PETITIONER:
JOSEPH PETER
Vs.
RESPONDENT:
STATE OF GOA, DAMAN AND DIU
DATE OF JUDGMENT04/05/1977
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1977 AIR 1812 1977 SCR (3) 771
1977 SCC (3) 280
ACT
Criminal Procedure Code, 1973 (Act II of 1974), Section
354(3)--Discretionary power to choose between capital sen-
tence and life term is a limited one--Leave should be
refused when it is difficult to fault the court which has
exercised such a power under Art. 136 of the Constitution.
Criminal Procedure Code, 1898, Section 377--Scope of.
Goa, Daman and Diu (Judicial Commissioner’s Court)
Regulation.1963--Regulation 8(1) does not bar the referred
jurisdiction of the Judicial Commissioner’s Court.
Sentence--Extenuating circumstances---Circumstance that
the accused is a young man or that the sentence of death
has been haunting him for long alone cannot entitle him for
judicial clemency.
HEADNOTE
The petitioner was convicted for the offence of murder under
s. 302, I.P.C. and sentenced to death by the Trial Court.
The Judicial Commissioner, Goa confirmed the death sentence
in the referred trial under s. 374 of the 1898 Code of
Criminal Procedure.
Dismissing the special leave petition to appeal, the Court.
HELD: (1) Discretion to choose between the capital sentence
and life term under s. 354(3) of the 1973 Code of Criminal
Procedure is limited. If the offence has been perpetrated
with attendant aggravating circumstances, if the perpetrator
discloses an extremely depraved state of mind and diaboli-
cal trickery in committing the homicide, accompanied by
brutal dealing with the cadaver, infliction of death penalty
cannot be avoided. Special leave under Art. 136. of the
Constitution cannot be granted when it is difficult to fault
the court on any ground, statutory or precedential. [772 G-
H, 773 A]
Ediga Annamma, AIR 1974 SC 799, referred to.
(2) Section 377 of 1898 Code of Criminal Procedure applies
only to situations where the court at the time of the con-
firmation of the death sentence consists of two or more
Judges. Section 4(1)(i) of the Code of Criminal proce-
dure, in relation to a Union Territory, brings within the
definition of "High Court", the highest court of criminal
appeal for that area, namely, the Judicial Commissioner’s
Court. If, at the time the case for confirmation of death
sentence is being heard, the Judicial Commissioner’s Court
consists of more than one Judge, at least two Judges must
attest the confirmation. So long as one Judicial Commis-
sioner alone functions in the Court, section 377 was not
attracted. In the present case there is nothing illegal in
a single (i.e.the only) Judicial Commissioner deciding the
reference. [773 D-F]
(3) Referral jurisdiction under s. 377 is akin to
appeal and revision.Regulation 8(1) of the Goa, Daman and
Diu (Judicial Commissioner’s Court) Regulation 1963 does not
disentitle the Judicial Commissioner from exercising power
u/s. 377, Cr.P.C. In the instant case, the Judicial Commis-
sioner’s confirmation of death sentence is not without
jurisdiction. [774 C-D]
(4) Judicial clemency cannot attenuate the sentence of
death on the sole circumstance that the accused was a young
man and the sentence of death been haunting him for long
without other supplement factors or in the face of surround-
ing beastly circumstances of the crime. Possibly, Presiden-
tial power wider but judicial power is embanked. [774 E-F]
10--707SCI/77
772
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Special Leave Peti-
tion (Criminal) No. 216/1977.
(From the Judgment and Order dated 28-9-1973 of the
Judicial Commissioner, Court, Goa Daman and Diu in Crl.
Appeal No. 17/72).
S.J.S. Fernandez, amicus curiae, for the petitioner.
The Order of the Court was delivered by
KRISHNA IYER, J.--A death sentence, with all its dreadful
scenario swinging desperately out of the last breath of
mortal life, is an excrutiating hour for the judges called
upon to lend signature to tiffs macabre stroke of the execu-
tioner’s rope. Even so, judges must enforce the laws,
whatever they be, and decide according to the best of their
lights, but the laws, are not always just and the lights
are not always luminous. Nor, again, are judicial methods
always adequate to secure justice. We are bound by the
Penal Code and the Criminal Procedure Code, by the, very
oath of our office.
Section 354(3) of the new Code gives the convicting
judge, on a murder charge, a discretion to choose between
capital sentence and life term. It is true that in the
present Code, the unmistakable shift in legislative emphasis
is on life imprisonment for murder as the rule and capital
sentence an exception, to be resorted to for reasons to be
stated (Edige Annamma, 1974 SC 799, AIR). Even so, the
discretion is limited and courts can never afford to forget
Benjamin’ Cardozo’s wise guidance:
"The judge, even when he is free, is still
not wholly free. He is not to innovate at
pleasure. He is not a knight errant roam-
ing at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his
inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to
exercise a discretion informed by tradition,
methodized by analogy, disciplined by sys-
tem, and subordinated to the primordial
necessity of order in the social life. Wide
enough in all conscience is the field of dis-
cretion that remains."
(Cardoze: The Nature of the Judicial Proc-
ess: Wale University Press ( 1921 ) ).
We have heard counsel on the merits and.perused the
paper book with some care and see no ground to disturb the
conviction. The question of ’sentence’ projects sharply
before us and what we. have stated above turns our focus
on cicumstances justifying the graver sentence. The
learned Sessions Judge has given valid reasons as to why
he is imposing the death sentence. The guidelines laid
down by this Court, in its precedents which bind us, tell us
that if the offence has been perpetrated with attendant
aggravating circumstances, if the perpetrator discloses an
extremely depraved state of mind and diabolical trickery in
committing the homicide, accompanied by brutal dealing with
the cadaver, the court can hardly help in the present state
of the law, avoiding infliction of the death penalty. When
discretion has been exercised by the trial Court and it is
difficult to fault that
773
court on any ground, statutory or precedential, an appellate
review and even referral action become too narrow to demol-
ish the discretionary exercise of power by the inferior
court. So viewed, it is clear that the learned Judicial
Commissioner has acted rightly in affirming the death
sentence. We are unable to, grant leave on, this score
either.
Counsel for the petitioner has urged that the affirma-
tion by the Judicial Commissioner’s court of Goa, Diu and
Daman, of the Death sentence is illegal. According to. him
s. 377 of the old code (which govern the instant case), is a
missile which will bit down the confirmation by the Judicial
Commissioner. The said section reads:
"377. In every case so submitted the
confirmation of the sentence, or any new
sentence or order passed by the High Court,
shall, when such Court consists of two or more
Judges, be made, passed and signed by at
least two of them."
This section means, as we understand it, that when the
High Court concerned consists of two or more judges, the
confirmation or other sentence shall be signed by at least
two of them. This provision obviously applies only to
situations where the court, at the time of the confirmation
of the death sentence., consists of two or more judges.
It is true that s. 4 (1) (i) in relation to
a Union Territory brings within the definition of the
’High Court’ the highest court of criminal appeal for that
area viz. the Judicial Commissioner’s court. It therefore
follows that if, at the time the case for confirmation of
the death sentence is being heard, the Judicial Commission-
er’s court consists of more than one judge, at least two
judges must attest the confirmation. In the present case
it is common ground that when the case was heard and judg-
ment pronounced there was. only one Judicial Commissioner,
although the sanctioned strength was two. So long as one
Judicial Commissioner alone functioned in the court, s. 377
was not attracted. The necessary inference is that in
the present case there is nothing illegal in a Single
(i.e. the only) Judicial Commissioner deciding the refer-
ence.
We are aware that the insistence of the Code on two judges
hearing the matter of such gravity as a death sentence
involves is because of the law’s grave concern that human
life shall not be judicially deprived unless at least two
minds at almost the highest level are. applied. Even so,
exceptional situations may arise where two judges are not
available in a High Court and, in that narrow contingency,
the Code permits what has now happened. We cannot fault the
judgment on this ground either.
Counsel for the petitioner contends that the Criminal
Procedure Code is a general statute but the Goa, Daman and
Diu (Judicial Commissioners Court) Regulation, 1963 is a
special law which prevails against the general. On that
footing he argues that under Regulation, 8 (1) the Court of
the Judicial Commissioner shall have only such jurisdiction
as is exercisable in respect of Goa, Daman and Diu by the
Tribunal de Relacao. According to him, the said Tribunal
did not have the powers of confirmation of death sentence,
and,
774
therefore, the judicial Commissioner cannot exercise such
power. He also argues that under the said provision the
Judicial Commissioner’ is the highest Court of Appeal and
Revision but not of Reference and for that reason cannot
exercise the powers under section 377 of the old Crimi-
nal Procedure Code. We see no force in these twin submis-
sions. A Code is complete and that marks the distinction
between a Code and an ordinary enactment. The Criminal
Procedure Code, by that canon, is serf-contained and com-
plete. It defines a High Court which takes in a Judicial
Commissioner’s Court. (Section 4(1)(i). We need not and
indeed may not travel beyond the Code into the territory of
the Regulation. Even otherwise, there is nothing in
Regulation 8 ( 1 ) which helps the petitioner. It pro-
vides that the Judicial Commissioner shall be the highest
criminal ’Court, Appeal and Revision’ used in that provision
are words of the widest import and cover all proceedings
which are not original proceedings but are by way of
judicial review for a higher level. Referral jurisdiction,
under section 377, is skin to appeal and revision and we
think that Regulation 8(1) does not disentitle the Judicial
Commissioner from exercising power under section 377 of the
Code: nor are we inclined to accept the submission that on
the speculative assumption that the Tribunal de Relacao did
not have the power to confirm death sentences, and, there-
fore, the Judicial Commissioner, acting as the High Court
under the Code, cannot enjoy such power. Regulation 8(1)
does not limit the jurisdiction of the. Judicial Commission-
er in the sense counsel wants us to accept. We therefore
hold that the Judicial Commissioner’s confirmation of the
death sentence is not without jurisdiction.
Undeterred by the fact that the murder is gruesome
counsel has pleaded that at least on the question of sen-
tence leave should be granted because his client is a young
man and the sentence of death has been haunting him agonis-
ingly for around six years. May be that such a long spell of
torment may be one circumstance in giving the lesser sen-
tence. Even s0, we have to be guided by the rulings of
this Court which have not gone to the extent of holding that
based on this circumstance alone, without other supplement-
ing factors or in the face of surrounding beastly circum-
stances of the crime, judicial clemency can attenuate the
sentence. Possibly, Presidential power is wider but judicial
power is embanked.
We refuse special leave and dismiss the petition.
Petition dismissed.
775