BASANT, J.
(i) Do Session Judges have the power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda (2) Versus State of Karnataka[2008 (13) SCC 767] as an option available in law for the courts to avoid the harshest, irreversible and incorrect able sentence of death? Is that sentencing option available only to the Supreme Court under Article 142 of the Constitution? Is that sentencing option available only to constitutional courts - the High Courts and the Supreme Court?
ii) Consequently is it necessary for the Session Judges to consider whether that alternative option [the harshest sentence of life authorised by Swamy Shraddananda (2)(supra)] is also unquestionably foreclosed in the facts and circumstances of a given case before choosing to impose the sentence of death?
(iii) Is it necessary for this Court to declare the law authentically and insist that before the sentence of death is imposed by any Sessions Court, such consideration must invariably precede?
These questions occurred to me when some of the Death Sentence References and connected appeals came up for hearing. It is true that no counsel specifically had raised these questions in the Memoranda of Appeals or other pleadings. But I felt that such questions have got to be considered and the system cannot avoid these questions for long. There are 10 death sentence references pending before this Court now and as directed, all the 10 D.S.Rs have been taken up together for consideration of the general and common questions raised.
2. We have spent precious and long time of the Court for hearing arguments on this general aspect. Arguments have been advanced by counsel appearing for the accused persons as also the learned Director General of Prosecution and the Additional Director General of Prosecution. Arguments could be completed only on 11.04.2012. In the course of the discussions at the Bar, some disagreements on vital aspects have arisen between me and Honourable Justice K. Vinod Chandran in the matter. Since I am to demit the office on superannuation and today happens to be the last sitting day for me, I am obliged to dictate this order now on the Bench. Needless to say, normally I would have preferred to reserve the order and pronounce the same after elaborate discussions with my learned brother and exchange of draft judgments. But the peculiar circumstances and the time crunch oblige me to dictate this order on the Bench now. As there are certain areas of disagreement in the course of discussions. I make it clear that I speak only for myself in this order.
- Whether to resort to judicial extinguishment of precious human life or not? This question has worried mankind and civilisations all through. The dispute between abolitionists and retentionists is still going on. Search for the final answer is still continuing. The final answer has not been found yet.
- The constitutionality question has come up before two constitution Benches of the Supreme Court. The Constitution Benches twice, in the Judgments in Jagmohan Singh versus Stateof U.P[1973 SCC (Cri.) 169] and Bachan Singh versus State of Punjab[(1980 SCC (Cri) 580], have chosen not to interfere with the wisdom of the retentionist parliament by invoking its power of judicial review. The death penalty is; and continues to be constitutionally valid. The Benches have held that it does not call for interference invoking the power of judicial review. Many in this country may have the opinion that it is time now for a reconsideration of the question of constitutionality of the death sentence - more than two decades having elapsed from the Bachan Singh(supra) decision. Is it time now for the lone voice of dissent of Justice Bhagwati in Bachan Singh [1982 (3) SCC 24] to be accepted by the system? That and that alone, I feel, is the question to be considered now by the constitutional court if at all the issue were to be reconsidered. That the voice of dissent of Justice Bhagwati will eventually have to be accepted is the indisputable writing on the wall, made clear even by the majority of Judges in Bachan Singh(supra) by implication.
6. Be that as it may, for the moment the binding law can be stated firmly as revealed from Jagmohan Singh(supra) and Bachan Singh(supra). The death penalty is not unconstitutional on any ground. It can be imposed by a Sessions Judge invoking his judicial discretion. He has to satisfy the mandate of Section 235(2) Cr.P.C and 354(3) Cr.P.C. If the Sessions Court in its judicial discretion can (or must) include the given case in the narrow band of "rarest of rare" cases where all other alternative options are unquestionably foreclosed, the court can and should impose a sentence of death.
7. I feel that it will be appropriate to extract the relevant passage in para.209 of Bachan Singh(supra) below:
A real and abiding concern for the dignity of human life postulates resistance to taking life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
(emphasis supplied)
8. The court has to ascertain whether the given case comes within the sweep of the rarest of rare cases. To me, it appears that the "rarest of rare cases" is only the nomenclature. It is only descriptive. It is only a label. The real litmus test comes thereafter. That is a "rarest of rare" case where the courts in their judicial discretion conclude that the alternative option is unquestionably foreclosed. The question which every Sessions Court has to ask itself is really not whether the case is a rarest of rare case, but the real test is whether the alternative sentencing option is unquestionably foreclosed. If that is unquestionably foreclosed, it can be described to be a case falling within the category of "rarest of rare" cases. What I intend to emphasise is that descriptive nomenclature of the group is not the real test. The question whether the alternative option is unquestionably foreclosed is the real test for a court to choose to impose the gravest, irreversible and incorrectable sentence of death which is often referred to by humanrights activists as the "inhuman" option which is no punishment at all.
I need not advert to the various grounds on which that gravest option is favoured or disfavoured by courts and the polity. Suffice it to say that only if the given case passes the acid test extracted above in Bachan Singh (supra), can a Sessions Court choose to impose the sentence of death.
9. The sentence of death has got to be confirmed by the High Court. Under Chapter XXVIII Cr.P.C at least two Judges of the High Court must confirm and authorise the extinguishment of life. Bachan Singh(supra) clearly demarcates and delineates the principles on which a sentence of death can be imposed and confirmed.
10. After Bachan Singh(supra), started the endeavour of the Indian judiciary to apply the Bachan Singhdoctrine specifically to the facts of various cases. In Machhi Singh Versus State of Punjab[(1983) 3 SCC 470], the Supreme Court proceeded to specify certain categories of cases which can be said to be included in the category of rarest of rare cases where the alternative option is unquestionably foreclosed. There has been subsequent judgments in which individual Judges have expressed the opinion that certain broad categories – dowry deaths, custodial deaths, honour killings etc. must also be included in such category of rarest of rare cases. I do not choose to proceed to consider all those cases individually. Suffice it to say that the history of application of the Bachan Singh(supra) doctrine does not really show that the endeavour has been accomplished satisfactorily. The history of the attempt to apply the Bachan Singh(supra) formula to the facts of given cases does not certainly bring credit or laurels to the Indian judiciary, it is indicated in some decisions including the decisions of the Supreme Court in Aloke Nath Dutta versus State of W.B[(2007) 12 SCC 230] and Swami Shraddananda (1) versus State of Karnataka[(2007) 12 SCC 288]. Of all the arguments in favour of abolition of the death sentence, none appeals to a prudent and humane mind better than the argument that there is a lot of individual variability of particular Judges in applying the Bachan Singh(supra) doctrine. On that final discretion where the choice is between life and death, there cannot be and should not be any place for individual predilections and arbitrariness, it has been argued with vehemence before the Constitution Benches. Choice of the gravest option should not depend on the sentencing perceptions, or assumptions or personal philosophy and attitudes of the individual judges. Extinguishment of life cannot depend merely on the attitude of individual Judges.
11. After Aloke Nath Dutta versus State of W.B(supra) and Swami Shraddananda (1)(supra) and a host of other decisions, where Judges including Justice S.B. Sinha spoke eloquently of the unsatisfactory and unsound application of the Bachan Singh(supra) doctrine to given facts and the injustice which was said to result from such unsound and unsatisfactory application, came Swamy Shraddananda (2) (supra). We must note that their Lordships in Aloke Nath Dutta versus State of W.B(supra) and other cases referred above were not dealing with the unsatisfactory and unsound application of the Bachan Singh(supra) doctrine by subordinate courts or the High Courts, but of the inadequacy in the application of the Bachan Singh(supra) doctrine by the Supreme Court itself to various fact situations.
12. What has Swamy Shraddananda laid down? This according to me is the crucial question to be considered. It is there that we find disagreement on this Bench also. As I understand, in Swamy Shraddananda, the attempt of the 3 Judge Bench of the Supreme Court, was only to increase the number of alternative options that are available to all Courts in a case where the sentence of death has to be contemplated. Bachan Singh(supra) in para.209 extracted above spoke only of one alternative ("the alternative option"); whereas in Swamy Shraddananda, the 3 Judge Bench of the Supreme Court by what according to me, is a classic example of judicial innovation, came to the conclusion that it was not only one option that was available to the court. The Supreme Court took the view that the sentence of imprisonment for life can in an appropriate case be understood differently. It can be an ordinary sentence of imprisonment for life without any rider where the convict can claim statutory remission/commutation and walk out of prison at any time after the elapse of a period of 14 years as per the mandate of Chapter XXXII E Cr.P.C. It can also be a sentence of imprisonment for life with a rider. That rider can be in the discretion of the court. Such riders can ensure that the convict does not walk out of prison for the entire rest of his life or for specified periods beyond 14 years. More options were generated thereby. It was not any more simply a case of a sentence of death as against the ordinary sentence of life. Sentence of life can be coupled with a rider of the Court that the prisoner shall not be released on remission or commutation for the entire rest of his life. The court may in its discretion, in the alternative, specify any specified period of time during which the prisoner shall not be entitled to be released on commutation or remission. On a careful reading of Swamy Shraddananda (2), an alert and prudent mind cannot miss the anxiety of the Supreme Court to avoid the extreme consequence of judicial extinguishment of life - judicial murder, if one may call it so, except when absolutely unavoidable.
13. The significance of Swamy Shraddananda (2), according to me, lies in the fact that more options have been generated so that the judicial discretion conceded to the Judges in choosing between a sentence of death and a sentence of life can be more effectively exercised consistent with the modern notions of penology where the theory of retribution has virtually been given up and no one is too sure about the deterrent effect of such extreme punishment of death. Undoubtedly Swami Shradhanandhaaccepts that there can still be a class of very exceptional cases where even the harshest life sentence possible under Swamy Shraddanandamay also not be sufficient to meet the interests of justice in a given case. No court can afford to ignore the importance of deterrence in the theory of punishment. The refined society may have given up the theory of retribution altogether but the doctrine of proportionality is still accepted universally. Swamy Shraddananda (2), according to me, undoubtedly stipulates that in the anxiety to avoid the harshest sentence of death, the sentencing court has available to it more options than the only option that was available earlier. In short the only "alternative option" spoken to by the Constitution bench now stands altered and modified. Plurality of alternative options are available to courts now to avoid a sentence of death. The generation of plurality of options to the harsh alternative of a sentence of death is the signal achievement by Swamy Shraddananda. Section 53 (clause secondly) of Indian Penal Code speaks only of the punishment of "imprisonment for life". Swamy Shraddananda (2)virtually explains that and lays down, according to me, that the punishment of imprisonment for life takes in not only one punishment but offers elasticity within it - from an ordinary sentence of life without any rider to a sentence of imprisonment for life with any appropriate rider.
14. An earlier Division Bench of this Court, in which I happened to render judgment along with Justice M.C. Hari Rani in State of Kerala versus Navas[2010(2) KLT 542], had considered the change of law brought about by Swamy Shraddananda (2)(supra). Paragraphs 40 to 53 of that said decision do appear to be relevant. I extract paragraphs 40 to 53 below:
"40. Under Section 302 I.P.C., two alternative sentences alone are possible. The graver sentence is the sentence of death whereas the lesser option is to impose a sentence of imprisonment for life. Constitutional validity of the sentence of death has been considered by the Supreme Court. The last decision on the point is the decision in Bachan Singh(supra) The constitutional validity of the sentence of death has been upheld by the Supreme Court. In paragraph 209 of the said decision, the law on the point is stated succinctly as follows:
"A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
41. The Supreme Court had upheld the constitutional validity by insisting that a sentence of death can be imposed only in the rarest of rare cases. The true clue to find out the rarest of rare cases for imposition of the death sentence is also given in the said paragraph 209. Litmus test is that the "alternative option must be unquestionably foreclosed". That is the test to find out the rarest of rare cases in which alone imposition of a sentence of death would be justified. Only two options were then available - a sentence of death or a sentence of imprisonment for life. That lesser alternative option must be unquestionably foreclosed, insisted Bachan Singh (supra).
42. How is the court to find out such a case. In Machhi Singh(supra) and in many other subsequent Supreme Court decisions, attempts were made to categorise the circumstances which can be pressed into service to identify the rarest of rare cases in which alone a sentence of death can be imposed. It is unnecessary for us to advert to all those precedents. Suffice it to say that in Aloke Nath Dutta versus State of West Bengal (2007) 12 S.C.C.230, the Supreme Court after adverting to the course adopted by the Supreme Court itself in various cases lamented that different Benches had reacted differently in different decisions in their attempt to identify the rarest of rare cases. That was a decision by a two Judge Bench of the Supreme Court. Later, a three Judge Bench in Swamy Shraddananda (2) versus State of Karnataka (2008)13 S.C.C.767stated thus about the attempts made by the Supreme Court.
"49. In Aloke Nath Dutta versus State of W.B. (2007)12 SCC 230, Sinha. J. gave some very good illustrations from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict (see SCC pp.279-87, paras 15178 : Scale pp.504-10, paras 154-82). He finally observed (SCC para 158) that "courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar" and further "it is evident that different Benches had taken different view in the matter". (SCC para 168).
(emphasis supplied)
43. The three Judge Bench of the Supreme Court Swamy Shraddananda (supra), proceeded to observe paragraph 51 as follows:
"51. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this court depends a good deal on the personal predilection of the Judges constituting the Bench".
(emphasis supplied)
44. That appears to us to be a fair assessment of the history of application of the Bachan Singh (supra)doctrine by courts subsequently, including the Apex Court.
45. We have no hesitation to agree that the personal element has to be eliminated totally and completely while considering the two alternative sentences permissible under Section 302 I.P.C. The law on the point is clear to us. In the rarest of rare cases alone, such a sentence can be imposed. In the attempt to identify such a rarest of rare case the true test is whether the lesser alternative is unquestionably foreclosed or not. Conscious of the alternatives available; considering the extenuating and mitigating circumstances; having the objectives which the sentence has to serve in the particular case in mind and liberating oneself from personal prejudices and predilections a decision has to be taken on the crucial question.
46. We would repeat that courts must be satisfied that the lesser options available (to the graver option of imposing a death sentence) must be unquestionably foreclosed before they choose to impose a death sentence. We will remind ourselves that Judges dealing with this sublime area of criminal adjudication can neither be retentionists nor abolitionists. Subject to the law as declared in Bachan Singh (supra)and subsequent decisions, the court will have to consider all available circumstances without importing individual and personal concepts of the need to retain death sentence or abolish the same. It is true that the constitutional validity of the death sentence has been upheld but before imposing/confirming such sentence the court has to alertly consider the very purpose of punishment and decide whether in the facts and circumstances of the case imposition of the graver alternative is necessary and unavoidable.
47.We have already extracted the relevant portion in Bachan Singh(supra) which gives the quintessence of the law in paragraph 209. The lesser option must be unquestionably foreclosed for the Court to identify the rarest of rare cases. In this context, we feel that the decision in Swamy Shraddananda(supra) is of vital relevance.
48. The three Judge Bench in Swamy Shraddananda(supra) took the view that a sentence of imprisonment for life simplicitor is not adequate in that case. The three Judge Bench realistically took note of the prevalent situation where the sentence of imprisonment for life gets boiled down virtually to a sentence of imprisonment for 14 years, subject to remission, commutation, etc. The learned Judges of the three Judge Bench felt that to avoid a sentence of death, it is possible for the courts to devise a graver form of sentence of imprisonment for life which will virtually ensure that the society is insulated from the criminal for such period as the court may specify including the entire rest of his life. The court in its ingenuity has now raised the bar to make sure that even in a case where the lesser alternative of an ordinary sentence of life is found to be grossly inadequate, the court has the option to impose a graver sentence of life with appropriate stipulations to be specified by the court. The following passages appearing in paragraphs 92 to 94 according to us is of very great significance in this ultimate and sublime exercise of discretion between life and death by the courts. Inparagraph 92, the court after observing the inadequacy of a sentence of life limited to imprisonment for 14 years, proceeded to observe that:
"………..a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years' imprisonment and death."
The court proceeded in paragraph 94 to lay down the dictum that such a graver sentence of imprisonment for life with appropriate directions can be imposed. Paragraph 94 reads as follows:
" 94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
49. In devising or inventing such a mode of graver sentence above the ordinary term of imprisonment for life but below the sentence of death, the Court has realistically found that insistence on imposition of death penalty can be further reduced. The alternative option must be foreclosed. The court has in fact increased the alternative options available. The only alternative option prior to Swamy Shraddananda(supra) was a sentence of life without any rider. The courts are now given the option to suitably modulate and prescribe the manner in which a life sentence can and ought to be executed. In Swamy Shraddananda(supra), the court proceeded to direct that the accused in that case who was guilty of a very heinous and horrendous crime can be saved from the sentence of death by imposing this modified version of a life sentence - with a rider/ direction that the accused shall not be released from prison for the rest of his life.
50. To avoid the possibility of any confusion for the subordinate courts, we would like to clarify that under Section 302 IPC, there are only two sentences permissible. They are a sentence of death and a sentence of imprisonment for life. Courts do not have the option to impose any other sentence. Swamy Shraddananda(supra) only permits the imposition of a sentence of imprisonment for life with the rider that the accused shall not be released from prison invoking the jurisdiction for commutation/ reduction of sentence for a specified number of years or for the rest of his life. Swamy Shraddananda(supra), we may clarify, does not permit courts to impose a sentence of imprisonment for any specified number of years above 14 years. A sentence of death or imprisonment for life has to be imposed under Section 302 IPC in every case invariably.
51. Abolitionists, according to us, have won a major battle in the war against death sentence by the dictum of the three Judge Bench in Swamy Shraddananda(supra). This has been achieved by increasing the options that are available to the court. It is the bounden duty of the court now to consider whether the worst form of a sentence of imprisonment for life is also unquestionably foreclosed. Only when such a definite conclusion is reached, can the court choose to impose the death sentence now. We reckon this as a definite instance of raising the bar much higher than it was available prior to Swamy Shraddananda(supra). The court has to consider not only the ordinary sentence of life as the lesser option. It has to consider the graver sentence of life permitted under Swamy Shraddananda(supra) and a conclusion must be reached that even the gravest permissible alternative is unquestionably foreclosed in the facts and circumstances of the given case. So reckoned, the burden on the Court now becomes heavier. Before imposing the death sentence, it has to be considered whether the option of a life sentence with the gravest rider is also unquestionably foreclosed.
52. It is perhaps of great relevance to note that in paragraph 93 of Swamy Shraddananda(supra) the three Judge Bench specifically observes that such an approach will have the great advantage of having the death penalty on the statute book but to actually use it as little as possible - really in the rarest of rare cases only. We extract paragraph 93 below to ensure that we are properly guided on this aspect.
93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology."
53. This is not to say that the decision of the Constitution Bench in Bachan Singh (supra) is in any way obliterated. Death sentence remains on the statute book. It is for the Court, without importing personal norms in favour of retention or abolition to consider dispassionately whether the given case is one belonging to the rarest of rare cases where, even the graver options of life sentences with rider (ranging from an ordinary life sentence which for all intents and purposes boils down to a sentence of imprisonment for 14 years to any specified minimum number of years above 14 below the entire life and a sentence of imprisonment with no release for the rest of life of the accused as indicated in Swamy Shraddananda(supra) is unquestionably foreclosed. We totally agree with the learned Prosecutors that in spite of Swamy Shraddananda(supra) there is space for a certain narrow category of cases which still belongs to the category of rarest of rare cases - call it the rarest of rarest of rare cases if necessary, wherein also a sentence of death permitted by Statute can be and will have to be imposed. But, in identifying that case, the "lesser option" referred to in Bachan Singh(supra) must be understood realistically. Till Swamy Shraddananda(supra), there was only one alternative option of sentence of life without prescribing any further restrictions or guidelines. Now, we have not one alternative option; but various alternative options taking advantage of the "vast hiatus between 14 years' imprisonment and imprisonment till death". All Courts called upon to choose between the sentence of death and the alternative options now available can impose a death sentence only when the Court is convinced and satisfied that none of the other alternatives available in the wake of Swamv Shraddananda(supra) are sufficient and those options are unquestionably foreclosed. We have no hesitation to opine that the imposition of death sentence can now be made only in such graver cases, where all the other options are found to be insufficient. The bulk of such cases shall stand considerably and substantially reduced now - after Swamy Shraddananda(supra)."
15. I am not discussing the entire passages from 40 to 53. But the reasons for the interpretation which I choose to place on Swami Sradhanandhais evident from the judgment of the Division Bench in paragraphs 40 to 53 of State of Kerala versus Navas(supra). I leave the matter there. I do observe particularly the expression "All Courts" in para.53. This Division Bench is bound by the observations of the previous Division Bench. Any different interpretation must certainly be only by a larger Bench. Another division bench, following the rule of stare decisis cannot understand the dictum in Swami Sradhanandha (2)differently.
16. According to me, after Swami Sradhanandha (2)clause secondly of Section 53 of the Indian Penal Code has to be realistically understood and interpreted. It must now definitely be understood that in all cases of imprisonment for life, imprisonment must be undergone till life ebbs out of that convict. But that stipulation is subject to the provisions of Chapter XXXII E of the Cr.P.C. Needless to say, it is also subject to Article 72 and 161 of the Constitution. After Swami SradhanandhaSection 53 clause secondly will have to be read and understood as follows.
"Secondly, imprisonment for life that is to say imprisonment till life ebbs out of the offender. All such sentences shall be subject to Article 72 and 161 of the Constitution. They shall be subject to the provisions of Chapter XXXII E of the Code of Criminal Procedure. But in an appropriate case, notwithstanding the statutory power of commutation etc in Chapter XXXII E, the Court may impose the sentence of life with the rider that such sentence of imprisonment, for life shall not be commuted/ reduced for a specified number of years (beyond 14 years stipulated under Section 433A) or for the entire rest of the life of the offender".
17. This according to me is the only way to harmonise the stipulations of Article 72 and 161 of the Constitution, Chapter XXXII E of the Code of Criminal Procedure, Sections 53 and 55 of the Penal Code and the dictum in Swami Sradhanandha(2).
18. The learned Director General of Prosecution advances a very interesting contention that the Supreme Court and the Supreme Court alone can have jurisdiction to impose such a harsher sentence of life permitted by Swami Sradhanandha(2). Notwithstanding the fact that the Supreme Court has not specifically adverted to Article 142 of the Constitution, it must be held (assumed) that the said decision was rendered by the court invoking its powers under Article 142 of the Constitution, it is contended. That jurisdiction is hence unavailable to the Sessions Court while imposing the sentence or the High Court while considering confirmation of the sentence of death. In short, the argument is that the sentencing courts (ie. the Sessions Courts) or the confirming courts (ie. the High Courts) do not have powers to impose the graver sentence of imprisonment for life permitted under Swami Sradhanandha (2).
19. I find myself unable to be persuaded on this aspect. The basic question is whether such a sentence is permissible under law or not. If such a sentence were not permissible under law, I would shudder to think that the Supreme Court chose to impose such a sentence of imprisonment for life. Certainly the Supreme Court could have imposed only a sentence permitted by law when it chose to impose such a sentence in an appeal under Article 136 of the Constitution. If such a sentence is permitted by law, Section 28 of the Cr.P.C immediately comes into operation and any sentence permitted by law can be imposed by a Sessions Judge. On that aspect there can be no doubt or confusion considering the clear language of Section 28.
20. The argument of the learned Director General of Prosecution is that the executive power to remit/commute cannot be interfered with by the courts inasmuch as such executive power to commute/remit is conferred under relevant statutory provision (see provisions of Section 55 I.P.C and Sections 432 to 433A Cr.P.C). It cannot be assumed that the Supreme Court in negation of the right/power of the executive invented such a sentence which is impermissible if the relevant statutory provisions are to be held to be valid.
21. The argument appears to be very impressive at the first blush. I do first of all note that the Supreme Court has not said anywhere in Swami Sradhanandha (2)that they have invoked their jurisdiction under Article 142 of the Constitution. A perusal of relevant observations in paragraphs 56 and 77 of Swami Sradhanandha (2)must expose the unacceptable nature of the contentions raised. Considering the importance of the question I choose to extract paragraphs 56 and 77 below. Para.56 reads as follows:
"56. But this leads to a more important question about the punishment commensurate to the appellant's crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr. Hegde informed us that the appellant was taken in custody on 28.03.1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 yeas; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh Versus State of Punjab[(1979) 3 SCC 745], In para 14 of the judgment this Court held and observed as follows: (SCC p.753)
"14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad Versus State of U.P[(1979 3 SCC 646]. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.” (emphasis added)
We think that it is time that the course suggested in Dalbir Singh(supra) should receive a formal recognition by the Court.
(emphasis supplied)
Para.77 is extracted below:
"77. This takes us to the issue of commutation and remission, etc. of sentences. The provisions in regard to commutation, remission, suspension, etc. are to be found both in the Constitution and in the statutes. Articles 72 and 161 of the Constitution deal with the powers of the President and the Governors of the States respectively to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted for any offence. Here it needs to be made absolutely clear that this judgment is not concerned at all with the constitutional provisions that are in the nature of the State's sovereign power. What is said hereinafter relates only to provisions of commutation, remission, etc. as contained in the Code of Criminal Procedure and the Prisons Acts and the rules framed by the different States."
(emphasis supplied)
22. A contention that Swami Sradhanandha (2)runs counter to Bachan Singh(supra) or to the constitutional provisions in Article 72 and Article 161 or to statutory provisions in Chapter XXXII E cannot be heard or entertained by this Court. Their Lordships of the 3 Judge Bench in Swami Sradhanandha (2)had specifically referred to Bachan Singh(supra) and any Bench of lesser quorum and the High Courts must necessarily hold that Swami Sradhanandha (2)does not run counter to Bachan Singh(supra). It only explains Bachan Singh(supra). In this context it is important to refer to the observations in para.14 of Dalbir Singh(supra) which is extracted in para.56 of Swami Sradhanandha (2)After the decision in Rajendra Prasad versus State of U.P [AIR (1979) S.C 916], the Supreme Court was obliged to make those observations in Dalbir Singh(supra) to "add a foot note to the ruling in Rajendra Prasad”. The observation therein showed clearly that the "convicting court" must have the option of imposing a graver sentence of life, which proposition of law is given formal recognition by the 3 Judge Bench in Swami Sradhanandha (2). It is argued before us that Dalbir Singh(supra) is no more valid law in the light of Bachan Singh(supra). The subsequent 3 Judge Bench decision in Swami Sradhanandha (2)(supra) refers to Rajendra Prasad(supra). They refer to Dalbir Singh(supra). They refer to Bachan Singh(supra) and ultimately opine that the course suggested in Dalbir Singh(supra) should receive formal recognition of the Supreme Court. If that be so, it is too late in the day for the learned Director General of Prosecution to advance the contention that Dalbir Singh(supra) stands overruled by Bachan Singh(supra) and consequently there can be no question of the observations in Dalbir Singh(supra) receiving any formal recognition after Bachan Singh(supra). I am unable to agree with such a contention strenuously advanced by the learned Director General of Prosecution.
23. The Additional Director General of Prosecution as also some of the counsel appearing for the accused wanted to advance a contention that even if the High Court while confirming the sentence may have the option under Swami Sradhanandha (2)(supra) to impose a graver sentence of imprisonment for life, jurisdiction to impose such a sentence is unavailable to the convicting court namely the Sessions Court. An argument is advanced laboriously that the jurisdiction to impose the graver sentence of life (with appropriate rider to the ordinary sentence of life) is available only to the constitutional courts. Relying on the observations in para.56 which I have emphasised above, it is argued that the Supreme Court had specifically said that the Supreme Court, and the High Courts being the superior courts in their respective State, alone can exercise such jurisdiction. To me it appears that this contention completely overlooks the later portion of para.56 where their Lordships referred with approval to the option of the "convicting court" in Dalbir Singh(supra) and declared that the course suggested by Dalbir Singh(supra) should receive formal recognition by the court.
24. The argument that only constitutional courts - the Supreme Court and the High Courts, alone shall have the jurisdiction to impose the graver sentence of imprisonment for life with rider, is pressed into service with the help of the theory that the High Courts and the Supreme Court have the power to review executive decisions under Article 32 and 226 of the Constitution. The Supreme Court has powers under Article 142 also. If the grant of commutation/remission or non grant of commutation/remission were challenged before such constitutional courts, they would undoubtedly have the power of judicial review against such executive action or inaction. The argument is that the power of the Supreme Court and the High Courts to impose such a graver sentence of life stems from their powers of judicial review of executive action when commutation/remission is granted or not granted.
25. I am unable to accept this contention. At the outset, I must mote that Swami Sradhanandha (2)was not concerned with the power of judicial review of executive decision to commute or not to commute a sentence of death. That question did not arise for consideration in Swami Sradhanandha (2). The question was about the jurisdiction of "Courts" (including the convicting court) to impose a harsher sentence of life so as to avoid imposition of the worst alternative option of a sentence of death. Dalbir Singh(supra) refers to the option of the convicting court. In Swami Sradhanandhathe 3 Judge Bench speaks of giving formal recognition to this course suggested in Dalbir Singh(supra). I am unable to assume that the "convicting court" referred to in Dalbir Singh(supra) [for which suggestion, formal recognition is given by the Supreme Court in Swami Sradhanandha] must exclude the Sessions Judge who has powers to impose the sentence of death at the first instance. Such a construction is impossible from the language of Swami Sradhanandha. At any rate, I am unable to accept that there is any clinching indication in Swami Sradhanandhato sail to such a conclusion. The observation in para.56, which refers to the uniform policy to be followed "not only by this Court (Supreme Court) but also by the High Courts being the superior courts in respect of State", according to me, is insufficient to come to a conclusion that the trial court is excluded from the purview of convicting courts.
26. The High Court exercising powers of confirmation is certainly not the "convicting court". The Sessions Court is the convicting court. It is the sentencing court also. Only the confirmation of the sentence remains in the realm of the jurisdiction of the High Court under Chapter XXVIII Cr.P.C. I am unable to persuade myself to accept that the field/arena of jurisdiction to impose a graver sentence of life under Swami Sradhanandhais out of bounds for the Sessions Court.
27. I must alertly take note of the disastrous and pernicious consequences that might follow if such a conclusion were accepted by this Court. Whether to be identified by the Sessions Court, the High Court or the Supreme Court,Swami Sradhanandhaaccepts that there are cases in which the harshest sentence of death can be avoided by invoking the powers to impose a harsher sentence of imprisonment for life. If the construction canvassed by the Additional Director General of Prosecution and some counsel were accepted and it were to be held that only the confirming court (the High Court) and not the convicting court will have such jurisdiction, it would be an obvious instance of perversity. The confirming court, elementary reasons and logic dictate to me, cannot have powers larger than the convicting court itself. If the case were to legitimately fall within that band of cases where a death sentence can be avoided by invocation of the option available under Swami Sradhanandha, the construction canvassed by the Additional Director General of Prosecution and some others would lead to the perverse situation that the Sessions Courts without considering that question at all must impose the sentence of death and then it will be for the High Court (or the confirming court) under Chapter XXVIII Cr.P.C or the Supreme Court under Article 32, 136 or 142 to decide whether that case can be excluded from the category of cases where death sentence has to be imposed. This would inevitably mean that in a case which does not deserve imposition of a death sentence as per the Swami Sradhanandhadictum, the convict will have to suffer and live under the threat of a sentence of death passed against him by the Sessions Court till the High Court or the Supreme Court considers the application of Swami Sradhanandhadoctrine and saves him from such a sentence. Nothing can be farther to the concept of respect for life and liberty than to jump to a conclusion that such an eventuality must be approved by courts. This would certainly be unreasonable and arbitrary. Such a law which obliges a person to suffer a sentence of death and to be on the death row and live under the agonising threat and the fear of a sentence of death hanging over him until the question is really considered by the Supreme Court or the High Court, would, according to me, be negation of the fundamental rights under Articles 19 and 21 of the Constitution. Such law cannot be held to be right, fair or just. It cannot be held that such law is not "arbitrary, fanciful and oppressive". Such a construction cannot definitely be preferred. If a sentence of death has to be and can be avoided under law by application of Swami Sradhanandha(2)doctrine it would be harsh, unjust and unfair to subject a person to a death sentence without and before the very question is considered. Such a law cannot pass the test of constitutionality under Article 14, 19 and 21 in the post Maneka Gandhi [Maneka Gandhi versus Union of India(AIR 1978 S.C 597)] era.
28. The above discussions lead me to the conclusion that the options generated under Swami Sradhanandhaare all sentences permissible under law. From that it follows that the Sessions Judge under Section 28 Cr.P.C is also entitled to impose that sentence. If that be so, the Sessions Judge must be under a compelling legal obligation to consider whether the gravest form of life sentence permissible under Swami Sradhanandhais also unquestionably foreclosed following the dictum in Bachan Singh(supra) extracted from para.209 above. To say that the Sessions Court need not consider the question and must/can proceed to impose the sentence of death which can be sought to be altered or modified by the invocation of jurisdiction of the High Court or Supreme Court alone, would be clear negation of justice. According to me, such a construction cannot be preferred at all.
29. I am certainly of the opinion that the Sessions Judge has such jurisdictional competence to impose the harsher sentence of life contemplated under Swami Sradhanandha (2).Without considering that question, it will be impermissible for any Sessions Court to impose the sentence of death. The convict must necessarily be held to have the right to satisfy the Sessions Court that the alternative options [not the single option alone as stated in Bachan Singh(supra)] are not foreclosed in the given case and that such a harsher sentence of life as permitted by Swami Sradhanandha (2)alone should be imposed on him.
That in turn would help the court to avoid resort to judicial extinguishment of life. Without considering that question, no Sessions Court can be permitted to impose a sentence of death, according to me. I respectfully, but emphatically, disagree with my learned brother Honourable Justice Shri Vinod Chandran in his view that the Sessions Courts do not have the jurisdictional competence to impose life sentences with rider permissible under Swami Sradhanandha (2)and that consequently Sessions Courts need not hold that those alternative options are not unquestionably foreclosed before imposing the sentence of death.
30. I have today looked into the facts circumstances available in the different cases which come up for our consideration in these D.S.Rs. I have no hesitation to agree that Sessions Courts in the given cases must have considered that question pointedly. In not considering such question, certainly an illegality has been committed. There has been an error of jurisdiction, according to me, in proceeding to impose the death sentences without and before considering whether all the alternative options are unquestionably foreclosed. The fact that we, in these proceedings and connected appeals, can consider that question, according to me, may not cure the illegality. In such event, certainly the procedure followed by the Sessions Court will have to be held to be unjustified and opposed to law. In that view of the matter, the question deserves to be considered in detail. Reference to a larger Bench cannot be avoided on that ground.
31. In the course of discussions with my learned brother, there is a concern expressed that death sentence references may be kept pending before this Court for unnecessarily long periods if resort were made to the course of reference under Section 4 or Section 6 of the High Courts Act. I perfectly appreciate the concern of my learned brother. But having considered the question in all its dimensions, quick disposal cannot be the primary concern in a matter like this in which the choice is between life and death of a citizen. As there is a disagreement between me and my learned brother as to whether the graver sentence of life can at all be imposed by the Sessions Courts, I feel it appropriate that the matter must be referred under Section 4 of the High Court Act to a larger Bench. If not under Section 4, I feel that under Section 6, the Honourable Chief Justice ought to place the matter before a larger Bench for consideration.
32. It is true that when the matter came up initially for our consideration - at that stage I was sitting along with another Judge, it was felt that the guidelines given in Bachan Singh(supra) and Macchi Singh(supra) may have to be reconsidered in the light of Swami Sradhanandha. In the course of the discussions before us, I am persuaded to agree that exhaustive guidelines laying down any straight jacket formula cannot ever be attempted by courts. That is the unquestionable dictum in Jagmohan Singh versus State of U.P[1973 SCC (Cri.) 169] and Bachan Singh(supra). But that is not to say that general guidelines cannot be laid down by the courts. Even para.209 of Bachan Singh(supra) accepts and approves the need and the possibility of "broad illustrative guidelines". Broad illustrative guidelines can certainly be given by this court. No straight jacket formula can obviously be prescribed. But that is far from saying that broad guidelines cannot be indicated by this court. I do not want to get into the details of the facts of the ten cases in which death sentences have been imposed. There is certainly a specific need, according to me, to convey a guideline to all the Sessions Courts - broad in itself and not in any way interfering with or fettering their judicial discretion in the given cases, that they must consider all the alternative options - of imposing the harsher variety of a life sentence permitted by Swami Sradhanandhawhich can in the worst case effectively ensure that a criminal is kept away from society in prison for the entire rest of his life and his criminality does not pose any threat to the community, I want an authentic pronouncement of a larger Bench which must certainly accept that Sessions Courts have the jurisdiction to impose the sentencing options generated by Swami Sradhanandhaand that before imposing any sentence of death, the Sessions Courts must consider those options exhaustively. Such a broad and minimum guideline must be made mandatorily applicable to all Sessions Courts which consider the choice between life and death.
33. The view that a reference under Section 4 might delay the proceedings does not appeal to me. In any case, in view of the vital differences between us, the matter may have to go to a third Judge at least. That also might take time for disposal. What is required is really an authoritative pronouncement by a larger Bench considering all the consequences that flow from Swami Sradhanandha (2)so that Sessions Courts in the State will carefully avoid imposing death sentences without adequate care as insisted by the various precedents including Swami Sradhanandha (2). The worst/harshest life sentence must be held to be unquestionably foreclosed before the death sentence is imposed by a Sessions Court. That the High Court in confirmation proceedings under Chapter XXVIII Cr.P.C or in judicial review under Article 226 of the Constitution or the Supreme Court in proceedings under Article 32, Article 136 or Article 142 may later consider the question does not justify the abdication of jurisdiction by the trial/convicting/ Sessions Court.
34. Ideal law is the dream of the polity. If the Sessions Judges cannot impose the harsher sentence of life to avoid the sentence of death, judicial innovation must certainly step in to take away the jurisdiction to impose a sentence of death from the Sessions Courts. If they cannot consider imposition of such a harsher sentence of life, it would be impermissible to clothe them with authority to impose a death sentence. Even otherwise I do take note of the obvious incongruities in the law. When it comes to confirmation by a superior court, - the High Court, two minds are mandatorily directed to be applied and they must concur on the question of imposition of a death sentence. Only if at least 2 Judges of the superior (High) Court confirm, can a death sentence be executed. But when it comes to the Sessions Court, the law as it now stands permits the imposition of death sentence by application of the mind of a single person. Life is too serious a business to be left to such judicial discretion of such an individual mind. The rationale which prompts the insistence on 2 Judges for confirmation must certainly apply while considering the propriety of leaving sentencing discretion to impose death at the first instance to a single judicial mind. If such a single mind cannot have all the options which are available later to the superior courts, that according to me, makes the position worse.
35. One can always dream of the ideal law. When that will come into existence, we will have to wait and see. But I have no hesitation to agree that the ideal law ought to be that all courts - from the Sessions Court to the Supreme Court, have the sentencing options generated under Swami Sradhanandha (2). Ideal law must insist that all Judges from the level of the Sessions Judges must consider whether all the alternative options are unquestionably foreclosed before choosing to direct extinguishment of life by exercise of judicial discretion. To me, it appears that it is time that the law is changed by the legislature (or progressively interpreted judicially) to ensure and insist that a Sessions Judge who feels that the gravest form of life sentence permissible under Swami Sradhanandhais insufficient to meet the ends of justice in a case, must make a reference to the High Court and not proceed to choose to himself impose such harshest sentence. When it comes to the High Court for decision on the question of sentence (or confirmation), the ideal law must certainly insist that not 2 Judges, but at least a Bench of 5 Judges must consider the question of imposition of sentence. The system owes at least that to Indian and human civilization and to persons who are being deprived of their life by invocation of the State's power to extinguish life. I go a step further and observe that unless the 5 Judges Bench would unanimously come to the conclusion that the death sentence is the only alternative possible in the given circumstances, the conclusion will necessarily have to be reached that the alternative options are not unquestionably foreclosed. Unanimous conclusion of a 5 Judge Bench alone should under the ideal law justify the extinguishment of life. May be I am dreaming. May be that is not the law at the moment. But certainly I have no hesitation to dream that, that would be the ideal law in respect of the exercise of the dehumanizing power of the State to extinguish life if that power be constitutionally valid. The matter if and when referred to a larger Bench under Section 6, the larger Bench must, according to me, address itself to these questions.
36. I am disappointed thoroughly at the inaction of the parliament (legislatures). The legislatures cannot afford to feign ignorance of the criticism of abdication of legislature power in not providing guidelines to the judiciary to choose between life and death. 22 years after Bachan Singh, Parliament has not acted decisively on the question. 4 years after Swami Sradhanandha (2), the Parliament has not revealed its mind on the question of acceptability of the Courts jurisdiction to impose a harsher sentence of life in derogation of the powers of the executive under Chapter XXXII E Cr.P.C May be the Parliament of India has other compelling concerns. But I must certainly feel and express my mind that the Parliament cannot afford to continue to remain silent on this vital and crucial aspect. This is time for action on this aspect by the Parliament; and if not at least by State legislatures, in accordance with law.
37. I may specifically summarise my conclusions.
i) The Sessions Courts do have the powers to impose the harsher sentence of imprisonment for life (ie. sentence of imprisonment for life with appropriate riders) as permitted by Swami Sradhanandha (2). This has been concluded by Navas(supra) and the question can now be reconsidered only by a larger bench;
ii) All Sessions Courts before choosing to impose a sentence of death must invariably consider pointedly whether the alternative options - including the harshest sentence of imprisonment for life permissible under Swami Sradhanandha (2), are foreclosed. Only if all the alternative options are unquestionably foreclosed, can a sentence of death be imposed by the Sessions Court;
iii) The failure to pointedly consider that question (No.2 above) amounts to failure of jurisdiction and would vitiate the sentence of death. In an exceptional case the High Court or the Supreme Court may be justified in undertaking such consideration at the first instance, but ordinarily Courts must insist that such consideration takes place before imposition of the sentence of death at the first instance. Otherwise the convict would effectively lose the opportunity to receive consideration of the crucial question by two different minds at two different tiers.
That the appellate/superior Court may at any rate consider the question, cannot justify abdication of jurisdiction by the first court. In such cases, notwithstanding the inevitable delay that must result, the matter will have to be sent back to the Convicting Court for reconsideration;
iv) If it were to be held that the Sessions Court does not have such power to impose the harsher sentence of imprisonment for life, the fairness of the procedure for imposition of the death sentence and its constitutional validity will certainly have to be considered by this Court - whether specifically raised or not by the convicts.
38. I am, in these circumstances, satisfied that the matter must receive the attention of a larger Bench which must consider the matter exhaustively and lay down the authoritative law so that there will be no confusion in the minds of Sessions Judges about their judicial competence to impose the harsher sentences of life as permitted by Swami Sradhanandha (2)and their obligation to consider whether harshest sentence of imprisonment for life is also unquestionably foreclosed before imposition of the death sentence. In the war between abolitionists and retentionists Swami Sradhanandhamakes a great stride and the abolitionists have won a major battle in that war. The Sessions Courts ought to be told clearly of the import and the consequences flowing from Swami Sradhanandhaand hence I recommend the above course.
39. I do, in these circumstances, direct that the matter may be referred to a larger Bench under Section 4 of the High Courts Act. I would even venture to observe that the Honourable Chief Justice may, considering the great import of the question raised, choose to place the matter before a larger Bench (of at least 5 Judges) invoking the powers of the Honourable Chief Justice under Section 6 of the High Courts Act.
40. A copy of this order shall be forwarded to the Law Commission of India to draw the attention of the Honourable Commission to the observation in paragraphs 33, 34 and 35.
(R.BASANT, JUDGE)
K. Vinod Chandran, J. (dissenting)
41. As noticed by my learned Brother Basant, J., there has been difference of opinion in the Bench which we have been labouring to resolve. Every opinion raises a counter, numerous doubts stem from a single thought; as in affairs of men, so in affairs of law, every judicial order brings within its wake a number of dissents. On the Bench, pangs of dissent are more acute than the pain of labour. As sentinels of free thought and expression are we to deny ourselves the privilege? We have hence broadly agreed to disagree.
42.The Death Sentence References were posted together before Court. I am informed that the matters have been posted so as to lay down suitable guidelines or indicators to guide the trial Courts in imposing the alternative sentence of imprisonment for life as propounded in Swami Shraddananda (2)versus State of Karnataka[(2008) 13 SCC 767]. The Death Sentence References are all cases in which the trial Courts have imposed the sentence of death and in my opinion it is imperative that this Court consider these on its merits to bring finality either way to the long dark shadow of death hanging over the convicts. My learned Brother Basant, J., however, strongly feels that consistent with the general trend, as is reflected in the successive Supreme Court judgments culminating in Swami Shraddananda (2), it is equally imperative that the trial Courts are guided properly in identifying those offences that cannot be categorized as "rarest of rare" but by the nature of crimes cannot be let off with the alternative sentencing of imprisonment for life; which boils down to a sentence of mere 14 years.
43. I agree with my learned brother that Swami Shraddananda (2)confers the High Court with the power to traverse the hiatus between 14 years imprisonment and death in considering the imposition of sentence under Section 302. However, I am unable to persuade myself to hold that by Swami Shraddananda (2)and the specific words employed therein, such power has been conferred on the Sessions Court being the trial Court. In view of the said finding, I am also unable to agree that a reference in the above death sentence cases are expedient especially since these are all cases in which death sentences have been awarded by the trial Court and the question of alternative sentencing of imprisonment for life as provided under Section 302 and even invoking the power to impose such imprisonment until death beyond the application of remission or commutation can well be considered by the Division Bench while considering the reference made under Section 366 Cr.P.C. I have not gone through the facts of the individual cases nor has the same been put across to the Bench by any of the counsels. I specifically note the fact that together with the Death Sentence References, which deal with the aspect of sentencing alone, Criminal Appeals too are pending for consideration of the legality of the conviction entered in the said cases. This according to me makes it more imperative that the individual cases are considered on merits.
44. Capital punishment has been the subject of a raging controversy the world over for more than a century. The public out-cry for abolition of death penalty is based on the obvious and ostensible amorality in taking a life in the guise of punishment for a crime. The campaign for retention has also been equally vociferous. Both the abolitionists and the retentionists draw support from the basic principles of moral decency and human values, but from different angles, viz., that of the crime and the criminal. It has to be conceded that over the years there has been more refinement. From lynchings and scaffoldings in public, history reveals the long winding path to secluded gassing and electrocution, which now has reached scientific hanging and lethal injection. Retributive theory took a back seat and the mood has been upbeat and sanguine for the abolitionists. The retentionists have resolutely hung on with the theories of deterrence and proportionality of punishment and have resolutely driven their hooves into the sands of time bravely weathering the tempest of change.
45. The winds of change initiated withFurman versus Georgia[408 US 238 (1972)] was however tinged with a backlash from the very source from which it emanated. 34 States in the United States enacted new Death Penalty Laws to conform to the view expressed against death penalty in the said decision. One State Oregon, which did not have death penalty earlier, came out with a new one. But, subsequently, todate, almost 17 States in the United States have repealed death penalty and bills to abolish capital punishment is pending in many others, including Oregon. The reverberations were felt in our shores too. While Nepal and Srilanka abolished death penalty, we have in the recent past a Court in the People's Republic of China handing out death penalty for economic fraud and one in Pakistan doing the same for blasphemy. But there is a considerable shift in favour of abolition with the United Nations having passed three resolutions in 2007, 2008 and 2010 approving moratorium on capital punishment. Like all General Assembly resolutions, it is not binding on any State. It exhorts States that maintain death penalty to establish a moratorium on it, with a view to abolition. Italy and Chile were the initiators of the Resolutions while India, along with United States, People's Republic of China and Indonesia voted against. The focus of the resolutions, based on the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and the Convention on the Rights of the Child, was that any miscarriage of justice in the implementation of the death penalty is irreversible and irreparable. This was a reflection of the general disillusion in the theory of deterrence too. While 97 countries have abolished it, 58 nations still prescribe capital punishment by law. The reminder have not used it for 10 years or allow it only in exceptional circumstances such as war time. But, we are at this stage confined to the alternative sentencing of life imprisonment as provided for in Section 302 IPC and the new dimension conferred on it by Swami Shraddananda (2). In tracing the history of the "winds of change", we have been taken through inspiring and thought provoking decisions of the Supreme Court.
46. The challenge to the award of death penalty as violative of Articles 14, 19 and 21 has been repelled by the Constitution Bench on two occasions in Jagmohan Singh versus State of U.P.[1973 SCC (Cri.) 169] and Bachan Singh versus State of Punjab[1980 SCC (Cri.) 580]. In Jagmohan Singh(supra), the Amending Act 26/1955 to Section 367(5) of the Code of Criminal Procedure was specifically noticed. By the said amendment, the mandate on a Court to state the reason when sentencing an accused to any punishment other than death when such offence is punishable with death was taken away. This led to the challenge being raised on the ground of abdication of legislative function and excessive delegation being conferred on the Judges in giving a wide play to judicial discretion. The Constitution Bench relied on Budhan Choudhry and Others versus The State of Bihar[1955 SCR 1045] to hold that Article 14 can hardly be invoked in matters of judicial discretion. The judicial decision, it was quoted, "must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination" (sic)(page 184 para 27). Further, the discretion of judicial officers was held to be not arbitrary and the power conferred on superior Courts to revise the orders passed by the subordinate Courts was also specifically noticed, to negative grounds for apprehending any capricious discrimination by judicial tribunals.
47. The Constitution Bench despite recognizing the aggravating circumstances and circumstances to be considered in alleviation of punishment, as pointed out by Ratanlal in his "Law of Crimes", Twenty-second Edition, page 93, however refused to lay down any standards for exercising such discretion. The exercise of discretion being more in the realm of prudence than law, its very origin was traced to the impossibility of laying down standards. It was in fact specifically held that what was extracted from the "Law of Crimes", were not the only aggravating or mitigating circumstance to be considered when considering an offence. It was also noticed that considerable delay in the disposal of a case may also be a factor in awarding a lesser punishment. In finding that the list was not in any sense exhaustive, the Constitution Bench, regarding the discretionary exercise of sentencing, held:
"In India this onerous duty is cast upon Judges and for more than a century the Judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguards for the accused", (page 184, para 26)
The Constitutionality of capital punishment thus was approved in Jagmohan Singh, while recognizing the fact that the Judges in India have taken up the responsibility with fortitude and elan while the Judges in the United States and England refused to do so. The Constitution Bench held :
"All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence"(page 182 para 24).
48. The Supreme Court subsequently in Ediga Anamma versus State of A.P.(1974 SCC (Cri.) 479) trode a new path developing the theory of discretionary exercise, holding that:
"In contemporary India, the via media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws" (page 489 para 23).
The Court also expressed its mind in stating:
"We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society" (page 490 para 26).
The said decision provided a new theory in looking at sentencing from the angle of the circumstances of the criminal too in addition to the natural responses powered by feelings of hate and vengeance, regarding the crime committed. Ediga Anamma(supra) was reiterated in Rajendra Prasad versus State of U.P.[1979 SCC (Cri) 749]. It was laid down categorically and beyond the pale of any doubt that "the extreme penalty can be invoked only in extreme situations” (sic) [page 783, para 83
conclusion (10)] by majority judgment rendered by V.R. Krishna Iyer, Justice. However, A.P. Sen, Justice took a dissenting view in so much as holding that:
"In awarding sentence, the Court must, as it should, concern itself with justice, that is, with unswerving obedience to established law. It is, and must be, also concerned with the probable effect of its sentence both on the general public and the culprit" (page 791 para 114).
49. Again the issue came up before the very same Bench in Dalbir Singh versusState of Punjab[1979 SCC (Cri) 848]. The majority reiterated its earlier view and held:
"But after Ediga Anammacase, the law of punishment under Section 302 IPC has been largely settled by this Court and the High Courts are bound thereby Rajendra Prasadcase and Bishnu Deo Shaw(1979 SCC (Cri) 817) case, have indubitably laid down the normative cynosure and until overruled by a larger Bench of this Court that is the law of the land under Article 141" (page 854 para 9).
A.P. Sen Justice reiterated his view that the assessment of public opinion on the question of death penalty is difficult and complex and was essentially a legislative function and not a judicial one. Sen Justice also repeated his apprehension as to whether such inroads can be made by the judiciary, while dealing with an appeal under Article 136, confined to sentence; curtailing the scope of death sentence under Section 302 IPC.
50. The issue was once again referred to a Constitution Bench in Bachan Singh(supra). The dissent in the earlier decisions and the subsequent reference to the Constitution Bench was essentially prompted not on the basis of a support for the retention theory, but more by reason of the inevitability due to legislative dictates; having the people's imprimatur. Judges, it was felt, necessarily are called upon to impose punishment, not hold out optional choices for introspection.
51. The advisability of the Court regulating the sentencing procedure under Article 136 received a quietus with the majority judgment in Bachan Singh(supra). The legislative shift after Jagmohan Singh(supra) was highlighted as being confined to only two of the propositions laid down earlier requiring the need to be adjusted and attuned. One of such proposition was regarding the power of the Court to weigh the aggravating and mitigating circumstances of a particular case in its discretion to impose either of the sentences provided in Section 302 IPC. There was a major shift in so far as Section 354(3) of the Code of Criminal Procedure was modified, mandating the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons to be recorded, for such sentence". The legislative policy writ large and clear on the face of Section 354(3) was held to be "that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases” (sic) (page 634 para 161).
52. The other major change noticed was regarding the proposition that circumstances impinging on the nature and circumstances of the case can be brought on record before the pre-conviction stage. Section 235(2) of Cr.P.C. provided for a bifurcated trial. The accused was given a right of pre-sentence hearing at which stage he could bring on record material or evidence which may not be strictly relevant to or connected with the particular crime under enquiry, but nevertheless have a bearing on the choice of sentence, consistent with the policy underlined under Section 354(3) of the Code of Criminal Procedure. Hence, attuning Jagmohan Singh(supra) to the legislative policy reflected in the above changes, the Constitution Bench redrafted the two propositions:
(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence", (page 635para 164).
53. These changes, it was held, reinforced the reasoning in Jagmohan Singh(supra) and reflected thus the immediate response of the Parliament to the fact that Courts have generally exercised their discretion in inflicting the extreme penalty with great circumspection, caution and restraint. Parliament, however, having taken note of the past experience of the administration of death penalty in India, thought it best and safe to leave the imposition of the gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The Constitution Bench categorically stated:
"As pointed out in Jagmohan, such "standardisation is well nigh impossible" (page 636 para 170).
54. The Court also listed out four reasons for not laying down such standardisation. To state briefly, the first was the lack of agreement among penologists and jurists as to what information about the crime and criminal is relevant or irrelevant for the purpose of sentencing. The second reason was the inability to put criminal cases into straight-jacket behavioristic patterns. The third was the fear of altogether removing judicial discretion and thus rendering sentencing to be non-judicial. The last but not the least was the acceptance of the theory that standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation. The Court exhorted recognition of the limits of judicial power and cautioned Judges from setting down social norms of conduct on rational guess work of notions of right and wrong and what is assumed to be morally good. The Bench then laid down the "aggravating circumstances" suggested by Dr. Chitale in paragraph 202, but reaffirmed:
"Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other" (page 645 para 203).
55. Rajendra Prasadwas considered in Bachan Singhby the Constitution Bench, in para 204:
"In Rajendra Prasad,the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of the State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)". Our objection is only to the word "only". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide "special reasons" to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murders who do not fall within the narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its 'ethos' nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw versus State of W.B. which follows the dictum in Rajendra Prasad".
(emphasis supplied)
56. Then the Court again after listing out the mitigating factors suggested by Dr. Chitale placed a rider in so much as saying that these were undoubtedly relevant circumstances worthy of being given great weight in sentencing; but has not been stated to be conclusive. The principle was succinctly stated as:
"Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rate cases when the alternative option is unquestionably foreclosed" (page 647 para 209).
The concurring judgment was by the majority of four Judges with Bhagawati, Justice. dissenting and holding that imposition of death penalty by Section 302 is ultra vires and void by reason of being violative of Articles 14 and 21 of the Constitution, on the ground of it not providing any legislative guidelines.
57. The next decision on the point is Machhi Singh and Others versus State of Punjab[1983 SCC (Cri) 681] which culled out specific instances wherein the imposition of death sentence arises. The said decision has been considered elaborately in Swami Shraddananda (2). Bereft of the facts, Swami Shraddananda versus State of Karnataka[(2007) 12 SCC 288] was one in which two learned Judges of the Honourable Supreme Court differed on the aspect of sentencing. On appeal from the conviction and sentence of death, one learned Judge found the case to be falling out of the category of "rarest of the rare case" and imposed life imprisonment for commission of the crime under Section 302 IPC and directed that considering the nature of the case, life sentence must be meant to be "life sentence", on the basis of precedents discussed earlier in the said judgment. The other learned Judge concurred on the conviction and confirmed the death sentence finding the same to be clearly coming within the category of the "rarest of the rare case". It was thus the matter came before a Larger Bench and the decision rendered therein [Swami Shraddananda (2)(supra)], laid down the principle of alternative sentencing. The issues now arising out of the said decision are:
(i) Whether the sentencing laid down in Swami Shraddananda (2)being imprisonment for a term in excess of 14 years, beyond the application of remission or commutation; was one available to the High Court and the trial Court?
(ii) Whether any guidelines are to be laid down for the purpose of exercising such powers by the High Court and the trial Court?
(iii) If the answer to question No.2 is in the affirmative, is it possible for the Division Bench to draw broad guidelines or is a reference to a Larger Bench called for?
58. Swami Shraddananda (2)has to be understood in its proper tenor and full import as is judicially permissible in accordance with law and in accordance with the Constitutional rigour. Swami Shraddananda (2)considers the entire gamut of decisions of the Honourable Supreme Court and lays it down in the perspective it is to be understood under Article 141 of the Constitution of India. After noticing Jagmohan Singh(supra) and Bachan Singh(supra), the learned Judges highlighted the fact that the "Constitution Benches firmly declined to be drawn into making any standardisation or categorization of cases for awarding death penalty"(sic) (page 782 para 33). The specific refusal, in spite of the strong plea made in favour of laying down guidelines, was referred to in paragraphs 33 to 39 of Swami Shraddananda(2). The elaboration in Machhi Singh (supra) of the principle of "rarest of rare cases", first enunciated by Bachan Singh(supra), was considered from paragraph 40 onwards. The Honourable Supreme Court after extracting the principles laid down in Machhi Singh, said so in paragraph 41:
"In Machhi Singhthe Court held that for practical application the rarest of rare cases principle must be read and understood in the background of the five categories of murder cases enumerated in it. Thus the standardisation and classification of cases that the two earlier Constitution Benches had resolutely refrained from doing finally came to be done in Machhi Singh"(pages 787 and 788 para 42).
59. The Supreme Court then noticing the 25 years that had passed since Machhi Singhconsidered the development; rather the depths to which crime and criminals sank in the said years and stated:
"Relying upon the observations in Bachan Singh,therefore, we respectfully wish to say that even though the categories framed in Machhi Singhprovide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope of flexibility as observed in Bachan Singhitself” (page 788 para 43).
The Supreme Court again upheld the primacy of the exercise of judicial discretion to consider the circumstances of each case in arriving at the extreme circumstance of a crime being held to be "rarest of the rare case", warranting extreme penalty of death. Judges never did, and not at all in todays world, reside in glasshouses. They occupy open terraces of trust often drenched in the squalls and at the same time warmed in the sunshine of public opinion. Wet or dry undeterred should be their will to deliver justice as by law declared.
60. However, the learned judges also recognized the fact that the question of death penalty is not always free from "the subjective element and confirmation of death sentence and commutation by this (Supreme) Court depends a good deal on the predilection of the Judges constituting the Bench" (page 790 para 51). It was considering the overall picture and the lack of uniformity in the sentencing process leading to rank imbalances in the system of criminal administration of justice that the Supreme Court held in Swami Shraddananda (2)that there may be cases wherein a case falls short of the rarest of the rare category thus excluding the imposition of death sentence, but by the nature of crime the normal sentence of life imprisonment subject to remission or commutation, working out to a term of 14 years, would be grossly disproportionate and inadequate. It was in such circumstances that the Honourable Supreme Court considered the possibility of expanding the options so as to cover the "vast hiatus between 14 years imprisonment of life and death" (sic.) (page 805 para 92) The Court thus substituted the death sentence awarded by the trial court and confirmed by the High Court by imprisonment for life and directed that the accused shall not be released till the rest of his life.
61. Whether the said hiatus can be legally traversed by the High Court and the trial court, were the issues argued by the counsels appearing for the accused as also the Director General of Prosecution and Additional Director General of Prosecution. While the counsels appearing for the accused concurred on the issue that such power was available to the High Court, opinions deferred as to such powers being available to the trial court. The State, however, would contend that such power is only available to the Supreme Court that too in exercise of the power conferred under Article 142 of the Constitution of India. In deciding these issues Paragraph 56 of Swami Shraddananda (2) assumes significance.
"But this leads to a more important question about the punishment commensurate to the appellant's crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr Hegde informed us that the appellant was taken in custody on 28.3.1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but alsoby the High Courts, being the superior Courts in their respective States.A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh versus State of Punjab. In para 14 of the judgment this Court held and observed as follows: (SCC p. 753)
14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court,be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder".
(emphasis supplied).
62. It is trite that the powers available to the Honourable Supreme Court under Article 142 is not available to any other Courts in India. It is also trite that in considering the question of enhancement of sentence even in the absence of an appeal by the Government, the Supreme Court has drawn from the powers conferred on it by Article 142 for doing complete justice in the matter pending before the Supreme Court, (AIR 1995 SC 1066, AIR 1966 SC 1136, AIR 1998 SC 1165). However, in none of the cases referred to in Swami Shraddananda (2)wherein the Supreme Court has imposed a sentence of imprisonment for life, beyond remission or commutation as provided under the Criminal Procedure Code; has such power been specifically recorded as drawn from Article 142. One would be tempted to hold that in Swami Shraddananda (2)and the other decisions referred to therein, where the powers of remission or commutation were suspended, the Honourable Supreme Court is deemed to have drawn the powers under Article 142. But the High Court cannot venture to define the contours of the powers available under Article 142 to the Honourable Supreme Court. However, it is pertinent that Swami Shraddananda (2)in Paragraph 56 notices the necessity for laying down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission, in appropriate cases as the uniform policy not only by the Supreme Court but also by the High Courts, being superior courts in their respective States. This specific statement viewed in the background of what was stated earlier in the decision and the concluding authoritative pronouncement of covering the vast hiatus between 14 years imprisonment for life and death, has to be held to be binding on the High Courts under Article 141 of the Constitution of India.
63. This interpretation would be in consonance with the observations in paragraph 45 of Swami Shraddananda (2). The Honourable Supreme Court lamented the lack of details regarding the sentencing procedure followed in similar cases by reason of there being hardly any field of comparison since the Supreme Court is at a disadvantage in so far as, it deals with only those cases that come before it. What is discernible is that; in cases in which the extreme penalty of death sentence is awarded by the trial Court; the sentence necessarily has to be confirmed by the High Court under Section 366 of the Code of Criminal Procedure. The cases in which the High Court confirms such extreme sentence, it cannot be gainsaid that the same as a rule would reach the Supreme Court. Though in practice every case in which the extreme penalty is imposed may reach the Supreme Court especially in the context of the expanding and effective institutionalized legal aid; there is no warrant for such assumption. Invoking the powers of the Supreme Court under Articles 134 and 136 of the Constitution of India necessarily is optional. It must be in this context that the Supreme Court thought it fit to confer the power to impose sentence of imprisonment for life, beyond remission or commutation provided under Cr.P.C; to the High Courts too. Otherwise such benefit, especially with the laudable object of avoiding the harsh death penalty, would be confined to only those death row inmates who choose to approach the Supreme Court. The denial of such a benefit to even a single person would; in the context of the global campaign against a legal process whereby a person is put to death by the State, be abhorrent and offending to the fundamental values of humanity and civilized society. A Division Bench of this Court in State of Kerala versus Navas[2010 (2) KLT 542] followed Swami Shraddananda (2)and sentenced an accused to 30 years imprisonment, thus avoiding the extreme death penalty. In Navas(supra), the division Bench of this Court also has held that:
"We will remind ourselves that Judges dealing with this sublime area of criminal adjudication can neither be retentionists nor abolitionists" (page 548 para 46).
64. The next issue would be as to whether it was intended by the Honourable Supreme Court in Swami Shraddananda (2)that such power of imposing imprisonment for life, beyond any remission permitted under the Code, is available to the trial Court being the Sessions Court. Swami Shraddananda (2)specifically holds :-
"It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life (page 798 Para 75)"
There can hence be no dispute that the sentence of imprisonment for life awarded by the Sessions Court is one for the entire term of life. What is to be considered is whether the Sessions Court established under the Code of Criminal Procedure can be clothed with the authority to suspend the powers of the appropriate Government conferred under Section 432 and 433 of the Code. It was argued that considering Section 28 of the Code of Criminal Procedure, a High Court or a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law only with the rider that a sentence of death passed by a Sessions Judge shall be subject to confirmation by the High Court. Section 28 cannot be taken as conferring the power on the Sessions Court to pass any sentence/order that may be passed by the High Courts. What assumes significance is the prescription of such sentence being in accordance with law; as discernible from the statutes and as interpreted and declared by the Constitutional Courts.
65. Much reliance has also been placed on the suggestions made in Dalbir Singh which, it is pointed out, has received judicial recognition in Swami Shraddananda(2). Dalbir Singh,as noticed above, specifically followed Rajendra Prasadand Bishnu Deo Shawand held that they are binding under Article 141 till overruled by a Larger Bench. It has to be noticed that a Constitution Bench in Bachan Singhspecifically upheld the validity of Section 302 and Section 354(3) and has not fully approved the dictum laid down in Bishnu Deo Shawand Rajendra Prasad. Dalbir Singhin fact added a foot-note to Rajendra Prasadand suggested that the option of imposing a punishment of imprisonment for the whole of a man's life should be conceded to the convicting Court. It is relevant that the same was in the form of a suggestion, that too specifically stated to be "taking the cue from the English legislation on abolition" (sic). This can only be interpreted as a suggestion to the Legislature which definitely gained judicial recognition in Swami Shraddananda (2).
66. In this context Section 433 Cr.P.C. also has to be noticed. Section 433 is extracted hereunder:
"433. Power to commute sentence. –The appropriate Government may, without the consent of the person sentenced, commute -
(a) a sentence of death, for any other punishment provided by the Indian Penal Code;
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding
fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine".
67. Postulating a situation where the accused, say "X", is convicted of a crime coming under Section 302 IPC and is consistently found to be the "rarest of the rare case" warranting imposition of the extreme penalty, it is quite obvious that the benefit of Section 433(a) will be available to him. Another accused, say "Y", convicted again for an offence under Section 302, but by the nature of the crime cannot be imposed with the extreme penalty, and the Court feels that a normal imprisonment for life in any event is inadequate; is imposed with a punishment of imprisonment for life until death; beyond any remission or commutation available under the Criminal Procedure Code. Hence "X" who is deemed to have committed a crime of the rarest of the rare variety will be entitled to the benefit of Section 432 and also 433(a), while "Y", whose crime falls short of "rarest of the rare" variety, will be denied a similar benefit under Section 432 or 433(b). This would lead to an anomaly of a person convicted by the trial Court under Section 302 IPC and imposed with a punishment for imprisonment for life until death being incarcerated for the whole of his life, while another who is deemed to have committed a graver crime may, at the option of the appropriate Government, be considered entitled to the benefit under Section 433(a) facilitating his release within 14 years or above. If the Supreme Court decision is deemed to have conferred the trial Courts also with such powers, the imposition of the sentence of imprisonment for life, until death, may not necessarily reach the High Court while a death sentence would mandate confirmation by a Division Bench of the High Court under the Criminal Procedure Code. It is also significant that, consistent with the legislative policy, the executive Government can at any time commute the death penalty awarded into an imprisonment for life to be suffered for the entire period of life; to avoid the legal extinguishment of life
68. Swami Shraddananda (2)lays down still another alternative option of imprisonment for life, beyond any remission; to avoid the imposition of death penalty. By specific words, the Honourable Supreme Court in Swami Shraddananda (2)has not conferred any such power on the trial Courts. On a reading of Swami Shraddananda (2), I am of the opinion that what was intended by the judgment was to lay down good and sound legal basis as a uniform policy to be followed by the Honourable Supreme Court as also by the High Courts, being the superior Courts in their respective States. It was the Constitutional Courts that were given the power to impose a punishment of imprisonment for life beyond the remissions, commutation, etc. as contained in the Code of Criminal Procedure and the different Acts and the Rules framed by the different States. On such interpretation, I am afraid, I am unable to persuade myself to refer the matter to a Larger Bench for the purpose of laying down guidelines. In any event, it is very pertinent that two Constitution Benches of the Honourable Supreme Court specifically restrained themselves from laying down any standardisation fettering the judicial discretion conferred on Courts by the Legislature. Swami Shraddananda (2)also did not lay down any standardization but merely laid down a "good and sound legal basis as a uniform policy", that too "to be followed by the Honourable Supreme Court and the High Courts". In my humble view, the said restraint exercised by the aforementioned Constitution Benches as also the three Judge Bench assumes the significance of a binding precedent on this Court. Further, what weighs on my mind is that the reference of these cases would only prolong the agony of those inmates of death row. In the expanding horizons of life and liberty, incarceration with the elastic shadow of the hang man's noose, constantly in the mind; is, to say the least, disconcerting and sickening. This is so for the indictee and his family.
69. As noticed earlier, these are all cases in which the Sessions Court has imposed death punishment. The Legislature has thought it fit that execution of such extreme penalty can only be on confirmation by a Division Bench of the High Court. Is it necessary that these cases should go back to the Sessions Court, even in the event of finding that the option of imposition of harsher imprisonment for life without any remission or commutation is exercisable by the Sessions Court? I am of the opinion that this would only prolong the agony of the indictee. Notwithstanding the individual predilections, the duty enjoined upon the Court is to consider the issue before it as by law established and there cannot be any dalliance on this aspect especially in the context of Death Sentence References. On the strength of propositions of law laid down by the Honourable Supreme Court, I am of the view that the Death Sentence References are to be considered on their merits and the agony and trauma to which a convict sentenced to death is subjected is far distanced from academic rhetoric and bringing a finality to the sentence, either way, should be the paramount consideration, of the Court. Ordered accordingly.
SD/-
K. Vinod Chandran,
Judge.
ORDER OF THE COURT
70. In the light of the disagreement between us the matter shall now be placed before the Honourable Chief Justice. The connected Criminal Appeals shall be called with the DSRs.
SD/-
R.BASANT,
(Judge)
SD/-
K. Vinod Chandran,
(Judge)
ORDER OF THE COURT
In the light of the disagreement between us the matter shall now be placed before the Honourable Chief Justice K. VINOD CHANDRAN, (Judge)
(1) to consider the placing of the matter before a third Judge to decide whether the matter must be referred to the Full Bench under Section 4 of the Kerala High Court Act or in the alternative.
(2) to consider whether the matter ought to be referred for decision of a larger Bench under Section 6 of the Kerala High Court Act.