Case: Vikram Singh @ Vicky &amp; Another Vs. Union of India &amp; Others

must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”. 49. To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.(b) Prescribing punishments is the function of the legislature and not the Courts’.(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.(d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.(e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.(g) Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.(h) In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate. 50. Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution. 51. It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. There is no gainsaying that in an appeal directed against an order of conviction and sentence, the appellant is entitled to urge all such contentions as are open to him in law and on facts.One of the contentions open to the aggrieved convict in such cases is that the provision under which he has been convicted has no application to his case or that the ingredients of the offence with which he has been charged are not established to justify his conviction. It follows that the contention that Section 364A was not attracted in the present case was open to the appellants and was in fact advanced on their behalf in the appeal filed by them. Not only that, the contention was examined and rejected. So long as that rejection holds the field, there is no room for this Court or any other court for that matter to take a contrary view. The writ petition filed by the appellants to the extent the same sought to urge that section 364A was not attracted to the case at hand was, thus, not maintainable in law.In the case at hand, the writ petition filed by the appellants under Article 32 of the Constitution of India was dismissed as withdrawn with liberty reserved to the appellants to approach the High Court. Even so, in the light of the pronouncement of this Court in Rupa Ashokcase (supra), if against a final judgment of this Court, a remedy was not available under Article 32 of the Constitution the same would also not be available under Article 226. If this Court could not take resort to Article 32 for reopening for examination its final judgement, the High Court could also not do so under Article 226. The only remedy which the appellants could resort to in terms of the view taken in Rupa Ashokcase (supra) is by invoking thisinherent powers under Articles 129 and 142 of the Constitution of India for recall, reversal or modification of the order passed by this Court in the criminal appeal filed by the appellants. A writ petition before the High Court for that relief was clearly untenable in law.11. Legal impediments in the choice of the remedy available to the appellants have not dissuaded the High Court from examining and answering the contentions sought to be raised on the merits of the case. We too propose to go into the merits of the contentions urged on behalf of the appellants, no matter it may not be necessary to do so in the light of what we have said about the maintainability of the proceedings brought by the appellants.appellants.12. Any attempt to properly understand the true scope and purport of Section 364A must, in our opinion, start with the historical background in which the provision came on the statute book. When we do so, we find that the proposal for addition of Section 364A to the Indian Penal Code was first modified by the Law Commission of India in its 42nd Report submitted in 1971.It is evident from the above that Section 364A came on the statute book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but also because activities of terrorist organisations had acquired menacing dimensions that called for an effective legal framework to prevent such ransom situations and punish those responsible for the same. It is also manifest that the further amendment to Section 364A in the year 1994 simply added the expressionsstate or internationalto the provision without deleting theThe argument though attractive does not stand on closer scrutiny. The reasons are not far to seek. Section 364A has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 of the IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364A proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that kidnapping or abduction for ransom was effectively covered under the existing provisions of the IPC must, therefore,rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generis will have no application.Applying the above to the case at hand, we find that Section 364A added to the IPC made use of only two expressions viz.or ‘any otherThe Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only one single expression viz.which does not constitute a genus, even when it may be a specie.On behalf of the respondents, it was argued thatcase (supra) was clearly distinguishable inasmuch as the Court was in that case dealing with Section 303 IPC which did not leave any option for the Court except to award death sentence to a convict who while undergoing life imprisonment committed a murder. That is not the position in the case at hand where the Parliament has prescribed alternative sentences leaving it for the courts concerned to award what is considered suitable in the facts and circumstances of a given case. It was also submitted that there was nothing outrageous about the sentence provided under Section 364A, keeping in view the nature and gravity of the offence and the fact that kidnappings and abductions for ransom had assumed alarming dimensions in the country apart from the fact that terrorists were also using that method to achieve their nefarious ends. Similar sentences were prescribed for several offences under the IPC that were considered grave by the Parliament who represent the will of the people. There was at any rate no reason for this Court to go into the question of quantum of sentence after the matter had been thoroughly examined in the criminal appeal filed by the appellants including on the question of sentence to be awarded to them.The third principle recognised that divergences, both in underlying theories of sentencing and in the length of prescribed prison terms, is inevitable, because of the federal structure. The fourth principle shaped by the court was that proportionality review by federal courts must be informed by objective factors to the maximum possible extent. While saying so, the Court held that penalty of death differs from all other forms of criminal punishments and that the easiest comparison between different sentences is the comparison between capital punishment and non capital punishment. The decision also recognised that objective standards to distinguish between sentences for different terms of years are lacking with the result that outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare.Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment.It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative.