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Report No. 35

561. A District and Sessions Judge has in his reply stated1 that, as a practising lawyer for more than 25 years, he had noticed that many Sessions Judges were reluctant to award the death sentence even for brutal murders, but that on the whole it was described that a Sessions Judge must have a free hand in awarding sentence.

1. A District and Sessions Judge in Gujarat, S. No. 386.

562. In the reply of Presidency Magistrates in a Presidency town, it has been pointed2 out that discretion is necessary because the circumstances under which each individual offence of murder is committed would be vastly different, and so would be the motives and methods.

1. S. No. 549.

563. According to these replies, the vesting of such discretion is necessary, and on the whole, the provision is working satisfactorily also. The courts, it is stated, should be given the fullest opportunity to consider the question of inflicting capital punishment having regard to the circumstances of the case1. It has been pointed out by one State Government2 that the question of sentence is and must always remain a matter of discretion; the vesting of discretion in courts is based on sound and equitable principles.

Any rigid approach to matters relating to human affairs may unnecessarily produce harsh and damaging results. The discretion, it is pointed out in another reply3, has to be left with the courts. It is also stated4 that the discretion is necessary for the "individualisation of the offender before fitting the punishment with the criminals, as otherwise the court is likely to impose punishment simply having regard to the apparent enormity of the crime, disregarding the circumstances of the case".

1. Chief Justice of a High Court and a Judge of the High Court agreeing with the Report of the Secretary, Rules Committee, S. No. 130.

2. A State Government, S. No. 182.

3. A State Law Commission, S. No. 101.

4. An Inspector-General of Police, S. No. 131.

564. It has also been pointed out1 that the High Court has ample powers to see that the penalty imposed by the trial court is adequate and to enhance it where necessary. The argument that the discretion may be affected by personal bias, prejudice, likings and sympathies has been anticipated in one of the replies2, which takes care to observe that the discretion would not be abused, as the desire to do justice, especially in such serious crimes, is inherent in every individual.

1. A High Court Judge, S. No. 105.

2. A Member of the Bar Council of Madras, S. No. 104.

565. In the reply of the Judicial Section of the Indian Officers' Association in a State1, the reason for retaining discretion is thus stated:-

"Discretion is necessary, since compassion as a basic element, even in administering justice should not be lost sight of. Facts of every case present an infinite variety that cannot be provided for except by some latitude involved in judicial discretion. By and large, provisions conferring discretion have worked out satisfactorily. Inherent in the nature of the discretion that needs to be exercised is an impossibility to define more precisely, or in any set terms, the limits or premises on which such discretion should be exercised.".

1. Reply to Question 4, S. No. 562.

566. On the other hand, a small group of replies has expressed dissatisfaction with the way in which the discretion is exercised at present. A Secretary to one State Government1 has replied that often the courts err on the side of leniency, and award the lesser punishment of imprisonment for life owing to sentimental reasons. Another State Government2 has, while agreeing that the present provisions are working satisfactorily on the whole, ventured to point out that death sentence is passed in very rare cases, as Judges appear to have some "fallacy" on this issue that capital punishment should be avoided as far as possible.

1. Home Secretary to a State Government, S. No. 131.

2. A State Government, S. No. 154.

567. Two High Courts Judges1 have stated that their experience is that the discretion has been exercised on the whims of the individual judicial officer, and not on any recognised principles. That the vesting of discretion adds an element of luck is a point made in another reply2-3.

1. Two High Court Judges, S. No. 105.

2. An Advocate, S. No. 201.

3. See also the observations in Nand Kumar v. State, (1963) 2 Cr LJ 702 (706), para. 23 (SC).

568. One argument advanced is that the vesting of discretion places both the sentences on the same footing, but, as a matter of fact, the sentence of death is more severe; court, it is stated, will be in a dilemma in such a case, and often they feel like giving the less severe punishment1.

Those who have favoured the continuance of the existing provisions have also referred to one case where the Supreme Court had to criticise the leniency of the lower court2. It is also stated that the vesting of discretion is against the spirit of the law, which aims at equal treatment for equal offences.3

1. S. No. 127.

2. Reply of Chief Justice of a High Court and a High Court Judge under Question No. 4.

3. S. No. 117.

569. In the reply of a High Court Judge1, the position has been thus analysed:-

"Where the law expressly prescribes, for a crime, two alternative punishments, it impliedly recognises the existence of degrees in the crime, although technically the same. Those degrees are determined by the circumstances of the case, the state of mind of the offender and the quantum of moral obliquity displayed by the act. The existence of two alternative penalties must necessitate vesting of discretion in the court, so as to decide which of the two alternative penalties should be imposed in the facts of a particular case.".

The reply; however, adds that in the Muffasil courts in the State, this discretion has not been satisfactorily exercised, and, in many cases, the High Court had to reverse the sentence of death.

1. A High Court Judge, under question, 4, S. No. 316.

570. The reply of a District and Sessions Judge1 states that though the discretion has to be exercised judicially, in actual practice it has been found that the personal predilections and conscientious objections to capital sentence on the part of the Judge concerned have entered in the exercise of the judicial discretion. The reply suggests that unless uniform principles are evolved pertaining to the imposition of capital sentences, the law as administered at present cannot be said to have achieved its deterrent object2.

1. A District and Sessions Judge in Maharashtra, S. No. 346, under questions 4 to 7.

2. The reply cites two cases decided by the Bombay High Court. One is not reported. Regarding the other, State v. Shankar, AIR 1957 Bom 226 (231), paras. 15 and 232, it appears that the death sentence was not imposed, because the evidence was wanting as to who actually committed the murder. This judgment discusses the Bawla case, (31 Bom LR 515).

571. A State Government1, while stating that discretion is necessary and that the existing provisions are working satisfactorily, has added that "a disinclination to award the death sentence is prominently noticed in recent judgments. Often the feeling is that the judge is bending himself away from the irrevocable sentence of death, and, therefore, trying to look out for reasons to award the lesser punishment". The reply, further, states that it would be better "if the legislature stepped in to indicate a clear distinction between cases where death sentence shall be awarded and one where it may be awarded."

1. A State Government, S. No. 580.

572. It appears, from its reply1 to other questions, that in the category of murders which shall be punishable with death (first degree murders), it would place "murder of a woman after having committed rape and murder of children after criminal assault on them".

1. S. No. 580 under questions 6(b) and 3(b).

573. The third and last group of replies under this question consists of those who, while in favour of retaining the existing provisions, have suggested certain modifications in detail. One suggestion is that the discretion should be applied according to the latest views on penology and psychiatry1. Another is to the effect that there should be no discretion in case of heinous or repeated murders2.

1. A Barrister-in-Law, Calcutta, S. No. 150.

2. S. No. 138.

574. Another reply1 emphasises that the discretion can be effective only when the judiciary is an "enlightened" one. One reply2 assumes that the courts have to give the death sentence unless there are circumstances justifying the lesser penalty, and suggests that the mode of exercise of the discretion must change. Another reply3 would like the discretion to be taken away from Sessions Judges, "as they have had not much experience of criminal work", and suggests that when a sentence comes up for confirmation before the High Court, it can be relied upon to exercise the discretion vested in it. This reply states that the provisions conferring the discretion on the Session Judges are not working satisfactorily.

1. S. No. 118.

2. A Bar Council, S. No. 115.

3. Bharat Sewak Samaj, New Delhi, S. No. 145.

575. It remains, now, to note a suggestion1 in the other direction, to the effect that discretion should be given to the Court in the case of offences under section 303, Indian Penal Code also.

1. Indian Federation of Women Lawyers, Bombay, S. No. 121.

576. The view of one Association of Judicial Officers1 is that if a discretion is vested in the courts, there is always a tendency to err on the wrong side, and the best step would be to "codify the law". It suggests that the practice is to record reasons for awarding the death sentence, and that this practice may be codified.

1. S. No. 373, reply to Questions 3, 4, 5 and 8.

577. A suggestion made by an Advocate1 is that though the vesting of discretion is necessary, records of all death sentences should be compulsorily perused and examined by a special Bench of the High Court. Another suggestion made by an Advocate2 is that though the discretion is necessary, in such cases the court should have the help of a set of special jury.

1. An Advocate, S. No. 410.

2. An Advocate in West Bengal, S. No. 407.

578. Another suggestion of an Additional Sessions Judge1 is that a provision should be inserted that if the trial court awards the lesser punishment, it should be made final and incapable of being enhanced and turned into a sentence of death.

1. An Additional Sessions Judge, S. No. 379.



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