TMI Blog2015 (8) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the Indian Penal Code and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence awarded to them. Reopening of the case of the Appellants and commutation of the death sentence for imprisonment for life were also prayed for in the writ petition. A Division Bench of the High Court of Punjab and Haryana has, while dismissing the said petition by its judgment and order dated 3rd October, 2012, taken the view that the question whether Section 364A of the Indian Penal Code was attracted to the case at hand and whether a person found guilty of an offence punishable under the provision could be sentenced to death was not only raised by the Appellants as an argument before this Court in appeal filed by them, but, was noticed and found against them. The High Court while saying so relied upon the following passage of the judgment of this Court in the appeal filed by the Appellants against their conviction: ...A plain reading of the Objects and Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom had become a lucrative and thrivin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the Petitioners, had been examined and decided against the Petitioners which plea could not be re-agitated by them in collateral proceedings. Having said that the High Court proceeded to examine the plea raised by the Appellants on its merit, referred to the historical background in which the provisions of Section 364A were added to the statute book and held that Section 364A of Indian Penal Code, even in the form in which it was initially introduced, made kidnapping by any person in the circumstances indicated in the said provision an offence no matter at the time of initial insertion of Section 364A, India was not committed to the International Convention Against the Taking of Hostages, 1979 to which it became a party only on 7th September, 1994. It was only thereafter that Section 364A was amended to incorporate the expression any foreign state or international inter-governmental organization or any other person to honour the commitment under the said Convention. The High Court, accordingly, repelled the argument that Section 364A was attracted only in situations where kidnapping was meant to coerce the government or any international organization to do or not to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate or any international inter-governmental organisation but also where any person abducts or kidnaps the victim for no more than compelling payment of ransom by the family of the victim. It was contended that the High Court had rightly analysed the provisions, examined the historical perspective to hold that Section 364A was not confined only to cases involving acts of terrorism but was attracted even in cases where the crime is committed for securing ransom. 8. There is no gainsaying that in an appeal directed against an order of conviction and sentence, the Appellant is entitled to urge all such contentions as are open to him in law and on facts. One of the contentions open to the aggrieved convict in such cases is that the provision under which he has been convicted has no application to his case or that the ingredients of the offence with which he has been charged are not established to justify his conviction. It follows that the contention that Section 364A was not attracted in the present case was open to the Appellants and was in fact advanced on their behalf in the appeal filed by them. Not only that, the contention was examined and rejected. So long as that rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is impeccable but on the maxim Interest reipublicae ut sit finis litium. 41. xxxxxxxxxx 42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles-ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision making process not disclosing his links with a party to the case or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice-a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maintainability of the petition filed by the Appellants. 12. Any attempt to properly understand the true scope and purport of Section 364A must, in our opinion, start with the historical background in which the provision came on the statute book. When we do so, we find that the proposal for addition of Section 364A to the Indian Penal Code was first modified by the Law Commission of India in its 42nd Report submitted in 1971. The relevant portion of the report reads as under: 16.100 We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable Under Section 365 since the kidnapped or abducted person will be secretly and wrongfully confined. We also considered the question whether a provision for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section: 364A. Kidnapping or abduction for ransom-Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Convention aimed at fighting international terrorism, came into force with effect from 3rd June, 1983 but was acceded to by India with effect from 7th September, 1994. 15. The Indian Penal Code (Amendment) Bill 1994, Bill No. LXV of 1994 was, in the above background, introduced in the Rajya Sabha on 25th August, 1994 to amend Section 364A so as to substitute the expression any other person by the words any foreign State or international inter-governmental organisation or any other person in the said section. The Statement of Objects and Reasons for the amendment also gave the background in which the amendment was considered necessary. The Statement of Objects and Reasons accompanying the bill were as under: STATEMENT of OBJECTS AND REASONS An international convention against the taking of Hostages was adopted by the United Nations General Assembly on the 17th December, 1979. 2. The said convention seeks to develop international cooperation between the states in devising and adopting effective measures for prevention prosecution and punishment of all acts of hostage taking. 3. India has decided to accede to the said convention since it is one of the important con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abetment and attempt, would already cover hostage taking, as defined in the Convention to the extent that this Act is confined to the territory of India. Section 364A Indian Penal Code does not take care of situations where the offence is committed with a view to compelling foreign States or international inter-governmental organisation to do or abstain from doing any act or to pay a ransom. (v) Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said Section 364A on kidnapping for ransom, etc. to make it clear that kidnapping a person to compel the Government or any foreign State or international inter-governmental organization or any other person is punishable under that section. 17. It is evident from the above that Section 364A came on the statute book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but also because activities of terrorist organisations had acquired menacing dimensions that called for an effective legal framework to prevent such ransom situations and punish those responsible fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, or with fine, or with both. Similarly, Sections 386, 387, 388, 389 of the Indian Penal Code deal with aggravated forms of extortion and are made suitably punishable. It was contended that once a person is kidnapped and put in fear of death or injury to coerce the person so kidnapped or any other person to deliver any property or valuable security or anything signed which may be converted into a valuable security can be punished suitably under the provisions mentioned above. This, according to Mr. Sodhi implies that the existing provisions in the Indian Penal Code were sufficient to deal with ordinary situations involving kidnapping for ransom, thereby, making it unnecessary for the Parliament to introduce Section 364A of the Indian Penal Code to cover an ordinary crime situation. The corollary, according to Mr. Sodhi, is that Section 364A was added only to deal with terrorist related ransom situations and not ordinary crimes, like the one in the case at hand. 22. The argument though attractive does not stand on closer scrutiny. The reasons are not far to seek. Section 364A has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and were not intended to extent to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a learned author puts it: ...if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific words unnecessary. (See; Construction of Statutes by EA Driedger P. 95 quoted by Francis Bennion in his Statutory Construction, pp. 829 and 830) 25. Relying upon the observations made by Francis Bennion in his Statutory Construction and English decisions in S.S. Magnhild v. McIntyre Bros. Co. (1920) 3 KB 321 and those rendered by this Court in Tribhuban Prakash Nayyar v. Union of India (1969) 3 SCC 99, UPSEB v. Hari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of whatever description would exclude the rule. (Attorney General v. Leicester Corporation (1910) 2 Ch. 359). In N.A.L.G.O. v. Bolton Corpn. (1943) AC 166) Lord Simon L.C. referred to a definition of workman as any person who has entered into a works under a contract with an employer whether the contract be by way of manual labour, clerical work or otherwise and said: The use of the words 'or otherwise' does not bring into play the ejusdem generis principle: for 'manual labour' and 'clerical work' do not belong to a single limited genus and Lord Wright in the same case said: The ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not a rule of law. In the present case it is entirely inapt. It presupposes a 'genus' but here the only 'genus' is a contract with an employer. (emphasis supplied) 27. The above passage was quoted with approval by this Court in Grasim Industries Ltd. v. Collector of Customs, Bombay (2002) 4 SCC 297 holding that note 1(a) of Chapter 84 relevant to that case was clear and unambiguous. It did not speak of a class, category or genus followed by general words makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament has prescribed alternative sentences leaving it for the courts concerned to award what is considered suitable in the facts and circumstances of a given case. It was also submitted that there was nothing outrageous about the sentence provided Under Section 364A, keeping in view the nature and gravity of the offence and the fact that kidnappings and abductions for ransom had assumed alarming dimensions in the country apart from the fact that terrorists were also using that method to achieve their nefarious ends. Similar sentences were prescribed for several offences under the Indian Penal Code that were considered grave by the Parliament who represent the will of the people. There was at any rate no reason for this Court to go into the question of quantum of sentence after the matter had been thoroughly examined in the criminal appeal filed by the Appellants including on the question of sentence to be awarded to them. The issue whether a lesser punishment would meet the ends of justice may arise in a given case where the victim is released soon after he is kidnapped or abducted without doing any harm to him. But in the case at hand, the victim was done to death which called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op took the view that the mandatory death sentence deprived the Court of its wise and beneficial discretion in the matter of life and death, making it harsh, unjust and unfair. 33. The above features, noticed by this Court in Mithu's case (supra), are not present in the case at hand for Section 364A does not mandate a death sentence as was the case with Section 303 of the Indian Penal Code. In Section 364A, the Court enjoys the discretion whether to award the extreme penalty of death or the lesser alternative of a life imprisonment. There is also no element of any discrimination between persons who commit the offence, like the one noticed by this Court in Mithu's case (supra). Whether life or death would be the proper sentence is in the absolute discretion of the Court which the Courts are expected to exercise wisely having regard to the facts of the case and the gravity of the offence and its severity or barbarity. To that extent, there is indeed no comparison between Mithu's case (supra) and the case of the Appellants who have been awarded death sentence not because the law so mandated but because this Court after considering the attendant circumstances found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de should be shown to the Appellants as they had poisoned a young boy to death for money. The learned Counsel have also placed reliance on Henry Westmuller Roberts v. State of Assam (1985) 3 SCC 291 and Mohan v. State of T.N. (1998) 5 SCC 336 where the kidnap victim was a young boy and had subsequently been done to death, the Court had awarded the death penalty. xxxxxxxxxxxxxxxxxxxxxxxxxxx 64. A plain reading of the Objects and Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom, a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom has become a lucrative and thriving industry all over the country which must be dealt with in the harshest possible manner and an obligation rests on the courts as well. The courts to lend a helping hand in that direction. 65. In the case before us, we find that not only was Abhi Verma kidnapped for ransom which act would by itself attract the death penalty but he was murdered in the process. It is relevant that even before the aforesaid amendments, this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasise that in this tragic scenario and in the drawing up of the balance sheet, the plight of the hapless victim, and the abject terror that he must have undergone while in the grip of his kidnappers, is often ignored. Take this very case. Abhi Verma was only 16 years of age, and had been picked up by Vikram Singh who was known to him but had soon realised the predicament that he faced and had shouted for help. His terror can further be visualised when he would have heard the threatening calls to his father and seen the preparations to do away with him, which included the taping of his mouth and the administration of an overdose of dangerous drugs. The horror, distress and the devastation felt in the family on the loss of an only son, can also be imagined. 34. Reliance upon Mithu's case (supra) does not, therefore, help the Appellant in their challenge to the vires of Section 364A. Having said that, we must add that a legislation is presumed to be constitutionally valid with the burden of showing the contrary lying heavily upon any one who challenges its validity. Not only that, courts show due deference to the parliamentary wisdom and exercise self restraint while examini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of community standards or ethics may vary from Judge to Judge. In this sensitive highly controversial area of death penalty, with all its complexity, vast implications and manifold ramifications, even all the Judges sitting cloistered in this Court and acting unanimously, cannot assume the role which properly belongs to the chosen representatives of the people in Parliament, particularly when Judges have no divining rod to divine accurately the will of the people. In Furman 408 US 238 ((1992), the Hon'ble Judges claimed to articulate the contemporary standards of morality among the American people. But speaking through public referenda, Gallup Polls and the State legislatures, the American people sharply rebuffed them. We must draw a lesson from the same. 36. To the same effect are the observations made by this Court in State of M.P. v. Bala alias Balaram (2005) 8 SCC 1 where this Court said: 12. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine 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. 38. That punishment must be proportionate to the offence is recognised as a fundamental principle of criminal jurisprudence around the world. In Weems v. United States 217 US 349 : 54 L. Ed. 793 : 30 S Ct 544 (1910) the Petitioner had been convicted for falsifying a public document and sentenced to 15 years of what was described as 'cadena temporal', a form of imprisonment that included hard labour in chains and permanent civil disabilities. The US Supreme Court, however, declared the sentence to be cruel not only in terms of length of imprisonment but also in terms of shackles and restrictions that were imposed by it. That punishment for crime should be graduated and proportionate to the offence, is a precept of justice, declared the Court. 39. That decision was followed by Enmund v. Florida 647 458 US 782 (1982) where the Court held that death penalty was excessive for the felony of murder where the Petitioner did not take life, attempt to take life or intend that life be taken or that lethal force be used. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognised the following guiding principles for determining whether the sentence of imprisonment was disproportionate to the offence allegedly committed by the accused: [10] In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. 41. Applying the above principles to the case before it, the Court declared: [1c] The Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 S Ct 1280 (1958) (whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility... these are peculiarly questions of legislative policy). Thus, [r]eviewing courts...should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. Solem, supra, at 290, 77 L. Ed. 2d 637, 103 S Ct 3001. See also Rummel, supra, at 274, 63 L. Ed. 2d 382, 100 S Ct 1133 (acknowledging reluctance to review legislatively mandated terms of imprisonment ); Weems, supra, at 379, 54 L. Ed. 793, 30 S Ct 544 ( The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety ). 43. The second principle recognised by the Court was that the Eight Amendment does not mandate adoption of any one penological theory and that principles that guide criminal sentencing have varied with the times. 44. The third principle recognised that divergences, both in underlying theories of sentencing and in the length of prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.......... To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. Rummel, supra, at 284 63 L. Ed. 2d 382, 100 S Ct 1133. Ewing's is not the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. 46. The Canadian view on the principle of proportionality of sentence is no different. Several decisions of the Canadian Supreme Court, have held proportionality of punishment to the gravity of the offence to be a constitutional requirement. In R. v. Smith (1987) 1 SCR 1045, the Supreme Court of Canada said: In assessing whether a sentence is grossly disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith (1987) 1 SCR 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable. 49. To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed. (b) Prescribing punishments is the function of the legislature and not the Courts'. (c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs. (d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences. (e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed Under Article 21 of the Constitution. 51. It was argued that in certain situations even impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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