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Report No. 35

Topic Number 32(b)

Replies to Question No. 5

593. Question 5.-

Question No. 5 in our Questionnaire was as follows:-

"If the vesting of such discretion is necessary, what should be the considerations which should weigh with the court in awarding the lesser punishment of imprisonment for life? Is it possible to codify such considerations?".

The two parts of the question, namely, what should be the considerations to be followed in awarding the lesser punishment, and whether it is possible to codify such considerations, may be dealt with together. The replies to the Question fall under three classes-those against codification, those in favour of it, and those suggesting a middle course, i.e., provisions in certain respects.

594. Most of the replies1 received on this question have expressed the view that the considerations for awarding the lesser punishment do not admit of exhaustive codification. In a way, consideration of the topic is linked up with the question of the court's discretion, and, for that reason, one reply2 to this question points out that the field of discretion should not be curtailed or widened by a rigid classification.

That a codification might both widen and curtail the discretion is a point which can be elucidated from the elaboration made in another reply3, which points out that it is undesirable to codify the considerations, because there may be a case where the death sentence is provided for under such codification, but having regard to the special features of the case, the particular accused does not deserve it. On the other hand, it is dangerous also for the State to attempt such codification because in some cases, where according to such codification there is no capital punishment, the accused should have been punished with death in view of the exceptional nature of the offence.

That reply further points out that it is not possible to categorise (i) all circumstances of human ingenuity, or (ii) more particularly, the ingenuity of a criminal mind, or (iii) the circumstances under which the crime may be committed. That the considerations for awarding sentence might even change with time, is a point made by a retired High Court Judge4. Another danger of codification has been noted by a High Court,5 namely, that it might result in resurrecting the old view,-now discarded by progressive judicial opinion,-that where both the punishments are provided, the normal rule is to award the higher punishment.

1. It is unnecessary to enumerate all of them.

2. A High Court, S. No. 140.

3. Chief Justice of a High Court, and a Judge of a High Court, S. No. 130.

4. A Retired Judge of the Bombay High Court, S. No. 95.

5. A High Court, S. No. 167.

595. Certain replies, while suggesting that the test of intention to cause death may be adepted1, or that the absence of pre-meditation would be a principal consideration in awarding the lesser sentence2, have taken care to state that the considerations cannot be codified. And many replies3 have pointed out that the principles have been said down by judicial decisions, but that, at the same time, the considerations cannot be codified.

1. A Bar Council, S. No. 132.

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

3. For example, one High Court, S. No. 117 and one High Court Judge, S. No. 147.

596. A State Government1 has stated that the enumeration or codification of the considerations would make the matter very rigid in its application. Another State Government2-3 has stated that at present considerations of age, sex, previous conduct, mental conditions, premeditation, intoxication and the nature of the crime are the principles which guide use of discretion. These considerations are sufficient and it is not necessary to codify them, as codification would mean limiting the discretionary power.

1. S. No. 574.

2. S. No. 580.

3. S. No. 317.

597. The reply of the Chief Justice of High Court, who is against codification, is as follows:-

"It is well settled by judicial decisions that capital sentence should not be imposed unless there is premeditated cold-blooded murder. Murders committed in the heat of the moment are seldom punished with capital sentence unless. the offender has acted in an exceptionally cruel manner, especially towards a helpless victim or has been guilty of multiple murder committed in the course of the same transaction after committing other serious offences like rape, dacoity, etc.".

598. The Chief Justice of another High Court1 has stated that the main considerations are sex, age, provocation, though not sufficient to reduce the crime to manslaughter, absence of premeditation or cruelty or barbarity, motive and other circumstances indicating that the accused is not a person with a selfish, cruel and calculating nature with little or no respect for human life. The reply however points out that the mitigating considerations vary in each case, and are so infinite in variety that it would not be possible to codify them. "Any attempt to do so may tend to the undesirable result of fettering the discretion of the courts.".

1. Chief Justice of a High Court, S. No. 393.

599. A High Court Judge1, while stating that the courts generally have regarded extreme youth, extreme old age, provocation, mental disorder and miserable family life as some of the considerations for awarding the lesser sentence, has stated, that an exhaustive list of such considerations cannot be prepared, and that it should be left to the Judges to exercise their discretion on a proper consideration of the circumstances of individual cases, within the limits, if any, indicated in the legislative policies or by enlightened public opinion.

1. A High Court Judge, S. No. 230.

600. It has been stated in the reply of another High Court Judge1, that the considerations should better remain undefined. The reply adds that such considerations, amongst others, may be conduct of the offender, nature of the temptation to which the offender has yielded, the manner in which the crime was committed, and the circumstance in which murderous assault was made.

1. A High Court Judge, S. No. 395.

601. It has been emphasised in the reply of another High Court Judge1, it is on a balance of the particular facts and circumstances of each case that the question of punishment can be decided.

1. A High Court Judge, S. No. 396.

602. The reply of a State Government states that a court in passing a sentence1, should inflict such sentence, as the gravity or otherwise of the crime of which the accused has been convicted warrants and merits. Experience in courts shows that the provisions should be flexible. Any attempt to codify the law, it is stated, would fetter the judicial discretion, and create unimaginable hardships.

1. A State Government, S. No. 242.

603. It has been pointed out by many High Court Judges1 that the considerations depend on the nature and degree of intention, and on every single relevant fact of the circumstances of the crime; and that codification, if any, can only indicate the principle.

1. High Court Judge, S. No. 262.

604. A City Civil Court Judge in Bombay1 has stated that it will be incorrect to codify the considerations for the exercise of such discretion, "for the very conception of codification is a negation of the concept of discretion".

1. S. No. 484.

605. A High Court Bar Association1 has stated that the discretion vested in the court was a wise one, and the law need not be altered because for the last 100 years it has worked very satisfactorily. The reply adds that while the law reports are replete with the considerations which weigh with the court in awarding the lesser punishment, it is undesirable to codify them, as the discretion of the judges should be left unfettered.

The reply of the majority of the Presidency Magistrates in the Presidency Town2 states that there are extremes of murders,-two extreme instances being a cold blooded murder committed with utmost cruelty or for dastardly motives (on the one hand), and murder by a mother of her child owing to poverty (on the other hand). These two extreme instances "would illustrate the gamut of motives and methods for the commission of the crime; it would be difficult to enumerate or codify them". The discretion regarding sentence, it is stated, is being exercised judiciously, and it is not necessary to codify the considerations.

1. Reply to Questions 4 and 5, S. No. 493.

2. S. No. 549.

606. The reply of a District Bar Association1 states that each case will have to be considered in its own context and circumstances. As times change and circumstances vary, considerations will also differ.

1. S. No. 239.

607. It should be noted that a very large majority of the District and Sessions Judges1 have expressed themselves strongly and in very clear terms against codification.

1. Districts and Sessions Judges, S. Nos. 339, 354, 364, 367, 390, 448, 456, 459, 462, 473, 480, 488, 500.

608. One of the replies1 emphasises that human nature is so complex, that in every case a different set of circumstances is likely to arise and all of them cannot be selected and codified.

1. A District and Sessions Judge, S. No. 354.

609. Another reply1 states that while considerations like the gravity of the offence and the motive of the crime should weigh in awarding the punishment, it would be difficult and inexpedient to codify them, and the considerations should be elastic because cases differ in their magnitude and complexity.

1. A District and Sessions Judge, S. No. 353.

610. Several District and Sessions Judges1 are of the view that as the circumstances of murder vary from case to case, it would not be wise to codify the considerations. In one reply2, it is emphasised that it is the "sum total" of the circumstances that guides the court in awarding sentence.

1. S. No. 520; S. No. 522; S. No. 524; S. No. 526; S. No. 527; S. No. 534; S. No. 535; S. No. 551; S. No. 553; S. No. 554; S. No. 560.

2. A District and Sessions Judge, S. No. 556.

611. The reply of a very senior Advocate of the Bombay High Court1 seems to express concisely the reasons for opposing codification. "All extenuating circumstances, such as motives for the crime, absence of pre-meditation or previous preparation, provocation, even falling short of "grave and sudden", in appropriate circumstances; stress of the situation which led to the murder, age, sex, family circumstances, etc., may cumulatively incline the court to take a lenient view.

"It is neither possible nor advisable to codify the considerations, and fatter the court's discretion. Each case of murder has its own peculiar features which deserve consideration.".

1. S. No. 318.

612. Another difficulty of codification has been thus brought out1:-

"It is not possible to codify the considerations that should weigh with the Judge, for otherwise it is no discretion at all. The judge who is trusted to try such cases must be trusted to exercise it wisely.".

1. An Additional Sessions Judge, in the State of Gujarat, S. No. 379.

613. A small number of replies has, however, stressed the desirability of codification. This category comprises two classes-first, those who, while not expressly suggesting codification, have stated that the principles should be indicated; and secondly, those who regard codification as possible.

614. Under the first class fall the opinions expressed by certain High Court Judges1 to the effect that if discretion (in the matter of sentence) is to be left, some principles for its exercise should be indicated, for example, minority of the accused.

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

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