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TMI Blog1989 (2) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... R 348; Sher Singh & Others v. The State of Punjab, [1983] 2 SCR 582 and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8. In Vatheeswaran's case, a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that: "Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Art. 21 and demand the quashing of the sentence of death." In Sher Singh's case which was a decision of a three Judges' Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commutation and two years rule could not be laid down in cases of delay. It was held that the Court in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however not disputed that in Bachan Singh etc. etc. v. State of Punjab etc. etc., [1983] 1 SCR 145 constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then was, which is the minority opinion in Bachan Singh's case. In his opinion Justice P.N. Bhagwati has conducted a detailed research and has considered the material about the various aspects of sentence of death. Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoever condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence. He also contended that the opinion has been drifting and the statistics reveal that at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this, so far as the present case is concerned, is not necessary. One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder another capital offences were before the Parliament and presumably considered by it when in 1972-73, it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provisions of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unreasonable and not in public interest. Therefore, the impugned provision in section 302, violates neither the letter nor the ethos of Article 19." We are in entire agreement with the view expressed above. It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh's case, with which we agree but the learned counsel at length submitted that the modern theorists of jurisprudence have given a go-bye to the retributive theory of punishment although in some countries it is recognised on a different principle i.e. to pacify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; "In trials by jury, the Court need not write a judgment, but the Court of Sessions shall record the heads of the charge to the jury: Provided that it shall not be necessary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand." Thus the legislature dropped that part of the sub-clause which made it necessary for the Court to state reasons for not awarding sentence of death. Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences. In the Code of Criminal Procedure 1973 Section 354 clause (3) has now been introduced and it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving sentence of death. This provision Sec. 354 clause (3)reads: "When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment of a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces after the death sentence is confirmed by the High Court and therefore to consider the question of delay the time should be computed from the date of the High Court judgment. On the other hand learned Attorney General contended that even if the judgment of confirmation by the High Court is passed in which capital punishment is awarded, invariably comes to this Court and this Court ordinarily grants leave and appeals are heard at length and it was therefore contended that the delay in execution of the sentence really could be considered after the pronouncement of the final verdict by this Court and it is only after the final verdict is pronounced that it could be said that the judicial process has concluded. It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that all this delay upto the final judicial process is taken care of while the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the number of offences triable by the Sessions Court have been increased but there is sometimes a slight departure from the normal rule which is the cause to some extent for some slackness in the Sessions trial but attempt is always made and it is expected that Sessions case where offences alleged is one which is punishable with death should be given top priority and normally it Is given top priority and it is expected that the trials must continue day to day unless it is concluded. Although it is well-known that sometimes it is at the instance of the advocates appearing for defence also that this normal rule is given a go-bye but ordinarily it is expected that these cases must be tried expeditiously and disposed of. Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us--a Bench of five-Judges, was listed for heating after a long interval of time. We do not know why this reference could not, be listed except what is generally well-known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed of expeditiously. It was also contended that when capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law. Section 366 of the Code of Criminal Procedure provides: "366. Sentence of death to be submitted by Court of Session for confirmation--(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. (2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant." This no doubt authorises the Court of Sessions to commit a person sentenced to death to jail custody under a warrant. But this Section does not contemplate how long he has to be in jail. Clause (1) of Section 366 provides that when the Court of Sessions passes a sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .366 is to make available the prisoner when the sentence is required to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sentence as and when that situation arises. After the sentence becomes executable he may be kept in cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company. If the prisoner under sentence of death is held in jail custody, punitive detention cannot be imposed upon him by jail authorities except for prison offences. When a prisoner is committed under a warrant for jail custody under s. 366(2) Cr. P.C. and if he is detained in solitary confinement which is a punishment prescribed by s. 73 IPC, it will amount to imposing punishment for the same offence more than once which would be violative of Article 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept under s. 30(2) as int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper. The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. So far as our conclusions are concerned we had delivered our Order on October 11, 1988 and we had reserved the reasons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated October 11, 1988, reproduced below: "Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the Court while finally maintaining the sentence of death. This Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed their conviction and sentence. This Court dismissed their special leave petitions or appeals and subsequent review petitions. Their mercy petitions to the President and/or the Governor were also rejected. They have now moved writ petitions under Article 32 of the Constitution. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it. Obviously, that they can not do. The judgment of the court has become final. Under Article 141, it shall be binding on all Courts. Under Article 142, it shall be enforceable throughout the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India shall act in aid of this Court. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one's fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens (See Naresh Sridhar Mirajkar's case, 1963 (3) SCR 744). The petitioners, however, contend that this Court must set aside the death penalty and substitute a sentence of life imprisonment in view of the prolonged delay in the execution. The dehumanising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Judge said: "The court sits in division of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over-rule the decision of a Division Bench of two Judges. Vide Young v. Bristol Aeroplane Co. Ltd. It may be otherwise where a full Bench does so. We do not, however, desire to embark upon this question in this case. In the present case. we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protection of Article 21 of the Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of imprisonment for life." The question posed in Javed Ahmad case relates to the practice and procedure of this Court. It presents little problem and could be conveniently disposed of without much controversy. At the time of flaming the Constitution, Mr. B.N. Rau, after his return from United States reported to the President of the Constitution Assembly as follows: "Again Justice, Frankfurter was very emphatic that any jurisdiction, exercisable by the Supreme Court, sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs has been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench. This practice has been held to be a crystallised rule of law in a recent decision by a special bench of seven learned judges. In A.R. Antulay v.R.S. Nayak, AIR 1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority said: "The principle that the size of the bench whether it is comprised of two or three or more judges--does not matter, was enunciated in Young v. Bristol Aeroplace Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid Pawla v. State of Maharashtra, [1985] 2 SCR 8 where it has been held that a Division Bench of two judges, has not been followed by our courts. XXXX XXXX XXXX XXXX XXXX "The law laid down by this Court is some what different. There is a hierarchy within the court itself here where larger benches overrule smaller benches. See Mattulal v. Radhey Lal, [1975] 1 SCR 127: AIR 1974 SC 1596; Union of India v. K.S. Subramanian [1977] 1 SCR 87 at 92: AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of persons. We must enforce the constitutional commands, no matter what the problem. In other issues of constitutional considerations, we must understand the aspirations and convictions of men and women of our time. And we should not be swayed by our own convictions. We must never allow our individuality t0 overshadow or supersede the philosophy of the Constitution. These are various philosophical ideologies and underpinnings about the purposes of punishment. It includes among others deterfence, retribution, protecting persons, punishing guilty and acquitting the innocent. Among these objectives deterfence and retribution are prominent. Retribution is often confused with revenge, but there are distinct differences. Retribution embodies the concept that an offender should receive what he rightfully deserves. Deterfence has a two fold object. The first object relates to specific deterrence. It will deter the individual from committing the same or other offences in the future. The second object is as to general deterrence. It will convince or deter others that "crime does not pay") (See Crime and Punishment' by Harry E. Allen & Ors. at 735). The Law Commission of India summar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories. Graeme Newman in his book "Just and Painful" (at 127) refers to such experiments. The learned author states that corporal punishment works and it has been so successful that some animals have starved themselves to death rather than eat the forbidden food. This position with the human beings is said to be not different. Indeed, it cannot be different as we could see from day to day life. As between life and death one lives life. It is the love of life with sensuous joy of companionship that moves the race and not so much the ideals. One views the death with trepidation. In fact, every living being dreads death and it cannot be an exception with those on death row. They like all others want to live and live as long as they can. Because, the life has its own attraction, no matter in what form and condition. The death has no such attraction and cannot have any, since it is the most mysterious of all in this world. The criminal law always keeps pace with the development of society. It reflects as Chief Justice Warren said: "the evolving standards of decency that mark the progress of a maturing society". (Trop.. v. Dulles, 356 U.S. 86, 101 (1958). We have much to learn from hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life as in England". (A History of English Criminal Law By L. Radzinowicz V(1) p(1). The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences. There were two hundred or more such offences. There were several legislations providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theoretically punishable with death. From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases. Burning continued till 1790 to be the punishment inflicted on women for treason, high or petty. (Which latter included not only the murder by a wife of her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo, 3, c. 48. In practice, women were strangled before they were burnt; this, however, depended on the executioner. In one notorious case a woman was actually burnt alive for murdering her husband, the executioner being afraid to strangle her because he was caught by the fire. In the reign of George II, an act was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolence, and (4) setting fire to arsenals and dockyards. Later this was also abolished. (See. G.R. Scott, The History of Capital Punishment, 38-66 (1950). What happened in the United States? It will be noticed that in the United States, the accused has a constitutional right to be tried by a Jury, as provided under 6th Amendment. The accused has a right not to be subjected to "cruel and unusual punishment" as mandated under 8th Amendment. In Furman, some Judges took the view that death sentence was unacceptable to the evolving standards of decency of the American people. But the American people rejected that view. Since then 35 States have re-enacted laws providing for the death sentence for murder of suitably altering the provisions to comply with Furman. What do we have here? The representatives of our people are cognizant of the contemporary social needs. The legislative amendments brought about from time to time are indicative of their awareness. Sub-sec. (5) of sec. 367 of the Code of the Criminal Procedure, 1898 as it stood prior to its amendment by Act 25 of 1955 provided: "If the accused is convicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al punishment may,, therefore, go on elsewhere and not in this Court. Let me now turn to the pivotal question which I have referred at the beginning of the judgment. The question is whether the sentence of life imprisonment should be substituted on account of time factor alone, however, right and valid and death sentence was at the time when it was awarded. The arguments for the petitioners primarily rested on the common area of agreement in Vaitheeswaran and Sher Singh cases on the implication of Article 21. The accepted principle according to counsel, is that prolonged delay in execution would be "unjust, unfair and unreasonable". It would be inhuman and dehumanising to keep the condemned person for a long period. It offends the constitutional safeguards under Article 21. Article 21 of the Constitution mandates the state that no person shah be deprived of his life or personal liberty except according to the procedure established by law. The scope and content of this Article has been the subject matter of intensive examination in the recent decisions of this Court.I do not want to add to the length of this judgment by recapitulating all those decisions in detail. I may only highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that. On that short and simple ground I would decide this case and hold the Act bad." In Bachan Singh case, Sarkaria, J., affirming this view said (at 730): "No person shall be deprived of his life br personal liberty except according to fair, just and reasonable procedure established by valid law." In Mithu v. State of Punjab, [1983] 2 SCC 277 Chandrachud. C.J., said (at 284): " .... that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is the for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable." In Sher Singh v. State of Punjab, [1983] 2 SCC 582 Chandrachud, C.J. again explained (at 593): "The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sentence of death given in 1971 to life imprisonment. In State of U.P.v. Lalla Singh & Ors., [1978] 1 SCC 142 six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In Sadhu Singh v. State of U.P., [1978] 4 SCC 428 about three years and seven months during which the accused was under spectre of death sentence, was one of the relevant factors to reduce the sentence to life imprisonment. There are equally other decisions where in spite of the delay in disposal of the case, the Court has awarded the death sentence. In Nachhittar Singh v. State of Punjab, [1975] 3 SCC 266, the court refused to consider the question of delay as a mitigating circumstances. In Maghar Sing v. State of Punjab, [19751 4 SCC 234, the court said that delay does not appear to be good ground to commute to life imprisonment in view of the pre-planned, cold-blooded and dastardly murder committed by the accused. In Lajar Mashi v. State of U.P., [1976] 1 SCC 806, the court while confirming the death sentence observed (at 809): "The value of such delay as a mitigating factor depends upon the features of a particular case. It cannot be divorced from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitute reasonable procedure, established by law. I entirely agree. The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire bums only the dead body while the mental worry burns the living One. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed. What should be done by the Court is the next point for consideration. It is necessary to emphasise that the jurisdiction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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