TMI Blog2012 (2) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... made, the Deputy Commandant directed the B.H.M. and Sub Inspector Kewal Singh to produce the accused before him. As per these directions, the accused was produced before the Deputy Commandant at 11:15 a.m. Upon being warned verbally about his non compliance of the orders for fatigue duty, the accused requested the warning to be issued in writing. Upon such a response, the Deputy Commandant ordered the B.H.M. and the Sub Inspector to have the accused present before him the next morning. 3. However, immediately after these talks, the Deputy Commandant's office saw firing from a Self Loading Rifle (SLR), even as the Deputy Commandant himself and the B.H.M. were inside it. As the Deputy Commandant positioned himself underneath a table, he allegedly noted that it was the accused who was firing from a rifle from a tent pitched outside. He was allegedly hit in his back. The B.H.M. sustained multiple bullet injuries in his shoulders. 4. This entire incident was allegedly witnessed by Constable Dalip Kumar Mishra and Sub Inspector Kewal Singh. Eventually, when the firing had stopped and the accused was trying to reload his gun, he was overpowered and disarmed by Constable Mishra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igating Officer (IO) PW.12, he went to the place of occurrence on the date of occurrence i.e. on 11.4.93, but neither the accused nor the SLR allegedly used by the accused were handed over to him. The further evidence of the IO is that on 14.4.93, the accused was handed over to him outside the CRPF headquarters. Then on his disclosure statement the SLR was recovered. In view of such irreconcilable discrepancy in the evidence of the prosecution, the High Court came to the finding that the prosecution was trying to suppress a vital part of the case and the incident did not take place in the manner presented by the prosecution. The High Court further found that even though the prosecution allegation is that 20 cartridges were fired, only 7 empties were recovered and none of the bullets were recovered. The High Court found that the same is very surprising when the prosecution version is that 20 bullets were actually fired in a room towards the side where there are no windows. It is, therefore, impossible that none of the bullets had been recovered. In view of the aforesaid finding of the High Court the accused was given the benefit of doubt. 8. We are of the opinion that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Arms Act was enacted in 1959. At the time when it was enacted, Section 27 was in the following form: 27. Punishment for possessing arms, etc., with intent to use them for unlawful purpose - Whoever has in his possession any arms or ammunition with intent to use the same for any unlawful purpose or to enable any other person to use the same for any unlawful purpose shall, whether such unlawful purpose has been carried into effect or not, be punishable with imprisonment for a term which may extend to seven years, or with fine or with both. 13. The Statements of Objects and Reasons of Act 42 of 1988 (the Amending Act) are as follows: Act 42 of 1988. - The Arms Act, 1959 had been amended to provide for enhanced punishments in respect of offences under that Act in the context of escalating terrorist and anti-national activities. However, it was reported that terrorist and anti-national elements, particularly in Punjab had in the recent past acquired automatic firearms, machine guns of various types, rockets and rocket launchers. Although the definitions of the expressions arms , ammunitions , prohibited arms and prohibited ammunition included in the Act are adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms have been defined respectively under Section 2, Sub-sections (h) and (i) respectively of the said Act. Those definitions are set out below: (h) Prohibited ammunition means any ammunition, containing, or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, missiles articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition; (i) prohibited arms means- (i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or (ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing, and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms; 17. The word 'acquire', 'possession' or 'carry' has not been defined under the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Section 7, he shall be punished with imprisonment for a term of less than seven years which may extend to imprisonment for life and also with fine. But if the said use or act prohibited under Section 7 results in the death of any other person he shall be punishable with death penalty. Therefore, Section 27(3) is very wide in the sense anything done in contravention of Section 7 of the Act and with the use of a prohibited arms and ammunition resulting in death will attract mandatory death penalty. Even if any act done in contravention of Section 7, namely, acquisition or possession, or manufacture or sale, of prohibited arms results in death of any person, the person in contravention of Section 7 shall be punished with death. This is thus a very drastic provision for many reasons. Apart from the fact that this imposes a mandatory death penalty the Section is so widely worded to the extent that if as a result of any accidental or unintentional use or any accident arising out of any act in contravention of Section 7, death results, the only punishment, which has to be mandatorily imposed on the person in contravention is, death. It may be also noted in this connection that langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 25. But in the case of Section 27 (3) law is totally devoid of any guidelines and no exceptions have been carved out. It is common ground that the said amendment of Section 27 was brought about in 1988 which was much after the Constitution of India has come into operation. 26. The Parliament while making law has to function under the specific mandates of the Constitution. Apart from the restrictions imposed on distribution of legislative powers under Part XI of the Constitution by Article 245 onwards, the direct mandate of the Constitution under Article 13 is that the State shall not make any law which takes away or abridges the right conferred by Part III of the Constitution and any law made in contravention of the same is, to the extent of contravention, void. Article 13 is set out hereinbelow: 13. Laws inconsistent with or in derogation of the fundamental rights: (1) All laws in force i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sixty-second year of the Republic of India as follows: 1. (1) This Act may be called the Arms (Amendment) Act, 2011 Short title and commencement (2) It shall be deemed to have come into force on the 27th day of May, 1988 54 of 1959 2. In the Arms Act, 1959 in Section 27, in sub-section (3), for the words shall be punishable with death The words shall be punishable with death or imprisonment for life and shall also be liable to fine , shall be substituted. 30. Leaned Addl. Solicitor General submitted that in the light of the aforesaid pronouncement by this Court in Mithu v. State of Punjab (1983) 2 SCC 277, the government is examining the question of making suitable amendments as indicated above to Section 27 (3) of the Act. 31. This Court, however, is not inclined to defer its decision. The Court, however, cannot refuse to examine the provision in view of a very fair stand taken by learned ASG. 32. The Judges of this Court have taken an oath to uphold and preserve the Constitution and it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. The question of constitutional validity of Section 27 (3) of the Arms Act was referred to Full Bench of Punjab and Haryana High Court in the case of State of Punjab v. Swaran Singh - Murder Reference No. 5 of 2000 decided on 26.5.2009. 38. The matter went before the Full Bench as the Division Bench of the High Court of Punjab and Haryana expressed doubt about the correctness of the decision rendered by the Division Bench in Santokh Singh v. State of Punjab 2000 (3) Recent Criminal Reports 637. 39. The following questions were raised: (i) Whether the judgment of Division Bench is correct in law? (ii) Whether Section 27(3) of the Arms Act is unconstitutional being violative of Article 14 and 21 of the Constitution of India? 40. The Court found that a 303 rifle has not been notified as a prohibited arm by the Central Government. The Court dealt with the provisions of Rule 3 and Schedule I to the said Rules categorising arms and ammunition for the purpose of Rule 3 under the said Act. 41. On such consideration, the Full Bench, on a careful reading of Rules 3 and 4 and two Schedules, came to a conclusion that in the absence of a notification by the Government d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court was not concerned with the question of the vires of Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep of that Section by saying that the section is Draconian in severity, relentless and inexorable in operation [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add that all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder. 44. In the said judgment, Chief Justice Y.V. Chandrachud, who was delivering the majority judgment observed that the court has to exercise its discretion in the matter of life and death. In the opinion of the learned Chief Justice any sentencing process by which the legislature deprives the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, and compels them to shut their eyes to mitigating circumstances is unconscionable. The relevant observations made in paragraphs 12 and 16 are set out below. 12. The other class of cases in which, the offence of murder is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the hallmarks of justice. The mandatory sentence of death prescribed by Section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values. For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead. 16. Thus, there is no justification for prescribing a mandatory sentence of death for the offence of murder committed inside or outside the prison by a person who is under the sentence of life imprisonment. A standardized mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances which constitute a safe guideline for determining the question of sentence in each individual case. The infinite variety of cases and facets to each would make general st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court judgments from different jurisdiction on the question of mandatory capital punishment and also decisions where Court examined cases of cruel and unusually harsh punishment. 49. In this connection we may refer to the judgment of the U.S. Supreme Court in the case of James Tyrone Woodson and Luby Waxton v. State of North Carolina 428 US 280 : 49 L Ed 2d 944. In that case the petitioners were convicted of first degree murder in view of their participation in an armed robbery of a food store. In the course of committing the crime a cashier was killed and a customer was severely wounded. The Petitioners were found guilty of the charges and sentenced to death. The Supreme Court of North Carolina affirmed the same. But then certiorari was granted by the U.S. Supreme Court to examine the question whether imposition of death penalty in that case constituted a violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. The factual background of that case is that in 1974 North Carolina General Assembly codified a statute making death the mandatory sentence for all persons convicted of first degree murder. Stewart, J., speaking for the Court held that the said mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutionally valid. 51. A similar conclusion was pronounced on the same day i.e. 2nd July, 1976 in Stanislaus Roberts v. State of Louisiana 428 US 325 : 49 L Ed 2d 974 in a case of death penalty for a crime of first degree murder under the laws of Louisiana. Justice John Paul Stevens giving the majority opinion observed at pages 981-982 of the report as follows: The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute.... A large group of jurisdictions first responded to the unacceptable severity of the common-law rule of automatic death sentences for all murder convictions by narrowing the definition of capital homicide. Each of these jurisdictions found that approach insufficient and subsequently substituted discretionary sentencing for mandatory death sentences. See Woodson v. North Carolina, Ante, at 290-292, 49 L Ed 2d 944, 96 S Ct 2978. The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society's rejection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As we emphasized repeatedly in Roberts and its companion cases decided last Term, it is essential that the capital sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional. 54. Accordingly, death penalty was set aside by the majority and the matter was remitted for further proceeding. Here also Chief Justice Burger, Justice Blackmum, Justice White and Justice Rehnquist gave strong dissents, opining that the statute was constitutionally valid. 55. Again similar question came up before the U.S. Supreme Court in George Summer v. Raymond Wallace Shuman 483 US 66 : 97 L Ed 2d 56. This case came from Nevada which mandated death penalty for murder committed by a person while serving a life sentence without the possibility of parole. The statutory provision considered in this case is somewhat akin to Section 303 of Indian Penal Code. Justice Blackmum delivering the majority opinion held that Nevada statute was unconstitutional being violative of Eighth and Fourte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Queen (2002) 2 AC 235 : (2002) UKPC 11. In Reyes (supra) the Appellant was convicted and sentenced to death under the laws of Belize he committed the murder by shooting. The Privy Council granted leave to the accused to raise two issues on constitutional points -(i) mandatory death penalty infringes both the protection against subjection to inhuman or degrading punishment or other treatment in violation of rights under Section 7 of the Constitution of Belize and also in violation of the right to life protected under Sections 3 and 4 of the said Constitution. The second issue was on the constitutionality of hanging. Section 4(1) and Section 7 of the Constitution of Belize are as follows: 4(1). A person shall not be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted. 7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. 59. In the case of Reyes (supra) the decision of this Court in Mithu (para 36 page 252 of the report) as also the decision of this Court in Bachan Singh (para 43, page 256 of the report) were considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e measure of punishment are judicial not executive functions.. The opportunity to seek mercy from a body such as the Advisory Council cannot cure a constitutional defect in the sentencing process. 61. The Privy Council thus overruled the decision of the Court of Appeal of Belize. 62. In Regina v. Hughes (2002) 2 AC 259 : (2002) UKPC 12, the Defendant (accused) was convicted by the High Court of Saint Lucia for murder. The Code of Criminal Procedure of Saint Lucia provided death sentence to be imposed on anybody who is convicted of murder and Hughes was sentenced to death. The Board found that under Section 178 of the Criminal Code, imposition of death sentence for murder was mandatory and the Court had no power to impose a lesser sentence. The Board held such inhuman and degrading sentencing procedure to be void. In this case also this Court's decision in Mithu (supra) and Bachan Singh (supra) were considered by the Privy Council. In paragraph 52, the Board held: It follows that the decision as to the appropriate penalty to impose in the case of murder should be taken by the judge after hearing submissions and, where appropriate, evidence on the matter. In reaching and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that any challenge to the constitutionality of the Code providing for mandatory sentence must be made to the Supreme Court. 69. Allowing the appeal, the Privy Council held that the Court of appeal erred in construing Article 28 of the Constitution as precluding it from entertaining a challenge to the constitutionality of a sentencing provision. 70. In paragraph 29 of the judgment, the Privy Council formulated the principles which are relevant for consideration in a case of mandatory death sentence. The said principles are set out below: (I) It is a fundamental principle of just sentencing that the punishment imposed on a convicted defendant should be proportionate to the gravity of the crime of which he has been convicted. (II) The criminal culpability of those convicted of murder varies very widely. (III)Not all those convicted of murder deserve to die. (IV) Principles (I), (II) and (III) are recognised in the law or practice of all, or almost all, states which impose the capital penalty for murder. (V) Under an entrenched and codified Constitution on the Westminster model, consistently with the rule of law, any discretionary judgment on the measure of pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he highly unusual circumstance that, for obvious reasons, the question of Appellants' fate is so politically charged that it is hardly reasonable to expect any Government of Grenada, even 23 years after the tragic events of October 1983, to take an objective view of the matter. In their Lordships opinion that makes it all the more important that the determination of the appropriate sentence for the Appellants, taking into account such progress as they have made in prison, should be the subject of a judicial determination. 75. Similar principles were followed in the High Court of Malawi in the case of Francis Kafantayeni and Ors. v. Attorney General (Constitutional Case No. 12 of 2005 (2007) M.W.H.C. 1). Facts therein were that the accused was convicted of murder and sentenced to mandatory death penalty. The challenge to the constitutionality of death penalty was on four grounds, all based on the Malawi Constitution. The first ground related to depravation of right to life under Section 16, the second related to inhuman and degrading treatment under Section 19, the third related to right to a fair trial under Section 42 (2) (f) and finally the fourth challenge was that it vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Judge is considered so important that it forms a basis for advising the President on the exercise of the prerogative of mercy. Why should it not have informed the Judge in passing sentence in the first place. 79. Furthermore, the administration of justice was considered a function of the Judiciary under Article 126 of the Constitution. The entire process of trial from the arraignment of an accused person to his/her sentencing was what constitutes administration of justice. By providing mandatory death penalty Parliament removed the power to determine sentence from the Court's power and that, the Court is to be inconsistent with Article 126 of the Constitution. The Court further held: We do not agree with Learned Counsel for the Attorney General that because Parliament has the powers to pass laws for the good governance of Uganda, it can pass such laws as those providing for a mandatory death sentence. In any case, the Laws passed by Parliament must be consistent with the Constitution as provided for in article 2(2) of the Constitution. It also held: Furthermore, the Constitution provides for the separation of powers between the Executive, the Legislature a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay . There is a denial to (sic of) a fair hearing when no opportunity is given to an accused person to offer mitigating circumstances before sentence, which is the normal procedure in all other trials for noncapital offences. Sentencing was part of the trial and mitigation was an element of fair trial. Sentencing is a matter of law and part of the administration of justice which is the preserve of the Judiciary. Parliament should therefore only prescribe the maximum sentence and leave the courts to administer justice by sentencing the offenders according to the gravity and circumstances of the case. 82. By formulating the aforesaid propositions, the Court held that Section 204 of the Penal Code which provided for mandatory death penalty was unconstitutional. 83. However, a discordant note was struck by the Privy Council in one of its old judgments in the case of Ong Ah Chuan v. Public Prosecutor and Anr. (1981) A.C. 648. The judgment was rendered by Lord Diplock, in a Bench consisting of Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill. The Board heard the appeal from the Court of Criminal Appeal from Singapore, against a conviction for the offence of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treatment for similar legal guilt. (Page 674 of the report) 85. In their Lordships' view there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in significant quantities of heroin and morphine. Their Lordships held that the quantity that attracts death penalty is so high as to rule out the notion that it is the kind of crime that might be committed by a good hearted Samaritan out of the kindness of his heart as was suggested in the course of argument. But if by any chance it were to happen, the prerogative of mercy is available to mitigate the rigidity of the law which the long established constitutional way of doing is the same in Singapore as in England. (674 of the report) 86. However the aforesaid opinion of Lord Diplock, was subsequently noticed by the Privy Council in Bowe (supra) at page 1644, wherein the decision in Ong Ah Chuan (supra) was explained inter alia, on the ground that the Constitution of Singapore does not have a comparable provision like the Eighth Amendment of the American Constitution relating to cruel and unusual punishment. 87. It is clear from the discussion hereinabove that mandatory death penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Coke explained this concept several centuries ago. The classical formulation by Lord Coke is: It appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void. 92. The principle of 'due process' is an emanation from the Magna Carta doctrine. This was accepted in American jurisprudence [See Munn v. Illinois 24 L Ed. 77 : 94 US 113 142 (1876)]. 93. Again this was acknowledged in Planned Parenthood of Southeastern Pennsylvania v. Casey 120 L ED 2d 674, wherein the American Supreme Court observed as follows: The guarantees of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation'. 94. All these concepts of 'due process' and the concept of a just, fair and reasonable law has been read by this Court into t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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