PETITIONER:
SHIV MOHAN SINGH
Vs.
RESPONDENT:
STATE (DELHI ADMINISTRATION)
DATE OF JUDGMENT10/03/1977
BENCH:
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V.
CITATION:
1977 AIR 949 1977 SCR (3) 172
1977 SCC (2) 238
ACT
Review--Exercise of the powers of Review must be justi-
fied by the compelling pressure of fresh circumstances
within the limits of law--Supreme Court Rules, 1966 Order XI
-Penal Code (1860) S. 302--Sentence--Validity of death sen-
tence.
Criminal Procedure Code, 1973 (Act II of 1974)--Section
235(2)--Right to be heard at the stage of passing
sentence--Considerations in sentencing.
HEADNOTE
The petitioner was convicted u/s 302 I.P.C. and sen-
tenced to death by the. trial court which was confirmed by
the High Court. The Special Leave application, to this Court
was dismissed. A further petition for rehearing and a
review petition thereafter having ’been dismissed, a peti-
tion for directions regarding demand of the case to the
court of Sessions for reconsideration of the sentence in
the light of s.235(3) of the Criminal Procedure Code 1973,
was made, simultaneously with mercy petitions to the Presi-
dent. The mercy petitions to the President and the peti-
tion for direction to tiffs Court having been rejected the
petitioner’s father moved the instant review petition.
Dismissing the petition the Court.
HELD: (1) This court’s review power has repeatedly been
invoked ire vain and naturally a further exercise of the
same power must be justified by the compelling pressure of
fresh circumstances within the limits of law. Recognised
grounds such as manifest injustice induced by obvious curial
error or oversight or new and important matter not reasona-
bly within the ken or reach of the party seeking review on
the prior occasion, may warrant interference to further
justice.
(2) Under the Indian Penal Code death penalty has been
ruled to be constitutional. The law having sanctioned it
and this Court having refused special leave against convic-
tion and sentence in this very case, it is a vanquished
cause to argue for a vague illegality vitiating capital
sentence as such.
[179 D-E]
Gregg v. Georoia, U.S. Supreme Court decided on July 2,
1976 held not applicable.
(3) In India under present conditions deterrence through
death penalty may not be a time-barred punishment in some
frightful areas of barbarous murder. illustratively the
court has mentioned that the brutal features of the crime
and the hapless and helpless state of the victim steel the
heart of the law to impose the sterner sentence. [180 A-B]
Ediga Annamina v. State of A.P., [1974] 4 S.C.C. 443 ex-
plained.
(4) The law is thus harsh and humane and when faced with
arguments about the social invalidity of the death penalty
the personal predilections of the judge must bow to the
law. The Bench with all its will to break through is bound
by a jurisdictional servitude. This fetter is that if
there is no legal ground for the alleged grievances the
court cannot grant relief. The court enters a province of
"powerless power" and finds itself in a quandary between
codified law and progressive thought. The latter beckons,
but the former binds [180 B, 177 F-G]
(5) Hearing is obligatory at the sentencing stage under
the new Criminal Procedure Code. The humanist principle of
individualising punishment to suit the person and his cir-
cumstances is best served by hearing the culprit even on the
nature and quantum of the penalty to be imposed. [180 F]
173
(6) The heinousness of the crime is a relevant factor in
the choice of the sentence. The circumstances of the crime,
especially social pressures which induce the crime which may
be epitomised as "a just sentence in an unjust society" are
another considerations. The criminal. not the crime. must
figure prominently in shaping the sentence where a reform of
the individual, rehabilitation into society and other meas-
ures to prevent recurrence, are weighty factors. Sombre
sentencing is the Fifth Act in the tragedy of a murder
trial and for the judges of the Supreme Court, assumes a
grim seriousness and poignant gravity. The Penal Code
does not give the judge a free hand where murder has been
made out. The choice is painfully--not quite scientifical-
ly though--limited to but two alternatives. [173 F, 180 A-C]
Observation: [Sentencing under the Indian scheme is not
yet realistically forward looking nor correctionally flexi-
ble, but Parliament in its wisdom may examine this inadequa-
cy].
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Review Petition No. 2
of 1977.
(Petition for review of this Court’s order dated 22-9-
1976 in Crl. M.P. Nos. 1567, 1600-1601/76).
Sital A.K. Dhar, for the petitioner.
R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--If ’survival after death’ may aptly
describe any litigative phenomenon, the present review
proceeding may well qualify for that quaint claim. The
relief of review relates to the death penalty imposed upon
the petitioner by the trial court, confirmed in appeal, and
dismissed even at the stage of special leave by this Court.
In the ordinary course, judicial finality, has thus been
affixed on the capital sentence so awarded although Presi-
dential clemency, which has been sought and negatived, may
still be open under Article 72 of Constitution. Mercy, like
divinity, is amenable to unending exercise but in this
mundane matter it is for the Head of State to act and not
for the apex Court.
Sombre sentencing is the Fifth Act in the tragedy of a
murder trial and, for the Judges of the Supreme Court,
assumes a grim seriousness and poignant gravity since the
petitioner’s final appeal for judicial commutation, if
rejected, may perhaps prove imminently fatal to his life.
Even so, vhen we chronicle the events connected with the
judicial proceedings in this Court it will be realised that
our review power has repeatedly been invoked in vain’ and
naturally a further exercise of the same power must be
justified by the compelling pressure o[ fresh circumstances
within the limits of the law. The nature of the judicial
process, even at the tallest tower, is such that, to use
Gardozo’s elegant expressions, ’a judge even when he is
free, is still not wholly free; he is not to innovate at
pleasure; he is not a knight-errant, roaming at will in
pursuit of his own ideal of beauty of of goodness; he is to
draw inspiration from consecrated principles’. Where the
Judge’s values and those prevailing in society clash, the
judge must, in theory give way to the ’objective right’.
174
The focus, therefore; must turn on the existence of
grounds of manifest miscarriage of justice unavailable on
the earlier occasions. Before that, a brief reference may be
made to the ’criminal’ facts.
A treacherous murder of a tender school-boy by the
petitioner, the circumstances of which were so heartless and
heinous, terminated condiguly at the trial court and the
High Court, the extreme penalty having been visited on the
offender for his horrendous killing. This Court refused
special leave to appeal, drawing the dark curtain’ on the
criminal proceedings. The petitioner struggled to extricate
himself from the executioner by a sequence of desperate
steps. On his behalf, a motion for re-hearing the special
leave petition was fruitlessly made to this Court. A review
petition was made again to this Court in vain. Yet another,
out of the same motive but with modified reliefs, was made
and dismissed. Then followed an application for directions
regarding remand of the case to the court of sessions for
reconsideration of the sentence in the light of s. 235(3) of
the Code of Criminal Procedure, 1973. Dismissal of this
proceeding did not deter the petitioner from persisting in
moving this Court. That is how the present review peti-
tion has been put in on his behalf by his father.
Mercy petitions to the President punctuated the court
proceedings but they too were turned down. The convict,
nevertheless, clung on and. as stated earlier, his pathetic
persistence in the plea for commutation has been pressed
before us by counsel on two scores. He has urged that a
decision of this Court in Santa Singh v. State of Punjab(1)
of which he was not aware at the earlier stages entitles.
him to a remand to the Sessions Court for reconsideration
of the sentence of death. Secondly, he has also pressed
upon us personal and social circumstances which have re-
ceived judicial approval as justifying the imposition of the
lesser sentence of life imprisonment even where the offence
of murder has been made out.
In the ordinary course, the supplicant’s forensic battle
for life must be repelled by us since this Court has refused
leave, rejected review petitions and denied reconsideration.
Even so, realising that by this prolonging proceeding he is
longing for dear life and clutching at legal straws, we have
desisted from a dramatic rejection of the petition outright,
anxious to set if there be some tenable ground which reason-
ably warrants judicial interdicts to halt the hangman’s
halter. We were willing to strain, within permissible
limits, to blend leniency with legality. ’The last breath’
is the last hold of the law on the living to do justice and
at that point judges, while hating the crime, do not hate
the man who committed it, such being the humanism of penal
justice. Circuit Judge Christmas Humphreys told the B.B.C.
Reporter recently that a judge looks "at the man in the dock
in a different way, not just a criminal to be punished, but
a fellow human being, another form of life who is also a
form of the same one life as oneself". In the context of
Karuna and punishment for Karma the same Judge said:
(1) Criminal Appeal No. 230 of 1976 decided on 17-8-76.
175
"The two things are not incompatible.
You do punish him for what he did, but you
bring in a quality of what is sometimes called
mercy, rather than an emotional hate against
the man for doing something harmful. You feel
with him; that is what compassion means."
(The Listener, d/25.11.1976, P. 692)
But if the harsh frontiers’ of the criminal are clearly
drawn, to travel beyond is out of bounds for the court.
The focus of counsel’s first submission was turned on
the compassion of the Code of Criminal Procedure, 1972 which
obligates the court, under section 235, to hear the convict
on the question of sentence. The provision is salutary
although its application to the present case is moot, in the
light of. section 484 of the Code. Without pausing to
decide whether the new Code applies, we have extended to the
petitioners the benefit of the benignant provision and
allowed his counsel to present the circumstances he relies
on to activate our commiserative jurisdiction.
It is true that the New Code provides many additional
facilities for persons accused of crime., the paramount idea
being to avoid an innocent man being mistakenly found guilty
or punished disproportionately. In the present case, the
conviction has become conclusive and only the question of
sentence is being argued for extenuating consideration.
Even so, sometimes one is led to wonder whether the words of
Learned Hand have some relevance to the Indian system. The
learned Judge said of the American system:
"Under our criminal Procedure, the
accused has every advantage. While the prose-
cution is held rigidly to the charge, the
accused need not disclose the barest outline
of his defence. He is immune from questioning
or comment on his silence; he cannot be con-
victed when there is the least fair doubt in
the minds of anyone of the 12 Jurers. Our
procedure has always been haunted by the ghost
of the innocent man convicted. It is an
unreal dream. What we need to fear is the
archaic formalism and the watery sentiment
that obstructs, delays and defeats the prose-
cution of crime".
We advert to this aspect only to emphasize a sense of
perspective in the judiciary when applying the protective
procedural provisions of the Code. Sentencing under the
Indian scheme, is not yet realistically forward-looking nor
correctionally flexible but Parliament in its wisdom, may
examine this inadequacy.
The penalty of death is an irrevocable process and
naturally our pensive thought was turned to the moral-jural
aspects of the utility and futility of this deadly sanction
of State against citizen of hanging a human being into a
cold oadaver. The miscellany of ideological sociological-
jural considerations, although not pertinent within the
176
narrow horizon of a court of law, has a fascinating and
portentous significance when we remind ourselves that the
Supreme Court goes beyond chopping little law into spacious
jurisprudence on great occasions and our Penal Code is
itself under review before Parliament.
This prolegomenon to the principles of capital sentence
is our alibi for a brief divagation into the basics of
infliction of death as a weapon of extinction society uses
against its terribly deviant members as beyond deterrence.
Is the death penalty a purposeful punitive strategy or
legitimate legal weapon, viewed against the advanced peno-
logical goals of reformation, deterrence and social defence
? Why is death terrifying and what are the objects of
punishment served by its infliction ?
The literature on doing justice at the sentencing stage
is profound and proliferating and penological controversy on
death penalty has led to a Great Divide among sociologists,
jurists and spiritualists. To go eggregiously wrong on
punishment is to commit the crime’ of sentence and, natural-
ly, since taking the life of the prisoner neither prevents
him nor reforms him (for he is no more), theories supporting
capital punishment prove self-defeating. Moreover, the
irreversible step of extinguishing the offender’s life leave
society with no opportunity to retrieve him if ’the’ convic-
tion and punishment be found later to be rounded on flawsome
evidence’ or the sentence is discovered to be induced by
some phoney aggravation, except the poor consolation of
posthumous rehabilitation as has been done in a few other
countries for which there is no procedure in our system.
May be, these are campaign points of abolitionists against
capital sentence.
Envisioned from another fundamentally different angle,
is the dread of death penalty a deterrant ? Socrates would
not recant, Jesus would not plead, St. Joan would not
deny--with the cup of poison, bleeding crucifixion and
burning stakes starting them in the face as punishment.
Why, Higher Truth, acting through its inspired agents,
taunts human law; for, then the body’gives little purchase
over the soul, as Gandhiji demonstrated by defiance of
British-Indian ’justice’. And, more dramatically yet dimly,
psychic, electronic and medical explorations, scientifically
conducted, are reportedly revealing through fascinating
flashes of research and recording and extraordinary but
tested investigations into rebirth, that death is only
discarnation, not utter dissolution, that after ’death’ we
survive and act in a demonstrable, subtle dimension of
existence. No longer is this thesis projected as faith but
sought to be proved as fact. If, in the not distant future,
the greatest of all man’s fears--fear of death--is dispelled
by the finding of poetic science proving that you live after
’death’ and can communicate with the ’living’, that the
confusion between discarnation and death can be scientifi-
cally explored and cleared, a revolution in the penological
programmes of society would have dawned. The trans-physi-
cal human future, as sciences unravel, may make our current
penal strategies obsolescent. At Court, current criminal
law binds us willy-nilly and we have to abandon the subject
suggestively.
The basic issue ’What is death ?’, may engage us
psycho-criminologically, although a wee-bit digressively for
a moment, to assess the
177
social impact of the death penalty. By and large, humankind
holds fast to the belief that death is a total extinction of
dearlife and views its arrival through the executioner’s
rope or electric chair or firing squad with awesome horror.
With poetic pragmatism, Shakespeare expressed this common
feeling when he referred, in the context of death, to ’that
undiscovered country from whose journ no traveller returns’.
There are others, however--and among them are ancient seers,
modern divines and several psychic researchers in institutes
who regard as super-senSory. Reality or scientific verity
that there is life after life, that the phenonmenon of death
may even have a liberating effect, that the grosset exist-
ence is in corporeal life and the subtler in the incorporeal
state and life-death life is a continuum. Our sages assert
with vision that deathbound littleness iS not all we are and
great death as integral to the life process. Many scien-
tists are investigating what happens after death and lifting
the dark veil with luminous evidence of ethenic survival.
Even so, most men even pious ones--are earthy materialists,
and, in our work-a-day world, take it an axiom that it is
given to us to live but once. The law, a people’s practical
scheme, which operates on the behavioral patterns and
psyche of the humdrum run of mortals, steers clear of
super-scientific and mystic may be and grounds itself on the
hard-headed realist’s view that the sentence of death is the
maximum punishment as it puts the criminal out of material
existence. Indeed, it is a fiercely final step for mortals
and, in a sense, abhorrent because survival after death,
though slowly, murkily, falteringly, gaining scientific,
ground, is still suspect and has not made headway into the
thoughtways of jurisprudes and legislators, rationalists and
practical people. If after-life and re-birth are verities,
as many poetic scientists claim to prove beyond easy dis-
missal both penology and criminology will undergo re-evalu-
ation. For, as punishment ’death penalty’ will cease to be
terrible and criminologyically, crime will be inescapably
punished’in this life or on re-birth, These futuristic
projections are of no practical consequence now. Jurispru-
dence has to react to and build upon established belief-
systems, branches of human knowledge and behavioral
sciences.
But these problems are more Tomorrow’s challenge to
philosophers, spiritualists, social and mental scientists,
fundamental thinkers, parliamentarians and penal reformers.
The Bench, with all its will to break-through, is bound by a
jurisdictional servitude. This fetter is, as stressed by
Government counsel, that if there is no legal ground for the
alleged grievance, the Court cannot grant relief. The Court
enters a province of ’powerless power’ and finds itself in a
quandary between codified law and progressive thought. The
latter beckons, but the former binds.
We divagated into the import and portent of life and
after-life on capital sentence not because these distant,
dubious searches have immediate legal standing but merely to
show how we may be swept off our feet if we chase ’tomorrow’
theories, especially since law in court is hard realism.
To-day for the condemned prisoner, the day of execution is
the dreadful last day of life. Even so, critics like Bec-
caria have said ’the death penalty cannot be useful, because
of
178
the example of barbarity it gives men .... It seems to me
absurd that laws which are an expression of the public will,
which detest and punish homicide, should themselves commit
it’. On the other hand, the deterrent and retributive
theorists prevail amongst penologists and lextalionis con-
tinues in sublimated form Orthodox jurists have shared the
view of Genesis 9:6: "Whosoever sheddeth a man’s blood, so
shall his blood be shed." To epitomize, in this blurred
area of criminal jurisprudence we are lost in the conflict
between ideals, theories and research findings and the
subject remains so fluid that legislative decision-making
and jurisprudential debate must crystallize into a Code
before the Court can activise these norms or incorporate
them as judge-made law.
The plea of counsel against death penalty has topical
favour and echoes the recent American debate. To abbrevi-
ate.the discussion, We content ourselves with adverting to
the judicial division of opinion in the Supreme Court of
U.S.A. in Gregg v. Georgia (decided on July2, 1976) wherein
Mr. Justice Brennan, in his dissenting Judgment,drove home
his point thus:
"I emphasize only that foremost among the
moral concepts’ recognized in our cases and
inherent in the clause is the primary moral
principle that the state, even as it punish-
es, must treat its citizens in a manner con-
sistent with their intrinsic worth as human
beings a punishment must not be so severe as
to be degrading to human dignity. A judicial
determination whether the punishment of
death comports with human dignity is therefore
not only permitted but compelled by the
clause.
Death is not only an unusually
severe punishment, unusual in its pain, in its
finality, and in its enormity, but it serves
no penal purpose more effectively than a less
severe punishment; therefore the principle
inherent in the clause that prohibits point-
less infliction of excessive punishment when
less severe punishment can adequately achieve
the same purposes invalidates the punishment."
Mr. Justice Marshall added the weight of his opinion:
"The two purposes that sustain the death
penalty as non-excessive in the court’s view
are general deterrence and retribution.
The Enrlich study, in short, is of little,
if any assistance in assessing the deterrent
impact of the death penalty. The evidence I
reviewed in Furman remains convincing in my
view, that ’capital punishment is not neces-
sary as a deterrent to crime in our society.
The justification for the death penalty must
be found elsewhere.
The other principal purpose said to be
served by the death penalty is retribution.
The notion that retribution can serve as a
moral justification for the sanction of death
finds credence in the opinion of my brothers
Stewart, Powell,
179
and Stevens, and that of my brother White in
Roberts v. Louisians. It is thin notion that I
find to be the most disturbing aspect of to-
day’s unfortunate decision.
The foregoing contentions--that socie-
ty’s expression of moral outrage through the
imposition of the death penalty preempts the
citizenry from taking the law into its own
hands and reinforces moral values--are not
retributive’ in the purest sense. They are
essentially utilitarian in that they portray
the death penalty as valuable because of its
beneficial results. These justifications for
the death penalty are inadequate because the
penalty is, quite clearly I think not neces-
sary to the accomplishment of those results.
There remains for consideration, howev-
er, what might be termed the purely retribu-
tive justification for .the death
penalty--that the death penalty is appropri-
ate, not because of its beneficial effect on
Society, but because the taking of the murder-
er’s life is itself morally good. Some of the
language of the plurality’s opinion appears
positively to embrace this notion of retribu-
tion for its own sake as a justification for
capital punishment."
These American views of eminent judges deserve
deferential notice but do not aid us in the
decision of this Indian Appeal which relates
to implementation of a valid sentence since,
under the Indian Code, death penalty. has been
ruled to be constitutional. The law having
sanctioned it and this Court haying refused
special leave against conviction and sentence.
in this very case, it is a vanquished cause to
argue for a vague illegality vitiating capital
sentence as such. To that extent the pall must
fall.
Counsel for the petitioner brought to our
notice a number of recent decisions of this
Court where judges have expressed themselves
in favour of a sentencing policy of life term
as against death penalty. In Ediga Annamma
(1974 (4) SCC 443) the Court pointed to the
retreat of death penalty as part of punitive
strategy in many countries of the world.
Counsel cited rulings of this Court to show
that where the murderer too young or too old
or the haunting horror of being hanged has
been hovering over his head for a few years or
the condemned prisoner is the sole bread-
winner of the whole family, the lesser sen-
tence of life imprisonment should be the
judicial choice. He brought to our notice the
social and personal circumstances in the
present case relevant to the above approach.
Undoubtedly, the prisoner was a young man
around 21/22 years when he committ‘d the
crime. He claims that his young wife will be
helpless, that upon him depends the family for
livelihood, that his mother is blind, that all
of them will have a miserable, indigent life
If, the petitioner were to be extinguished
from earthly existence. He also emphasised
that since 1974 the sentence of death had been
shattering his morale. It must, however, be
pointed out that counsel for the State refuted
some of the more important of these grounds
and went to the extent of even stating that
the petitioner’s wife had remarried.
180
In Ediga Annamma this Court, while noticing the social
and personal circumstances possessing an extenuating impact,
has equally clearly highlighted that in India under present
conditions deterrence through death penalty may not be a
time-barred punishment in some frightful areas of barbarous
murder. Illustratively, the Court has mentioned that the
brutal features of the crime and the hapless and helpless
state of the victim steel the heart of the law to impose the
sterner sentence.
The law is thus harsh and humane and when faced with
arguments about the social invalidity of the death penalty
the personal predilections of the Judge must bow to the law
as by this Court declared, adopting the noble words of
Justice Stenley Mosk of California uttered in a death sen-
tence case: "As Judge, I am bound to the law as I find it
to be and not as fervently wish it to be".
(The Yale Law Journal No. 6, p. 1138).
A learned writer on the Indian Constitution has observed :-
" .... 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 have given deep consideration to the many circumstances
pressed by the petitioner’s counsel to review our earlier
orders dismissing review and refusing special leave to
appeal. While we agree that Judges, like others are falli-
ble and their findings are not ’untouchably’ sacrosanct, we
disagree that on an overall view of the many circumstances
of the crime and the criminal in the present case, the
sentence of death should be departed from.
Recognized grounds such as manifest injustice induced by
obvious curial error or oversight, or new and important
matter .not reasonably within the ken or reach of the party
seeking review on the prior occasion, may warrant interfer-
ence, to further justice. The scenario of events in this
case rules out the arguments urged by counsel. Hearing is
obligatory at the sentencing stage under the New Criminal
Procedure Code. The humanist principle of individualising
punishment to suit the person and his circumstances is best
served by hearing is obligatory at the sentencing stage
under the New Criminal imposed. In the present case, the
date of commencement of the trial ,might rule out the
applicability of the new Code. Moreover, he had already come
to this Court seeking special leave to appeal at a time when
the new Code was in force. He did not urge the ground of
denial of opportunity to be heard at the sentencing stage.
Assuming indulgently in his favour that he came to know the
correct law on this branch only after the decision of this
Court in Shant Singh (Supra), his earlier application for
review was disposed of after that ruling was rendered by
this Court. Even then the present grievance of non-hearing
was not pressed. He has missed the bus and his contention
based on the new Code is of doubtful substance. Even so,
having regard to the compassion that must temper the rigour
of rigid
181
rules we have allowed counsel a fresh opportunity to put
forward before us, after taking instructions from his cli-
ent, all the circumstances the Court should consider by way
of ameliorative gesture and reduction of the death penalty
to a life term incaraceration. The heinousness of the crime
is a relevant factor in the choice of the sentence. The
circumstances of the crime, especially social pressures
which induce the crime which we may epitomise as a just
sentence in an unjust society’ are another consideration.
The criminal, not the crime, must figure prominently in
shaping the sentence where a reform of the individual,
rehabilitation into society and other measures to prevent
recurrence, are weighty factors. The Penal Code does not
give the Judge a free hand where murder has been made out.
The choice is painfully--not quite scientifically
though--limited to but two alternatives. We have given
reasons why, as the law now stands, we decline to demolish
the death sentence. We therefore, dismiss the review peti-
tion.
The judicial fate notwithstanding, there are some cir-
cumstances suggestive of a claim to Presidential clemency.
The two jurisdictions are different, although some consider-
ations may overlap. We particularly mention this because it
may still be open to the petitioner to invoke the mercy
power of the President and his success or failure in that
endeavour may decide the arrival or otherwise of his dooms-
day. With these observations we leave the ’death penalty’
Judicially ’untouched’.
S.R. Review petition dismissed.
182