N: Special Leave Peti tion (Criminal) No. 216/1977.
(From the Judgment and Order dated 28 9 1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl.
Appeal No. 17/72).
S.J.S. 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 354(3) 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 and.perused 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 (i.e. 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 4(1)(i).
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 8(1) 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 8(1) 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, I.P.C. 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 354(3) 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 4(1)(i) 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 (i.e.the only) Judicial Commissioner deciding the reference.
[773 D F] (3) Referral jurisdiction under section 377 is akin to appeal and revision.
Regulation 8(1) 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 707SCI/77 772