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

1. This appeal, by special leave, arises in somewhat peculiar circumstances. The appellants were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana in appeal and eventually by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012 before this Court for a declaration that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty. The petitioner further prayed for quashing the death sentence awarded to the petitioner by the trial court as affirmed by the High Court and by this Court in Criminal Appeals No.1396-1397 of 2008. A mandamus directing commutation of the sentence awarded to the petitioner to imprisonment for life was also prayed for. The writ petition was eventually withdrawn with liberty to the petitioners to approach the jurisdictional High Court for redress. The appellant, thereafter, moved the High Court of Punjab and Haryana at Chandigarh in CWP No.18956 of 2012 praying for a mandamus striking down Section 364A of the IPC and for an order restraining the execution of the death sentence awarded to them. Reopening of the case of the appellants and commutation of the death sentence for imprisonment for life were also prayed for in the writ petition. A Division Bench of the High Court of Punjab and Haryana has, while dismissing the said petition by its judgment and order dated 3rd October, 2012, taken the view that the question whether Section 364A of the IPC was attracted to the case at hand and whether a person found guilty of an offence punishable under the provision could be sentenced to death was not only raised by the appellants as an argument before this Court in appeal filed by them, but, was noticed and found against them. The High Court while saying so relied upon the following passage of the judgment of this Court in the appeal filed by the appellants against theirA plain reading of the Objects and Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom had become a lucrative and thriving industry all over the country which must be dealt with, in the harshest possible manner and an obligation rests on Courts as well. Courts to lend a helping hand in that direction. In the case before us, we find that not only was Abhi Verma kidnapped for ransom which act would by itself attract the death penalty but he was murdered in the process. It is relevant that even before the aforesaid amendments, this Court incase (supra) observed that death sentence could be awarded even in a case of kidnapping and murder based on circumstantial evidence...The High Court further held that the question of quantum of sentence had also been examined by this Court in the following paragraph of the judgment delivered in the criminal appeal filed by theSome of the judgments aforesaid refer to the ongoing debate as to the validity and propriety of the death sentence in a modern society. There are the moralists who say that as God has given life, he alone has the right to take it away and this privilege cannot be usurped by any human being. There are others who believe that the death sentence cannot be taken as a retributive or deterrent factor as the statistics show that the possibility of a death sentence has never acted as a deterrent to serious crime. The theory which is widely accepted in India, however, is that as the death penalty is on the statute book it has to be awarded provided the circumstances justify it. The broad principle has been laid in Bachancase (supra) as theof the rareBachan Singh case has been followed by a series of judgments of this Court delineating and setting out as to the kind of matters that would fall within this category. In Machhi Singh & Ors. Vs. State of Punjab 1983 (3) SCC 470  this Court gave an indication as to what could constitute thisThe High Court on the above reasoning concluded that this Court had considered the nature of the offence and its gravity and held that the appellants deserved the maximum punishment prescribed for both the offences proved against them. The High Court held that the plea now sought to be raised by the writ-petitioners to the effect that Section 364A of the IPC was attracted only when the offence was committed against the government or a foreign country etc. or that no such offence was made out in the case of the petitioners, had been examined and decided against the petitioners which plea could not be re-agitated by them in collateral proceedings. Having said that the High Court proceeded to examine the plea raised by the appellants on its merit, referred to the historical background in which the provisions of Section 364A were added to the statute book and held that Section 364A of IPC, even in the form in which it was initially introduced, made kidnapping by any person in the circumstances indicated in the said provision an offence no matter at the time of initial insertion of Section 364A, India was not committed to the International Convention Against the Taking of Hostages, 1979 to which it became a party only on 7th September, 1994. It was only thereafter that Section 364A was amended to incorporate the expressionforeign state or international inter-governmental organization or any otherto honour the commitment under the said Convention. The High Court, accordingly, repelled the argument that Section 364A was attracted only in situations where kidnapping was meant to coerce the government or any international organization to do or not to do a particular act including the demand for payment of ransom. The writ petition was, on that reasoning, dismissed by the High Court, which dismissal is what is under challenge in this appeal before us.4. When the appeal initially came up before a two-Judge Bench of this Court, the same was directed to be placed before a larger Bench for an authoritative pronouncement especially because the appellants had been awarded a death sentence which stood affirmed by a Bench of coordinate jurisdiction. That is precisely how the matter has come up before us for final hearing.

Reasoning:
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.