Vikas Yadav Vs. State of Uttar Pradesh and Ors. Etc.
[Criminal Appeal Nos. 1531-1533 of 2015]
[Criminal Appeal Nos. 1528-1530 of 2015]
Dipak Misra, J.
The appellants in this batch of appeals stand convicted for the offences under Sections 302, 364, 201 read with Section 34 of the Indian Penal Code (IPC).
This Court while hearing the special leave petitions on 17.08.2015 had passed the following order:-
"Delay condoned.
Having heard learned senior counsel for the petitioners at great length, we are of the view, that the impugned orders call for no interference whatsoever insofar as the conviction of the petitioners is concerned. The conviction of the three petitioners, as recorded by the courts below, is accordingly upheld.
Issue notice, on the quantum of sentence, returnable after six weeks."
2. On 16.06.2015 leave was granted. Thus, we are only concerned with the legal defensibility and the justifiability of the imposition of sentence.
3. The arguments in these appeals commenced on issues of law. Mr. U.R. Lalit and Mr. Shekhar Naphade, learned senior counsel appearing for the appellant in Criminal Appeal Nos. 1531-1533 of 2015 and Mr. Atul Nanda, learned senior counsel appearing for the appellant in Criminal Appeal Nos. 1528-1530 of 2015 questioned the propriety of the sentence as the High Court has imposed a fixed term sentence, i.e., 25 years for the offence under Section 302 IPC and 5 years for offence under Section 201 IPC with the stipulation that both the sentences would run consecutively.
It is apt to note here that separate sentences have been imposed in respect of other offences but they have been directed to be concurrent. After advancing the arguments relating to the jurisdiction of the High Court as well as this Court on imposition of fixed term/period sentence, more so when the trial court has not imposed death sentence, the learned counsel argued that the factual score in the instant case did not warrant such harsh delineation as a consequence disproportionate sentences have been imposed.
4. Keeping in view the chronology of advancement of arguments, we think it apt to deal with the jurisdictional facet. If we negative the proposition advanced by the learned counsel for the appellants, then only we shall be required to proceed to deal with the facts as requisite to be stated for the purpose of adjudicating the justifiability of imposition of such sentence. If we accede to the first submission, then the second aspect would not call for any deliberation. At this juncture, it is necessary to state that the learned trial judge by order dated 30.05.2008 sentenced Vikas Yadav and Vishal Yadav to life imprisonment as well as fine of one lakh each under Section 302 IPC and, in default of payment of fine, to undergo simple imprisonment for one year.
They were sentenced to undergo simple imprisonment for ten years and fine of Rs. 50,000/- each for their conviction under Section 364/34 IPC, in default to undergo simple imprisonment for six months and rigorous imprisonment for five years and fine of Rs. 10,000/- each under Section 201/34 IPC, in default, simple imprisonment for three months.
All sentences were directed to run concurrently. Sukhdev Yadav @ Pehalwan who was tried separately because of his abscondence in SC No. 76 of 2008 was convicted for the offences under Sections 302/364/34 IPC and Section 201 and by order dated 12.07.2011, he was sentenced to undergo life imprisonment and fine of Rs. 10,000/- for commission of the offence under Section 302 IPC , in default, to undergo rigorous imprisonment for two years; rigorous imprisonment for seven years and fine of Rs. 5,000/- for commission of the offence under Section 364 IPC , in default, to suffer rigorous imprisonment for six months; rigorous imprisonment for three years and fine of Rs. 5,000/- for his conviction under Section 201 IPC , in default, to undergo further rigorous imprisonment for six months. All sentences were directed to be concurrent.
5. Be it noted, the prosecution, - State of NCT of Delhi preferred an appeal under Section 377 CrPC for enhancement of sentence of imprisonment of life to one of death for the offence under Section 302 IPC . The High Court addressed to number of issues, namely,
(a) statutory provisions and jurisprudence regarding imposition of the death penalty;
(b) death sentence jurisprudence - divergence in views;
(c) life imprisonment - meaning and nature of;
(d) the authority of the judiciary to regulate the power of the executive to remit the sentence or to put in other words jurisdiction of the court to direct minimum term sentence in excess of imposition of 14 years;
(e) if there are convictions for multiple offences in one case, does the court have the option of directing that the sentences imposed thereon shall run consecutively and not concurrently;
(f) honour killing - whether penalty of only the death sentence;
(g) contours of the jurisdiction of the High Court to enhance a sentence imposed by the trial court and competency to pass orders under Section 357 of the CrPC in the appeal by the State or revision by a complainant seeking enhancement of sentence;
(h) sentencing procedure and pre-sentencing hearing nature of;
(i) concerns for the victims - award of compensation to heal and as a method of reconciling victim to the offender;
(j) State's liability to pay compensation;
(k) fine and compensation - constituents, reasonability and adequacy;
(l) sentencing principles;
(m) jurisdiction of the appellate court while considering a prayer for enhancement of the sentence;
(n) if not death penalty, what would be an adequate sentence in the present case; and
(o) what ought to be the fitnes in the present case.
6. Apart from the said aspects, the High Court also addressed to certain aspects which are specific to the case at hand to which we will advert to at a later stage.
7. The High Court, after addressing the aspects which we have catalogued and some other fact specific issues, imposed the following sentences:-
"881. In view of the above discussion, we modify and enhance the sentence imposed by the judgments dated 30th May, 2008 upon the defendants Vikas Yadav, Vishal Yadav and 12th July, 2011 upon Sukhdev Yadav and direct that they shall be liable to undergo the following sentences :-
(I)
For commission of offences under
Sentences awarded to each of Vikas Yadav & Vishal Yadav
Sentence awarded to Sukhdev Yadav
Section 302/34 IPC
Life imprisonment which shall be 25 years of actual imprisonment without consideration of remission, and fine of Rs. 50 lakh each
Life imprisonment which shall be 20 years of actual imprisonment without consideration of remission, and fine of Rs.10,000/-
Upon default in payment of fine, they shall be liable to undergo rigorous imprisonment of 3 years.
Upon default in payment of fine, he shall be liable to undergo simple imprisonment for one month.
Section 364/34 IPC
Rigorous imprisonment for 10 years with a fine of Rs.2 lakh each
10 years rigorous imprisonment with fine of Rs.5,000/-
Upon default in payment of fine, they shall be liable to undergo rigorous imprisonment for 6 months
Upon default in payment of fine, he shall be liable to undergo simple imprisonment for 15 days
Section 201/34 IPC
Rigorous imprisonment for 5 years and a fine Rs.2 lakh each
5 years rigorous imprisonment with fine of Rs.5,000/-
Upon default in payment of fine, they shall be liable to undergo rigorous imprisonment for 6 months
Upon default in payment of fine, he shall be liable to undergo simple imprisonment for 15 days
(II) It is directed that the sentences for conviction of the offences under Section 302/34 and Section 364/34 IPC shall run concurrently. The sentence under Section 201/34 IPC shall run consecutively to the other sentences for the discussion and reasons in paras 741 to 745 above.
(III) The amount of the fines shall be deposited with the trial court within a period of six months from today.
(IV) We further direct that the fine amounts of Rs.50,00,000/- of each of Vikas Yadav and Vishal Yadav when deposited with the trial court, are forthwith disbursed in the following manner:
(i)
To the Government of Uttar Pradesh towards investigation, prosecution and defence of the cases with regard to FIR No.192/2002 P.S. Ghaziabad.
Rs.5,00,000/- from the deposit of the fine of each of the defendants
(ii)
To the Government of NCT of Delhi towards prosecution, filing and defence of litigation, administration of courts and witness protection with regard to FIR No.192/2002 P.S. Ghaziabad
Rs.25,00,000/- from the deposit of the fine of each of the defendants
(iii)
To Nilam Katara towards the costs incurred by her in pursuing the matter, filing petitions and applications as well as defending all cases after 16th/17th February, 2002 with regard to FIR No.192/2002 in all courts.
Rs.20,00,000/- from the deposit of the fine of each of the defendants
(V) Amount of fines deposited by Sukhdev Yadav and other fines deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the Delhi Legal Services Authority to be utilised under the Victims Compensation Scheme.
(VI) In case an application for parole or remission is moved by the defendants before the appropriate government, notice thereof shall be given to Nilam Katara as well as Ajay Katara by the appropriate government and they shall also be heard with regard thereto before passing of orders thereon.
(VII) So far as Vikas Yadav is concerned, we also issue the following directions:
(i) The period for the admission in AIIMS from 10th October, 2011 to 4th November, 2011 (both days included) shall not be counted as a period for which he has undergone imprisonment. His records and nominal rolls shall be accordingly corrected by the jail authorities.
(ii) Vikas Yadav shall make payments of the following amounts to the Government of NCT of Delhi:
(i)
Amounts paid to AIIMS
Rs.50,750/-
(ii)
Towards security deployment during AIIMS
Rs.1,20,012/-
(iii)
OPD visits
Rs.50,000/-
(iv)
Taxi fare
Rs.18,500/-
Total
Rs.2,39,262/-
(VIII) So far as Vishal Yadav is concerned, we direct as hereafter :-
(i) The periods of the admissions in the Batra Hospital totalling 320 days [32 days (from 7th July, 2008 to 7th August, 2008); 24 days (from 14th August, 2008 to 6th September, 2008), 53 days (24th October, 2008 to 15th December, 2008); 100 days (from 25th February, 2009 to 6th June, 2009); 71 days (from 7th October, 2009 to 16th December, 2009); 36 days (from 29th September, 2010 to 3rd November, 2010); 4 days (from 14th October, 2011 to 17th October, 2011)] shall not be counted as a period which he has undergone imprisonment. His records and nominal rolls shall be accordingly corrected by the jail authorities.
(ii) Vishal Yadav shall make payments of the following amounts to the Government of NCT of Delhi:
(i)
Provision of security during the above seven hospital admissions post conviction
Rs.14,75,184/-
(ii)
During OPD hospital visits
Rs.50,000/-
(iii)
Post conviction visits on taxi fare
Rs.14,700/-
Total
Rs.15,39,884/-
(IX) The amounts directed to be paid by Vishal Yadav and Vikas Yadav at Sr. Nos.(VI) and (VII) above shall be deposited within four months of the passing of the present order.
(X) In the event of the failure to deposit the amount as directed at Sr. Nos.(VI), (VII) and (VIII), the defaulting defendant (Vikas Yadav and Vishal Yadav) shall be liable to undergo rigorous imprisonment of one year. It is made clear that these directions are in addition to the substantive sentences imposed upon them."
8. We think it appropriate to deal with the aspect of legal permissibility of the imposition of sentence first as the learned senior counsel appearing for the appellants had argued quite astutely with regard to the non-acceptability of such fixed term sentences and other facets relating to it. After we answer the said issue, if needed, we shall dwell upon the sustainability and warrantableness of the sentences in the facts of the case.
9. Learned senior counsel for the appellants have advanced the following propositions to bolster the first stand:-
(i) When the Indian Penal Code provides for only two punishments, i.e., imprisonment for life or death, the court by judge-made law cannot introduce a third category of punishment.
(ii) The prescription of third category of punishment is contrary to Sections 28 and 386 CrPC and Section 302 IPC .
(iii) Prescription of sentence is within the domain of the legislature and the court can only impose such sentence what has been provided for by the legislature and not invent one.
(iv) Wherever the legislature has thought it appropriate, it has provided sentences by providing certain years, such as, offences punishable under Sections 376A, 376D and 392 IPC ; Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985; and when it is not provided for in the IPC in respect of Section 302 IPC , the court cannot impose a third category of sentence as that would tantamount to legislation by the judiciary.
(v) When the court imposes a third category of sentence, there is either express or implied direction for not granting the remission as provided under Section 433-A after expiry of 14 years which is legally not permissible inasmuch as this Court in exercise of power under Article 142 of the Constitution cannot direct a statutory provision to be kept in abeyance as a mode of sentencing structure.
(vi) The Constitution Bench decisions in K.M. Nanavati v. State of Bombay[1]and Sarat Chandra Rabha and others v. Khagendranath Nath and others[2] have not been considered by the majority in Union of India v. V. Sriharan alias Murugan and others[3] and it, therefore, requires reconsideration.
(vii) When the trial court has imposed the life sentence and the question of commutation does not arise, as a logical corollary, imposition of fixed term sentence is impermissible as has been held in Sahib Hussain alias Sahib Jan v. State of Rajasthan[4] and Gurvail Singh alias Gala v. State of Punjab[5]. In essence, in the absence of a death sentence, a fixed term sentence cannot be imposed. The appellate court, assuming has the authority, can impose only such sentence which could have been imposed by the trial court as has been clearly held in Jagat Bahadur v. State of Madhya Pradesh[6] and in Shankar Kerba Jadhav and others v. The State of Maharashtra[7].
(viii) The Court when imposes sentence by saying "fixed term sentence", it takes away the power of the executive which is constitutionally not permissible as per the pronouncements in K.M. Nanavati (supra), Sarat Chandra Rabha (supra) and A.R. Antulay v. R.S. Naik and another[8].
(ix) There is remotely any warrant to direct the sentence for life and sentence imposed under Section 201 IPC to run consecutively, and it is a palpable error which cannot be countenanced, and in fact, it runs counter to the Constitution Bench decision in Muthuramalingam & Ors. v. State represented by Insp. of Police[9].
(ix) The High Court has fallen into grave error by imposing 20 years of sentence on Sukhdev Yadav, whereas Vikas Yadav and Vishal Yadav had been sentenced for 25 years which demonstrates total non-application of mind.
(x) The issue of enhancement of sentence and fixed term was not referred to the Constitution Bench but the Constitution Bench has dealt with the same and, therefore, the decision in V. Sriharan (supra) suffers from impropriety.
10. Mr. Dayan Krishnan, learned senior counsel appearing for the State of NCT Delhi, in his turn, submits that the judgment rendered by the Constitution Bench in V. Sriharan (supra) is absolutely correct and is a binding precedent from all spectrums and does not require reconsideration. Learned senior counsel further argued that the judgment rendered by the Constitution Bench does not run counter to the principles set out in the earlier two judgments in K. Nanavati (supra) and Shankar Kerba Jadhav (supra) because the said judgments have been rendered in altogether different contexts and the opinion expressed therein has to be understood regard being had to the factual score that arose therein. According to the learned counsel for the State, the constitutional courts have power to pass fixed term sentence in the interest of justice.
Defending the imposition of sentence in the case, Mr. Krishnan would submit that when the State had preferred an appeal for enhancement of sentence, i.e., from imprisonment of life to death sentence, the decision of the High Court is absolutely flawless. It is argued by him that the direction for the life sentence and the sentence imposed under Section 201 IPC to be consecutive and not to run concurrently cannot be found fault with as the High Court has ascribed adequate reasons for the same and it is in consonance with the principle stated in Muthuramalingam (supra) and if there is any deviation therein, the same can be rectified by this Court. 11. Ms. Aparajita Singh, learned counsel appearing for the informant, supported the stand of the State and emphasized that in a crime of honor killing stringent punishment deserves to be imposed.
12. Presently, we shall proceed to deal with the contentions, and we make it clear the delineation thereof shall not be in strict seriatim as the contentions in a way overlap. Section 28 CrPC reads as follows:- 1 "28. Sentences which High Courts and Sessions Judges may pass.-
(1) A High Court may pass any sentence authorised by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years."
13. The submission of the learned senior counsel for the appellants is that the High Court can pass any sentence "authorised by law" and a Sessions Judge or an Additional Sessions Judge may pass any sentence authorised by law but for any sentence of death passed by any such Judge shall be subject to confirmation by the High Court and, therefore, no court can impose a sentence if it is not authorised by law. The fulcrum of the submission is that the said provision is substantive in nature and it is not in the realm of adjective law. In this context, our attention has been drawn to Section 386 CrPC . The said provision reads as follows:-
"386. Power of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper;
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
14. Elaborating on the same, it is urged that an appellate court can impose a sentence what the trial Judge could have imposed. The appellate jurisdiction which is classically called 'error jurisdiction' only embraces to rectify the errors and thereafter impose the sentence. It may dismiss, alter or enhance the sentence depending upon the fact situation when an appeal is preferred, but it does not possess the jurisdiction to impose any sentence that does not have the sanction of law. In this context, learned senior counsel have drawn our attention to Section 53 IPC . It is as follows:-
"53. Punishments.-The punishments to which offenders are liable under the provisions of this Code are-
First - Death;
Secondly.-Imprisonment for life;
Fourthly -Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly -Forfeiture of property;
Sixthly -Fine."
15. According to them, the court cannot travel beyond Section 53 IPC which deals with punishments. Section 302 IPC provides for punishment for murder.
It is as follows:-
"302. Punishment for murder.-Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
16. Mr. Lalit and Mr. Naphade would contend that the court can either impose sentence of imprisonment for life or sentence of death but any other fixed term sentence is totally inconceivable in terms of the statute. In respect of an offence under Section 302, life is the minimum and the maximum is the death sentence and, therefore, the court has a choice between the two and is not entitled to follow any other path, for that would be violative of the sanctity of Article 21 of the Constitution which clearly stipulates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Learned counsel for the appellants submit that imposition of sentence for a fixed term is contrary to the procedure established by law and hence, impermissible.
17. We shall first see how the Constitution Bench in V. Sriharan (supra) has dealt with this aspect. The three-Judge Bench in Union of India v. V. Sriharan alias Murugan and others[10] framed certain questions for consideration by the Constitution Bench. The Constitution Bench in V. Sriharan (supra) reproduced the said questions and thereafter formulated the core questions for answering the same.
After adverting to the same, the Court observed that the issues raised were of utmost critical concern for the whole country as the decision on the questions would determine the procedure for awarding sentence and the criminal justice system. Thereafter, the Court referred to the authority in Swamy Shraddananda (2) v. State of Maharashtra[11] and framed the following questions:-
"2.1. Maintainability of this writ petition under Article 32 of the Constitution by the Union of India.
2.2.
(i) Whether imprisonment for life means for the rest of one's life with any right to claim remission?
(ii) Whether as held in Shraddananda case (2), a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission can be imposed?
2.3. Whether the appropriate Government is permitted to grant remission under Sections 432/433 of the Criminal Procedure Code, 1973 after the parallel power was exercised under Article 72 by the President and under Article 161 by the Governor of the State or by the Supreme Court under its constitutional power(s) under Article 32?
2.4. Whether the Union or the State has primacy for the exercise of power under Section 432(7) over the subject-matter enlisted in List III of the Seventh Schedule for grant of remission?
2.5. Whether there can be two appropriate Governments under Section 432(7) of the Code?
2.6. Whether the power under Section 432(1) can be exercised suo motu, if yes, whether the procedure prescribed under Section 432(2) is mandatory or not?
2.7. Whether the expression "consultation" stipulated in Section 435(1) of the Code implies "concurrence"?"
18. We have reproduced the entire paragraph for the sake of completeness and understanding. The issues that have been raised by Mr. Lalit and Mr. Naphade fundamentally relate to the issues in para 2.2.
The majority in the Constitution Bench, after referring to the decisions in Maru Ram v. Union of India and others[12], Gopal Vinayak Godse v. State of Maharashtra and others[13] and State of Madhya Pradesh v. Ratan Singh and others[14], opined that the legal position is quite settled that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Criminal Procedure Code by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz. the President or the Governor of the State respectively.
The Court referred to the decision in Ashok Kumar alias Golu v. Union of India and others[15], wherein it was specifically ruled that the decision in Bhagirath v. Delhi Administration[16] does not run counter to Godse (supra) and Maru Ram (supra). The relevant paragraph from Ashok Kumar (supra) is reproduced below:-
"15. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433-A of the Code, or constitutional power has been exercised under Articles 72/161 of the Constitution. In Bhagirath case the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of Section 428 of the Code which, inter alia, provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of imprisonment ultimately awarded to him".
19. Referring to Section 57 IPC , [pic]the decision in Ashok Kumar (supra) reiterated the legal position as under:- '9. ... The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms of punishment. We cannot press that provision into service for a wider purpose.'
20. It has been held in V. Sriharan (supra) that the said observations are consistent with the ratio laid down in Godse (supra) and Maru Ram (supra).
21. Thereafter, the majority in V. Sriharan (supra) quoted a paragraph from Bhagirath's case (supra) which pertained to set-off under Section 428 CrPC which is to the following effect:-
"11. ... The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or Section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life."
22. Thereafter, the Court in V. Sriharan (supra) observed:-
"We fail to see any departure from the ratio of Godse case; on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433-A and, 'provided that orders have been passed by the appropriate authority under Section 433 of the Criminal Procedure Code '.
These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set-off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under Sections 432/433 of the Code. The ratio of Bhagirath case, therefore, does not run counter to the ratio of this Court in Godse or Maru Ram.
xxxxx xxxxx
61. Having noted the abovereferred to two Constitution Bench decisions in Godse and Maru Ram which were consistently followed in the subsequent decisions in Sambha Ji Krishan Ji[17], Ratan Singh, Ranjit Singh[18], Ashok Kumar and Subash Chander[19]. The first part of the first question can be conveniently answered to the effect that imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State and also as provided under Section 432 of the Criminal Procedure Code ".
23. After so stating, the majority addressed to the concept of remission. It opined that:- "As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code .
Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless [pic]there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid down in Swamy Shraddananda (2)."
24. After dwelling upon the said aspect, the Court referred to the principles stated in paragraphs 91 and 92 in Swamy Shraddananda (2) (supra). It adverted to the facts in Swamy Shraddananda (2) (supra) and analysed that this Court had made a detailed reference to the decisions in Bachan Singh v. State of Punjab[20], Machhi Singh and others v. State of Punjab[21], and Jagmohan Singh v. State of U.P.[22] where the principle of rarest of the rare case was formulated. After referring to the said decisions, the majority reproduced paragraphs 34, 36, 43, 45, and 47 of Swamy Shraddananda (2) (supra) and came to hold that:-
"66. After noting the above principles, particularly culled out from the decision in which the very principle, namely, "the rarest of rare cases", or an "exceptional case" or an "extreme case", it was noted that even thereafter, in reality in later decisions neither the rarest of the rare case principle nor Machhi Singh categories were followed uniformly and consistently. In this context, the learned Judges also noted some of the decisions, namely, Aloke Nath Dutta v. State of W.B.[23]
This Court in Swamy Shraddananda (2) also made a reference to a report called "Lethal Lottery, The Death Penalty in India" compiled jointly by Amnesty International India and People's Union for Civil Liberties, Tamil Nadu, and Puducherry wherein a study of the Supreme Court judgments in death penalty cases from 1950 to 2006 was referred to and one of the main facets made in the Report (Chapters 2 to 4) was about the Court's lack of uniformity and consistency in awarding death sentence. This Court also noticed the ill effects it caused by reason of such inconsistencies and lamented over the same in the following words in para 52: [Swamy Shraddananda (2) case, SCC p. 790]
"52. The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the criminal justice system. Thus, the overall larger picture gets asymmetric and lopsided and presents a poor reflection of the system of criminal administration of justice. This situation is a matter of concern for this Court and needs to be remedied."
25. The larger Bench endorsed the anguish expressed by the Court and opined that the situation is a matter of serious concern for this Court and it wished to examine whether the approach made thereafter by this Court does call for any interference or change or addition or mere confirmation. Be it noted, the three-Judge Bench in Swamy Shraddananda (supra) took note of the plan devised by the accused, the betrayal of trust, the magnitude of criminality and the brutality shown in the commission of the ghastly crime and the manner in which the deceased was sedated and buried while she was alive. The Court, taking into consideration the materials brought on record in entirety, imposed the sentence of fixed term imprisonment instead of sentence of death.
26. The issue arose before the Constitution Bench with regard to the mandate of Section 433 CrPC . The majority took note of the fact that the said provision was considered at length and detailed reference was made to Sections 45, 53, 54, 55, 55A, 57 and other related provisions in the IPC in Swamy Shraddananda(2) (supra) to understand the sentencing procedure prevalent in the Court. Thereafter, the majority reproduced paragraphs 91 and 92 from the said judgment which we think are required to be reproduced to appreciate the controversy:-
"91. The legal position as enunciated in Kishori Lal[24], Gopal Vinayak Godse, Maru Ram, Ratan Singh and Shri Bhagwan[25] and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few [pic]cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh *or it may be highly disproportionately inadequate*. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do?
If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. 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. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all."
[Emphasis supplied]
27. Thereafter, the majority adverted to the concurring opinion of Fazal Ali, J. in Maru Ram's case and reproduced copiously from it and opined thus:- "Keeping the above hard reality in mind, when we examine the issue, the question is "whether as held in Shraddananda (2), a special category of sentence; instead of death; for a term exceeding 14 years and putting that category beyond application of remission is good in law? When we analyse the issue in the light of the principles laid down in very many judgments starting from Godse, Maru Ram, Sambha Ji Krishan Ji, Ratan Singh, it has now come to stay that when in exceptional cases, death penalty is altered as life sentence, that would only mean rest of one's lifespan".
28. At that juncture, the issue arose with regard to the interpretation of Section 433-A CrPC. In that context, the majority opined:- "In this context, the submission of the learned Solicitor General on the interpretation of Section 433-A CrPC assumes significance. His contention was that under Section 433-A CrPC what is prescribed is only the minimum and, therefore, there is no restriction to fix it at any period beyond 14 years and up to the end of one's lifespan. We find substance in the said submission. When we refer to Section 433-A, we find that the expression used in the said [pic]section for the purpose of grant of remission relating to a person convicted and directed to undergo life imprisonment, it stipulates that "such person shall not be released from prison unless he had served at least fourteen years of imprisonment"
(emphasis supplied).
Therefore, when the minimum imprisonment is prescribed under the statute, there will be every justification for the court which considers the nature of offence for which conviction is imposed on the offender for which offence the extent of punishment either death or life imprisonment is provided for, it should be held that there will be every justification and authority for the court to ensure in the interest of the public at large and the society, that such person should undergo imprisonment for a specified period even beyond 14 years without any scope for remission. In fact, going by the caption of the said Section 433-A, it imposes a restriction on powers of remission or commutation in certain cases.
For a statutory authority competent to consider a case for remission after the imposition of punishment by court of law it can be held so, then a judicial forum which has got a wider scope for considering the nature of offence and the conduct of the offender including his mens rea to bestow its judicial sense and direct that such offender does not deserve to be released early and required to be kept in confinement for a longer period, it should be held that there will be no dearth in the authority for exercising such power in the matter of imposition of the appropriate sentence befitting the criminal act committed by the convict."
(Emphasis Supplied)
29. As we notice, there has been advertence to various provisions of IPC, namely, Sections 120-B(1), 121, 132, 194, 195-A, 302, 305, 307 (Second Part), 376-A, 376-E, 396 and 364-A and certain other provisions of other Acts. The Court observed that death sentence is an exception rather than a rule and where even after applying such great precautionary prescription when the trial courts reach a conclusion to impose the maximum punishment of death, further safeguards are provided under the Criminal Procedure Code and the special Acts to make a still more concretised effort by the higher courts to ensure that no stone is left unturned before the imposition of such capital punishments. After so stating, the majority referred to the report of Justice Malimath Committee and Justice Verma Committee, and in that context, observed that:-
"91. We also note that when the Report of Justice Malimath Committee was submitted in 2003, the learned Judge and the members did not have the benefit of the law laid down in Swamy Shraddananda (2). Insofar as Justice Verma Committee Report of 2013 is concerned, the amendments introduced after the said Report in Sections 370(6), 376-A, 376-D and 376-E, such prescription stating that life imprisonment means the entirety of the convict's life does not in any way conflict with the well-thought out principles stated in Swamy Shraddananda (2).
In fact, Justice Verma Committee Report only reiterated the proposition that a life imprisonment means the whole of the remaining period of the convict's natural life by referring to Mohd. Munna[26], Rameshbhai Chandubhai Rathod (2) v. State of Gujarat[27] and State of U.P. v. Sanjay Kumar[28] and nothing more. Further, the said amendment can only be construed to establish that there should not be any reduction in the life sentence and it should remain till the end of the convict's lifespan.
30. The purpose of referring to the aforesaid analysis is only to understand the gravity and magnitude of a case and the duty of the Court regard being had to the precedents and also the sanction of law.
31. Dealing with the procedure as a substantive part, the majority opined that:- "Such prescription contained in the Criminal Procedure Code, though procedural, the substantive part rests in the Penal Code for the ultimate confirmation or modification or alteration or amendment or amendment of the punishment. Therefore, what is apparent is that the imposition of death penalty or life imprisonment is substantively provided for in the Penal Code, procedural part of it is prescribed in the Criminal Procedure Code and significantly one does not conflict with the other.
Having regard to such a dichotomy being set out in the Penal Code and the Criminal Procedure Code, which in many respects to be operated upon in the adjudication of a criminal case, the result of such thoroughly defined distinctive features have to be clearly understood while operating the definite provisions, in particular, the provisions in the Penal Code providing for capital punishment and in the alternate the life imprisonment".
[Underlining is ours]
32. We need not advert to other aspects that have been dwelt upon by the Constitution Bench, for we are not concerned with the same. The submission of the learned senior counsel for the appellants is that there is an apparent error in the Constitution Bench decision as it has treated the provisions of CrPC as procedural. On a reading of the decision, it is manifest that the majority has explained how there is cohesive co-existence of CrPC and IPC. We may explain it in this manner. Section 28 CrPC empowers the court to impose sentence authorized by law. Section 302 IPC authorizes the court to either award life imprisonment or death.
As rightly submitted by Mr. Lalit and Mr. Naphade, there is a minimum and maximum. Life imprisonment as held in Gopal Vinayak Godse (supra), Ratan Singh (supra), Sohan Lal v. Asha Ram and others[29] and Zahid Hussein and others v. State of W.B. and another[30] means the whole of the remaining period of the convict's natural life. The convict is compelled to live in prison till the end of his life. Sentence of death brings extinction of life on a fixed day after the legal procedure is over, including the ground of pardon or remission which are provided under Articles 71 and 161 of the Constitution. There is a distinction between the conferment of power by a statute and conferment of power under the Constitution.
The same has been explained in Maru Ram (supra) and V. Sriharan (supra). Recently, a two- Judge Bench in State of Gujarat & Anr. v. Lal Singh @ Manjit Singh & Ors.[31] in that context has observed thus:- "In Maru Ram (supra) the constitutional validity of Section 433-A CrPC which had been brought in the statute book in the year 1978 was called in question. Section 433-A CrPC imposed restrictions on powers of remission or commutation in certain cases. It stipulates that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment.
The majority in Maru Ram (supra) upheld the constitutional validity of the provision. The Court distinguished the statutory exercise of power of remission and exercise of power by the constitutional authorities under the Constitution, that is, Articles 72 and 161. In that context, the Court observed that the power which is the creature of the Code cannot be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States, for the source is different and the substance is different. The Court observed that Section 433-A CrPC cannot be invalidated as indirectly violative of Articles 72 and 161 of the Constitution. Elaborating further, the majority spoke to the following effect:-
"... Wide as the power of pardon, commutation and release (Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. ..."
33. In Kehar Singh and another v. Union of India and another[32] the Constitution Bench has opined that the power to pardon is part of the constitutional scheme and it should be so treated in the Indian Republic. There has been further observation that it is a constitutional responsibility of great significance to be exercised when the occasion arises in accordance with the discretion contemplated by the context. The Court has also held that exercise of the said power squarely falls within the judicial domain and can be exercised by the court by judicial review. In Epuru Sudhakar and another v. Govt. of A.P. and others[33] , in the concurring opinion, S.H. Kapadia, J. (as His Lordship then was) stated thus:- "Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege.
It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves.
However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and commutations."
And, again:- "... The Rule of Law is the basis for evaluation of all decisions.
The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of 26 Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations would be subversive of the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The Rule of Law principle comprises a requirement of "Government according to law".
The ethos of "Government according to law" requires the prerogative to be exercised in a manner which is consistent with the basic principle of fairness and certainty. Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future."
34. We have referred to the aforesaid aspect extensively as it has been clearly held that the power of the constitutional authorities under Article 71 and Article 161 of the Constitution has to remain sacrosanct but the power under Section 433-A CrPC which casts a restriction on the appropriate functionary of the Government can judicially be dealt with.
35. To elaborate, though the power exercised under Article 71 and Article 161 of the Constitution is amenable to judicial review in a limited sense, yet the Court cannot exercise such power. As far as the statutory power under Section 433-A is concerned, it can be curtailed when the Court is of the considered opinion that the fact situation deserves a sentence of incarceration which be for a fixed term so that power of remission is not exercised. There are many an authority to support that there is imposition of fixed term sentence to curtail the power of remission and scuttle the application for consideration of remission by the convict. It is because in a particular fact situation, it becomes a penological necessity which is permissible within the concept of maximum and the minimum.
There is no dispute over the maximum, that is, death sentence. However, as far as minimum is concerned the submission of the learned counsel for the appellants is courts can say "imprisonment for life" and nothing else. It cannot be kept in such a strait-jacket formula. The court, as in the case at hand, when dealing with an appeal for enhancement of sentence from imprisonment of life to death, can definitely say that the convict shall suffer actual incarceration for a specific period. It is within the domain of judiciary and such an interpretation is permissible. Be it noted, the Court cannot grant a lesser punishment than the minimum but can impose a punishment which is lesser than the maximum. It is within the domain of sentencing and constitutionally permissible.
36. We must immediately proceed to state that similar conclusion has been reached by the majority in V. Sriharan (supra) and other cases, Mr. Lalit and Mr. Naphade would submit that the said decision having not taken note of the principles stated in K.M. Nanavati (supra) and Sarat Chandra Rabha (supra) is not a binding precedent.
In K.M. Nanavati (supra), the question that arose before the Constitution Bench pertained to the extent of the power conferred on the Governor of a State under Article 161 of the Constitution; and whether the order of the Governor can impinge on the judicial power of this Court with particular reference to its power under Article 142 of the Constitution.
Be it stated, the petitioner therein was convicted under Section 302 IPC and sentenced to imprisonment for life. After the judgment was delivered by the High Court and the writ was received by the Sessions Judge, he issued warrant of arrest of the accused for the purpose of sending him to the police officer in-charge of the City Sessions Court. The warrant was returned unserved with the report that it could not be served in view of the order passed by the Governor of Bombay suspending the sentence upon the petitioner.
In the meantime, an application for leave to appeal to Supreme Court was made soon after the judgment was pronounced by the High Court and the matter was fixed for hearing. On that day, an unexecuted warrant was placed before the concerned Bench which directed that the matter is to be heard by a larger Bench in view of the unusual and unprecedented situation. A Special Bench of five Judges of the High Court heard the matter and the High Court ultimately held that as the sentence passed upon the accused had been suspended, it was not necessary for the accused to surrender and, therefore, Order XXI Rule 5 of the Supreme Court Rules would not apply to the case. The High Court opined that the order passed by the Governor was not found to be unconstitutional.
A petition was filed for special leave challenging the conviction and sentence and an application was filed seeking exemption stating all the facts. The matter was ultimately referred to the Constitution Bench, and the larger Bench analyzing various facets of the Constitution, came to hold thus:-
"21. In the present case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this court; and the controversy has narrowed down to whether for the period when this court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this court in exercise of what is ordinarily called "mercy jurisdiction".
Such a pardon after the accused person has been convicted by the court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such "mercy jurisdiction". But the suspension of the sentence for the period when this court is in seizin of the case could have been granted by this court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction.
Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr Seervai that the words of the Constitution, namely, Article 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument insofar as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way. So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401.
On that interpretation Mr Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending cage judicially." And again:- "As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of the sentence could only operate until the matter became sub judice in this court on the filing of the petition for special leave to appeal. After the filing of such a petition this court was seized of the case which would be dealt with by it in accordance with law. It would then be for this Court, when moved in that behalf, either to apply Rule 5 of Order 21 or to exempt the petitioner from the operation of that Rule.
It would be for this court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as this court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this court."
37. Relying on the same, it is urged that when a constitutional court adds a third category of sentence, it actually enters into the realm of Section 433-A CrPC which rests with the statutory authority. According to the learned senior counsel for the appellants, after the conviction is recorded and sentence is imposed, the court has no role at the subsequent stage. But when higher sentence is imposed, there is an encroachment with the role of the executive. In this context, learned senior counsel have drawn our attention to the principles stated in another Constitution Bench judgment in Sarat Chandra Rabha (supra), wherein it has been held that the effect of pardon is different than remission which stands on a different footing altogether.
The Constitution Bench, explaining the same, proceeded to state thus:- "4. ... In the first place, an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was.
The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. This distinction is well brought out in the following passage from Weater's Constitutional Law on the effect of reprieves and pardons vis-Ã -vis the judgment passed by the court imposing punishment, at p. 176, para 134:
"A reprieve is a temporary suspension of the punishment fixed by law. A pardon is the remission of such punishment. Both are the exercise of executive functions and should be distinguished from the exercise of judicial power over sentences. 'The judicial power and the executive power over sentences are readily distinguishable,' observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment'."
Though, therefore, the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in law
