Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1531-1533  OF 2015   

Vikas Yadav      …Appellant(s)

Versus

State of U.P. and Ors. Etc. Etc.              …Respondent(s)

WITH

CRIMINAL APPEAL NOS. 1528-1530  OF 2015

J U D G M E N T

Dipak Misra, J.  

The  appellants  in  this  batch  of  appeals  stand

convicted  for  the  offences  under  Sections  302,  364,  201

read with Section 34 of the Indian Penal Code (IPC).  This

Court  while  hearing  the  special  leave  petitions  on

17.08.2015 had passed the following order:-

“Delay condoned.

Page 2

2

Having heard learned senior counsel for the petitioners at great length, we are of the view, that the  impugned  orders  call  for  no  interference whatsoever  insofar  as  the  conviction  of  the petitioners  is  concerned.   The  conviction  of  the three petitioners, as recorded by the courts below, is accordingly upheld.

Issue  notice,  on  the  quantum  of  sentence, returnable after six weeks.”

2. On 16.06.2015 leave was granted.  Thus, we are only

concerned with the legal defensibility and the justifiability of

the imposition of sentence.

3. The arguments in these appeals commenced on issues

of law. Mr. U.R. Lalit  and Mr. Shekhar Naphade, learned

senior  counsel  appearing  for  the  appellant  in  Criminal

Appeal  Nos.  1531-1533  of  2015  and  Mr.  Atul  Nanda,

learned  senior  counsel  appearing  for  the  appellant  in

Criminal  Appeal  Nos.  1528-1530 of  2015 questioned  the

propriety of the sentence as the High Court has imposed a

fixed  term sentence,  i.e.,  25  years  for  the  offence  under

Section 302 IPC and 5 years for offence under Section 201

IPC with the stipulation that both the sentences would run

consecutively. It is apt to note here that separate sentences

Page 3

3

have  been imposed in respect  of  other  offences  but  they

have been directed to be concurrent.  After  advancing the

arguments relating to the jurisdiction of the High Court as

well  as  this  Court  on  imposition  of  fixed  term/period

sentence,  more  so when the  trial  court  has  not  imposed

death sentence, the learned counsel argued that the factual

score  in  the  instant  case  did  not  warrant  such  harsh

delineation  as  a  consequence  disproportionate  sentences

have been imposed.

4. Keeping  in  view  the  chronology  of  advancement  of

arguments, we think it apt to deal with the jurisdictional

facet.   If  we  negative  the  proposition  advanced  by  the

learned counsel for the appellants,  then only we shall  be

required to proceed to deal with the facts as requisite to be

stated for  the purpose of  adjudicating the  justifiability  of

imposition  of  such  sentence.   If  we  accede  to  the  first

submission, then the second aspect would not call for any

deliberation.  At this juncture, it is necessary to state that

the learned trial judge by order dated 30.05.2008 sentenced

Vikas Yadav and Vishal Yadav to life imprisonment as well

Page 4

4

as fine  of  one  lakh each under  Section 302 IPC and,  in

default of payment of fine, to undergo simple imprisonment

for  one  year.   They  were  sentenced  to  undergo  simple

imprisonment for ten years and fine of Rs. 50,000/- each

for their conviction under Section 364/34 IPC, in default to

undergo simple imprisonment for six months and rigorous

imprisonment for five years and fine of Rs. 10,000/- each

under Section 201/34 IPC, in default, simple imprisonment

for  three  months.   All  sentences  were  directed  to  run

concurrently.     Sukhdev Yadav @ Pehalwan who was tried

separately because of his abscondence in SC No. 76 of 2008

was convicted for the offences under Sections 302/364/34

IPC and Section 201 and by order dated 12.07.2011, he was

sentenced  to  undergo  life  imprisonment  and  fine  of  Rs.

10,000/- for commission of the offence under Section 302

IPC, in default, to undergo rigorous imprisonment for two

years; rigorous imprisonment for seven years and fine of Rs.

5,000/- for  commission of  the offence under Section 364

IPC,  in  default,  to  suffer  rigorous  imprisonment  for  six

months; rigorous imprisonment for three years and fine of

Page 5

5

Rs.  5,000/- for  his  conviction under  Section 201 IPC,  in

default,  to  undergo further rigorous imprisonment for  six

months.  All sentences were directed to be concurrent.  

5. Be it noted, the prosecution, – State of NCT of Delhi

preferred  an  appeal  under  Section  377  CrPC  for

enhancement of sentence of imprisonment of life to one of

death  for  the  offence  under  Section  302 IPC.   The  High

Court addressed to number of issues, namely, (a) statutory

provisions  and  jurisprudence  regarding  imposition  of  the

death  penalty;  (b)  death  sentence  jurisprudence  –

divergence in views; (c)  life imprisonment – meaning and

nature of; (d) the authority of the judiciary to regulate the

power of the executive to remit the sentence or to put in

other  words  jurisdiction  of  the  court  to  direct  minimum

term sentence in excess of imposition of 14 years; (e) if there

are convictions for multiple offences in one case, does the

court  have  the  option  of  directing  that  the  sentences

imposed  thereon  shall  run  consecutively   and  not

concurrently; (f) honour killing – whether penalty of only the

death sentence; (g) contours of the jurisdiction of the High

Page 6

6

Court to enhance a sentence imposed by the trial court and

competency to pass orders under Section 357 of the CrPC

in  the  appeal  by  the  State  or  revision  by  a  complainant

seeking enhancement of sentence; (h) sentencing procedure

and pre-sentencing hearing nature of; (i) concerns for the

victims – award of compensation to heal and as a method of

reconciling victim to the offender; (j) State’s liability to pay

compensation;  (k)  fine  and  compensation  –  constituents,

reasonability  and  adequacy;  (l)  sentencing  principles;  (m)

jurisdiction of the appellate court while considering a prayer

for enhancement of the sentence; (n) if not death penalty,

what would be an adequate sentence in the present case;

and (o) what ought to be the fitnes in the present case.  

6. Apart  from  the  said  aspects,  the  High  Court  also

addressed to certain aspects which are specific to the case

at hand to which we will advert to at a later stage.

7. The High Court, after addressing the aspects which we

have  catalogued  and  some  other  fact  specific  issues,

imposed the following sentences:-

Page 7

7

“881.  In view of the above discussion, we modify and enhance the sentence imposed by the judgments dated 30th May, 2008 upon the defendants  Vikas  Yadav,  Vishal  Yadav  and  12th July,  2011  upon Sukhdev Yadav and direct that they shall  be liable to undergo the following sentences :-

(I)

For commission of  offences under

Sentences  awarded  to  each of  Vikas  Yadav  &  Vishal Yadav

Sentence awarded to Sukhdev Yadav

Section 302/34 IPC

Life imprisonment which shall be  25  years  of  actual imprisonment  without consideration of remission, and fine of Rs. 50 lakh each

Life  imprisonment which  shall  be  20 years  of  actual imprisonment  without consideration  of remission,  and fine of Rs.10,000/-

Upon  default  in  payment  of fine,  they  shall  be  liable  to undergo  rigorous imprisonment of 3 years.   

Upon  default  in payment  of  fine,  he shall  be  liable  to undergo  simple imprisonment  for  one month.

Section 364/34 IPC

Rigorous imprisonment  for  10 years with a fine of Rs.2 lakh each   

10  years  rigorous imprisonment  with fine of Rs.5,000/-

Upon  default  in  payment  of fine,  they  shall  be  liable  to undergo  rigorous imprisonment for 6 months  

Upon  default  in payment  of  fine,  he shall  be  liable  to undergo  simple imprisonment  for  15 days

Section 201/34 IPC

Rigorous  imprisonment  for  5 years and a fine Rs.2 lakh each

5  years  rigorous imprisonment  with fine of Rs.5,000/-

Upon  default  in  payment  of fine,  they  shall  be  liable  to undergo  rigorous imprisonment for 6 months

Upon  default  in payment  of  fine,  he shall  be  liable  to undergo  simple imprisonment  for  15 days

(II) It  is  directed  that  the  sentences  for  conviction  of  the  offences under  Section  302/34  and  Section  364/34  IPC  shall  run

Page 8

8

concurrently.  The  sentence  under  Section  201/34  IPC  shall  run consecutively to the other sentences for the discussion and reasons in paras 741 to 745 above.  

(III) The amount of the fines shall be deposited with the trial court within a period of six months from today.   (IV)   We further direct that the fine amounts of Rs.50,00,000/- of each of Vikas Yadav and Vishal Yadav when deposited with the trial court, are forthwith disbursed in the following manner:  

(i) To the Government of Uttar Pradesh towards  investigation,  prosecution and defence of the cases with regard to FIR No.192/2002 P.S. Ghaziabad.

Rs.5,00,000/-  from the deposit of the fine of  each  of  the defendants

(ii) To the Government  of  NCT of  Delhi towards  prosecution,  filing  and defence of litigation, administration of courts  and  witness  protection  with regard  to  FIR  No.192/2002  P.S. Ghaziabad

Rs.25,00,000/-  from the deposit of the fine of  each  of  the defendants

(iii) To  Nilam  Katara  towards  the  costs incurred  by  her  in  pursuing  the matter,  filing  petitions  and applications as well as defending all cases  after  16th/17th  February, 2002 with regard to FIR No.192/2002 in all courts.

Rs.20,00,000/-  from the deposit of the fine of  each  of  the defendants

(V) Amount  of  fines  deposited  by  Sukhdev  Yadav  and  other  fines deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the Delhi  Legal  Services  Authority  to  be  utilised  under  the  Victims Compensation Scheme.  

(VI) In case an application for parole or remission is moved by the defendants before the appropriate government, notice thereof shall be given  to  Nilam  Katara  as  well  as  Ajay  Katara  by  the  appropriate government and they shall also be heard with regard thereto before passing of orders thereon.  

(VII) So far as Vikas Yadav is concerned, we also issue the following directions:

(i) The period for the admission in AIIMS from 10th October, 2011 to 4th November, 2011 (both days included) shall not be counted as a

Page 9

9

period for which he has undergone imprisonment.  His records and nominal rolls shall be accordingly corrected by the jail authorities. (ii) Vikas Yadav shall make payments of the following amounts to the Government of NCT of Delhi:  

(i) Amounts paid to AIIMS : Rs.50,750/- (ii) Towards security deployment  

during AIIMS : Rs.1,20,012/-

(iii) OPD visits : Rs.50,000/- (iv) Taxi fare : Rs.18,500/-

Total : Rs.2,39,262/-

(VIII) So far as Vishal Yadav is concerned, we direct as hereafter :-

(i) The periods of the admissions in the Batra Hospital totalling 320 days [32 days (from 7th July, 2008 to 7th August, 2008); 24 days (from 14th August,  2008 to  6th September,  2008),  53 days (24th October, 2008 to 15th December, 2008); 100 days (from 25th February, 2009 to 6th June, 2009);  71 days (from 7th October, 2009 to 16th December, 2009);  36 days (from 29th September, 2010 to 3rd November, 2010); 4 days (from 14th October, 2011 to 17th October, 2011)] shall not be counted  as  a  period  which  he  has  undergone  imprisonment.  His records and nominal rolls shall be accordingly corrected by the jail authorities.  

(ii) Vishal Yadav shall make payments of the following amounts to the Government of NCT of Delhi:

(i) Provision  of  security  during  the above seven hospital  admissions post conviction

: Rs.14,75,184/-

(ii) During OPD hospital visits : Rs.50,000/- (iii) Post conviction visits on taxi fare : Rs.14,700/-

Total : Rs.15,39,884/-

(IX) The  amounts  directed  to  be  paid  by  Vishal  Yadav  and  Vikas Yadav at Sr. Nos.(VI) and (VII) above shall be deposited within four months of the passing of the present order.  

(X) In the event of the failure to deposit the amount as directed at Sr. Nos.(VI),  (VII)  and (VIII),  the defaulting defendant (Vikas Yadav and Vishal Yadav) shall be liable to undergo rigorous imprisonment of one year.  It  is  made  clear  that  these  directions  are  in  addition  to  the substantive sentences imposed upon them.”

Page 10

10

8. We think it appropriate to deal with the aspect of legal

permissibility  of  the  imposition  of  sentence  first  as  the

learned  senior  counsel  appearing  for  the  appellants  had

argued quite astutely with regard to the non-acceptability of

such fixed term sentences and other facets relating to it.

After we answer the said issue, if  needed, we shall  dwell

upon  the  sustainability  and  warrantableness  of  the

sentences in the facts of the case.

9. Learned  senior  counsel  for  the  appellants  have

advanced  the  following  propositions  to  bolster  the  first

stand:-

(i)  When  the  Indian  Penal  Code  provides  for  only  two

punishments, i.e., imprisonment for life or death, the court

by  judge-made  law  cannot  introduce  a  third  category  of

punishment.

(ii)  The  prescription  of  third  category  of  punishment  is

contrary to Sections 28 and 386 CrPC and Section 302 IPC.

(iii)  Prescription  of  sentence  is  within  the  domain  of  the

legislature and the court  can only  impose such sentence

Page 11

11

what has been provided for by the legislature and not invent

one.

(iv) Wherever the legislature has thought it appropriate, it

has provided sentences by providing certain years, such as,

offences punishable  under Sections 376A, 376D and 392

IPC;  Section  20  of  the  Narcotic  Drugs  and  Psychotropic

Substances Act, 1985; and when it is not provided for in the

IPC in respect of Section 302 IPC, the court cannot impose

a third category of sentence as that would tantamount to

legislation by the judiciary.  

(v)  When the court  imposes a third category of  sentence,

there is either express or implied direction for not granting

the remission as provided under Section 433-A after expiry

of 14 years which is legally not permissible inasmuch as

this  Court  in  exercise  of  power  under  Article  142 of  the

Constitution cannot direct a statutory provision to be kept

in abeyance as a mode of sentencing structure.

Page 12

12

(vi)   The Constitution Bench decisions in  K.M. Nanavati

v.  State  of  Bombay1and Sarat  Chandra  Rabha  and

others  v.  Khagendranath  Nath  and  others2 have  not

been considered by the majority in  Union of India v. V.

Sriharan alias Murugan  and  others3 and  it,  therefore,

requires reconsideration.

(vii) When the trial court has imposed the life sentence and

the question of  commutation does  not  arise,  as a  logical

corollary, imposition of fixed term sentence is impermissible

as has been held in  Sahib Hussain alias Sahib Jan v.

State  of  Rajasthan4 and Gurvail  Singh alias  Gala v.

State of Punjab5.  In essence, in the absence of a death

sentence, a fixed term sentence cannot be imposed.  The

appellate  court,  assuming has  the  authority,  can impose

only such sentence which could have been imposed by the

trial court as has been clearly held in  Jagat Bahadur v.

1

 AIR 1961 SC 112 2 AIR 1961 SC 334 3 (2016) 7 SCC 1 4 (2013) 9 SCC 778 5 (2013) 10 SCC 631

Page 13

13

State  of  Madhya  Pradesh6 and  in  Shankar  Kerba

Jadhav and others v. The State of Maharashtra7.

(viii) The  Court  when  imposes  sentence  by  saying  “fixed

term sentence”,  it  takes away the power of  the executive

which  is  constitutionally  not  permissible  as  per  the

pronouncements  in  K.M.  Nanavati  (supra),  Sarat

Chandra Rabha  (supra) and  A.R. Antulay v. R.S. Naik

and another8.

(ix) There is remotely any warrant to direct the sentence for

life  and sentence imposed under  Section 201 IPC to  run

consecutively,  and it  is a palpable error which cannot be

countenanced,  and  in  fact,  it  runs  counter  to  the

Constitution Bench decision in Muthuramalingam & Ors.

v. State represented by Insp. of Police9.

(ix)  The High Court has fallen into grave error by imposing

20  years  of  sentence  on  Sukhdev  Yadav,  whereas  Vikas

Yadav and Vishal Yadav had been sentenced for 25 years

which demonstrates total non-application of mind.  

6 AIR 1966 SC 945 7 AIR 1971 SC 840 8  (1988) 2 SCC 602 9 2016 (7) SCALE 129

Page 14

14

(x) The issue of enhancement of sentence and fixed term

was  not  referred  to  the  Constitution  Bench  but  the

Constitution Bench has dealt with the same and, therefore,

the  decision  in  V.  Sriharan (supra)  suffers  from

impropriety.  

10. Mr. Dayan Krishnan, learned senior counsel appearing

for the State of  NCT Delhi, in his turn, submits that the

judgment  rendered  by  the  Constitution  Bench  in  V.

Sriharan  (supra)  is  absolutely  correct  and  is  a  binding

precedent  from  all  spectrums  and  does  not  require

reconsideration. Learned senior counsel further argued that

the judgment rendered by the Constitution Bench does not

run  counter  to  the  principles  set  out  in  the  earlier  two

judgments  in  K.  Nanavati  (supra) and  Shankar  Kerba

Jadhav  (supra)  because  the  said  judgments  have  been

rendered  in  altogether  different  contexts  and the  opinion

expressed therein has to be understood regard being had to

the  factual  score  that  arose  therein.   According  to  the

learned counsel for the State, the constitutional courts have

power to pass fixed term sentence in the interest of justice.

Page 15

15

Defending  the  imposition  of  sentence  in  the  case,  Mr.

Krishnan would submit that when the State had preferred

an  appeal  for  enhancement  of  sentence,  i.e.,  from

imprisonment of life to death sentence, the decision of the

High Court is absolutely flawless.  It is argued by him that

the direction for the life sentence and the sentence imposed

under Section 201 IPC to be consecutive and not  to run

concurrently cannot be found fault with as the High Court

has ascribed adequate  reasons for  the same and it  is  in

consonance  with  the  principle  stated  in

Muthuramalingam (supra)  and  if  there  is  any  deviation

therein, the same can be rectified by this Court.

11. Ms. Aparajita Singh, learned counsel appearing for the

informant,  supported  the  stand  of  the  State  and

emphasized  that  in  a  crime  of  honor  killing  stringent

punishment deserves to be imposed.

12. Presently,  we  shall  proceed  to  deal  with  the

contentions,  and we make it  clear the delineation thereof

shall not be in strict seriatim as the contentions in a way

overlap.  Section 28 CrPC reads as follows:-

Page 16

16

“28.  Sentences  which  High  Courts  and Sessions Judges may pass.—

(1)  A  High  Court  may  pass  any  sentence authorised by law.

(2)  A  Sessions  Judge  or  Additional  Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge  shall  be  subject  to  confirmation  by  the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death  or  of  imprisonment  for  life  or  of imprisonment for a term exceeding ten years.”

13. The submission of the learned senior counsel for the

appellants is that  the High Court can pass any sentence

“authorised by law” and a Sessions Judge or an Additional

Sessions Judge may pass any sentence authorised by law

but for any sentence of death passed by any such Judge

shall  be  subject  to  confirmation  by  the  High Court  and,

therefore,  no  court  can  impose  a  sentence  if  it  is  not

authorised by law.  The fulcrum of the submission is that

the said provision is substantive in nature and it is not in

the realm of adjective law.  In this context,  our attention

has been drawn to Section 386 CrPC. The said provision

reads as follows:-

Page 17

17

“386.  Power  of  the  Appellate  Court.— After perusing such record and hearing the appellant or  his  pleader,  if  he  appears,  and  the  Public Prosecutor,  if  he  appears,  and  in  case  of  an appeal  under  section  377  or  section  378,  the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in  an  appeal  from  an  order  or  acquittal, reverse such order and direct that further inquiry be  made,  or  that  the  accused  be  re-tried  or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge  the  accused,  or  order  him  to  be re-tried  by  a  Court  of  competent  jurisdiction subordinate  to  such  Appellate  Court  or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the  sentence,  so  as  to  enhance  or  reduce  the same; (d) in  an  appeal  from any  other  order,  alter  or reverse such order; (e) make any amendment or any consequential or incidental  order  that  may  be  just  or  proper; Provided that the sentence shall not be enhanced unless  the  accused  has  had  an  opportunity  of

Page 20

20

of  sentence for  a fixed term is contrary to the procedure

established by law and hence, impermissible.  

17. We shall  first see how the Constitution Bench in V.

Sriharan  (supra) has dealt with this aspect. The

three-Judge Bench in Union of India v. V. Sriharan alias

Murugan  and  others10 framed  certain  questions  for

consideration by the Constitution Bench. The Constitution

Bench  in  V.  Sriharan  (supra)  reproduced  the  said

questions and thereafter formulated the core questions for

answering the same.  After adverting to the same, the Court

observed  that  the  issues  raised  were  of  utmost  critical

concern  for  the  whole  country  as  the  decision  on  the

questions  would  determine  the  procedure  for  awarding

sentence and the criminal justice system.  Thereafter, the

Court referred to the authority in Swamy Shraddananda

(2)  v.  State  of  Maharashtra11 and  framed the  following

questions:-

“2.1. Maintainability  of  this  writ  petition under Article  32  of  the  Constitution  by  the  Union  of India.

10   (2014) 11 SCC 1 11  (2008) 13 SCC 767

Page 21

21

2.2. (i) Whether imprisonment for life means for the  rest  of  one’s  life  with  any  right  to  claim remission?

(ii) Whether as held in  Shraddananda case (2),  a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission can be imposed?

2.3. Whether  the  appropriate  Government  is permitted  to  grant  remission  under  Sections 432/433 of the Criminal  Procedure Code, 1973 after  the  parallel  power  was  exercised  under Article 72 by the President and under Article 161 by the Governor of the State or by the Supreme Court  under  its  constitutional  power(s)  under Article 32? 2.4. Whether the Union or the State has primacy for  the  exercise  of  power  under  Section  432(7) over the subject-matter enlisted in List III of the Seventh Schedule for grant of remission? 2.5. Whether  there  can  be  two  appropriate Governments under Section 432(7) of the Code? 2.6. Whether the power under Section 432(1) can be  exercised  suo  motu,  if  yes,  whether  the procedure  prescribed  under  Section  432(2)  is mandatory or not? 2.7. Whether  the  expression  “consultation” stipulated in Section 435(1) of the Code implies “concurrence”?”

18. We have reproduced the entire paragraph for the sake

of completeness and understanding.  The issues that have

been raised by Mr.  Lalit  and Mr. Naphade fundamentally

relate  to  the  issues  in  para  2.2.  The  majority  in  the

Page 22

22

Constitution Bench, after referring to the decisions in Maru

Ram v.  Union  of  India  and  others12,  Gopal  Vinayak

Godse v. State of Maharashtra and others13 and  State

of Madhya Pradesh v. Ratan Singh and others14, opined

that the  legal  position  is  quite  settled  that  the  life

imprisonment only means the entirety of the life unless it is

curtailed by remissions validly granted under the Criminal

Procedure Code by the appropriate  Government or under

Articles 72 and 161 of  the Constitution by the Executive

Head  viz.  the  President  or  the  Governor  of  the  State

respectively.  The Court referred to the decision in  Ashok

Kumar  alias  Golu  v.  Union  of  India  and  others15,

wherein  it  was  specifically  ruled  that  the  decision  in

Bhagirath v. Delhi Administration16 does not run counter

to  Godse (supra)  and  Maru Ram (supra).   The  relevant

paragraph  from  Ashok  Kumar (supra)  is  reproduced

below:-

12  (1981) 1 SCC 107 13  AIR 1961 SC 600 14  (1976) 3 SCC 470 15  (1991) 3 SCC 498 16   (1985) 2 SCC 580

Page 23

23

“15. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person  has  been  sentenced  to  imprisonment for  life  the remissions earned by him during his  internment  in  prison  under  the  relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence  is  remitted  under  Section  432,  in which case the remission would be subject to limitation  of  Section  433-A  of  the  Code,  or constitutional power has been exercised under Articles  72/161  of  the  Constitution.  In Bhagirath  case the  question  which  the Constitution Bench was required to  consider was  whether  a  person  sentenced  to imprisonment for life can claim the benefit of Section  428  of  the  Code  which,  inter  alia, provides for setting off the period of detention undergone  by  the  accused  as  an  undertrial against  the  sentence  of  imprisonment ultimately awarded to him”.  

19. Referring  to  Section  57  IPC,  the  decision  in  Ashok

Kumar (supra) reiterated the legal position as under:-

‘9. … The provision contained in Section 57 that imprisonment  for  life  has  to  be  reckoned  as equivalent to imprisonment for 20 years is for the purpose  of  calculating  fractions  of  terms  of punishment. We cannot press that provision into service for a wider purpose.’

20. It has been held in V. Sriharan (supra) that the said

observations  are  consistent  with  the  ratio  laid  down  in

Godse (supra) and Maru Ram (supra).

Page 24

24

21. Thereafter, the majority in V. Sriharan (supra) quoted

a  paragraph  from  Bhagirath’s case   (supra)  which

pertained to set-off under Section 428 CrPC which is to the

following effect:-

“11. … The question of setting off the period of detention  undergone  by  an  accused  as  an undertrial  prisoner  against  the  sentence  of  life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or  Section  433  of  the  Code.  In  the  absence  of such  order,  passed  generally  or  specially,  and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according  to  the  rule  in  Gopal  Vinayak  Godse, imprisonment for the remainder of life.”

22. Thereafter,  the  Court  in  V.  Sriharan (supra)

observed:-

“We fail  to  see any departure from the ratio  of Godse  case;  on  the  contrary  the  aforequoted passage clearly shows approval of that ratio and this  becomes further  clear  from the  final  order passed  by  the  Court  while  allowing  the appeal/writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them,  subject  to  the  provisions  contained  in Section  433-A  and,  ‘provided  that  orders  have been passed by the appropriate authority under Section  433  of  the  Criminal  Procedure  Code’.

Page 25

25

These  directions  make  it  clear  beyond  any manner  of  doubt  that  just  as  in  the  case  of remissions so also in the case of set-off the period of  detention  as  undertrial  would  enure  to  the benefit  of  the  convict  provided  the  appropriate Government has chosen to pass an order under Sections  432/433  of  the  Code.  The  ratio  of Bhagirath case, therefore, does not run counter to the ratio of this Court in Godse or Maru Ram.

xxxxx xxxxx

61. Having  noted  the  abovereferred  to  two Constitution Bench decisions in Godse and Maru Ram which  were  consistently  followed  in  the subsequent decisions in  Sambha Ji Krishan Ji17, Ratan  Singh,  Ranjit  Singh18,  Ashok  Kumar and Subash  Chander19.  The  first  part  of  the  first question  can  be  conveniently  answered  to  the effect  that  imprisonment  for  life  in  terms  of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of  the life  of the  prisoner  subject,  however,  to  the  right  to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of  the State and also as provided under  Section 432 of  the Criminal Procedure Code”.  

23. After so stating, the majority addressed to the concept

of remission.  It opined that:-

“As far as remissions are concerned, it consists of two  types.  One  type  of  remission  is  what  is earned by a prisoner under the Prison Rules or

17  (1974) 1 SCC 196 18  (1984) 1 SCC 31 19  (2001) 4 SCC 458

Page 26

26

other  relevant  rules  based  on  his/her  good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the  appropriate  Government  in  exercise  of  its power  under  Section  432  of  the  Criminal Procedure  Code.  Therefore,  in  the  latter  case when a remission of the substantive sentence is granted under Section 432, then and then only giving  credit  to  the  earned  remission  can  take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of  one’s  life,  unless  there  is  a  commutation  of such  sentence  for  any  specific  period,  there would be no scope to count the earned remission. In  either  case,  it  will  again  depend  upon  an answer to the second part of  the first  question based  on  the  principles  laid  down  in  Swamy Shraddananda (2).”

24. After dwelling upon the said aspect, the Court referred

to the principles stated in paragraphs 91 and 92 in Swamy

Shraddananda (2)  (supra).   It  adverted  to  the  facts  in

Swamy Shraddananda (2)  (supra) and analysed that this

Court  had  made  a  detailed  reference  to  the  decisions  in

Bachan Singh v. State of Punjab20,  Machhi Singh and

others  v.  State  of  Punjab21,  and  Jagmohan  Singh  v.

State of U.P.22 where the principle of rarest of the rare case

was formulated.  After referring to the said decisions, the 20 (1980) 2 SCC  684 21  (1983) 3 SCC 470 22  (1973) 1 SCC 20

Page 27

27

majority reproduced paragraphs 34, 36, 43, 45, and 47 of

Swamy Shraddananda (2) (supra) and came to hold that:-

“66. After  noting  the  above  principles, particularly culled out from the decision in which the  very  principle,  namely,  “the  rarest  of  rare cases”,  or an “exceptional  case” or  an “extreme case”, it was noted that even thereafter, in reality in later  decisions neither the rarest of  the rare case principle nor  Machhi Singh categories were followed  uniformly  and  consistently.  In  this context,  the learned Judges also noted some of the decisions, namely,  Aloke Nath Dutta v.  State of W.B.23 This Court in Swamy Shraddananda (2) also made a reference to a report called “Lethal Lottery,  The  Death  Penalty  in  India”  compiled jointly  by  Amnesty  International  India  and People’s  Union  for  Civil  Liberties,  Tamil  Nadu, and Puducherry wherein a study of the Supreme Court  judgments  in  death  penalty  cases  from 1950 to 2006 was referred to and one of the main facets made in the Report (Chapters 2 to 4) was about  the  Court’s  lack  of  uniformity  and consistency  in  awarding  death  sentence.  This Court  also  noticed  the  ill  effects  it  caused  by reason of such inconsistencies and lamented over the  same  in  the  following  words  in  para  52: [Swamy Shraddananda (2) case, SCC p. 790]

“52.  The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked  imbalance  in  the  end  results.  On the one hand there appears a small band of cases in which the murder convict is sent to the  gallows  on  confirmation  of  his  death penalty by this Court and on the other hand

23  (2007) 12 SCC 230

Page 28

28

there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of  the  deficiencies  in  the  criminal  justice system. Thus, the overall larger picture gets asymmetric  and  lopsided  and  presents  a poor  reflection  of  the  system  of  criminal administration of justice. This situation is a matter of concern for this Court and needs to be remedied.”

25. The larger Bench endorsed the anguish expressed by

the  Court  and  opined  that  the  situation  is  a  matter  of

serious concern for  this  Court  and it  wished  to  examine

whether the approach made thereafter by this Court does

call  for  any  interference  or  change  or  addition  or  mere

confirmation.   Be  it  noted,  the  three-Judge  Bench  in

Swamy Shraddananda (supra)  took  note  of  the  plan

devised by the accused, the betrayal of trust, the magnitude

of criminality and the brutality shown in the commission of

the ghastly crime and the manner in which the deceased

was sedated and buried while she was alive.  The Court,

taking into consideration the materials brought on record in

Page 29

29

entirety, imposed the sentence of fixed term imprisonment

instead of sentence of death.   

26. The  issue  arose  before  the  Constitution  Bench with

regard to the mandate of Section 433 CrPC.  The majority

took note of the fact that the said provision was considered

at length and detailed reference was made to Sections 45,

53, 54, 55, 55A, 57 and other related provisions in the IPC

in  Swamy  Shraddananda(2) (supra)  to  understand  the

sentencing procedure prevalent  in the Court.   Thereafter,

the  majority  reproduced paragraphs  91  and 92 from the

said  judgment  which  we  think  are  required  to  be

reproduced to appreciate the controversy:-

“91. The legal position as enunciated in  Kishori Lal24,  Gopal  Vinayak  Godse,  Maru  Ram,  Ratan Singh and Shri Bhagwan25 and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special  category for  the very few  cases where the death penalty might be substituted by the  punishment  of  imprisonment  for  life  or imprisonment  for  a  term in  excess  of  fourteen years  and  to  put  that  category  beyond  the application of remission.

92. The matter may be looked at from a slightly different angle. The issue of sentencing has two

24 Kishori Lal v. King Emperor, 1914 SCC OnLine PC 81 25 (2001) 6 SCC 296

Page 30

30

aspects. A sentence may be excessive and unduly harsh  *or  it  may  be  highly  disproportionately inadequate*.  When  an  appellant  comes  to  this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case  just  falls  short  of  the  rarest  of  the  rare category  and  may  feel  somewhat  reluctant  in endorsing the death sentence. But at the same time, having regard to the nature of  the crime, the Court may strongly feel that a sentence of life imprisonment  subject  to  remission  normally works out to a term of 14 years would be grossly disproportionate  and  inadequate.  What  then should  the  Court  do?  If  the  Court’s  option  is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court  may  feel  tempted  and  find  itself  nudged into endorsing the death penalty. Such a course would  indeed  be  disastrous.  A  far  more  just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact,  lawfully  belongs to the Court i.e.  the vast hiatus  between  14  years’  imprisonment  and death. It needs to be emphasised that the Court would  take  recourse  to  the  expanded  option primarily  because  in  the  facts  of  the  case,  the sentence  of  14  years’  imprisonment  would amount to no punishment at all.”

[Emphasis supplied]

27. Thereafter,  the  majority  adverted  to  the  concurring

opinion of Fazal Ali, J. in Maru Ram’s case and reproduced

copiously from it and opined thus:-

Page 31

31

“Keeping the above hard reality in mind, when we examine the issue,  the question is  “whether  as held in  Shraddananda (2),  a special category of sentence; instead of death; for a term exceeding 14  years  and  putting  that  category  beyond application of remission is good in law? When we analyse the issue in the light of the principles laid down  in  very  many  judgments  starting  from Godse,  Maru Ram,  Sambha Ji Krishan Ji,  Ratan Singh,  it  has  now  come  to  stay  that  when  in exceptional cases, death penalty is altered as life sentence,  that  would  only  mean  rest  of  one’s lifespan”.

28. At  that  juncture,  the issue arose with regard to the

interpretation of Section 433-A CrPC.  In that context, the

majority opined:-

“In this  context,  the  submission of  the  learned Solicitor General on the interpretation of Section 433-A CrPC assumes significance. His contention was  that  under  Section  433-A  CrPC  what  is prescribed is only the minimum and, therefore, there  is  no  restriction  to  fix  it  at  any  period beyond  14  years  and  up  to  the  end  of  one’s lifespan.  We  find  substance  in  the  said submission. When we refer to Section 433-A, we find that the expression used in the said section for the purpose of grant of remission relating to a person  convicted  and  directed  to  undergo  life imprisonment,  it  stipulates  that  “such  person shall not be released from prison unless he had served  at least fourteen years of  imprisonment” (emphasis  supplied).  Therefore,  when  the minimum imprisonment is prescribed under the statute,  there  will  be  every  justification for  the court which considers the nature of  offence for

Page 32

32

which conviction is imposed on the offender for which  offence  the  extent  of  punishment  either death  or  life  imprisonment  is  provided  for,  it should  be  held  that  there  will  be  every justification and authority for the court to ensure in  the  interest  of  the  public  at  large  and  the society,  that  such  person  should  undergo imprisonment for a specified period even beyond 14 years without any scope for remission. In fact, going by the caption of the said Section 433-A, it imposes a restriction on powers of remission or commutation  in  certain  cases.  For  a  statutory authority  competent  to  consider  a  case  for remission after the imposition of punishment by court  of  law it  can be  held  so,  then a  judicial forum  which  has  got  a  wider  scope  for considering the nature of offence and the conduct of the offender including his   mens rea   to bestow its  judicial  sense and direct that  such offender does  not  deserve  to  be  released  early  and required to be kept in confinement for a longer period,  it  should  be  held  that  there  will  be  no dearth in the authority for exercising such power in  the  matter  of  imposition  of  the  appropriate sentence befitting the criminal act committed by the convict.”

(Emphasis Supplied)

29. As  we  notice,  there  has  been  advertence  to  various

provisions of IPC, namely, Sections 120-B(1), 121, 132, 194,

195-A, 302, 305, 307 (Second Part), 376-A, 376-E, 396 and

364-A and certain other provisions of other Acts.  The Court

observed that death sentence is an exception rather than a

rule and where even after applying such great precautionary

Page 33

33

prescription  when  the  trial  courts  reach  a  conclusion  to

impose  the  maximum  punishment  of  death,  further

safeguards are provided under the Criminal Procedure Code

and the special Acts to make a still more concretised effort

by  the  higher  courts  to  ensure  that  no  stone  is  left

unturned  before  the  imposition  of  such  capital

punishments.  After so stating, the majority referred to the

report of  Justice Malimath Committee and Justice Verma

Committee, and in that context, observed that:-

“91. We also note that when the Report of Justice Malimath Committee was submitted in 2003, the learned Judge and the members did not have the benefit  of  the  law  laid  down  in  Swamy Shraddananda  (2).  Insofar  as  Justice  Verma Committee  Report  of  2013  is  concerned,  the amendments introduced after the said Report in Sections 370(6), 376-A, 376-D and 376-E, such prescription stating that life imprisonment means the entirety of the convict’s life does not in any way conflict with the well-thought out principles stated  in  Swamy  Shraddananda  (2).  In  fact, Justice Verma Committee Report only reiterated the proposition that  a life  imprisonment means the whole of the remaining period of the convict’s natural  life  by  referring  to  Mohd.  Munna26, Rameshbhai  Chandubhai  Rathod  (2) v.  State  of Gujarat27 and State of U.P. v. Sanjay Kumar28 and nothing more. Further, the said amendment can

26  (2005) 7 SCC 764 27  (2011) 2 SCC 764 28  (2012) 8 SCC 537

Page 34

34

only be construed to establish that there should not be any reduction in the life sentence and it should  remain  till  the  end  of  the  convict’s lifespan.

30. The purpose of  referring to the aforesaid analysis is

only to understand the gravity and magnitude of a case and

the duty of the Court regard being had to the precedents

and also the sanction of law.  

31. Dealing with the procedure as a substantive part, the

majority opined that:-

“Such  prescription  contained  in  the  Criminal Procedure  Code,  though  procedural,  the substantive part rests in the Penal Code for the ultimate  confirmation  or  modification  or alteration  or  amendment  or  amendment  of  the punishment.  Therefore, what is apparent is that the  imposition  of  death  penalty  or  life imprisonment is substantively provided for in the Penal Code, procedural part of it is prescribed in the  Criminal  Procedure  Code  and  significantly one  does  not  conflict  with  the  other.  Having regard to such a dichotomy being set out in the Penal  Code  and  the  Criminal  Procedure  Code, which in many respects to be operated upon in the adjudication of a criminal case, the result of such thoroughly defined distinctive features have to  be  clearly  understood  while  operating  the definite  provisions,  in particular,  the provisions in  the  Penal  Code  providing  for  capital punishment  and  in  the  alternate  the  life imprisonment”.

[Underlining is ours]

Page 35

35

32. We need not advert to other aspects that have been

dwelt  upon  by  the  Constitution  Bench,  for  we  are  not

concerned with the same.  The submission of the learned

senior  counsel  for  the  appellants  is  that  there  is  an

apparent error in the Constitution Bench decision as it has

treated the provisions of CrPC as procedural.  On a reading

of  the  decision,  it  is  manifest  that  the  majority  has

explained how there is cohesive co-existence of CrPC and

IPC.  We may explain it in this manner.  Section 28 CrPC

empowers the court to impose sentence authorized by law.

Section 302 IPC authorizes the court to either award life

imprisonment or death.  As rightly submitted by Mr. Lalit

and Mr. Naphade, there is a minimum and maximum.  Life

imprisonment  as  held  in  Gopal  Vinayak Godse  (supra),

Ratan  Singh  (supra),  Sohan  Lal  v.  Asha  Ram  and

others29 and Zahid Hussein and others v. State of W.B.

and another30 means the whole of the remaining period of

the convict’s natural life. The convict is compelled to live in

29 (1981) 1 SCC 106 30 (2001) 3 SCC 750

Page 36

36

prison till  the  end of  his  life.   Sentence  of  death  brings

extinction of life on a fixed day after the legal procedure is

over, including the ground of pardon or remission which are

provided  under  Articles  71  and  161  of  the  Constitution.

There is a distinction between the conferment of power by a

statute  and conferment  of  power  under  the  Constitution.

The same has been explained in Maru Ram (supra) and V.

Sriharan  (supra).  Recently, a two-Judge Bench in  State

of Gujarat & Anr.  v. Lal Singh @ Manjit Singh & Ors.31

in that context has observed thus:-

“In Maru Ram (supra) the constitutional validity of Section 433-A CrPC which had been brought in the statute book in the year 1978 was called in question.  Section  433-A  CrPC  imposed restrictions  on  powers  of  remission  or commutation in certain cases. It stipulates that where  a  sentence  of  imprisonment  for  life  is imposed on conviction of a person for an offence for  which  death  is  one  of  the  punishments provided by laws, or where a sentence of death imposed on a person has been commuted under Section  433  into  one  of  imprisonment  for  life, such  person  shall  not  be  released  from prison unless he has served at least fourteen years of imprisonment. The majority in Maru Ram (supra) upheld  the  constitutional  validity  of  the provision.  The Court distinguished the statutory exercise  of  power  of  remission  and  exercise  of

31 AIR 2016 SC 3197 : 2016 (6) SCALE 105

Page 37

37

power by the constitutional authorities under the Constitution, that is, Articles 72 and 161. In that context, the Court observed that the power which is  the  creature  of  the  Code  cannot  be  equated with  a  high  prerogative  vested  by  the Constitution in the highest functionaries  of  the Union and the States, for the source is different and  the  substance  is  different.  The  Court observed  that  Section  433-A  CrPC  cannot  be invalidated  as  indirectly  violative  of  Articles  72 and 161 of the Constitution. Elaborating further, the majority spoke to the following effect:-

“…  Wide  as  the  power  of  pardon, commutation  and  release  (Articles  72  and 161) is, it cannot run riot; for no legal power can  run  unruly  like  John  Gilpin  on  the horse  but must keep sensibly  to  a  steady course.  Here,  we  come  upon  the  second constitutional fundamental which underlies the  submissions  of  counsel.  It  is  that  all public  power,  including  constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily,  guidelines for fair and equal execution are guarantors of the valid play of power. …”

33. In Kehar Singh and another v. Union of India and

another32 the  Constitution  Bench  has  opined  that  the

power to pardon is part of the constitutional scheme and it

should  be so treated in  the  Indian Republic.   There has

been  further  observation  that  it  is  a  constitutional

responsibility of great significance to be exercised when the

32 (1989)1 SCC 204

Page 38

38

occasion  arises  in  accordance  with  the  discretion

contemplated by the context.  The Court has also held that

exercise of the said power squarely falls within the judicial

domain  and  can  be  exercised  by  the  court  by  judicial

review. In Epuru Sudhakar and another v. Govt. of A.P.

and others33 , in the concurring opinion, S.H. Kapadia, J.

(as His Lordship then was) stated thus:-  

“Exercise  of  executive  clemency  is  a  matter  of discretion and yet subject to certain standards. It is  not  a  matter  of  privilege.  It  is  a  matter  of performance of  official  duty.  It  is  vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare  of  the  people  who  may  insist  on  the performance  of  the  duty.  This  discretion, therefore,  has  to  be  exercised  on  public considerations  alone.  The  President  and  the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated  power  in  the  Constitution  and  its limitations,  if  any,  must  be  found  in  the Constitution  itself.  Therefore,  the  principle  of exclusive cognizance would not apply when and if the  decision  impugned  is  in  derogation  of  a constitutional provision. This is the basic working test  to  be  applied  while  granting  pardons, reprieves, remissions and commutations.”

And, again:-  

33 (2006) 8 SCC 161

Page 39

39

“… The Rule of Law is the basis for evaluation of all decisions. The supreme quality of the Rule of Law is fairness and legal certainty. The principle of legality occupies a central plan in the Rule of 26 Law. Every prerogative has to be subject to the Rule of Law. That rule cannot be compromised on the grounds of political expediency. To go by such considerations  would  be  subversive  of  the fundamental principles of the Rule of Law and it would amount to setting a dangerous precedent. The  Rule  of  Law  principle  comprises  a requirement  of  “Government  according  to  law”. The  ethos  of  “Government  according  to  law” requires  the  prerogative  to  be  exercised  in  a manner  which  is  consistent  with  the  basic principle of fairness and certainty. Therefore, the power of  executive  clemency is  not  only  for  the benefit of the convict, but while exercising such a power the President or the Governor, as the case may  be,  has  to  keep  in  mind  the  effect  of  his decision on the family of the victims, the society as  a  whole  and  the  precedent  it  sets  for  the future.”

34. We have referred to the aforesaid aspect extensively as

it has been clearly held that the power of the constitutional

authorities  under  Article  71  and  Article  161  of  the

Constitution has to remain sacrosanct but the power under

Section  433-A  CrPC  which  casts  a  restriction  on  the

appropriate functionary of the Government can judicially be

dealt with.

Page 40

40

35. To elaborate, though the power exercised under Article

71  and  Article  161  of  the  Constitution  is  amenable  to

judicial  review  in  a  limited  sense,  yet  the  Court  cannot

exercise such power. As far as the statutory power under

Section 433-A is concerned, it can be curtailed when the

Court is of  the considered opinion that the fact situation

deserves a sentence of  incarceration which be for  a fixed

term so that power of remission is not exercised.  There are

many an authority  to support that  there is  imposition of

fixed term sentence to curtail the power of remission and

scuttle the application for consideration of remission by the

convict.  It  is  because  in  a  particular  fact  situation,  it

becomes a penological necessity which is permissible within

the  concept  of  maximum and the minimum. There is  no

dispute  over  the  maximum,  that  is,  death  sentence.

However, as far as minimum is concerned the submission of

the  learned  counsel  for  the  appellants  is  courts  can say

“imprisonment for life” and nothing else.  It cannot be kept

in such a strait-jacket formula.  The court, as in the case at

hand,  when  dealing  with  an  appeal  for  enhancement  of

Page 41

41

sentence from imprisonment of life to death, can definitely

say that the convict shall suffer actual incarceration for a

specific  period.   It  is  within the  domain of  judiciary  and

such  an  interpretation  is  permissible.   Be  it  noted,  the

Court cannot grant a lesser punishment than the minimum

but  can  impose  a  punishment  which  is  lesser  than  the

maximum.   It  is  within  the  domain  of  sentencing  and

constitutionally permissible.   

36. We  must  immediately  proceed  to  state  that  similar

conclusion  has  been  reached  by  the  majority  in  V.

Sriharan (supra)  and  other  cases,  Mr.  Lalit  and  Mr.

Naphade would submit that  the said decision having not

taken note of the principles stated in K.M. Nanavati (supra)

and  Sarat  Chandra  Rabha (supra)  is  not  a  binding

precedent.  In  K.M.  Nanavati (supra),  the  question  that

arose before the Constitution Bench pertained to the extent

of  the power conferred on the Governor of  a State  under

Article 161 of the Constitution; and whether the order of the

Governor can impinge on the judicial power of this Court

with particular reference to its power under Article 142 of

Page 42

42

the Constitution.   Be it stated, the petitioner therein was

convicted  under  Section  302  IPC  and  sentenced  to

imprisonment for life.  After the judgment was delivered by

the High Court and the writ was received by the Sessions

Judge, he issued warrant of arrest of the accused for the

purpose of sending him to the police officer in-charge of the

City  Sessions Court.  The warrant was returned unserved

with the report that it could not be served in view of the

order passed by the Governor of  Bombay suspending the

sentence  upon  the  petitioner.   In  the  meantime,  an

application for leave to appeal to Supreme Court was made

soon after the judgment was pronounced by the High Court

and  the  matter  was  fixed  for  hearing.   On that  day,  an

unexecuted warrant was placed before the concerned Bench

which directed that the matter is to be heard by a larger

Bench in view of the unusual and unprecedented situation.

A Special Bench of five Judges of the High Court heard the

matter  and  the  High  Court  ultimately  held  that  as  the

sentence passed upon the accused had been suspended, it

was  not  necessary  for  the  accused  to  surrender  and,

Page 43

43

therefore,  Order  XXI  Rule  5 of  the Supreme Court  Rules

would not apply to the case.  The High Court opined that

the  order  passed  by  the  Governor  was  not  found  to  be

unconstitutional.   A  petition  was  filed  for  special  leave

challenging the conviction and sentence and an application

was  filed  seeking  exemption  stating  all  the  facts.   The

matter was ultimately referred to the Constitution Bench,

and  the  larger  Bench  analyzing  various  facets  of  the

Constitution, came to hold thus:-

“21. In the present case, the question is limited to the exercise by the Governor of his powers under Article  161  of  the  Constitution  suspending  the sentence during the pendency of the special leave petition  and  the  appeal  to  this  court;  and  the controversy  has  narrowed down to  whether  for the period when this court is in seizin of the case the  Governor  could  pass  the  impugned  order, having  the  effect  of  suspending  the  sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this court in exercise of what is ordinarily called “mercy  jurisdiction”.  Such  a  pardon  after  the accused person has been convicted by the court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for  a criminal  offence. That power is essentially  vested in the head of the Executive, because  the  judiciary  has  no  such  “mercy jurisdiction”. But the suspension of the sentence

Page 44

44

for the period when this court is in seizin of the case could have been granted by this court itself. If in respect of the same period the Governor also has  power  to  suspend  the  sentence,  it  would mean that both the judiciary and the executive would  be  functioning  in  the  same  field  at  the same time leading to the possibility of conflict of jurisdiction.  Such a conflict  was not  and could not  have  been  intended  by  the  makers  of  the Constitution. But it was contended by Mr Seervai that  the  words  of  the  Constitution,  namely, Article  161 do not  warrant  the conclusion that the power was in any way limited or fettered. In our  opinion  there  is  a  fallacy  in  the  argument insofar  as  it  postulates  what  has  to  be established,  namely,  that  the  Governor’s  power was absolute and not fettered in any way. So long as  the  judiciary  has  the  power  to  pass  a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161  of  the  Constitution.  If  that  is  the  correct interpretation  to  be  put  on  these  provisions  in order  to  harmonise  them  it  would  follow  that what is covered in Article 142 is not covered by Article  161  and  similarly  what  is  covered  by Section 426 is  not  covered by Section 401. On that interpretation Mr Seervai would be right in his contention that there is no conflict between the  prerogative  power  of  the  sovereign  state  to grant pardon and the power of the courts to deal with a pending cage judicially.”

And again:-   

“As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of  the sentence could only

Page 45

45

operate  until  the  matter  became  sub  judice  in this court on the filing of the petition for special leave to appeal. After the filing of such a petition this court was seized of the case which would be dealt with by it in accordance with law. It would then  be  for  this  Court,  when  moved  in  that behalf, either to apply Rule 5 of Order 21 or to exempt the petitioner from the operation of that Rule.  It  would  be  for  this  court  to  pass  such orders  as  it  thought  fit  as  to  whether  the petitioner  should  be  granted  bail  or  should surrender to his sentence or to pass such other or further orders as this court might deem fit in all the circumstances of the case. It follows from what  has  been  said  that  the  Governor  had  no power to grant the suspension of sentence for the period during which the matter was sub judice in this court.”

37. Relying  on  the  same,  it  is  urged  that  when  a

constitutional  court  adds a  third  category  of  sentence,  it

actually enters into the realm of Section 433-A CrPC which

rests with the statutory authority.  According to the learned

senior  counsel  for  the  appellants,  after  the  conviction  is

recorded and sentence is imposed, the court has no role at

the  subsequent  stage.  But  when  higher  sentence  is

imposed,  there  is  an  encroachment  with  the  role  of  the

executive.   In  this  context,  learned  senior  counsel  have

drawn  our  attention  to  the  principles  stated  in  another

Constitution  Bench  judgment  in  Sarat  Chandra  Rabha

Page 46

46

(supra), wherein it has been held that the effect of pardon is

different than remission which stands on a different footing

altogether.  The Constitution Bench, explaining the same,

proceeded to state thus:-  

“4.  … In the first place, an order of remission does not  wipe out  the offence;  it  also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with  the  order  of  the  court;  it  affects  only  the execution  of  the  sentence  passed  by  the  court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence  passed by the court  still  stands as it was.  The power to grant remission is  executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and  substituting  in  its  place  the  reduced sentence adjudged by the appellate or revisional court. This distinction is well brought out in the following  passage  from  Weater’s  Constitutional Law on  the  effect  of  reprieves  and  pardons vis-à-vis  the  judgment  passed  by  the  court imposing punishment, at p. 176, para 134:  

“A reprieve is a temporary suspension of the punishment  fixed  by  law.  A  pardon  is  the remission of  such punishment.  Both are the exercise of executive functions and should be distinguished  from  the  exercise  of  judicial

Page 47

47

power over sentences. ‘The judicial power and the executive power over sentences are readily distinguishable,’ observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency  is  an  exercise  of  executive  power which  abridges  the  enforcement  of  the judgment but does not alter it qua judgment’.”

Though,  therefore,  the  effect  of  an  order  of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period  already  undergone,  in  law  the  order  of remission  merely  means  that  the  rest  of  the sentence  need  not  be  undergone,  leaving  the order of conviction by the court and the sentence passed by it untouched. In this view of the matter the order of remission passed in this case though it had the effect that the appellant was released from jail before he had served the full sentence of three  years’  imprisonment,  and  had  actually served only about sixteen months’ imprisonment, did not in any way affect the order of conviction and  sentence  passed  by  the  court  which remained  as  it  was.  Therefore  the  terms  of Section  7(b)  would  be  satisfied  in  the  present case and the appellant being a person convicted and  sentenced  to  three  years’  rigorous imprisonment would be disqualified, as five years had  not  passed  since  his  release  and  as  the Election  Commission  had  not  removed  his disqualification.”

38. The analysis made in the aforesaid passage is to be

appropriately appreciated.  In the said case, the controversy

Page 48

48

arose with regard to the rejection of the nomination paper of

the  returned  candidate  on  the  ground  that  he  was  not

disqualified under Section 7(b) of the Representation of the

People Act, 1951. The Election Tribunal came to hold that

the nomination paper of the candidate was wrongly rejected

and the allegation pertaining to corrupt practice  was not

established.   On the first count, the election was set aside.

The  successful  candidate  preferred  an  appeal  before  the

High Court which came to hold that the nomination paper

of the respondent before it was properly rejected.  However,

it  concurred  with  the  view  expressed  as  regards  corrupt

practice by the tribunal.  The rejection of nomination paper

of the candidate was found to be justified by the High Court

as  he  had  been  sentenced  to  undergo  rigorous

imprisonment for three years and five years had not passed

since his release.  He was sentenced to three years but the

sentence  was  remitted  by  the  government  in  exercise  of

power under Section 401 of old CrPC.  The contention of the

appellant  before  the  tribunal  was  that  in  view  of  the

remission, sentence, in effect,  was reduced to a period of

Page 49

49

less than two years and, therefore, he could not be said to

have incurred disqualification within the meaning of Section

7(b) of the said Act.   The High Court formed the opinion

that the remission of sentence did not have the same effect

as free pardon and would not have the effect on reducing

the sentence passed on the appellant.  In that context, this

Court has held what we have quoted hereinabove.  What is

being sought to be argued on the basis of the aforequoted

passage  is  that  the  court  does  not  have  any  role  in  the

matter of remission.  It is strictly within the domain of the

executive.

39. On a careful reading of both the decisions, we have no

iota of doubt in our mind that they are not precedents for

the proposition that the court cannot impose a fixed term

sentence.   The  power  to  grant  remission  is  an  executive

power and it cannot affect the appeal or revisional power of

the court.  The powers are definitely distinct.  However, the

language of Section 433-A CrPC empowers the executive to

grant remission after expiry of 14 years and it only enables

Page 50

50

the convict to apply for remission.  There can be a situation

as visualized in Swamy Shraddananda (2) (supra).   

40. Learned  senior  counsel  would  submit  that  it  is  a

judicial innovation or creation without sanction of law and

according  to  them,  the  majority  view of  the  Constitution

Bench is not a seemly appreciation of Section 433-A CrPC.

In our considered opinion, the majority view is absolutely

correct and binding on us being the view of the Constitution

Bench  and  that  apart,  we  do  not  have  any  reason  to

disagree with the same for referring it to a larger Bench.  We

are  of  the  convinced  opinion  that  the  situation  that  has

been projected in  Swamy  Shraddananda (2)  (supra) and

approved  in  V.  Sriharan   (supra)  speaks  eloquently  of

judicial experience and the fixed term sentence cannot be

said to be unauthorized in law. Section 302 IPC authorizes

imposition of  death sentence.   The minimum sentence is

imprisonment for life which means till the entire period of

natural  life  of  the  convict  is  over.    The  courts  cannot

embark upon the power to be exercised by the Executive

Page 51

51

Heads of the State under Article 71 and Article 161 of the

Constitution.   That remains in a different sphere and it has

its independent legal sanctity.  The court while imposing the

sentence of life makes it clear that it means in law whole of

life.   The  executive  has  been  granted  power  by  the

legislature to grant remission after expiry of certain period.

The  court  could  have  imposed  the  death  sentence.

However,  in  a  case  where  the  court  does  not  intend  to

impose a death sentence because of certain factors, it may

impose  fixed  term  sentence  keeping  in  view  the  public

concept  with  regard  to  deterrent  punishment.    It  really

adopts  the  view  of  “expanded  option”,  lesser  than  the

maximum and within the expanded option of the minimum,

for grant of remission does not come in after expiry of 14

years.  It strikes a balance regard being had to the gravity of

the offence.  We, therefore, repel the submission advanced

by the learned senior counsel for the appellants.  

41. In  this  context,  another  submission  deserves  to  be

noted.  It is canvassed by the learned senior counsel for the

appellants  that  the  issue  of  enhancement  and  scope  of

Page 52

52

enhancement was not referred to the Constitution Bench.

The reference order which has been quoted in V. Sriharan

(supra) has been brought to our notice to highlight the point

that in the absence of a reference by the concerned Bench,

the Constitution Bench could not have adverted to the said

aspect.  The said submission is noted only to be rejected.

The larger Bench has framed the issues which deserve to be

answered  and,  as  seen  from  the  entire  tenor  of  the

judgment,  it  felt  that  it  is  obliged  to  address  the  issue

regard being had to the controversy that arises in number

of cases.  In fact, as is evincible, question Nos. (i) and (ii) of

paragraph 2.2 have been specifically posed in this manner.

We do not think that there is any  impediment on the part

of  the  Constitution  Bench to  have  traversed  on  the  said

issues.  In  fact,  in  our  view,  the  Constitution  Bench  has

correctly  adverted  to  the  same  and  clarified  the  legal

position and we are bound by it.  

42. The next contention which is canvassed on behalf of

the appellants is that when the High Court exercised the

power under Section 368 CrPC and thinks of commuting

Page 53

53

the  death  sentence,  then  only  it  can  pass  a  fixed  term

sentence and not otherwise.  In this regard, we have been

commended to  the  authorities  in  Sahib Hussain  (supra)

and Gurvail Singh   (supra).   In Sahib Hussain (supra),

the Court took note of  the decision in  Shri Bhagwan v.

State of  Rajasthan34 wherein this  Court  had commuted

the death sentence imposed on the appellant therein and

directed that  the appellant shall  undergo the sentence of

imprisonment  for  life  with  the  further  direction  that  the

appellant shall not be released from the prison unless he

had served out at least 20 years of imprisonment including

the period already undergone by him.   The authority  in

Prakash  Dhawal  Khairnar  (Patil)  v.  State  of

Maharashtra35 was noticed wherein the Court set aside the

death sentence and directed that the appellant therein shall

suffer  imprisonment  for  life  but  he  shall  not  be released

unless he had served out at least 20 years of imprisonment

including  the  period  already  undergone  by  him.  The

two-Judge Bench referred to Ram Anup Singh and others

34 (2001) 6 SCC 296 35 (2002) 2 SCC 35

Page 54

54

v. State of Bihar36,  Nazir Khan and others vs. State of

Delhi37,  Swamy Shraddananda (2) (supra), Haru Ghosh

v.  State  of  West  Bengal38,  Ramraj  v.  State  of

Chhattisgarh39,  Neel Kumar alias Anil Kumar v. State

of Haryana40,  Sandeep v. State of U.P.41  and  Gurvail

Singh  (supra) and held that:-  

“It  is  clear  that  since  more  than  a  decade,  in many cases, whenever death sentence has been commuted to life imprisonment where the offence alleged is serious in nature, while awarding life imprisonment,  this  Court  reiterated  minimum years of imprisonment of 20 years or 25 years or 30 years or 35 years, mentioning thereby, if the appropriate Government wants to give remission, the  same  has  to  be  considered  only  after  the expiry of the said period….”  

Thereafter,  the  Court  referred  to  Swamy

Shraddananda (2) (supra) and the pronouncement in Shri

Bhagwan (supra)  and opined thus:-

“36.  It  is  clear  that  in  Swamy  Shraddananda, this Court noted the observations made by this Court in Jagmohan Singh v. State of U.P. and five years  after  the  judgment  in  Jagmohan  case,

36 (2002) 6 SCC 686 37 (2003) 8 SCC 461 38 (2009) 15 SCC 551 39 (2010) 1 SCC 573 40 (2012) 5 SCC 766 41 (2012) 6 SCC 107

Page 55

55

Section 433-A was inserted in the Code imposing a  restriction  on  the  power  of  remission  or commutation  in  certain  cases.  After  the introduction  of  Section  433-A  another Constitution  Bench  of  this  Court  in  Bachan Singh v.  State of Punjab, with reference to power with regard to Section 433-A which restricts the power  of  remission and commutation conferred on  the  appropriate  Government,  noted  various provisions of  the Prisons Act,  Jail  Manual,  etc. and concluded that reasonable and proper course would be to expand the option between 14 years' imprisonment and death. The larger Bench has also emphasised that: [Swamy Shraddananda (2) case, SCC p. 805, para 92]

“92. … the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.”

In  the  light  of  the  detailed  discussion  by  the larger  Bench,  we  are  of  the  view  that  the observations  made  in  Sangeet  case42 are  not warranted. Even otherwise, the above principles, as  enunciated  in  Swamy  Shraddananda are applicable  only  when  death  sentence  is commuted  to  life  imprisonment  and  not  in  all cases where the Court imposes sentence for life.”

43. Learned senior counsel have emphasized on the last

part of the aforequoted passage to buttress the stand that

when the trial judge had not imposed the death sentence,

the question of commutation did not arise and hence the

42 Sangeet v. State of Haryana, (2013) 2 SCC 452

Page 56

56

High Court could not have imposed a fixed term sentence

and could have only affirmed the sentence of imprisonment

for life.

44. In Gurvail Singh  (supra), the Court was dealing with

the petition under Article 32 of the Constitution for issue of

a direction to convert the sentence of the petitioner from 30

years without remission to a sentence of life imprisonment

and further to declare that this Court is not competent to fix

a  particular  number  of  years  (with  or  without  remission)

when it commutes the death sentence to life imprisonment

while upholding the conviction of the accused under Section

302 IPC. The two-Judge Bench referred to the decision in

Sangeet  (supra) which  has  also  been  referred  in  Sahib

Hussain  (supra) and, thereafter, the Court observed:-  

“6.  The  issue  involved  herein  has  been  raised before this Court time and again. Two-Judge as well as three-Judge Benches have several times explained the powers of this Court in this regard and it has consistently been held that the Court cannot  interfere  with  the  clemency  powers enshrined  under  Articles  72  and  161  of  the Constitution  of  India  or  any  rule  framed thereunder except in exceptional circumstances. So  far  as  the  remissions,  etc.  are  concerned, these  are  executive  powers  of  the  State  under

Page 57

57

which,  the  Court  may  issue  such  directions  if required  in  the  facts  and  circumstances  of  a particular case.”

After  so  stating,  the  Court  referred  to  Swamy

Shraddananda (2) (supra) and State of Uttar Pradesh. v.

Sanjay Kumar43 and reproduced a passage from  Sanjay

Kumar (supra) which we think seemly to quote:-  

“24. … The aforesaid judgments make it crystal clear that this Court has merely found out the via media,  where  considering  the  facts  and circumstances  of  a  particular  case,  by  way  of which it has come to the conclusion that it was not  the ‘rarest  of  rare  cases’,  warranting  death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States  would  be  totally  inadequate.  The  life imprisonment  cannot  be  equivalent  to imprisonment for 14 years or 20 years, rather it always  meant  as  the  whole  natural  life.  This Court has always clarified that the punishment so awarded would be subject to any order passed in  exercise  of  the  clemency  powers  of  the President of India or the Governor of the State, as the  case  may  be.  Pardons,  reprieves  and remissions are granted in exercise of prerogative power.  There  is  no  scope  of  judicial  review  of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or  if  the  order  suffers  from  arbitrariness.  The power  to  grant  pardons  and  to  commute sentences is coupled with a duty to exercise the

43 (2012) 8 SCC 537

Page 58

58

same  fairly  and  reasonably.  Administration  of justice  cannot  be  perverted  by  executive  or political pressure. Of course, adoption of uniform standards may not  be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of  the State. More  so,  not  being  in  contravention  of  any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142  of  the  Constitution  do  not  deserve  to  be labelled  as  unwarranted.  The  aforesaid  orders have been passed considering the gravity of the offences in those cases that the accused would not  be  entitled  to  be  considered  for  premature release  under  the  guidelines  issued  for  that purpose i.e. under the Jail Manual, etc. or even under  Section  433-A  of  the  Code  of  Criminal Procedure.”

45. Thereafter,  the  two-Judge  Bench  referred  to  the

pronouncement  in  Sahib  Hussain (supra)  and  opined

thus:-  

“12. Thus, it is evident that the issue raised in this  petition  has  been  considered  by  another Bench  and  after  reconsidering  all  the  relevant judgments on the issue the Court found that the observations made in Sangeet were unwarranted i.e. no such observations should have been made. This  Court  issued  orders  to  deprive  a  convict from  the  benefit  of  remissions  only  in  cases where the death sentence has been commuted to life imprisonment and it does not apply in all the cases wherein the person has been sentenced to life imprisonment.”  

Page 59

59

46. Mr. Krishnan, learned senior counsel appearing for the

State,  in his  turn,  has commended us to three passages

from V. Sriharan  (supra).  They read as under:-  

“103. In fact, while saying so we must also point out that such exercise of power in the imposition of  death  penalty  or  life  imprisonment  by  the Sessions  Judge  will  get  the  scrutiny  by  the Division  Bench  of  the  High  Court  mandatorily when the penalty is death and invariably even in respect of  life imprisonment gets scrutinised by the Division Bench by virtue of the appeal remedy provided  in  the  Criminal  Procedure  Code. Therefore, our conclusion as stated above can be reinforced by stating that the punishment part of such specified offences are always examined at least once after the Sessions Court’s verdict by the High Court and that too by a Division Bench consisting of two Hon’ble Judges.

104.  That  apart,  in  most  of  such  cases  where death  penalty  or  life  imprisonment  is  the punishment  imposed  by  the  trial  court  and confirmed  by  the  Division  Bench  of  the  High Court,  the  convict  concerned  will  get  an opportunity  to  get  such verdict  tested by  filing further  appeal  by  way  of  special  leave  to  this Court.  By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of  guilt  of  such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High Court, it is only the  High Court  which derives  the  power  under the Penal Code, which prescribes the capital and alternate  punishment,  to  alter  the  said

Page 60

60

punishment with one either for the entirety of the convict’s  life  or  for  any specific  period of  more than 14 years,  say  20,  30 or  so on depending upon the gravity of the crime committed and the exercise  of  judicial  conscience  befitting  such offence found proved to have been committed.

105.  We,  therefore,  reiterate  that,  the  power derived  from  the  Penal  Code  for  any  modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event  of  further  appeal  only  by  the  Supreme Court and not by any other Court in this country. To  put  it  differently,  the  power  to  impose  a modified  punishment  providing  for  any  specific term  of  incarceration  or  till  the  end  of  the convict's life as an alternate to death penalty, can be  exercised  only  by  the  High  Court  and  the Supreme  Court  and  not  by  any  other  inferior Court”.

 Relying on the aforesaid passages, it is contended by

him that the decisions cited by the appellants are, no more

good law and, in fact, have been impliedly overruled in view

of what has been stated by the Constitution Bench.   

47. We do not think it appropriate to enter into the said

debate. In the instant case, the prosecution had preferred

an appeal under Section 377 CrPC before the High Court for

enhancement  of  sentence  of  imposition  of  life  to  one  of

death. On a reading of the said provision, there can be no

Page 61

61

trace of doubt that the High Court could have enhanced the

sentence of imposition of life to death. In this context, we

may  usefully  refer  to  Jashubha Bharatsinh Gohil  and

others  v.  State  of  Gujarat44 wherein  it  has  been  ruled

thus:-

“12. It is needless for us to go into the principles laid  down  by  this  Court  regarding  the enhancement  of  sentence  as  also  about  the award of sentence of death, as the law on both these  subjects  is  now  well  settled.  There  is undoubtedly  power  of  enhancement  available with the High Court which, however, has to be sparingly exercised. No hard and fast rule can be laid down as to in which case the High Court may  enhance  the  sentence  from  life imprisonment to death. …”

Thus, the power is there but it has to be very sparingly

used. In the instant case, the High Court has thought it

appropriate instead of imposing death sentence to impose

the  sentence  as  it  has  done.  Therefore,  the  sentence

imposed by the High Court cannot be found fault on that

score.

44 (1994) 4 SCC 353

Page 62

62

48. At  this  stage  we  think  it  appropriate  to  deal  with

another  facet  of  the  said  submission.   It  is  strenuously

urged that the High Court can impose the punishment what

the trial court can impose. In Jagat Bahadur (supra) it has

been held that:-

“An appeal court is after all ‘a Court of error’, that is, a court established for correcting an error. If, while  purporting  to  correct  an  error,  the  court were  to  do  something  which  was  beyond  the competence of  the trying court,  how could it  be said to be correcting an error of the trying court? No case has been cited before us in which it has been held that the High Court, after setting aside an  acquittal,  can  pass  a  sentence  beyond  the competence of the trying court. Therefore, both on principle and authority it is clear that the power of the appellate court to pass a sentence must be measured by the power of the court from whose judgment an appeal has- been brought before it.”

49. In Jadhav (supra) the Court ruled that:-

“An  appeal  is  a  creature  of  a  statute  and  the powers  and  jurisdiction  of  the  appellate  court must  be  circumscribed  by  the  words  of  the statute. At the same time a Court of appeal is a “Court  of  error”  and  its  normal  function  is  to correct  the  decision  appealed  from  and  its jurisdiction  should  be  co-extensive  with  that  of the  trial  court.  It  cannot  and  ought  not  to  do something  which  the  trial  court  was  not competent to do. There does not seem to be any

Page 63

63

fetter to its power to do what the trial court could do.”

50. We have reproduced the said passages as the learned

senior counsel appearing for the appellant would contend

as the  court of appeal is only a “Court of error” and its

jurisdiction  should  be  co-extensive  with  that  of  the  trial

court.  Both  the  decisions  dealt  with  different  kind  of

offences  where  the  sentence  has  been  prescribed  to  be

imposed  for  a  particular  by  the  trial  court  and  in  that

context the Court held that the appellate court could not

have imposed a sentence beyond the competence of the trial

court.  If the trial court has no jurisdiction to impose such a

sentence, the High Court as a “Court of error” cannot pass a

different harsher sentence. There can be no dispute over the

proposition stated in the said two authorities.  But in the

case at hand, the appellants were convicted under section

302 IPC and the trial  court  could  have been impose the

sentence  of  death  and  that  apart,  the  appeal  has  been

preferred by the State.  Thus, the ratio laid down in the said

authorities is not applicable to the case at hand.

Page 64

64

51. The  next  submission  that  is  put  forth  is  that  the

decision  in  V.  Sriharan  (supra)  runs  counter  to  the

principles stated in  A.R. Antulay (supra).  Explicating the

said  stand,  it  is  argued  that  in  the  said  case  the

Constitution  Bench  had  directed  that  the  case  of  the

petitioner should be tried by the learned Judge of the High

Court as he was tried for the offence under the Prevention

of  Corruption  Act,  1988.   The  Bench  of  seven-Judges

recalled that order on three counts, namely, a trial under

the Prevention of Corruption Act, 1988 has to be held by a

special Judge appointed under the said Act and this Court

has no jurisdiction to direct the trial to be held by a High

Court Judge; that the statutory right of the petitioner for

filing an appeal to the High Court could not be taken away

by this Court;  and that the earlier direction abridged the

right of the petitioner therein under Articles 14 and 21 of

the Constitution.  Drawing an analogy it is contended that

V. Sriharan  (supra) takes away the statutory right of the

convict to apply for commutation/remission under Sections

432 and 433 CrPC,  and also affects the right under Article

Page 65

65

21  of  the  Constitution.  Learned  senior  counsel  for  the

appellants would contend that the principles stated in A.R.

Antulay (supra) have not been kept in view in V. Sriharan

(supra) and, therefore, it is not a binding precedent and a

two-Judge Bench should either say that it is per incuriam or

refer it to a larger Bench.   With regard to declaring a larger

Bench judgment  per  incuriam,  learned  senior  counsel  for

the appellants have drawn inspiration from the authority in

Fibre  Boards  Private  Limited,  Bangalore  v.

Commissioner of Income-Tax, Bangalore45. In that case,

the two-Judge Bench referred to  Mamleshwar Prasad v.

Kanhaiya  Lal46 and  State  of  U.P.  and  another  v.

Synthetics and Chemicals Ltd. and another47 and took

note of the earlier Constitution Bench judgment in State of

Orissa v.  M.A. Tulloch and Co.48, and held thus:-

“35. The two later Constitution Bench judgments in  Rayala  Corpn.  (P)  Ltd.  v.  Director  of Enforcement49  and  Kolhapur  Canesugar  Works Ltd.  v.  Union  of  India50 also  did  not  have  the

45 (2015) 10 SCC 333 46 (1975) 2 SCC 232 47 (1991) 4 SCC 139 48 (1964) 4 SCR 461 49 (1969) 2 SCC 412 50 (2000) 2 SCC 536

Page 66

66

benefit of the aforesaid exposition of the law. It is clear  that  even  an  implied  repeal  of  a  statute would  fall  within  the  expression  “repeal”  in Section 6 of the General Clauses Act. This is for the  reason  given by  the  Constitution  Bench in M.A. Tulloch & Co. that only the form of repeal differs  but  there  is  no  difference  in  intent  or substance. If even an implied repeal is covered by the  expression  “repeal”,  it  is  clear  that  repeals may take any form and so long as a statute or part of it is obliterated, such obliteration would be covered by the expression “repeal” in Section 6 of the General Clauses Act.”

52. Be it noted, the Court followed the principles stated in

M.A. Tulloch and Co. (supra) and not in  Rayala Corpn.

(P)  Ltd. (supra).   In  State  of  U.P.  v.  Synthetics  and

Chemicals Ltd.51  a two-Judge Bench of this Court held

that one particular conclusion of a Bench of seven-Judges

in Synthetics and Chemicals Ltd. and others v. State of

U.P. and others52 as per incuriam.  The two-Judge Bench in

Synthetics and Chemicals Ltd. (supra) opined thus:-  

“36. The High Court, in our view, was clearly in error  in  striking  down  the  impugned  provision which  undoubtedly  falls  within  the  legislative competence of the State, being referable to Entry 54 of List II. We are firmly of the view that the decision of  this  Court  in  Synthetics53 is  not  an

51 (1991) 4 SCC 139 52 (1990) 1 SCC 109 53 (1990) 1 SCC 109

Page 67

67

authority  for  the  proposition  canvassed  by  the assessee in challenging the provision. This Court has not, and could not have, intended to say that the  Price  Control  Orders  made  by  the  Central Government under the IDR Act imposed a fetter on the legislative power of the State under Entry 54 of List II to levy taxes on the sale or purchase of goods. The reference to sales tax in paragraph 86 of that judgment was merely accidental or per incuriam and  has,  therefore,  no  effect  on  the impugned levy.”   

53. The observations speak for  themselves.   We are not

inclined to  enter  into  the  doctrine  of  precedents and the

principle of per incuriam in the instant case. Suffice it to say

that the grounds on which it is urged that the Constitution

Bench decision in V. Sriharan  (supra) runs counter to the

larger  Bench  decision  in  A.R.  Antulay (supra)  are

fallacious.  In A.R. Antulay (supra), the High Court had no

jurisdiction  to  try  the  case  under  the  Prevention  of

Corruption  Act,  1988  and  consequently,  by  virtue  of  a

direction the accused was losing the right to appeal. Both

could not have been done and that is why, the larger Bench

reviewed  the  Constitution  Bench  judgment.  For  better

appreciation, we may reproduce what  Mukherjee, J. (as His

Page 68

68

Lordship then was) speaking for three learned Judges had

to say:-

“.. By reason of giving the directions on February 16,  1984  this  Court  had  also  unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these  factors  are  brought  to  the  notice  of  this Court,  even  if  there  are  any  technicalities  this Court  should  not  feel  shackled  and  decline  to rectify  that  injustice  or  otherwise  the  injustice noticed will  remain forever  a  blot  on justice.  It has been said long time ago that  “actus curiae neminem gravabit”  — an act  of  the  court  shall prejudice no man. This maxim is founded upon justice  and good  sense  and affords  a  safe  and certain guide for the administration of the law.”

And again:-  

“In the aforesaid view of the matter the appeal is allowed;  all  proceedings  in  this  matter subsequent  to  the  directions  of  this  Court  on 16-2-1984 as indicated before are set aside and quashed.  The  trial  shall  proceed  in  accordance with law, that is to say under the Act of 1952 as mentioned hereinbefore.”

 The majority concurred with the said opinion.

54. In the case at hand, the question of forum of trial does

not arise.  What is fundamentally argued is that the right of

Page 69

69

the  appellants  to  submit  an application is  abrogated.  An

attempt  has  been  made  to  elevate  the  same  to  a

constitutional right. The right of an appeal and abrogation

thereof by a direction of this Court is totally different and

that is the principle which compelled the larger Bench to

recall  its  order.   They  applied  the  principle  of  ex  debito

justitiae and passed the order reproduced hereinabove.  

55. Having  adverted to  the  factual  scenario,  we have  to

understand the obtaining situation. In the present context,

a convict is not permitted to submit an application under

Section  433-A  CrPC  because  of  sentence  imposed  by  a

Court.  There  is  no  abrogation  of  any  fundamental  or

statutory right.  If the imposition of sentence is justified, as

a natural corollary the principle of remission does not arise.

The principle for applying remission arises only after expiry

of 14 years if the Court imposes sentence of imprisonment

for  life.  When  there  is  exercise  of  expanded  option  of

sentence between imprisonment for life and death sentence,

it comes within the sphere or arena of sentencing, We have

already held that  the said exercise of  expanded option is

Page 70

70

permissible as has been held in many a judgment of this

Court  and  finally  by  the  Constitution  Bench.  The  said

exercise, on a set of facts, has a rationale.  It is based on a

sound principle. Series of judgments have been delivered by

this Court stating in categorical terms that imprisonment

for life means remaining of the whole period of natural life

of  the  convict.   The  principle  of  exercise  of  expanded

expansion has received acceptance because the Court when

it  does  not  intend  to  extinguish  the  spark  of  life  of  the

convict by imposing the death sentence. We have already

discussed  that  facet  earlier  and  not  accepted  the

submission to refer the matter to the larger Bench. We have

no hesitation in holding that the principles stated in  A.R.

Antulay (supra)  do  not  apply  to  the  application  to  be

preferred  under  Section  433-A  CrPC,  and,  therefore,  the

judgment in V. Sriharan  (supra) is a binding precedent.

56. The next aspect that is required to be deliberated upon

is  the  factual  score  of  the  case  that  would  include  the

genesis of crime, the nature of involvement, the manner in

which  it  has  been  executed,  the  antecedents  of  the

Page 71

71

appellants, the motive that has moved the appellants to do

away with a young life, the gravity and the social impact of

the crime, the suffering of the family of the victim, the fear

of the collective when such a crime takes place, the category

to which the High Court has fitted it, after expressing its

disinclination not to impose the death sentence and other

connected factors.

57. It  is  submitted  by  the  learned  counsel  for  the

appellants  that  the  imposition  of  fixed  term  sentence  is

highly  disproportionate  and  unjustified  in  the  particular

facts  of  the  case,  for  as  the  conviction  is  based  on  the

circumstantial  evidence and as per the materials brought

on record only a single blow was inflicted not by any lethal

weapon  but  by  a  hammer.  Though  the  High  Court  has

referred  to  various  aggravating  and  mitigating

circumstances, yet, it has misdirected itself by holding that

the motive of crime is “honour killing”. That apart, the High

Court has taken into consideration the false plea of alibi,

intimidation of  witnesses,  misleading  of  the  police  in  the

matter  of  recovery,  intimidation of  the  public  prosecutor,

Page 72

72

the factum of abscondence, conviction in another case, the

inhuman treatment of the deceased, commission of murder

while  the  appellants  had  the  trust  of  the  deceased,  the

depravity  of  the  mind,  reflection  of  cold  bloodedness  in

commission  of  the  crime,  the  brutality  that  shocks  the

judicial conscience, absence of probability of reformation of

the convicts and such other aspects of which some are not

relevant  and  some  have  not  been  duly  considered  while

imposing such harsh punishment.   

58. It is urged by them, the approach of the High Court

dealing with death penalty and arriving at the conclusion

that  the  case  is  not  a  rarest  of  rare  one  has  completely

misdirected  itself  and,  therefore,  the  imposition  of  fixed

term  sentence  is  wholly  unsustainable.   They  have

commended us  to  the  authorities  in  Shankar  Kisanrao

Khade  v.  State  of  Maharashtra54,  Oma  alias

Omprakash  and  another  v.  State  of  Tamil  Nadu55,

Mohd.  Farooq  Abdul  Gafur  and  another  v.  State  of

54 (2013) 5 SCC 546 55 (2013) 3 SCC 440

Page 73

73

Maharashtra56,  Mohinder  Singh  v.  State  of  Punjab57

and Mangesh v. State of Maharashtra58.

59. Learned counsel for the State submits that the crime

was premeditated and diabolic in nature and the same is

evincible from the discussion of the judgment of conviction

of the High Court and the said findings are beyond assail as

no leave has been granted in that regard and the Special

Leave  Petition  has  been  dismissed.   According  to  the

learned counsel for the State, the said findings which find

place  in  the  judgment  of  conviction  are  not  subject  to

criticism and can be relied upon to describe the nature of

commission of crime.  Mr. Krishnan, would further submit

that the sentence imposed is not disproportionate.  

60. On a careful scrutiny of the judgment of conviction, it

is seen that the High Court has taken note of the facts that

the deceased Nitish Katara and Bharti Yadav (sister of Vikas

Yadav; first cousin sister of Vishal Yadav and; daughter of

Shri D.P. Yadav who was also the employer of Sukhdev @

Pehalwan) were in an intimate relationship aiming towards 56 (2010) 14 SCC 641 57 (2013) 3 SCC 294 58 (2011) 2 SCC 123

Page 74

74

permanency;  that  the  family  members  of  Bharti  Yadav,

including  Vikas  and  Vishal  Yadav,  were  opposed  to  this

relationship;  that  the  aversion  stemmed from the  reason

that Nitish Katara did not belong to the same caste as that

of Bharti Yadav, that his family belonged to the service class

and  belonged  to  economically  lower  strata;  that  Vishal

Yadav and Sukhdev @ Pehalwan had not been invited to the

wedding  and  had  no  reason  for  being  there,  other  than

perpetration of the crime; that Nitish Katara was abducted

from the wedding venue by the appellants with the common

intention  to  murder  him;  that  in  furtherance  of  their

common intention Nitish Katara was thereafter  murdered

by the appellants; that after murdering Nitish Katara, the

appellants  removed  his  clothes,  wrist  watch  and  mobile

from his  person  and  set  aflame  his  dead  body  with  the

intention  of  preventing  identification  of  the  body  and

destroying evidence of the commission of the offence; that

immediately  after  the  incident,  the  three  appellants

absconded; that the dead body of Nitish Katara was found

at 9.30 a.m. in the morning of  17th February,  2002 in a

Page 75

75

completely burnt, naked and unidentifiable condition on the

Shikharpur Road which was recovered by the Khurja Police;

that the body was having a lacerated wound on the head, a

fracture in the skull, laceration and hematoma in the brain

immediately  below  the  fracture;  that  Vikas  and  Vishal

Yadav deliberately misled the police and took them to three

places in Alwar (Rajasthan) to search for Tata Safari vehicle

which was obviously not there; that Vikas and Vishal Yadav

jointly misled the police to the taxi stand behind Shamshan

Ghat(cremation ground) in Panipat to search for the Tata

Safari  which  was  again  not  there,  and,  enroute  to

Chandigarh for the same purpose, got recovered the Tata

Safari  Vehicle  bearing  registration  No.  PB-07H  0085

recovered  from the  burnt  down factory  premises  of  M/s.

A.B.  Coltex  Limited;  that  the  appellant  Sukhdev  @

Pehalwan absconded for over three and half years despite

extensive  searches,  raids,  issuance  of  coercive  process,

attachment even at his native village and that he could be

arrested only on the 23rd of February, 2005 after he fired at

police patrol party.

Page 76

76

61. From the aforesaid findings recorded by the High Court

it is vivid that crime was committed in a planned and cold

blooded manner with the motive that has emanated due to

feeling  of  some  kind  uncalled  for  and  unwarranted

superiority  based  on  caste  feeling  that  has  blinded  the

thought of “choice available” to a sister - a representative of

women  as  a  class.  The  High  Court  in  its  judgment  of

conviction  has  unequivocally  held  that  it  is  a  “honour

killing” and the said findings apart from being put to rest,

also gets support from the evidence brought on record. The

circumstantial  evidence  by  which  the  crime  has  been

established, clearly lead to one singular conclusion that the

anger of the brother on the involvement of the sister with

the  deceased,  was  the  only  motive  behind  crime.  While

dwelling upon the facet of honour killing the High Court in

the judgment of conviction has held:-

“2023. The instant case manifests that even in a household  belonging  to  the  highest  class  in society,  (one  in  which you can make day trips with friends from Ghaziabad to Mumbai just to celebrate  a  birthday;  owns  multiple  businesses and  properties,  luxury  vehicles  etc.)  what  can happen  to  even  a  young,  educated,  articulate

Page 77

77

daughter if she attempted to break away from the conventional  caste  confines  and  explored  a lifetime alliance with a member of another caste. Especially one who was also perceived to be of a lesser economic status. 2024.  We  have  found  that  immediately  after Shivani  Gaur’s  wedding,  Bharti  was  completely segregated and confined by her family.  On the 17th of  February  2002  itself,  she  was  spirited away  from  her  residence  in  Ghaziabad  to Faridabad.   The  police  could  record  her statement under Section 161 of the Cr.P.C. only on the 2nd of March 2002 that too under the eagle eye of her father, a seasoned politician. Shortly thereafter, she was sent out of India to U.K. and kept out of court for over three and a half years. Her testimony is evidence of the influence of her brothers  and  family  as  she  prevaricates  over trivial matters and denies established facts borne out by documentary evidence.  Finally, when she must  have  been  stretched  to  the  utmost,  she succumbs to their pressures when she concedes a deviously put suggestion. 2025.  Undoubtedly,  the  family  of  Nitish Katara has  suffered  at  his  demise  and  thereafter. Having given our thought to this issue, we are of the  view that  apart  from the  deceased and his family,  there is  one more victim in an “honour killing”.”

62. In this context we may refer with profit to the decision

in  Lata Singh v. State of U.P. and another59 wherein it

has been observed that:-

59 (2006) 5 SCC 475

Page 78

78

“The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when We have to be united to  face the  challenges  before  the  nation unitedly. Hence, inter-caste marriages are in fact in  the  national  interest  as  they  will  result  in destroying the caste system. However, disturbing news  are  coming  from  several  parts  of  the country  that  young  men  and  women  who undergo  inter-caste  marriage,  are  threatened with violence,  or  violence is  actually  committed on them. In our opinion, such acts of violence or threats  or  harassment  are  wholly  illegal  and those  who  commit  them  must  be  severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes.”

And again:-

“We sometimes hear of “honour” killings of such persons  who  undergo  inter-caste  or inter-religious  marriage  of  their  own  free  will. There is nothing honourable in such killings, and in  fact  they  are  nothing  but  barbaric  and shameful  acts  of  murder  committed  by  brutal, feudal-minded  persons  who  deserve  harsh punishment. Only in this way can we stamp out such acts of barbarism.”

63. In Maya Kaur Baldevsingh Sardar and another v.

State  of  Maharashtra60 this  Court  was  constrained  to

observe thus:-

60 (2007) 12 SCC 654

Page 79

79

“26. We also notice that while judges tend to be extremely  harsh  in  dealing  with  murders committed  on  account  of  religious  factors  they tend  to  become  more  conservative  and  almost apologetic in the case of murders arising out of caste on the premise (as in this very case) that society  should  be  given  time  so  that  the necessary  change  comes  about  in  the  normal course.  Has this  hands-off  approach led to the creation  of  the  casteless  utopia  or  even  a perceptible  movement  in  that  direction?  The answer  is  an  emphatic  ‘No’  as  would  be  clear from  mushrooming  caste-based  organisations controlled  and  manipulated  by  self-appointed commissars  who  have  arrogated  to  themselves the right to be the sole arbiters and defenders of their castes with the licence to kill and maim to enforce their diktats and bring in line those who dare to deviate.  Resultantly the idyllic situation that  we  perceive  is  as  distant  as  ever.  In  this background is  it  appropriate  that  we throw up our  hands  in  despair  waiting  ad  infinitum  or optimistically  a  millennium  or  two  for  the  day when  good  sense  would  prevail  by  a  normal evolutionary process or is it our duty to help out by  a  push  and  a  prod  through  the  criminal justice system? We feel that there can be only one answer to this question.”

64. In Arumugam Servai v. State of Tamil Nadu61,  the

Court reiterated the principle stated in  Lata Singh(supra)

and proceeded to state that:-

“12.  We  have  in  recent  years  heard  of  “Khap Panchayats”  (known  as  “Katta  Panchayats”  in

61 (2011) 6 SCC 405

Page 80

80

Tamil  Nadu)  which  often  decree  or  encourage honour  killings  or  other  atrocities  in  an institutionalised  way  on  boys  and  girls  of different  castes  and  religion,  who  wish  to  get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped  out.  As  already  stated  in  Lata  Singh case3,  there  is  nothing  honourable  in  honour killing  or  other  atrocities  and,  in  fact,  it  is nothing  but  barbaric  and  shameful  murder. Other  atrocities  in  respect  of  personal  lives  of people  committed  by  brutal,  feudal-minded persons deserve harsh punishment. Only in this way can we stamp out  such acts  of  barbarism and feudal mentality. Moreover, these acts take the  law  into  their  own  hands,  and  amount  to kangaroo courts, which are wholly illegal.”

65. In Bhagwan Dass v. State (NCT of Delhi)62 the Court

after referring to Lata Singh’s case (supra) was in anguish

to observe:-

“….In our opinion honour killings, for whatever reason, come within the category of the rarest of rare cases deserving death punishment. It is time to  stamp  out  these  barbaric,  feudal  practices which are a slur on our nation. This is necessary as  a  deterrent  for  such outrageous,  uncivilised behaviour.  All  persons  who  are  planning  to perpetrate “honour” killings should know that the gallows await them.”

66. Be it stated, though the High Court treated the murder

as “honour killing”, yet regard being had to other factors did

62 (2011) 6 SCC 396

Page 81

81

not think appropriate to impose extreme penalty of  death

sentence.   We  may  hasten  to  clarify  that  we  have

highlighted  the  factum  of  “honour  killing”,  as  that  is  a

seminal  ground  for  imposing  the  fixed  term  sentence  of

twenty-five years for the offences under section 302/34 IPC

on the two accused persons, who though highly educated in

good educational institutions, had not cultivated the ability

to  abandon  the  depricable  feelings  and  attitude  for

centuries.  Perhaps, they have harboured the fancy that it is

an idea of  which time had arrived from time immemorial

and ought to stay till eternity.  

67. One may feel “My honour is my life” but that does not

mean  sustaining  one’s  honour  at  the  cost  of  another.

Freedom, independence,  constitutional  identity,  individual

choice  and  thought  of  a  woman  be  a  wife  or  sister  or

daughter  or  mother  cannot  be  allowed  to  be  curtailed

definitely not by application of physical force or threat or

mental  cruelty in the  name of  his self-assumed honour.

That apart, neither the family members nor the members of

the collective has any right to assault the boy chosen by the

Page 82

82

girl.  Her individual choice is her self-respect and creating

dent in it is destroying her honour.  And to impose so called

brotherly or fatherly honor or class honor by eliminating her

choice is a crime of extreme brutality, more so, when it is

done  under  a  guise.  It  is  a  vice,  condemnable  and

deplorable perception of “honour”, comparable to medieval

obsessive assertions.  

68. Apart from the issue of honour  killing, the High Court

has also adjudicated  to the brutal  manner in which the

crime has been committed. Mr. Lalit, learned senior counsel

has  highlighted on infliction  of  a  single  blow.   The High

Court  appreciating  the  material  brought  on  record,  has

given a graphic description.   

69. The High Court has also taken note of the impact of

post-offence  events  and  observed  that  the  deceased  was

burnt  to  such  a  point  that  his  own  mother  could  only

suggest the identification from the small size of one unburnt

palm with fingers of the hand that the body appeared to be

that  of  her  deceased  son.   The  identification  had  to  be

confirmed by DNA testing.  While imposing the sentence,

Page 83

83

the  High  Court  has  been  compelled  to  observe  that  the

magnitude of vengeance of the accused and the extent to

which they had gone to destroy the body of the deceased

after his murder shows the brutality involved in the crime

and  the  maladroit  efforts  that  were  made  to  destroy  the

evidence.  From the evidence brought on record as well as

the analysis  made by the High Court,  it  is  demonstrable

about  the  criminal  proclivity  of  the  accused  persons,  for

they have neither the respect for human life nor did they

have any concern for the dignity of a dead person.  They

had deliberately comatosed the feeling that even in death a

person has dignity and when one is  dead deserves to be

treated with dignity.  That is the basic human right. The

brutality that has been displayed by the accused persons

clearly exposes the depraved state of mind.   

70. The conduct during the trial has also been emphasized

by  the  High  Court  because  it  is  not  an effect  to  protect

one-self,  but  the  arrogance  and  the  impunity  shown  in

which they set up false defense and instilled shivering fear

in the mind and heard of witnesses with the evil design of

Page 84

84

defeating  the  prosecution  case.   In  fact,  as  has  been

recorded by the High Court, the public prosecutor was also

not  spared.   The  factum  of  abscondance  and

non-cooperation  with  the  investigating  team and  also  an

maladroit  effort  to  mislead  the  investigators  have  been

treated  as  aggravating  circumstances  on  the  basis  of

authorities in Praveen Kumar v State of Karnataka63 and

Yakub Abdul Razak Memon v State of Maharashtra64.   

71. The criminal antecedents of accused Vikas Yadav has

been  referred  to  in  detail  by  the  High  Court.   He  was

prosecuted in “Jesica Lal murder case” and convicted under

Section 201/120-B IPC and sentenced to undergo rigorous

imprisonment for four years and to pay a fine of Rs.2000

and,  in  default,  of  payment  of  fine,  to  further  undergo

imprisonment for three months.  This Court in Sidhartha

Vashisht alias Manu Sharma v State (NCT of Delhi)65

affirmed  the  conviction.   The  conclusion  reached  while

affirming the decision of the High Court, is as follows:-

63 (2003) 12 SCC 199 64 (2013) 13 SCC 1 65 (2010) 6 SCC 1

Page 85

85

“303. (9) The High Court has rightly convicted the other two accused, namely, Amardeep Singh Gill @ Tony Gill and Vikas Yadav after appreciation of the evidence of PWs 30 and 101.”

During the period, the said Vikas Yadav was on bail,

he committed the present crime.   

72. Learned  counsel  for  the  appellants  have  submitted

about  the  conduct  of  the  appellants  in  jail  during  their

custody and have highlighted that fourteen years in jail is of

tremendous mental agony.  In Maru Ram (supra), Krishna

Iyer,  J.,  to  appreciate  the  despair  in  custody,  thought  it

apposite to reproduce the bitter expression, from the poem,

namely, The Ballad of Reading Gaol by Oscar Wilde.  The

poet wrote:-

“I know not whether Laws be right,

Or whether Laws be wrong,

All that we know who lie in gaol

Is that the wall is strong;

And that each day is like a year,

A year whose days are long.”

               (emphasis added)

In the said judgment, further lines from the poem have been

reproduced, which read thus:-

Page 86

86

“Something was dead in each of us,

And what was dead was Hope.

* * *

The vilest deeds like poison weeds

Bloom well in prison air:

It is only what is good in Man”

Despite the aforesaid quotation in Maru Ram (supra),

the Court upheld the validity of Section 433-A.

73. In  V.  Sriharan  (supra),  the  majority  in  the

Constitution Bench has succinctly stated thus:-

“  As far as the argument based on ray of hope is concerned, it must be stated that however much forceful the contention may be, as was argued by Mr.Dwivedi, the learned senior counsel appearing for the State, it must be stated that such ray of hope  was  much  more  for  the  victims  who  were done  to  death  and  whose  dependants  were  to suffer the aftermath with no solace left. Therefore, when  the  dreams  of  such  victims  in  whatever manner and extent it was planned, with reference to  oneself,  his  or  her  dependants  and  everyone surrounding him was demolished in an unmindful and in some case  in  a  diabolic  manner  in  total violation of the Rule of Law which is prevailing in an organized society, they cannot be heard to say only  their  rays of  home should prevail  and kept intact.”

And again:-

Page 87

87

“Therefore, we find no scope to apply the concept of  ray  of  hope  to  come  for  the  rescue  of  such hardened, heartless offenders, which if considered in  their  favour  will  only  result  in  misplaced sympathy and again will be not in the interest of the society. Therefore, we reject the said argument outright.”

The  said  conclusion  meets  the  argument  so

assiduously  propounded  by  Mr.  Lalit,  learned  senior

counsel appearing for the appellant.   

74. The  next  contention  that  is  canvassed  pertains  to

non-application of mind by the High Court while imposing

the sentence, for two accused persons have been sentenced

for twenty-five years and Sukhdev, the other appellant, has

been  sentenced  to  twenty  years.   The  High  Court,  while

dealing with Vikas Yadav and Vishal Yadav has opined that

they had misused the process of  law while in jail  and in

their  conduct there is  no sign of  any kind of  remorse or

regret.  As far as the Sukhdev is concerned, the High Court

has taken his conduct in jail which had been chastened and

punishment was imposed once.  The High Court has taken

note of the fact that Sukhdev was the employee of the father

Page 88

88

of Vikas Yadav and he is a married man with five children

and on account of his incarceration, his family is in dire

stress.  A finding has been returned that he is not a person

of substantial means and has lesser paying capacity.  On

the basis of these facts and circumstances, the High Court

has  drawn  a  distinction  and  imposed  slightly  lesser

sentence in respect of Sukhdev.

74A. Thus  analyzed,  we  find  that  the  imposition  of  fixed

term sentence on the appellants by the High Court cannot

be found fault with.  In this regard a reference may be made

to  a  passage  from  Guru  Basavaraj  vs  State  of

Karnataka66, wherein while discussing about the concept

of appropriate sentence, the Court has expressed thus:-

“18. Just punishment is the collective cry of the society.  While  the collective  cry  has to be kept uppermost  in  the  mind,  simultaneously  the principle  of  proportionality  between  the  crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment  should  not  be  disproportionately excessive.  The concept of proportionality allows a significant discretion to the Judge but the same

66 (2013) 7 SCC 545

Page 89

89

has to be guided by certain principles.  In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of  the  convict  to  become  a  criminal  in  future, capability  of  his  reformation  and  to  lead  an acceptable life in the prevalent milieu, the effect – propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the  crime  and  his  conduct  in  the  interregnum bearing  in  mind the  nature  of  the  offence,  the relationship  between  the  parties  and attractability  of  the  doctrine  of  bringing  the convict  to  the  value-based  social  mainstream may  be  the  guiding  factors.   Needless  to emphasise, these are certain illustrative aspects put  forth  in  a  condensed  manner.   We  may hasten  to  add  that  there  can  neither  be  a straitjacket  formula  nor  a  solvable  theory  in mathematical exactitude.  It would be dependent on the facts of the case and rationalized judicial discretion.  Neither the personal  perception of  a Judge  nor  self-adhered  moralistic  vision  nor hypothetical apprehensions should be allowed to have  any  play.   For  every  offence,  a  drastic measure  cannot  be  thought  of.   Similarly,  an offender  cannot  be  allowed  to  be  treated  with leniency solely on the ground of discretion vested in  a  court.  The  real  requisite  is  to  weigh  the circumstances  in  which  the  crimeincarcination meaning]  has  been  committed  and  other concomitant  factors  which  we  have  indicated hereinbefore  and  also  have  been  stated  in  a number of  pronouncements by this  Court.   On such  touchstone,  the  sentences  are  to  be

Page 90

90

imposed.   The  discretion  should  not  be  in  the realm  of  fancy.  It  should  be  embedded  in conceptual essence of just punishment.”

75. Judged on the aforesaid parameters, we reiterate that

the imposition of fixed terms sentence is justified.

76. The next submission pertains to the direction by the

High  Court  with  regard  to  the  sentence  imposed  under

Section 201 to run consecutively.  Learned counsel for the

appellants  have  drawn  our  attention  to  the  Constitution

Bench decision in V. Sriharan (supra) .  The larger Bench

was dealing with the following question:-

“Whether  consecutive  life  sentences  can  be awarded to a convict on being found guilty of a series of murders for which he has been tried in a single trial?”

77. Learned  counsel  appearing  for  the  appellants  have

drawn  out  attention  to  the  analysis  whether  a  person

sentenced  to  undergo  imprisonment  for  life  when  visited

with the “term sentence” should suffer them consecutively

or concurrently.  The larger Bench in that context has held

thus:-

Page 91

91

“We do not, however, think so.  The power of the Court to direct the order in which sentences will run  is  unquestionable  in  view  of  the  language employed in Section 31 of the Cr.P.C.  The Court can,  therefore,  legitimately  direct  that  the prisoner  shall  first  undergo  the  term  sentence before  the  commencement  of  his  life  sentence. Such a direction shall be perfectly legitimate and in tune with Section 31.  The converse however may not be true for if the Court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.”  

78. In the instant case, the trial Court has imposed the life

sentence and directed all the sentences to be concurrent.

The High Court has declined to enhance the sentence from

imprisonment for life to death, but has imposed a fixed term

sentence.  It curtails the power of remission after fourteen

years  as  envisaged  under  Section  433-A.   In  such  a

situation, we are inclined to think that the principle stated

by  the  aforesaid  Constitution  Bench  would  apply  on  all

fours.  The High Court has not directed that the sentence

under Section 201/34 IPC shall  run first and, thereafter,

the  fixed  term  sentence  will  commence.    Mr.  Dayan

Krishnan,  learned senior  counsel  appearing  for  the  State

Page 92

92

has argued that this Court should modify the sentence and

direct  that  the  appellants  shall  suffer  rigorous

imprisonment  for  the  offence  punishable  under  Section

201/34 IPC and, thereafter, suffer the fixed term sentences.

Similar argument has been made in the written submission

by the learned counsel for the informant.  As the High Court

has not done it, we do not think that it will be appropriate

on the  part  of  this  Court  in  the  appeal  preferred by  the

appellants to do so.  Therefore, on this score we accept the

submission of the learned counsel for the appellants and

direct that the sentence imposed for the offence punishable

under Section 201/34 IPC shall run concurrently with the

sentence imposed for other offences by the High Court.

79. The last plank of submission advanced by the learned

counsel for the appellant pertains to imposition of fine by

the  High  Court.   The  High  Court  has  already  given  the

reasons and also adverted to the paying capacities.   The

concept  of  victim  compensation  cannot  be  marginalized.

Adequate compensation is required to be granted.  The High

Court has considered all the aspects and enhanced the fine,

Page 93

93

determined  the  compensation  and  prescribed  the  default

clause. We are not inclined to interfere with the same.

80. Consequently,  the  appeals  are  disposed  of  with  the

singular  modification  in  the  sentence  i.e.  the  sentence

under Section 201/34 IPC shall run concurrently.  Needless

to say, all other sentences and directions will remain intact.

………………………,J.     (Dipak Misra)  

………………………,J.     (C. Nagappan)  

New Delhi October 3, 2016