Monday, 1 May 2017

Whether issue decided by larger bench is binding as precedent even though it is not referred by concerned bench?

 In this context, another submission deserves to be
noted. It is canvassed by the learned senior counsel for the
appellants that the issue of enhancement and scope of
enhancement was not referred to the Constitution Bench.
The reference order which has been quoted in V. Sriharan
(supra) has been brought to our notice to highlight the point
that in the absence of a reference by the concerned Bench,
the Constitution Bench could not have adverted to the said
aspect. The said submission is noted only to be rejected.
The larger Bench has framed the issues which deserve to be
answered and, as seen from the entire tenor of the
judgment, it felt that it is obliged to address the issue
regard being had to the controversy that arises in number
of cases. In fact, as is evincible, question Nos. (i) and (ii) of
paragraph 2.2 have been specifically posed in this manner.
We do not think that there is any impediment on the part
of the Constitution Bench to have traversed on the said
issues. In fact, in our view, the Constitution Bench has
correctly adverted to the same and clarified the legal
position and we are bound by it.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1531-1533 OF 2015
Vikas Yadav State of U.P.
Citation: 2017 CRLJ 1111

 The appellants in this batch of appeals stand
convicted for the offences under Sections 302, 364, 201
read with Section 34 of the Indian Penal Code (IPC). This
Court while hearing the special leave petitions on
17.08.2015 had passed the following order:-
“Delay condoned.
Having heard learned senior counsel for the
petitioners at great length, we are of the view, that
the impugned orders call for no interference
whatsoever insofar as the conviction of the
petitioners is concerned. The conviction of the
three petitioners, as recorded by the courts below,
is accordingly upheld.
Issue notice, on the quantum of sentence,
returnable after six weeks.”
2. On 16.06.2015 leave was granted. Thus, we are only
concerned with the legal defensibility and the justifiability of
the imposition of sentence.
3. The arguments in these appeals commenced on issues
of law. Mr. U.R. Lalit and Mr. Shekhar Naphade, learned
senior counsel appearing for the appellant in Criminal
Appeal Nos. 1531-1533 of 2015 and Mr. Atul Nanda,
learned senior counsel appearing for the appellant in
Criminal Appeal Nos. 1528-1530 of 2015 questioned the
propriety of the sentence as the High Court has imposed a
fixed term sentence, i.e., 25 years for the offence under
Section 302 IPC and 5 years for offence under Section 201
IPC with the stipulation that both the sentences would run
consecutively. It is apt to note here that separate sentences
have been imposed in respect of other offences but they
have been directed to be concurrent. After advancing the
arguments relating to the jurisdiction of the High Court as
well as this Court on imposition of fixed term/period
sentence, more so when the trial court has not imposed
death sentence, the learned counsel argued that the factual
score in the instant case did not warrant such harsh
delineation as a consequence disproportionate sentences
have been imposed.
4. Keeping in view the chronology of advancement of
arguments, we think it apt to deal with the jurisdictional
facet. If we negative the proposition advanced by the
learned counsel for the appellants, then only we shall be
required to proceed to deal with the facts as requisite to be
stated for the purpose of adjudicating the justifiability of
imposition of such sentence. If we accede to the first
submission, then the second aspect would not call for any
deliberation. At this juncture, it is necessary to state that
the learned trial judge by order dated 30.05.2008 sentenced
Vikas Yadav and Vishal Yadav to life imprisonment as well
as fine of one lakh each under Section 302 IPC and, in
default of payment of fine, to undergo simple imprisonment
for one year. They were sentenced to undergo simple
imprisonment for ten years and fine of Rs. 50,000/- each
for their conviction under Section 364/34 IPC, in default to
undergo simple imprisonment for six months and rigorous
imprisonment for five years and fine of Rs. 10,000/- each
under Section 201/34 IPC, in default, simple imprisonment
for three months. All sentences were directed to run
concurrently. Sukhdev Yadav @ Pehalwan who was tried
separately because of his abscondence in SC No. 76 of 2008
was convicted for the offences under Sections 302/364/34
IPC and Section 201 and by order dated 12.07.2011, he was
sentenced to undergo life imprisonment and fine of Rs.
10,000/- for commission of the offence under Section 302
IPC, in default, to undergo rigorous imprisonment for two
years; rigorous imprisonment for seven years and fine of Rs.
5,000/- for commission of the offence under Section 364
IPC, in default, to suffer rigorous imprisonment for six
months; rigorous imprisonment for three years and fine of
Rs. 5,000/- for his conviction under Section 201 IPC, in
default, to undergo further rigorous imprisonment for six
months. All sentences were directed to be concurrent.
5. Be it noted, the prosecution, – State of NCT of Delhi
preferred an appeal under Section 377 CrPC for
enhancement of sentence of imprisonment of life to one of
death for the offence under Section 302 IPC. The High
Court addressed to number of issues, namely, (a) statutory
provisions and jurisprudence regarding imposition of the
death penalty; (b) death sentence jurisprudence –
divergence in views; (c) life imprisonment – meaning and
nature of; (d) the authority of the judiciary to regulate the
power of the executive to remit the sentence or to put in
other words jurisdiction of the court to direct minimum
term sentence in excess of imposition of 14 years; (e) if there
are convictions for multiple offences in one case, does the
court have the option of directing that the sentences
imposed thereon shall run consecutively and not
concurrently; (f) honour killing – whether penalty of only the
death sentence; (g) contours of the jurisdiction of the High
Court to enhance a sentence imposed by the trial court and
competency to pass orders under Section 357 of the CrPC
in the appeal by the State or revision by a complainant
seeking enhancement of sentence; (h) sentencing procedure
and pre-sentencing hearing nature of; (i) concerns for the
victims – award of compensation to heal and as a method of
reconciling victim to the offender; (j) State’s liability to pay
compensation; (k) fine and compensation – constituents,
reasonability and adequacy; (l) sentencing principles; (m)
jurisdiction of the appellate court while considering a prayer
for enhancement of the sentence; (n) if not death penalty,
what would be an adequate sentence in the present case;
and (o) what ought to be the fitnes in the present case.
6. Apart from the said aspects, the High Court also
addressed to certain aspects which are specific to the case
at hand to which we will advert to at a later stage.
7. The High Court, after addressing the aspects which we
have catalogued and some other fact specific issues,
imposed the following sentences:-Page 7
7
“881. In view of the above discussion, we modify and enhance the
sentence imposed by the judgments dated 30th May, 2008 upon the
defendants Vikas Yadav, Vishal Yadav and 12th July, 2011 upon
Sukhdev Yadav and direct that they shall be liable to undergo the
following sentences :-
(I)
For
commission
of offences
under
Sentences awarded to each
of Vikas Yadav & Vishal
Yadav
Sentence awarded to
Sukhdev Yadav
Section
302/34 IPC
Life imprisonment which shall
be 25 years of actual
imprisonment without
consideration of remission, and
fine of Rs. 50 lakh each
Life imprisonment
which shall be 20
years of actual
imprisonment without
consideration of
remission, and fine of
Rs.10,000/-
Upon default in payment of
fine, they shall be liable to
undergo rigorous
imprisonment of 3 years.
Upon default in
payment of fine, he
shall be liable to
undergo simple
imprisonment for one
month.
Section
364/34 IPC
Rigorous imprisonment for 10
years with a fine of Rs.2 lakh
each
10 years rigorous
imprisonment with
fine of Rs.5,000/-
Upon default in payment of
fine, they shall be liable to
undergo rigorous
imprisonment for 6 months
Upon default in
payment of fine, he
shall be liable to
undergo simple
imprisonment for 15
days
Section
201/34 IPC
Rigorous imprisonment for 5
years and a fine Rs.2 lakh each
5 years rigorous
imprisonment with
fine of Rs.5,000/-
Upon default in payment of
fine, they shall be liable to
undergo rigorous
imprisonment for 6 months
Upon default in
payment of fine, he
shall be liable to
undergo simple
imprisonment for 15
days
(II) It is directed that the sentences for conviction of the offences
under Section 302/34 and Section 364/34 IPC shall runPage 8
8
concurrently. The sentence under Section 201/34 IPC shall run
consecutively to the other sentences for the discussion and reasons in
paras 741 to 745 above.
(III) The amount of the fines shall be deposited with the trial court
within a period of six months from today.
(IV) We further direct that the fine amounts of Rs.50,00,000/- of
each of Vikas Yadav and Vishal Yadav when deposited with the trial
court, are forthwith disbursed in the following manner:
(i) To the Government of Uttar Pradesh
towards investigation, prosecution
and defence of the cases with regard
to FIR No.192/2002 P.S. Ghaziabad.
Rs.5,00,000/- from
the deposit of the fine
of each of the
defendants
(ii) To the Government of NCT of Delhi
towards prosecution, filing and
defence of litigation, administration of
courts and witness protection with
regard to FIR No.192/2002 P.S.
Ghaziabad
Rs.25,00,000/- from
the deposit of the fine
of each of the
defendants
(iii) To Nilam Katara towards the costs
incurred by her in pursuing the
matter, filing petitions and
applications as well as defending all
cases after 16th/17th February,
2002 with regard to FIR No.192/2002
in all courts.
Rs.20,00,000/- from
the deposit of the fine
of each of the
defendants
(V) Amount of fines deposited by Sukhdev Yadav and other fines
deposited by Vikas Yadav and Vishal Yadav shall be forwarded to the
Delhi Legal Services Authority to be utilised under the Victims
Compensation Scheme.
(VI) In case an application for parole or remission is moved by the
defendants before the appropriate government, notice thereof shall be
given to Nilam Katara as well as Ajay Katara by the appropriate
government and they shall also be heard with regard thereto before
passing of orders thereon.
(VII) So far as Vikas Yadav is concerned, we also issue the following
directions:
(i) The period for the admission in AIIMS from 10th October, 2011 to
4
th November, 2011 (both days included) shall not be counted as aPage 9
9
period for which he has undergone imprisonment. His records and
nominal rolls shall be accordingly corrected by the jail authorities.
(ii) Vikas Yadav shall make payments of the following amounts to the
Government of NCT of Delhi:
(i) Amounts paid to AIIMS : Rs.50,750/-
(ii) Towards security deployment
during AIIMS
: Rs.1,20,012/-
(iii) OPD visits : Rs.50,000/-
(iv) Taxi fare : Rs.18,500/-
Total : Rs.2,39,262/-
(VIII) So far as Vishal Yadav is concerned, we direct as hereafter :-
(i) The periods of the admissions in the Batra Hospital totalling 320
days [32 days (from 7th July, 2008 to 7th August, 2008); 24 days (from
14th August, 2008 to 6th September, 2008), 53 days (24th October,
2008 to 15th December, 2008); 100 days (from 25th February, 2009 to
6
th June, 2009); 71 days (from 7th October, 2009 to 16th December,
2009); 36 days (from 29th September, 2010 to 3rd November, 2010);
4 days (from 14th October, 2011 to 17th October, 2011)] shall not be
counted as a period which he has undergone imprisonment. His
records and nominal rolls shall be accordingly corrected by the jail
authorities.
(ii) Vishal Yadav shall make payments of the following amounts to the
Government of NCT of Delhi:
(i) Provision of security during the
above seven hospital admissions
post conviction
: Rs.14,75,184/-
(ii) During OPD hospital visits : Rs.50,000/-
(iii) Post conviction visits on taxi fare : Rs.14,700/-
Total : Rs.15,39,884/-
(IX) The amounts directed to be paid by Vishal Yadav and Vikas
Yadav at Sr. Nos.(VI) and (VII) above shall be deposited within four
months of the passing of the present order.
(X) In the event of the failure to deposit the amount as directed at Sr.
Nos.(VI), (VII) and (VIII), the defaulting defendant (Vikas Yadav and
Vishal Yadav) shall be liable to undergo rigorous imprisonment of one
year. It is made clear that these directions are in addition to the
substantive sentences imposed upon them.”Page 10
10
8. We think it appropriate to deal with the aspect of legal
permissibility of the imposition of sentence first as the
learned senior counsel appearing for the appellants had
argued quite astutely with regard to the non-acceptability of
such fixed term sentences and other facets relating to it.
After we answer the said issue, if needed, we shall dwell
upon the sustainability and warrantableness of the
sentences in the facts of the case.
9. Learned senior counsel for the appellants have
advanced the following propositions to bolster the first
stand:-
(i) When the Indian Penal Code provides for only two
punishments, i.e., imprisonment for life or death, the court
by judge-made law cannot introduce a third category of
punishment.
(ii) The prescription of third category of punishment is
contrary to Sections 28 and 386 CrPC and Section 302 IPC.
(iii) Prescription of sentence is within the domain of the
legislature and the court can only impose such sentencePage 11
11
what has been provided for by the legislature and not invent
one.
(iv) Wherever the legislature has thought it appropriate, it
has provided sentences by providing certain years, such as,
offences punishable under Sections 376A, 376D and 392
IPC; Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985; and when it is not provided for in the
IPC in respect of Section 302 IPC, the court cannot impose
a third category of sentence as that would tantamount to
legislation by the judiciary.
(v) When the court imposes a third category of sentence,
there is either express or implied direction for not granting
the remission as provided under Section 433-A after expiry
of 14 years which is legally not permissible inasmuch as
this Court in exercise of power under Article 142 of the
Constitution cannot direct a statutory provision to be kept
in abeyance as a mode of sentencing structure. Page 12
12
(vi) The Constitution Bench decisions in K.M. Nanavati
v. State of Bombay1and Sarat Chandra Rabha and
others v. Khagendranath Nath and others2
 have not
been considered by the majority in Union of India v. V.
Sriharan alias Murugan and others3 and it, therefore,
requires reconsideration.
(vii) When the trial court has imposed the life sentence and
the question of commutation does not arise, as a logical
corollary, imposition of fixed term sentence is impermissible
as has been held in Sahib Hussain alias Sahib Jan v.
State of Rajasthan4
 and Gurvail Singh alias Gala v.
State of Punjab5
. In essence, in the absence of a death
sentence, a fixed term sentence cannot be imposed. The
appellate court, assuming has the authority, can impose
only such sentence which could have been imposed by the
trial court as has been clearly held in Jagat Bahadur v.
1
AIR 1961 SC 112
2 AIR 1961 SC 334
3
(2016) 7 SCC 1
4
(2013) 9 SCC 778
5
(2013) 10 SCC 631Page 13
13
State of Madhya Pradesh6
 and in Shankar Kerba
Jadhav and others v. The State of Maharashtra7
.
(viii) The Court when imposes sentence by saying “fixed
term sentence”, it takes away the power of the executive
which is constitutionally not permissible as per the
pronouncements in K.M. Nanavati (supra), Sarat
Chandra Rabha (supra) and A.R. Antulay v. R.S. Naik
and another8
.
(ix) There is remotely any warrant to direct the sentence for
life and sentence imposed under Section 201 IPC to run
consecutively, and it is a palpable error which cannot be
countenanced, and in fact, it runs counter to the
Constitution Bench decision in Muthuramalingam & Ors.
v. State represented by Insp. of Police9
.
(ix) The High Court has fallen into grave error by imposing
20 years of sentence on Sukhdev Yadav, whereas Vikas
Yadav and Vishal Yadav had been sentenced for 25 years
which demonstrates total non-application of mind.
6 AIR 1966 SC 945
7 AIR 1971 SC 840
8
(1988) 2 SCC 602
9
2016 (7) SCALE 129Page 14
14
(x) The issue of enhancement of sentence and fixed term
was not referred to the Constitution Bench but the
Constitution Bench has dealt with the same and, therefore,
the decision in V. Sriharan (supra) suffers from
impropriety.
10. Mr. Dayan Krishnan, learned senior counsel appearing
for the State of NCT Delhi, in his turn, submits that the
judgment rendered by the Constitution Bench in V.
Sriharan (supra) is absolutely correct and is a binding
precedent from all spectrums and does not require
reconsideration. Learned senior counsel further argued that
the judgment rendered by the Constitution Bench does not
run counter to the principles set out in the earlier two
judgments in K. Nanavati (supra) and Shankar Kerba
Jadhav (supra) because the said judgments have been
rendered in altogether different contexts and the opinion
expressed therein has to be understood regard being had to
the factual score that arose therein. According to the
learned counsel for the State, the constitutional courts have
power to pass fixed term sentence in the interest of justice.Page 15
15
Defending the imposition of sentence in the case, Mr.
Krishnan would submit that when the State had preferred
an appeal for enhancement of sentence, i.e., from
imprisonment of life to death sentence, the decision of the
High Court is absolutely flawless. It is argued by him that
the direction for the life sentence and the sentence imposed
under Section 201 IPC to be consecutive and not to run
concurrently cannot be found fault with as the High Court
has ascribed adequate reasons for the same and it is in
consonance with the principle stated in
Muthuramalingam (supra) and if there is any deviation
therein, the same can be rectified by this Court.
11. Ms. Aparajita Singh, learned counsel appearing for the
informant, supported the stand of the State and
emphasized that in a crime of honor killing stringent
punishment deserves to be imposed.
12. Presently, we shall proceed to deal with the
contentions, and we make it clear the delineation thereof
shall not be in strict seriatim as the contentions in a way
overlap. Section 28 CrPC reads as follows:-Page 16
16
“28. Sentences which High Courts and
Sessions Judges may pass.—
(1) A High Court may pass any sentence
authorised by law.
(2) A Sessions Judge or Additional Sessions
Judge may pass any sentence authorised by law;
but any sentence of death passed by any such
Judge shall be subject to confirmation by the
High Court.
(3) An Assistant Sessions Judge may pass any
sentence authorised by law except a sentence of
death or of imprisonment for life or of
imprisonment for a term exceeding ten years.”
13. The submission of the learned senior counsel for the
appellants is that the High Court can pass any sentence
“authorised by law” and a Sessions Judge or an Additional
Sessions Judge may pass any sentence authorised by law
but for any sentence of death passed by any such Judge
shall be subject to confirmation by the High Court and,
therefore, no court can impose a sentence if it is not
authorised by law. The fulcrum of the submission is that
the said provision is substantive in nature and it is not in
the realm of adjective law. In this context, our attention
has been drawn to Section 386 CrPC. The said provision
reads as follows:-Page 17
17
“386. Power of the Appellate Court.— After
perusing such record and hearing the appellant
or his pleader, if he appears, and the Public
Prosecutor, if he appears, and in case of an
appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may,
if it considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal,
reverse such order and direct that further inquiry
be made, or that the accused be re-tried or
committed for trial, as the case may be, or find
him guilty and pass sentence on him according to
law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be
re-tried by a Court of competent jurisdiction
subordinate to such Appellate Court or
committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried
by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of
the sentence, so as to enhance or reduce the
same;
(d) in an appeal from any other order, alter or
reverse such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper;
Provided that the sentence shall not be enhanced
unless the accused has had an opportunity ofPage 18
18
showing cause against such enhancement:
Provided further that the Appellate Court shall
not inflict greater punishment for the offence
which in its opinion the accused has committed,
than might have been inflicted for that offence by
the Court passing the order or sentence under
appeal.”
14. Elaborating on the same, it is urged that an appellate
court can impose a sentence what the trial Judge could
have imposed. The appellate jurisdiction which is
classically called ‘error jurisdiction’ only embraces to rectify
the errors and thereafter impose the sentence. It may
dismiss, alter or enhance the sentence depending upon the
fact situation when an appeal is preferred, but it does not
possess the jurisdiction to impose any sentence that does
not have the sanction of law. In this context, learned senior
counsel have drawn our attention to Section 53 IPC. It is as
follows:-
“53. Punishments.—The punishments to which
offenders are liable under the provisions of this
Code are—
First — Death;
Secondly.—Imprisonment for life;
Fourthly —Imprisonment, which is of two
descriptions, namely:—
(1) Rigorous, that is, with hard labour;Page 19
19
(2) Simple;
Fifthly —Forfeiture of property;
Sixthly —Fine.”
15. According to them, the court cannot travel beyond
Section 53 IPC which deals with punishments. Section 302
IPC provides for punishment for murder. It is as follows:-
“302. Punishment for murder.—Whoever
commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to
fine.”
16. Mr. Lalit and Mr. Naphade would contend that the
court can either impose sentence of imprisonment for life or
sentence of death but any other fixed term sentence is
totally inconceivable in terms of the statute. In respect of an
offence under Section 302, life is the minimum and the
maximum is the death sentence and, therefore, the court
has a choice between the two and is not entitled to follow
any other path, for that would be violative of the sanctity of
Article 21 of the Constitution which clearly stipulates that
no person shall be deprived of his life or personal liberty
except according to the procedure established by law.
Learned counsel for the appellants submit that impositionPage 20
20
of sentence for a fixed term is contrary to the procedure
established by law and hence, impermissible.
17. We shall first see how the Constitution Bench in V.
Sriharan (supra) has dealt with this aspect. The
three-Judge Bench in Union of India v. V. Sriharan alias
Murugan and others10 framed certain questions for
consideration by the Constitution Bench. The Constitution
Bench in V. Sriharan (supra) reproduced the said
questions and thereafter formulated the core questions for
answering the same. After adverting to the same, the Court
observed that the issues raised were of utmost critical
concern for the whole country as the decision on the
questions would determine the procedure for awarding
sentence and the criminal justice system. Thereafter, the
Court referred to the authority in Swamy Shraddananda
(2) v. State of Maharashtra11 and framed the following
questions:-
“2.1. Maintainability of this writ petition under
Article 32 of the Constitution by the Union of
India.
10
 (2014) 11 SCC 1
11 (2008) 13 SCC 767Page 21
21
2.2. (i) Whether imprisonment for life means for
the rest of one’s life with any right to claim
remission?
(ii) Whether as held in Shraddananda case
(2), a special category of sentence; instead of
death; for a term exceeding 14 years and put
that category beyond application of remission
can be imposed?
2.3. Whether the appropriate Government is
permitted to grant remission under Sections
432/433 of the Criminal Procedure Code, 1973
after the parallel power was exercised under
Article 72 by the President and under Article 161
by the Governor of the State or by the Supreme
Court under its constitutional power(s) under
Article 32?
2.4. Whether the Union or the State has primacy
for the exercise of power under Section 432(7)
over the subject-matter enlisted in List III of the
Seventh Schedule for grant of remission?
2.5. Whether there can be two appropriate
Governments under Section 432(7) of the Code?
2.6. Whether the power under Section 432(1) can
be exercised suo motu, if yes, whether the
procedure prescribed under Section 432(2) is
mandatory or not?
2.7. Whether the expression “consultation”
stipulated in Section 435(1) of the Code implies
“concurrence”?”
18. We have reproduced the entire paragraph for the sake
of completeness and understanding. The issues that have
been raised by Mr. Lalit and Mr. Naphade fundamentally
relate to the issues in para 2.2. The majority in thePage 22
22
Constitution Bench, after referring to the decisions in Maru
Ram v. Union of India and others12
, Gopal Vinayak
Godse v. State of Maharashtra and others13 and State
of Madhya Pradesh v. Ratan Singh and others14, opined
that the legal position is quite settled that the life
imprisonment only means the entirety of the life unless it is
curtailed by remissions validly granted under the Criminal
Procedure Code by the appropriate Government or under
Articles 72 and 161 of the Constitution by the Executive
Head viz. the President or the Governor of the State
respectively. The Court referred to the decision in Ashok
Kumar alias Golu v. Union of India and others15
,
wherein it was specifically ruled that the decision in
Bhagirath v. Delhi Administration16 does not run counter
to Godse (supra) and Maru Ram (supra). The relevant
paragraph from Ashok Kumar (supra) is reproduced
below:-
12 (1981) 1 SCC 107
13 AIR 1961 SC 600
14 (1976) 3 SCC 470
15 (1991) 3 SCC 498
16
 (1985) 2 SCC 580Page 23
23
“15. It will thus be seen from the ratio laid
down in the aforesaid two cases that where a
person has been sentenced to imprisonment
for life the remissions earned by him during
his internment in prison under the relevant
remission rules have a limited scope and must
be confined to the scope and ambit of the said
rules and do not acquire significance until the
sentence is remitted under Section 432, in
which case the remission would be subject to
limitation of Section 433-A of the Code, or
constitutional power has been exercised under
Articles 72/161 of the Constitution. In
Bhagirath case the question which the
Constitution Bench was required to consider
was whether a person sentenced to
imprisonment for life can claim the benefit of
Section 428 of the Code which, inter alia,
provides for setting off the period of detention
undergone by the accused as an undertrial
against the sentence of imprisonment
ultimately awarded to him”.
19. Referring to Section 57 IPC, the decision in Ashok
Kumar (supra) reiterated the legal position as under:-
‘9. … The provision contained in Section 57 that
imprisonment for life has to be reckoned as
equivalent to imprisonment for 20 years is for the
purpose of calculating fractions of terms of
punishment. We cannot press that provision into
service for a wider purpose.’
20. It has been held in V. Sriharan (supra) that the said
observations are consistent with the ratio laid down in
Godse (supra) and Maru Ram (supra). Page 24
24
21. Thereafter, the majority in V. Sriharan (supra) quoted
a paragraph from Bhagirath’s case (supra) which
pertained to set-off under Section 428 CrPC which is to the
following effect:-
“11. … The question of setting off the period of
detention undergone by an accused as an
undertrial prisoner against the sentence of life
imprisonment can arise only if an order is passed
by the appropriate authority under Section 432
or Section 433 of the Code. In the absence of
such order, passed generally or specially, and
apart from the provisions, if any, of the relevant
Jail Manual, imprisonment for life would mean,
according to the rule in Gopal Vinayak Godse,
imprisonment for the remainder of life.”
22. Thereafter, the Court in V. Sriharan (supra)
observed:-
“We fail to see any departure from the ratio of
Godse case; on the contrary the aforequoted
passage clearly shows approval of that ratio and
this becomes further clear from the final order
passed by the Court while allowing the
appeal/writ petition. The Court directed that the
period of detention undergone by the two accused
as undertrial prisoners would be set off against
the sentence of life imprisonment imposed upon
them, subject to the provisions contained in
Section 433-A and, ‘provided that orders have
been passed by the appropriate authority under
Section 433 of the Criminal Procedure Code’.Page 25
25
These directions make it clear beyond any
manner of doubt that just as in the case of
remissions so also in the case of set-off the period
of detention as undertrial would enure to the
benefit of the convict provided the appropriate
Government has chosen to pass an order under
Sections 432/433 of the Code. The ratio of
Bhagirath case, therefore, does not run counter
to the ratio of this Court in Godse or Maru Ram.
xxxxx xxxxx
61. Having noted the abovereferred to two
Constitution Bench decisions in Godse and Maru
Ram which were consistently followed in the
subsequent decisions in Sambha Ji Krishan Ji17
,
Ratan Singh, Ranjit Singh18
, Ashok Kumar and
Subash Chander19. The first part of the first
question can be conveniently answered to the
effect that imprisonment for life in terms of
Section 53 read with Section 45 of the Penal Code
only means imprisonment for rest of the life of
the prisoner subject, however, to the right to
claim remission, etc. as provided under Articles
72 and 161 of the Constitution to be exercisable
by the President and the Governor of the State
and also as provided under Section 432 of the
Criminal Procedure Code”.
23. After so stating, the majority addressed to the concept
of remission. It opined that:-
“As far as remissions are concerned, it consists of
two types. One type of remission is what is
earned by a prisoner under the Prison Rules or
17 (1974) 1 SCC 196
18 (1984) 1 SCC 31
19 (2001) 4 SCC 458Page 26
26
other relevant rules based on his/her good
behaviour or such other stipulations prescribed
therein. The other remission is the grant of it by
the appropriate Government in exercise of its
power under Section 432 of the Criminal
Procedure Code. Therefore, in the latter case
when a remission of the substantive sentence is
granted under Section 432, then and then only
giving credit to the earned remission can take
place and not otherwise. Similarly, in the case of
a life imprisonment, meaning thereby the entirety
of one’s life, unless there is a commutation of
such sentence for any specific period, there
would be no scope to count the earned remission.
In either case, it will again depend upon an
answer to the second part of the first question
based on the principles laid down in Swamy
Shraddananda (2).”
24. After dwelling upon the said aspect, the Court referred
to the principles stated in paragraphs 91 and 92 in Swamy
Shraddananda (2) (supra). It adverted to the facts in
Swamy Shraddananda (2) (supra) and analysed that this
Court had made a detailed reference to the decisions in
Bachan Singh v. State of Punjab20
, Machhi Singh and
others v. State of Punjab21, and Jagmohan Singh v.
State of U.P.22 where the principle of rarest of the rare case
was formulated. After referring to the said decisions, the
20 (1980) 2 SCC 684
21 (1983) 3 SCC 470
22 (1973) 1 SCC 20Page 27
27
majority reproduced paragraphs 34, 36, 43, 45, and 47 of
Swamy Shraddananda (2) (supra) and came to hold that:-
“66. After noting the above principles,
particularly culled out from the decision in which
the very principle, namely, “the rarest of rare
cases”, or an “exceptional case” or an “extreme
case”, it was noted that even thereafter, in reality
in later decisions neither the rarest of the rare
case principle nor Machhi Singh categories were
followed uniformly and consistently. In this
context, the learned Judges also noted some of
the decisions, namely, Aloke Nath Dutta v. State
of W.B.23 This Court in Swamy Shraddananda (2)
also made a reference to a report called “Lethal
Lottery, The Death Penalty in India” compiled
jointly by Amnesty International India and
People’s Union for Civil Liberties, Tamil Nadu,
and Puducherry wherein a study of the Supreme
Court judgments in death penalty cases from
1950 to 2006 was referred to and one of the main
facets made in the Report (Chapters 2 to 4) was
about the Court’s lack of uniformity and
consistency in awarding death sentence. This
Court also noticed the ill effects it caused by
reason of such inconsistencies and lamented over
the same in the following words in para 52:
[Swamy Shraddananda (2) case, SCC p. 790]
“52. The inability of the criminal justice
system to deal with all major crimes equally
effectively and the want of uniformity in the
sentencing process by the Court lead to a
marked imbalance in the end results. On
the one hand there appears a small band of
cases in which the murder convict is sent to
the gallows on confirmation of his death
penalty by this Court and on the other hand
23 (2007) 12 SCC 230Page 28
28
there is a much wider area of cases in which
the offender committing murder of a similar
or a far more revolting kind is spared his life
due to lack of consistency by the Court in
giving punishments or worse the offender is
allowed to slip away unpunished on account
of the deficiencies in the criminal justice
system. Thus, the overall larger picture gets
asymmetric and lopsided and presents a
poor reflection of the system of criminal
administration of justice. This situation is a
matter of concern for this Court and needs
to be remedied.”
25. The larger Bench endorsed the anguish expressed by
the Court and opined that the situation is a matter of
serious concern for this Court and it wished to examine
whether the approach made thereafter by this Court does
call for any interference or change or addition or mere
confirmation. Be it noted, the three-Judge Bench in
Swamy Shraddananda (supra) took note of the plan
devised by the accused, the betrayal of trust, the magnitude
of criminality and the brutality shown in the commission of
the ghastly crime and the manner in which the deceased
was sedated and buried while she was alive. The Court,
taking into consideration the materials brought on record inPage 29
29
entirety, imposed the sentence of fixed term imprisonment
instead of sentence of death.
26. The issue arose before the Constitution Bench with
regard to the mandate of Section 433 CrPC. The majority
took note of the fact that the said provision was considered
at length and detailed reference was made to Sections 45,
53, 54, 55, 55A, 57 and other related provisions in the IPC
in Swamy Shraddananda(2) (supra) to understand the
sentencing procedure prevalent in the Court. Thereafter,
the majority reproduced paragraphs 91 and 92 from the
said judgment which we think are required to be
reproduced to appreciate the controversy:-
“91. The legal position as enunciated in Kishori
Lal24, Gopal Vinayak Godse, Maru Ram, Ratan
Singh and Shri Bhagwan25 and the unsound way
in which remission is actually allowed in cases of
life imprisonment make out a very strong case to
make a special category for the very few cases
where the death penalty might be substituted by
the punishment of imprisonment for life or
imprisonment for a term in excess of fourteen
years and to put that category beyond the
application of remission.
92. The matter may be looked at from a slightly
different angle. The issue of sentencing has two
24 Kishori Lal v. King Emperor, 1914 SCC OnLine PC 81
25 (2001) 6 SCC 296Page 30
30
aspects. A sentence may be excessive and unduly
harsh *or it may be highly disproportionately
inadequate*. When an appellant comes to this
Court carrying a death sentence awarded by the
trial court and confirmed by the High Court, this
Court may find, as in the present appeal, that the
case just falls short of the rarest of the rare
category and may feel somewhat reluctant in
endorsing the death sentence. But at the same
time, having regard to the nature of the crime,
the Court may strongly feel that a sentence of life
imprisonment subject to remission normally
works out to a term of 14 years would be grossly
disproportionate and inadequate. What then
should the Court do? If the Court’s option is
limited only to two punishments, one a sentence
of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, the
Court may feel tempted and find itself nudged
into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just,
reasonable and proper course would be to expand
the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast
hiatus between 14 years’ imprisonment and
death. It needs to be emphasised that the Court
would take recourse to the expanded option
primarily because in the facts of the case, the
sentence of 14 years’ imprisonment would
amount to no punishment at all.”
[Emphasis supplied]
27. Thereafter, the majority adverted to the concurring
opinion of Fazal Ali, J. in Maru Ram’s case and reproduced
copiously from it and opined thus:-Page 31
31
“Keeping the above hard reality in mind, when we
examine the issue, the question is “whether as
held in Shraddananda (2), a special category of
sentence; instead of death; for a term exceeding
14 years and putting that category beyond
application of remission is good in law? When we
analyse the issue in the light of the principles laid
down in very many judgments starting from
Godse, Maru Ram, Sambha Ji Krishan Ji, Ratan
Singh, it has now come to stay that when in
exceptional cases, death penalty is altered as life
sentence, that would only mean rest of one’s
lifespan”.
28. At that juncture, the issue arose with regard to the
interpretation of Section 433-A CrPC. In that context, the
majority opined:-
“In this context, the submission of the learned
Solicitor General on the interpretation of Section
433-A CrPC assumes significance. His contention
was that under Section 433-A CrPC what is
prescribed is only the minimum and, therefore,
there is no restriction to fix it at any period
beyond 14 years and up to the end of one’s
lifespan. We find substance in the said
submission. When we refer to Section 433-A, we
find that the expression used in the said section
for the purpose of grant of remission relating to a
person convicted and directed to undergo life
imprisonment, it stipulates that “such person
shall not be released from prison unless he had
served at least fourteen years of imprisonment”
(emphasis supplied). Therefore, when the
minimum imprisonment is prescribed under the
statute, there will be every justification for the
court which considers the nature of offence forPage 32
32
which conviction is imposed on the offender for
which offence the extent of punishment either
death or life imprisonment is provided for, it
should be held that there will be every
justification and authority for the court to ensure
in the interest of the public at large and the
society, that such person should undergo
imprisonment for a specified period even beyond
14 years without any scope for remission. In fact,
going by the caption of the said Section 433-A, it
imposes a restriction on powers of remission or
commutation in certain cases. For a statutory
authority competent to consider a case for
remission after the imposition of punishment by
court of law it can be held so, then a judicial
forum which has got a wider scope for
considering the nature of offence and the conduct
 of the offender including his mens rea to bestow
its judicial sense and direct that such offender
does not deserve to be released early and
required to be kept in confinement for a longer
period, it should be held that there will be no
dearth in the authority for exercising such power
in the matter of imposition of the appropriate
sentence befitting the criminal act committed by
the convict.”
(Emphasis Supplied)
29. As we notice, there has been advertence to various
provisions of IPC, namely, Sections 120-B(1), 121, 132, 194,
195-A, 302, 305, 307 (Second Part), 376-A, 376-E, 396 and
364-A and certain other provisions of other Acts. The Court
observed that death sentence is an exception rather than a
rule and where even after applying such great precautionaryPage 33
33
prescription when the trial courts reach a conclusion to
impose the maximum punishment of death, further
safeguards are provided under the Criminal Procedure Code
and the special Acts to make a still more concretised effort
by the higher courts to ensure that no stone is left
unturned before the imposition of such capital
punishments. After so stating, the majority referred to the
report of Justice Malimath Committee and Justice Verma
Committee, and in that context, observed that:-
“91. We also note that when the Report of Justice
Malimath Committee was submitted in 2003, the
learned Judge and the members did not have the
benefit of the law laid down in Swamy
Shraddananda (2). Insofar as Justice Verma
Committee Report of 2013 is concerned, the
amendments introduced after the said Report in
Sections 370(6), 376-A, 376-D and 376-E, such
prescription stating that life imprisonment means
the entirety of the convict’s life does not in any
way conflict with the well-thought out principles
stated in Swamy Shraddananda (2). In fact,
Justice Verma Committee Report only reiterated
the proposition that a life imprisonment means
the whole of the remaining period of the convict’s
natural life by referring to Mohd. Munna26
,
Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat27 and State of U.P. v. Sanjay Kumar28 and
nothing more. Further, the said amendment can
26 (2005) 7 SCC 764
27 (2011) 2 SCC 764
28 (2012) 8 SCC 537Page 34
34
only be construed to establish that there should
not be any reduction in the life sentence and it
should remain till the end of the convict’s
lifespan.
30. The purpose of referring to the aforesaid analysis is
only to understand the gravity and magnitude of a case and
the duty of the Court regard being had to the precedents
and also the sanction of law.
31. Dealing with the procedure as a substantive part, the
majority opined that:-
“Such prescription contained in the Criminal
Procedure Code, though procedural, the
substantive part rests in the Penal Code for the
ultimate confirmation or modification or
alteration or amendment or amendment of the
punishment. Therefore, what is apparent is that
the imposition of death penalty or life
imprisonment is substantively provided for in the
Penal Code, procedural part of it is prescribed in
the Criminal Procedure Code and significantly
one does not conflict with the other. Having
regard to such a dichotomy being set out in the
Penal Code and the Criminal Procedure Code,
which in many respects to be operated upon in
the adjudication of a criminal case, the result of
such thoroughly defined distinctive features have
to be clearly understood while operating the
definite provisions, in particular, the provisions
in the Penal Code providing for capital
punishment and in the alternate the life
imprisonment”.
[Underlining is ours]Page 35
35
32. We need not advert to other aspects that have been
dwelt upon by the Constitution Bench, for we are not
concerned with the same. The submission of the learned
senior counsel for the appellants is that there is an
apparent error in the Constitution Bench decision as it has
treated the provisions of CrPC as procedural. On a reading
of the decision, it is manifest that the majority has
explained how there is cohesive co-existence of CrPC and
IPC. We may explain it in this manner. Section 28 CrPC
empowers the court to impose sentence authorized by law.
Section 302 IPC authorizes the court to either award life
imprisonment or death. As rightly submitted by Mr. Lalit
and Mr. Naphade, there is a minimum and maximum. Life
imprisonment as held in Gopal Vinayak Godse (supra),
Ratan Singh (supra), Sohan Lal v. Asha Ram and
others29 and Zahid Hussein and others v. State of W.B.
and another30 means the whole of the remaining period of
the convict’s natural life. The convict is compelled to live in
29 (1981) 1 SCC 106
30 (2001) 3 SCC 750Page 36
36
prison till the end of his life. Sentence of death brings
extinction of life on a fixed day after the legal procedure is
over, including the ground of pardon or remission which are
provided under Articles 71 and 161 of the Constitution.
There is a distinction between the conferment of power by a
statute and conferment of power under the Constitution.
The same has been explained in Maru Ram (supra) and V.
Sriharan (supra). Recently, a two-Judge Bench in State
of Gujarat & Anr. v. Lal Singh @ Manjit Singh & Ors.31
in that context has observed thus:-
“In Maru Ram (supra) the constitutional validity
of Section 433-A CrPC which had been brought
in the statute book in the year 1978 was called in
question. Section 433-A CrPC imposed
restrictions on powers of remission or
commutation in certain cases. It stipulates that
where a sentence of imprisonment for life is
imposed on conviction of a person for an offence
for which death is one of the punishments
provided by laws, or where a sentence of death
imposed on a person has been commuted under
Section 433 into one of imprisonment for life,
such person shall not be released from prison
unless he has served at least fourteen years of
imprisonment. The majority in Maru Ram (supra)
upheld the constitutional validity of the
provision. The Court distinguished the statutory
exercise of power of remission and exercise of
31 AIR 2016 SC 3197 : 2016 (6) SCALE 105Page 37
37
power by the constitutional authorities under the
Constitution, that is, Articles 72 and 161. In that
context, the Court observed that the power which
is the creature of the Code cannot be equated
with a high prerogative vested by the
Constitution in the highest functionaries of the
Union and the States, for the source is different
and the substance is different. The Court
observed that Section 433-A CrPC cannot be
invalidated as indirectly violative of Articles 72
and 161 of the Constitution. Elaborating further,
the majority spoke to the following effect:-
“… Wide as the power of pardon,
commutation and release (Articles 72 and
161) is, it cannot run riot; for no legal power
can run unruly like John Gilpin on the
horse but must keep sensibly to a steady
course. Here, we come upon the second
constitutional fundamental which underlies
the submissions of counsel. It is that all
public power, including constitutional
power, shall never be exercisable arbitrarily
or mala fide and, ordinarily, guidelines for
fair and equal execution are guarantors of
the valid play of power. …”
33. In Kehar Singh and another v. Union of India and
another32 the Constitution Bench has opined that the
power to pardon is part of the constitutional scheme and it
should be so treated in the Indian Republic. There has
been further observation that it is a constitutional
responsibility of great significance to be exercised when the
32 (1989)1 SCC 204Page 38
38
occasion arises in accordance with the discretion
contemplated by the context. The Court has also held that
exercise of the said power squarely falls within the judicial
domain and can be exercised by the court by judicial
review. In Epuru Sudhakar and another v. Govt. of A.P.
and others33 , in the concurring opinion, S.H. Kapadia, J.
(as His Lordship then was) stated thus:-
“Exercise of executive clemency is a matter of
discretion and yet subject to certain standards. It
is not a matter of privilege. It is a matter of
performance of official duty. It is vested in the
President or the Governor, as the case may be,
not for the benefit of the convict only, but for the
welfare of the people who may insist on the
performance of the duty. This discretion,
therefore, has to be exercised on public
considerations alone. The President and the
Governor are the sole judges of the sufficiency of
facts and of the appropriateness of granting the
pardons and reprieves. However, this power is an
enumerated power in the Constitution and its
limitations, if any, must be found in the
Constitution itself. Therefore, the principle of
exclusive cognizance would not apply when and if
the decision impugned is in derogation of a
constitutional provision. This is the basic working
test to be applied while granting pardons,
reprieves, remissions and commutations.”
And, again:-
33 (2006) 8 SCC 161Page 39
39
“… The Rule of Law is the basis for evaluation of
all decisions. The supreme quality of the Rule of
Law is fairness and legal certainty. The principle
of legality occupies a central plan in the Rule of
26 Law. Every prerogative has to be subject to the
Rule of Law. That rule cannot be compromised on
the grounds of political expediency. To go by such
considerations would be subversive of the
fundamental principles of the Rule of Law and it
would amount to setting a dangerous precedent.
The Rule of Law principle comprises a
requirement of “Government according to law”.
The ethos of “Government according to law”
requires the prerogative to be exercised in a
manner which is consistent with the basic
principle of fairness and certainty. Therefore, the
power of executive clemency is not only for the
benefit of the convict, but while exercising such a
power the President or the Governor, as the case
may be, has to keep in mind the effect of his
decision on the family of the victims, the society
as a whole and the precedent it sets for the
future.”
34. We have referred to the aforesaid aspect extensively as
it has been clearly held that the power of the constitutional
authorities under Article 71 and Article 161 of the
Constitution has to remain sacrosanct but the power under
Section 433-A CrPC which casts a restriction on the
appropriate functionary of the Government can judicially be
dealt with. Page 40
40
35. To elaborate, though the power exercised under Article
71 and Article 161 of the Constitution is amenable to
judicial review in a limited sense, yet the Court cannot
exercise such power. As far as the statutory power under
Section 433-A is concerned, it can be curtailed when the
Court is of the considered opinion that the fact situation
deserves a sentence of incarceration which be for a fixed
term so that power of remission is not exercised. There are
many an authority to support that there is imposition of
fixed term sentence to curtail the power of remission and
scuttle the application for consideration of remission by the
convict. It is because in a particular fact situation, it
becomes a penological necessity which is permissible within
the concept of maximum and the minimum. There is no
dispute over the maximum, that is, death sentence.
However, as far as minimum is concerned the submission of
the learned counsel for the appellants is courts can say
“imprisonment for life” and nothing else. It cannot be kept
in such a strait-jacket formula. The court, as in the case at
hand, when dealing with an appeal for enhancement ofPage 41
41
sentence from imprisonment of life to death, can definitely
say that the convict shall suffer actual incarceration for a
specific period. It is within the domain of judiciary and
such an interpretation is permissible. Be it noted, the
Court cannot grant a lesser punishment than the minimum
but can impose a punishment which is lesser than the
maximum. It is within the domain of sentencing and
constitutionally permissible.
36. We must immediately proceed to state that similar
conclusion has been reached by the majority in V.
Sriharan (supra) and other cases, Mr. Lalit and Mr.
Naphade would submit that the said decision having not
taken note of the principles stated in K.M. Nanavati (supra)
and Sarat Chandra Rabha (supra) is not a binding
precedent. In K.M. Nanavati (supra), the question that
arose before the Constitution Bench pertained to the extent
of the power conferred on the Governor of a State under
Article 161 of the Constitution; and whether the order of the
Governor can impinge on the judicial power of this Court
with particular reference to its power under Article 142 ofPage 42
42
the Constitution. Be it stated, the petitioner therein was
convicted under Section 302 IPC and sentenced to
imprisonment for life. After the judgment was delivered by
the High Court and the writ was received by the Sessions
Judge, he issued warrant of arrest of the accused for the
purpose of sending him to the police officer in-charge of the
City Sessions Court. The warrant was returned unserved
with the report that it could not be served in view of the
order passed by the Governor of Bombay suspending the
sentence upon the petitioner. In the meantime, an
application for leave to appeal to Supreme Court was made
soon after the judgment was pronounced by the High Court
and the matter was fixed for hearing. On that day, an
unexecuted warrant was placed before the concerned Bench
which directed that the matter is to be heard by a larger
Bench in view of the unusual and unprecedented situation.
A Special Bench of five Judges of the High Court heard the
matter and the High Court ultimately held that as the
sentence passed upon the accused had been suspended, it
was not necessary for the accused to surrender and,Page 43
43
therefore, Order XXI Rule 5 of the Supreme Court Rules
would not apply to the case. The High Court opined that
the order passed by the Governor was not found to be
unconstitutional. A petition was filed for special leave
challenging the conviction and sentence and an application
was filed seeking exemption stating all the facts. The
matter was ultimately referred to the Constitution Bench,
and the larger Bench analyzing various facets of the
Constitution, came to hold thus:-
“21. In the present case, the question is limited to
the exercise by the Governor of his powers under
Article 161 of the Constitution suspending the
sentence during the pendency of the special leave
petition and the appeal to this court; and the
controversy has narrowed down to whether for
the period when this court is in seizin of the case
the Governor could pass the impugned order,
having the effect of suspending the sentence
during that period. There can be no doubt that it
is open to the Governor to grant a full pardon at
any time even during the pendency of the case in
this court in exercise of what is ordinarily called
“mercy jurisdiction”. Such a pardon after the
accused person has been convicted by the court
has the effect of completely absolving him from
all punishment or disqualification attaching to a
conviction for a criminal offence. That power is
essentially vested in the head of the Executive,
because the judiciary has no such “mercy
jurisdiction”. But the suspension of the sentencePage 44
44
for the period when this court is in seizin of the
case could have been granted by this court itself.
If in respect of the same period the Governor also
has power to suspend the sentence, it would
mean that both the judiciary and the executive
would be functioning in the same field at the
same time leading to the possibility of conflict of
jurisdiction. Such a conflict was not and could
not have been intended by the makers of the
Constitution. But it was contended by Mr Seervai
that the words of the Constitution, namely,
Article 161 do not warrant the conclusion that
the power was in any way limited or fettered. In
our opinion there is a fallacy in the argument
insofar as it postulates what has to be
established, namely, that the Governor’s power
was absolute and not fettered in any way. So long
as the judiciary has the power to pass a
particular order in a pending case to that extent
the power of the Executive is limited in view of
the words either of Sections 401 and 426 of the
Code of Criminal Procedure and Articles 142 and
161 of the Constitution. If that is the correct
interpretation to be put on these provisions in
order to harmonise them it would follow that
what is covered in Article 142 is not covered by
Article 161 and similarly what is covered by
Section 426 is not covered by Section 401. On
that interpretation Mr Seervai would be right in
his contention that there is no conflict between
the prerogative power of the sovereign state to
grant pardon and the power of the courts to deal
with a pending cage judicially.”
And again:-
“As a result of these considerations we have come
to the conclusion that the order of the Governor
granting suspension of the sentence could onlyPage 45
45
operate until the matter became sub judice in
this court on the filing of the petition for special
leave to appeal. After the filing of such a petition
this court was seized of the case which would be
dealt with by it in accordance with law. It would
then be for this Court, when moved in that
behalf, either to apply Rule 5 of Order 21 or to
exempt the petitioner from the operation of that
Rule. It would be for this court to pass such
orders as it thought fit as to whether the
petitioner should be granted bail or should
surrender to his sentence or to pass such other
or further orders as this court might deem fit in
all the circumstances of the case. It follows from
what has been said that the Governor had no
power to grant the suspension of sentence for the
period during which the matter was sub judice in
this court.”
37. Relying on the same, it is urged that when a
constitutional court adds a third category of sentence, it
actually enters into the realm of Section 433-A CrPC which
rests with the statutory authority. According to the learned
senior counsel for the appellants, after the conviction is
recorded and sentence is imposed, the court has no role at
the subsequent stage. But when higher sentence is
imposed, there is an encroachment with the role of the
executive. In this context, learned senior counsel have
drawn our attention to the principles stated in another
Constitution Bench judgment in Sarat Chandra RabhaPage 46
46
(supra), wherein it has been held that the effect of pardon is
different than remission which stands on a different footing
altogether. The Constitution Bench, explaining the same,
proceeded to state thus:-
“4. … In the first place, an order of remission
does not wipe out the offence; it also does not
wipe out the conviction. All that it does is to have
an effect on the execution of the sentence; though
ordinarily a convicted person would have to serve
out the full sentence imposed by a court, he need
not do so with respect to that part of the sentence
which has been ordered to be remitted. An order
of remission thus does not in any way interfere
with the order of the court; it affects only the
execution of the sentence passed by the court
and frees the convicted person from his liability
to undergo the full term of imprisonment inflicted
by the court, though the order of conviction and
sentence passed by the court still stands as it
was. The power to grant remission is executive
power and cannot have the effect which the order
of an appellate or revisional court would have of
reducing the sentence passed by the trial court
and substituting in its place the reduced
sentence adjudged by the appellate or revisional
court. This distinction is well brought out in the
following passage from Weater’s Constitutional
Law on the effect of reprieves and pardons
vis-à-vis the judgment passed by the court
imposing punishment, at p. 176, para 134:
“A reprieve is a temporary suspension of the
punishment fixed by law. A pardon is the
remission of such punishment. Both are the
exercise of executive functions and should be
distinguished from the exercise of judicialPage 47
47
power over sentences. ‘The judicial power and
the executive power over sentences are readily
distinguishable,’ observed Justice Sutherland.
To render a judgment is a judicial function. To
carry the judgment into effect is an executive
function. To cut short a sentence by an act of
clemency is an exercise of executive power
which abridges the enforcement of the
judgment but does not alter it qua judgment’.”
Though, therefore, the effect of an order of
remission is to wipe out that part of the sentence
of imprisonment which has not been served out
and thus in practice to reduce the sentence to the
period already undergone, in law the order of
remission merely means that the rest of the
sentence need not be undergone, leaving the
order of conviction by the court and the sentence
passed by it untouched. In this view of the matter
the order of remission passed in this case though
it had the effect that the appellant was released
from jail before he had served the full sentence of
three years’ imprisonment, and had actually
served only about sixteen months’ imprisonment,
did not in any way affect the order of conviction
and sentence passed by the court which
remained as it was. Therefore the terms of
Section 7(b) would be satisfied in the present
case and the appellant being a person convicted
and sentenced to three years’ rigorous
imprisonment would be disqualified, as five years
had not passed since his release and as the
Election Commission had not removed his
disqualification.”
38. The analysis made in the aforesaid passage is to be
appropriately appreciated. In the said case, the controversyPage 48
48
arose with regard to the rejection of the nomination paper of
the returned candidate on the ground that he was not
disqualified under Section 7(b) of the Representation of the
People Act, 1951. The Election Tribunal came to hold that
the nomination paper of the candidate was wrongly rejected
and the allegation pertaining to corrupt practice was not
established. On the first count, the election was set aside.
The successful candidate preferred an appeal before the
High Court which came to hold that the nomination paper
of the respondent before it was properly rejected. However,
it concurred with the view expressed as regards corrupt
practice by the tribunal. The rejection of nomination paper
of the candidate was found to be justified by the High Court
as he had been sentenced to undergo rigorous
imprisonment for three years and five years had not passed
since his release. He was sentenced to three years but the
sentence was remitted by the government in exercise of
power under Section 401 of old CrPC. The contention of the
appellant before the tribunal was that in view of the
remission, sentence, in effect, was reduced to a period ofPage 49
49
less than two years and, therefore, he could not be said to
have incurred disqualification within the meaning of Section
7(b) of the said Act. The High Court formed the opinion
that the remission of sentence did not have the same effect
as free pardon and would not have the effect on reducing
the sentence passed on the appellant. In that context, this
Court has held what we have quoted hereinabove. What is
being sought to be argued on the basis of the aforequoted
passage is that the court does not have any role in the
matter of remission. It is strictly within the domain of the
executive.
39. On a careful reading of both the decisions, we have no
iota of doubt in our mind that they are not precedents for
the proposition that the court cannot impose a fixed term
sentence. The power to grant remission is an executive
power and it cannot affect the appeal or revisional power of
the court. The powers are definitely distinct. However, the
language of Section 433-A CrPC empowers the executive to
grant remission after expiry of 14 years and it only enablesPage 50
50
the convict to apply for remission. There can be a situation
as visualized in Swamy Shraddananda (2) (supra).
40. Learned senior counsel would submit that it is a
judicial innovation or creation without sanction of law and
according to them, the majority view of the Constitution
Bench is not a seemly appreciation of Section 433-A CrPC.
In our considered opinion, the majority view is absolutely
correct and binding on us being the view of the Constitution
Bench and that apart, we do not have any reason to
disagree with the same for referring it to a larger Bench. We
are of the convinced opinion that the situation that has
been projected in Swamy Shraddananda (2) (supra) and
approved in V. Sriharan (supra) speaks eloquently of
judicial experience and the fixed term sentence cannot be
said to be unauthorized in law. Section 302 IPC authorizes
imposition of death sentence. The minimum sentence is
imprisonment for life which means till the entire period of
natural life of the convict is over. The courts cannot
embark upon the power to be exercised by the ExecutivePage 51
51
Heads of the State under Article 71 and Article 161 of the
Constitution. That remains in a different sphere and it has
its independent legal sanctity. The court while imposing the
sentence of life makes it clear that it means in law whole of
life. The executive has been granted power by the
legislature to grant remission after expiry of certain period.
The court could have imposed the death sentence.
However, in a case where the court does not intend to
impose a death sentence because of certain factors, it may
impose fixed term sentence keeping in view the public
concept with regard to deterrent punishment. It really
adopts the view of “expanded option”, lesser than the
maximum and within the expanded option of the minimum,
for grant of remission does not come in after expiry of 14
years. It strikes a balance regard being had to the gravity of
the offence. We, therefore, repel the submission advanced
by the learned senior counsel for the appellants.
41. In this context, another submission deserves to be
noted. It is canvassed by the learned senior counsel for the
appellants that the issue of enhancement and scope of
enhancement was not referred to the Constitution Bench.
The reference order which has been quoted in V. Sriharan
(supra) has been brought to our notice to highlight the point
that in the absence of a reference by the concerned Bench,
the Constitution Bench could not have adverted to the said
aspect. The said submission is noted only to be rejected.
The larger Bench has framed the issues which deserve to be
answered and, as seen from the entire tenor of the
judgment, it felt that it is obliged to address the issue
regard being had to the controversy that arises in number
of cases. In fact, as is evincible, question Nos. (i) and (ii) of
paragraph 2.2 have been specifically posed in this manner.
We do not think that there is any impediment on the part
of the Constitution Bench to have traversed on the said
issues. In fact, in our view, the Constitution Bench has
correctly adverted to the same and clarified the legal
position and we are bound by it.
42. The next contention which is canvassed on behalf of
the appellants is that when the High Court exercised the
power under Section 368 CrPC and thinks of commuting
the death sentence, then only it can pass a fixed term
sentence and not otherwise. In this regard, we have been
commended to the authorities in Sahib Hussain (supra)
and Gurvail Singh (supra). In Sahib Hussain (supra),
the Court took note of the decision in Shri Bhagwan v.
State of Rajasthan34 wherein this Court had commuted
the death sentence imposed on the appellant therein and
directed that the appellant shall undergo the sentence of
imprisonment for life with the further direction that the
appellant shall not be released from the prison unless he
had served out at least 20 years of imprisonment including
the period already undergone by him. The authority in
Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra35 was noticed wherein the Court set aside the
death sentence and directed that the appellant therein shall
suffer imprisonment for life but he shall not be released
unless he had served out at least 20 years of imprisonment
including the period already undergone by him. The
two-Judge Bench referred to Ram Anup Singh and others
34 (2001) 6 SCC 296
35 (2002) 2 SCC 35Page 54
54
v. State of Bihar36
, Nazir Khan and others vs. State of
Delhi37
, Swamy Shraddananda (2) (supra), Haru Ghosh
v. State of West Bengal38
, Ramraj v. State of
Chhattisgarh39, Neel Kumar alias Anil Kumar v. State
of Haryana40
, Sandeep v. State of U.P.41 and Gurvail
Singh (supra) and held that:-
“It is clear that since more than a decade, in
many cases, whenever death sentence has been
commuted to life imprisonment where the offence
alleged is serious in nature, while awarding life
imprisonment, this Court reiterated minimum
years of imprisonment of 20 years or 25 years or
30 years or 35 years, mentioning thereby, if the
appropriate Government wants to give remission,
the same has to be considered only after the
expiry of the said period….”
Thereafter, the Court referred to Swamy
Shraddananda (2) (supra) and the pronouncement in Shri
Bhagwan (supra) and opined thus:-
“36. It is clear that in Swamy Shraddananda,
this Court noted the observations made by this
Court in Jagmohan Singh v. State of U.P. and five
years after the judgment in Jagmohan case,
36 (2002) 6 SCC 686
37 (2003) 8 SCC 461
38 (2009) 15 SCC 551
39 (2010) 1 SCC 573
40 (2012) 5 SCC 766
41 (2012) 6 SCC 107
Section 433-A was inserted in the Code imposing
a restriction on the power of remission or
commutation in certain cases. After the
introduction of Section 433-A another
Constitution Bench of this Court in Bachan
Singh v. State of Punjab, with reference to power
with regard to Section 433-A which restricts the
power of remission and commutation conferred
on the appropriate Government, noted various
provisions of the Prisons Act, Jail Manual, etc.
and concluded that reasonable and proper course
would be to expand the option between 14 years'
imprisonment and death. The larger Bench has
also emphasised that: [Swamy Shraddananda (2)
case, SCC p. 805, para 92]
“92. … the Court would take recourse to the
expanded option primarily because in the facts of
the case, the sentence of 14 years' imprisonment
would amount to no punishment at all.”
In the light of the detailed discussion by the
larger Bench, we are of the view that the
observations made in Sangeet case42 are not
warranted. Even otherwise, the above principles,
as enunciated in Swamy Shraddananda are
applicable only when death sentence is
commuted to life imprisonment and not in all
cases where the Court imposes sentence for life.”
43. Learned senior counsel have emphasized on the last
part of the aforequoted passage to buttress the stand that
when the trial judge had not imposed the death sentence,
the question of commutation did not arise and hence the
42 Sangeet v. State of Haryana, (2013) 2 SCC 452Page 56
56
High Court could not have imposed a fixed term sentence
and could have only affirmed the sentence of imprisonment
for life.
44. In Gurvail Singh (supra), the Court was dealing with
the petition under Article 32 of the Constitution for issue of
a direction to convert the sentence of the petitioner from 30
years without remission to a sentence of life imprisonment
and further to declare that this Court is not competent to fix
a particular number of years (with or without remission)
when it commutes the death sentence to life imprisonment
while upholding the conviction of the accused under Section
302 IPC. The two-Judge Bench referred to the decision in
Sangeet (supra) which has also been referred in Sahib
Hussain (supra) and, thereafter, the Court observed:-
“6. The issue involved herein has been raised
before this Court time and again. Two-Judge as
well as three-Judge Benches have several times
explained the powers of this Court in this regard
and it has consistently been held that the Court
cannot interfere with the clemency powers
enshrined under Articles 72 and 161 of the
Constitution of India or any rule framed
thereunder except in exceptional circumstances.
So far as the remissions, etc. are concerned,
these are executive powers of the State underPage 57
57
which, the Court may issue such directions if
required in the facts and circumstances of a
particular case.”
After so stating, the Court referred to Swamy
Shraddananda (2) (supra) and State of Uttar Pradesh. v.
Sanjay Kumar43 and reproduced a passage from Sanjay
Kumar (supra) which we think seemly to quote:-
“24. … The aforesaid judgments make it crystal
clear that this Court has merely found out the via
media, where considering the facts and
circumstances of a particular case, by way of
which it has come to the conclusion that it was
not the ‘rarest of rare cases’, warranting death
penalty, but a sentence of 14 years or 20 years,
as referred to in the guidelines laid down by the
States would be totally inadequate. The life
imprisonment cannot be equivalent to
imprisonment for 14 years or 20 years, rather it
always meant as the whole natural life. This
Court has always clarified that the punishment
so awarded would be subject to any order passed
in exercise of the clemency powers of the
President of India or the Governor of the State, as
the case may be. Pardons, reprieves and
remissions are granted in exercise of prerogative
power. There is no scope of judicial review of
such orders except on very limited grounds, for
example, non-application of mind while passing
the order; non-consideration of relevant material;
or if the order suffers from arbitrariness. The
power to grant pardons and to commute
sentences is coupled with a duty to exercise the
43 (2012) 8 SCC 537Page 58
58
same fairly and reasonably. Administration of
justice cannot be perverted by executive or
political pressure. Of course, adoption of uniform
standards may not be possible while exercising
the power of pardon. Thus, such orders do not
interfere with the sovereign power of the State.
More so, not being in contravention of any
statutory or constitutional provision, the orders,
even if treated to have been passed under Article
142 of the Constitution do not deserve to be
labelled as unwarranted. The aforesaid orders
have been passed considering the gravity of the
offences in those cases that the accused would
not be entitled to be considered for premature
release under the guidelines issued for that
purpose i.e. under the Jail Manual, etc. or even
under Section 433-A of the Code of Criminal
Procedure.”
45. Thereafter, the two-Judge Bench referred to the
pronouncement in Sahib Hussain (supra) and opined
thus:-
“12. Thus, it is evident that the issue raised in
this petition has been considered by another
Bench and after reconsidering all the relevant
judgments on the issue the Court found that the
observations made in Sangeet were unwarranted
i.e. no such observations should have been made.
This Court issued orders to deprive a convict
from the benefit of remissions only in cases
where the death sentence has been commuted to
life imprisonment and it does not apply in all the
cases wherein the person has been sentenced to
life imprisonment.”Page 59
59
46. Mr. Krishnan, learned senior counsel appearing for the
State, in his turn, has commended us to three passages
from V. Sriharan (supra). They read as under:-
“103. In fact, while saying so we must also point
out that such exercise of power in the imposition
of death penalty or life imprisonment by the
Sessions Judge will get the scrutiny by the
Division Bench of the High Court mandatorily
when the penalty is death and invariably even in
respect of life imprisonment gets scrutinised by
the Division Bench by virtue of the appeal remedy
provided in the Criminal Procedure Code.
Therefore, our conclusion as stated above can be
reinforced by stating that the punishment part of
such specified offences are always examined at
least once after the Sessions Court’s verdict by
the High Court and that too by a Division Bench
consisting of two Hon’ble Judges.
104. That apart, in most of such cases where
death penalty or life imprisonment is the
punishment imposed by the trial court and
confirmed by the Division Bench of the High
Court, the convict concerned will get an
opportunity to get such verdict tested by filing
further appeal by way of special leave to this
Court. By way of abundant caution and as per
the prescribed law of the Code and the criminal
jurisprudence, we can assert that after the initial
finding of guilt of such specified grave offences
and the imposition of penalty either death or life
imprisonment, when comes under the scrutiny of
the Division Bench of the High Court, it is only
the High Court which derives the power under
the Penal Code, which prescribes the capital and
alternate punishment, to alter the saidPage 60
60
punishment with one either for the entirety of the
convict’s life or for any specific period of more
than 14 years, say 20, 30 or so on depending
upon the gravity of the crime committed and the
exercise of judicial conscience befitting such
offence found proved to have been committed.
105. We, therefore, reiterate that, the power
derived from the Penal Code for any modified
punishment within the punishment provided for
in the Penal Code for such specified offences can
only be exercised by the High Court and in the
event of further appeal only by the Supreme
Court and not by any other Court in this country.
To put it differently, the power to impose a
modified punishment providing for any specific
term of incarceration or till the end of the
convict's life as an alternate to death penalty, can
be exercised only by the High Court and the
Supreme Court and not by any other inferior
Court”.
Relying on the aforesaid passages, it is contended by
him that the decisions cited by the appellants are, no more
good law and, in fact, have been impliedly overruled in view
of what has been stated by the Constitution Bench.
47. We do not think it appropriate to enter into the said
debate. In the instant case, the prosecution had preferred
an appeal under Section 377 CrPC before the High Court for
enhancement of sentence of imposition of life to one of
death. On a reading of the said provision, there can be noPage 61
61
trace of doubt that the High Court could have enhanced the
sentence of imposition of life to death. In this context, we
may usefully refer to Jashubha Bharatsinh Gohil and
others v. State of Gujarat44 wherein it has been ruled
thus:-
“12. It is needless for us to go into the principles
laid down by this Court regarding the
enhancement of sentence as also about the
award of sentence of death, as the law on both
these subjects is now well settled. There is
undoubtedly power of enhancement available
with the High Court which, however, has to be
sparingly exercised. No hard and fast rule can
be laid down as to in which case the High Court
may enhance the sentence from life
imprisonment to death. …”
Thus, the power is there but it has to be very sparingly
used. In the instant case, the High Court has thought it
appropriate instead of imposing death sentence to impose
the sentence as it has done. Therefore, the sentence
imposed by the High Court cannot be found fault on that
score.
44 (1994) 4 SCC 353Page 62
62
48. At this stage we think it appropriate to deal with
another facet of the said submission. It is strenuously
urged that the High Court can impose the punishment what
the trial court can impose. In Jagat Bahadur (supra) it has
been held that:-
“An appeal court is after all ‘a Court of error’, that
is, a court established for correcting an error. If,
while purporting to correct an error, the court
were to do something which was beyond the
competence of the trying court, how could it be
said to be correcting an error of the trying court?
No case has been cited before us in which it has
been held that the High Court, after setting aside
an acquittal, can pass a sentence beyond the
competence of the trying court. Therefore, both on
principle and authority it is clear that the power
of the appellate court to pass a sentence must be
measured by the power of the court from whose
judgment an appeal has- been brought before it.”
49. In Jadhav (supra) the Court ruled that:-
“An appeal is a creature of a statute and the
powers and jurisdiction of the appellate court
must be circumscribed by the words of the
statute. At the same time a Court of appeal is a
“Court of error” and its normal function is to
correct the decision appealed from and its
jurisdiction should be co-extensive with that of
the trial court. It cannot and ought not to do
something which the trial court was not
competent to do. There does not seem to be anyPage 63
63
fetter to its power to do what the trial court could
do.”
50. We have reproduced the said passages as the learned
senior counsel appearing for the appellant would contend
as the court of appeal is only a “Court of error” and its
jurisdiction should be co-extensive with that of the trial
court. Both the decisions dealt with different kind of
offences where the sentence has been prescribed to be
imposed for a particular by the trial court and in that
context the Court held that the appellate court could not
have imposed a sentence beyond the competence of the trial
court. If the trial court has no jurisdiction to impose such a
sentence, the High Court as a “Court of error” cannot pass a
different harsher sentence. There can be no dispute over the
proposition stated in the said two authorities. But in the
case at hand, the appellants were convicted under section
302 IPC and the trial court could have been impose the
sentence of death and that apart, the appeal has been
preferred by the State. Thus, the ratio laid down in the said
authorities is not applicable to the case at hand. Page 64
64
51. The next submission that is put forth is that the
decision in V. Sriharan (supra) runs counter to the
principles stated in A.R. Antulay (supra). Explicating the
said stand, it is argued that in the said case the
Constitution Bench had directed that the case of the
petitioner should be tried by the learned Judge of the High
Court as he was tried for the offence under the Prevention
of Corruption Act, 1988. The Bench of seven-Judges
recalled that order on three counts, namely, a trial under
the Prevention of Corruption Act, 1988 has to be held by a
special Judge appointed under the said Act and this Court
has no jurisdiction to direct the trial to be held by a High
Court Judge; that the statutory right of the petitioner for
filing an appeal to the High Court could not be taken away
by this Court; and that the earlier direction abridged the
right of the petitioner therein under Articles 14 and 21 of
the Constitution. Drawing an analogy it is contended that
V. Sriharan (supra) takes away the statutory right of the
convict to apply for commutation/remission under Sections
432 and 433 CrPC, and also affects the right under ArticlePage 65
65
21 of the Constitution. Learned senior counsel for the
appellants would contend that the principles stated in A.R.
Antulay (supra) have not been kept in view in V. Sriharan
(supra) and, therefore, it is not a binding precedent and a
two-Judge Bench should either say that it is per incuriam or
refer it to a larger Bench. With regard to declaring a larger
Bench judgment per incuriam, learned senior counsel for
the appellants have drawn inspiration from the authority in
Fibre Boards Private Limited, Bangalore v.
Commissioner of Income-Tax, Bangalore45
. In that case,
the two-Judge Bench referred to Mamleshwar Prasad v.
Kanhaiya Lal46 and State of U.P. and another v.
Synthetics and Chemicals Ltd. and another47 and took
note of the earlier Constitution Bench judgment in State of
Orissa v. M.A. Tulloch and Co.48, and held thus:-
“35. The two later Constitution Bench judgments
in Rayala Corpn. (P) Ltd. v. Director of
Enforcement49 and Kolhapur Canesugar Works
Ltd. v. Union of India50 also did not have the
45 (2015) 10 SCC 333
46 (1975) 2 SCC 232
47 (1991) 4 SCC 139
48 (1964) 4 SCR 461
49 (1969) 2 SCC 412
50 (2000) 2 SCC 536Page 66
66
benefit of the aforesaid exposition of the law. It is
clear that even an implied repeal of a statute
would fall within the expression “repeal” in
Section 6 of the General Clauses Act. This is for
the reason given by the Constitution Bench in
M.A. Tulloch & Co. that only the form of repeal
differs but there is no difference in intent or
substance. If even an implied repeal is covered by
the expression “repeal”, it is clear that repeals
may take any form and so long as a statute or
part of it is obliterated, such obliteration would
be covered by the expression “repeal” in Section 6
of the General Clauses Act.”
52. Be it noted, the Court followed the principles stated in
M.A. Tulloch and Co. (supra) and not in Rayala Corpn.
(P) Ltd. (supra). In State of U.P. v. Synthetics and
Chemicals Ltd.51 a two-Judge Bench of this Court held
that one particular conclusion of a Bench of seven-Judges
in Synthetics and Chemicals Ltd. and others v. State of
U.P. and others52 as per incuriam. The two-Judge Bench in
Synthetics and Chemicals Ltd. (supra) opined thus:-
“36. The High Court, in our view, was clearly in
error in striking down the impugned provision
which undoubtedly falls within the legislative
competence of the State, being referable to Entry
54 of List II. We are firmly of the view that the
decision of this Court in Synthetics53 is not an
51 (1991) 4 SCC 139
52 (1990) 1 SCC 109
53 (1990) 1 SCC 109Page 67
67
authority for the proposition canvassed by the
assessee in challenging the provision. This Court
has not, and could not have, intended to say that
the Price Control Orders made by the Central
Government under the IDR Act imposed a fetter
on the legislative power of the State under Entry
54 of List II to levy taxes on the sale or purchase
of goods. The reference to sales tax in paragraph
86 of that judgment was merely accidental or per
incuriam and has, therefore, no effect on the
impugned levy.”
53. The observations speak for themselves. We are not
inclined to enter into the doctrine of precedents and the
principle of per incuriam in the instant case. Suffice it to say
that the grounds on which it is urged that the Constitution
Bench decision in V. Sriharan (supra) runs counter to the
larger Bench decision in A.R. Antulay (supra) are
fallacious. In A.R. Antulay (supra), the High Court had no
jurisdiction to try the case under the Prevention of
Corruption Act, 1988 and consequently, by virtue of a
direction the accused was losing the right to appeal. Both
could not have been done and that is why, the larger Bench
reviewed the Constitution Bench judgment. For better
appreciation, we may reproduce what Mukherjee, J. (as HisPage 68
68
Lordship then was) speaking for three learned Judges had
to say:-
“.. By reason of giving the directions on February
16, 1984 this Court had also unintentionally
caused the appellant the denial of rights under
Article 14 of the Constitution by denying him the
equal protection of law by being singled out for a
special procedure not provided for by law. When
these factors are brought to the notice of this
Court, even if there are any technicalities this
Court should not feel shackled and decline to
rectify that injustice or otherwise the injustice
noticed will remain forever a blot on justice. It
has been said long time ago that “actus curiae
neminem gravabit” — an act of the court shall
prejudice no man. This maxim is founded upon
justice and good sense and affords a safe and
certain guide for the administration of the law.”
And again:-
“In the aforesaid view of the matter the appeal is
allowed; all proceedings in this matter
subsequent to the directions of this Court on
16-2-1984 as indicated before are set aside and
quashed. The trial shall proceed in accordance
with law, that is to say under the Act of 1952 as
mentioned hereinbefore.”
The majority concurred with the said opinion.
54. In the case at hand, the question of forum of trial does
not arise. What is fundamentally argued is that the right ofPage 69
69
the appellants to submit an application is abrogated. An
attempt has been made to elevate the same to a
constitutional right. The right of an appeal and abrogation
thereof by a direction of this Court is totally different and
that is the principle which compelled the larger Bench to
recall its order. They applied the principle of ex debito
justitiae and passed the order reproduced hereinabove.
55. Having adverted to the factual scenario, we have to
understand the obtaining situation. In the present context,
a convict is not permitted to submit an application under
Section 433-A CrPC because of sentence imposed by a
Court. There is no abrogation of any fundamental or
statutory right. If the imposition of sentence is justified, as
a natural corollary the principle of remission does not arise.
The principle for applying remission arises only after expiry
of 14 years if the Court imposes sentence of imprisonment
for life. When there is exercise of expanded option of
sentence between imprisonment for life and death sentence,
it comes within the sphere or arena of sentencing, We have
already held that the said exercise of expanded option isPage 70
70
permissible as has been held in many a judgment of this
Court and finally by the Constitution Bench. The said
exercise, on a set of facts, has a rationale. It is based on a
sound principle. Series of judgments have been delivered by
this Court stating in categorical terms that imprisonment
for life means remaining of the whole period of natural life
of the convict. The principle of exercise of expanded
expansion has received acceptance because the Court when
it does not intend to extinguish the spark of life of the
convict by imposing the death sentence. We have already
discussed that facet earlier and not accepted the
submission to refer the matter to the larger Bench. We have
no hesitation in holding that the principles stated in A.R.
Antulay (supra) do not apply to the application to be
preferred under Section 433-A CrPC, and, therefore, the
judgment in V. Sriharan (supra) is a binding precedent.
56. The next aspect that is required to be deliberated upon
is the factual score of the case that would include the
genesis of crime, the nature of involvement, the manner in
which it has been executed, the antecedents of thePage 71
71
appellants, the motive that has moved the appellants to do
away with a young life, the gravity and the social impact of
the crime, the suffering of the family of the victim, the fear
of the collective when such a crime takes place, the category
to which the High Court has fitted it, after expressing its
disinclination not to impose the death sentence and other
connected factors.
57. It is submitted by the learned counsel for the
appellants that the imposition of fixed term sentence is
highly disproportionate and unjustified in the particular
facts of the case, for as the conviction is based on the
circumstantial evidence and as per the materials brought
on record only a single blow was inflicted not by any lethal
weapon but by a hammer. Though the High Court has
referred to various aggravating and mitigating
circumstances, yet, it has misdirected itself by holding that
the motive of crime is “honour killing”. That apart, the High
Court has taken into consideration the false plea of alibi,
intimidation of witnesses, misleading of the police in the
matter of recovery, intimidation of the public prosecutor,Page 72
72
the factum of abscondence, conviction in another case, the
inhuman treatment of the deceased, commission of murder
while the appellants had the trust of the deceased, the
depravity of the mind, reflection of cold bloodedness in
commission of the crime, the brutality that shocks the
judicial conscience, absence of probability of reformation of
the convicts and such other aspects of which some are not
relevant and some have not been duly considered while
imposing such harsh punishment.
58. It is urged by them, the approach of the High Court
dealing with death penalty and arriving at the conclusion
that the case is not a rarest of rare one has completely
misdirected itself and, therefore, the imposition of fixed
term sentence is wholly unsustainable. They have
commended us to the authorities in Shankar Kisanrao
Khade v. State of Maharashtra54, Oma alias
Omprakash and another v. State of Tamil Nadu55
,
Mohd. Farooq Abdul Gafur and another v. State of
54 (2013) 5 SCC 546
55 (2013) 3 SCC 440Page 73
73
Maharashtra56, Mohinder Singh v. State of Punjab57
and Mangesh v. State of Maharashtra58
.
59. Learned counsel for the State submits that the crime
was premeditated and diabolic in nature and the same is
evincible from the discussion of the judgment of conviction
of the High Court and the said findings are beyond assail as
no leave has been granted in that regard and the Special
Leave Petition has been dismissed. According to the
learned counsel for the State, the said findings which find
place in the judgment of conviction are not subject to
criticism and can be relied upon to describe the nature of
commission of crime. Mr. Krishnan, would further submit
that the sentence imposed is not disproportionate.
60. On a careful scrutiny of the judgment of conviction, it
is seen that the High Court has taken note of the facts that
the deceased Nitish Katara and Bharti Yadav (sister of Vikas
Yadav; first cousin sister of Vishal Yadav and; daughter of
Shri D.P. Yadav who was also the employer of Sukhdev @
Pehalwan) were in an intimate relationship aiming towards
56 (2010) 14 SCC 641
57 (2013) 3 SCC 294
58 (2011) 2 SCC 123
permanency; that the family members of Bharti Yadav,
including Vikas and Vishal Yadav, were opposed to this
relationship; that the aversion stemmed from the reason
that Nitish Katara did not belong to the same caste as that
of Bharti Yadav, that his family belonged to the service class
and belonged to economically lower strata; that Vishal
Yadav and Sukhdev @ Pehalwan had not been invited to the
wedding and had no reason for being there, other than
perpetration of the crime; that Nitish Katara was abducted
from the wedding venue by the appellants with the common
intention to murder him; that in furtherance of their
common intention Nitish Katara was thereafter murdered
by the appellants; that after murdering Nitish Katara, the
appellants removed his clothes, wrist watch and mobile
from his person and set aflame his dead body with the
intention of preventing identification of the body and
destroying evidence of the commission of the offence; that
immediately after the incident, the three appellants
absconded; that the dead body of Nitish Katara was found
at 9.30 a.m. in the morning of 17th February, 2002 in a
completely burnt, naked and unidentifiable condition on the
Shikharpur Road which was recovered by the Khurja Police;
that the body was having a lacerated wound on the head, a
fracture in the skull, laceration and hematoma in the brain
immediately below the fracture; that Vikas and Vishal
Yadav deliberately misled the police and took them to three
places in Alwar (Rajasthan) to search for Tata Safari vehicle
which was obviously not there; that Vikas and Vishal Yadav
jointly misled the police to the taxi stand behind Shamshan
Ghat(cremation ground) in Panipat to search for the Tata
Safari which was again not there, and, enroute to
Chandigarh for the same purpose, got recovered the Tata
Safari Vehicle bearing registration No. PB-07H 0085
recovered from the burnt down factory premises of M/s.
A.B. Coltex Limited; that the appellant Sukhdev @
Pehalwan absconded for over three and half years despite
extensive searches, raids, issuance of coercive process,
attachment even at his native village and that he could be
arrested only on the 23rd of February, 2005 after he fired at
police patrol party.Page 76
76
61. From the aforesaid findings recorded by the High Court
it is vivid that crime was committed in a planned and cold
blooded manner with the motive that has emanated due to
feeling of some kind uncalled for and unwarranted
superiority based on caste feeling that has blinded the
thought of “choice available” to a sister - a representative of
women as a class. The High Court in its judgment of
conviction has unequivocally held that it is a “honour
killing” and the said findings apart from being put to rest,
also gets support from the evidence brought on record. The
circumstantial evidence by which the crime has been
established, clearly lead to one singular conclusion that the
anger of the brother on the involvement of the sister with
the deceased, was the only motive behind crime. While
dwelling upon the facet of honour killing the High Court in
the judgment of conviction has held:-
“2023. The instant case manifests that even in a
household belonging to the highest class in
society, (one in which you can make day trips
with friends from Ghaziabad to Mumbai just to
celebrate a birthday; owns multiple businesses
and properties, luxury vehicles etc.) what can
happen to even a young, educated, articulatePage 77
77
daughter if she attempted to break away from the
conventional caste confines and explored a
lifetime alliance with a member of another caste.
Especially one who was also perceived to be of a
lesser economic status.
2024. We have found that immediately after
Shivani Gaur’s wedding, Bharti was completely
segregated and confined by her family. On the
17th of February 2002 itself, she was spirited
away from her residence in Ghaziabad to
Faridabad. The police could record her
statement under Section 161 of the Cr.P.C. only
on the 2nd of March 2002 that too under the eagle
eye of her father, a seasoned politician. Shortly
thereafter, she was sent out of India to U.K. and
kept out of court for over three and a half years.
Her testimony is evidence of the influence of her
brothers and family as she prevaricates over
trivial matters and denies established facts borne
out by documentary evidence. Finally, when she
must have been stretched to the utmost, she
succumbs to their pressures when she concedes
a deviously put suggestion.
2025. Undoubtedly, the family of Nitish Katara
has suffered at his demise and thereafter.
Having given our thought to this issue, we are of
the view that apart from the deceased and his
family, there is one more victim in an “honour
killing”.”
62. In this context we may refer with profit to the decision
in Lata Singh v. State of U.P. and another59 wherein it
has been observed that:-
59 (2006) 5 SCC 475Page 78
78
“The caste system is a curse on the nation and
the sooner it is destroyed the better. In fact, it is
dividing the nation at a time when We have to be
united to face the challenges before the nation
unitedly. Hence, inter-caste marriages are in fact
in the national interest as they will result in
destroying the caste system. However, disturbing
news are coming from several parts of the
country that young men and women who
undergo inter-caste marriage, are threatened
with violence, or violence is actually committed
on them. In our opinion, such acts of violence or
threats or harassment are wholly illegal and
those who commit them must be severely
punished. This is a free and democratic country,
and once a person becomes a major he or she
can marry whosoever he/she likes.”
And again:-
“We sometimes hear of “honour” killings of such
persons who undergo inter-caste or
inter-religious marriage of their own free will.
There is nothing honourable in such killings, and
in fact they are nothing but barbaric and
shameful acts of murder committed by brutal,
feudal-minded persons who deserve harsh
punishment. Only in this way can we stamp out
such acts of barbarism.”
63. In Maya Kaur Baldevsingh Sardar and another v.
State of Maharashtra60 this Court was constrained to
observe thus:-
60 (2007) 12 SCC 654Page 79
79
“26. We also notice that while judges tend to be
extremely harsh in dealing with murders
committed on account of religious factors they
tend to become more conservative and almost
apologetic in the case of murders arising out of
caste on the premise (as in this very case) that
society should be given time so that the
necessary change comes about in the normal
course. Has this hands-off approach led to the
creation of the casteless utopia or even a
perceptible movement in that direction? The
answer is an emphatic ‘No’ as would be clear
from mushrooming caste-based organisations
controlled and manipulated by self-appointed
commissars who have arrogated to themselves
the right to be the sole arbiters and defenders of
their castes with the licence to kill and maim to
enforce their diktats and bring in line those who
dare to deviate. Resultantly the idyllic situation
that we perceive is as distant as ever. In this
background is it appropriate that we throw up
our hands in despair waiting ad infinitum or
optimistically a millennium or two for the day
when good sense would prevail by a normal
evolutionary process or is it our duty to help out
by a push and a prod through the criminal
justice system? We feel that there can be only one
answer to this question.”
64. In Arumugam Servai v. State of Tamil Nadu61
, the
Court reiterated the principle stated in Lata Singh(supra)
and proceeded to state that:-
“12. We have in recent years heard of “Khap
Panchayats” (known as “Katta Panchayats” in
61 (2011) 6 SCC 405Page 80
80
Tamil Nadu) which often decree or encourage
honour killings or other atrocities in an
institutionalised way on boys and girls of
different castes and religion, who wish to get
married or have been married, or interfere with
the personal lives of people. We are of the opinion
that this is wholly illegal and has to be ruthlessly
stamped out. As already stated in Lata Singh
case3, there is nothing honourable in honour
killing or other atrocities and, in fact, it is
nothing but barbaric and shameful murder.
Other atrocities in respect of personal lives of
people committed by brutal, feudal-minded
persons deserve harsh punishment. Only in this
way can we stamp out such acts of barbarism
and feudal mentality. Moreover, these acts take
the law into their own hands, and amount to
kangaroo courts, which are wholly illegal.”
65. In Bhagwan Dass v. State (NCT of Delhi)62 the Court
after referring to Lata Singh’s case (supra) was in anguish
to observe:-
“….In our opinion honour killings, for whatever
reason, come within the category of the rarest of
rare cases deserving death punishment. It is time
to stamp out these barbaric, feudal practices
which are a slur on our nation. This is necessary
as a deterrent for such outrageous, uncivilised
behaviour. All persons who are planning to
perpetrate “honour” killings should know that the
gallows await them.”
66. Be it stated, though the High Court treated the murder
as “honour killing”, yet regard being had to other factors did
62 (2011) 6 SCC 396Page 81
81
not think appropriate to impose extreme penalty of death
sentence. We may hasten to clarify that we have
highlighted the factum of “honour killing”, as that is a
seminal ground for imposing the fixed term sentence of
twenty-five years for the offences under section 302/34 IPC
on the two accused persons, who though highly educated in
good educational institutions, had not cultivated the ability
to abandon the depricable feelings and attitude for
centuries. Perhaps, they have harboured the fancy that it is
an idea of which time had arrived from time immemorial
and ought to stay till eternity.
67. One may feel “My honour is my life” but that does not
mean sustaining one’s honour at the cost of another.
Freedom, independence, constitutional identity, individual
choice and thought of a woman be a wife or sister or
daughter or mother cannot be allowed to be curtailed
definitely not by application of physical force or threat or
mental cruelty in the name of his self-assumed honour.
That apart, neither the family members nor the members of
the collective has any right to assault the boy chosen by thePage 82
82
girl. Her individual choice is her self-respect and creating
dent in it is destroying her honour. And to impose so called
brotherly or fatherly honor or class honor by eliminating her
choice is a crime of extreme brutality, more so, when it is
done under a guise. It is a vice, condemnable and
deplorable perception of “honour”, comparable to medieval
obsessive assertions.
68. Apart from the issue of honour killing, the High Court
has also adjudicated to the brutal manner in which the
crime has been committed. Mr. Lalit, learned senior counsel
has highlighted on infliction of a single blow. The High
Court appreciating the material brought on record, has
given a graphic description.
69. The High Court has also taken note of the impact of
post-offence events and observed that the deceased was
burnt to such a point that his own mother could only
suggest the identification from the small size of one unburnt
palm with fingers of the hand that the body appeared to be
that of her deceased son. The identification had to be
confirmed by DNA testing. While imposing the sentence,Page 83
83
the High Court has been compelled to observe that the
magnitude of vengeance of the accused and the extent to
which they had gone to destroy the body of the deceased
after his murder shows the brutality involved in the crime
and the maladroit efforts that were made to destroy the
evidence. From the evidence brought on record as well as
the analysis made by the High Court, it is demonstrable
about the criminal proclivity of the accused persons, for
they have neither the respect for human life nor did they
have any concern for the dignity of a dead person. They
had deliberately comatosed the feeling that even in death a
person has dignity and when one is dead deserves to be
treated with dignity. That is the basic human right. The
brutality that has been displayed by the accused persons
clearly exposes the depraved state of mind.
70. The conduct during the trial has also been emphasized
by the High Court because it is not an effect to protect
one-self, but the arrogance and the impunity shown in
which they set up false defense and instilled shivering fear
in the mind and heard of witnesses with the evil design ofPage 84
84
defeating the prosecution case. In fact, as has been
recorded by the High Court, the public prosecutor was also
not spared. The factum of abscondance and
non-cooperation with the investigating team and also an
maladroit effort to mislead the investigators have been
treated as aggravating circumstances on the basis of
authorities in Praveen Kumar v State of Karnataka63 and
Yakub Abdul Razak Memon v State of Maharashtra64
.
71. The criminal antecedents of accused Vikas Yadav has
been referred to in detail by the High Court. He was
prosecuted in “Jesica Lal murder case” and convicted under
Section 201/120-B IPC and sentenced to undergo rigorous
imprisonment for four years and to pay a fine of Rs.2000
and, in default, of payment of fine, to further undergo
imprisonment for three months. This Court in Sidhartha
Vashisht alias Manu Sharma v State (NCT of Delhi)65
affirmed the conviction. The conclusion reached while
affirming the decision of the High Court, is as follows:-
63 (2003) 12 SCC 199
64 (2013) 13 SCC 1
65 (2010) 6 SCC 1Page 85
85
“303. (9) The High Court has rightly convicted the
other two accused, namely, Amardeep Singh Gill
@ Tony Gill and Vikas Yadav after appreciation of
the evidence of PWs 30 and 101.”
During the period, the said Vikas Yadav was on bail,
he committed the present crime.
72. Learned counsel for the appellants have submitted
about the conduct of the appellants in jail during their
custody and have highlighted that fourteen years in jail is of
tremendous mental agony. In Maru Ram (supra), Krishna
Iyer, J., to appreciate the despair in custody, thought it
apposite to reproduce the bitter expression, from the poem,
namely, The Ballad of Reading Gaol by Oscar Wilde. The
poet wrote:-
“I know not whether Laws be right,
Or whether Laws be wrong,
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.”
 (emphasis added)
In the said judgment, further lines from the poem have been
reproduced, which read thus:-Page 86
86
“Something was dead in each of us,
And what was dead was Hope.
* * *
The vilest deeds like poison weeds
Bloom well in prison air:
It is only what is good in Man”
Despite the aforesaid quotation in Maru Ram (supra),
the Court upheld the validity of Section 433-A.
73. In V. Sriharan (supra), the majority in the
Constitution Bench has succinctly stated thus:-
“ As far as the argument based on ray of hope is
concerned, it must be stated that however much
forceful the contention may be, as was argued by
Mr.Dwivedi, the learned senior counsel appearing
for the State, it must be stated that such ray of
hope was much more for the victims who were
done to death and whose dependants were to
suffer the aftermath with no solace left. Therefore,
when the dreams of such victims in whatever
manner and extent it was planned, with reference
to oneself, his or her dependants and everyone
surrounding him was demolished in an unmindful
and in some case in a diabolic manner in total
violation of the Rule of Law which is prevailing in
an organized society, they cannot be heard to say
only their rays of home should prevail and kept
intact.”
And again:-Page 87
87
“Therefore, we find no scope to apply the concept
of ray of hope to come for the rescue of such
hardened, heartless offenders, which if considered
in their favour will only result in misplaced
sympathy and again will be not in the interest of
the society. Therefore, we reject the said argument
outright.”
The said conclusion meets the argument so
assiduously propounded by Mr. Lalit, learned senior
counsel appearing for the appellant.
74. The next contention that is canvassed pertains to
non-application of mind by the High Court while imposing
the sentence, for two accused persons have been sentenced
for twenty-five years and Sukhdev, the other appellant, has
been sentenced to twenty years. The High Court, while
dealing with Vikas Yadav and Vishal Yadav has opined that
they had misused the process of law while in jail and in
their conduct there is no sign of any kind of remorse or
regret. As far as the Sukhdev is concerned, the High Court
has taken his conduct in jail which had been chastened and
punishment was imposed once. The High Court has taken
note of the fact that Sukhdev was the employee of the fatherPage 88
88
of Vikas Yadav and he is a married man with five children
and on account of his incarceration, his family is in dire
stress. A finding has been returned that he is not a person
of substantial means and has lesser paying capacity. On
the basis of these facts and circumstances, the High Court
has drawn a distinction and imposed slightly lesser
sentence in respect of Sukhdev.
74A. Thus analyzed, we find that the imposition of fixed
term sentence on the appellants by the High Court cannot
be found fault with. In this regard a reference may be made
to a passage from Guru Basavaraj vs State of
Karnataka66, wherein while discussing about the concept
of appropriate sentence, the Court has expressed thus:-
“18. Just punishment is the collective cry of the
society. While the collective cry has to be kept
uppermost in the mind, simultaneously the
principle of proportionality between the crime
and punishment cannot be totally brushed aside.
The principle of just punishment is the bedrock
of sentencing in respect of a criminal offence. A
punishment should not be disproportionately
excessive. The concept of proportionality allows a
significant discretion to the Judge but the same
66 (2013) 7 SCC 545Page 89
89
has to be guided by certain principles. In certain
cases, the nature of culpability, the antecedents
of the accused, the factum of age, the potentiality
of the convict to become a criminal in future,
capability of his reformation and to lead an
acceptable life in the prevalent milieu, the effect –
propensity to become a social threat or nuisance,
and sometimes lapse of time in the commission of
the crime and his conduct in the interregnum
bearing in mind the nature of the offence, the
relationship between the parties and
attractability of the doctrine of bringing the
convict to the value-based social mainstream
may be the guiding factors. Needless to
emphasise, these are certain illustrative aspects
put forth in a condensed manner. We may
hasten to add that there can neither be a
straitjacket formula nor a solvable theory in
mathematical exactitude. It would be dependent
on the facts of the case and rationalized judicial
discretion. Neither the personal perception of a
Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to
have any play. For every offence, a drastic
measure cannot be thought of. Similarly, an
offender cannot be allowed to be treated with
leniency solely on the ground of discretion vested
in a court. The real requisite is to weigh the
circumstances in which the crimeincarcination
meaning] has been committed and other
concomitant factors which we have indicated
hereinbefore and also have been stated in a
number of pronouncements by this Court. On
such touchstone, the sentences are to bePage 90
90
imposed. The discretion should not be in the
realm of fancy. It should be embedded in
conceptual essence of just punishment.”
75. Judged on the aforesaid parameters, we reiterate that
the imposition of fixed terms sentence is justified.
76. The next submission pertains to the direction by the
High Court with regard to the sentence imposed under
Section 201 to run consecutively. Learned counsel for the
appellants have drawn our attention to the Constitution
Bench decision in V. Sriharan (supra) . The larger Bench
was dealing with the following question:-
“Whether consecutive life sentences can be
awarded to a convict on being found guilty of a
series of murders for which he has been tried in a
single trial?”
77. Learned counsel appearing for the appellants have
drawn out attention to the analysis whether a person
sentenced to undergo imprisonment for life when visited
with the “term sentence” should suffer them consecutively
or concurrently. The larger Bench in that context has held
thus:-Page 91
91
“We do not, however, think so. The power of the
Court to direct the order in which sentences will
run is unquestionable in view of the language
employed in Section 31 of the Cr.P.C. The Court
can, therefore, legitimately direct that the
prisoner shall first undergo the term sentence
before the commencement of his life sentence.
Such a direction shall be perfectly legitimate and
in tune with Section 31. The converse however
may not be true for if the Court directs the life
sentence to start first it would necessarily imply
that the term sentence would run concurrently.
That is because once the prisoner spends his life
in jail, there is no question of his undergoing any
further sentence.”
78. In the instant case, the trial Court has imposed the life
sentence and directed all the sentences to be concurrent.
The High Court has declined to enhance the sentence from
imprisonment for life to death, but has imposed a fixed term
sentence. It curtails the power of remission after fourteen
years as envisaged under Section 433-A. In such a
situation, we are inclined to think that the principle stated
by the aforesaid Constitution Bench would apply on all
fours. The High Court has not directed that the sentence
under Section 201/34 IPC shall run first and, thereafter,
the fixed term sentence will commence. Mr. Dayan
Krishnan, learned senior counsel appearing for the StatePage 92
92
has argued that this Court should modify the sentence and
direct that the appellants shall suffer rigorous
imprisonment for the offence punishable under Section
201/34 IPC and, thereafter, suffer the fixed term sentences.
Similar argument has been made in the written submission
by the learned counsel for the informant. As the High Court
has not done it, we do not think that it will be appropriate
on the part of this Court in the appeal preferred by the
appellants to do so. Therefore, on this score we accept the
submission of the learned counsel for the appellants and
direct that the sentence imposed for the offence punishable
under Section 201/34 IPC shall run concurrently with the
sentence imposed for other offences by the High Court.
79. The last plank of submission advanced by the learned
counsel for the appellant pertains to imposition of fine by
the High Court. The High Court has already given the
reasons and also adverted to the paying capacities. The
concept of victim compensation cannot be marginalized.
Adequate compensation is required to be granted. The High
Court has considered all the aspects and enhanced the fine,Page 93
93
determined the compensation and prescribed the default
clause. We are not inclined to interfere with the same.
80. Consequently, the appeals are disposed of with the
singular modification in the sentence i.e. the sentence
under Section 201/34 IPC shall run concurrently. Needless
to say, all other sentences and directions will remain intact.
………………………,J.
 (Dipak Misra)
………………………,J.
 (C. Nagappan)
New Delhi
October 3, 2016
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