N Special Leave Peti tion Criminal No 2161977
From the Judgment and Order dated 28 9 1973 of the Judicial Commissioner Court Goa Daman and Diu in Crl
Appeal No 1772
SJS Fernandez amicus curiae for the petitioner
The Order of the Court was delivered by KRISHNA IYER J A death sentence with all its dreadful scenario swinging desperately out of the last breath of mortal life is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu tioner s rope
Even so judges must enforce the laws whatever they be and decide according to the best of their lights but the laws are not always just and the lights are not always luminous
Nor again are judicial methods always adequate to secure justice
We are bound by the Penal Code and the Criminal Procedure Code by the very oath of our office
Section 3543 of the new Code gives the convicting judge on a murder charge a discretion to choose between capital sentence and life term
It is true that in the present Code the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception to be resorted to for reasons to be stated Edige Annamma  AIR
Even so the discretion is limited and courts can never afford to forget Benjamin  Cardozo s wise guidance The judge even when he is free is still not wholly free
He is not to innovate at pleasure
He is not a knight errant roam ing at will in pursuit of his own ideal of beauty or of goodness
He is to draw his inspiration from consecrated principles
He is not to yield to spasmodic sentiment to vague and unregulated benevolence
He is to exercise a discretion informed by tradition methodized by analogy disciplined by sys tem and subordinated to the primordial necessity of order in the social life
Wide enough in all conscience is the field of dis cretion that remains Cardoze The Nature of the Judicial Proc ess Wale University Press  1921  
We have heard counsel on the merits andperused the paper book with some care and see no ground to disturb the conviction
The question of sentence  projects sharply before us and what we
have stated above turns our focus on cicumstances justifying the graver sentence
The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence
The guidelines laid down by this Court in its precedents which bind us tell us that if the offence has been perpetrated with attendant aggravating circumstances if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide accompanied by brutal dealing with the cadaver the court can hardly help in the present state of the law avoiding infliction of the death penalty
When discretion has been exercised by the trial Court and it is difficult to fault that 773 court on any ground statutory or precedential an appellate review and even referral action become too narrow to demol ish the discretionary exercise of power by the inferior court
So viewed it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence
We are unable to grant leave on this score either
Counsel for the petitioner has urged that the affirma tion by the Judicial Commissioner s court of Goa Diu and Daman of the Death sentence is illegal
According to
him section 377 of the old code which govern the instant case is a missile which will bit down the confirmation by the Judicial Commissioner
The said section reads 377
In every case so submitted the confirmation of the sentence or any new sentence or order passed by the High Court shall when such Court consists of two or more Judges be made passed and signed by at least two of them This section means as we understand it that when the High Court concerned consists of two or more judges the confirmation or other sentence shall be signed by at least two of them
This provision obviously applies only to situations where the court at the time of the confirmation of the death sentence
 consists of two or more judges
It is true that section 4 1 i in relation to a Union Territory brings within the definition of the High Court  the highest court of criminal appeal for that area viz the Judicial Commissioner s court
It therefore follows that if at the time the case for confirmation of the death sentence is being heard the Judicial Commission er s court consists of more than one judge at least two judges must attest the confirmation
In the present case it is common ground that when the case was heard and judg ment pronounced there was
only one Judicial Commissioner although the sanctioned strength was two
So long as one Judicial Commissioner alone functioned in the court section 377 was not attracted
The necessary inference is that in the present case there is nothing illegal in a Single ie the only Judicial Commissioner deciding the refer ence
We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law s grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are
applied
Even so exceptional situations may arise where two judges are not available in a High Court and in that narrow contingency the Code permits what has now happened
We cannot fault the judgment on this ground either
Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa Daman and Diu Judicial Commissioners Court Regulation 1963 is a special law which prevails against the general
On that footing he argues that under Regulation 8 1 the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa Daman and Diu by the Tribunal de Relacao
According to him the said Tribunal did not have the powers of confirmation of death sentence and 774 therefore the judicial Commissioner cannot exercise such power
He also argues that under the said provision the Judicial Commissioner  is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi nal Procedure Code
We see no force in these twin submis sions
A Code is complete and that marks the distinction between a Code and an ordinary enactment
The Criminal Procedure Code by that canon is serf contained and com plete
It defines a High Court which takes in a Judicial Commissioner s Court
Section 41i
We need not and indeed may not travel beyond the Code into the territory of the Regulation
Even otherwise there is nothing in Regulation 8  1  which helps the petitioner
It pro vides that the Judicial Commissioner shall be the highest criminal Court Appeal and Revision  used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level
Referral jurisdiction under section 377 is skin to appeal and revision and we think that Regulation 81 does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences and there fore the Judicial Commissioner acting as the High Court under the Code cannot enjoy such power
Regulation 81 does not limit the jurisdiction of the
Judicial Commission er in the sense counsel wants us to accept
We therefore hold that the Judicial Commissioner s confirmation of the death sentence is not without jurisdiction
Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis ingly for around six years
May be that such a long spell of torment may be one circumstance in giving the lesser sen tence
Even s0 we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone without other supplement ing factors or in the face of surrounding beastly circum stances of the crime judicial clemency can attenuate the sentence
Possibly Presidential power is wider but judicial power is embanked
We refuse special leave and dismiss the petition
Petition dismissed


Summary:
The petitioner was convicted for the offence of murder under section 302 IPC and sentenced to death by the Trial Court
The Judicial Commissioner Goa confirmed the death sentence in the referred trial under section 374 of the 1898 Code of Criminal Procedure
Dismissing the special leave petition to appeal the Court
HELD 1 Discretion to choose between the capital sentence and life term under section 3543 of the 1973 Code of Criminal Procedure is limited
If the offence has been perpetrated with attendant aggravating circumstances if the perpetrator discloses an extremely depraved state of mind and diaboli cal trickery in committing the homicide accompanied by brutal dealing with the cadaver infliction of death penalty cannot be avoided
Special leave under article 136
of the Constitution cannot be granted when it is difficult to fault the court on any ground statutory or precedential
772 G H 773 A Ediga Annamma   referred to
2 Section 377 of 1898 Code of Criminal Procedure applies only to situations where the court at the time of the con firmation of the death sentence consists of two or more Judges
Section 41i of the Code of Criminal proce dure in relation to a Union Territory brings within the definition of High Court the highest court of criminal appeal for that area namely the Judicial Commissioner s Court
If at the time the case for confirmation of death sentence is being heard the Judicial Commissioner s Court consists of more than one Judge at least two Judges must attest the confirmation
So long as one Judicial Commis sioner alone functions in the Court section 377 was not attracted
In the present case there is nothing illegal in a single iethe only Judicial Commissioner deciding the reference
773 D F 3 Referral jurisdiction under section 377 is akin to appeal and revision
Regulation 81 of the Goa Daman and Diu Judicial Commissioner s Court Regulation 1963 does not disentitle the Judicial Commissioner from exercising power section 377 Cr
In the instant case the Judicial Commis sioner s confirmation of death sentence is not without jurisdiction
774 C D 4 Judicial clemency cannot attenuate the sentence of death on the sole circumstance that the accused was a young man and the sentence of death been haunting him for long without other supplement factors or in the face of surround ing beastly circumstances of the crime
Possibly Presiden tial power wider but judicial power is embanked
774 E F 10 707SCI77 772