Criminal Law Project

DEPARTURE/ CONTRADICTION IN SUPREME COURT JUDGMENTS

Subject Title: Criminal Law 3.3

Submitted to: Prof. (Dr.) G.S. Bajpai

Dr. Vinod Kumar

Mrs. Sarita Sangwan

Submitted by: Akaant Kumar Mittal

Roll N.:04 B.A.LLB. 2011

National Law University, Delhi

TABLE OF CONTENTS

TABLE OF CASES..................................................................................................................... i

TABLE OF STATUTES........................................................................................................... ii

CHAPTER I................................................................................................................................ 1

INTRODUCTION...................................................................................................................... 11.1 OVERVIEW.................................................................................................................................... 11.2 RESEARCH QUESTION............................................................................................................ 21.3 RESEARCH METHOD............................................................................................................... 21.4 RESEARCH PLAN....................................................................................................................... 2

CHAPTER II............................................................................................................................... 6

ISSUE OF DEATH PENALTY............................................................................................... 6Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra...............................................10

CHAPTER III.......................................................................................................................... 13

POWER OF COURT TO DIRECT/STOP INVESTIGATION....................................13

CHAPTER IV........................................................................................................................... 18

CONCLUSION........................................................................................................................ 18RECOMMENDATIONS..................................................................................................................18

BIBLIOGRAPHY..................................................................................................................... iii

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TABLE OF CASES

Additional District Magistrate Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207. 2

Bachan Singh v. State of Punjab, AIR 1980 SC 898. 5,6

Bantu v. The State of U.P., (2008) 11 SCC 113. 10

Dayanidhi Bisoi v. State of Orissa, 2003 CriLJ 3697. 10

Devender Pal Singh v. State of NCT of Delhi 2002 CriLJ 2034. 10

Dhananjoy Chatterjee @ Dhana v. State of West Bengal, [1994] 1 SCR 37. 9

Ediga Anamma v. State of A.P, (1974) 4 SCC 443 6

Greene v. Secretary of State for home affairs, (1942) A.C. 284. 3

Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101. 8

Devender Pal Singh v. State of NCT of Delhi, 2002 CriLJ 2034. 10

Jaichand Loll Sethia v. State of West Bengal, [1966] Su. S .C. R. 464. 4

Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, 1965 AIR 1039. 2

Liversidge v. Anderson, (1942) A.C. 206. 3

M.C. Mehta v. Union of India, (2007) 1 SCC 110. 14

Mohan Anna Chavan v. State of Maharashtra, (2008) 11 SCC 113. 10

Mrs. Rupan Deol Bajaj and another vs. Kanwar Pal Singh Gill and another, AIR 1996 SC

309. 16

N. Nagendra Rao v. State of Andhra Pradesh, 1994 AIR 2663. 2

Nirmal Singh Kahlon v. State of Punjab and Ors., (2009) 1 SCC 441. 13

Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, [2009] 9 SCR 90. 9

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, AIR 2009 SC 56. 9

State of M.P. vs. Ramesh C. Sharma, (2005) 12 SCC 628 14

State of Punjab vs. Central Bureau of Investigation and Ors., AIR 2011 SC 2962. 15, 16

State of U.P. v. Sattan @ Satyendra and Ors., (2009) 4 SCC 736. 10

State of West Bengal v. SN Basak, [1963] 2 SCR 52. 15

Surja Ram v. State of Rajasthan, 1997 CriLJ 51. 10

Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195. 14, 16

Vineet Narain and Ors. v. Union of India (UOI) and Anr., AIR 1998 SC 889. 13

i

TABLE OF STATUTES

Indian Evidence Act, 1860Indian Penal Code, 1872Criminal Procedure Code, 1973The Constitution of India, 1950

ii

CHAPTER I

INTRODUCTION

1.1 OVERVIEWJudiciary is one of the three main structures of Indian Democracy, the other two being

legislature and executive. The Indian Judiciary in order to be independent from any

executive pressure has been given separate powers by the basic source of power, i.e., the

Constitution of India.1 The Salaries of Judges of Supreme Court2 and High Court3 are

charged from the Consolidated fund of India, therefore, cannot be subjected to any change

for adverse by the Legislature or the Executive.4 The Supreme Court being the Union

Judiciary is the highest Judiciary and all other courts, including High courts are

subordinate to it in terms of Jurisdiction (except in matter of power to issue writs5).

Another power, which is given to Supreme Court, which is of immense value in terms of

depicting its supremacy to decide upon any issue and grant remedy to meet the ends of the

Justice, is under Article 142 of the Constitution of India.6 Add to that is the power of

Judicial Precedent which binds the lower judiciary by its decisions.7 The decisions of

High Courts bind the Session Courts and lower courts but the decisions of Supreme Court

binds Supreme Court bench of same or lower strength, the High Courts and all the lower

courts. In case of conflict the Supreme Court judgment shall always prevail. The

Constitution of India, hence, has granted Supreme Court the status of ‘Ultimate Custodian

of Fundamental Rights’ and a court of Last Resort to rectify any wrong or eroded

judgment of High Court or Lower Court. Since, there is no judiciary above the Supreme

Court in Constitution of India, judgments of the Supreme Court are hence final and

binding upon everyone.

But now the Moot Question arises that what if the Supreme Court judgments are

themselves contradicting? In order to reach this question we will firstly have to find

judgments, which are leading us to the above question. Therefore, it becomes all and more

important to undertake a study, which shall strive to find judgments rendered by the

Supreme Court itself, which are themselves contradicting its earlier stance on that

particular issue.

1 Article 124 provides for the Constitution of Supreme Court, the Union Judiciary; whereas Article 214 provides for the Constitution of High Courts, the State Judiciary.2 Article 146 (3), The Constitution of India Act.3 Article 229 (3), The Constitution of India Act.4 Except in case of a Financial Emergency; Article 360 (4) (b), The Constitution of India Act.5 High Court issue writs under Article 32 of the Constitution of India for enforcing Fundamental Rights and Legal Rights under Article 226 of the Constitution of India; while Supreme Court can issue writs for the enforcement of Fundamental Rights under Article 32 of the Constitution of India.6 Article 142 of the Constitution of India states, “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”7 Article 141, The Constitution of India Act.

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1.2 RESEARCH QUESTION1. Whether there are any judgments of Supreme Court of India, which are contradicting to

previous Supreme Court judgments?

2. What are the alternative methods to rectify the wrong if a binding Supreme Court

judgment is departed from?

1.3 RESEARCH METHODThe researcher has employed the method of Doctrinal Research i.e. by analyzing data

from secondary sources such as cases and bare acts. The researcher has extracted

information from these sources and attempted to critically analyze the same and frame a

coherent paper highlighting the core issues.

1.4 RESEARCH PLAN The researcher has divided the paper into various chapters to frame it in a coherent

manner. In the first chapter a basic introduction along with the research question has been

provided to define the ambit of the paper.

The second chapter deals with the issue of death penalty.

The third chapter deals exclusively with the issue of Court’s power to direct investigation.

The fourth chapter deals with the conclusion and recommendations.

One of the few ways by which a contradicting Supreme Court judgment or wrong

judgment or outdated judgment, can be rectified is by the Supreme Court itself, but it shall

be done with higher bench strength than the wrong judgment, which is also a cumbersome

task as illustrated by a very intriguing case scenario in law of Torts in which there is a

concept of vicarious liability of state, where a state can be held vicariously liable for the

acts of its servants or employees done in course of their employment. In 1965 the

Supreme Court rendered a judgment in the case of Kasturilal Ralia Ram Jainv. State of

Uttar Pradesh8, where the appellant Kasturi Lal’s gold, silver and other goods were taken

into custody by police. Later he was released on bail and after sometime silver was

returned but not gold. The gold was under Mohammad Amir, then Head Constable, and

had been kept in the police station under his charge, which were later misappropriated by

him. Issue arose that whether there was negligence or not on part of police officials,

answer to which was in affirmative. The court held that if the impugned act is done in the

course of an undertaking or employment which is referable to the exercise of sovereign

power, or to the exercise of delegated sovereign power, then, the concept of sovereign

immunity would apply but in this case the impugned act of absconding with gold was not

referable to the exercise of sovereign power. However, later the Supreme Court in a

judgment rendered by Division Bench in the case of N. Nagendra Rao v. State of

Andhra Pradesh9, departed from the Kasturi Lal judgment which was given by a

constitutional bench and removed the concept of sovereign immunity and held that

8 AIR 1965 SC 1039.9 AIR 1994 SC 2663.

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doctrine of sovereign immunity has no relevance in the present day context when the

concept of sovereignty itself has undergone drastic change. The case was one where

appellant’s fertilizers and food grains were seized under the control orders issued under

Essential Commodities Act, 1955 but only violation of improper accounts was found,

hence orders were passed of confiscating some part of the stock, and release the rest. This

was also not complied with. After nearly 8 months of the order of release of goods, a

notice was given to the appellant to take the delivery of the goods. The goods were, then,

damaged, hence a suit was filed against the state, where the state contended; (i) Sovereign

immunity of state, (ii) discharge of statutory duty in good faith was contended by the

state. The court stated that no civilized system can permit an executive to play with the

people of its country and claim that it is entitled to act in any manner as it is sovereign and

since the concept of public interest has changed with structural change in the society, no

legal or political system to-day can place the State above law as it is unjust and unfair for

a citizen to be deprived of his property illegally by negligent act of officers of the State

without any remedy, thereby reiterating the supremacy of Fundamental Rights. Therefore,

in ascertaining whether the vicariously liable for the acts of its servants depends upon the

nature of power and how it is exercised.

Even though the judgment given in Nagendra Rao (supra) case is considered a good law,

yet the wrong judgment of Kasturi Lal (supra) case still has force in law as it is rendered

by a constitutional bench.

No one can forget the judgment of the Hon’ble Supreme Court in the case of Additional

District Magistrate Jabalpur v. Shivkant Shukla10, where the Supreme Court by 4:1

majority held valid the detention of thousands of Political figures by the imposition of

National Emergency under Article 352 of the Constitution of India. The President order

dated 27th June, 1975 made Article 359 of the Indian Constitution suspended the detainees

right to enforce any rights conferred by Article 14, 21 and 22 of the constitution of India

and the continuance of emergency during which by virtue of Article 358 all rights

conferred by Article 19 stand suspended and at a bar for the respondents to invoke the

jurisdiction of High Courts under Article 226 to ask for the writ of Habeas Corpus. The

High Court held that though Article 21 and 22 of the Constitution are suspended yet a

person's right to freedom from arrest or detention except in accordance with law can

be enforced only where such arrest and detention are not in accordance with those

provisions of the statute which form the conditions precedent to the exercise of power

under that statute as distinguished from merely procedural provisions or are malafide or

are not based on relevant materials by which the detaining authority could have been

satisfied that the order of detention was necessary. In that case the, then, Chief Justice

A. N., J. relied on Liversidge case11 and Greene case12 and refuted the respondents’

contention that the presidential order operates only in respect of fundamental rights and

would not affect the rights of personal liberty under common, statute law and natural

10 AIR 1976 SC 1207.11 Liversidge v. Anderson (1942) A.C. 206.12 Greene v. Secretary of State for home affairs (1942) A.C. 284.

3

law13, by stating “Liberty is confined and controlled by law, whether common law or

statute. In words of Burke- freedom is not abstract or absolute. If extraordinary powers

are given, they are given because emergency is extraordinary.”14

But it is important to know that in Liversidge case, Lord Atkin gave the dissenting

opinion and observed that laws mean the same irrespective of the times, whether war or

peace. He said the “reasonable” clause gave the courts the power to judge the act of the

Secretary of State. After few years, as Lord Diplock in I.R.C. v Rossminster Ltd thought

that "the time has come to acknowledge openly that the majority of this House in

Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and

the dissenting speech of Lord Atkin was right".15

The departure from the basic tenants of the Constitution of India by the Court in this

judgment can be ascertained by the dissenting judgment of Justice H.R. Khanna who

stated that “ the vesting of power of Detention without trial in the executive, has the effect

of making the same authority both the prosecutor as well as the judge and is bound to

result in arbitrariness.”16, what is stake in this case not merely liberty of few individuals

but rule of law.17 While referring to a decision of this Court in the case of Jaichand Loll

Sethia v. State of West Bengal18 wherein the Constitution Bench of this Court observed

after referring to the case of Makhan Singh (supra) that a citizen will not be deprived of

the right to move an appropriate Court for a writ of habeas corpus on the ground that its

detention has been ordered mala fide. Similarly, it will be open to the citizens to challenge

the order of detention on the ground that any of the grounds given in the order of

detention is irrelevant and there is no real and proximate connection between the ground

given and the object which the legislature has in view.”

While it is argued that the times of emergency demands the control to be in executive yet

such a draconic power to combining prosecutor and judges together also goes against the

fundamentals of the Criminal Procedure Code, 1973, which departed from two pillars of

criminal justice system, i.e., Police and Judiciary to adoption of three component system

of Police, Judiciary and Prosecutor.

This brings us to another way how a wrong judgment of Supreme Court can be given an

over ruling effect, which is by legislative enactment on that aspect. For instance, the

misuse of Article 352 in 1975 was cured by 44th Amendment in 1978 by substituting the

word “armed rebellion” to that of “internal disturbance”19 thereby excluding the

imposition of emergency in case of peaceful demonstrations. Also,

“where a Proclamation of Emergency is in operation, the President may by

order declare that the right to move any court for the enforcement of such of

[the rights conferred by Part III (except articles 20 and 21)] as may be

13 AIR 1976 SC 1207, para 18.14 AIR 1976 SC 1207, para 33.15 http://www.pucl.org/Topics/Law/2006/adm_jabalpur.html.16 AIR 1976 SC 1207.17 Ibid.18 [1966] Su. S .C. R. 464.19 Substituted by the Constitution (Forty-fourth Amendment) Act, 1978, section 37, for "internal disturbance" (w.e.f. 20-6-1979)

4

mentioned in the order and all proceedings pending in any court for the

enforcement of the rights so mentioned shall remain suspended for the

period during which the Proclamation is in force or for such shorter period

as may be specified in the order.”20

Now, comes the power of President under Article 72 (1) (c) where “the President shall

have the power to grant pardons, reprieves, respites or remissions of punishment or to

suspend, remit or commute the sentence of any person convicted of any offence.”21 This

power, now, in a recent happening where 14 Judges of High Court have written letter to

the President to grant pardon to those convicts who have been wrongly given death

penalty in contradiction to the Supreme Court dictum of death penalty in ‘rarest of rare’

cases propounded in the case of Bachan Singhv. State of Punjab22. How this dictum

came into being and how in recent cases that was digressed from will be dealt in chapter 1

of this research paper. As of now, this power of granting power in cases where death

penalty is awarded is generally provided taking into account the reformative policies of

our criminal justice system. It basically endeavors to reform the criminal if he/she feels

that there is some scope of restructuring the guilty’s life, unless he has committed a very

heinous crime that is a question of fact depending of facts of each case, instead of

punishing him to death.

20 Constitution (Forty-fourth Amendment) Act, 1978, Section 40, for "the rights conferred by Part III" (w.e.f. 20-6-1979).21 Article 72 (1) (c), The Constitution of India.22 AIR 1980 SC 898.

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CHAPTER II

ISSUE OF DEATH PENALTY

In 1980, the Hon’ble Supreme Court of India in a constitutional bench judgment in the

case of Bachan Singh v. State of Punjab23 that

“the scope and concept of mitigating factors in the area of death penalty

must receive a liberal and expansive construction by the courts in accord

with the sentencing policy writ large in Section 354(3). Judges should never

be bloodthirsty. Hanging of murderers has never been too good for them.

Facts and figures albeit incomplete, furnished by the Union of India, show

that in the past Courts have inflicted the extreme penalty with extreme

infrequency - a fact which attests to the caution and compassion which they

have always brought to bear on the exercise of their sentencing discretion in

so grave a matter… A real and abiding concern for the dignity of human life

postulates resistance to taking a life through law's instrumentality. That

ought not to be done save in the rarest of rare cases when the alternative

option is unquestionably foreclosed.”

In Bachan Singh (Supra) case, the Supreme Court propounded the famous ‘Rarest of

Rare’ doctrine. Now, what this ‘rarest of rare’ doctrine considers is (a) Taking into

account the criminal’s circumstances also, not circumstances of the case, (b) the

probability that the accused would not commit criminal acts of violence as would

constitute a continuing threat to society and the probability that the accused can be

reformed and rehabilitated,24 which were majorly interpreted on the bases that Section

367(5) of the Criminal Procedure Code, 1898, which states the normal punishment for

murder was the death sentence, and in exceptional cases, if the judge awarded life

imprisonment, he had to record reasons for not passing the death sentence was

amended and replaced by the New Criminal Procedure Code, 1973, Section 354(3)

requiring the judge to give “special reasons” for imposing a death sentence. This

effectively replaced the presumption in favour of a death sentence with one against it.

The unmistakable shift in legislative emphasis is that life imprisonment for murder is

the rule and capital sentence the exception to be resorted to for reasons to be stated.25

In the case of Ediga Anamma v. State of A.P26, the Supreme Court tried to give some

positive indicators against death sentence under Indian law:-

(i) Where the murderer is too young or too old, the clemency of penal justice

helps him,

23 [1983] 1 SCR 145, para 207.24 Ibid, para 205.25 Ediga Anamma v. State of A.P., (1974) 4 SCC 443, para 20.26 Ibid.

6

(ii) Where the offender suffers from socio-economic, psychic or penal

compulsions insufficient to attract a legal exception or to downgrade the crime

into a lesser one, judicial commutation is permissible Where the offender

suffers from socio-economic, psychic or penal compulsions insufficient to

attract a legal exception or to downgrade the crime into a lesser one, judicial

commutation is permissible

(iii) Other general social pressures, warranting judicial notice, with an extenuating

impact may, in special cases, induce the lesser penalty.

(iv) Extraordinary features in the judicial process, such as that the death sentence

has hung over the head of the culprit excruciatingly long, may persuade the

court to be compassionate.

(v) if others involved in the crime and similarly situated have received the benefit

of life imprisonment or if the offence is only constructive, being under Section

302 read with Section 149, or again the accused has acted suddenly under

another's instigation, without premeditation, perhaps the court may humanely

opt for life, even like where a just cause or real suspicion of wifely infidelity

pushed the criminal into the crime.

Negative indicators like the weapons used and the manner of their use, the horrendous

features of the crime and hapless, helpless state of the victim, and the like, steal the heart

of the law for a sterner sentence. But this was also overruled in Rajendra Prasad27 case ,

which by the majority (of 2:1) has completely reversed the view that had been taken in

Ediga Anamma case (supra) regarding the application of Section 354(3) on this point.

According to it, after the enactment of Section 354(3), 'murder most foul' is not the test.

Also, the shocking nature of the crime or the number of murders committed is also not the

criterion. It was said that the focus has now completely shifted from the crime to the

criminal. "Special reasons" necessary for imposing death penalty "must relate not to the

crime as such but to the criminal" and this enunciation was also overruled by the Bachan

Singh28 case (supra) which by reading S. 354 (3) and S. 235 (2) held that the court must

pay due regard to both crime and criminal. But the above points (i), (ii) were also

approved in Bachan Singh case and adding few more mitigating factors cited from Indian

Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular,

recommendations by Dr. Chitale.

The court in case of Bachan Singh (supra) noted that in Britain, in the wake of serious

violent incidents of terrorism, a Bill was moved in Parliament to reintroduce capital

punishment for murder and certain other offences. It was defeated by a free vote on April

19, 1979. Even so, no less than 243 members of Parliament had voted in favor of this

measure. We have noted that Israel has also recently reintroduced death penalty for

certain criminal 'acts of inhuman cruelty'. In People's Republic of China, a new legislation

was adopted on July 1, 1979 by China's Parliament, according to Article 43 of which,

27 AIR 1979 SC 916.28 [1983] 1 SCR 145, para 199.

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death penalty can be imposed "for the most heinous crimes".

The impact of Bachan Singh case on death sentences was such that so as to completely

change the death penalty landscape and constitute a watershed in the history of criminal

law in India. The death sentence, formerly awarded in almost all murder cases, was now

reserved for that exceptional and extreme category which was measured in fractions rather

than in integers. Between 1974 and 1978, there were 85,000 murders and 25 executions,

that is, there were 34 executions for one lakh murders, as reported in Kehar Singh (1989).

Since 1980, there have been 10,11,703 murders and about 83 executions — at the rate of

8.2 executions for one lakh murders (Crime in India).29

Facts About Preference of JudgesBut on the other hand there are numerous examples as to how Supreme Court has

interpreted the dictum of ‘rarest of rare’ doctrine. A recent report by Yug Mohit Chaudhry

posted findings that Justice Pasayat’s conviction rate of about 73 per cent was

significantly higher than the collective conviction rate (19 per cent) of other judges during

his tenure. Thus, a case not allotted to Justice Pasayat’s Bench was about four times more

likely to escape capital punishment. A death-penalty case had an almost equal chance of

being heard by Justice Pasayat’s or Justice Sinha’s Bench, but the convict’s chances of

living were almost 100 per cent if his case was allotted to the latter instead of the former.

Plus, a prisoner’s chances of living were better by more than 50 per cent if his case was

allotted to Justice Balakrishnan’s Bench rather than Justice Pasayat’s Bench. Now, the

moot question, according to Yug Mohit, is that "Would a death sentence appellant not be

justified in asking, “Am I to live or die on the basis of the constitution of the Bench and

not the evidence in the case? Is that justice according to law?”30

An important illustration of as to how Supreme Court has been inconsistent to follow one

policy can be the case of Harbans Singh v. State of Uttar Pradesh31. In October 1975,

the Allahabad High Court confirmed the death sentence imposed by the trial court on

Jeeta Singh, Kashmira Singh and Harbans Singh for playing equal roles in murdering four

members of a family. Each of them challenged their sentence separately before the

Supreme Court. While Jeeta Singh’s appeal was dismissed by a Bench of three judges

(Justices Y.V. Chandrachud, V.R. Krishna Iyer and N.L. Untwalia) and he was hanged, a

different Bench of two judges (Justices M. Fazal Ali and P.N. Bhagwati) commuted

Kashmira Singh’s death sentence to life imprisonment. Another Supreme Court Bench

dismissed Harbans Singh’s appeal and review petition though he had sought equal

treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he

appealed again. This time, the court stayed his execution and recommended presidential

clemency, which was granted.

29 http://www.frontlineonnet.com/fl2917/stories/20120907291702900.htm, retrieved on 20th September, 2012.30 http://www.frontlineonnet.com/fl2917/stories/20120907291702500.htm, retrieved on 24th September, 2012.31 (1982) 2 SCC 101.

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In Ravji alias Ram Chandrav. State of Rajasthan32, the Supreme Court held that

“It is the nature and gravity of the crime but not the criminal, which are germane for

consideration of appropriate punishment in a criminal trial. The Court will be failing in its

duty if appropriate punishment is not awarded for a crime which has been committed not

only against the individual victim but also against the society to which the criminal and

victim belong. The punishment to be awarded for a crime must not be irrelevant but it

should conform to and be consistent with the atrocity and brutality with which the crime has

been perpetrated, the enormity of the crime warranting public abhorrence and it should

respond to the society's cry for justice against the criminal... if for such heinous crime the

most deterrent punishment for wanton and brutal murders is not given, the case of deterrent

punishment will lose its relevance.”

In this case, the appellant killed his three minor sons and wife in asleep, tried to kill kis

mother who came to prevent her son from killing his family, then, tried to kill the

neighbor Smt. Galal and after that tried to flee away from the place of occurrence, when a

poor old man Gulabji came on his way and enquired as to what had happened, he

immediately hacked Gulabji to death in an extremely brutal manner and thereafter fled

away the place of occurrence and tried to hide himself. The Court in this case, while

quoting the judgment of Hon’ble Supreme Court in Dhananjoy Chatterjee @ Dhana v.

State of West Bengal33 stated that

“In imposing sentences in the absence of specific legislation, Judges must consider variety

of factors and after considering all those factors and taking an overall view of the situation,

impose sentence which they consider to be an appropriate one. Aggravating factors cannot

be ignored and similarly mitigating circumstances have also to be taken into consideration.

The measure of punishment in a given case must depend upon the atrocity of the crime; the

conduct of the criminal and the defence less and unprotected state of the victim.”

This was exactly what the Supreme Court held by taking into account that there was no

wrong on part of the victims and the accused was educated, of sound mind and suffered

from no insanity instead he did not even visited his mother while she was in the hospital

or remorse killing his family or the accused was devoid of any mitigating factors that

could run into his favor. Hence, reckoning the barbarous nature of the act of the accused,

he was sentenced to death. But complications arose by the use of phrase “It is the nature

and gravity of the crime but not the criminal, which are germane for consideration of

appropriate punishment in a criminal trial” is in direct contradiction of the phrase used in

Bachan Singh (supra) case, which stated that the court should take into account not only

circumstances connected with the particular crime, but also give due consideration to the

circumstances of the criminal 34

But the disturbing instance rose in the case of Santosh Kumar Satishbhushan Bariyar

v. State of Maharashtra35, where the Supreme Court in a division bench, while referring

32 AIR 1996 SC 787, para 25.33 [1994] 1 SCR 37.34 [1983] 1 SCR 145, para 164.35 [2009] 9 SCR 90, para 66.

9

to Ravji case (supra), stated that

“We are not oblivious that this case has been followed in at least 6 decisions of this Court

in which death punishment has been awarded in last 9 years, but, in our opinion, it was

rendered per incuriam.”

The Hon’ble Supreme Court cited the judgments where the Ravji Case judgment has been

followed : (i) Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra36;

(ii) Mohan Anna Chavan v. State of Maharashtra37;

(iii) Bantu v. The State of U.P.38;

(iv) Surja Ram v. State of Rajasthan39;

(v) Dayanidhi Bisoi v. State of Orissa40;

(vi) State of U.P. v. Sattan @ Satyendra and Ors.41

Now, analyzing any of the above judgments to reach upon a conclusion that still the case

of death penalty test is wide open.

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra42

The accused was found guilty of sexually assaulting and then, murdering the victim-

deceased, a poor girl of 9 years old for what the court termed as “animal lust of the

accused-appellant”.

The court expressed its concern over a large number of cases in recent times coming

before this Court involving rape and murder of young girls and found the present case to

fall under the category of rarest of rare cases.

Judgment Relied on in Shivaji Case (supra)

The Shivaji judgment was based on the position reiterated in Devender Pal Singh v.

State of NCT of Delhi 43 which stated that the principle culled out of Bachan Singh's

case (supra) and Machhi Singh's44 case is that when the collective conscience of the

community is so shocked, that it will expect the holders of the judicial power center to

inflict death penalty irrespective of their personal opinion as regards desirability or

otherwise of retaining death penalty, the same can be awarded. The court said that the

community may entertain such sentiment in the following circumstances: (a) When the

murder is committed in an extremely brutal, grotesque, diabolical, revolting, or

dastardly manner so as to arouse intense and extreme indignation of the community…,

36 AIR 2009 SC 56.37 (2008) 11 SCC 113.38 (2008) 11 SCC 113.39 1997 CriLJ 51.40 2003 CriLJ 3697.41 (2009) 4 SCC 736.42 AIR 2009 SC 56.43 2002 CriLJ 2034.44 1983 CriLJ 1457.

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(5) When the victim of murder is an innocent child, or a helpless woman or old or

infirm person or a person vis-`a-vis whom the murderer is in a dominating position, or

a public figure generally loved and respected by the community.

Relying on the above decisions and charting a balance sheet of aggravating and

mitigating circumstances, the court held the case to fall under the rarest of rare dictum.

Now, the question arises whether the Devendra judgment has also wrongly interpreted

the Bachan Singh judgment along with Macchi Singh case judgment, since it does not

provide for taking into account the circumstances of the guilty and mentions taking

into account the community feeling.

ANSWERS LIES IN BACHAN SINGH CASE

The Supreme Court in Bachan Singh judgment in para 124, cites the instance of Furman

v. Georgia case, where the Supreme Court of the United States held by a majority, that

the imposition and carrying out of the death penalty constitutes 'cruel and unusual'

punishment, in violation of the Eighth and Fourteenth Amendments. Justice Marshall

ruled that "it was morally unacceptable to the people of the United States". This opinion

of the learned Justices was sharply rebuffed by the people of the United States through

their chosen representatives. Soon after the decision in Furman, bowing to the thrust of

public opinion, the Legislatures of no less than 32 States, post-baste revised their penal

laws and reinstituted death penalty for murder and certain other crimes. Public opinion

polls then taken show that approximately 70 per cent of Americans have been in favour of

death penalty. So, Supreme Court in Bachan Singh case stated that judicial opinion does

not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder

that Judges should not take upon themselves the responsibility of becoming oracles or

spokesmen of public opinion.

Another inherent conflict exposed in Bachan Singh case (supra) is that at one hand, it

says to take into account the circumstances of case and criminal to be taken into account

while deciding sentencing, while on the other hand it approves the following points:

“Aggravating circumstances : A Court may, however, in the following cases impose the

penalty of death in its discretion: (a) if the murder has been committed after previous

planning and involves extreme brutality; or (b) if the murder involves exceptional

depravity;...”

Questions that now Arise, according to Researcher

Now, it gives birth to some questions that:

(i) whether the Supreme Court assumed in the Devendra case that no

circumstances of the guilty justify the sentiment that had incited the

community so as give death penalty to guilty, or

(ii) whether no accused can be in such a circumstance so as ‘commit such an

act’ that could incite such a sentiment in any community so as to give death

11

penalty to the guilty.

Now, the proposal of balancing the mitigating factors including guilty’s circumstances

and aggravating factors like exceptional depravity, would be a very subjective test

depending upon each Bench. But the Flaw in Shivaji case is that it does not talk about

the circumstances of the accused, except for the fact that it mentions the statement of

Yashodabai (PW 7) that the accused was not doing any work and his wife and children

were not residing with him. This omission amounted to the contradiction of Bachan

Singh case dictum of taking into account the circumstances of the guilty.

12

CHAPTER III

POWER OF COURT TO DIRECT/STOP INVESTIGATION

The second issue where the Supreme Court is unsure as to what is the prevailing situation

of law is whether court can direct investigation or not?

In the case of Vineet Narain and Ors.v. Union of India (UOI) and Anr.45, the

petitioner, who was a journalist, filed a public interest litigation. According to him, the

prime investigating agencies like the Central Bureau of Investigation and the Revenue

authorities failed to perform their legal obligation and take appropriate action when

they found, during investigation with a terrorist, detailed accounts of vast payments,

called `Jain diaries', made to influential politicians and bureaucrats and direction was

also sought in case of a similar nature that may occur hereafter. A number of directions

were issued by the Supreme Court. The Court in that case observed that "it is trite that

the holders of public offices are entrusted with certain power to be exercised in public

interest alone and, therefore, the office is held by them in trust for the people." The

court said that given the political personalities of the people to be investigated in the

"Jain diaries" case and the time already lost in commencing the investigations, it was

advantageous not to hear the matter through and issue a writ of mandamus, leaving it

to the authorities to comply with it, but to keep the matter pending while the

investigations were being carried on, ensuring that this was done by monitoring them

from time to time and issuing orders in this behalf.

These Court monitored investigations were again never criticized. For instance, in the

case of Nirmal Singh Kahlon v. State of Punjab and Ors.46, the court refuted a

contention on behalf of Nirmal Singh that in Vineet Narain case that once the

investigation is over and charge sheet is filed the task of the monitoring Court comes

to an end by stating:

“63. The High Court in this case was not monitoring any investigation. It only desired that

the investigation should be carried out by an independent agency. Its anxiety, as is evident

from the order dated 3-4-2002, was to see that the officers of the State do not get away. If

that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an

end after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C.

Mehta (Taj Corridor Scam) v. Union of India (2007) 1 SCC 110, loses all significance.

The primary question in Vineet Narain case was : Whether it is within the domain of

judicial review and it could be an effective instrument for activating the investigative

process which is under the control of executive ? However, as the case progressed, the

court innovated a procedure within the constitutional scheme of judicial review to permit

intervention by the court to find a solution to the problem. Para 55 of the judgment states:

45 AIR 1998 SC 889.46 (2009) 1 SCC 441.

13

“there are ample powers conferred by Article 32 read with Article 142 to make orders

which have the effect of law by virtue of Article 141 and there is mandate to all authorities

to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a

catena of decisions of this Court, this power has been recognized and exercised, if need be,

by issuing necessary directions to fill the vacuum till such time the legislature steps in to

cover the gap or the executive discharges its role…unless a proper investigation is made

and it is followed by an equally proper prosecution, the effort made would not bear fruition.

It took several years for the CBI to commence investigation and that too as a result of the

monitoring by this Court. It is not as if the CBI, on conclusion of the investigation, formed

the opinion that no case was made out for prosecution so that the earlier inaction may have

been justified. The CBI did file numerous charge- sheets, which indicated that in its view a

prima facie case for prosecution had been made out. This alone is sufficient to indicate that

the earlier inaction was unjustified. However, discharge of the accused on filing of the

charge- sheet indicates, irrespective of the ultimate outcome of the matters pending in the

higher courts, that the trial court at least was not satisfied that a prima fade case was made

out by the investigation. These facts are sufficient to indicate that either the investigation or

the prosecution or both were lacking…unless a competent prosecution follows a fair and

competent investigation, the exercise in the ultimate analysis would be futile. Investigation

and prosecution are inter-related and improvement of investigation without improving the

prosecution machinery is of no practical significance.”

But in the case of State of M.P.vs. Ramesh C. Sharma47, the court cited the judgment in

the case of Union of India v. Prakash P. Hinduja,48 para 20,

“the legal position is absolutely clear and also settled by judicial authorities that the Court

would not interfere with the investigation or during the course of investigation which would

mean from the time of the lodging of the first information report till the submission of the

report by the officer-in-charge of the police station in Court under Section 173(2), Cr. P.C.,

this field being exclusively reserved for the investigating agency.”

Then, in the case of M.C. Mehta v. Union of India49, the Supreme Court held that

investigation of crime and punishment are clear cut and well-demarcated sphere of

activities in field of crime detection and crime punishment. Investigation of an offence is

the field reserved for the executive through the police department, the superintendence

over which vests in the State Government. The executive is charged with a duty to keep

vigilance over law and order situation. It is obliged to prevent crime. If an offence is

committed allegedly, it is the State's duty to investigate into the offence and bring the

offender to book. Once it investigates through the police department and finds an offence

having been committed, it is its duty to collect evidence for the purposes of proving the

offence. Once that is completed, the Investigating Officer submits report to the Court

requesting the Court to take cognizance of the offence under Section 190, Cr.P.C. and his

duty comes to an end. Therefore, there is a well- defined and well- demarcated functions

in the field of crime detection and its subsequent adjudication by the Court. But due to the

47 (2005) 12 SCC 628, para 5.48 (2003) 6 SCC 195.49 (2007) 1 SCC 110.

14

power Under Article 142 of the Constitution, Supreme Court is empowered to take aid

and assistance of any authority for doing complete justice in any cause or matter pending

before it . The case was of a project known as "Taj Heritage Corridor Project", which was

initiated by the Government of Uttar Pradesh. One of the main purpose for which the

same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land

between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food

plazas, shops and amusement activities. The Court in this case directed for a detailed

enquiry, which was carried out by the Central Bureau of Investigation (CBI). On the basis

of the CBI report, the Court directed registration of FIR and made further investigation in

the matter.50 The court questioned the role played by the concerned Minister for

Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar

Pradesh. By the intervention of this Court, the said project was stalled.

Then, in the case of State of Punjabvs. Central Bureau of Investigation and Ors.51, the

facts leading up to the Supreme Court were that High Court took sou moto notice of a

news item in a newspaper and when the case was taken up before the High Court, the

Additional Advocate General placed before the High Court a copy of the order of the

Additional Director General of Police (Crime), Punjab entrusting the investigation into 4

FIRs to a special investigation team (for short 'the SIT'). The High Court observed that the

SIT had been constituted without the permission of the Court and issued notice to the CBI

for the purpose of entrusting the investigation of the case to the CBI.

The Supreme Court held that the provisions of the Code of Criminal Procedure u/s 482 do

not limit or affect the inherent powers of the High Court to make such orders as may be

necessary to give effect to any order under the Court or to prevent the abuse of any

process of the Court or otherwise to secure the ends of justice. The language of Sub-

section (8) of Section 173 of the Code of Criminal Procedure, therefore, cannot limit or

affect the inherent powers of the High Court to pass an order under Section 482 of the

Code of Criminal Procedure for fresh investigation or re-investigation if the High Court is

satisfied that such fresh investigation or re-investigation is necessary to secure the ends of

justice.

Then again, earlier in State of West Bengal v. SN Basak52 this Court approved the

view taken by the Privy Council in Nazir Ahmad case and held as under in Para 3 of

the reports (it is pertinent to note that Section 561-A of CrPC 1898 corresponds to S.

482 of CrPC 1973:

".....The powers of investigation into cognizable offences are contained in Chapter XIV of

the Code of Criminal Procedure. Section 154 which is in that Chapter deals with

information it cognizable offences and Section 156 with investigation into such offences

and under these sections the police has the statutory right to investigate into the

circumstances of any alleged cognizable offence without authority from a Magistrate and

this statutory power of the police to investigate cannot be interfered with by the exercise of

50 Ibid, para 5.51 AIR 2011 SC 2962.52 [1963] 2 SCR 52.

15

power under Section 439 or under the inherent power of the court under Section 561-A of

the Criminal Procedure Code."

BASIC PROBLEM

Now, the basic issue, which arises is that the Supreme Court time and again stated the

powers of magistrate to supervise in investigation but the powers of courts, while

investigation is still in process, for either quashing FIRs or investigation as, for

instance, it happened in Mrs. Rupan Deol Bajaj and anothervs. Kanwar Pal Singh

Gill and another53, where the High Court quashed the FIR and investigation thereof

under the pretext of S. 482 or where High Court intervenes as happened in the case

State of Punjabvs. Central Bureau of Investigation and Ors. (supra), which are

time and again taken by the Supreme Court in bad taste. In Rupal Bajaj case (supra)

one of the main reasons for quashing the FIR by High Court was that there were 48

more persons present; 24 ladies and equal number of gentlemen and according to High

Court, it sounded both unnatural and unconscionable that the petitioner (Mr. Gill)

would attempt or dare to outrage the modesty of the author of the First Information

Report in their very presence inside the residential house of Financial Commissioner

(Home).

The Supreme Court in response to this said

“we are constrained to say that in making the above observations the High Court has

flagrantly disregarded - unwittingly we presume - the settled principle of law that at the

stage of quashing an FIR or complaint the High Court is not justified in embarking upon an

enquiry as to the probability, reliability or genuineness of the allegations made therein. Of

course as has been pointed out in Bhajan Lal's case (supra) an F.I.R. or a complaint may

be quashed if the allegations made therein are so absurd and inherently improbable that no

prudent person can ever reach a just conclusion that there is sufficient ground for

proceeding against the accused but the High Court has not recorded such a finding,

obviously because on the allegations in the FIR it was not possible to do so. For the

reasons aforesaid we must hold that the High Court has committed a gross error of law in

quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and

dismiss the petition filed by Mr. Gill in the High Court under Section 482 Cr.P.C”

That is precisely the reason as to why Supreme Court is issuing guidelines to restrict the

High Courts in exercising its power under S. 482 of the Code, which is a special power

not to be resorted to every time in routine, rather in case of extreme flagrant

circumstances it may be used. While making the above presumption, it seems that the

High Court wore the duty of investigating the case in itself because in a case where

serious allegations were made on High Ranking Officials, when the High Court renders a

decision to quash the FIRs, such a decision must be supported by some evidences.

But the judgment in the case of Union of India (UOI)vs. Prakash P. Hinduja and

Anr.54 holding in Para 19 that the legal position is absolutely clear and also settled by

judicial authorities that the Court would not interfere with the investigation or during the

course of investigation which would mean from the time of the lodging of the First

53 AIR 1996 SC 309.54 AIR 2003 SC 2612.

16

Information Report till the submission of the report by the officer in charge of police

station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the

investigating agency, also clearly disregards to take into account Article 142, 32 and 226

of the Constitution of India and also clear wordings of S. 482 of the Code.

17

CHAPTER IV

CONCLUSION

In Conclusion, the researcher was able to find few judgments of the Hon’ble Supreme

Court, which either departed or contradicted its prior stance. The researcher finds that the

main reason for such a scenario is (a) Absence of authority above the Supreme Court to

supervise the judgments of the Court so that any authoritative judgment on the same

subject/ issue is not rendered redundant by the later judgment wrongfully digressing from

it as happened in the case of Bachan Singh (CB) being not contradicted by Ravji Case

(DB), (b) then, the difficulty of confining the contours of the judgments, since judgments

are not statutes that can be expressed in key terms and limited phrases and deal with

many issue at the same time, there is rendered a possibility of later the Court

misinterpreting or deliberately interpreting the area left undealt by the judgment to

contradiction with the earlier authoritative judgment.

RECOMMENDATIONSThe researcher concludes by saying that it is important for the Supreme Court to rest all

the speculations left open on the issue of Death Penalty test and Limitation on the Power

of High Court and Supreme Court in directing investigation. This can be done by firstly

identifying the major areas and concepts that more prone to digression by reasons of

their cropping up on regular basis or which involve more subjective opinion of the

decision makers by either laying down a report where authoritative judgments on key

issues (not undermining any other issue) like the test of death penalty, features of basic

doctrine etc. are recorded, so that in the midst of references, placing reliance and

digression from them in future by any judgment, the meaning of the earlier judgment is

not lost like it happened in Bachan Singh after it was being interpreted by the Ravji

Case, Devendra Case and then, in Shivaji Case, and the Supreme Court can issue a

strict warning to the counsels and future Supreme Court judges of not falling prey to

ignorance or their own fallibilities or allegiance to their rabid view points. Both of these

suggestions aim to prevent any future complications of position.

18

BIBLIOGRAPHY

Gupta S.P.Sen, THE CODE OF CRIMINAL PROCEDURE, 1973, 1st ed. 2010, Kamal

Law House, Kolkata .

Kataria R.P., COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973,

4th ed., 2007, Orient Publishing Company, New Delhi.

Mookerji S.K, (rev.), PRINCEP’S COMMENTARY OF CRIMINAL PROCEDURE,

1973, Vol. II, 19th ed. 2010, Delhi Law House, Delhi.

Paranjape N.V, (ed.), THE CODE OF CRIMINAL PROCEDURE, 1973, 3rd ed. 2009,

Central Law Agency, Allahabad.

Pillai K.N.Chandrashelhar, (ed.), R.V.KELKAR’S CRIMINAL PROCEDURE, 5th ed.

2008, Eastern Book Company, Lucknow.

Roy S.R, (ed.), B.B.MITRA ON CODE OF CRIMINAL PROCEDURE,1973, Vol. I, 20th

ed. 2005, Kamal Law House, Kolkata.

Sarkar Sudipto, CODE OF CRIMINAL PROCEDURE, 9th ed., 2007, Wadhwa and

Company, Nagpur.

INTERNET SOURCES:

www.scconline.com

www.manupatra.com

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