Shiv Mohan Singh Vs. State (Delhi
Administration) [1977] INSC 82 (10 March 1977)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V.
CITATION: 1977 AIR 949 1977 SCR (3) 172 1977
SCC (2) 238
CITATOR INFO:
R 1980 SC 898 (82)
ACT:
Review--Exercise of the powers of Review must
be justified by the compelling pressure of fresh circumstances within the
limits of law--Supreme Court Rules, 1966 Order XI -Penal Code (1860) S.
302--Sentence--Validity of death sentence.
Criminal Procedure Code, 1973 (Act II of
1974)--Section 235(2)--Right to be heard at the stage of passing
sentence--Considerations in sentencing.
HEADNOTE:
The petitioner was convicted u/s 302 I.P.C.
and sentenced to death by the. trial court which was confirmed by the High
Court. The Special Leave application, to this Court was dismissed. A further
petition for rehearing and a review petition thereafter having 'been dismissed,
a petition for directions regarding demand of the case to the court of Sessions
for reconsideration of the sentence in the light of s.235(3) of the Criminal
Procedure Code 1973, was made, simultaneously with mercy petitions to the President.
The mercy petitions to the President and the petition for direction to tiffs
Court having been rejected the petitioner's father moved the instant review
petition.
Dismissing the petition the Court.
HELD: (1) This court's review power has
repeatedly been invoked ire vain and naturally a further exercise of the same
power must be justified by the compelling pressure of fresh circumstances
within the limits of law. Recognised grounds such as manifest injustice induced
by obvious curial error or oversight or new and important matter not reasonably
within the ken or reach of the party seeking review on the prior occasion, may
warrant interference to further justice.
(2) Under the Indian Penal Code death penalty
has been ruled to be constitutional. The law having sanctioned it and this
Court having refused special leave against conviction and sentence in this very
case, it is a vanquished cause to argue for a vague illegality vitiating
capital sentence as such.
[179 D-E] Gregg v. Georoia, U.S. Supreme
Court decided on July 2, 1976 held not applicable.
(3) In India under present conditions
deterrence through death penalty may not be a time-barred punishment in some
frightful areas of barbarous murder. illustratively the court has mentioned
that the brutal features of the crime and the hapless and helpless state of the
victim steel the heart of the law to impose the sterner sentence. [180 A-B]
Ediga Annamina v. State of A.P., [1974] 4 S.C.C. 443 explained.
(4) The law is thus harsh and humane and when
faced with arguments about the social invalidity of the death penalty the
personal predilections of the judge must bow to the law. The Bench with all its
will to break through is bound by a jurisdictional servitude. This fetter is
that if there is no legal ground for the alleged grievances the court cannot
grant relief. The court enters a province of "powerless power" and
finds itself in a quandary between codified law and progressive thought. The
latter beckons, but the former binds [180 B, 177 F-G] (5) Hearing is obligatory
at the sentencing stage under the new Criminal Procedure Code. The humanist
principle of individualising punishment to suit the person and his circumstances
is best served by hearing the culprit even on the nature and quantum of the
penalty to be imposed. [180 F] 173 (6) The heinousness of the crime is a
relevant factor in the choice of the sentence. The circumstances of the crime,
especially social pressures which induce the crime which may be epitomised as
"a just sentence in an unjust society" are another considerations.
The criminal. not the crime. must figure prominently in shaping the sentence
where a reform of the individual, rehabilitation into society and other measures
to prevent recurrence, are weighty factors. Sombre sentencing is the Fifth Act
in the tragedy of a murder trial and for the judges of the Supreme Court,
assumes a grim seriousness and poignant gravity. The Penal Code does not give
the judge a free hand where murder has been made out. The choice is
painfully--not quite scientifically though--limited to but two alternatives.
[173 F, 180 A-C] Observation: [Sentencing under the Indian scheme is not yet
realistically forward looking nor correction ally flexible, but Parliament in
its wisdom may examine this inadequacy].
CRIMINAL APPELLATE JURISDICTION: Review
Petition No. 2 of 1977.
(Petition for review of this Court's order
dated 22-91976 in Crl. M.P. Nos. 1567, 1600-1601/76).
Sital A.K. Dhar, for the petitioner.
R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--If 'survival after death' may aptly describe any litigative
phenomenon, the present review proceeding may well qualify for that quaint
claim. The relief of review relates to the death penalty imposed upon the
petitioner by the trial court, confirmed in appeal, and dismissed even at the
stage of special leave by this Court.
In the ordinary course, judicial finality,
has thus been affixed on the capital sentence so awarded although Presidential
clemency, which has been sought and negatived, may still be open under Article
72 of Constitution. Mercy, like divinity, is amenable to unending exercise but
in this mundane matter it is for the Head of State to act and not for the apex
Court.
Sombre sentencing is the Fifth Act in the
tragedy of a murder trial and, for the Judges of the Supreme Court, assumes a
grim seriousness and poignant gravity since the petitioner's final appeal for
judicial commutation, if rejected, may perhaps prove imminently fatal to his
life.
Even so, vhen we chronicle the events
connected with the judicial proceedings in this Court it will be realised that
our review power has repeatedly been invoked in vain' and naturally a further
exercise of the same power must be justified by the compelling pressure o[
fresh circumstances within the limits of the law. The nature of the judicial
process, even at the tallest tower, is such that, to use Gardozo's elegant
expressions, 'a judge even when he is free, is still not wholly free; he is not
to innovate at pleasure; he is not a knight-errant, roaming at will in pursuit
of his own ideal of beauty of of goodness; he is to draw inspiration from
consecrated principles'. Where the Judge's values and those prevailing in
society clash, the judge must, in theory give way to the 'objective right'.
174 The focus, therefore; must turn on the
existence of grounds of manifest miscarriage of justice unavailable on the
earlier occasions. Before that, a brief reference may be made to the 'criminal'
facts.
A treacherous murder of a tender school-boy
by the petitioner, the circumstances of which were so heartless and heinous,
terminated condiguly at the trial court and the High Court, the extreme penalty
having been visited on the offender for his horrendous killing. This Court
refused special leave to appeal, drawing the dark curtain' on the criminal
proceedings. The petitioner struggled to extricate himself from the executioner
by a sequence of desperate steps. On his behalf, a motion for re-hearing the
special leave petition was fruitlessly made to this Court. A review petition
was made again to this Court in vain. Yet another, out of the same motive but
with modified reliefs, was made and dismissed. Then followed an application for
directions regarding remand of the case to the court of sessions for
reconsideration of the sentence in the light of s. 235(3) of the Code of
Criminal Procedure, 1973. Dismissal of this proceeding did not deter the
petitioner from persisting in moving this Court. That is how the present review
petition has been put in on his behalf by his father.
Mercy petitions to the President punctuated
the court proceedings but they too were turned down. The convict, nevertheless,
clung on and. as stated earlier, his pathetic persistence in the plea for
commutation has been pressed before us by counsel on two scores. He has urged
that a decision of this Court in Santa Singh v. State of Punjab(1) of which he
was not aware at the earlier stages entitles.
him to a remand to the Sessions Court for
reconsideration of the sentence of death. Secondly, he has also pressed upon us
personal and social circumstances which have received judicial approval as
justifying the imposition of the lesser sentence of life imprisonment even
where the offence of murder has been made out.
In the ordinary course, the supplicant's
forensic battle for life must be repelled by us since this Court has refused
leave, rejected review petitions and denied reconsideration.
Even so, realising that by this prolonging
proceeding he is longing for dear life and clutching at legal straws, we have
desisted from a dramatic rejection of the petition outright, anxious to set if
there be some tenable ground which reasonably warrants judicial interdicts to
halt the hangman's halter. We were willing to strain, within permissible
limits, to blend leniency with legality. 'The last breath' is the last hold of
the law on the living to do justice and at that point judges, while hating the
crime, do not hate the man who committed it, such being the humanism of penal
justice. Circuit Judge Christmas Humphreys told the B.B.C.
Reporter recently that a judge looks "at
the man in the dock in a different way, not just a criminal to be punished, but
a fellow human being, another form of life who is also a form of the same one
life as oneself". In the context of Karuna and punishment for Karma the
same Judge said:
(1) Criminal Appeal No. 230 of 1976 decided
on 17-8-76.
175 "The two things are not
incompatible.
You do punish him for what he did, but you
bring in a quality of what is sometimes called mercy, rather than an emotional
hate against the man for doing something harmful. You feel with him; that is
what compassion means." (The Listener, d/25.11.1976, P. 692) But if the
harsh frontiers' of the criminal are clearly drawn, to travel beyond is out of
bounds for the court.
The focus of counsel's first submission was
turned on the compassion of the Code of Criminal Procedure, 1972 which
obligates the court, under section 235, to hear the convict on the question of
sentence. The provision is salutary although its application to the present
case is moot, in the light of. section 484 of the Code. Without pausing to
decide whether the new Code applies, we have extended to the petitioners the
benefit of the benignant provision and allowed his counsel to present the
circumstances he relies on to activate our commiserative jurisdiction.
It is true that the New Code provides many
additional facilities for persons accused of crime., the paramount idea being
to avoid an innocent man being mistakenly found guilty or punished
disproportionately. In the present case, the conviction has become conclusive
and only the question of sentence is being argued for extenuating
consideration.
Even so, sometimes one is led to wonder
whether the words of Learned Hand have some relevance to the Indian system. The
learned Judge said of the American system:
"Under our criminal Procedure, the
accused has every advantage. While the prosecution is held rigidly to the
charge, the accused need not disclose the barest outline of his defence. He is
immune from questioning or comment on his silence; he cannot be convicted when
there is the least fair doubt in the minds of anyone of the Jurers. Our
procedure has always been haunted by the ghost of the innocent man convicted.
It is an unreal dream. What we need to fear is the archaic formalism and the watery
sentiment that obstructs, delays and defeats the prosecution of crime".
We advert to this aspect only to emphasize a
sense of perspective in the judiciary when applying the protective procedural
provisions of the Code. Sentencing under the Indian scheme, is not yet
realistically forward-looking nor correctionally flexible but Parliament in its
wisdom, may examine this inadequacy.
The penalty of death is an irrevocable
process and naturally our pensive thought was turned to the moral-jural aspects
of the utility and futility of this deadly sanction of State against citizen of
hanging a human being into a cold oadaver. The miscellany of ideological
sociologicaljural considerations, although not pertinent within the 176 narrow
horizon of a court of law, has a fascinating and portentous significance when
we remind ourselves that the Supreme Court goes beyond chopping little law into
spacious jurisprudence on great occasions and our Penal Code is itself under
review before Parliament.
This prolegomenon to the principles of
capital sentence is our alibi for a brief divagation into the basics of
infliction of death as a weapon of extinction society uses against its terribly
deviant members as beyond deterrence.
Is the death penalty a purposeful punitive
strategy or legitimate legal weapon, viewed against the advanced penological
goals of reformation, deterrence and social defence ? Why is death terrifying
and what are the objects of punishment served by its infliction ? The
literature on doing justice at the sentencing stage is profound and
proliferating and penological controversy on death penalty has led to a Great
Divide among sociologists, jurists and spiritualists. To go eggregiously wrong
on punishment is to commit the crime' of sentence and, naturally, since taking
the life of the prisoner neither prevents him nor reforms him (for he is no
more), theories supporting capital punishment prove self-defeating. Moreover,
the irreversible step of extinguishing the offender's life leave society with
no opportunity to retrieve him if 'the' conviction and punishment be found
later to be rounded on flawsome evidence' or the sentence is discovered to be
induced by some phoney aggravation, except the poor consolation of posthumous
rehabilitation as has been done in a few other countries for which there is no
procedure in our system.
May be, these are campaign points of
abolitionists against capital sentence.
Envisioned from another fundamentally
different angle, is the dread of death penalty a deterrant ? Socrates would not
recant, Jesus would not plead, St. Joan would not deny--with the cup of poison,
bleeding crucifixion and burning stakes starting them in the face as
punishment.
Why, Higher Truth, acting through its
inspired agents, taunts human law; for, then the body'gives little purchase
over the soul, as Gandhiji demonstrated by defiance of British-Indian
'justice'. And, more dramatically yet dimly, psychic, electronic and medical
explorations, scientifically conducted, are reportedly revealing through
fascinating flashes of research and recording and extraordinary but tested
investigations into rebirth, that death is only discarnation, not utter
dissolution, that after 'death' we survive and act in a demonstrable, subtle
dimension of existence. No longer is this thesis projected as faith but sought
to be proved as fact. If, in the not distant future, the greatest of all man's
fears--fear of death--is dispelled by the finding of poetic science proving
that you live after 'death' and can communicate with the 'living', that the
confusion between discarnation and death can be scientifically explored and
cleared, a revolution in the penological programmes of society would have
dawned. The trans-physical human future, as sciences unravel, may make our current
penal strategies obsolescent. At Court, current criminal law binds us
willy-nilly and we have to abandon the subject suggestively.
The basic issue 'What is death ?', may engage
us psycho-criminologically, although a wee-bit digressively for a moment, to
assess the 177 social impact of the death penalty. By and large, humankind
holds fast to the belief that death is a total extinction of dearlife and views
its arrival through the executioner's rope or electric chair or firing squad
with awesome horror.
With poetic pragmatism, Shakespeare expressed
this common feeling when he referred, in the context of death, to 'that
undiscovered country from whose journ no traveller returns'.
There are others, however--and among them are
ancient seers, modern divines and several psychic researchers in institutes who
regard as super-sensory. Reality or scientific verity that there is life after
life, that the phenonmenon of death may even have a liberating effect, that the
grosset existence is in corporeal life and the subtler in the incorporeal state
and life-death life is a continuum. Our sages assert with vision that
deathbound littleness is not all we are and great death as integral to the life
process. Many scientists are investigating what happens after death and lifting
the dark veil with luminous evidence of ethenic survival.
Even so, most men even pious ones--are earthy
materialists, and, in our work-a-day world, take it an axiom that it is given
to us to live but once. The law, a people's practical scheme, which operates on
the behavioral patterns and psyche of the humdrum run of mortals, steers clear
of super-scientific and mystic may be and grounds itself on the hard-headed
realist's view that the sentence of death is the maximum punishment as it puts
the criminal out of material existence. Indeed, it is a fiercely final step for
mortals and, in a sense, abhorrent because survival after death, though slowly,
murkily, falteringly, gaining scientific, ground, is still suspect and has not
made headway into the thought ways of juris prudes and legislators,
rationalists and practical people. If after-life and re-birth are verities, as
many poetic scientists claim to prove beyond easy dismissal both penology and
criminology will undergo re-evaluation. For, as punishment 'death penalty' will
cease to be terrible and criminological, crime will be inescapably punished 'in
this life or on re-birth, These futuristic projections are of no practical
consequence now. Jurisprudence has to react to and build upon established
belief systems, branches of human knowledge and behavioral sciences.
But these problems are more Tomorrow's
challenge to philosophers, spiritualists, social and mental scientists,
fundamental thinkers, parliamentarians and penal reformers.
The Bench, with all its will to
break-through, is bound by a jurisdictional servitude. This fetter is, as
stressed by Government counsel, that if there is no legal ground for the
alleged grievance, the Court cannot grant relief. The Court enters a province
of 'powerless power' and finds itself in a quandary between codified law and
progressive thought. The latter beckons, but the former binds.
We divagated into the import and portent of
life and after-life on capital sentence not because these distant, dubious
searches have immediate legal standing but merely to show how we may be swept
off our feet if we chase 'tomorrow' theories, especially since law in court is
hard realism.
To-day for the condemned prisoner, the day of
execution is the dreadful last day of life. Even so, critics like Beccaria have
said 'the death penalty cannot be useful, because of 178 the example of
barbarity it gives men .... It seems to me absurd that laws which are an
expression of the public will, which detest and punish homicide, should
themselves commit it'. On the other hand, the deterrent and retributive
theorists prevail amongst penologists and lextalionis continues in sublimated
form Orthodox jurists have shared the view of Genesis 9:6: "Whosoever
sheddeth a man's blood, so shall his blood be shed." To epitomize, in this
blurred area of criminal jurisprudence we are lost in the conflict between
ideals, theories and research findings and the subject remains so fluid that
legislative decision-making and jurisprudential debate must crystallize into a
Code before the Court can activise these norms or incorporate them as
judge-made law.
The plea of counsel against death penalty has
topical favour and echoes the recent American debate to abbreviate. the
discussion, We content ourselves with adverting to the judicial division of
opinion in the Supreme Court of U.S.A. in Gregg v. Georgia (decided on July2,
1976) wherein Mr. Justice Brennan, in his dissenting Judgment, drove home his
point thus:
"I emphasize only that foremost among
the moral concepts' recognized in our cases and inherent in the clause is the
primary moral principle that the state, even as it punishes, must treat its
citizens in a manner consistent with their intrinsic worth as human beings a
punishment must not be so severe as to be degrading to human dignity. A
judicial determination whether the punishment of death comports with human
dignity is therefore not only permitted but compelled by the clause.
Death is not only an unusually severe
punishment, unusual in its pain, in its finality, and in its enormity, but it
serves no penal purpose more effectively than a less severe punishment;
therefore the principle inherent in the clause that prohibits pointless
infliction of excessive punishment when less severe punishment can adequately
achieve the same purposes invalidates the punishment." Mr. Justice
Marshall added the weight of his opinion:
"The two purposes that sustain the death
penalty as non-excessive in the court's view are general deterrence and retribution.
The Enrlich study, in short, is of little, if
any assistance in assessing the deterrent impact of the death penalty. The
evidence I reviewed in Furman remains convincing in my view, that 'capital
punishment is not necessary as a deterrent to crime in our society.
The justification for the death penalty must
be found elsewhere.
The other principal purpose said to be served
by the death penalty is retribution.
The notion that retribution can serve as a
moral justification for the sanction of death finds credence in the opinion of
my brothers Stewart, Powell, 179 and Stevens, and that of my brother White in
Roberts v. Louisians. It is thin notion that I find to be the most disturbing
aspect of today's unfortunate decision.
The foregoing contentions--that society's
expression of moral outrage through the imposition of the death penalty
preempts the citizenry from taking the law into its own hands and reinforces
moral values--are not retributive' in the purest sense. They are essentially
utilitarian in that they portray the death penalty as valuable because of its
beneficial results. These justifications for the death penalty are inadequate
because the penalty is, quite clearly I think not necessary to the
accomplishment of those results.
There remains for consideration, however,
what might be termed the purely retributive justification for .the death
penalty--that the death penalty is appropriate, not because of its beneficial
effect on Society, but because the taking of the murderer's life is itself
morally good. Some of the language of the plurality's opinion appears
positively to embrace this notion of retribution for its own sake as a
justification for capital punishment." These American views of eminent
judges deserve deferential notice but do not aid us in the decision of this
Indian Appeal which relates to implementation of a valid sentence since, under
the Indian Code, death penalty. has been ruled to be constitutional. The law
having sanctioned it and this Court haying refused special leave against
conviction and sentence.
in this very case, it is a vanquished cause
to argue for a vague illegality vitiating capital sentence as such. To that
extent the pall must fall.
Counsel for the petitioner brought to our
notice a number of recent decisions of this Court where judges have expressed
themselves in favour of a sentencing policy of life term as against death
penalty. In Ediga Annamma (1974 (4) SCC 443) the Court pointed to the retreat
of death penalty as part of punitive strategy in many countries of the world.
Counsel cited rulings of this Court to show
that where the murderer too young or too old or the haunting horror of being
hanged has been hovering over his head for a few years or the condemned
prisoner is the sole breadwinner of the whole family, the lesser sentence of
life imprisonment should be the judicial choice. He brought to our notice the
social and personal circumstances in the present case relevant to the above
approach.
Undoubtedly, the prisoner was a young man
around 21/22 years when he committ`d the crime. He claims that his young wife
will be helpless, that upon him depends the family for livelihood, that his
mother is blind, that all of them will have a miserable, indigent life If, the
petitioner were to be extinguished from earthly existence. He also emphasised
that since 1974 the sentence of death had been shattering his morale. It must,
however, be pointed out that counsel for the State refuted some of the more
important of these grounds and went to the extent of even stating that the
petitioner's wife had remarried.
180 In Ediga Annamma this Court, while
noticing the social and personal circumstances possessing an extenuating
impact, has equally clearly highlighted that in India under present conditions
deterrence through death penalty may not be a time-barred punishment in some
frightful areas of barbarous murder. Illustratively, the Court has mentioned
that the brutal features of the crime and the hapless and helpless state of the
victim steel the heart of the law to impose the sterner sentence.
The law is thus harsh and humane and when
faced with arguments about the social invalidity of the death penalty the
personal predilections of the Judge must bow to the law as by this Court
declared, adopting the noble words of Justice Stenley Mosk of California
uttered in a death sentence case: "As Judge, I am bound to the law as I
find it to be and not as fervently wish it to be".
(The Yale Law Journal No. 6, p. 1138).
A learned writer on the Indian Constitution
has observed :" .... judges must enforce the laws, whatever they be, and
decide according to the best of their lights; but the laws are not always just,
and the lights are not always luminous. Nor, again are judicial methods always
adequate to secure justice." We have given deep consideration to the many
circumstances pressed by the petitioner's counsel to review our earlier orders
dismissing review and refusing special leave to appeal. While we agree that
Judges, like others are fallible and their findings are not 'untouchably'
sacrosanct, we disagree that on an overall view of the many circumstances of
the crime and the criminal in the present case, the sentence of death should be
departed from.
Recognized grounds such as manifest injustice
induced by obvious curial error or oversight, or new and important matter .not
reasonably within the ken or reach of the party seeking review on the prior
occasion, may warrant interference, to further justice. The scenario of events
in this case rules out the arguments urged by counsel. Hearing is obligatory at
the sentencing stage under the New Criminal Procedure Code. The humanist
principle of individualising punishment to suit the person and his
circumstances is best served by hearing is obligatory at the sentencing stage
under the New Criminal imposed. In the present case, the date of commencement
of the trial ,might rule out the applicability of the new Code. Moreover, he
had already come to this Court seeking special leave to appeal at a time when
the new Code was in force. He did not urge the ground of denial of opportunity
to be heard at the sentencing stage.
Assuming indulgently in his favour that he
came to know the correct law on this branch only after the decision of this
Court in Shant Singh (Supra), his earlier application for review was disposed
of after that ruling was rendered by this Court. Even then the present
grievance of non-hearing was not pressed. He has missed the bus and his
contention based on the new Code is of doubtful substance. Even so, having
regard to the compassion that must temper the rigour of rigid 181 rules we have
allowed counsel a fresh opportunity to put forward before us, after taking
instructions from his client, all the circumstances the Court should consider
by way of ameliorative gesture and reduction of the death penalty to a life
term incaraceration. The heinousness of the crime is a relevant factor in the
choice of the sentence. The circumstances of the crime, especially social
pressures which induce the crime which we may epitomise as a just sentence in
an unjust society' are another consideration.
The criminal, not the crime, must figure
prominently in shaping the sentence where a reform of the individual,
rehabilitation into society and other measures to prevent recurrence, are
weighty factors. The Penal Code does not give the Judge a free hand where
murder has been made out.
The choice is painfully--not quite
scientifically though--limited to but two alternatives. We have given reasons
why, as the law now stands, we decline to demolish the death sentence. We
therefore, dismiss the review petition.
The judicial fate notwithstanding, there are
some circumstances suggestive of a claim to Presidential clemency.
The two jurisdictions are different, although
some considerations may overlap. We particularly mention this because it may
still be open to the petitioner to invoke the mercy power of the President and
his success or failure in that endeavour may decide the arrival or otherwise of
his doomsday. With these observations we leave the 'death penalty' Judicially
'untouched'.
S.R. Review petition dismissed.
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