VIKRAM SINGH @ VICKY & ANR. Vs. UNION OF INDIA & ORS.

Tags Murder

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Crl.), 824 of 2013, Judgment Date: Aug 21, 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.824 OF 2013

Vikram Singh @ Vicky & Anr. …Appellants

Vs.

Union of India & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. This appeal, by special leave, arises in somewhat peculiar
circumstances. The appellants were tried, convicted and sentenced to death
for commission of offences punishable under Sections 302 and 364A of the
Indian Penal Code, 1860. The conviction and sentence awarded to them was
affirmed by the High Court of Punjab and Haryana in appeal and eventually
by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did
not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012
before this Court for a declaration that Section 364A inserted in the IPC
by Act 42 of 1993 was ultra vires the Constitution to the extent the same
prescribes death sentence for anyone found guilty. The petitioner further
prayed for quashing the death sentence awarded to the petitioner by the
trial court as affirmed by the High Court and by this Court in Criminal
Appeals No.1396-1397 of 2008. A mandamus directing commutation of the
sentence awarded to the petitioner to imprisonment for life was also prayed
for. The writ petition was eventually withdrawn with liberty to the
petitioners to approach the jurisdictional High Court for redress. The
appellant, thereafter, moved the High Court of Punjab and Haryana at
Chandigarh in CWP No.18956 of 2012 praying for a mandamus striking down
Section 364A of the IPC and for an order restraining the execution of the
death sentence awarded to them. Reopening of the case of the appellants and
commutation of the death sentence for imprisonment for life were also
prayed for in the writ petition. A Division Bench of the High Court of
Punjab and Haryana has, while dismissing the said petition by its judgment
and order dated 3rd October, 2012, taken the view that the question whether
Section 364A of the IPC was attracted to the case at hand and whether a
person found guilty of an offence punishable under the provision could be
sentenced to death was not only raised by the appellants as an argument
before this Court in appeal filed by them, but, was noticed and found
against them. The High Court while saying so relied upon the following
passage of the judgment of this Court in the appeal filed by the appellants
against their conviction:

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

2. The High Court further held that the question of quantum of sentence
had also been examined by this Court in the following paragraph of the
judgment delivered in the criminal appeal filed by the appellants:

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

3. The High Court on the above reasoning concluded that this Court had
considered the nature of the offence and its gravity and held that the
appellants deserved the maximum punishment prescribed for both the offences
proved against them. The High Court held that the plea now sought to be
raised by the writ-petitioners to the effect that Section 364A of the IPC
was attracted only when the offence was committed against the government or
a foreign country etc. or that no such offence was made out in the case of
the petitioners, had been examined and decided against the petitioners
which plea could not be re-agitated by them in collateral proceedings.
Having said that the High Court proceeded to examine the plea raised by the
appellants on its merit, referred to the historical background in which the
provisions of Section 364A were added to the statute book and held that
Section 364A of IPC, even in the form in which it was initially introduced,
made kidnapping by any person in the circumstances indicated in the said
provision an offence no matter at the time of initial insertion of Section
364A, India was not committed to the International Convention Against the
Taking of Hostages, 1979 to which it became a party only on 7th September,
1994. It was only thereafter that Section 364A was amended to incorporate
the expression “any foreign state or international inter-governmental
organization or any other person” to honour the commitment under the said
Convention. The High Court, accordingly, repelled the argument that Section
364A was attracted only in situations where kidnapping was meant to coerce
the government or any international organization to do or not to do a
particular act including the demand for payment of ransom. The writ
petition was, on that reasoning, dismissed by the High Court, which
dismissal is what is under challenge in this appeal before us.

4. When the appeal initially came up before a two-Judge Bench of this
Court, the same was directed to be placed before a larger Bench for an
authoritative pronouncement especially because the appellants had been
awarded a death sentence which stood affirmed by a Bench of coordinate
jurisdiction. That is precisely how the matter has come up before us for
final hearing.

5. Appearing for the appellants, Mr. Tripurari Ray followed by M/s Altaf
Ahmad and R.S. Sodhi, senior advocates, who appeared for the interveners,
strenuously argued that Section 364A of the IPC was attracted only in
situations where an offence was committed against the Government, any
foreign State or international inter-governmental organisation. The
provision, argued the learned counsel, had no application to situations in
which a victim was abducted or kidnapped for ransom demand from a private
individual. The provisions of Section 364A, it was contended, were meant to
deal with kidnapping by terrorists for ransom or where terrorists take
hostages with a view to compelling the Government or a foreign State or
international inter-governmental organisation to do or abstain from doing
any act including payment of ransom.

6. On behalf of the respondents, it was contended by Mr. Ranjit Kumar,
Solicitor General, that the question whether Section 364A IPC was attracted
to the fact situation of the case at hand was examined and decided by this
Court in the criminal appeal filed by the appellants against their
conviction and sentence. The view taken by this Court in the appeal having
attained finality, it was not open to the appellants to re-agitate the
issue in collateral proceedings. Reliance in support of that submission was
placed upon the decisions of this Court in Naresh Shridhar Mirajkar etc. v.
State of Maharashtra (AIR 1967 SC 1), Prem Chand Garg v. Excise
Commissioner, U.P., Allahabad (AIR 1963 SC 996) and Rupa Ashok Hurra v.
Ashok Hurra and Anr. (2002) 4 SCC 388.

7. Alternatively, it was contended that Section 364A of the IPC was
widely worded to cover not only situations where terrorists take hostages
to compel the Government or a foreign State or any international inter-
governmental organisation but also where any person abducts or kidnaps the
victim for no more than compelling payment of ransom by the family of the
victim. It was contended that the High Court had rightly analysed the
provisions, examined the historical perspective to hold that Section 364A
was not confined only to cases involving acts of terrorism but was
attracted even in cases where the crime is committed for securing ransom.

8. There is no gainsaying that in an appeal directed against an order of
conviction and sentence, the appellant is entitled to urge all such
contentions as are open to him in law and on facts. One of the contentions
open to the aggrieved convict in such cases is that the provision under
which he has been convicted has no application to his case or that the
ingredients of the offence with which he has been charged are not
established to justify his conviction. It follows that the contention that
Section 364A was not attracted in the present case was open to the
appellants and was in fact advanced on their behalf in the appeal filed by
them. Not only that, the contention was examined and rejected. So long as
that rejection holds the field, there is no room for this Court or any
other court for that matter to take a contrary view. The writ petition
filed by the appellants to the extent the same sought to urge that section
364A was not attracted to the case at hand was, thus, not maintainable in
law.
9. In Rupa Ashok Hurra’s case (supra), a Constitution Bench of this
Court examined the options available to a litigant aggrieved of a final
judgment/order of this Court after the dismissal of the review petition
filed by him. This Court reviewed the case law on the subject and held that
a final judgment/order passed by this Court cannot be assailed in an
application under Article 32 of the Constitution of India by an aggrieved
person regardless whether he was or was not a party to the case. This Court
also examined the competing considerations of giving finality to the
judgments of the Court of last resort, on the one hand, and the need to
dispense justice on reconsideration of a judgment on the other and held
that in rarest of rare situations, a final judgment of the Court may
require re-consideration to set right the miscarriage of justice complained
of. In such cases it would not only be proper but even obligatory for the
Court to both legally and morally rectify the error. This Court further
held that the duty to do justice in such rarest of rare cases shall prevail
over the policy of certainty or finality of judgments. The following two
passages from the decision are apposite:
“40. The petitioners in these writ petitions seek re-consideration of the
final judgments of this Court after they have been unsuccessful in review
petitions and in that these cases are different from the cases referred to
above. The provision of Order XL Rule 5 of the Supreme Court Rules bars
further application for review in the same matter. The concern of the Court
now is whether any relief can be given to the petitioners who challenge the
final judgment of this Court, though after disposal of review petitions,
complaining of the gross abuse of the process of Court and irremedial
injustice. In a State like India, governed by rule of law, certainty of law
declared and the final decision rendered on merits in a lis between the
parties by the highest court in the country is of paramount importance. The
principle of finality is insisted upon not on the ground that a judgment
given by the apex Court is impeccable but on the maxim "Interest
reipublicae ut sit finis litium”.

41. xxxxxxxxxx

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

10. In the case at hand, the writ petition filed by the appellants under
Article 32 of the Constitution of India was dismissed as withdrawn with
liberty reserved to the appellants to approach the High Court. Even so, in
the light of the pronouncement of this Court in Rupa Ashok Hurra’s case
(supra), if against a final judgment of this Court, a remedy was not
available under Article 32 of the Constitution the same would also not be
available under Article 226. If this Court could not take resort to Article
32 for reopening for examination its final judgement, the High Court could
also not do so under Article 226. The only remedy which the appellants
could resort to in terms of the view taken in Rupa Ashok Hurra’s case
(supra) is by invoking this Court’s inherent powers under Articles 129 and
142 of the Constitution of India for recall, reversal or modification of
the order passed by this Court in the criminal appeal filed by the
appellants. A writ petition before the High Court for that relief was
clearly untenable in law.
11. Legal impediments in the choice of the remedy available to the
appellants have not dissuaded the High Court from examining and answering
the contentions sought to be raised on the merits of the case. We too
propose to go into the merits of the contentions urged on behalf of the
appellants, no matter it may not be necessary to do so in the light of what
we have said about the maintainability of the proceedings brought by the
appellants. We do so not only because the matter was argued at considerable
length before us but also because the lives of the appellants hang in the
balance. We will, therefore, be loathe in shutting out the arguments
advanced on behalf of the appellants on a technical ground touching the
maintainability of the petition filed by the appellants.
12. Any attempt to properly understand the true scope and purport of
Section 364A must, in our opinion, start with the historical background in
which the provision came on the statute book. When we do so, we find that
the proposal for addition of Section 364A to the Indian Penal Code was
first modified by the Law Commission of India in its 42nd Report submitted
in 1971. The relevant portion of the report reads as under:

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

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

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

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Chapter 25

SUMMARY OF RECOMMENDATIONS

25.1. xxxxxxxxxxx

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

xxxxxxxxxxxxxxx

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

13. The recommendations of the Law Commission appear to have languished
for nearly two decades before the Criminal Law (Amendment) Bill, 1992 was
presented to the Parliament by the Government proposing to add to the IPC
Section 364A in a form slightly different from the one in which the Law
Commission had recommended such addition. What is important is that in the
statement of Objects and Reasons, accompanying the bill, a two-fold
justification was given by the Government for the proposed addition namely:
(i) that kidnappings by terrorists for ransom for creating panic amongst
the people and for securing release of their associates and cadres had
assumed serious dimensions and (ii) The Law Commission had in its 42nd
Report recommended a specific provision to deal with the menace of
kidnapping and abductions for ransom. The Bill eventually led to the
Criminal Law Amendment Act 1993 (Act 42 of 1993), introducing Section 364A
to the Indian Penal Code with effect from 22nd May, 1993, in the following
words:

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

14. Shortly after the introduction of the above provision arose the need
for an amendment to the same. The amendment was necessitated by reason of
India acceding to the international convention against the taking of
hostages adopted by the General assembly of the United Nations on 17th
December, 1979 in the background of Iranian hostage crisis. The Convention
aimed at fighting international terrorism, came into force with effect from
3rd June, 1983 but was acceded to by India with effect from 7th September,
1994.

15. The Indian Penal Code (Amendment) Bill 1994, Bill No.LXV of 1994 was,
in the above background, introduced in the Rajya Sabha on 25th August, 1994
to amend Section 364A so as to substitute the expression “any other person”
by the words “any foreign State or international inter-governmental
organisation or any other person” in the said section. The Statement of
Objects and Reasons for the amendment also gave the background in which the
amendment was considered necessary. The Statement of Objects and Reasons
accompanying the bill were as under:

“STATEMENT OF OBJECTS AND REASONS

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

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

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

The bill seeks to achieve the above object.”

16. A Committee of Home Affairs constituted by Rajya Sabha examined the
issue and submitted a report dated 29th November, 1994 in support of the
amendment to Section 364A. The existing Section 364A did not, it opined,
take care of situation where the offence was committed with a view to
compel a foreign State or international inter-governmental organisation to
do or abstain from doing any act or paying ransom. The relevant extract of
the Report is as under:

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

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

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

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

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

Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said
section 364A on kidnapping for ransom, etc. to make it clear that
kidnapping a person to compel the Government or any foreign State or
international inter-governmental organization or any other person is
punishable under that section.”

17. It is evident from the above that Section 364A came on the statute
book initially in the year 1993 not only because kidnapping and abduction
for ransom were becoming rampant and the Law Commission had recommended
that a separate provision making the same punishable be incorporated but
also because activities of terrorist organisations had acquired menacing
dimensions that called for an effective legal framework to prevent such
ransom situations and punish those responsible for the same. It is also
manifest that the further amendment to Section 364A in the year 1994 simply
added the expressions “foreign state or international inter-governmental
organisation” to the provision without deleting the pre-existing expression
“any other person”.

18. A conspectus of the above leaves no manner of doubt that the
expression “any other person” appearing in Section 364A right from the time
of its initial incorporation in the Code was meant to apply the provisions
not only to situations where the Government was asked to pay ransom or to
do any other act but even to situations where any other person which would
include a private person also was asked to pay ransom. The subsequent
amendment in the year 1994 also did not remove the expression “any other
person” in Section 364A while adding the expression “foreign State or
international inter Government organisation” to the provision as it
originally existed.

19. There is nothing in the provision to suggest that the same is
attracted only in ransom situations arising in acts of terrorism directed
against the Government or any foreign state or international inter-
governmental organization. The language employed in the provision is, in
our view, wide enough to cover even cases where the demand for ransom is
made not as a part of any terrorist act but also for monetary gain from a
private individual.
20. It was next argued by Mr. Sodhi that kidnapping for ransom was
already covered by the existing provisions in the IPC. He urged that
Sections 359, 360 and 361 of the IPC deal with ‘kidnapping’, which
according to Section 359 is of two kinds viz. kidnapping from India and
kidnapping from lawful guardianship. ‘Kidnapping from India’ is under
Section 360 of the IPC while ‘kidnapping from lawful guardianship’ is
covered by Section 361 of the IPC. Both the situations are made punishable
under Section 363 of the IPC with imprisonment for a term which may extend
to seven years besides fine. ‘Abduction’ defined in Section 362 of the IPC,
is not by itself punishable as is the case with kidnapping.

21. Section 383 of the IPC defines ‘extortion’, while Section 384 of the
IPC makes the same punishable with imprisonment that may extend to three
years, or with fine, or with both. Similarly, Sections 386, 387, 388, 389
of the IPC deal with aggravated forms of extortion and are made suitably
punishable. It was contended that once a person is kidnapped and put in
fear of death or injury to coerce the person so kidnapped or any other
person to deliver any property or valuable security or anything signed
which may be converted into a valuable security can be punished suitably
under the provisions mentioned above. This, according to Mr. Sodhi implies
that the existing provisions in the IPC were sufficient to deal with
ordinary situations involving kidnapping for ransom, thereby, making it
unnecessary for the Parliament to introduce Section 364A of the IPC to
cover an ordinary crime situation. The corollary, according to Mr. Sodhi,
is that Section 364A was added only to deal with terrorist related ransom
situations and not ordinary crimes, like the one in the case at hand.

22. The argument though attractive does not stand on closer scrutiny. The
reasons are not far to seek. Section 364A has three distinct components
viz. (i) the person concerned kidnaps or abducts or keeps the victim in
detention after kidnapping or abduction; (ii) threatens to cause death or
hurt or causes apprehension of death or hurt or actually hurts or causes
death; and (iii) the kidnapping, abduction or detention and the threats of
death or hurt, apprehension for such death or hurt or actual death or hurt
is caused to coerce the person concerned or someone else to do something or
to forbear from doing something or to pay ransom. These ingredients are, in
our opinion, distinctly different from the offence of extortion under
Section 383 of the IPC. The deficiency in the existing legal framework was
noticed by the Law Commission and a separate provision in the form of
Section 364A proposed for incorporation to cover the ransom situations
embodying the ingredients mentioned above. The argument that kidnapping or
abduction for ransom was effectively covered under the existing provisions
of the IPC must, therefore, fail.

23. We may before parting with this aspect of the matter also deal with
the argument that the expression ‘any other person’ appearing in Section
364A ought to be read ejusdem generis with the expression preceding the
said words. The argument needs notice only to be rejected. The rule of
ejusdem generis is a rule of construction and not a rule of law. Courts
have to be very careful in applying the rule while interpreting statutory
provisions. Having said that the rule applies in situations where specific
words forming a distinct genus class or category are followed by general
words. The first stage of any forensic application of the rule, therefore,
has to be to find out whether the preceding words constitute a genus class
or category so that the general words that follow them can be given the
same colour as the words preceding. In cases where it is not possible to
find the genus in the use of the words preceding the general words, the
rule of ejusdem generis will have no application.

24. In M/s. Siddeshwari Cotton Mills (P) Ltd. v. Union of India and
Anr. (1989) 2 SCC 458 M.N. Venkatachaliah, J., as His Lordship then was,
examined the rationale underlying ejusdem generis as a rule of construction
and observed:

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

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

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

25. Relying upon the observations made by Francis Bennion in his
“Statutory Construction” and English decisions in SS Magnhild v. McIntyre
Bros. & Co. (1920) 3 KB 321 and those rendered by this Court in Tribhuban
Prakash Nayyar v. Union of India (1969) 3 SCC 99, UPSEB v. Hari Shanker
(1978) 4 SCC 16, his Lordship summed-up the legal principle in the
following words:

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

26. Applying the above to the case at hand, we find that Section 364A
added to the IPC made use of only two expressions viz. ‘government’ or ‘any
other person’. The Parliament did not use multiple expressions in the
provision constituting a distinct genus class or category. It used only
one single expression viz. ‘government’ which does not constitute a genus,
even when it may be a specie. The situation, at hand, is somewhat similar
to what has been enunciated in ‘Craies on Statute Law’ (7th Edn.) at pages
181-182 in the following passage:

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

(emphasis supplied)

27. The above passage was quoted with approval by this Court in Grasim
Industries Ltd. v. Collector of Customs, Bombay (2002) 4 SCC 297 holding
that note 1(a) of Chapter 84 relevant to that case was clear and
unambiguous. It did not speak of a class, category or genus followed by
general words making the rule of ejusdem generis inapplicable.

28. There is yet another angle from which the issue can be viewed. The
term ‘person’ used in the expression ‘any other person’, appearing in
Section 364A of the IPC must be understood as referring to ‘person’ as
defined in Section 11 of the IPC. Section 11 of the IPC defines the term
‘person’ as under:

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

29. This would mean that the term ‘person’ appearing in Section 364A
would include a company or association or body of persons whether
incorporated or not, apart from natural persons. The tenor of the
provision, the context and the statutory definition of the expression
‘person’ all militate against any attempt to restrict the meaning of the
term ‘person’ to the ‘government’ or ‘foreign State’ or ‘international
inter-governmental organisations’ only.

30. That brings us to the only other contention urged on behalf of the
appellants. It was argued that Section 364A to the extent it denied to the
Courts the discretion to award a sentence other than death or life
imprisonment was ultra vires of the right to life guaranteed to the
appellants under Article 21 of the Constitution. Support for that
proposition was drawn from the decision of this Court in Mithu etc. v.
State of Punjab etc. (1983) 2 SCC 277 whereby a Constitution Bench of this
Court, struck down Section 303 of the IPC as unconstitutional. It was urged
that denial of judicial discretion to award a sentence other than death was
held by this Court to be a reason good enough to declare the provision
constitutionally invalid. Since Section 364A, also did not leave any
discretion with the Court in the matter of sentence except death or life
imprisonment, it was on a parity of reasoning liable to be struck down as
unconstitutional.
31. On behalf of the respondents, it was argued that Mithu’s case (supra)
was clearly distinguishable inasmuch as the Court was in that case dealing
with Section 303 IPC which did not leave any option for the Court except to
award death sentence to a convict who while undergoing life imprisonment
committed a murder. That is not the position in the case at hand where the
Parliament has prescribed alternative sentences leaving it for the courts
concerned to award what is considered suitable in the facts and
circumstances of a given case. It was also submitted that there was nothing
outrageous about the sentence provided under Section 364A, keeping in view
the nature and gravity of the offence and the fact that kidnappings and
abductions for ransom had assumed alarming dimensions in the country apart
from the fact that terrorists were also using that method to achieve their
nefarious ends. Similar sentences were prescribed for several offences
under the IPC that were considered grave by the Parliament who represent
the will of the people. There was at any rate no reason for this Court to
go into the question of quantum of sentence after the matter had been
thoroughly examined in the criminal appeal filed by the appellants
including on the question of sentence to be awarded to them. The issue
whether a lesser punishment would meet the ends of justice may arise in a
given case where the victim is released soon after he is kidnapped or
abducted without doing any harm to him. But in the case at hand, the
victim was done to death which called for the extreme penalty rightly
awarded to the appellants upon consideration of the relevant circumstances.
Reference was also made to the decisions of this Court in Malleshi v.
State of Karnataka (2004) 8 SCC 95; Suman Sood @ Kamal Jeet Kaur v. State
of Rajasthan (2007) 5 SCC 634; Vinod v. State of Haryana (2008) 2 SCC 246
and Akram Khan v. State of West Bengal (2012) 1 SCC 406, in which too life
sentence was awarded even when the victim was released unharmed. It was
lastly argued that courts must show deference to parliamentary wisdom
underlying a legislation and as far as possible avoid interference with the
quantum of sentence prescribed by law unless of course the same was so
outrageously brutal, barbaric or disproportionate as to be unacceptable by
any civilised society. That not being the case at hand, there was no
compelling need for this Court to interfere, argued the learned Counsel.
32. In Mithu’s case (supra), this Court had before it a challenge to the
constitutional validity of Section 303, which prescribed but one sentence
for an offender who committed a murder while undergoing a sentence of
imprisonment for life. This Court struck down Section 303 of the IPC
holding that there was no rational basis for classifying persons who
committed murder while they are under a sentence of life imprisonment and
those who are not under any such sentence for purposes of awarding to the
former category a mandatory death sentence. The Court held that Section 303
assumed that life convicts are a dangerous breed of humanity as a class,
without there being any scientific data for such an assumption. This Court
further found that prescription of a mandatory death sentence for the
offence of murder as a second offence merely for the reason that the
offender was under a sentence of life imprisonment for the first such
offence is arbitrary and unreasonable, and that mandatory death sentence
would not serve any social purpose. The motivation of the two offences may
be different, the circumstances in which they may be committed may be
different and even the two offences may be basically different genre. This
Court also found that there was no rational distinction between a person
who commits murder while undergoing the sentence of life imprisonment and
another who does so after he has already undergone such sentence. This
Court in the above backdrop took the view that the mandatory death sentence
deprived the Court of its wise and beneficial discretion in the matter of
life and death, making it harsh, unjust and unfair.
33. The above features, noticed by this Court in Mithu’s case (supra),
are not present in the case at hand for Section 364A does not mandate a
death sentence as was the case with Section 303 of the IPC. In Section
364A, the Court enjoys the discretion whether to award the extreme penalty
of death or the lesser alternative of a life imprisonment. There is also
no element of any discrimination between persons who commit the offence,
like the one noticed by this Court in Mithu’s case (supra). Whether life
or death would be the proper sentence is in the absolute discretion of the
Court which the Courts are expected to exercise wisely having regard to the
facts of the case and the gravity of the offence and its severity or
barbarity. To that extent, there is indeed no comparison between Mithu’s
case (supra) and the case of the appellants who have been awarded death
sentence not because the law so mandated but because this Court after
considering the attendant circumstances found that to be the only sentence
which would meet the ends of justice. This is evident from the following
passages appearing in the judgment of this Court in the criminal appeal
filed by the appellants [Vikram Singh & Ors. v. State of Punjab (2010) 3
SCC 56]:

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

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

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

xxxxxxxxxxxxxxxxxxxxxxxxxxx

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

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

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

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

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

“14. So far as appellant Gopi is concerned, he not only did participate by
pulling the rope around the neck of the boy, as already narrated, but went
to his house and brought a coir rope. After removing the rope from the neck
of the boy, he encircled the coir rope again around the boy’s neck and
pulled the said rope for about half a minute and the boy stopped breathing.
Thereafter he took out one Keltron TV box from underneath the cot and
packed the boy in the box. These aggravating circumstances on the part of
accused Mohan and Gopi clearly demonstrate their depraved state of mind and
the brutality with which they took the life of a young boy. It further
transpires that after killing the boy and disposing of the dead body of the
boy, Mohan also did not lose his lust for money and got the ransom of Rs 5
lakhs.”

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

34. Reliance upon Mithu’s case (supra) does not, therefore, help the
appellant in their challenge to the vires of Section 364A. Having said
that, we must add that a legislation is presumed to be constitutionally
valid with the burden of showing the contrary lying heavily upon any one
who challenges its validity. Not only that, courts show due deference to
the parliamentary wisdom and exercise self restraint while examining the
vires of legislations validly enacted. Reference may in this regard be
made to the decision of this Court in Maru Ram v. Union of India & Ors.
(1981) 1 SCC 107 where Fazal Ali, J. in his concurring judgment observed:
“93. Thus, on a consideration of the circumstances, mentioned above, the
conclusion is inescapable that Parliament by enacting Section 433-A has
rejected the reformative character of punishment, in respect of offences
contemplated by it, for the time being in view of the prevailing conditions
in our country. It is well settled that the legislature understands the
needs and requirements of its people much better than the courts because
the [pic]Parliament consists of the elected representatives of the people
and if the Parliament decides to enact a legislation for the benefit of the
people, such a legislation must be meaningfully construed and given effect
to so as to subserve the purpose for which it is meant.”

35. Reference may also be made to the decision of this Court in Bachan
Singh v. State of Punjab (1980) 2 SCC 684 where Sarkaria, J. speaking for
majority observed:

“175. We must leave unto the Legislature, the things that are
Legislature’s. “The highest judicial duty is to recognise the limits on
judicial power and to permit the democratic processes to deal with matters
falling outside of those limits.” As Judges, we have to resist the
temptation to substitute our own value-choices for the will of the people.
Since substituted judicial “made-to-order” standards, howsoever
painstakingly made, do not bear the people’s imprimatur, they may not have
the same authenticity and efficacy as the silent zones, and green belts
designedly marked out [pic]and left open by Parliament in its legislative
planning for fair play of judicial discretion to take care of the variable,
unpredictable circumstances of the individual cases, relevant to
individualised sentencing. When Judges, acting individually or
collectively, in their benign anxiety to do what they think is morally good
for the people, take upon themselves the responsibility of setting down
social norms of conduct, there is every danger, despite their effort to
make a rational guess of the notions of right and wrong prevailing in the
community at large and despite their intention to abide by the dictates of
mere reason, that they might write their own peculiar view or personal
predilection into the law, sincerely mistaking that changeling for what
they perceive to be the community ethic. The perception of “community”
standards or ethics may vary from Judge to Judge. In this sensitive highly
controversial area of death penalty, with all its complexity, vast
implications and manifold ramifications, even all the Judges sitting
cloistered in this Court and acting unanimously, cannot assume the role
which properly belongs to the chosen representatives of the people in
Parliament, particularly when Judges have no divining rod to divine
accurately the will of the people. In Furman 408 US 238 ((1992), the
Hon’ble Judges claimed to articulate the contemporary standards of morality
among the American people. But speaking through public referenda, Gallup
Polls and the State legislatures, the American people sharply rebuffed
them. We must draw a lesson from the same.”

36. To the same effect are the observations made by this Court in State
of M.P. v. Bala alias Balaram (2005) 8 SCC 1 where this Court said:
“12. The punishments prescribed by the Penal Code reflect the legislative
recognition of the social needs, the gravity of the offence concerned, its
impact on the society and what the legislature considers as a punishment
suitable for the particular offence. It is necessary for the courts to
imbibe that legislative wisdom and to respect it.”

37. In a Parliamentary democracy like ours, laws are enacted by the
Parliament or the State legislature within their respective legislative
fields specified under the Constitution. The presumption attached to these
laws is that they are meant to cater to the societal demands and meet the
challenges of the time, for the legislature is presumed to be supremely
wise and aware of such needs and challenges. The means for redressing a
mischief are also in the realm of legislation and so long as those means
are not violative of the constitutional provisions or the fundamental
rights of the citizens, the Courts will show deference towards them. That,
however, is not to say that laws that are outrageously barbaric or
penalties that are palpably inhuman or shockingly disproportionate to the
gravity of the offence for which the same are prescribed cannot be
interfered with. As observed by Chandrachud, CJ in Mithu’s case (supra)
if the Parliament were tomorrow to amend the IPC and make theft of cattle
by a farmer punishable with cutting of the hands of the thief, the Courts
would step in to declare the provision as constitutionally invalid and in
breach of the right to life. The Court observed:

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

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.824 OF 2013

Vikram Singh @ Vicky & Anr. …Appellants

Vs.

Union of India & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

41. xxxxxxxxxx

xxxxxxxxxxxxxxxxxxx

Chapter 25

SUMMARY OF RECOMMENDATIONS

25.1. xxxxxxxxxxx

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

xxxxxxxxxxxxxxx

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

“STATEMENT OF OBJECTS AND REASONS

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

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

The bill seeks to achieve the above object.”

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

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

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

(emphasis supplied)

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

xxxxxxxxxxxxxxxxxxxxxxxxxxx

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

35. Reference may also be made to the decision of this Court in Bachan
Singh v. State of Punjab (1980) 2 SCC 684 where Sarkaria, J. speaking for
majority observed:

38. That punishment must be proportionate to the offence is recognised as
a fundamental principle of criminal jurisprudence around the world. In
Weems v. United States (217 US 349; 54 L.Ed 793; 30 S. Ct 544 (1910) the
petitioner had been convicted for falsifying a public document and
sentenced to 15 years of what was described as ‘cadena temporal’, a form of
imprisonment that included hard labour in chains and permanent civil
disabilities. The US Supreme Court, however, declared the sentence to be
cruel not only in terms of length of imprisonment but also in terms of
shackles and restrictions that were imposed by it. That punishment for
crime should be graduated and proportionate to the offence, is a precept of
justice, declared the Court.

39. That decision was followed by Enmund v. Florida 647 458 US 782 (1982)
where the Court held that death penalty was excessive for the felony of
murder where the petitioner did not take life, attempt to take life or
intend that life be taken or that lethal force be used. In Coker v. Georgia
433 US 584 (1977) US Supreme Court held sentence of death to be grossly
disproportionate and excessive for the crime of rape. In Herman Solem v.
Jerry Buckley Helm 463 US 277, 77 Led 2d 637, 103 S Ct 3001, the US Supreme
Court was dealing with a case where Helm was found guilty of what is
described as “uttering a no account check” for 100 dollars, ordinarily
punishable with imprisonment for a period of five years and a fine of 5000
dollars but was sentenced under the recidivist statute of South Dakota to
undergo imprisonment for life. The question that fell for determination was
whether the sentence was disproportionate to the crime committed by Helm.
The Court by majority held that the general principle of proportionality
was applicable as much to sentence of imprisonment as it was to capital
sentences and that while applying the proportionality principle in capital
cases, the Court had not drawn any distinction between capital cases, on
the one hand, and case of imprisonment, on the other, even when the penalty
of death differs from all other forms of punishment not in degree but in
kind. The Court held that decisions rendered in capital cases were not of
much assistance while deciding the constitutionality of punishments in non-
capital cases, with the result that outside the context of capital
punishment, successful challenges to the proportionality of sentences were
exceedingly rare. That did not, observed the Court, however, mean that
proportionality analysis was entirely inapplicable to the non-capital
cases. The Court summed-up its conclusion regarding the doctrine of
proportionality as applicable to cases involving sentence of imprisonment
in the following words:
“[6a, 7, 8] In sum, we hold as a matter of principle that a criminal
sentence must be proportionate to the crime for which the defendant has
been convicted. Reviewing courts, of course, should grant substantial
deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well as to
the discretion that trial courts possess in sentencing convicted criminals.
But no penalty is per se constitutional. As the Court noted in Robinson v.
California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417, a single day in
prison may be unconstitutional in some circumstances.”

40. More importantly, the Court recognised the following guiding
principles for determining whether the sentence of imprisonment was
disproportionate to the offence allegedly committed by the accused:

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

41. Applying the above principles to the case before it, the Court
declared:

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

42.   More recently in Ronald Allen Harmelin v. Michigan 501 US 957 the
U.S. Supreme Court revisited the approach to be adopted while determining
the question of constitutionality of sentences for non-capital offences.
This was a case where the petitioner was convicted for possessing 672 gms.
of cocaine and sentenced to a mandatory term of life in prison without
possibility of parole.   The question that fell for consideration was
whether the mandatory life imprisonment was in consonance with the Eighth
Amendment to the U.S. Constitution. Kennedy, J. in his concurring judgment
noted the view taken by the Court in Weems v. United States (supra), Enmund
v. Florida 458 US 782, Rummel v. Estelle 445 U.S 263, and Solem v. Helm 463
US 277 to observe that although the said decisions recognise the principle
of proportionality, its precise contours remain unclear. The Court, based
on a conspectus of the decisions, formulated some common principles
applicable in situations that   required   examination   of   limits   of
proportionality. The first principle culled out from the decisions earlier
pronounced by the Court was that prescribing punishment for crimes rests
with the legislature and not Courts and that Courts ought to show deference
to the wisdom of the legislature. The Court observed:

“The first of these principles is that the fixing of prison terms for
specific crimes involves a substantive penological judgment that, as a
general matter, is “properly within the province of legislatures, not
courts.” Rumel, supra, at 275-276, 63 L Ed2d 382, 100 S Ct 1133.
Determinations about the nature and purposes of punishment for criminal
acts implicate difficult and enduring questions respecting the sanctity of
the individual, the nature of law, and the relation between law and the
social order. “As a moral or political issue [the punishment of offenders]
provokes intemperate emotions, deeply conflicting interests and intractable
disagreements.” D. Garland, Punishment and Modern Society 1 (1990).   The
efficacy of any sentencing system cannot be assessed absent agreement on
the purposes and objectives of the penal system.   And the responsibility
for making these fundamental choices and implementing them lies with the
legislature. See Gore v. United States [51 US 999] 357 US 386, 393, 2 L
Ed 2d 1405, 78 S Ct 1280 (1958) (“whatever views may be entertained
regarding severity of punishment, whether one believes in its efficacy or
its futility…these are peculiarly questions of legislative policy).   Thus,
“[r]eviewing courts…should grant substantial deference to   the   broad
authority that legislatures necessarily possess in determining the types
and limits of punishments for crimes.” Solem, supra, at 290, 77 L Ed 2d
637, 103 S Ct 3001. See also Rummel, supra, at 274, 63 L Ed 2d 382, 100 S
Ct 1133 (acknowledging “reluctance to review legislatively mandated terms
of imprisonment”); Weems, supra, at 379, 54 L Ed 793, 30 S Ct 544 (“The
function of the legislature is primary, its exercises fortified   by
presumptions of right and legality, and is not to be interfered with
lightly, nor by any judicial conception of their wisdom or propriety”).”

43. The second principle recognised by the Court was that the Eight
Amendment does not mandate adoption of any one penological theory and that
principles that guide criminal sentencing have varied with the times.

44. The third principle recognised that divergences, both in underlying
theories of sentencing and in the length of prescribed prison terms, is
inevitable, because of the federal structure. The fourth principle shaped
by the court was that proportionality review by federal courts must be
informed by objective factors to the maximum possible extent. While saying
so, the Court held that penalty of death differs from all other forms of
criminal punishments and that the easiest comparison between different
sentences is the comparison between capital punishment and non capital
punishment. The decision also recognised that objective standards to
distinguish between sentences for different terms of years are lacking with
the result that outside the context of capital punishment, successful
challenges to the proportionality of particular sentences are exceedingly
rare. The Court summed-up in the following words:

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

45. In Ewing v. California [538 US 11] the US Supreme Court held that it
is enough if the state has a reasonable basis for believing that its
punishment advances the goals of its criminal justice system in any
substantial way. The Court upheld the sentence of life imprisonment
awarded to Ewing for theft of three golf sticks because it reflected a
rational legislative judgment, entitled to deference. The Court observed:

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

xxxx xxxx xxxx
xxxx xxxx xxxx

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

46. The Canadian view on the principle of proportionality of sentence is
no different. Several decisions of the Canadian Supreme Court, have held
proportionality of punishment to the gravity of the offence to be a
constitutional requirement. In R. v. Smith (1987) 1 SCR 1045, the Supreme
Court of Canada said:

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

47. In R. v. Goltz (1991) 3 SCR 485, the Canadian Supreme Court also
recognised the principle that legislative edicts as to quantum of
punishment should not be lightly upset. The Court observed:

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

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

48. In R. v. Fergusson (2008) 1 SCR 96, the Canadian Supreme Court held
that for the Court to interfere with the sentencing provision it was not
enough to say that the sentence was excessive. What must be demonstrated is
that the sentence is so outrageously disproportionate that the Canadians
would find the punishment abhorrent or intolerable. The following
observations succinctly sum up the test to be adopted:

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

49. To sum up:

(a) Punishments must be proportionate to the nature and gravity of the
offences for which the same are prescribed.

(b) Prescribing punishments is the function of the legislature and not
the Courts’.

(c) The legislature is presumed to be supremely wise and aware of the needs
of the people and the measures that are necessary to meet those needs.

Courts show deference to the legislative will and wisdom and are slow in
upsetting the enacted provisions dealing with the quantum of punishment
prescribed for different offences.

(e) Courts, however, have the jurisdiction to interfere when the
punishment prescribed is so outrageously disproportionate to the offence or
so inhuman or brutal that the same cannot be accepted by any standard of
decency.

(f) Absence of objective standards for determining the legality of the
prescribed sentence makes the job of the Court reviewing the punishment
difficult.

(g) Courts cannot interfere with the prescribed punishment only because
the punishment is perceived to be excessive.

(h) In dealing with questions of proportionality of sentences, capital
punishment is considered to be different in kind and degree from sentence
of imprisonment. The result is that while there are several instances when
capital punishment has been considered to be disproportionate to the
offence committed, there are very few and rare cases of sentences of
imprisonment being held disproportionate.

      50.   Applying the above to the case at hand, we find that the need
to bring in Section 364A of the IPC arose initially because of the
increasing incidence of kidnapping and abduction for ransom. This is
evident from the recommendations made by the Law Commission to which we
have made reference in the earlier part of this judgment. While those
recommendations were pending with the government, the specter of terrorism
started raising its head threatening not only the security and safety of
the citizens but the very sovereignty and integrity of the country, calling
for adequate measures to curb what has the potential of destabilizing any
country. With terrorism assuming international dimensions, the need to
further amend the law arose, resulting in the amendment to Section 364A, in
the year 1994. The gradual growth of the challenges posed by kidnapping and
abductions for ransom, not only by ordinary criminals for monetary gain or
as an organized activity for economic gains but by terrorist organizations
is what necessitated the incorporation of Section 364A of the IPC and a
stringent punishment for those indulging in such activities.   Given the
background in which the law was enacted and the concern shown by the
Parliament for the safety and security of the citizens and the unity,
sovereignty and integrity of the country, the punishment prescribed for
those committing any act contrary to Section 364A cannot be dubbed as so
outrageously disproportionate to the nature of the offence as to call for
the same being declared unconstitutional. Judicial discretion available to
the Courts to choose one of the two sentences prescribed for those falling
foul of Section 364A will doubtless be exercised by the Courts along
judicially recognized lines and death sentences awarded only in the rarest
of rare cases. But just because the sentence of death is a possible
punishment that may be awarded in appropriate cases cannot make it per se
inhuman or barbaric. In the ordinary course and in cases which qualify to
be called rarest of the rare, death may be awarded only where kidnapping or
abduction has resulted in the death either of the victim or anyone else in
the course of the commission of the offence. Fact situations where the act
which the accused is charged with is proved to be an act of terrorism
threatening the very essence of our federal, secular and democratic
structure may possibly be the only other situations where Courts may
consider awarding the extreme penalty.    But, short of death in such
extreme and rarest of rare cases, imprisonment for life for a proved case
of kidnapping or abduction will not qualify for being described as barbaric
or inhuman so as to infringe the right to life guaranteed under Article 21
of the Constitution.

51. It was argued that in certain situations even imprisonment for life
may be disproportionate to the gravity of the offence committed by the
accused. Hypothetical situations are pressed into service to bring home the
force of the contention. The question, however, is whether the Court can
merely on a hypothetical situation strike down a provision disregarding the
actual facts in which the challenge has been mounted. Our answer is in the
negative. Assumed hypothetical situations cannot, in our opinion, be
brought to bear upon the vires of Section 364A. The stark facts that have
been held proved in the present case would at any rate take the case out of
the purview of any such hypothetical situation. We say so because the
appellants in the case at hand have been held guilty not only under Section
364A, but even for murder punishable under Section 302 of the IPC. Sentence
of death awarded to them for both was considered to be just, fair and
reasonable, even by the standards of rarest of rare cases, evolved and
applied by this Court. It is not a case where the victim had escaped his
fate and lived to tell his woeful tale. It is a case where he was done to
death, which is what appears to have weighed with the ourts in awarding to
the appellants the capital punishment. We are not in this round of
litigation sitting in judgment over what has already attained finality. All
that we are concerned with is whether the provisions of Section 364A in so
far as the same prescribes death or life imprisonment is unconstitutional
on account of the punishment being disproportionate to the gravity of the
crime committed by the appellants. Our answer to that question is in the
negative. A sentence of death in a case of murder may be rare, but, if the
courts have, upon consideration of the facts and evidence, found that the
same is the only sentence that can be awarded, it is difficult to revisit
that question in collateral proceedings like the one at hand.

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

………………………………….…..…J.
(T.S. THAKUR)

………………………………….…..…J.
(R.K. AGRAWAL)

…………………………..……………..J.
(ADARSH KUMAR GOEL)
New Delhi
August 21, 2015

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