the IPC and sentenced to death for each one of the two offences. We, therefore, asked Mr. Garg whether any juristic exercise aimed at determining the constitutional validity of Section 364A will be of any assistance to the petitioners who may despite an acquittal under Section 364A remain condemned to death for the capital offence of murder under Section 302 IPC. Mr. Garg, however, argued that if Section 364A, of the Indian Penal Code were to be declared ultra vires of the Constitution, the sentence awarded to the petitioners under Section 302 may call for a fresh look, having regard to the fact that the Courts had while awarding death sentence to the petitioners had taken them to be guilty under both the provisions, which would no longer hold good, if Section 364A were to be held ultra vires. 13. We do not wish to express any final opinion on this aspect at this stage. The question whether a pronouncement as to the vires of Section 364A will have any impact on the sentence awarded to the petitioners would arise only if Section 364A is held to be constitutionally invalid. It is only then that the Court may go into the question of the impact of such a pronouncement. For the present, what we have before us is a last ditch attempt by the petitioners to avoid the extreme penalty that the law provides for even the most heinous crime punishable under the code. The plea may indeed be in complete desperation but one can well understand such desperation among those who are waiting at the gallows for the hangman to put the noose around their neck. Dismissal of this appeal is bound to take them a step closer to the end. That apart the questions raised may require an authoritative answer, by a Bench of three Judges having regard to the fact that the death sentence awarded to the petitioners has been affirmed by a Bench of co-ordinate jurisdiction. The peculiar fact situation in which the case arises and the grounds on which the provisions of Section 364A are assailed persuade us to the view that this case ought to go before a larger Bench of three Judges for hearing and disposal. We, accordingly, refer this matter to a Bench of three Judges for hearing and disposal. The appellants shall, furnish additional set of papers within four weeks, failing which the Registry shall take steps to have additional copies prepared for the Court. Since it is a death sentence case, we permit learned counsel for the parties to mention the matter before the larger Bench for an early hearing.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40503

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 824 OF 2013
(Arising out of S.L.P. (Crl.) No.8149 of 2012)
Vikram Singh @ Vicky & Anr. …Appellants
Versus
Union of India & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. For a person found guilty of a capital offence and
sentenced to death even by the highest Court of the land the
options for reprieve are very limited. Once the conviction of
the accused and the sentence awarded to him attains finality
the prospects of judicial intervention recede further.
Undeterred by these limitations the appellants who havePage 2
2
been sentenced to death by hanging both under Section 302
and 364A of the Indian Penal Code have taken a chance with
a petition seeking review of their conviction not because
anything grossly erroneous is pointed out about the
conclusions arrived at by the Courts that dealt with their
cases but on the ground that Section 364A of the IPC which
makes kidnapping for ransom an offence is itself
unconstitutional being violative of Articles 14 and 21 of the
Constitution. Writ Petition (Crl.) D No. 15177 of 2012 was
first filed in this Court by the petitioner, Vikram Singh @
Vicky for a declaration that Section 364A inserted in the
Indian Penal Code by Act 42 of 1993 w.e.f. 22nd May 1993 is
ultra vires the Constitution to the extent the same prescribes
death sentence for any one proved guilty. The petitioner
prayed for a further writ quashing the death sentence
awarded to him by the trial Court, upheld by the High Court
and finally affirmed by this Court in Criminal Appeals
No.1396-97 of 2008. A mandamus directing commutation of
the sentence awarded to the petitioners to imprisonment for
life was also prayed for. Page 3
3
3. The writ petition aforementioned was eventually
withdrawn with liberty to the petitioners to file a writ petition
before the jurisdictional High Court. The Petitioners
accordingly filed CWP No.18956 of 2012 before the High
Court of Punjab and Haryana at Chandigarh once again
praying for striking down Section 364A of IPC and for an
order restraining the execution of the death warrant against
them. Re-opening of the case of the petitioners and
commutation of the death sentence to imprisonment for life
were also prayed for in the said petition. A Division Bench of
the High Court of Punjab and Haryana has, upon
consideration, dismissed the petition by its judgment and
order dated 3rd October 2012 which is impugned in these
appeals.
4. The High Court has taken the view that the question
whether Section 364A of IPC was attracted and whether a
person found guilty of an offence punishable under that
provision could be sentenced to death without applying the
test of ‘rarest of rare cases’ was not only available to the
petitioners as an argument before this Court in the appealPage 4
4
filed by them but that such a plea had been raised but lost
by them. The High Court while saying so relied upon the
following passage from 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..”
(emphasis supplied)
5. The High Court also held that the question of quantum
of sentence awarded to the petitioners had also been
examined by this Court in the following paragraph of the
judgment delivered in the criminal appeal:
“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 thisPage 5
5
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…”
6. The High Court on the above reasoning concluded that
this Court had considered the nature of the offence and its
gravity and come to the conclusion that the same 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 petitioners in the writ petition to
the effect that Section 364A of IPC was attracted only when
the offence is committed against Government or a foreign
country etc. or that no such offence was made out in case of
the petitioners, had not found favour with this Court. Page 6
6
7. Having said that, the High court proceeded to examine
the plea raised by the petitioners 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
7
th September 1994. It was only then that Section 364A was
amended to incorporate the expression “…any foreign State
or international inter-governmental organisation or any
other person…” to honour the commitment made in terms of
the said Convention. The High Court accordingly repelled the
argument that Section 364A was intended only to take care
of situations where kidnapping was meant to coerce the
Government or any international organisation to do or not to
do a particular act including the demand for payment of
ransom. The writ petition was dismissed on the ground that
there was no substance in the contentions urged in supportPage 7
7
thereof even on merits. The present appeals by special
leave assail the correctness of the view taken by the High
Court.
8. Appearing for the appellants, Mr. D.K. Garg strenuously
argued that the High Court had fallen in error in holding the
provisions of Section 364A to be constitutionally valid and
also that the question whether the petitioners could be found
guilty under Section 364A and sentenced to death has been
examined by this Court in the appeals filed by the appellants
against their conviction and sentence. Elaborating the
submissions, Mr. Garg argued that the provisions of Article
21 of the Constitution guaranteed to the petitioners a
fundamental right to life and liberty and protected them
against deprivation of those rights otherwise than in
accordance with the procedure prescribed by law. He urged
that in order to satisfy the requirement of Article 21 of the
Constitution it was necessary not only that the deprivation
was in accordance with a validly enacted law but also that
such law was just and fair. Deprivation of life and liberty on
the basis of a law that was either unjust or unfair would,Page 8
8
according to Mr. Garg, offend the constitutional guarantee
contained in Article 21. He contended that inasmuch as
Section 364A of IPC made even a first offender liable to be
punished with death, it was much too harsh to be considered
fair and reasonable.
9. It was further argued that the provisions of Section
364A are ultra vires also because a simple kidnapping for
ransom in which the victim is released without any harm to
him/her with or without payment of the ransom demanded
for his/her release, is also on a plain reading of Section
364A, punishable with death without there being any
guidelines in Section 364A for the Courts to follow while
determining the quantum of punishment to be awarded in a
given case.
10. Mr. Siddharth Luthra, learned ASG, appearing for the
respondents per contra argued that Section 364A of IPC was
a validly enacted piece of legislation. In the absence of any
challenge to the legislative competence of the Parliament to
enact the said provision, Section 364A of the Code could not
be assailed for want of legislative competence. As regardsPage 9
9
the question of fairness of the law, the argument that
Section 364A was unfair and hence violative of Article 21 of
the Constitution, it was contended that it was within the
legislative competence of the Parliament to provide
remedies and prescribe punishment for different offences
depending upon the nature and gravity of such offences and
the societal expectation for weeding out ills that afflict or
jeopardise the lives of the citizens and the security and
safety of the vulnerable sections of the society especially
children who are prone to kidnapping for ransom and being
brutally done to death if their parents are unable to pay the
ransom amount. Mr. Luthra referred to 42nd Law Commission
Report, The Criminal Law (Amendment) Bill 1992 introduced
in the Rajya Sabha as also the Statement of Objects and
Reasons of the Bill for introduction of Section 364A and
contended that kidnapping innocent persons for ransom had
become rampant and called for strong legislative measures
to root out the malady by providing heavy penalties for those
indulging in such nefarious and barbaric acts. He also
referred to the International Convention and the Report of
the Committee of Home Affairs in support of his submissionPage 10
10
that Section 364A was amended in the year 1995 to fulfil
India’s commitment towards the international convention
signed by it in the year 1994 by providing for severe penalty
for those engaged in acts of violence and terrorism against
the State, any foreign country or any international
organisation. The provisions of Section 364A were, therefore,
not only intended to deal with simple cases of kidnapping for
ransom but also cases in which terrorists and other extremist
organisations resort to kidnapping for ransom or to such
other acts only to coerce the Government to do or not to do
something. Judged in the historical perspective in which the
Law Commission had recommended enactment of the law,
and the salutary purpose which it is aimed at achieving the
provisions of Section 364A were neither unfair nor
unreasonable, argued Mr. Luthra.
11. Constitutional validity of any Parliamentary or State
legislation is judged on the twin tests of legislative
competence of the legislature that enacts the law or on the
ground that the legislative enactment violates a fundamental
right guaranteed to the citizen. There is no other ground onPage 11
11
which the constitutional validity of an enactment may be
determined by a Court of law competent to do so. Mr. Luthra
rightly argued that the challenge to the provisions of Section
364A of the IPC is not founded on the plea that the
Parliament was not competent to enact such a law. Mr. Garg
also fairly conceded that the petitioners have not challenged
the provisions on the ground that the Parliament was not
competent to enact the same. His challenge to the
constitutional validity rests entirely on the ground that in as
much as the same prescribes death sentence for a case of
kidnapping for ransom the same is so harsh as to make it
unreasonable and unfair hence violative of Article 21 of the
Constitution of India.
12. The petitioners have been, as noticed earlier, convicted
both under Sections 302 and 364A of the IPC and sentenced
to death for each one of the two offences. We, therefore,
asked Mr. Garg whether any juristic exercise aimed at
determining the constitutional validity of Section 364A will be
of any assistance to the petitioners who may despite an
acquittal under Section 364A remain condemned to death forPage 12
12
the capital offence of murder under Section 302 IPC. Mr.
Garg, however, argued that if Section 364A, of the Indian
Penal Code were to be declared ultra vires of the
Constitution, the sentence awarded to the petitioners under
Section 302 may call for a fresh look, having regard to the
fact that the Courts had while awarding death sentence to
the petitioners had taken them to be guilty under both the
provisions, which would no longer hold good, if Section 364A
were to be held ultra vires.
13. We do not wish to express any final opinion on this
aspect at this stage. The question whether a pronouncement
as to the vires of Section 364A will have any impact on the
sentence awarded to the petitioners would arise only if
Section 364A is held to be constitutionally invalid. It is only
then that the Court may go into the question of the impact of
such a pronouncement. For the present, what we have
before us is a last ditch attempt by the petitioners to avoid
the extreme penalty that the law provides for even the most
heinous crime punishable under the code. The plea may
indeed be in complete desperation but one can wellPage 13
13
understand such desperation among those who are waiting
at the gallows for the hangman to put the noose around their
neck. Dismissal of this appeal is bound to take them a step
closer to the end. That apart the questions raised may
require an authoritative answer, by a Bench of three Judges
having regard to the fact that the death sentence awarded to
the petitioners has been affirmed by a Bench of co-ordinate
jurisdiction. The peculiar fact situation in which the case
arises and the grounds on which the provisions of Section
364A are assailed persuade us to the view that this case
ought to go before a larger Bench of three Judges for hearing
and disposal.
14. We, accordingly, refer this matter to a Bench of three
Judges for hearing and disposal. The appellants shall, furnish
additional set of papers within four weeks, failing which the
Registry shall take steps to have additional copies prepared
for the Court. Since it is a death sentence case, we permit
learned counsel for the parties to mention the matter before
the larger Bench for an early hearing. Page 14
14
……………..………………………….………..……J.
(T.S. THAKUR)
………………………
………………….………..……J.
(SUDHANSU JYOTI MUKHOPADHAYA)
New Delhi
July 2, 2013

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,897,031 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: