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T.S. THAKUR, J.

1. This appeal, by special leave, arises in somewhat peculiar circumstances. The appellants were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana in appeal and eventually by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012 before this Court for a declaration that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty. The petitioner further prayed for quashing the death sentence awarded to the petitioner by the trial court as affirmed by the High Court and by this Court in Criminal Appeals No.1396-1397 of 2008. A mandamus directing commutation of the sentence awarded to the petitioner to imprisonment for life was also prayed for. The writ petition was eventually withdrawn with liberty to the petitioners to approach the jurisdictional High Court for redress. The appellant, thereafter, moved the High Court of Punjab and Haryana at Chandigarh in CWP No.18956 of 2012 praying for a mandamus striking down Section 364A of the IPC and for an order restraining the execution of the death sentence awarded to them. Reopening of the case of the appellants and commutation of the death sentence for imprisonment for life were also prayed for in the writ petition. A Division Bench of the High Court of Punjab and Haryana has, while dismissing the said petition by its judgment and order dated 3rd October, 2012, taken the view that the question whether Section 364A of the IPC was attracted to the case at hand and whether a person found guilty of an offence punishable under the provision could be sentenced to death was not only raised by the appellants as an argument before this Court in appeal filed by them, but, was noticed and found against them. The High Court while saying so relied upon the following passage of the judgment of this Court in the appeal filed by the appellants against their conviction:

3. The High Court on the above reasoning concluded that this Court had considered the nature of the offence and its gravity and held that the appellants deserved the maximum punishment prescribed for both the offences proved against them. The High Court held that the plea now sought to be raised by the writ-petitioners to the effect that Section 364A of the IPC was attracted only when the offence was committed against the government or a foreign country etc. or that no such offence was made out in the case of the petitioners, had been examined and decided against the petitioners which plea could not be re-agitated by them in collateral proceedings. Having said that the High Court proceeded to examine the plea raised by the appellants on its merit, referred to the historical background in which the provisions of Section 364A were added to the statute book and held that Section 364A of IPC, even in the form in which it was initially introduced, made kidnapping by any person in the circumstances indicated in the said provision an offence no matter at the time of initial insertion of Section 364A, India was not committed to the International Convention Against the Taking of Hostages, 1979 to which it became a party only on 7th September, 1994. It was only thereafter that Section 364A was amended to incorporate the expression “any foreign state or international inter-governmental organization or any other person” to honour the commitment under the said Convention. The High Court, accordingly, repelled the argument that Section 364A was attracted only in situations where kidnapping was meant to coerce the government or any international organization to do or not to do a particular act including the demand for payment of ransom. The writ petition was, on that reasoning, dismissed by the High Court, which dismissal is what is under challenge in this appeal before us.

Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said section 364A on kidnapping for ransom, etc. to make it clear that kidnapping a person to compel the Government or any foreign State or international inter-governmental organization or any other person is punishable under that section.”

17. It is evident from the above that Section 364A came on the statute book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but also because activities of terrorist organisations had acquired menacing dimensions that called for an effective legal framework to prevent such ransom situations and punish those responsible for the same. It is also manifest that the further amendment to Section 364A in the year 1994 simply added the expressions “foreign state or international inter-governmental organisation” to the provision without deleting the pre-existing expression “any other person”.

50. Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution.