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Report No. 35

Topic Number 31(c)

Recommendation regarding discretion of the Court

580. Recommendation regarding discretion of the Court.-

On a consideration of the replies received to the question as to whether discretion of the Court in the matter of the sentence, to be awarded for capital offence should be retained, we have come to the conclusion that it is necessary to retain this discretion, and that by and large discretion is exercised satisfactorily, and in accordance with judicial principles.

581. If the discretion is to be abolished, the alternatives would be, either to substitute a provision that the sentence of death shall be the rule and the lesser sentence shall be the exception; or, to substitute a provision1 that imprisonment for life shall be the ordinary sentence and the sentence of death shall be the exception. So far as the first alternative is concerned, we are not inclined to agree with any such proposal. The amendment of section 367(5) of the Code of Criminal Procedure in 1955 has dealt with the matter. In the absence of strong reasons, we would not like to disturb it.

We know that the question how far such a discretion should be conferred on either the Judge or Jury is a matter which raised great controversy in England2. It is not necessary to consider the various aspects of that controversy in detail for our purpose3. The Judges in England felt that the burden of choosing between the two sentences would be too heavy for them. The Royal Commission recommended leaving the discretion to the Jury, but the recommendation was not accepted by the Government4. The position in India is different.

The cases of homicide in India are not so few and far between as to justify any apprehension that the decision of the Judge regarding the sentence would cause embarrassment to the Judges. Moreover, experience in India of the working of the provisions has not revealed any serious practical difficulties as to the burden placed on the Judges. In fact, Sir John Beaumount, in his evidence before the Royal Commission5, expressed the view that the alternative sentence had worked well in India, and that no Judge had complained that the burden was either unfair or excessive.

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

2. Royal Commission Report, pp. 191 to 193, paras. 538-540 (Discretion of Judge), p. 214, para. 611 (Discretion of Jury).

3. For a good discussion, see J.E. Hall Williams Jury discretion in murder trials, (1954) 17 Mod LR 315.

4. For a detailed discussion, see Christoph Capital Punishment and British Politics, (1962), pp. 91-92 and 127 (middle), and see House of Commons Debates (November 10, 1955), Vol. 545, columns 219-220.

5. Royal Commission Report, p.193, para. 545.

582. We do not think that the exercise of discretion by the Judges has evoked or is likely to evoke any public controversy, and so far there has been no public of the judiciary on this point, and we do not apprehend any such controversy. The law, as it exists in India, or as it existed before the amendment of the Code of Criminal Procedure, 1898, in 1955, did not lead to any complaint from the Judges in India of the burden being onerous. On the other hand, the judges have exercised their discretion according to judicial principles.

In this view of the matter, we do not think that any change in the law is called for.

583. Moreover, in principle, the highest penalty of the law should not follow automatically. We are aware that there is a shade of opinion which has regarded the amendment of section 367 in 1955 as unfortunate, but the majority of the views expressed on this question are on the other side, and no strong case has been made out for going back upon this amendment. The tendency in modern times is, in general, more and more to drop the mandatory character of death penalty1.

1. See discussion and information summarised in U.N. Publication Capital Punishment, (1962), pp. 11 and 12, paras. 14-19.

584. So far as the second possible alternative, namely, a provision substituting imprisonment for life as the ordinary sentence, is concerned, the matter will be discussed separately1.

1. See discussion relating to Question 7(a), para. 790, infra.

585. We note that some of the replies reveal dissatisfaction with the manner in which the discretion is exercised, and that a view has been expressed that judges are inclined to be lenient. We, however, think that since the matter of sentence is essentially one of discretion, though a judicial discretion, to be exercised in accordance with sound judicial principles, a change in the provisions should not be thought of as a possible remedy to cure the dissatisfaction referred to above.

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