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            REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.824 OF 2013

Vikram Singh @ Vicky & Anr. …Appellants

Vs.

Union of India & Ors.  …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal,  by  special  leave,  arises  in  somewhat

peculiar circumstances. The appellants were tried, convicted

and  sentenced  to  death  for  commission  of  offences

punishable under Sections 302 and 364A of the Indian Penal

Code, 1860. The conviction and sentence awarded to them

was affirmed by the High Court of Punjab and Haryana in

appeal  and  eventually  by  this  Court  in  Criminal  Appeals

No.1396-1397  of  2008.  The  appellants  did  not,  however,

give-up. They filed Writ Petition (Crl.) D No.15177 of 2012

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before this Court for a declaration that Section 364A inserted

in the IPC by Act 42 of 1993 was ultra vires the Constitution

to the extent the same prescribes death sentence for anyone

found guilty. The petitioner further prayed for quashing the

death sentence awarded to the petitioner by the trial court

as affirmed by the High Court and by this Court in Criminal

Appeals  No.1396-1397  of  2008.  A  mandamus  directing

commutation of the sentence awarded to the petitioner to

imprisonment for life was also prayed for. The writ petition

was eventually withdrawn with liberty to the petitioners to

approach  the  jurisdictional  High  Court  for  redress.  The

appellant, thereafter, moved the High Court of Punjab and

Haryana at Chandigarh in CWP No.18956 of 2012 praying for

a mandamus striking down Section 364A of the IPC and for

an  order  restraining  the  execution  of  the  death  sentence

awarded to them. Reopening of the case of the appellants

and commutation of  the death sentence for  imprisonment

for life were also prayed for in the writ petition. A Division

Bench of the High Court of Punjab and Haryana has, while

dismissing the said petition by its judgment and order dated

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3rd October, 2012, taken the view that the question whether

Section 364A of the IPC was attracted to the case at hand

and whether a person found guilty of an offence punishable

under the provision could be sentenced to death was not

only raised by the appellants  as an argument before this

Court in appeal filed by them, but, was noticed and found

against them. The High Court while saying so relied upon

the following passage of the judgment of this Court in the

appeal filed by the appellants against their conviction:  

“…   A  plain  reading  of  the  Objects  and  Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim.  The statistics further reveal that kidnapping for ransom had become a lucrative and thriving industry all over the country which must be dealt with, in the harshest possible manner and an obligation rests on Courts as well.  Courts to lend a helping hand in that direction. In the case before us, we find that not only was Abhi Verma kidnapped for  ransom  which  act  would  by  itself  attract  the death penalty but he was murdered in the process. It  is  relevant  that  even  before  the  aforesaid amendments,  this  Court  in  Henry’s  case  (supra) observed  that  death  sentence  could  be  awarded even in a case of kidnapping and murder based on circumstantial evidence...”  

2. The  High  Court  further  held  that  the  question  of

quantum of sentence had also been examined by this Court

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in the following paragraph of the judgment delivered in the

criminal appeal filed by the appellants:  

“24. Some of the judgments aforesaid refer to the ongoing debate as to the validity and propriety of the death sentence in a modern society.  There are the moralists who say that as God has given life, he alone has the right to take it away and this privilege cannot be usurped by any human being.  There are others who believe that the death sentence cannot be taken as a retributive or deterrent factor as the statistics  show  that  the  possibility  of  a  death sentence has never acted as a deterrent to serious crime. The theory which is widely accepted in India, however,  is  that  as  the  death  penalty  is  on  the statute  book  it  has  to  be  awarded  provided  the circumstances  justify  it.  The  broad  principle  has been laid in  Bachan Singh’s case (supra) as  the “rarest  of  the rare cases”.  Bachan Singh case has been followed by a series of judgments of this Court delineating and setting out as to the kind of matters that  would  fall  within  this  category.  In  Machhi Singh & Ors. Vs. State of Punjab 1983 (3) SCC 470 this Court gave an indication as to what could constitute this category…”  

3. The High Court on the above reasoning concluded that

this Court had considered the nature of the offence and its

gravity and held that the appellants deserved the maximum

punishment prescribed for both the offences proved against

them. The High Court held that the plea now sought to be

raised by the writ-petitioners to the effect that Section 364A

of  the  IPC  was  attracted  only  when  the  offence  was

committed against the government or a foreign country etc.

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or that no such offence was made out in the case of the

petitioners,  had  been  examined  and  decided  against  the

petitioners which plea could not be re-agitated by them in

collateral  proceedings.  Having  said  that  the  High  Court

proceeded to examine the plea raised by the appellants on

its merit, referred to the historical background in which the

provisions of Section 364A were added to the statute book

and held that Section 364A of IPC, even in the form in which

it was initially introduced, made kidnapping by any person in

the circumstances indicated in the said provision an offence

no matter at the time of initial  insertion of Section 364A,

India  was  not  committed  to  the  International  Convention

Against the Taking of Hostages, 1979 to which it became a

party only on 7th September, 1994. It was only thereafter

that  Section  364A  was  amended  to  incorporate  the

expression  “any  foreign  state  or  international

inter-governmental  organization  or  any  other  person”  to

honour  the  commitment  under  the  said  Convention.  The

High Court, accordingly, repelled the argument that Section

364A was attracted only in situations where kidnapping was

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meant  to  coerce  the  government  or  any  international

organization to do or not to do a particular act including the

demand for payment of ransom. The writ petition was, on

that reasoning, dismissed by the High Court, which dismissal

is what is under challenge in this appeal before us.   

4. When the appeal initially came up before a two-Judge

Bench of  this  Court,  the same was directed to be placed

before a larger Bench for an authoritative pronouncement

especially because the appellants had been awarded a death

sentence  which  stood  affirmed  by  a  Bench  of  coordinate

jurisdiction. That is precisely how the matter has come up

before us for final hearing.  

5. Appearing for the appellants, Mr. Tripurari Ray followed

by M/s Altaf Ahmad and R.S. Sodhi, senior advocates, who

appeared  for  the  interveners,  strenuously  argued  that

Section  364A  of  the  IPC  was  attracted  only  in  situations

where an offence was committed against the Government,

any  foreign  State  or  international  inter-governmental

organisation. The provision, argued the learned counsel, had

no application to situations in which a victim was abducted

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or kidnapped for ransom demand from a private individual.

The  provisions  of  Section  364A,  it  was  contended,  were

meant to deal with kidnapping by terrorists for ransom or

where terrorists take hostages with a view to compelling the

Government  or  a  foreign  State  or  international

inter-governmental organisation to do or abstain from doing

any act including payment of ransom.

6. On behalf of the respondents, it was contended by Mr.

Ranjit  Kumar, Solicitor  General,  that the question whether

Section 364A IPC was attracted to the fact situation of the

case at hand was examined and decided by this Court in the

criminal  appeal  filed  by  the  appellants  against  their

conviction and sentence. The view taken by this Court in the

appeal  having  attained  finality,  it  was  not  open  to  the

appellants to re-agitate the issue in collateral proceedings.

Reliance in support of that submission was placed upon the

decisions of this Court in Naresh Shridhar Mirajkar etc. v.

State of Maharashtra (AIR 1967 SC 1), Prem Chand

Garg  v.  Excise  Commissioner,  U.P.,  Allahabad  (AIR

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1963 SC 996) and Rupa Ashok Hurra  v. Ashok Hurra

and Anr. (2002) 4 SCC 388.

7. Alternatively, it was contended that Section 364A of the

IPC was widely worded to cover not only situations where

terrorists  take  hostages  to  compel  the  Government  or  a

foreign  State  or  any  international  inter-governmental

organisation but also where any person abducts or kidnaps

the victim for no more than compelling payment of ransom

by the family of the victim. It was contended that the High

Court  had  rightly  analysed  the  provisions,  examined  the

historical  perspective  to  hold  that  Section  364A  was  not

confined only to cases involving acts of terrorism but was

attracted even in cases where the crime is  committed for

securing ransom.   

8. There  is  no  gainsaying  that  in  an  appeal  directed

against an order of conviction and sentence, the appellant is

entitled to urge all such contentions as are open to him in

law  and  on  facts.  One  of  the  contentions  open  to  the

aggrieved convict in such cases is that the provision under

which he has been convicted has no application to his case

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or that the ingredients of the offence with which he has been

charged  are  not  established  to  justify  his  conviction.  It

follows  that  the  contention  that  Section  364A  was  not

attracted in the present case was open to the appellants and

was in fact advanced on their behalf in the appeal filed by

them.  Not  only  that,  the  contention  was  examined  and

rejected. So long as that rejection holds the field, there is no

room for this Court or any other court for that matter to take

a contrary view. The writ petition filed by the appellants to

the extent the same sought to urge that section 364A was

not  attracted  to  the  case  at  hand  was,  thus,  not

maintainable in law.

9. In Rupa Ashok Hurra’s  case (supra), a Constitution

Bench  of  this  Court  examined  the  options  available  to  a

litigant  aggrieved  of  a  final  judgment/order  of  this  Court

after the dismissal of the review petition filed by him. This

Court reviewed the case law on the subject and held that a

final judgment/order passed by this Court cannot be assailed

in an application under Article 32 of the Constitution of India

by an aggrieved person regardless whether he was or was

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not  a  party  to  the  case.  This  Court  also  examined  the

competing considerations of giving finality to the judgments

of the Court of last resort, on the one hand, and the need to

dispense  justice  on reconsideration  of  a  judgment  on the

other  and  held  that  in  rarest  of  rare  situations,  a  final

judgment of the Court may require re-consideration to set

right the miscarriage of justice complained of. In such cases

it would not only be proper but even obligatory for the Court

to  both  legally  and  morally  rectify  the  error. This  Court

further held that the duty to do justice in such rarest of rare

cases shall prevail over the policy of certainty or finality of

judgments.  The  following two passages from the decision

are apposite:  

“40.  The  petitioners  in  these  writ  petitions  seek re-consideration of the final judgments of this Court after they have been unsuccessful in review petitions and in that these cases are different from the cases referred to above. The provision of Order XL Rule 5 of the Supreme Court Rules bars further application for review in the same matter. The concern of the Court now is whether any relief can be given to the petitioners who challenge the final judgment of this Court,  though  after  disposal  of  review  petitions, complaining  of  the  gross  abuse  of  the  process  of Court and irremedial injustice. In a State like India, governed by rule of law, certainty of law declared and the  final  decision  rendered  on  merits  in  a  lis between  the  parties  by  the  highest  court  in  the country is of paramount importance. The principle of finality  is  insisted  upon not  on  the  ground that  a

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judgment given by the apex Court is impeccable but on the maxim "Interest reipublicae ut sit finis litium”.

41. xxxxxxxxxx

42. The concern of this Court for rendering justice in a cause is  not less  important  than the principle of finality of its judgment. We are faced with competing principles  -  ensuring  certainty  and  finality  of  a judgment of the Court of last resort and dispensing justice  on  reconsideration  of  a  judgment  on  the ground  that  it  is  vitiated  being  in  violation  of  the principle  of  natural  justice  or  giving  scope  for apprehension of bias due to a Judge who participated in the decision making process not disclosing his links with a party to the case or on account of abuse of the process  of  the  court.  Such  a  judgment,  far  from ensuring finality, will always remain under the cloud of  uncertainty.  Almighty  alone  is  the  dispenser  of absolute justice - a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise,  in the rarest  of  the rare cases,  which would require  reconsideration  of  a  final  judgment  to  set right  miscarriage  of  justice  complained  of.  In  such case it would not only be proper but also obligatory both  legally  and  morally  to  rectify  the  error.  After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of  certainty  of  judgment as though it  is essentially in public interest that a final judgment of the final court in the country should not be open to challenge,  yet  there  may  be  circumstances,  as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.”

10. In  the  case  at  hand,  the  writ  petition  filed  by  the

appellants under Article 32 of the Constitution of India was

dismissed  as  withdrawn  with  liberty  reserved  to  the

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appellants to approach the High Court. Even so, in the light

of the pronouncement of this Court in Rupa Ashok Hurra’s

case  (supra),  if  against  a  final  judgment  of  this  Court,  a

remedy  was  not  available  under  Article  32  of  the

Constitution  the  same would  also  not  be  available  under

Article 226. If this Court could not take resort to Article 32

for reopening for examination its final judgement, the High

Court  could  also  not  do  so  under  Article  226.  The  only

remedy which the appellants could resort to  in terms of the

view  taken  in  Rupa  Ashok  Hurra’s case  (supra)  is  by

invoking this Court’s inherent powers under Articles 129 and

142  of  the  Constitution  of  India  for  recall,  reversal  or

modification of the order passed by this Court in the criminal

appeal filed by the appellants. A writ petition before the High

Court for that relief was clearly untenable in law.

11. Legal  impediments  in  the  choice  of  the  remedy

available  to  the  appellants  have  not  dissuaded  the  High

Court from examining and answering the contentions sought

to be raised on the merits of the case. We too propose to go

into the merits  of  the contentions urged on behalf  of  the

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appellants, no matter it may not be necessary to do so in

the light of what we have said about the maintainability of

the proceedings brought by the appellants.  We do so not

only because the matter was argued at considerable length

before us but also because the lives of the appellants hang

in the balance.  We will, therefore, be loathe in shutting out

the arguments advanced on behalf  of the appellants on a

technical ground touching the maintainability of the petition

filed by the appellants.

12. Any attempt to properly understand the true scope and

purport of Section 364A must, in our opinion, start with the

historical  background in  which  the provision  came on the

statute book. When we do so, we find that the proposal for

addition of Section 364A to the Indian Penal Code was first

modified by the Law Commission of India in its 42nd Report

submitted in 1971. The relevant portion of the report reads

as under:

“16.100 We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such  kidnapping  or  abduction  is  punishable  under Section 365 since the kidnapped or abducted person will be secretly and wrongfully confined.  

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We also considered the question whether a provision for  reduced  punishment  in  case  of  release  of  the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section:-

“364A. Kidnapping or abduction for ransom – Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished  with  rigorous  imprisonment  for  a term which may extend to 14 years, and shall also be liable to fine.”

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Chapter 25

SUMMARY OF RECOMMENDATIONS

25.1. xxxxxxxxxxx

A brief summary of the principal recommendations made in each chapter is given below:

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(14) Kidnapping or abduction for ransom should be an aggravated form of the offence of kidnapping or abduction  punishable  with  rigorous  imprisonment upto fourteen years and fine.”

13. The recommendations of the Law Commission appear

to  have  languished  for  nearly  two  decades  before  the

Criminal Law (Amendment) Bill, 1992 was presented to the

Parliament by the Government proposing to add to the IPC

Section 364A in  a form slightly  different  from the one in

which the Law Commission had recommended such addition.

What is important is that in the statement of Objects and

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Reasons, accompanying the bill, a two-fold justification was

given by the Government for the proposed addition namely:

(i) that  kidnappings  by  terrorists  for  ransom for  creating

panic amongst the people and for securing release of their

associates and cadres had assumed serious dimensions and

(ii) The  Law  Commission  had  in  its  42nd Report

recommended a specific provision to deal with the menace

of kidnapping and abductions for ransom. The Bill eventually

led to the Criminal  Law Amendment  Act  1993 (Act  42 of

1993), introducing Section 364A to the Indian Penal Code

with effect from 22nd May, 1993, in the following words:

”364A. Kidnapping  for  ransom,  etc.—  Whoever kidnaps or abducts any person or keeps a person in detention  after  such  kidnapping  or  abduction  and threatens to cause death or hurt to such person, or by  his  conduct  gives  rise  to  a  reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any other person to  do  or  abstain  from doing  any  act  or  to  pay  a ransom,  shall  be  punishable  with  death,  or imprisonment  for  life,  and  shall  also  be  liable  to fine.”

14. Shortly  after  the  introduction  of  the  above  provision

arose  the  need  for  an  amendment  to  the  same.  The

amendment was necessitated by reason of India acceding to

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the international convention against the taking of hostages

adopted by the General assembly of the United Nations on

17th December, 1979 in the background of Iranian hostage

crisis.  The  Convention  aimed  at  fighting  international

terrorism, came into force with effect from 3rd June, 1983

but was acceded to by India with effect from 7th September,

1994.   

15. The  Indian  Penal  Code  (Amendment)  Bill  1994,  Bill

No.LXV of 1994 was, in the above background, introduced in

the  Rajya Sabha on  25th August,  1994 to  amend Section

364A so as to substitute the expression “any other person”

by  the  words  “any  foreign  State  or  international

inter-governmental organisation or any other person” in the

said section. The Statement of Objects and Reasons for the

amendment  also  gave  the  background  in  which  the

amendment  was  considered  necessary.  The  Statement  of

Objects and Reasons accompanying the bill were as under:

“STATEMENT OF OBJECTS AND REASONS

An  international  convention  against  the  taking  of Hostages was adopted by the United Nations General Assembly on the 17th December, 1979

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2. The  said  convention  seeks  to  develop international cooperation between the states in devising and adopting effective measures for prevention prosecution and punishment of all acts of hostage taking.

3. India  has  decided  to  accede  to  the  said convention  since  it  is  one  of  the  important conventions  aimed  at  fighting  international terrorism. For the purpose of implementing the convention  it  is  proposed  to  amend  section 364A of the Indian Penal Code which provides punishment for the offence of kidnapping for ransom etc.  It is proposed to widen the scope of  the  said  section  by  including  therein situations where the offence is committed with a  view  to  compelling  foreign  states  or international inter governmental organisations to do or abstain from doing any act or to pay a ransom.

4. The bill seeks to achieve the above object.”

16. A  Committee  of  Home  Affairs  constituted  by  Rajya

Sabha examined the issue and submitted a report dated 29th

November, 1994 in  support  of  the amendment  to Section

364A. The existing Section 364A did not, it opined, take care

of situation where the offence was committed with a view to

compel a foreign State or international inter-governmental

organisation to do or abstain from doing any act or paying

ransom. The relevant extract of the Report is as under:

“In its note furnished to the Committee, the Ministry of Home Affairs explained the background and the necessity for amending section 364-A of the Indian Penal Code, 1860, as under:-

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(i) An  International  Convention  Against  the Taking  of  Hostages  was  adopted  by  the General  Assembly  of  the  United  Nations  on 17th  December,  1979.   The Convention  was adopted in the background of Iranian hostage crisis  and  aimed  at  fighting  international terrorism.  The Convention entered  into  force on 3rd June, 1983.

(ii) As per the Convention, if any person seizes or detains and threatens to kill, to injure or to  continue  to  detain  another  person  in order to compel a  third  party, namely, a State,  an  International  inter-governmental organisation, a natural or juridical  person or a  group of  persons  to  do or  abstain  from doing  any  act  as  an  explicit  or  implicit condition for the release of the hostages, it will constitute the offence of hostage taking.

(iii) India acceded to the Convention with effect from 7th September, 1994.

(iv) At present, the offence of hostage taking is not defined in the Indian law. However, vide Criminal  Law  (Amendment)  Act,  1993, Section 364A was added to the Indian Penal Code to make kidnapping for ransom, etc. An  offence  punishable  with  death  or imprisonment  for  life  and  also  fine.   This provision read with other provisions of the Indian  Penal  Code  on  abetment  and attempt,  would  already  cover  hostage taking, as defined in the Convention to the extent  that  this  Act  is  confined  to  the territory of India. Section 364A IPC does not take care of situations where the offence is committed with a view to compelling foreign States  or  international  inter-governmental organisation to do or abstain from doing any act or to pay a ransom.  

(v) Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said section 364A  on  kidnapping  for  ransom,  etc.  to

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make it  clear  that  kidnapping a person to compel the Government or any foreign State or  international  inter-governmental organization  or  any  other  person  is punishable under that section.”

17. It is evident from the above that Section 364A came on

the statute book initially in the year 1993 not only because

kidnapping  and  abduction  for  ransom  were  becoming

rampant and the Law Commission had recommended that a

separate  provision  making  the  same  punishable  be

incorporated  but  also  because  activities  of  terrorist

organisations had acquired menacing dimensions that called

for  an  effective  legal  framework  to  prevent  such  ransom

situations and punish those responsible for the same. It is

also manifest that the further amendment to Section 364A in

the year 1994 simply added the expressions  “foreign state

or  international  inter-governmental  organisation” to  the

provision without deleting the pre-existing expression “any

other person”.

18. A conspectus of the above leaves no manner of doubt

that the expression “any other person” appearing in Section

364A right from the time of its initial  incorporation in the

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Code  was  meant  to  apply  the  provisions  not  only  to

situations where the Government was asked to pay ransom

or  to  do any other  act  but  even  to situations  where any

other person which would include a private person also was

asked to pay ransom. The subsequent amendment  in the

year 1994 also did not remove the expression  “any other

person” in  Section  364A  while  adding  the  expression

“foreign  State  or  international  inter  Government

organisation” to the provision as it originally existed.

19. There is nothing in the provision to suggest that the

same is attracted only in ransom situations arising in acts of

terrorism directed  against  the Government  or  any foreign

state or international inter-governmental  organization. The

language employed  in  the  provision  is,  in  our  view, wide

enough to cover even cases where the demand for ransom is

made not as a part of any terrorist act but also for monetary

gain from a private individual.

20. It  was next argued by Mr. Sodhi that  kidnapping for

ransom was already covered by the existing provisions in the

IPC. He urged that Sections 359, 360 and 361 of the IPC

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deal with ‘kidnapping’, which according to Section 359 is of

two kinds viz. kidnapping from India and kidnapping from

lawful guardianship. ‘Kidnapping from India’ is under Section

360 of the IPC while ‘kidnapping from lawful guardianship’ is

covered by Section 361 of the IPC. Both the situations are

made  punishable  under  Section  363  of  the  IPC  with

imprisonment for a term which may extend to seven years

besides fine. ‘Abduction’ defined in Section 362 of the IPC, is

not by itself punishable as is the case with kidnapping.   

21. Section 383 of the IPC defines ‘extortion’, while Section

384  of  the  IPC  makes  the  same  punishable  with

imprisonment that may extend to three years, or with fine,

or with both. Similarly, Sections 386, 387, 388, 389 of the

IPC deal with aggravated forms of extortion and are made

suitably punishable. It was contended that once a person is

kidnapped and put in fear of death or injury to coerce the

person  so  kidnapped  or  any  other  person  to  deliver  any

property or valuable security or anything signed which may

be  converted  into  a  valuable  security  can  be  punished

suitably  under  the  provisions  mentioned  above.  This,

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according to Mr. Sodhi implies that the existing provisions in

the  IPC  were  sufficient  to  deal  with  ordinary  situations

involving  kidnapping  for  ransom,  thereby,  making  it

unnecessary for the Parliament to introduce Section 364A of

the IPC to cover an ordinary crime situation. The corollary,

according to Mr. Sodhi, is that Section 364A was added only

to  deal  with  terrorist  related  ransom  situations  and  not

ordinary crimes, like the one in the case at hand.  

22. The  argument  though  attractive  does  not  stand  on

closer scrutiny. The reasons are not far to seek.  Section

364A  has  three  distinct  components  viz.  (i)  the  person

concerned  kidnaps  or  abducts  or  keeps  the  victim  in

detention  after  kidnapping  or  abduction;  (ii)  threatens  to

cause death or hurt or causes apprehension of death or hurt

or actually hurts or causes death; and (iii) the kidnapping,

abduction  or  detention  and  the  threats  of  death  or  hurt,

apprehension for such death or hurt or actual death or hurt

is caused to coerce the person concerned or someone else to

do something or to forbear from doing something or to pay

ransom.  These  ingredients  are,  in  our  opinion,  distinctly

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different from the offence of extortion under Section 383 of

the IPC. The deficiency in the existing legal framework was

noticed by the Law Commission and a separate provision in

the form of Section 364A proposed for incorporation to cover

the ransom situations embodying the ingredients mentioned

above.  The  argument  that  kidnapping  or  abduction  for

ransom was effectively covered under the existing provisions

of the IPC must, therefore, fail.

23. We may before parting with this aspect of the matter

also deal with the argument that the expression ‘any other

person’ appearing in Section 364A ought to be read ejusdem

generis with the expression preceding the said words. The

argument  needs  notice  only  to  be  rejected.  The  rule  of

ejusdem generis is a rule of construction and not a rule of

law. Courts have to be very careful in applying the rule while

interpreting statutory provisions. Having said that the rule

applies in situations where specific words forming a distinct

genus class or category are followed by general words. The

first stage of any forensic application of the rule, therefore,

has to be to find out whether the preceding words constitute

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a genus class or category so that the general  words that

follow  them can  be  given  the  same colour  as  the  words

preceding. In cases where it is not possible to find the genus

in the use of the words preceding the general words, the

rule of ejusdem generis will have no application.   

24. In  M/s.   Siddeshwari  Cotton  Mills  (P)  Ltd.   v.

Union  of  India  and  Anr.  (1989)  2  SCC  458 M.N.

Venkatachaliah, J., as His Lordship then was, examined the

rationale  underlying  ejusdem  generis as  a  rule  of

construction and observed:

“14.  The  principle  underlying  this  approach  to statutory construction is that the subsequent general words  were  only  intended  to  guard  against  some accidental  omission  in  the  objects  of  the  kind mentioned earlier and were not intended to extent to objects  of  a  wholly  different  kind.  This  is  a presumption  and  operates  unless  there  is  some contrary  indication.  But  the  preceding  words  or expressions  of  restricted  meaning  must  be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted  and  such  broad  construction  as  the subsequent words may admit will be favoured. As a learned author puts it:  

..... if a class can be found, but the specific words exhaust the class, then rejection of the rule  may  be  favoured  because  its  adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class,  then  adoption  of  the  rule  may  be

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favoured because its rejection would make the specific words unnecessary."

(See: Construction of Statutes by EA Driedger P. 95 quoted by Francis Bennion in his tatutory Construction, pp. 829 and 830)

25. Relying upon the observations made by Francis Bennion

in his “Statutory Construction” and English decisions in  SS

Magnhild v. McIntyre Bros. & Co. (1920) 3 KB 321 and

those  rendered  by  this  Court  in  Tribhuban  Prakash

Nayyar v. Union of India (1969) 3 SCC 99,  UPSEB v.

Hari Shanker (1978) 4 SCC 16, his Lordship summed-up

the legal principle in the following words:

“19.  The  preceding  words  in  the  statutory provision  which,  under  this  particular  rule  of construction,  control  and  limit  the  meaning  of the subsequent words must represent a genus or a family which admits of a number of species or members. If there is only one species it cannot supply the idea of a genus.”

26. Applying the above to the case at  hand,  we find

that Section 364A added to the IPC made use of only

two expressions viz. ‘government’ or ‘any other person’.

The Parliament did not use multiple expressions in the

provision constituting a distinct genus class or category.

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It  used  only  one  single  expression  viz.  ‘government’

which does not constitute a genus, even when it may be

a specie. The situation, at hand, is somewhat similar to

what has been enunciated in ‘Craies on Statute Law’

(7th Edn.) at pages 181-182 in the following passage:

"The modern tendency of the law, it was said, [by Asquith J in Allen v. Emmerson (1944) KB 362)] is " to attenuate the application of the rule of ejusdem generis." To invoke the application of the ejusdem generis  rule  there  must  be  a  distinct  genus category.  The  specific  words  must  apply  not  to different objects of a widely differing character but to something which can be called a class or kind of objects.  Where  this  is  lacking,  the  rule  cannot apply, (Hood-Barrs v. IRC (1946) 2 All ER 768) but the mention of a single species does not constitute a  genus.  (Per  Lord  Thankerton  in  United  Towns Electric  Co.  Ltd.  v.  Attorney  General  for Newfoundland  (1939)  1  All  ER 423).  "Unless  you can find a category," said Farwell L.J., (in Tillmans and Co. v. S.S. Knutsford (1908) 2 KB 385) "there is  no  room  for  the  application  of  the  ejusdem generis doctrine," and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. For  instance,  where  a  local  Act  required  that "theatres and other places of public entertainment" should  be licensed,  the question arose whether  a "fun-fair"  for  which  no  fee  was  charged  for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words "other  places" to places of  the same  kind  as  theatres.  So  the  insertion  of  such words as " or things of whatever description" would exclude  the  rule.  (Attorney  General  v.  Leicester Corporation  (1910)  2  Ch.  359).  In  N.A.L.G.O.  v. Bolton  Corpn.  (1943)  AC  166)  Lord  Simon  L.C. referred to a definition of "workman" as any person who has entered into a works under a contract with

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an  employer  whether  the  contract  be  by  way  of manual  labour,  clerical  work  "or  otherwise"  and said: "The use of the words ’or otherwise’ does not bring into play the ejusdem generis  principle:  for ’manual labour’ and ’clerical work’ do not belong to a single limited genus" and Lord Wright in the same case said: "The ejusdem generis rule is often useful or  convenient,  but  it  is  merely  a  rule  of construction, not a rule of law. In the present case it is entirely inapt. It presupposes a ’genus’ but here the only ’genus’ is a contract with an employer".

(emphasis supplied)

27. The above passage was quoted with approval by this

Court  in  Grasim  Industries  Ltd.  v.   Collector  of

Customs, Bombay (2002) 4 SCC 297 holding that note

1(a)  of  Chapter  84  relevant  to  that  case  was  clear  and

unambiguous.  It did not speak of a class, category or genus

followed  by  general  words  making  the  rule  of  ejusdem

generis inapplicable.

28. There is yet another angle from which the issue can be

viewed. The term ‘person’ used in the expression ‘any other

person’,  appearing  in  Section  364A  of  the  IPC  must  be

understood as referring to ‘person’ as defined in Section 11

of the IPC. Section 11 of the IPC defines the term ‘person’ as

under:

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“The  word  “person”  includes  any  Company  or Association or body of persons, whether incorporated or not.”

29. This would mean that the term  ‘person’ appearing in

Section  364A  would  include  a  company  or  association  or

body  of  persons  whether  incorporated  or  not,  apart  from

natural persons. The tenor of the provision, the context and

the statutory definition of the expression ‘person’ all militate

against  any  attempt  to  restrict  the  meaning  of  the  term

‘person’ to  the  ‘government’ or  ‘foreign  State’  or

‘international inter-governmental organisations’ only.  

30. That brings us to the only other contention urged on

behalf of the appellants. It was argued that Section 364A to

the extent it denied to the Courts the discretion to award a

sentence other than death or life  imprisonment was  ultra

vires of the right to life guaranteed to the appellants under

Article 21 of the Constitution.  Support for that proposition

was drawn from the decision of this Court in Mithu etc. v.

State  of  Punjab  etc. (1983)  2  SCC  277 whereby  a

Constitution Bench of this Court, struck down Section 303 of

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the  IPC  as  unconstitutional.  It  was  urged  that  denial  of

judicial discretion to award a sentence other than death was

held by this Court to be a reason good enough to declare the

provision  constitutionally  invalid.  Since Section  364A,  also

did not leave any discretion with the Court in the matter of

sentence  except  death  or  life  imprisonment,  it  was  on  a

parity  of  reasoning  liable  to  be  struck  down  as

unconstitutional.

31. On  behalf  of  the  respondents,  it  was  argued  that

Mithu’s case (supra) was clearly distinguishable inasmuch

as the Court was in that case dealing with Section 303 IPC

which did not leave any option for the Court except to award

death  sentence  to  a  convict  who  while  undergoing  life

imprisonment committed a murder. That is not the position

in  the case at  hand where the Parliament  has  prescribed

alternative sentences leaving it for the courts concerned to

award  what  is  considered  suitable  in  the  facts  and

circumstances of a given case. It was also submitted that

there was nothing outrageous about the sentence provided

under Section 364A, keeping in view the nature and gravity

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of the offence and the fact that kidnappings and abductions

for ransom had assumed alarming dimensions in the country

apart  from  the  fact  that  terrorists  were  also  using  that

method to achieve their  nefarious ends. Similar  sentences

were prescribed for several offences under the IPC that were

considered grave by the Parliament who represent the will of

the people.  There was at any rate no reason for this Court

to go into the question of  quantum of sentence after  the

matter had been thoroughly examined in the criminal appeal

filed by the appellants including on the question of sentence

to  be  awarded  to  them.  The  issue  whether  a  lesser

punishment would meet the ends of justice may arise in a

given  case  where  the  victim is  released  soon  after  he  is

kidnapped or abducted without doing any harm to him.  But

in the case at hand, the victim was done to death which

called  for  the  extreme  penalty  rightly  awarded  to  the

appellants upon consideration of the relevant circumstances.

Reference was also made to the decisions of this Court in

Malleshi  v.  State  of  Karnataka (2004)  8  SCC  95;

Suman Sood  @ Kamal Jeet Kaur v. State of Rajasthan

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(2007) 5 SCC 634; Vinod  v. State of Haryana (2008) 2

SCC  246 and  Akram  Khan  v.  State  of  West  Bengal

(2012) 1 SCC 406, in which too life sentence was awarded

even when the victim was released unharmed. It was lastly

argued that courts must show deference to parliamentary

wisdom underlying a legislation and as far as possible avoid

interference with the quantum of sentence prescribed by law

unless  of  course  the  same  was  so  outrageously  brutal,

barbaric or disproportionate as to be unacceptable by any

civilised society. That not being the case at hand, there was

no compelling need for this Court to interfere, argued the

learned Counsel.

32. In  Mithu’s  case  (supra),  this  Court  had  before  it  a

challenge to the constitutional validity of Section 303, which

prescribed but one sentence for an offender who committed

a murder while undergoing a sentence of imprisonment for

life. This Court struck down Section 303 of the IPC holding

that there was no rational basis for classifying persons who

committed murder while they are under a sentence of life

imprisonment  and  those  who  are  not  under  any  such

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sentence for purposes of awarding to the former category a

mandatory death sentence. The Court held that Section 303

assumed  that  life  convicts  are  a  dangerous  breed  of

humanity as a class, without there being any scientific data

for  such  an  assumption.  This  Court  further  found  that

prescription of a mandatory death sentence for the offence

of murder as a second offence merely for the reason that

the offender was under a sentence of life imprisonment for

the first such offence is arbitrary and unreasonable, and that

mandatory  death  sentence  would  not  serve  any  social

purpose.  The  motivation  of  the  two  offences  may  be

different,  the  circumstances  in  which  they  may  be

committed may be different and even the two offences may

be basically different genre. This Court also found that there

was no rational distinction between a person who commits

murder while undergoing the sentence of life imprisonment

and another who does so after he has already undergone

such sentence. This Court in the above backdrop took the

view that the mandatory death sentence deprived the Court

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of its wise and beneficial discretion in the matter of life and

death, making it harsh, unjust and unfair.

33. The above features, noticed by this Court in  Mithu’s

case (supra), are not present in the case at hand for Section

364A does not mandate a death sentence as was the case

with  Section  303 of  the  IPC.  In  Section  364A,  the  Court

enjoys the discretion whether to award the extreme penalty

of  death  or  the  lesser  alternative  of  a  life  imprisonment.

There  is  also  no  element  of  any  discrimination  between

persons who commit the offence, like the one noticed by this

Court in Mithu’s case (supra).  Whether life or death would

be the proper sentence is in the absolute discretion of the

Court  which  the  Courts  are  expected  to  exercise  wisely

having regard to the facts of the case and the gravity of the

offence and its severity or barbarity.  To that extent, there is

indeed no comparison between  Mithu’s  case (supra) and

the case of  the appellants who have been awarded death

sentence not because the law so mandated but because this

Court after  considering the attendant circumstances found

that to be the only sentence which would meet the ends of

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justice.  This  is  evident  from  the  following  passages

appearing  in  the  judgment  of  this  Court  in  the  criminal

appeal  filed  by the appellants  [Vikram Singh & Ors.  v.

State of Punjab (2010) 3 SCC 56]:

“56. Much  argument  and  passion  have  been expended by the learned counsel as to the propriety of the death sentence in the facts of the case. Mr Sharan has emphasised that as the prosecution story rested on circumstantial evidence, this fact by itself was a relevant consideration in awarding the lesser sentence.  It  has  also  been  pleaded  that  the appellants were all young persons and the possibility that  they  could  be  reformed  during  their incarceration could not be ruled out and this too was a factor which had to be considered in awarding the sentence.

57. Mr.  Sharan  has  also  referred  us  to  Dhondiba Gundu Pomaje v. State of Maharashtra (1976) 1 SCC 162  that  an  accused  of  young  age  should  not ordinarily be meted out a death sentence. Reference has  also  been  made  by  Mr  Sharan  to  some observations  in  Bachan  Singh v.  State  of  Punjab (1980) 2 SCC 684 that the mitigating circumstance in favour of an accused must also be factored in. It has  also  been  pleaded  that  the  additional circumstance in favour of  Sonia was that she was not only young but she was also a lady and as it was possible  that  she  had  been  influenced  into  the unpleasant  situation  by  her  husband,  the  death sentence should not be given to her in any case. Mr Sharan  has  also  placed  reliance  on  two  recent judgments  of  this  Court  in  Santosh  Kumar Satishbhushan  Bariyar v.  State  of  Maharashtra (2009) 6 SCC 498 and  Sushil  Kumar v.  State of  Punjab (2009)  10  SCC  434  whereby  it  has  been indicated that the latest trend in jurisprudence was that the death penalty should not be awarded except in  the  most  extraordinary  of  cases  and  that  the position  and  background  of  the  appellant-accused was  to  be  kept  in  mind  in  evaluating  the

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circumstances for and against the imposition of the death sentence.

58. These  submissions  have  been  strongly controverted by Mr.  Jaspal Singh and Mr. Kuldeep Singh,  the  learned  counsel  representing  the complainant and the State of Punjab respectively. It has been emphasised that Sections 364-A and 302 both provided for the imposition of a death sentence and as kidnapping for ransom was perhaps the most heinous of offences, no latitude should be shown to the appellants as they had poisoned a young boy to death  for  money.  The  learned  counsel  have  also placed  reliance  on  Henry  Westmuller  Roberts v. State  of  Assam (1985)  3  SCC 291  and  Mohan v. State of T.N. (1998) 5 SCC 336 where the kidnap victim was a young boy and had subsequently been done  to  death,  the  Court  had  awarded  the  death penalty.

xxxxxxxxxxxxxxxxxxxxxxxxxxx

64. A  plain  reading  of  the  Objects  and  Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom, a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom has become a lucrative and thriving industry all over the country which must be dealt with in the harshest possible manner and an obligation rests on the courts as well. The courts to lend a helping hand in that direction.

65. In the case before us, we find that not only was Abhi Verma kidnapped for ransom which act would by  itself  attract  the  death  penalty  but  he  was murdered  in  the  process.  It  is  relevant  that  even before  the  aforesaid  amendments,  this  Court  in Henry case (1985) 3 SCC 291 observed that death sentence  could  be  awarded  even  in  a  case  of kidnapping  and  murder  based  on  circumstantial evidence holding that: (SCC p. 313, para 40)

“40.  …  We  are  of  the  opinion  that  the offences  committed  by  Henry,  the

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originator  of  the  idea  of  kidnapping children  of  rich  people  for  extracting ransom,  are  very  heinous  and pre-planned. He had been attempting to extract money from the unfortunate boy’s father,  PW  23  even  after  the  boy  had been murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom. In our opinion, this is one of the rarest of rare cases in which the extreme penalty of death is called for the murder of the innocent young boy, Sanjay in cold blood after  he  had  been  kidnapped  with promise  to  be  given  sweets.  We, therefore, confirm the sentence of death and  the  other  sentences  awarded  to Henry by the High Court under Sections 302, 364, 201 and 387 IPC and dismiss Criminal Appeal No. 545 of 1982 filed by him.”

66. Moreover,  as  already  indicated,  we  have  the eyewitness  statement  of  PW 13 Baljeet  Saini  with regard to the kidnapping of Abhi Verma from outside the school.

67. Likewise,  in  Mohan  case  (1998)  5  SCC  336 which again related to a kidnapping for ransom and murder under Sections 364-A and 302 of a young boy aged ten years, while assessing the aggravating and mitigating circumstances, it was observed that the former far outweighed the others. It was held as under: (SCC p. 343, para 14)

“14. So far as appellant Gopi is concerned, he not only did participate by pulling the rope  around  the  neck  of  the  boy,  as already  narrated,  but  went  to  his  house and  brought  a  coir  rope.  After  removing the  rope  from  the  neck  of  the  boy,  he encircled  the  coir  rope  again  around  the boy’s  neck  and  pulled  the  said  rope  for about half a minute and the boy stopped breathing.  Thereafter  he  took  out  one Keltron  TV  box  from underneath  the  cot and  packed  the  boy  in  the  box.  These

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aggravating circumstances on the part  of accused  Mohan  and  Gopi  clearly demonstrate their depraved state of mind and the brutality with which they took the life  of  a  young boy.  It  further  transpires that after killing the boy and disposing of the dead body of the boy, Mohan also did not  lose  his  lust  for  money  and  got  the ransom of Rs 5 lakhs.”

68. We  must  also  emphasise  that  in  this  tragic scenario and in the drawing up of the balance sheet, the plight of the hapless victim, and the abject terror that he must have undergone while in the grip of his kidnappers,  is  often  ignored.  Take  this  very  case. Abhi Verma was only 16 years of age, and had been picked up by Vikram Singh who was known to him but had soon realised the predicament that he faced and had shouted for help. His terror can further be visualised  when  he  would  have  heard  the threatening  calls  to  his  father  and  seen  the preparations  to  do away with  him,  which included the taping of his mouth and the administration of an overdose of  dangerous  drugs.  The horror,  distress and the devastation felt in the family on the loss of an only son, can also be imagined.”

34. Reliance  upon  Mithu’s  case  (supra)  does  not,

therefore, help the appellant in their challenge to the vires of

Section  364A.  Having  said  that,  we  must  add  that  a

legislation is presumed to be constitutionally valid with the

burden of showing the contrary lying heavily upon any one

who challenges its validity. Not only that, courts show due

deference  to  the  parliamentary  wisdom and  exercise  self

restraint  while  examining  the  vires of  legislations  validly

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enacted.   Reference  may  in  this  regard  be  made  to  the

decision of this Court in  Maru Ram v. Union of India &

Ors. (1981) 1 SCC 107 where Fazal Ali, J. in his concurring

judgment observed:

“93. Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that Parliament by enacting Section 433-A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well  settled  that  the  legislature  understands  the needs and requirements of its  people much better than the courts because the  Parliament consists of the elected representatives of the people and if the Parliament  decides  to  enact  a  legislation  for  the benefit  of  the  people,  such  a  legislation  must  be meaningfully construed and given effect to so as to subserve the purpose for which it is meant.”

 35. Reference  may also  be  made  to  the  decision  of  this

Court in Bachan Singh v. State of Punjab (1980) 2 SCC

684 where Sarkaria, J. speaking for majority observed:

“175. We  must  leave  unto  the  Legislature,  the things  that  are  Legislature’s.  “The  highest  judicial duty is to recognise the limits on judicial power and to  permit  the  democratic  processes  to  deal  with matters falling outside of those limits.” As Judges, we have to resist the temptation to substitute our own value-choices for the will of the people. Since substituted  judicial  “made-to-order”  standards, howsoever  painstakingly  made,  do  not  bear  the people’s imprimatur,  they may not have the same authenticity  and  efficacy  as  the  silent  zones,  and green belts designedly marked out and left open by Parliament in its legislative planning for fair play of judicial  discretion  to  take  care  of  the  variable,

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unpredictable circumstances of the individual cases, relevant to individualised sentencing. When Judges, acting  individually  or  collectively,  in  their  benign anxiety to do what they think is morally good for the people,  take upon themselves the responsibility  of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community  at  large  and  despite  their  intention  to abide  by  the  dictates  of  mere  reason,  that  they might  write  their  own  peculiar  view  or  personal predilection  into  the  law,  sincerely  mistaking  that changeling  for  what  they  perceive  to  be  the community  ethic.  The  perception  of  “community” standards or ethics may vary from Judge to Judge. In this sensitive highly controversial  area of death penalty, with all its complexity, vast implications and manifold  ramifications,  even  all  the  Judges  sitting cloistered  in  this  Court  and  acting  unanimously, cannot assume the role  which properly  belongs to the  chosen  representatives  of  the  people  in Parliament,  particularly  when  Judges  have  no divining  rod  to  divine  accurately  the  will  of  the people. In Furman 408 US 238 ((1992), the Hon’ble Judges  claimed  to  articulate  the  contemporary standards of morality among the American people. But speaking through public referenda, Gallup Polls and  the  State  legislatures,  the  American  people sharply rebuffed them. We must draw a lesson from the same.”

36. To the same effect are the observations made by this

Court in  State of M.P. v. Bala alias Balaram (2005) 8

SCC 1 where this Court said:

“12. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for  the  courts  to  imbibe that  legislative wisdom and to respect it.”

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37. In  a  Parliamentary  democracy  like  ours,  laws  are

enacted  by  the  Parliament  or  the  State  legislature  within

their  respective  legislative  fields  specified  under  the

Constitution. The presumption attached to these laws is that

they are meant to cater to the societal demands and meet

the challenges of the time, for the legislature is presumed to

be supremely wise and aware of such needs and challenges.

The means for redressing a mischief are also in the realm of

legislation and so long as those means are not violative of

the constitutional provisions or the fundamental rights of the

citizens, the Courts will show deference towards them. That,

however,  is  not  to  say  that  laws  that  are  outrageously

barbaric  or  penalties  that  are  palpably  inhuman  or

shockingly disproportionate to the gravity of the offence for

which the same are prescribed cannot be interfered with.

As observed by Chandrachud, CJ in Mithu’s case (supra) if

the Parliament were tomorrow to amend the IPC and make

theft  of  cattle  by a farmer punishable  with cutting of  the

hands of the thief, the Courts would step in to declare the

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provision as constitutionally invalid and in breach of the right

to life.  The Court observed:

“6…………………………………… Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21. Similarly, if a law were to provide that the  offence  of  theft  will  be  punishable  with  the penalty of the cutting of hands, the law will be bad as  violating  Article  21.  A  savage  sentence  is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such  laws.  But  these  examples  serve  to  illustrate that  the  last  word  on  the  question  of  justice  and fairness does not rest with the legislature.  Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine so is it for  the  courts  to  decide  whether  the  procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable.”  

38. That punishment must be proportionate to the offence

is  recognised  as  a  fundamental  principle  of  criminal

jurisprudence  around  the  world.  In  Weems  v.  United

States (217 US 349; 54 L.Ed 793; 30 S. Ct 544 (1910) the

petitioner  had  been  convicted  for  falsifying  a  public

document and sentenced to 15 years of what was described

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as ‘cadena temporal’, a form of imprisonment that included

hard labour in chains and permanent civil disabilities. The US

Supreme Court, however, declared the sentence to be cruel

not  only  in  terms  of  length  of  imprisonment  but  also  in

terms of shackles and restrictions that were imposed by it.

That  punishment  for  crime  should  be  graduated  and

proportionate to the offence, is a precept of justice, declared

the Court.

39. That decision was followed by Enmund v. Florida 647

458  US  782  (1982) where  the  Court  held  that  death

penalty was excessive for the felony of murder where the

petitioner did not take life, attempt to take life or intend that

life  be  taken  or  that  lethal  force  be  used.  In  Coker  v.

Georgia 433  US  584  (1977) US  Supreme  Court  held

sentence  of  death  to  be  grossly  disproportionate  and

excessive for the crime of rape. In Herman Solem v. Jerry

Buckley Helm 463 US 277, 77 Led 2d 637, 103 S Ct

3001, the US Supreme Court was dealing with a case where

Helm was found guilty of what is described as “uttering a no

account  check”  for  100 dollars,  ordinarily  punishable  with

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imprisonment for a period of five years and a fine of 5000

dollars  but  was  sentenced  under  the  recidivist  statute  of

South Dakota to undergo imprisonment for life. The question

that  fell  for  determination  was whether the sentence was

disproportionate to the crime committed by Helm. The Court

by majority held that the general principle of proportionality

was applicable as much to sentence of imprisonment as it

was  to  capital  sentences  and  that  while  applying  the

proportionality principle in capital cases, the Court had not

drawn  any  distinction  between  capital  cases,  on  the  one

hand, and case of imprisonment, on the other, even when

the  penalty  of  death  differs  from  all  other  forms  of

punishment not in degree but in kind. The Court held that

decisions  rendered  in  capital  cases  were  not  of  much

assistance  while  deciding  the  constitutionality  of

punishments  in  non-capital  cases,  with  the  result  that

outside  the  context  of  capital  punishment,  successful

challenges  to  the  proportionality  of  sentences  were

exceedingly rare. That did not, observed the Court, however,

mean that proportionality analysis was entirely inapplicable

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to  the  non-capital  cases.  The  Court  summed-up  its

conclusion  regarding  the  doctrine  of  proportionality  as

applicable  to  cases  involving sentence of  imprisonment  in

the following words:

“[6a, 7, 8] In sum, we hold as a matter of principle that  a  criminal  sentence must be proportionate to the  crime  for  which  the  defendant  has  been convicted.  Reviewing courts, of course, should grant substantial  deference  to  the  broad  authority  that legislatures  necessarily  possess  in  determining  the types and limits of punishments for crimes, as well as  to  the  discretion  that  trial  courts  possess  in sentencing convicted  criminals.   But  no  penalty  is per se constitutional. As the Court noted in Robinson v. California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417, a single day in prison may be unconstitutional in some circumstances.”

40. More  importantly, the  Court  recognised  the  following

guiding principles for determining whether the sentence of

imprisonment was disproportionate to the offence allegedly

committed by the accused:

“[10] In sum, a court’s proportionality analysis under the  Eighth  Amendment  should  be  guided  by objective  criteria,  including  (i)  the  gravity  of  the offense and the harshness of  the penalty;  (ii)  the sentences imposed on other criminals in the same jurisdiction;  and  (iii)  the  sentences  imposed  for commission of the same crime in other jurisdictions.”

41. Applying the above principles to the case before it, the

Court declared:

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“[1c] The Constitution requires us to examine Helm’s sentence to  determine  if  it  is  proportionate  to  his crime.  Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct.  He has been treated more harshly than other criminals in the State who have committed  more  serious  crimes.   He  has  been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a  single  State.   We conclude that  his  sentence is significantly  disproportionate  to  his  crime,  and  is therefore prohibited by the Eighth Amendment.  The judgment  of  the  Court  of  Appeals  is  accordingly affirmed.”

42. More recently in Ronald Allen Harmelin v. Michigan

501 US 957 the U.S. Supreme Court revisited the approach

to  be  adopted  while  determining  the  question  of

constitutionality of sentences for non-capital offences.  This

was  a  case  where  the  petitioner  was  convicted  for

possessing  672  gms.  of  cocaine  and  sentenced  to  a

mandatory term of life in prison without possibility of parole.

The  question  that  fell  for  consideration  was  whether  the

mandatory  life  imprisonment  was  in  consonance  with  the

Eighth Amendment to the U.S. Constitution. Kennedy, J. in

his concurring judgment noted the view taken by the Court

in  Weems v. United States  (supra), Enmund v. Florida

458  US  782,  Rummel  v.  Estelle  445  U.S  263,  and

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Solem v. Helm 463 US 277 to observe that although the

said decisions recognise the principle of proportionality, its

precise  contours  remain  unclear. The  Court,  based  on  a

conspectus  of  the  decisions,  formulated  some  common

principles applicable in situations that required examination

of limits of proportionality. The first principle culled out from

the  decisions  earlier  pronounced  by  the  Court  was  that

prescribing punishment for crimes rests with the legislature

and not Courts and that Courts ought to show deference to

the wisdom of the legislature. The Court observed:

“The  first  of  these  principles  is  that  the  fixing  of prison  terms  for  specific  crimes  involves  a substantive penological judgment that, as a general matter,  is  “properly  within  the  province  of legislatures, not courts.” Rumel, supra, at 275-276, 63  L  Ed2d  382,  100  S  Ct  1133.  Determinations about  the  nature  and  purposes  of  punishment  for criminal  acts  implicate  difficult  and  enduring questions respecting the sanctity  of the individual, the nature of law, and the relation between law and the social order.  “As a moral or political issue [the punishment  of  offenders]  provokes  intemperate emotions, deeply conflicting interests and intractable disagreements.”   D.  Garland,  Punishment  and Modern  Society  1  (1990).   The  efficacy  of  any sentencing  system  cannot  be  assessed  absent agreement  on  the  purposes  and  objectives  of  the penal  system.   And  the  responsibility  for  making these fundamental  choices and implementing them lies  with  the  legislature.   See  Gore   v.   United States [51 US 999] 357 US 386, 393, 2 L Ed 2d 1405, 78 S Ct 1280 (1958) (“whatever views may be entertained  regarding  severity  of  punishment,

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whether  one believes in its  efficacy or its  futility… these are peculiarly questions of legislative policy). Thus,  “[r]eviewing  courts…should  grant  substantial deference  to  the  broad  authority  that  legislatures necessarily  possess  in  determining  the  types  and limits of punishments for crimes.”  Solem, supra, at 290,  77 L  Ed  2d  637,  103 S  Ct  3001.   See  also Rummel, supra, at 274, 63 L Ed 2d 382, 100 S Ct 1133  (acknowledging  “reluctance  to  review legislatively  mandated  terms  of  imprisonment”); Weems, supra, at 379, 54 L Ed 793, 30 S Ct 544 (“The  function  of  the  legislature  is  primary,  its exercises  fortified  by  presumptions  of  right  and legality, and is not to be interfered with lightly, nor by  any  judicial  conception  of  their  wisdom  or propriety”).”

43. The second principle recognised by the Court was that

the Eight Amendment does not mandate adoption of any one

penological  theory  and  that  principles  that  guide  criminal

sentencing have varied with the times.  

44. The third principle recognised that divergences, both in

underlying  theories  of  sentencing  and  in  the  length  of

prescribed prison terms, is inevitable, because of the federal

structure.  The fourth principle shaped by the court was that

proportionality review by federal courts must be informed by

objective factors  to  the maximum possible  extent.   While

saying so, the Court held that penalty of death differs from

all other forms of criminal punishments and that the easiest

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comparison between different sentences is the comparison

between  capital  punishment  and  non  capital  punishment.

The  decision  also  recognised  that  objective  standards  to

distinguish between sentences for different terms of years

are lacking with the result that outside the context of capital

punishment, successful challenges to the proportionality of

particular  sentences  are  exceedingly  rare.  The  Court

summed-up in the following words:

“[3b] All of these principles – the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the  requirement  that  proportionality  review be guided  by  objective  factors  –  inform the  final one:  The Eighth Amendment does not require strict  proportionality  between  crime  and sentence.   Rather,  it  forbids  only  extreme sentences that are “grossly disproportionate.....”

45. In Ewing v. California [538 US 11]  the US Supreme

Court held that it is enough if the state has a reasonable

basis for believing that its punishment advances the goals of

its criminal justice system in any substantial way.  The Court

upheld the sentence of life imprisonment awarded to Ewing

for theft of three golf sticks because it reflected a rational

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legislative  judgment,  entitled  to  deference.   The  Court

observed:

“Our traditional deference to legislative policy choices  finds  a  corollary  in  the  principle  that  the Constitution “does not mandate adoption of any one penological theory.”  Id., at 999, 115 L Ed 2d 836, 111 S Ct 2680 (Kennedy, J., concurring in part and conrurring  in  judgment).   A  sentence  can  have  a variety  of  justifications,  such  as  incapacitation, deterrence, retribution, or rehabilitation.  See 1 W. LaFave & A. Scott, Substantive Criminal Law 1.5, pp 30-36 (1986)  (explaining  theories  of  punishment). Some or all of these justifications may play a role in a  State’s  sentencing  scheme.   Selecting  the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.

xxxx xxxx xxxx xxxx xxxx xxxx

Ewing’s  sentence  is  justified  by  the  State’s public-safety interest in incapacitating and deterring recidivist  felons,  and  amply  supported  by  his  own long, serious criminal  record.  … … … To be sure, Ewing’s  sentence is  a  long one.   But  it  reflects  a rational legislative judgment, entitled to deference, that  offenders  who  have  committed  serious  or violent felonies and who continue to commit felonies must be incapacitated.  The State of California “was entitled to place upon [Ewing] the onus of one who is  simply  unable  to  bring  his  conduct  within  the social  norms prescribed by the criminal  law of the State.”  Rummel, supra, at 284 63 L Ed 2d 382, 100 S Ct 1133.  Ewing’s is not “the rare case in which a threshold  comparison  of  the  crime committed  and the sentence imposed leads to an inference of gross disproportionality.”

46. The Canadian view on the principle of proportionality of

sentence is no different. Several decisions of the Canadian

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Supreme Court, have held proportionality of punishment to

the gravity of the offence to be a constitutional requirement.

In R. v. Smith (1987) 1 SCR 1045, the Supreme Court of

Canada said:

“In  assessing  whether  a  sentence  is  grossly disproportionate,  the  court  must  first  consider  the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or  deter  this  particular  offender  or  to  protect  the public  from  this  particular  offender.  The  other purposes which may be pursued by the imposition of punishment,  in  particular  the  deterrence  of  other potential  offenders,  are  thus  not  relevant  at  this stage of the inquiry.  This does not mean that the judge  or  the  legislator  can  no  longer  consider general  deterrence  or  other  penological  purposes that  go  beyond  the  particular  offender  in determining a sentence, but only that the resulting sentence  must  not  be  grossly  disproportionate  to what the offender deserves.”

47. In  R.  v.  Goltz  (1991)  3  SCR  485,  the  Canadian

Supreme Court also recognised the principle that legislative

edicts as to quantum of punishment should not be lightly

upset. The Court observed:

“Moreover,  it  is  clear  from both  Smith and  Lyons, that the test is not one which is quick to invalidate sentences  crafted  by  legislators.  The  means  and purposes of legislative bodies are not to be easily upset in a challenge under s.12.

xxx xxx xxx

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This  acknowledgement  that  sanctions  serve numerous purposes underscores the legitimacy of a legislative  concern  that  sentences  be  geared  in significant part to the continued welfare of the public through  deterrent  and  protective  aspects  of  a punishment.  This perspective is explicitly affirmed in R. v. Luxton per Lamer C.J.  Thus, while the multiple factors  which  constitute  the  Smith test  are  aimed primarily  at  ensuring  that  individuals  not  be subjected to grossly disproportionate punishment, it is  also  supported  by  a  concern  to  uphold  other legitimate  values  which  justify  penal  sanctions.  These  values  unavoidably  play  a  role  in  the balancing of elements in a S.12  analysis.”

48. In  R. v. Fergusson (2008) 1 SCR 96,  the Canadian

Supreme Court held that for the Court to interfere with the

sentencing  provision  it  was  not  enough  to  say  that  the

sentence was excessive. What must be demonstrated is that

the  sentence  is  so  outrageously  disproportionate  that  the

Canadians  would  find  the  punishment  abhorrent  or

intolerable. The following observations succinctly sum up the

test to be adopted:    

“The  test  for  whether  a  particular  sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith (1987)  1 SCR 1045.  As this  Court  has  repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence  must  be  “so  excessive  as  to  outrage standards  of  decency”  and disproportionate  to  the extent  that  Canadians “would  find the  punishment abhorrent or intolerable”.

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49. To sum up:

(a) Punishments must be proportionate to the nature and

gravity  of  the  offences  for  which  the  same  are

prescribed.

(b) Prescribing  punishments  is  the  function  of  the

legislature and not the Courts’.

(c) The legislature is presumed to be supremely wise and

aware of  the needs of  the people  and the measures

that are necessary to meet those needs.

(d) Courts  show  deference  to  the  legislative  will  and

wisdom  and  are  slow  in  upsetting  the  enacted

provisions  dealing  with  the  quantum  of  punishment

prescribed for different offences.

(e) Courts, however, have the jurisdiction to interfere when

the  punishment  prescribed  is  so  outrageously

disproportionate to the offence or so inhuman or brutal

that the same cannot be accepted by any standard of

decency.  

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(f) Absence  of  objective  standards  for  determining  the

legality of the prescribed sentence makes the job of the

Court reviewing the punishment difficult.

(g) Courts cannot interfere with the prescribed punishment

only  because  the  punishment  is  perceived  to  be

excessive.

(h) In  dealing  with  questions  of  proportionality  of

sentences,  capital  punishment  is  considered  to  be

different  in  kind  and  degree  from  sentence  of

imprisonment. The result is that while there are several

instances  when  capital  punishment  has  been

considered  to  be  disproportionate  to  the  offence

committed,  there  are  very  few  and  rare  cases  of

sentences of imprisonment being held disproportionate.

50. Applying the above to the case at hand, we find that

the need to bring in Section 364A of the IPC arose initially

because  of  the  increasing  incidence  of  kidnapping  and

abduction  for  ransom.  This  is  evident  from  the

recommendations made by the Law Commission to which

we have made reference in the earlier part of this judgment.

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While  those  recommendations  were  pending  with  the

government,  the  specter  of  terrorism  started  raising  its

head threatening not  only  the security  and safety  of  the

citizens  but  the  very  sovereignty  and  integrity  of  the

country, calling for adequate measures to curb what has the

potential  of  destabilizing  any  country.  With  terrorism

assuming  international  dimensions,  the  need  to  further

amend  the  law  arose,  resulting  in  the  amendment  to

Section 364A, in the year 1994. The gradual growth of the

challenges posed by kidnapping and abductions for ransom,

not only by ordinary criminals for monetary gain or as an

organized  activity  for  economic  gains  but  by  terrorist

organizations  is  what  necessitated  the  incorporation  of

Section  364A of  the  IPC  and a  stringent  punishment  for

those indulging in such activities.  Given the background in

which the law was enacted and the concern shown by the

Parliament for the safety and security of the citizens and the

unity,  sovereignty  and  integrity  of  the  country,  the

punishment  prescribed  for  those  committing  any  act

contrary  to  Section  364A  cannot  be  dubbed  as  so

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outrageously disproportionate to the nature of the offence

as  to  call  for  the  same  being  declared  unconstitutional.

Judicial discretion available to the Courts to choose one of

the two sentences prescribed for those falling foul of Section

364A  will  doubtless  be  exercised  by  the  Courts  along

judicially  recognized  lines  and  death  sentences  awarded

only  in  the  rarest  of  rare  cases.  But  just  because  the

sentence  of  death  is  a  possible  punishment  that  may be

awarded  in  appropriate  cases  cannot  make  it  per  se

inhuman or barbaric.  In the ordinary course and in cases

which qualify to be called rarest of the rare, death may be

awarded only where kidnapping or abduction has resulted in

the death either of the victim or anyone else in the course

of the commission of the offence. Fact situations where the

act which the accused is charged with is proved to be an act

of  terrorism threatening  the very  essence  of  our  federal,

secular and democratic structure may possibly be the only

other  situations where Courts  may consider  awarding the

extreme penalty.   But, short of death in such extreme and

rarest of rare cases, imprisonment for life for a proved case

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of  kidnapping  or  abduction  will  not  qualify  for  being

described as barbaric or inhuman so as to infringe the right

to life guaranteed under Article 21 of the Constitution.   

51. It  was  argued  that  in  certain  situations  even

imprisonment for life may be disproportionate to the gravity

of  the  offence  committed  by  the  accused.  Hypothetical

situations are pressed into service to bring home the force of

the contention. The question, however, is whether the Court

can  merely  on  a  hypothetical  situation  strike  down  a

provision disregarding the actual facts in which the challenge

has been mounted. Our answer is in the negative. Assumed

hypothetical situations cannot, in our opinion, be brought to

bear upon the  vires of Section 364A.  The stark facts that

have been held proved in the present case would at any rate

take the case out of the purview of any such hypothetical

situation. We say so because the appellants in the case at

hand have been held guilty not only under Section 364A, but

even for murder punishable under Section 302 of the IPC.

Sentence of death awarded to them for both was considered

to be just,  fair  and reasonable,  even by the standards of

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rarest of rare cases, evolved and applied by this Court. It is

not a case where the victim had escaped his fate and lived

to tell  his woeful tale. It is a case where he was done to

death, which is what appears to have weighed with the ourts

in awarding to the appellants the capital punishment. We are

not in this round of litigation sitting in judgment over what

has already attained finality. All that we are concerned with

is whether the provisions of Section 364A in so far as the

same  prescribes  death  or  life  imprisonment  is

unconstitutional  on  account  of  the  punishment  being

disproportionate to the gravity of the crime committed by

the  appellants.  Our  answer  to  that  question  is  in  the

negative. A sentence of death in a case of murder may be

rare, but, if the courts have, upon consideration of the facts

and evidence, found that the same is the only sentence that

can  be  awarded,  it  is  difficult  to  revisit  that  question  in

collateral proceedings like the one at hand.

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52. In the result this appeal fails and is, hereby, dismissed.

………………………………….…..…J.        (T.S. THAKUR)

………………………………….…..…J.        (R.K. AGRAWAL)

     …………………………..……………..J.         (ADARSH KUMAR GOEL)

New Delhi August 21, 2015

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