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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   824    OF 2013 (Arising out of S.L.P. (Crl.) No.8149 of 2012)

Vikram Singh @ Vicky & Anr. …Appellants

Versus

Union of India & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.  

2. For  a  person  found  guilty  of  a  capital  offence  and  

sentenced to death even by the highest Court of the land the  

options for reprieve are very limited.  Once the conviction of  

the accused and the sentence awarded to him attains finality  

the  prospects  of  judicial  intervention  recede  further.  

Undeterred  by  these  limitations  the  appellants  who  have

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been sentenced to death by hanging both under Section 302  

and 364A of the Indian Penal Code have taken a chance with  

a  petition  seeking  review  of  their  conviction  not  because  

anything  grossly  erroneous  is  pointed  out  about  the  

conclusions arrived  at  by  the  Courts  that  dealt  with  their  

cases but on the ground that Section 364A of the IPC which  

makes  kidnapping  for  ransom  an  offence  is  itself  

unconstitutional being violative of Articles 14 and 21 of the  

Constitution. Writ Petition (Crl.) D No. 15177 of 2012 was  

first  filed in this  Court  by the  petitioner,  Vikram Singh @  

Vicky for  a  declaration  that  Section  364A  inserted  in  the  

Indian Penal Code by Act 42 of 1993 w.e.f.  22nd May 1993 is  

ultra vires the Constitution to the extent the same prescribes  

death sentence for any one proved guilty.  The petitioner  

prayed  for  a  further  writ  quashing  the  death  sentence  

awarded to him by the trial Court, upheld by the High Court  

and  finally  affirmed  by  this  Court  in  Criminal  Appeals  

No.1396-97 of 2008. A mandamus directing commutation of  

the sentence awarded to the petitioners to imprisonment for  

life was also prayed for.

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3. The  writ  petition  aforementioned  was  eventually  

withdrawn with liberty to the petitioners to file a writ petition  

before  the  jurisdictional  High  Court.  The  Petitioners  

accordingly  filed  CWP  No.18956  of  2012  before  the  High  

Court  of  Punjab  and  Haryana  at  Chandigarh  once  again  

praying for  striking down Section 364A of IPC and for  an  

order restraining the execution of the death warrant against  

them.  Re-opening  of  the  case  of  the  petitioners  and  

commutation of the death sentence to imprisonment for life  

were also prayed for in the said petition.  A Division Bench of  

the  High  Court  of  Punjab  and  Haryana  has,  upon  

consideration,  dismissed the  petition  by  its  judgment  and  

order  dated 3rd October  2012 which is impugned in these  

appeals.

4. The High Court has taken the view that the question  

whether Section 364A of IPC was attracted and whether a  

person  found  guilty  of  an  offence  punishable  under  that  

provision could be sentenced to death without applying the  

test of ‘rarest of rare cases’ was not only available to the  

petitioners as an argument before this Court in the appeal

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filed by them but that such a plea had been raised but lost  

by them. The High Court  while saying so relied upon the  

following passage from 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..”  

   (emphasis supplied)

5. The High Court also held that the question of quantum  

of  sentence  awarded  to  the  petitioners  had  also  been  

examined by this  Court  in  the  following paragraph  of  the  

judgment delivered in the criminal appeal:

“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  

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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…”  

6. The High Court on the above reasoning concluded that  

this Court had considered the nature of the offence and its  

gravity and come to the conclusion that the same 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 petitioners in the writ petition to  

the effect that Section 364A of IPC was attracted only when  

the offence is committed against Government or a foreign  

country etc. or that no such offence was made out in case of  

the petitioners, had not found favour with this Court.  

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7. Having said that, the High court proceeded to examine  

the plea raised by the petitioners 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 then that Section 364A was  

amended to incorporate the expression “...any foreign State  

or  international  inter-governmental  organisation  or  any  

other person...” to honour the commitment made in terms of  

the said Convention. The High Court accordingly repelled the  

argument that Section 364A was intended only to take care  

of  situations  where  kidnapping  was  meant  to  coerce  the  

Government or any international organisation to do or not to  

do  a  particular  act  including  the  demand  for  payment  of  

ransom. The writ petition was dismissed on the ground that  

there was no substance in the contentions urged in support

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thereof even on merits. The  present  appeals  by  special  

leave assail the correctness of the view taken by the High  

Court.

8. Appearing for the appellants, Mr. D.K. Garg strenuously  

argued that the High Court had fallen in error in holding the  

provisions of Section 364A to be constitutionally valid and  

also that the question whether the petitioners could be found  

guilty under Section 364A and sentenced to death has been  

examined by this Court in the appeals filed by the appellants  

against  their  conviction  and  sentence.   Elaborating  the  

submissions, Mr. Garg argued that the provisions of Article  

21  of  the  Constitution  guaranteed  to  the  petitioners  a  

fundamental  right  to  life  and  liberty  and  protected  them  

against  deprivation  of  those  rights  otherwise  than  in  

accordance with the procedure prescribed by law.  He urged  

that in order to satisfy the requirement of Article 21 of the  

Constitution it was necessary not only that the deprivation  

was in accordance with a validly enacted law but also that  

such law was just and fair.  Deprivation of life and liberty on  

the basis of a law that was either unjust or unfair would,

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according to Mr.  Garg, offend the constitutional guarantee  

contained  in  Article  21.  He  contended  that  inasmuch  as  

Section 364A of IPC made even a first offender liable to be  

punished with death, it was much too harsh to be considered  

fair and reasonable.   

9. It  was  further  argued  that  the  provisions  of  Section  

364A are  ultra vires also because   a simple kidnapping for  

ransom in which the victim is released without any harm to  

him/her with or without payment of the ransom demanded  

for  his/her  release,  is  also  on  a  plain  reading  of  Section  

364A,  punishable  with  death  without  there  being  any  

guidelines  in  Section  364A  for  the  Courts  to  follow while  

determining the quantum of punishment to be awarded in a  

given case.  

10. Mr. Siddharth Luthra, learned ASG, appearing for the  

respondents per contra argued that Section 364A of IPC was  

a validly enacted piece of legislation. In the absence of any  

challenge to the legislative competence of the Parliament to  

enact the said provision, Section 364A of the Code could not  

be assailed for want of legislative competence.  As regards

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the  question  of  fairness  of  the  law,  the  argument  that  

Section 364A was unfair and hence violative of Article 21 of  

the  Constitution,  it  was  contended  that  it  was  within  the  

legislative  competence  of  the  Parliament  to  provide  

remedies  and  prescribe  punishment  for  different  offences  

depending upon the nature and gravity of such offences and  

the  societal  expectation for  weeding out  ills  that  afflict  or  

jeopardise  the  lives  of  the  citizens  and  the  security  and  

safety  of  the  vulnerable  sections  of  the  society  especially  

children who are prone to kidnapping for ransom and being  

brutally done to death if their parents are unable to pay the  

ransom amount. Mr. Luthra referred to 42nd Law Commission  

Report, The Criminal Law (Amendment) Bill 1992 introduced  

in the Rajya Sabha as also the Statement of Objects and  

Reasons  of  the  Bill  for  introduction  of  Section  364A  and  

contended that kidnapping innocent persons for ransom had  

become rampant and called for strong legislative measures  

to root out the malady by providing heavy penalties for those  

indulging  in  such  nefarious  and  barbaric  acts.  He  also  

referred to the International Convention and the Report of  

the Committee of Home Affairs in support of his submission

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that Section 364A was amended in the year 1995 to fulfil  

India’s  commitment  towards  the  international  convention  

signed by it in the year 1994 by providing for severe penalty  

for those engaged in acts of violence and terrorism against  

the  State,  any  foreign  country  or  any  international  

organisation. The provisions of Section 364A were, therefore,  

not only intended to deal with simple cases of kidnapping for  

ransom but also cases in which terrorists and other extremist  

organisations  resort  to  kidnapping  for  ransom or  to  such  

other acts only to coerce the Government to do or not to do  

something.  Judged in the historical perspective in which the  

Law Commission had recommended enactment of the law,  

and the salutary purpose which it is aimed at achieving the  

provisions  of  Section  364A  were  neither  unfair  nor  

unreasonable, argued Mr. Luthra.  

11. Constitutional  validity  of  any  Parliamentary  or  State  

legislation  is  judged  on  the  twin  tests  of  legislative  

competence of the legislature that enacts the law or on the  

ground that the legislative enactment violates a fundamental  

right guaranteed to the citizen. There is no other ground on

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which  the  constitutional  validity  of  an  enactment  may  be  

determined by a Court of law competent to do so. Mr. Luthra  

rightly argued that the challenge to the provisions of Section  

364A  of  the  IPC  is  not  founded  on  the  plea  that  the  

Parliament was not competent to enact such a law. Mr. Garg  

also fairly conceded that the petitioners have not challenged  

the provisions on the ground that the Parliament was not  

competent  to  enact  the  same.  His  challenge  to  the  

constitutional validity rests entirely on the ground that in as  

much as the same prescribes death sentence for a case of  

kidnapping for ransom the same is so harsh as to make it  

unreasonable and unfair hence violative of Article 21 of the  

Constitution of India.

12. The petitioners have been, as noticed earlier, convicted  

both under Sections 302 and 364A of the IPC and sentenced  

to death for each one of the two offences.  We, therefore,  

asked  Mr.  Garg  whether  any  juristic  exercise  aimed  at  

determining the constitutional validity of Section 364A will be  

of  any  assistance  to  the  petitioners  who  may  despite  an  

acquittal under Section 364A remain condemned to death for

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the capital offence of murder under Section 302 IPC.  Mr.  

Garg, however, argued that if Section 364A, of the Indian  

Penal  Code  were  to  be  declared  ultra  vires of  the  

Constitution, the sentence awarded to the petitioners under  

Section 302 may call for a fresh look, having regard to the  

fact that the Courts had while awarding death sentence to  

the petitioners had taken them to be guilty under both the  

provisions, which would no longer hold good, if Section 364A  

were to be held ultra vires.

13. We do not  wish to  express  any final  opinion on this  

aspect at this stage. The question whether a pronouncement  

as to the vires of Section 364A will have any impact on the  

sentence  awarded  to  the  petitioners  would  arise  only  if  

Section 364A is held to be constitutionally invalid.  It is only  

then that the Court may go into the question of the impact of  

such  a  pronouncement.   For  the  present,  what  we  have  

before us is a last ditch attempt by the petitioners to avoid  

the extreme penalty that the law provides for even the most  

heinous crime punishable under  the  code.   The  plea may  

indeed  be  in  complete  desperation  but  one  can  well

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understand such desperation among those who are waiting  

at the gallows for the hangman to put the noose around their  

neck.  Dismissal of this appeal is bound to take them a step  

closer  to  the  end.   That  apart  the  questions  raised  may  

require an authoritative answer, by a Bench of three Judges  

having regard to the fact that the death sentence awarded to  

the petitioners has been affirmed by a Bench of co-ordinate  

jurisdiction.   The  peculiar  fact  situation in which the  case  

arises and the grounds on which the provisions of Section  

364A are assailed persuade us to the view that  this case  

ought to go before a larger Bench of three Judges for hearing  

and disposal.

14. We, accordingly, refer this matter to a Bench of three  

Judges for hearing and disposal. The appellants shall, furnish  

additional set of papers within four weeks, failing which the  

Registry shall take steps to have additional copies prepared  

for the Court.  Since it is a death sentence case, we permit  

learned counsel for the parties to mention the matter before  

the larger Bench for an early hearing.   

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

     ..................…...... ………………....………..……J.

(SUDHANSU JYOTI MUKHOPADHAYA)  New Delhi July 2, 2013