Report No. 202

2.7 Death Sentence only in rarest of rare cases guidelines:

2.7.1 In Lehna v. State of Haryana, 2002 (3) SCC 76, the Hon'ble Supreme Court has dealt with the case law whereby guidelines were laid down for awarding capital sentence. The Hon'ble Court has further held that in Criminal Procedure Code, there is a definite swing towards life imprisonment.

2.7.2 The apex Court observed:

"Section 302 IPC prescribes death or life imprisonment as a penalty for murder. While doing so, the Code instructs to the Court as to its application. The changes which the Code had undergone in the last three decades clearly indicate that Parliament has taken note of contemporary criminological thought and government. It is not difficult to discern that in the Code, there is definite swing towards life imprisonment. "Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354 (3).

There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so.

In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.

Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.

Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed." (para 14).