Report No. 35
Discretion of the Court
Topic Number 31(a)
Replies to Question No. 4
541. Question No. 4 in our Questionnaire was as follows:-
"The relevant provisions in the Indian Penal Code vest in most cases a discretion in the court to award the sentence of death or the lesser sentence of imprisonment for life. Is the vesting of such discretion necessary and are the provisions conferring such discretion working satisfactorily? If not, have you any suggestion to make in this behalf?"
542. The question1 comprises three parts; first whether the vesting of the discretion in the court to award the sentence of death or the lesser sentence is necessary; secondly, whether the provisions on the subject are working satisfactorily; and, thirdly, whether there are any suggestions to make in that behalf. The three points, however, are connected with one another, and can be dealt with together.
1. Para. 541, supra.
543. The replies received on this question1 fall under three categories-those which regard the existing position as satisfactory, those which express the view that the discretion is not being exercised in a proper way, and, lastly, those which, while expressing general agreement with the present provisions, have made suggestions on certain points of detail. This group comprises almost all the State Governments, High Courts, and individual High Court Judges who have sent replies to the Questionnaire2, besides a number of other bodies and individuals.
1. Para. 541, supra.
2. It is unnecessary to enumerate these replies.
544. The reply of the Chief Justice of a High Court1 states that the existing provisions of the Indian Penal Code, when considered with the judicial decisions of the various High Courts, do give sufficient discretion of the court to award either the sentence of death or the lesser sentence, and that the system is working satisfactorily.
1. Chief Justice of a High Court, S. No. 316.
545. In the reply of a High Court Judge1, it has been emphasised that murders may be "murders in the park" or "murders in the dark alley", "murders due to family or close relationship," "murders due to quarrels or violent rage" and so on. The perfect legislative prescription of detailed degrees of offences and regulation of offences on such a basis is not possible. Even if this is possible, this cannot be efficient. The present provisions, it is stated, are working satisfactorily.
1. A High Court Judge, S. No. 230.
546. In the reply of a Member of the State Legislature1, it has been stated, that the discretionary powers are working satisfactorily, though with a lenient trend.
1. A Member of a State Legislature, S. No. 232.
547. In the reply of another High Court Judge1, it has been pointed out that the vesting of the discretion is necessary, so that punishment suitable to the facts and circumstances of the case can be meted out. The reply adds that it is on the balance of the particular facts and circumstances of each case that the question as to which punishment to be awarded has to be decided.
1. A High Court Judge, S. No. 396.
548. The reply of another High Court Judge1 states that even after the amendment of 1955 in section 367(5), Code of Criminal Procedure, 1898, the assumption that death is the normal punishment continues, and suggests, that the Criminal Procedure Code may be suitably amended to provide that reasons should be given for imposing the death penalty.
1. A High Court Judge, S. No. 262.
549. The reply of an Advocate, who has been a Member of the Lok Sabha1, states that the amendment of section 367, Criminal Procedure Code, has been of no avail, and that to make the discretion effective, it should be fortified by a provision that the discretion of the Sessions Judge or of the High Court, in awarding the lesser punishment, would not be overruled or reversed by the High Court or the Supreme Court, even if, in the opinion of the High Court or the Supreme Court, as the case may be, there are no extenuating or mitigating circumstances.
By way of illustration, the reply refers to the decision in a Madras case2, where the High Court observed that the Sessions Judges ought not to refrain from awarding capital punishment merely on the ground that public opinion favours the abolition of capital punishment. The High Court also criticised the Sessions Judge's view that it was not necessary to condemn four persons to death for the murder of one man3.
1. An Advocate, who has been a Member of the Lok Sabha, S. No. 305.
2. Sambangi (in re:), AIR 1939 Mad 109(111).
3. It should, however, be noted that the case in AIR 1939 Mad 109 was one of brutal and carefully planned murder, which "reminds one of the days of the thugs"
550. The reply also refers to the Supreme Court observations in Vadivelu Thevar v. State of Madras AIR 1957 SC 614. to the effect that if the court is satisfied that there are mitigating circumstances, only then it will be justified in imposing the lesser sentence. It should be stated here that what the Supreme Court was trying to emphasise in that case was that the character and volume of the evidence in support of the prosecution could not be the basis for not awarding the sentence of death. Further, the decision does not deal with the position after the 1955 amendment.
551. It has been emphasised, in the reply of the Advocate-General of a State1, that the award of death penalty must ultimately rest with the Judge who would decide the case. The gravity of the situation, and the deliberate manner in which the offence is committed with no extenuating circumstances, etc., are, it is stated, all factors to be considered while awarding the death sentence.
1. An Advocate-General, S. No. 229.
552. It has been suggested in the reply of an Advocate, who is also a Member of a State Legislature1, that the vesting of the discretion is absolutely necessary, and that, in every case where the sentence of death is to be awarded, it should be clearly provided in the statute that the court has got a discretion to award the lesser sentence of imprisonment for life. The reply refers to the conflict of decisions on the subject whether, after the amendment of section 367(5), Code of Criminal Procedure, 1898, by the Act of 1955, death sentence still remains the normal sentence for murder.
1. A Member of a State Legislature, S. No. 226.
553. The reply of a very senior Advocate of the Bombay High Court1 states that the discretion "is both necessary and beneficial". "This discretion is the main feature of the Indian law relating to murder, which makes it more sensible, rational and humane than the corresponding English law, enabling the Judge to discriminate between qualities of murder. My only comment is that there is a tendency to use this discretion much too lavishly in favour of the lesser sentence, which, in the long run, may make the death penalty a dead letter in practice. On the whole, the provisions conferring the discretion have worked satisfactorily.".
1. A very senior Advocate, under question 4, S. No. 318.
554. In the reply of a Member of a State Legislature1, it has been stated that the provision of discretion generally works in the right direction, excepting in a few cases.
1. A Member of a State Legislature, S. No. 249.
555. The reply of a High Court Judge1 states that discretion has necessarily to be left with the courts, but one cannot say that it is working satisfactorily, as, after the amendment of 1956 in section 367, Code of Criminal Procedure, 1898, courts have become even more erratic in the matter of choosing between the extreme penalty on the one hand and lesser penalty on the other. The reply proceeds to observe that an element of discretion necessarily involves some uncertainty, but the uncertainty can be reduced by re-enacting some provisions, not only in section 302, Indian Penal Code but in other sections (such sections as 396 and 121, Indian Penal Code) that the death sentence should be compulsory unless the court records special reasons why it may not be awarded.
1. A High Court Judge, S. No. 251.
556. The reply of another High Court Judge1 states that the responsibility of deciding between death sentence and life sentence has been discharged by the Judges in India in a human and conscientious manner. The reply, however, expresses an anxiety as to the future, stating that there is deterioration in the qualities of judgment in the Sessions Courts in the recent years, and that "there will soon come a point of time when the existing law may have to be reviewed by a Commission appointed for the purpose to see if statutory provisions can be embodied for giving guidance to Judges in respect of the award of the sentence".
1. A High Court Judge, S. No. 262 under questions 1, 2, 4, 5 and 6.
557. The reply of another High Court Judge1 states that recently there is tendency among Sessions Judges to find an excuse for giving the lesser sentence or for reducing the offence.
1. A High Court Judge, S. No. 252.
558. The replies of most of the District and Sessions Judges1 expressly state that the present position is working satisfactorily.
1. Principal Judge of a City Civil Court in a Presidency Town emphasises that it is difficult to determine in advance the right measure of punishment, S. Nos. 335, 336, 341, 342, 347, 348, 349, 351, 352, 354, 358, 360, 362, 364, 366, 370, 371.
559. This is also the view of an association of officers of the judicial service1.
1. A Judicial Officers' Association, S. No. 374.
560. In the reply of a City Civil Court Judge1, it has been emphasized that a decision as to sentence depends on the facts and circumstances of each case, and that the court would be the best judge of those facts and circumstances.
1. A City Civil Court Judge, S. No. 377.