This Court Has Not Endorsed The vs Hazara Singh on 10 September, 2009

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Kerala High Court

This Court Has Not Endorsed The vs Hazara Singh on 10 September, 2009

Full Bench was constituted on account of difference of opinion among the Judges, which led to present reference on the question of imposition of harsher variety of life sentence as indicated in Swami Shraddananda (2) v. State of Karnataka (2008(13) SCC 767). Initially the above Death Sentence References (for short, 'DSRs') came up before the Division Bench, wherein the following three questions were taken up for consideration:

"(i) Do Session Judges have the power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda(2) v. State of Karnataka (2008(13) SCC 767) as an option available in law for the courts to avoid the harshest, irreversible and incorrectable sentence of DSR.8/09 & connected cases 2 death? Is that sentencing option available only to the Supreme Court under Article 142 of the Constitution? Is that sentencing option available only to constitutional courts - the High Courts and the Supreme Court?

(ii) Consequently is it necessary for the Session Judges to consider whether that alternative option [the harshest sentence of life authorised by Swamy Shraddananda(2) (supra)] is also unquestionably foreclosed in the facts and circumstances of a given case before choosing to impose the sentence of death?

(iii) Is it necessary for this Court to declare the law authentically and insist that before the sentence of death is imposed by any Sessions Court, such consideration must invariably precede?"

2. However, the Honourable Judges of the Division Bench differed in their opinion by order dated 13.4.2012, which necessitated reference of the matter to a third Judge. The third Judge ultimately placed the matter before the Honourable the Chief Justice to constitute a Larger Bench as provided under the proviso to Section 392 of the Code of Criminal Procedure to consider the following two questions:

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"(1) Do the Sessions Judges have the power to impose the harsher variety of life sentence awarded in Swami Sradhanandha v. State of Kerala (2008(13) SCC 767) and (2) Whether the interpretations of Swami Sraddananda (2) case in State of Kerala v.

Navas (2010(2) KLT 542) that the said power is available to all Sessions Courts requires reconsideration."

3. Justice R.Basant, one of the Judges of the Division Bench Judges, after an elaborate discussion at paragraph 35 of the order dated 13.4.2012, summarised his conclusion as under:

"35. One can always dream of the ideal law. When that will come into existence, we will have to wait and see. But I have no hesitation to agree that the ideal law ought to be that all courts - from the Sessions Court to the Supreme Court, have the sentencing options generated under Swami Sradhanandha (2). Ideal law must insist that all Judges from the level of the Sessions Judges must consider whether all the alternative options are unquestionably foreclosed before choosing to direct extinguishment of life by exercise of judicial discretion. To me, it appears that it is time that the law is changed by the legislature (or DSR.8/09 & connected cases 4 progressively interpreted judicially) to ensure and insist that a Sessions Judge who feels that the gravest form of life sentence permissible under Swami Sradhanandha is insufficient to meet the ends of justice in a case, must make a reference to the High Court and not proceed to choose to himself impose such harshest sentence. When it comes to the High Court for decision on the question of sentence (or confirmation), the ideal law must certainly insist that not 2 Judges, but at least a Bench of 5 Judges must consider the question of imposition of sentence. The system owes at least that to Indian and human civilization and to persons who are being deprived of their life by invocation of the State's power to extinguish life. I go a step further and observe that unless the 5 Judges Bench would unanimously come to the conclusion that the death sentence is the only alternative possible in the given circumstances, the conclusion will necessarily have to be reached that the alternative options are not unquestionably foreclosed. Unanimous conclusion of a 5 Judge Bench alone should under the ideal law justify the extinguishment of life. May be I am dreaming. May be that is not the law at the moment. But certainly I have no DSR.8/09 & connected cases 5 hesitation to dream that, that would be the ideal law in respect of the exercise of the dehumanizing power of the State to extinguish life if that power be constitutionally valid. The matter if and when referred to a larger Bench under Section 6, the larger Bench must, according to me, address itself to these questions."

4. The learned Judge felt necessity of attention of a Larger Bench on the controversial issue so as to lay down the law authoritatively after considering the entire matter exhaustively in order to remove confusion, if any, in the minds of the Sessions Judges about the judicial competence to impose harsher sentence of life adopted Swamy Shraddananda(2)'s case (Supra) and their obligation to consider whether harsher sentence of imprisonment for life is unquestionably foreclosed before imposition of death sentence. The learned Judge felt, the Sessions Courts must be clearly told the important consequences arising from Swamy Shraddananda(2)'s case (Supra), as according to the learned Judge, the war between the abolitionists and retentionists has made a clear way and the abolitionists have won a major battle in that war.

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5. However, another Honourable Judge, Justice K.Vinod Chandran, disagreeing with the said opinion of Justice R.Basant, held that though Swamy Shraddananda(2)'s case (Supra) lays down alternative option of imprisonment for life, beyond any remission, to avoid the imposition of death penalty, such power could be exercised by the Apex Court and High Courts, but not available to the Sessions Courts. The learned Judge felt, there was no necessity to refer the matter to a Larger Bench, especially when it would prolong the agony of those inmates of death sentence, who are having a Damocles sword hanging on their heads, i.e., death sentence and each Death Sentence Reference deserves to be heard independently.

6. As a matter of fact, so far as merits of the DSRs, no hearing was made by the Division Bench. The difference of opinion was only on a preliminary point regarding the powers of the Sessions Court in adopting sentencing policy as indicated in the case of Swamy Shraddananda(2)'s case (Supra) by the Apex Court. On earlier occasion a Division Bench of this Court in State of Kerala v. Navas (2010(2) KLT 542) did consider question whether power to hand over harsher sentence than the DSR.8/09 & connected cases 7 life sentence as permitted in Swamy Shraddananda(2)'s case (Supra) was available to all Sessions Courts. In that context, the Division Bench held as under:

"53. .......Till Swamy Shraddananda (supra), there was only one alternative option of sentence of life without prescribing any further restrictions or guidelines. Now, we have not one alternative option; but various alternative options taking advantage of the "vast hiatus between 14 years' imprisonment and imprisonment till death". All Courts called upon to choose between the sentence of death and the alternative options now available can impose a death sentence only when the Court is convinced and satisfied that none of the other alternatives available in the wake of Swamy Shraddananda (Supra) are sufficient and those options are unquestionably foreclosed. We have no hesitation to opine that the imposition of death sentence can now be made only in such graver cases, where all the other options are found to be insuficient. The bulk of such cases shall stand considerably and substantially reduced now - after Swamy Sradhanandha (supra)".

7. In the very same case, the Division Bench observed that DSR.8/09 & connected cases 8 any different interpretation must certainly be only by a Larger Bench. Another Division Bench following the rule of stare decisis cannot understand the dictum in Swamy Shraddananda(2)'s case(Supra) differently.

8. The third Judge, opining that it is necessary to reconsider the said interpretation of Swamy Shraddananda(2)'s case (Supra) in Navas's case (Supra) by a Larger Bench, the above two questions were referred for consideration by a Larger Bench. Before we deal with the real controversy whether the Sessions Courts have the power to impose harsher variety of life sentence as recognized in the case of Swamy Shraddananda(2)'s case (Supra), one has to see various provisions in the Indian Penal Code (IPC) and Criminal Procedure Code (Cr.P.C) when death sentence is an alternative punishment. Sections 121, 132, 194, 302, 305, 307 and 396 of IPC are some of the relevant provisions. The offences punishable under these provisions of the Indian Penal Code denote that sentence of death is an alternative punishment. Section 121 refers to Waging, or attempting to wage war, or abetting waging of war, against the Government of India, 132 refers to Abetment of mutiny, if mutiny is committed in DSR.8/09 & connected cases 9 consequence thereof, 194 refers to giving or fabricating false evidence with intent to procure conviction of capital offence, 302 refers to punishment for murder, 305 refers to abetment of suicide of child or insane person, 307 refers to attempt to murder and 396 refers to decoity with murder.

9. Similarly, one has to look into the provisions of the Code of Criminal Procedure, relating to imposition and confirmation of death sentence. The relevant Sections in the Code of Criminal Procedure, 1973 are Sections 235(2), 354(3), 363(4), 366(2), 371, 386(b), 392, 413 and 414. The Criminal Procedure Code also deals with the powers of Sessions Court in imposing any sentence authorised by law. They are Sections 6, 26(a)(ii), 28(2), 235(2), 354(3) and 432(2). We also have another set of provisions relevant for dealing with suspension, remission and computation of sentence by the appropriate Government. They are, Sections 432, 433, 438 and 434 of the Code of Criminal Procedure. Section 53 IPC deals with different kinds of punishment. They are death, imprisonment for life and again rigorous imprisonment, which deals with rigorous imprisonment with hard labour and simple, forfeiture of property and fine. It does not contemplate any DSR.8/09 & connected cases 10 sentence in between death and imprisonment for life.

10. When the matter came up for hearing, apart from learned Director General of Prosecutions Sri.T.Asaf Ali, learned Additional Director General of Prosecutions Sri.Tom Jose Padinjarekkara, we also heard Advocates M/s.B.Raman Pillai, T.K.Sandeep, Renjith B.Marar, Rajeev and Mani Wilson.

11. During the course of argument, learned Prosecutors and learned counsel appearing for the defence drew our attention to the position of capital punishment prior to 1973 and what the position is after 1973. In other words, what was the criterion to impose capital punishment prior to 1973 and after how the criterion has shifted altogether to a different dimension.

12. The genesis for this reference is observation of the Division Bench in Navas's case (Supra). As a matter of fact, the judgment in Navas's case (Supra) came to be pronounced on 9.2.2010 opining that death sentence can be imposed only after satisfying that the lesser options of punishments are unquestionably foreclosed. The Bench felt, by judgment in Swamy Shraddananda(2)'s case (Supra) new areas of options were opened to be exhausted before awarding capital punishment DSR.8/09 & connected cases 11 of death. It is further said, the Judges dealing with this sublime area of criminal adjudication can neither be retentionists nor abolitionists. Therefore, the Courts while dealing with the imposition of capital punishment had to consider all available circumstances without importing individual and personal perceptions of the need to retain death sentence or abolish the same. It is well settled that before confirming death sentence, the Court has to alertly conscious and consider the very purpose of imposition of such punishment and decide whether in the facts and circumstances of a particular case imposition of the grave alternative is necessary and unavoidable.

13. The very same Bench, few days later, in the case of State of Kerala v. Amalraj @ Chandu and others [2010(1) KLD 411 (DB)] dated 23.2.2010 at paragraphs 44, 45 and 46 discussed what would be the appropriate sentence in the case on their hand in the light of the dictum laid down in Swamy Shraddananda(2)'s case (Supra). Taking into account unsuppressed instincts of criminality of the first accused and the diabolic manner in which the crime was organised especially the fact that it was against his own employer, who was a helpless DSR.8/09 & connected cases 12 person aged about 76 years at the time of his death while imposing the punishment having regard to the age of the accused, who was very young and immature, having opportunity to blossom as a better person in future, but, however the society also must be saved from the possible criminality of the accused, he must be imprisoned for 35 years and should not be released for a period of 35 years for any purpose (including the benefit of set off permitted under Section 428 Cr.P.C). Accordingly, the death sentence reference was answered against the prosecution with modification of sentence as stated above.

14. In the meanwhile, the accused Navas @ Mulanavas, questioning the imprisonment of life with a rider, the accused shall not be released from prison for a period of 30 years including the period already undergone with set off under Section 428 Cr.P.C, approached the Apex Court in a Special Leave Petition not only questioning the very conviction, but also the confirmation of conviction by the High Court. The main ground of attack is appreciation of circumstantial evidence which is full of probabilities, conjunctures and surmises, which are opposed to law.

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15. As already stated above, a common issue was taken up for preliminary discussion in all references mentioned above, which led to the present situation. In order to answer the reference now made, one has to see the journey the controversy has taken till date. It takes us back to the case of constitutional bench judgment in Bachan Singh v. State of Punjab [(1980)2 SCC 684], which again takes us to Jagmohan Singh v. State of U.P [(1973) SCC (Cri.) 169]. Jagmohan Singh's case was decided under the Code of Criminal Procedure, 1898 (old Code) and the question that arose was whether death sentence is violative of Article 19(1) of the Constitution and the very validity of Section 302 IPC came up for consideration wherein Their Lordships referred to US Supreme Court decisions based on amendment and due process of law. Emphasis was whether freedom to live is included in Article 19(1) of the Constitution. While dealing with the matter, they also concentrated on the discretion of Court either to award capital sentence or imprisonment for life. Also considered whether it is reasonable and in the public interest. Whether discretion of Judges to award punishment is violative of Article 14 of the Constitution. Article 21 DSR.8/09 & connected cases 14 of the Constitution was also referred. At the time of Jagmohan Singh's case (Supra), the old Code was in force, wherein Section 367(5) provides that if an accused was convicted of an offence punishable with death, and if he is sentenced to a punishment other than death, the Court was required to state the reason why a sentence of death was not passed. When Bachan Singh's case (Supra) came up for consideration, the Code of Criminal Procedure, 1973 had already come into force with effect from 1.4.1974. In Bachan Singh's case two relevant points which came up for consideration before the Constitution Bench are, first one constitutional validity of the death sentence for murder as provided under Section 302 IPC and the second issue is related to the sentencing procedure embodied in Section 354(3) of the Code of Criminal Procedure, 1973. The Constitution Bench answered the first question whether the death penalty provided for the offence of murder under Section 302 IPC is unconstitutional. It answered in negative saying, death penalty provided for the offence of murder under Section 302 IPC was constitutional. So far as sentencing procedure embodied in sub-section (3) of Section 354 Cr.P.C, in Bachan Singh's case (Supra) Jagmohan Singh's DSR.8/09 & connected cases 15 case (Supra) was referred and relevant propositions from that decision were culled out at paragreaph 160. In Jagmohan Singh's case Their Lordships held Article 19 of the Constitution does not directly deal with the freedom to live. It is not part of seven freedoms mentioned in the Article. They further said, when they were dealing with the punishment for crimes, not a few are found to hold that life imprisonment as it is understood in U.S.A is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right upto the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of Constitution were also well aware of existence of capital punishment as a permissible punishment under law. They further said that when prosecution and accused have had their full say, the Court is particularly concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime and trial. Unless all the relevant provisions of law are invalid, they must be regarded as valid and death sentence imposed after trial in accordance with the procedure established by law cannot be said to be DSR.8/09 & connected cases 16 unconstitutional under Article 21 of the Constitution. Their Lordships also felt that if the legislature decides to retain capital punishment for murder, it will be difficult for the Apex Court in the absence of objective evidence regarding its unreasonableness to question wisdom and propriety of the legislature in detaining it. They also felt, policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Therefore, the proposition laid down in Jagmohan Singh's case (Supra) was, the discretion in the matter of sentencing to be exercised by the Judge after balancing of the aggravating and mitigating circumstances (of crime).

16. The Constitution Bench in Bachan Singh's case (Supra) did not disagree with any of the propositions laid down in Jagmohan Singh's case (Supra), except in respect of changed legislative policy, which is explained in paragraphs 161 to 166 of the decision where it is specifically mentioned that the two propositions (iv)(a) and (v)(b) in Jagmohan's case (Supra) need not be adjusted and attuned to the shift in the legislative policy. The Constitution Bench ultimately observed that under the old DSR.8/09 & connected cases 17 Code, the sentence provided under Section 302 IPC, i.e., both the sentence of death and imprisonment for life could be imposed after weighing the aggravating and mitigating circumstances of a particular case. In view of Section 354(3) Cr.P.C, they held, punishment of imprisonment for life should be normal under Section 302 IPC, whereas sentence of death could be imposed as exception. The Constitution Bench also did not fully agree with the proposition postulated in Jagmohan Singh's case (Supra) that while making the choice of sentences between imprisonment for life and death the sentence under Section 302 IPC the Court should principally be concerned with the circumstances connected with the particular crime under trial. The Constitution Bench said that not only the relevant circumstances of crime are important, but due consideration must also be given to the circumstances in which criminal was placed. While reformulating the propositions in Jagmohan Singh's case Bench said, "while considering the question of sentence to be imposed for the offence of murder, under Section 302 IPC the Court must regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an DSR.8/09 & connected cases 18 exceptionally depraved and heinous character and constitutes, on account of its design in the manner of execution, a source of grave danger to the society at large, the Court may impose death sentence". By analysing the matter from all quarters, the Constitution Bench arrived at conclusion that the sentence of death has to be awarded only in the rarest of rare case, where the option of awarding sentence of life imprisonment is unquestionably foreclosed. The Constitution Bench in Bachan Singh's case (Supra) so far as sentencing policy shifted the focus from the crime to the crime and the criminal.

17. Prior to Bachan Singh's case (Supra) and after Jagmohan Singh's case (Supra), Dalbir Singh and others v. State of Punjab [(1979)3 SCC 745] came up for consideration, wherein Ediga Anamma v. State of A.P [(1974)4 SCC 443] and Rajendra Prasad v. State of U.P [(1979)3 SCC 646] were discussed at length. Their Lordships ultimately opined that Court can order that life imprisonment should run for full life and in that case on facts they held that death sentence was not justified. After the Constitution Bench judgment, in Machhi Singh and Others v. State of Punjab [(1983)3 SCC 470] issue of 'rarest of DSR.8/09 & connected cases 19 rare case' and the test to determine a particular case as rarest of rare certain guidelines were laid down. In the said case, death sentence imposed by the trial court and confirmed by the High Court on facts and circumstances was held as justified as seventeen helpless, defenceless and innocent men, women and children, all related to the main opponent of the accused were mercilessly gunned down while asleep on the same night in quick succession in different neighbouring villages. They reiterated the questions that have to be considered in the test to determine the case as rarest of rare case. They also came up with four guidelines emerging from Bachan Singh's case (Supra) to be applied to the facts of each individual case, where the question of imposition of death sentence arises, which are reproduced hereunder:

"(i) The extreme penalty of death need not be inflicted 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 DSR.8/09 & connected cases 20 sentence is an exception. 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 has 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."

18. In Allauddin Mian and others v. State of Bihar [1989 KHC 894(SC)] Their Lordships confirmed that clause (3) of Section 354 Cr.P.C giving special reasons while imposing death penalty is consistent with Article 21 of the Constitution of India. They also held that provision for giving opportunity to accused to place before the Court all the relevant material having a bearing DSR.8/09 & connected cases 21 on the question of sentence as mandatory. They confirmed the earlier view of the Division Bench that death sentence should be reserved for rarest of rare case, which are of an exceptional nature. According to them, nature of the crime and the circumstances of the offender should reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate.

19. In State of Tamil Nadu v. Rajendran (AIR 1999 SC 3535) the Apex Court, while confirming the death sentence, referring to power of Court under Sections 366 and 386 Cr.P.C, opined, it is the duty of the High Court in death reference to consider evidence afresh and the High Court can reappreciate and reassess the entire facts and law so as to arrive at independent conclusion.

20. In the case of Aloke Nath Dutta and others v. State of West Bengal [(2007) 12 SCC 230] the Apex Court had an occasion again to consider what exactly constitutes rarest of rare case. They held, to arrive at a conclusion of rarest of rare case, it depends upon facts and circumstances of each case and no uniform criterion could be laid down. Objective evaluation of DSR.8/09 & connected cases 22 indicia and legal thresholds have to be looked into. They opened, sentencing being an integral part of criminal jurisprudence and especially in the case of death penalty, serious deliberation has to be exercised. The Court should not remain unmindful to protect the injured and with that view of the matter recommend award of proper sentence having regard to the nature of evidence. Rarest of rare case must be determined in each case depending upon the facts and circumstances of that particular case. There is no uniform criteria for awarding death penalty or a lesser penalty as several factors are required to be taken into consideration. They further opined, no sentencing policy in clearcut terms has been evolved by the Supreme Court.

21. Then in Mulla and another v. State of Uttar Pradesh [(2010)3 SCC 508] Their Lordships, after referring to Dalbir Singh's case (Supra), Subash Chander v. Krishan Lal [(2001)4 SCC 458] and Ramraj v. State of Chhattisgarh [(2010)1 SCC 573], opined that looking at the length of incarceration, Court can reduce the sentence of death to life imprisonment. Their Lordships further held, Court should be free to determine length of imprisonment which will suffice the offence DSR.8/09 & connected cases 23 committed. The accused must be sentenced to go imprisonment for life, which should extend to their full life, subject to any remission by Government for good reasons.

22. In Mohd. Mannan alias Abdul Mannan [(2011)5 SCC 317] the Apex Court discussed broad guidelines for imposition of death penalty. Paragraphs 23 and 23 of the said decision are relevant, which read as under:

"23. It is trite that death sentence can be inflicted only in a case which comes within the category of the rarest of rare cases but there is no hard-and-fast rule and parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as the rarest of rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but no hard-and-fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive.

24. Further, crime being brutal and DSR.8/09 & connected cases 24 heinous itself does not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and a just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer dehors their personal opinion and inflict death penalty. These are the broad DSR.8/09 & connected cases 25 guidelines which this Court had laid down for imposition of the death penalty."

23. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra (AIR 2011 SC 3690) the Apex Court was dealing with the case where the accused had murdered his wife and their children by burning them alive. Considering the burning persons to death is a horrible act, which causes excruciating pain to victim, which was very much within the knowledge of the accused, who instead of doing his duty of protecting his family, kills them in such a cruel and barbaric manner cannot be reformed or rehabilitated, the Apex Court concluded that it was a rarest of rest case and death sentence was upheld. While considering the matter on facts and circumstances of that case, to conclude whether it was a rarest of rare case, Their Lordships also had an occasion to consider movement of abolition of death penalty. At paragraph 101 Their Lordships held, abolition of death sentence is the duty of the legislature and not judiciary. Paragraph 101 of the said decision is relevant, which reads as under:

"101. It is only the legislature which can abolish the death penalty and not the courts. As DSR.8/09 & connected cases 26 long as the death penalty exists in the statute book it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary. It is not for the judiciary to repeal or amend the law, as that is in the domain of the legislature vide Common Cause v. Union of India, 2008 (5) SCC 511 (vide paragraphs 25 to 27) : (AIR 2008 SC 2116 :

2008 AIR SCW 3164). The very fact that it has been held that death penalty should be given only in the rarest of the rare cases means that in some cases it should be given and not that it should never be given. As to when it has to be given, the broad guidelines in this connection have been laid down in Macchi Singh's case (supra) which has been followed in several decisions referred to above. This Court has also held that honour killing vide Bhagwan Dass v.

State (NCT) of Delhi, AIR 2011 SC 1863 : (2011 AIR SCW 2867), fake encounter by the police vide Prakash Kadam v. R.V. Gupta, AIR 2011 SC 1945 : (2011 AIR SCW 3113) and dowry death vide Satya Narayan Tiwari v. State of U.P. (2010) 13 SCC 689 : (AIR 2011 SC (Cri) 507 :

2010 AIR SCW 7144) comes within the category of 'rarest of rare cases'. Hired killing would also ordinarily come within this category." DSR.8/09

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24. In the case of Amit v. State of Uttar Pradesh [(2012) 4 SCC 107) Their Lordships, while considering confirmation of death sentence, where the accused were guilty of offences punishable under Sections 302, 364, 376, 377 and 201 IPC, discussed the circumstances when death sentence could be commuted to life imprisonment. They, having regard to the age of the accused young person of 28 years and in the absence of evidence that he had committed similar offence on earlier occasion, especially in the absence of evidence suggesting that he is likely to repeat similar crime, opined that sentence of death awarded to the appellant deserves to be converted to life imprisonment with a direction that life imprisonment shall extend to the full life of appellant, but subject to any remission or commutation at the instance of Government for good and sufficient reasons. The above scenario shows evolution of sentencing policy. From the perspective of crime now it is shifted not only to crime but also to the criminal. Earlier the Court was required to give reasons why sentence of death is not imposed, but there is see change in the scenario. Now after 1973 Code DSR.8/09 & connected cases 28 Courts have to say why sentence of death has to be imposed and what are the circumstances which amount to rarest of rare case.

It could be variety of reasons as dealt by the Apex Court in different decisions.

25. Then coming to the controversial issue brought before us, the controversy relates back to the dictum laid down in Swamy Shraddananda(2)'s case (Supra). In Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka [(2007)12 SCC 288] (this is the first case of Swamy Shraddananda's case came up before the Apex Court). The accused was convicted and sentenced to death for offences punishable under Sections 302 and 201 IPC based on circumstantial evidence. The evidence was, at his instance the dead body of his wife came to be recovered and non explanation of incriminating circumstances by accused. The failure of accused as husband to explain how his wife met with unnatural death in the bed room and how the dead body came to be buried in the house provided additional ink in the chain of circumstances. Their Lordships opined as prosecution solely relied on circumstantial evidence, evidence must be considered with extra care. Special DSR.8/09 & connected cases 29 reasons have to be mentioned while taking into consideration all factors for making a decision whether death sentence warrants in the facts and circumstances of that case. Their Lordships opined, where conviction is solely based on circumstantial evidence, while imposing death sentence which is unique in its irrevocability, it should be borne in mind that circumstantial evidence cannot be presumed to be full proof of the incidences. The nature of evidence is also a relevant factor, which has two facets, i.e., was it a case of diabolical murder and was there any planning preceding commission of murder. If answer is in negative, death sentence would not be warranted. Taking into consideration the fact that accused made a confession accepting at least a part of the offence at the stage of hearing before the High Court under Section 235(3) Cr.P.C can be considered as a factor against imposition of death sentence. Ultimately, one of the Honourable Judges Justice S.B.Sinha opined, normally in cases where murder committed by a large number of persons or by more than one person in a brutal and systematic manner, death sentence is upheld. In the case on hand His Lordship opined, death sentence was not warranted. Other Honourable Judge Justice Markandey DSR.8/09 & connected cases 30 Katju, after referring to Articles 72(1)(c) and 72(3) of the Constitution of India, opined, despite growing demand in international fora, death sentence in India has not been abolished and the Court has no power to abolish the same. He further opined, there is no absolute rule that where conviction is based on circumstantial evidence, death sentence should not be awarded, nor is there any such principle that merely because of long lapse of time, between commission of murder and final conviction by court, death sentence cannot be imposed. He also opined, having regard to the circumstances of the case that the appellant-accused who was in a dominating position or position of trust committed murder of woman for gains in a cold-blooded, calculated, diabolical, depraved, malevolent and most condemnable manner, taking advantage of the lady's innocence, it was a case of rarest of rare case, hence, opined, death sentence alone is the answer. The Apex Court referred to several other issues including judicial activism and judicial legislation. They also held, court cannot amend the Constitution by judicial verdict or legislate or amend the law by the process of interpretation. As there was difference of opinion, so far as imposition of death DSR.8/09 & connected cases 31 sentence, the matter came up for consideration before three Judges of the Apex Court in Swamy Shraddananda(2)'s case (Supra).

26. The dictum laid down in Swamy Shraddananda(2)'s case (Supra) has led to the present reference for our consideration. Paragraphs 54, 55, 56, 72, 77, 90 and 92 of the said decision are relevant, which read as under:

"54. Coming now to the facts of the case it is undeniable that the appellant killed Shakereh in a planned and cold-blooded manner but at least this much can be said in his favour that he devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most. Further, though the way of killing appears quite ghastly it may be said that it did not cause any mental or physical pain to the victim. Thirdly, as noted by Sinha, J. the appellant confessed his guilt at least partially before the High Court.

55. We must not be understood to mean that the crime committed by the appellant was not very grave or the motive behind the crime was not highly depraved. Nevertheless, in view of the above discussion we feel hesitant in DSR.8/09 & connected cases 32 endorsing the death penalty awarded to him by the trial court and confirmed by the High Court. The absolute irrevocability of the death penalty renders it completely incompatible to the slightest hesitation on the part of the Court. The hangman's noose is thus taken off the appellant's neck.

56. But this leads to a more important question about the punishment commensurate to the appellant's crime. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable. As a matter of fact, Mr Hegde informed us that the appellant was taken in custody on 28-3-1994 and submitted that by virtue of the provisions relating to remission, the sentence of life imprisonment, without any qualification or further direction would, in all likelihood, lead to his release from jail in the first quarter of 2009 since he has already completed more than 14 years of incarceration. This eventuality is simply not acceptable to this Court. What then is the answer? The answer lies in breaking this standardisation that, in practice, renders the DSR.8/09 & connected cases 33 sentence of life imprisonment equal to imprisonment for a period of no more than 14 years; in making it clear that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court. This Court, therefore, must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed, in appropriate cases as a uniform policy not only by this Court but also by the High Courts, being the superior courts in their respective States. A suggestion to this effect was made by this Court nearly thirty years ago in Dalbir Singh v. State of Punjab. In para 14 of the judgment this Court held and observed as follows: (SCC p. 753) "14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which DSR.8/09 & connected cases 34 strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder."

(emphasis added) We think that it is time that the course suggested in Dalbir Singh should receive a formal recognition by the Court.

xx xx xx

72. Before us it was submitted that just as the Court could not direct the appropriate Government for granting remission to a convicted prisoner, it was not open to the Court to direct the appropriate Government not to consider the case of a convict for grant of remission in sentence. It was contended that DSR.8/09 & connected cases 35 giving punishment for an offence was indeed a judicial function but once the judgment was pronounced and punishment awarded, the matter no longer remained in the hands of the Court. The execution of the punishment passed into the hands of the executive and under the scheme of the statute the Court had no control over the execution.

xx xx xx

77. This takes us to the issue of computation and remission, etc. of sentences. The provisions in regard to computation, remission, suspension, etc. are to be found both in the Constitution and in the statutes. Articles 72 and 161 of the Constitution deal with the powers of the President and the Governors of the States respectively to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted for any offence. Here it needs to be made absolutely clear that this judgment is not concerned at all with the constitutional provisions that are in the nature of the State's sovereign power. What is said hereinafter relates only to provisions of DSR.8/09 & connected cases 36 commutation, remission, etc. as contained in the Code of Criminal Procedure and the Prisons Acts and the rules framed by the different States.

xx xx xx

90. Earlier in this judgment it was noted that in the decision in Shri Bhagwan there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in SCC para 22, refers to and quotes from the earlier decision in State of M.P. v. Ratan Singh which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayak Godse. It will be profitable to reproduce here the extract from Ratan Singh:

(SCC pp. 473-74, para 4) "4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra, where the Court, following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor DSR.8/09 & connected cases 37 observed as follows: (AIR pp. 602-03, paras 4-5) `4. ... Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.

5. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Penal Code, Code of Criminal Procedure or the Prisons Act. ... A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life.' The Court further observed thus: (AIR pp. 603-

04, paras 7-8) `7. ... But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act DSR.8/09 & connected cases 38 confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. ... Under the said rules the order of an appropriate Government under Section 401, Criminal Procedure Code, are a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

8. ... The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.' It is, therefore, manifest from the decision of DSR.8/09 & connected cases 39 this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life." (emphasis supplied) Further, in para 23, the judgment in Shri Bhagwan observed as follows: (SCC pp. 306-07) DSR.8/09 & connected cases 40 "23. In Maru Ram v. Union of India a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar v. State of W.B., after referring to the decision of Gopal Vinayak Godse v. State of Maharashtra, the Court reiterated that sentence for `imprisonment for life' ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be DSR.8/09 & connected cases 41 unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."


    (emphasis supplied)

            xx        xx         xx

            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 DSR.8/09 & connected cases 42 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.

27. Paragraph 54 quoted above refers to facts of the case and Their Lordships opined that the appellant killed the deceased in a planned and cold-blooded manner, but the fact was, he did not cause any mental or physical pain to the victim as he was sedative when buried alive. They also referred to observation of Justice Sinha that the appellant confessed his guilt at least partially before the High Court. At paragraph 55, again Their DSR.8/09 & connected cases 43 Lordships explained that they should not be understood to mean that the crime committed by the appellant was not very grave or the motive behind the crime was not highly depraved. The death penalty awarded to him by the trial court again confirmed by the High Court, they felt hesitant in endorsing the death penalty because of the nature of fact of absolute irrevocability of the nature of penalty, which renders it completely incompatible to the slightest hesitation on the part of the Court. Paragraph 56 again indicates the mind of the Bench to impose punishment commensurate to the crime as stated above.

28. The issue before us is whether the Sessions Courts are empowered to exercise power while sentencing the accused guilty of offence punishable with death as exercised by the Apex Court in Swamy Shraddananda(2)'s case (Supra). This takes us to other series of judgments, which deal with remission of sentence, set off period of detention and other benefits and various legislations, apart from benefit of pardon under Articles 72 and 161 of the Constitution of India.

29. Sections 432, 433, 433A and 428 of the Code of Criminal Procedure are necessary to be reproduced in order to understand DSR.8/09 & connected cases 44 the dictum laid down by the Apex Court in the cases referred to herein, which read as under:

"432. Power to suspend or remit sentences.-(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a DSR.8/09 & connected cases 45 sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should lbe presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such etition by the person sentenced or by any other person on his behalf shall be entertained, unless DSR.8/09 & connected cases 46 the person sentenced is in jail, and,-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-

sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in section 433, the expression "appropriate Government"

means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any lw relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

xxx xxx xxx

433. Power to commute sentence.- DSR.8/09 & connected cases 47 The appropriate Government may, without the consent of the person sentenced commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, or fine.

                  xxx              xxx           xxx

                  433A.   Restriction  on   powers    of

remission or commutation in certain cases.-

Notwithstanding anything contained in section 432, 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 DSR.8/09 & connected cases 48 be released from prison unless he had served at least fourteen years of imprisonment.

xxx xxx xxx

428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:

Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section."

30. Articles 72 and 161 of Constitution are also relevant which read as under:

DSR.8/09 & connected cases 49

"72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial, (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

                  xxx             xxx

          DSR.8/09
       & connected cases         50

                   161. Power of Governor to grant

pardons, etc., and to suspend, remit or commute sentences in certain cases.- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends."

31. The earliest case, which comes to our mind is Maru Ram v. Union of India and several other connected matters [(1981)1 SCC 107], where consideration of Section 433A Cr.P.C, came up before the Apex Court and vast change was made with the interpretation of Section 433A. While dealing with Section 433A Cr.P.C by amendment in 1978, which made a full 14 year term of imprisonment a mandatory one for two class of prisoners sentenced to life imprisonment, i.e., (1) those who could (for the offences committed) be also punished to death and (2) who were sentenced to death but whose sentence was commuted to life imprisonment under Section 433 Cr.P.C, their Lordships opined, Parliament has competency to pass Section 433A Cr.P.C, since it falls under Entry 2 of List III as a cognate provision integral to DSR.8/09 & connected cases 51 remission and commutation, as it sets limits to the power conferred by the preceding two sections. It was held that even if the State passed laws for remission and short-sentencing, in case of repugnancy Section 433A Cr.P.C would prevail. Non-obstante clause does not affect affect the scope of clear provisions of the enacting part. Their Lordships also held Section 433A Cr.P.C does not violate Article 21 of the Constitution and opined, remission vests no right to release when sentence is life imprisonment. No greater punishment is inflicted by Section 433A Cr.P.C than the law annexed originally to the crime. Since life sentence is a sentence for life, they opined, rules regarding remission of sentence are special law but Section 433A Cr.P.C being a specific provision to the contrary would prevail over that special law by virtue of Section 5. They also opined that it does not violate Article 14 of the Constitution of India and that deterrence is a valid punitive component of sentencing. Therefore, a measure of minimum incarceration of 14 years envisaged in Section 433A Cr.P.C for the gravest class of crime like murder cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and lifers and as DSR.8/09 & connected cases 52 so blatantly barbarous as to be irrational enough to be struck down as ultra vires. They also held that introduction of Section 433A does not affect the rights of parole and does not exclude other benefits. Their Lordships held, object of imposing deterrent punishment in the field of penology is a subject over which Legislature has the jurisdiction. In the sense, it is for the Legislature to decide which form of punishment would be deterred for its purpose and Court cannot interfere with the Legislature's decision and suggest another form of punishment.

32. Later in Ashok Kumar v. Union of India (AIR 1991 SC 1792) Their Lordships, while dealing with Section 428 Cr.P.C, where set off of detention period is provided, considered Sections 433 and 433A Cr.P.C. While considering Sections 428, 433 and 433A Cr.P.C, Their Lordships also referred to Articles 72 and 161 of the Constitution of India and held, recommendation by Supreme Court in Maru Ram v. Union of India (AIR 1980 SC 2147) framing of guidelines are only recommendation and not ratio decidendi having binding effect. Paragraphs 12 and 14 of the said decision are relevant, which read as under:

"12. It will thus be seen from the ratio laid down in the aforesaid two cases that where a DSR.8/09 & connected cases 53 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 433A of the Code, or constitutional power has been exercised under Art. 72/161 of the Constitution. In Bhagirath's case (AIR 1985 SC 1050) the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of S. 428 of the Code which, inter alia, provides for setting off the period of detention undergone by the accused as an under-trial against the sentence of imprisonment ultimately awarded to him. Referring to Section 57, I.P.C. the Constitution Bench reiterated the legal position as under (at p. 1053, Para 9 of AIR):

"The provision contained in S. 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 DSR.8/09 & connected cases 54 provision into service for a wider purpose."

These observations are consistent with the ratio laid down in Godse (AIR 1961 SC 600) and Maru Ram's cases (AIR 1980 SC 2147). Coming next to the question of set off under S. 428 of the Code, this Court held (at p. 1053, Para 11 of AIR):

"The question of setting off the period of detention undergone by an accused as an under-trial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under S. 432 or S. 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."

We fail to see any departure from the ratio of Godse's 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 DSR.8/09 & connected cases 55 under-trial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in S. 433A and, 'provided that orders have been passed by the appropriate authority under Section 433 of the Code of Criminal Procedure.' 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 under-trial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under S. 432/433 of the Code. The ratio of Bhagirath's case, therefore, does not run counter to the ratio of this Court in the case of Godse or Maru Ram.

xxx xxx

14. In Kehar Singh's case (AIR 1989 SC

653) on the question of laying down guidelines for the exercise of power under Art. 72 of the Constitution this Court observed in paragraph 16 as under:

"It seems to us that there is sufficient indication in the terms of Art. 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled DSR.8/09 & connected cases 56 out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that, the power under Art.

72 is of the widest amplitude, can contemplate a myriad kinds of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme."

These observations do indicate that the Constitution Bench which decided Kehar Singh's case was of the view that the language of Art. 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power. No doubt in Maru Ram's case (AIR 1980 SC 2147) the Constitution Bench did DSR.8/09 & connected cases 57 recommend the framing of guidelines for the exercise of power under Arts. 72 and 161 of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh's case.

Therefore, the observation made by the Constitution Bench in Kehar Singh's case does not upturn any ratio laid down in Maru Ram's case. Nor has the Bench in Kehar Singh's case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers."

33. In State of Punjab v. Kesar Singh (AIR 1996 SC 2512) when a question of premature release of convict before completing 14 years of sentence came up for consideration, Their Lordships held that the mandate of Section 433 Cr.P.C enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the courts. Clause (3) of Section 433 Cr.P.C provides that the sentence of imprisonment for life may be commuted for a term not exceeding 14 years or for fine. Undisputedly, the respondent had not completed 14 years DSR.8/09 & connected cases 58 sentence when he filed petition under Section 482 Cr.P.C seeking premature release. The direction of the High Court to prematurely release the accused and set him at liberty forthwith was held incorrect. Their Lordships held, even if the High Court give such a direction, it could only direct consideration of the case of premature release by the Government and could not have ordered premature release of the respondent itself. Emphasis was laid on the right to exercise power under Section 433 Cr.P.C vests in the Government and the Government alone has to exercise that power in accordance with the Rules and established principles and not the High Court.

34. In Shri Bhagwan v. State of Rajasthan [(2001)6 SCC 296] Sections 57 and 433A Cr.P.C came up for consideration. Their Lordships said that sentence of imprisonment for life ordinarily means, sentence of imprisonment for whole of the remaining period of the convicted person's natural life and held, rules framed under Prisons Rules do not substitute a lesser sentence for a sentence for life, therefore, for release of a prisoner on expiry of a particular term, an appropriate order of the Government is necessary. On account of an embargo under DSR.8/09 & connected cases 59 Section 433A Cr.P.C that the minimum imprisonment of life cannot be less than 14 years, the accused must be released only after completion of 14 years of imprisonment. Paragraphs 22 and 23 of the said decision are relevant, which read as under:

"22. A question may arise -- whether in view of the provision of Section 433(b) read with Section 433-A CrPC an accused should be released on completion of 14 years of imprisonment. For this purpose, we would make it clear that Section 433(b) enables the appropriate Government to commute the sentence of imprisonment for life, for imprisonment of a term not exceeding 14 years or for fine. Under Section 433-A, there is an embargo on that power by providing 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 under the law, such person is not to be released from prison unless he had served at least fourteen years of imprisonment. This question is considered by various decisions rendered by this Court and by the Privy Council and it has been DSR.8/09 & connected cases 60 reiterated that a sentence of imprisonment for life imposed prima facie be treated as imprisonment for the whole of the remaining period of the convicted person's natural life. It is also established law that rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. This Court in State of M.P. v. Ratan Singh8 in para 4 held thus: (SCC pp. 473-74, para 4) "4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra where the Court following a decision of the Privy Council in Pandit Kishori Lal v. King Emperor observed as follows:

`Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. DSR.8/09 & connected cases 61 If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.

             *    *    *

     A    sentence    of   transportation  for  life or

imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life.' The Court further observed thus:

`But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act DSR.8/09 & connected cases 62 should be construed within the scope of the ambit of the Act. ... Under the said rules the orders of an appropriate Government under Section 401, Criminal Procedure Code, are prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The Rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.' It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do DSR.8/09 & connected cases 63 not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the Rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would enure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life."

23. In Maru Ram v. Union of India a Constitution Bench of this Court reiterated the aforesaid position and observed that the DSR.8/09 & connected cases 64 inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar v. State of W.B. after referring to the decision of the case of Gopal Vinayak Godse v. State of Maharashtra the Court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the DSR.8/09 & connected cases 65 remissions that the said sentence is equated with definite period and not for any other purpose."

35. In State (Govt. of NCT of Delhi) v. Prem Raj [(2003) 7 SCC 121] a question arose what exactly 'commutation' means, as envisaged under Section 433(c) Cr.P.C. Their Lordships held, commutation is in essence alteration of a sentence of one kind into a sentence of less severe kind. The powers of commutation exclusively vest with the appropriate Government. The expression "appropriate Government" means the Central Government in cases where the sentence or order relates to the matter to which the executive power of the Union extends and the State Government in other cases. The powers conferred upon the appropriate Government under Section 433 have to be exercised reasonably and rationally keeping in view the reasons germane and relevant for the purpose of law, mitigating circumstances and/or commiserative facts necessitating the commutation and factors like interest of the society and public.

36. Their Lordships also referred to Articles 72 and 161 of the Constitution of India and said, pardon is one of the many prerogatives which have been recognised since time immemorial DSR.8/09 & connected cases 66 as being vested in the sovereign, wherever the sovereignty might lay. The power to grant pardon recognises under Articles 72 and 161 of the Constitution of India and also in Sections 432 and 433 Cr.P.C. The grant of pardon under certain conditions as contemplated by Section 306 Cr.P.C is a variation of this power. The grant of pardon whether it is exercised under Article 161 or 72 of the Constitution of India or under Sections 306, 432 and 433 Cr.P.C, it is the exercise of sovereign power. Their Lordships held, pardon is an act of grace, proceeding from the power entrusted with execution of laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender, in other words, a full pardon may blot out the guilt itself. Further, it does not amount to an acquittal unless the court otherwise directs. Hence, pardon is to be distinguished from amnesty, which is defined as general pardon of political prisoners, an act of oblivion. Article 72 of the Constitution of India confers upon the President power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted DSR.8/09 & connected cases 67 of any offence. The power so conferred is without prejudice to the similar power conferred on the Court Martial or the Governor of a State. Article 161 of the Constitution confers similar powers upon the Governor of a State in respect of any offence against any law relating to a matter to which the executive power of the State extends. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433A Cr.P.C or by any Prison Rules. However, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.

37. When powers of remission is exercised, it does not mean, Government can revise the judgment of the Court, it can only remit the sentence, i.e., reduction of the quantum of sentence without changing its character. It only provides the Government with a power to remit the sentence. Remission of punishment resumes the correctness of the conviction and only reduces the punishment in part or whole. It does not mean an acquittal. Section 428 Cr.P.C contemplates conviction by the Court and it operates at the time of pronouncement of sentence by the Court, whereas Section 433 Cr.P.C deals with commutation by the State DSR.8/09 & connected cases 68 authority. Therefore, consequences that follow from the provisions of Sections 433 Cr.P.C do not affect Section 428 Cr.P.C. It is further held that power to commute a sentence of death is independent of Section 433A Cr.P.C. The restriction under Section 433 Cr.P.C comes into operation only after the power under Section 433 is exercised. Release of prisoners condemned to death in exercise of power conferred under Section 433A Cr.P.C and Article 161 of the Constitution does not amount to interference with due and proper course of justice, as the power of the High Court to pronounce upon the validity, propriety and correctness of the conviction and sentence remains unaffected.

38. In State of Haryana and others v. Jagdish (2010 SC 1690) the Apex Court had an occasion to again deal with Section 432 and 433 Cr.P.C and Articles 72 and 161 of the Constitution of India. Their Lordships said, accused, who was convicted and sentenced for life imprisonment has the right to ask for remission of sentence with regard to the policy decision applicable on the date on which accused was convicted. Their Lordships emphasised matters to be considered while granting DSR.8/09 & connected cases 69 remission as a policy. Paragraphs 35, 37 and 39 of the said decision are relevant, which read as follows:

"35. In view of the above, it is evident that the clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Art.72 or 161 of the Constitution cannot be restricted by the provisions of S.432, S.433 and S.433

- A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say that clemency power under Art.72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short - sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered. The Constitution Bench of this Court in Maru Ram (supra) clarified that not only the provisions of S.433 - A Cr. P.C. would apply prospectively but any scheme for short sentencing framed by the State would also apply prospectively. Such a view is in conformity with the provisions of Art.20 (1) and 21 of the Constitution. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. When a short sentencing scheme is referable to DSR.8/09 & connected cases 70 Art.161 of the Constitution, it cannot be held that the said scheme cannot be pressed in service. Even if, a life convict does not satisfy the requirement of remission rules / short sentencing schemes, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency under the provisions of Art.72 and Art.161 of the Constitution. Right of the convict is limited to the extent that his case be considered in accordance with the relevant rules etc., he cannot claim premature release as a matter of right.

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37. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. "Society without crime is a utopian theory". The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity DSR.8/09 & connected cases 71 and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that "guilty must pay for his crime" should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of "Savage Justice" is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.

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39. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power DSR.8/09 & connected cases 72 be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. 'Vana Est Illa Potentia Quae Nunquam Venit In Actum' means - vain is that power which never comes into play." .

39. Then coming to the present issue, according to Sri.T.Asaf Ali, Director General of Prosecutions and Sri.Tom Jose Padinjarekkara, Additional Director General of Prosecutions, as held by the Division Bench in Navas's case (Supra), the Sessions Court cannot follow the dictum laid down in Swamy Shraddananda(2)'s case (Supra), as Their Lordships, having regard to the facts and circumstances of that case, opined that accused deserves harsher sentence of life imprisonment than regular life imprisonment and it cannot be held as a precedent or dictum applicable to Sessions Courts. To substantiate their contention, they relied upon several decisions of the Apex Court subsequent to Swamy Shraddananda(2)'s case (Supra) and contended that it cannot be a precedent having binding force as contemplated under Article 141 of the Constitution of India. In DSR.8/09 & connected cases 73 Ramraj v. State of Chhattisgarh (AIR 2010 SC 420) paragraphs 14 and 15 were relied upon, which read as under:

"14. In a more recent case, Swamy Shraddananda v. State of Karnataka [(2008) 13 SCC 767] : (2008 AIR SCW 5110), this Court was called upon to consider as to what would constitute "life imprisonment" in a case where death sentence was commuted to life sentence. Swamy Shraddananda was convicted under Section 302 and 201, IPC and was sentenced to death for the offence under Section 302, IPC. In appeal the High Court affirmed the conviction and the death sentence awarded to the appellant by the learned 25th City Sessions Judge, Bangalore City and accepted the reference made by the trial Court without any modification in the conviction or sentence. The matter then travelled to this Court and again came up for disposal before a Bench of three Judges. While one of the learned Judges took the view that the appellant deserved nothing but death, the others made it clear that life imprisonment, rather than death, would serve the ends of justice. But the Hon'ble Judges also made it clear that the appellant would not be released from prison till the end of his life. DSR.8/09

& connected cases 74 Having examined various decisions on the point which have also been referred to hereinabove, the Hon'ble Judges substituted the death sentence given to the appellant by the Trial Court and confirmed by the High Court with imprisonment for life with a direction that the convict would not be released from prison for the rest of his life.

15. What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Shraddananda's case (supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However, while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the definition of "rarest of rare cases" so as to merit a death sentence. Nevertheless, having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner DSR.8/09 & connected cases 75 for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433-A, Cr. P.C., could not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was a lesser punishment."

40. Reading of paragraph 15 quoted above clearly indicates, the Apex Court was of the view in Ramraj's case (Supra) that the decision in Swamy Shraddananda(2)'s case (Supra) was taken in the special facts of that case when on account of very brutal murder, the appellant had been sentenced to death by the trial court and later on it has been accepted by the High Court.

41. Paragraphs 158 and 159 in Mohd. Farooq Abdul Gafur v. State of Maharashtra [(2011)3 SCC (Crl.) 867] are relevant, which read as under:

"158. The disparity in capital sentencing has been unequivocally asserted not only in Bariyar but also in Aloke Nath Dutta v. State of W.B. and in Swamy Shraddananda (2) v. State of Karnataka. In such a scenario, rule-based judging norms and sound rules of prudence are the only guarantee to fair and equitable sentencing. This emerges from the DSR.8/09 & connected cases 76 constitutional context to the administration of capital sentencing problem as also a closer reading of the rarest of rare test.

159. In Bachan Singh the Court invoked the superlative standard (sic which) safeguarded the judicial space to award death penalty. We should bear in mind that the test will be fulfilled not merely by employing the "personal predilection" of a Judge (see Swamy Shraddananda) and deciding the rarest of rare instance on the facts of the case, but only after due consideration of the intangibles relating to the case. The assessment of "the rarest of the rare case" is incomplete without coming to the conclusion that the "the lesser alternative is unquestionably foreclosed". And procedural fairness and justice concerns form part of the latter condition."

42. In Neel Kumar alias Anil Kumar v. State of Haryana[(2012)5 SCC 766] Their Lordships made reference to Swamy Shraddananda(2)'s case (Supra) opining that the facts available in Swamy Shraddananda(2)'s case (Supra), persuaded the Court to set aside the sentence of death penalty and awarded life imprisonment.

DSR.8/09 & connected cases 77

43. In the latest unreported decision of the Apex Court in the case of Sangeet & Another v. State of Haryana in Criminal Appeal Nos. 490-491 of 2011 Their Lordships categorised the entire issue of death penalty and the related matters into three parts, first part has leading judgments on death penalty, second part pertains to issue of aggravating and mitigating circumstances, standards and categorisation of crimes, substantive check on arbitrary remissions and lastly concluded at paragraph 80 & 81, which read as under:

"80. The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude:

1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions.

This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.

DSR.8/09 & connected cases 78

2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal.

A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.

3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

5. The grant of remissions is statutory.

However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive DSR.8/09 & connected cases 79 checks in the statute. These need to be faithfully enforced.

6. Remission can be granted under Section 432 of the Cr.P.C in the case of a definite term of sentence. The power under this Section is available only for granting "additional"

remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of the Cr.P.C can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.

7. Before actually exercising the power of remission under Section 432 of the Cr.P.C the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court.

Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.

DSR.8/09 & connected cases 80

81. Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences - whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment, in cases such as the present is not unquestionably foreclosed. More so when, in this case, there is no evidence (contrary to the conclusion of the High Court) that Seema's body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. There is also no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer."

44. Reading the view of the Apex Court in the subsequent judgments and also paragraphs 54, 55, 56, 71, 72, 90 and 92 of Swamy Shraddananda(2)'s case (Supra), one has to have a holistic approach to conclude whether the view expressed in Swamy Shraddananda(2)'s case (Supra) can be treated as a dictum to be followed by the Sessions Court while considering the question of imposition of lesser sentence than the death sentence, whether they have any option to impose any other DSR.8/09 & connected cases 81 sentence for a definite period other than the imprisonment for life as contemplated under law, i.e., full term of natural life of the accused subject to remission, concession, pardon etc. provided under the Code of Criminal Procedure and other statutes so also Constitution of India.

45. It is beneficial to refer to some of the judgments of the Apex Court in order to understand the controversy whether Sessions Court has any discretion in imposing sentence. In Asif Hameed and others v. State of Jammu and Kashmir and others [(1989)Supp.(2) SCC 364) Articles 246(2), 50 and 162 of the Constitution were considered while discussing the doctrine of separation of powers. Scope of judicial review was also discussed in detail. Paragraphs 17 and 19 of the said decision are relevant, which read as under:

"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously DSR.8/09 & connected cases 82 defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the DSR.8/09 & connected cases 83 self-imposed discipline of judicial restraint.

19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."

46. Reading of the above two paragraphs makes it clear that none of the provisions of the Constitution allows judicial review so far as policy decisions of the Executive. In other words, Court while dealing with an impugned executive act cannot direct the DSR.8/09 & connected cases 84 Legislature to enact a law in respect of a specified matter. It is solely for the Legislature to consider as to when and in what respect of what subject matter the laws are to be enacted. In Vishaka and others v. State of Rajasthan and others [(1997)6 SCC 241] the issue that came up for consideration was, when international conventions and norms consistent with the spirit of the fundamental rights can be read into those rights for interpreting them in the larger context to promote the objects of the Constitution. In that context, Their Lordships held that in the absence of domestic law on the particular aspect, such conventions and norms as ratified by India can be relied on by the Supreme Court to formulate guidelines for enforcement of fundamental rights. Paragraphs 16 and 18 are relevant, which read as follows:

"16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces DSR.8/09 & connected cases 85 or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.

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18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These writ petitions are disposed of, accordingly."

47. In the case of Union of India v. Association for Democratic Reforms and another [(2002)5 SCC 294] the Apex Court, while dealing with the issue of directions or guidelines or orders and the powers of the Supreme Court, held Supreme Court cannot give any direction for amending an Act or Rule, nor can it give any direction contrary to the Act and Rules. However, where the Act and Rule are silent on a subject and the authority DSR.8/09 & connected cases 86 implementing the same has constitutional or statutory power to implement it, Court can issue directions to such authority on such a subject to fill the vacuum or void till the enactment of a suitable law.

48. In the case of State of U.P v. Johri Mal (AIR 2004 SC 3800), the Apex Court, while dealing with the scope of judicial review, proceeded to hold as under:

"57.The High Court failed to consider that the power under Article 226 of the Constitution of India is not at par with the constitutional jurisdiction conferred upon this Court under Article 142 of the Constitution of India. The High Court has no jurisdiction to direct formulation of a new legal principle or a new procedure which would be contrary to and inconsistent with a statutory provision like Code of Criminal Procedure. See State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla and others ((1985) 3 SCC 169) and Asif Hameed and others v. State of Jammu and Kashmir and others (1989 Supp (2) SCC 364)).

58.In Guruvayoor Devaswom Managing Committee and another v. C. K. Rajan and others ((2003 (7) SCC 548) this Court held:

"50. . . . . .(x) The Court would ordinarily DSR.8/09 & connected cases 87 not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, they do not have a power akin to Article 142 of the Constitution of India."

49. In Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. (2006 AIR SCW 5994) the subject that came up before Their Lordships was whether the direction of the Supreme Court without laying down any principle would amount to precedent under Article 141 of the Constitution of India. Paragraph 44 of the said decision is relevant, which reads as under:

"44. No doubt, in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or DSR.8/09 & connected cases 88 regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Supreme Court directs regularization of service of an employee who had put in 3 years' service, this does not mean that all employees who had put in 3 years' service must be regularized. Hence, such a direction is not a precedent. In Municipal Committee, Amritsar vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that everything in a decision is not a precedent. In Delhi Administration vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this Court observed as follows:

"...........The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision DSR.8/09 & connected cases 89 would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle, upon which the case was decided..........."

50. Again a reliance is placed on Prakash Singh and others v. Union of India and others [(2006)3 SCC (Crl) 417] at paragraph 30, which reads as under:

"30. Article 32 read with Article 142 of the Constitution empowers this Court to issue such directions, as may be necessary for doing complete justice in any cause or matter. All authorities are mandated by Article 144 to act in aid of the orders passed by this Court. The decision in Vineet Narain case notes various decisions of this Court where guidelines and directions to be observed were issued in the absence of legislation and implemented till the legislatures pass appropriate legislations."

51. Various decisions referred to above on different aspects of the matter should guide us to arrive at a conclusion DSR.8/09 & connected cases 90 authoritatively whether the exercise undertaken in the case of Swamy Shraddananda(2)'s case (Supra) while commuting death sentence of the accused to that of life imprisonment with a direction not to release till rest of life could be exercised by the Sessions Courts. The stand of the State on this controversy is the course adopted in the case of Swamy Shraddananda(2)'s case (Supra) definitely cannot be exercised by the Sessions Court as reading of several paragraphs of Swamy Shraddananda(2)'s case (Supra) would indicate, the Supreme Court took that view of imposing harsher sentence of life imprisonment exercising jurisdiction under Article 142 of the Constitution, therefore the Sessions Courts cannot exercise similar jurisdiction while imposing sentence. He also substantiate his contention by referring to various provisions of Cr.P.C like Sections 432, 433A, 354 and so also Articles 72 and 161 of the Constitution contending that the powers exercised by the Executive, President of India or Governor of a State as the case may be cannot be adopted by the Sessions Courts. It is needless to say, Section 432 and other provisions of Cr.P.C where it is provided for commutation, remission etc. has to be exercised by the State. So DSR.8/09 & connected cases 91 far as powers under Articles 72 and 161 of the Constitution, it has to be exercised by the President of India or a Governor. This cannot be confused with the powers of Court to convict an accused and impose appropriate sentence. The gamut of decision of the Apex Court while considering imposition of death penalty affirms the primacy of the exercise of judicial discretion to take into account facts and circumstances of each case in arriving at the conclusion whether a particular case could be captioned as "rarest of rare case" warranting extreme penalty of death. Their Lordships opined, such exercise undertaken by the Court at the time of confirmation of death or commutation of sentence is not free from individual perception of the Judges, who deal with the matter. The Apex Court in more than one case opines that there is no uniformity in the sentencing process as observed in Swamy Shraddananda(2)'s case (Supra).

52. There cannot be second opinion that only the Apex Court can exercise powers under Article 142 of the Constitution to do complete justice depending upon the facts and circumstances of a particular case warranting such exercise. After referring to various earlier decisions like Bachan Singh's case (Supra), Machhi DSR.8/09 & connected cases 92 Singh's case (Supra), Jagmohan Singh's case (Supra) etc., Their Lordships in Swamy Shraddananda(2)'s case (Supra) analysed the change in the judicial process while arriving at a conclusion what has to be the judicial exercise while imposing sentence in respect of an offence punishable with capital punishment of death. To analyse the import of the principle laid down in Swamy Shraddananda(2)'s case (Supra), one has to consciously understand the same in accordance with the procedure, law and the constitutional rigour. They emphasised in Swamy Shraddananda(2)'s case (Supra) that the subjective element and confirmation of death sentence and so also commutation of sentence by the Apex Court depends upon a good deal on the predilection of the Judges constituting the Bench while dealing with a case where death penalty is imposed.

53. While analysing various aspects impetus was made with regard to the fact that there may be cases wherein a particular case falls short of the rarest of rare category deserving exclusion of imposition of death sentence, but, at the same time, looking at the nature of the crime, the Court may feel sentence of life imprisonment, which is subject to remission or commutation DSR.8/09 & connected cases 93 working out to a minimum term of 14 years of imprisonment would be grossly inadequate and disproportionate. Characterizing circumstances with reference to the crime and criminal in that particular case, the Apex Court considered possibility of expanding the options so as to cover the vast hiatus between 14 years imprisonment of life and death. In that context, death sentence awarded by the trial court and confirmed by High Court came to be substituted with imprisonment for life with a direction that accused shall not be released till rest of his life.

54. Subsequent judgments of the Apex Court while referring Swamy Shraddananda(2)'s case (Supra) though exercised such option, did not confirm the fact that the exercise undertaken by the Apex Court while commuting the death sentence to harsher imprisonment for life could be undertaken by the Sessions Courts as well. As a matter of fact, in Swamy Shraddananda(2)'s case (Supra) though specifically no reference is made to Article 142 of the Constitution, reading of the judgment and the analysis leading to the conclusion in that case definitely confirm the fact that the Supreme Court imposed a sentence of imprisonment for life without remission or DSR.8/09 & connected cases 94 commutation as provided under the Code of Criminal Procedure drawing its power under Article 142 of the Constitution. At paragraph 56 emphasis was made with regard to the necessity to lay down a good and sound legal basis while dealing with capital punishment. Their Lordships said, in appropriate cases such exercise could be made not only by the Apex Court, but also by the High Courts being superior Courts in their respective States. There is no specific reference to Sessions Courts. By mere reference or passing remark 'all Courts' or 'convicting court' in the said judgment does not persuade us to concur with the opinion of one of the learned Judges of the Division Bench that it means all Courts including the Sessions Courts while accepting that the sentencing policy available is inadequate and there is need to have sound legal and uniform policy so far as sentencing policy. When the provisions of the Code of Criminal Procedure including Section 28 does not clothe the Sessions Courts with the power to labour such exercise as undertaken in Swamy Shraddananda (2)'s case (Supra), we are afraid, giving such powers to Sessions Court without any uniform policy or standardised guidelines is not warranted. In respect of offences where death penalty or DSR.8/09 & connected cases 95 imprisonment for life is the sentence that could be passed, it is open to the Sessions Courts to look into the facts and circumstances in the light of gamut of decisions and decide whether it would fall under the category of rarest of rare case warranting capital punishment of death. Once it opines that the case on hand has to be excluded from the category of rarest of rare case, the only option open to them is to impose sentence of imprisonment for life, which would mean, for the rest of the life of the accused. Beyond that, the Sessions Courts cannot take the exercise of finding alternative sentence. The area of remission, commutation etc. is not within the purview of the Sessions Court. The Executive can exercise such power so far as giving remission or commutation as stated under Sections 432 to 433A. However, depending upon the prison manual or any other law in that regard one cannot bring down imprisonment for life below 14 years with all remission and other best possible benefits which could be extended to the accused.

55. It is pertinent to mention one more aspect of the matter regarding the observations in paragraph 45 of Swamy Shraddananda(2)'s case (Supra) to support our view. Their DSR.8/09 & connected cases 96 Lordships expressed a view regarding lack of details so far as sentencing procedure followed in similar cases by reason of there being hardly any field of comparison, because the Supreme Court deals with only those cases that come before it. All cases where death penalty is confirmed by the High Court they need not reach the Apex Court though factually most of the cases where extreme penalty of death is awarded are taken before the Apex Court with the support of legal aid. One of the learned Judges of the Division Bench rightly by giving an illustration observed that in a case where death penalty is imposed, such accused can always knock at the door of the Executive or the constitutional Courts seeking commutation of death penalty. It is possible to commute the same to imprisonment for life who would be able to get the benefit of remission and possibly get released after 14 years of imprisonment for life. If the Sessions Court exercises such discretion, which could be exercised by constitutional courts as held in Swamy Shraddananda(2)'s case (Supra), the person, who is sentenced to harsher imprisonment for life without any benefit of remission etc. would be at a disadvantageous position to get any benefit provided under law. Therefore, we are of the DSR.8/09 & connected cases 97 view that Their Lordships in Swamy Shraddananda(2)'s case (Supra) though opined that the course suggested in Dalbir Singh's case (Supra) should receive a formal recognition by the Court, they consciously excluded Sessions Courts. It is also clear from the observations that the scope of exercising such power would arise only in few number of cases as already stated above. The Hon'ble Apex Court opines extremely in few number of cases the constitutional Courts have to consider awarding harsher sentence of imprisonment for life than the ordinary imprisonment for life, which is subject to benefit of remission, commutation etc. In the latter decisions of the Apex Court, there was no confirmation of the fact that there is possibility of providing a third alternative sentence by Sessions Court as held by a Division Bench of this Court in Navas's case (Supra).

56. Therefore, we are of the view, only the facts and circumstances in Swamy Shraddananda(2)'s case (Supra) persuaded the Apex Court to take a decision to impose harsher sentence of life imprisonment exercising jurisdiction under Article 142 of the Constitution. Having regard to various provisions of different Statutes, where remission, commutation and other DSR.8/09 & connected cases 98 similar benefits could be considered. Their Lordships were of the opinion, as the accused had already completed 14 years of detention and the case being excluded from the category of rarest of rare case, it would not be justifiable in the circumstances of that case to release him with 14 years of sentence. In view of the above reasoning, we answer the questions referred to us as follows:

(i) The Sessions Judges have no power to impose the harsher variety of life sentence awarded in Swamy Shraddananda(2)'s case (Supra).

(ii) The interpretation of Swamy Shraddananda (2)'s case (Supra) in Navas's case (Supra) that the said power is available to all Sessions Courts is reconsidered as above. DSR.8/09

& connected cases 99 As we have answered the questions referred to us, the Registry is directed to place these DSRs for disposal on merits before the Bench concerned.

MANJULA CHELLUR, CHIEF JUSTICE M.SASIDHARAN NAMBIAR JUDGE T.R.RAMACHANDRAN NAIR, JUDGE vgs

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