Holding

The Supreme Court dismissed the review petitions, confirming the death sentences and the finding that the accused did not act with intent to strike terror under TADA.

Summary

The Supreme Court examined two sets of review petitions filed under Article 137 and Order XL of the Supreme Court Rules: one by four convicts sentenced to death for offences under the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Indian Penal Code, and another by the State challenging the finding that the accused had no intent to strike terror under TADA. The petitioners argued that the evidence on the TADA charges could not be used to assess the IPC offences and that a miscarriage of justice existed, seeking conversion of the death sentences to life imprisonment. The State contended that the trial court erred in holding that the offences were not committed with terror intent, relying on precedents such as Niranjan Singh and Hitendra Vishnu. The majority held that the review petitions lacked merit, affirmed the death sentences, and upheld the finding of no terror intent, emphasizing that review is not a rehearing and must show a miscarriage of justice. A dissenting opinion by Justice Thomas suggested that where a judge favours life imprisonment, the death sentence should be reviewed, recommending life imprisonment for one convict (Nalini). Justice Quadri joined the majority, rejecting the dissent’s basis for review. Consequently, all review petitions were dismissed.

Issues considered

The scope of review under Article 137 and Order XL in criminal cases, especially for death‑penalty orders
Whether the conviction under TADA Section 3(3) requiring intent to strike terror was correctly held to be absent
Whether the death sentences awarded to the four convicts should be altered to life imprisonment
Whether a minority opinion favouring life imprisonment within a three‑judge bench warrants a review of the death sentence

Legislation cited

Arms Acts. Section 25(1-B)
Constitution of Indias. Article 137, s. Article 21
Explosive Substances Acts. Section 5
Foreigners Act, 1946s. Section 14
Indian Passport Acts. Section 12
Indian Penal Code, 1860s. Section 120-B, s. Section 212, s. Section 216, s. Section 302
Indian Wireless Telegraphy Act, 1933s. Section 6(1-A)
Supreme Court Rules, 1966s. Order XL Rule 1, s. Order XL Rule 2
Terrorist and Disruptive Activities (Prevention) Act, 1987s. Section 3(3), s. Section 3(4), s. Section 4, s. Section 5

Subjects

Review petitionDeath penaltyTADAIntent to strike terrorArticle 137Supreme Court RulesCriminal lawSentencingRarest of rare doctrineMiscarriage of justice

Judgment

A SUTHENTHIRARAJA@ SANTHAN AND dRS. ETC. ETC.
v.
STATE THROUGH DSP/CBI, SIT, CHENNAI ETC. ETC.

OCTOBER 8, 1999

B [KT. THOMAS, D.P. WADHWA AND
SYED SHAH MOHAMMED QUADRI, J];]

Constitution of India, 1950:

C Art. 137 r/w Order XL of the Supreme Court Rules, 1966, Rules
1,2-Review-Scope of-Death sentence awarded by Designated Court-Con-
firmation thereof by majority-Review-Held, per majority, no merit in the
Review Petitions by all the four convicts sentenced to death-Dissenting
opinion favouring life sentence to one of them-Same opinion emphasised
on Review-Effect of-Indian Penal Code, 1860--Ss.302 r/w 120-B.
D
TADA Act-S.3(3)-Offence committed by accused with intent to strike
terror in people or any section of people-conviction by Designated
Court-On appeal held, no such offence made out-Review-Held, no error ·
in the judgment sought to be reviewed-Constitution of India, Art. 137.
E These Review Petitions have been filed against the judgment of this
Court in State v. Nalini & Ors. Etc., (1999] 3 SCR. One set has been filed
by the four convicts against confirmation of death sentence awarded to
them. They have not however challenged their conviction. The second set
of review petitions filed by the State through CBI challenged only that
F portion of the judgment which held that the offence was not committed
by the accused with intent to strike terror in people or any section of
people and on that account no offence under Section 3(3) of TADA had
been made out. However, the State has not challenged the findings that
offence under Section 3(3) of TADA was not committed with intent to
G overawe the Government as by law established or that no offence under
Section 4 of TADA which provides punishment for disruptive activities
had been committed.

On behalf of the convict-petitioners, it was contended that the
evidence which had been led to prove the charges under TADA could not
H be used while appreciating the evidence regarding commission of offences
540
SUTHENTHIRARAJA@ SANTHAN v. STATE THROUGH DSP/CBl,SIT 541

under IPC and on that consideration awarding death sentence for those · A
offences; that there were some errors in the judgment in recording of the
_,..
' name or otherwise of the accused which could have a bearing on the award
of sentence; and that the planners and perpetrators of the crime were all
dead and three of the seven accused also held guilty for offence under
Section 120- B/302 IPC have been sentenced to life imprisonment and so
far as the case of the four review petitioners is concerned they may also
B
be awarded sentence of life imprisonment.

On behalf of the State through CBI, it was contended that a person is
presumed to intend the natural and probable consequence of his act; the
greater the probability of a consequence, the more likely it is that the C
consequence was foreseen and, if that consequence was foreseen, the more
likely it is that that consequence was also intended; that a crucial part of the
reasoning in Niranjan Singh's case as also in Girdhari's case has not been
adverted to at all and has been overlooked; that there is clear mis-apprecia-
tion of the ratio in Hitendra Vishnu Thakur's case which supports the case of
the prosecution that the offence committed is a terrorist act with a view to· D
strike terror; and that the conclusion arrived at that the act in question was
not committed with an intent to strike terror in the people or any section of
the people is not in conformity with the admitted facts on record and
findings recorded in the judgment.
E
Dismissing the Review Petitions by majority, the Court

HELD: Per Wadhwa, J.:

1.1. Having considered the scope of review and the rival contentions,
it is found that there is no merit in the review petition by the four convicts F
sentenced to suffer the extreme penalty provided under the law. [548-H]

1.2. Review is not rehearing of the appeal all over again and to
maintain a review petition it has to be shown that there has been miscar-
riage of justice. Of course, the expression "miscarriage of justice" is all G
·embracing. [547-D; E]

1.3. All the three Judges constituting the Bench gave separate judg-
ments and each one had considered the role of each one of the accused
in great detail. The errors pointed out are not even contradictions and
are inconsequential or insignificant not affecting the ultimate result. It is H
542 SUPREME COURT REPORTS (1999) SUPP. 3S.C.R.

A only after examining the role of each of the accused on the basis of the
evidence on record that the role of the four review petitioners was found
different than the three others who have been sentenced to life imprison·
ment. (548-D; E]

P.N. Eswara Iyer and Others v. Registrar Supreme Court ofIndia, (1980]
B 4 sq:: 680, referred to.

2.1. There is no error in the judgment sought to be reviewed on the
ground that it was wrong in holding that the accused did not intent to strike
terror in the people or any section of the people and on that account they did
C not commit any offence under Section 3 of TADA. (551-E]

2.2. All the judgments of this Court were duly considered and so was
the law on the subject and it was only then on the basis of the evidence that .
this Court concluded that the accused did not commit the crime with intent
to strike terror in the people or any section of the people. This Court made
D · no general statement. (551-B; CJ

Bachan Singh v. State of Punjab, (1980] 2 SCC 684; Niranjan Singh
Karam Singh Punjabi, Advocate v.Jitendra Bhimraj Bijjaya, (1990] 4 SCC 76;
Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others,
E (1994) 4 SCC 602 and Girdhari Parmanand Vadhava v. State of Maharashtra,
(1996] 11 sec 179, relied on.

Halsburry's Law of England (Fourth Edition), Volume 11(1) para 16,
referred to.

p Per Thomas, J. (concurring with Wadhwa, J. except on the question of
sentence to A.l)
1.1. In a case where a Bench of three Judges delivered judgment in which the
opinion of at least one judge is in favour of preferring imprisonment for life
to death penalty as for any particular accused, it would be a proper premise
for the Bench to review the order of sentence of death in respect of that
G accused. Such an approach is consistent with Article 21 of the Constitution
as it helps saving a human life from gallows and at the same time putting
the guilty accused behind bars for life. It would be a sound proposition to
make a precedent that when one of the three judges refrains from awarding
death penalty to an accused on stated reasons in preference to the sentence
H of life imprisonment that fact can be regarded sufficient to treat the case as
SUTHENTHIRARAJA@ SANTHAN v. STATE THROUGH DSP/CBl,SIT 543

not falling within the narrowed ambit of "rarest of rare cases when the A
alternative option is unquestionably foreclosed." [552-B; CJ

1.2. The reasoning is not to be understood as a suggestion that a
minority opinion in the judgment can supersede the majority view therein.
In the realm of making a choice between life imprisonment and death
penalty the above consideration is germane when the scope for awarding B
death penalty has now shrunk to the narrowest circle and that too only when
the alternative option is "unquestionably foreclosed". In a special situation
where one of the three deciding Judges held the view that sentence of life
Imprisonment is sufficient to meet the ends of justice it is a very relevant
consideration for the Court to finally pronounce that the prisoner can be
saved from death as the lesser option is not "unquestionably foreclosed" in
c
respect of that prisoner. Thus, the sentence of A.l should be altered to
imprisonment for life. [552·D; E; Fl

Bachan Singh v. State of Punjab, [1980] 2 SCC 684, referred to.
D
Per Quadri, J. (Concurring with Wadhwa, J. and dissenting from
Thomas,J.)

The ambit of Rule XL(l) of Supreme Court Rules which provides
grounds for Review, vis·a·vis criminal proceedings, is not confined to "an
error apparent on the face of the record". Even so by process of interpreta·
E
tion it cannot be stretched to embrace the premise indicated in the dissent
as a ground for review. That apart there are two difficulties in the way. The
first is that the acceptance of the said proposition would result In equating
the opinion of the majority to a ground analogous to 'an error apparent on
the face of the record' and secondly in a Bench of three Judges or of greater F
strength if one Judge is not inclined to confirm the death sentence imposed
on a convict, the majority will be precluded from confirming the death
sentence as that per se would become open to review. [553-B; C; DJ

P.N. Eswara Iyer & Ors. v. Registrar, Supreme Court of India, [1980] G
4 sec 680, referred to.

CRIMINAL APPELLATE JURISDICTION Review Petition
(Cr!.) Nos. 888-889 of 1999 Etc.

IN H
544 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A Criminal Appeal Nos. 321 and 325 of 1998 Etc.

From the Judgment and Order dated 28.1.98 of the Presiding Judge,
Designated Court-I, Poonamallee, Chennai-56 in Calender Case No. 3/92
and Crime No. R.C.9/S/91 SCB/CBI/SPE.

B Altaf Ahmed, Additional Solicitor General, V.Subramaniam, A.D.N.
Rao, A. Mariarputham, Ms. Meenakshi Arora, P. Parmeshwaran, T. Raja,
K. Thennan for the appearing parties.

The following Orders of the Court were delivered by

c D.P. WADHWA, J. There are two sets of review petitions. They are
against judgment of this Court dated May 11, 1999 in Death Reference
Case No. 1of1998 and Criminal Appeal Nos. 321-325of1998. One set has
been filed by the convicts Nalini (A-1), Murughan (A-3), Santhan (A-2)
and Arivu (A-18). Death sentence awarded to them by the Designated
D Court has been confirmed by this Court. Petitioners in their review peti-
tions are not challenging their conviction. The review is only on question
of sentence. There were, however, 26 accused who faced trial and they
were all sentenced to death under the provisions of the Terrorist and
Disruptive Activities Act (TADA) and Indian Penal Code (IPC) and also
E sentenced to varying terms of imprisonment on various other charges.
Sentence of death awarded to them by the Designated Court was submitted
to this Court for confirmation. The convicts also filed appeals against their
conviction and sentence. After hearing elaborate arguments and examining
the record, this Court passed the following order :

F "The conviction and sentence passed by the trial court of the
offences of Section 3(3), Section 3( 4) and Section 5 of the TADA
Act are set aside in respect of all those appellants who were found
guilty by the trial court under the said counts.

The conviction and sentence passed by the trial court of the
G offences under Sections 212 and 216 of the Indian Penal Code,
Section 14 of the Foreigners Act, 1946, Section 25(1-B) of the Arms
Act, Section 5 of the Explosive Substances Act, Section 12 of the
Passport Act and Section 6(1-A) of the Wireless and Telegraphy
Act, 1933, in respect of those accused who were found guilty of
H those offences, are confirmed. If they have already undergone the
'
SUTHENTHIRARAJA @SANTHAN >. STA1E THROUGH DSP/CBl,SIT [D.P. WADHWA, J.) 545

period of sentence under those counts it is for thejail authorities A
to release such of those against whom no other conviction and
sentence exceeding the said period have been passed.

The conviction for the offence under Section 120- B read with
Section 302 Indian Penal Code as against A-1 (Nalini), A-2
(Santhan@ Raviraj), A-3 (Murugan@ Thas), A-9 (Robert Payas), B
A-10 (Jayakumar), A-16 (Ravichandran @ Ravi) and A-18
(Perarivalan @ Arivu) is confirmed.

We set aside the conviction and sentence of the offences under

- c
Section 302 read with Section 120-B passed by the trial court on
the remaining accused.

The sentence of death passed by the trial court on A-1 (Nalini),
A-2 (Santhan), A-3 (Murugan) and A-18 (Arivu) is confirmed. The
death sentence passed on A-9 (Robert), A-10 (Jayakumar) and
A-16 (Ravichandran) is altered to imprisonment for life. The D
reference is answered accordingly.

In other words, except A-1 (Nalini), A-2 (Santhan), A-3
(Murugan), A-9 (Robert Payas), A-10 (Jayakumar), A-16
(Ravichandran) and A-18 (Arivu), all the remaining appellants
shall be set at liberty forthwith."
E

While the four petitioners are aggrieved by the award of sentence of
death to them, State, through CBI in the second set of review petitions filed
by it, is aggrieved with that part of the judgment where this Court held that
the offence was not committed by the accused with intent to strike terror F
in people or any section of people and on that account no offence under
Section 3(3) of TADA had been made out. State in its review petitions is
not challenging findings of this Court that offence under Section 3(3) of
TADA is not committed with intent to overawe the Government as by law
established or that no offence under Section 4 of TADA which provides G
punishment for disruptive activities, has been committed.

Review petitions have been filed under Article 137 of the Constitu-
tion read with Order XL of the Supreme Court Rules, 1966 as amended.
Under Article 137 of the Constitution, Supreme Court has power to review
any judgment pronounced or order made by it subject to the provisions of H
546 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A any law made by the Parliament or any Rule made under Article 145 of
the Constitution. Supreme Court Rules have been framed in exercise of
those powers. Rules 1 and 2 of Order XL of the Supreme Court Rules are
relevant and we may set out the same as under :

"l. The Court may review its judgment or order, but no application
B for review will be entertained in a civil proceeding except on the
ground mentioned in Order XLVII, Rule 1 of the Code, and in a
criminal proceeding except on the ground of an error apparent on
the face of the record.
'
c 2. An application for review shall be by a petitio' n, and shall be
filed within thirty days from the date of the judgment or order
sought to be reviewed. It shall set out clearly t '1e grounds for
-
. review."

D As to the scope of review in criminal proceedings ·mder Rule 1 it
has been considered by the Constitution Bench in P.N. fawara Iyer and
Others v. Registrar, Supreme Court of India, (1980] 4 SCC 1i80. This is how
this Court considered its power of review in criminal proceedings :-

"The rule 1 of Order XL, on its face, affords a wider set of
E grounds for review for orders in civil proceeding;, but limits the
ground vis-a-vis criminal proceedings to 'errors apparent on the
face of the record'. If at all, the concern of the law to avoid judicial
error should be heightened when life or liberty :is in peril since
civil penalties are often less traumatic. So, it is reasonable to
F assume that the framers of the rules could not :1ave intended a
restrictive review over criminal orders or judgments. It is likely to
be the other way about. Supposing an accused is sentenced to
death by the Supreme Court and the 'deceased' shows up in court
and the court discovers the tragic treachery of ti 1e recorded tes-
timony. Is the court helpless to review and set as"de the sentence
G of hanging? We think not. The power to review is in Article. 137
and it is equally wide in all proceedings. The rule merely canalises
the flow from the reservoir of power. The stream cannot stifle the
source. Moreover, the dynamics of interpretation depend on the
demand of the context and the lexical limits of the test. Here
H 'record' means any material which is already or. record or may,
SUTHENTHIRARAJA@SANTHAN "STATE THROUGH DSP/CBl,SIT (D.P. WADHWA, l.J 547

with the permission of the court, be brought on record. If justice A
summons the judges to allow a vital material in, it becomes part
of the record; and if apparent error is there, correction becomes
necessitous.

The purpose is plain, the language is elastic and interpretation
of a necessary power must naturally be expansive. The substantive B
power is derived from Article 137 and is as wide for criminal as
for civil proceedings. Even the difference in phraseology in the
rule (Order 40, Rule 2) must, therefore, be read to encompass the
same area and not to engraft an artificial divergence productive of
anomaly, if the expression 'record' is read to mean, in its semantic c
sweep, any material even later brought on record, with the leave
of the court, it will embrace subsequent events, new light and other
grounds which we find in Order 47, Rule 1, CPC. We see no
insuperable difficulty in equating the area in civil and criminal
proceedings when review power is invoke.d from the same source." D

It would be seen that scope of review in crimi!J.al proceedings has
been considerably widened by pronouncement in the aforesaid judgment.
In any case review is not rehearing of the appeal all over again and to
maintain a review petition it has to be shown that there has been miscar-
riage of justice. Of course, the expression "miscarriage of justice" is all E
embracing. Ordinarily application for review shall be disposed of by cir-
culation without any detailed arguments unless otherwise ordered by the
court (Rule 3). Considering that review petitioners had been awarded
death sentence we had heard the arguments in considerable detail in the
appeals and we confirmed· the award of death sentence on the review F
petitioners even so we thought it prudent that we should hear the argu-
ments in review petitions as well.

Mr. Natarajan, who appeared for the convict review petitioners,
submitted that he was not challenging the finding of guilt of the petitioners
.and was confining the review petitions only on question of award of death G
· sentence. He said that cases of these four review petitioners were no
different from those of A-9 (Robert Payas), A-10 (Jayakumar) and A-16
(Ravi), who were also found guilty under Section 120-B read with Section
302 IPC along with four review petitioners, but award of sentence of death
to them had been altered to imprisonment for life. We may, however, note H
548 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

·A that in the case of A-1 (Nalini) the confirmation of award of death sentence
was by majority and on three other review petitioners it was unanimous. In
the case of A-1 (Nalini), one of us Thomas, J. was of the view that A-1
(Nalini) could be saved from the gallows and for that he gave reasons. This
view was not shared by two of us (Wadhwa and Quadri, JJ.)

B Mr. Natarajan again took us to the role of each of the review
petitioners and the philosophy of award of death sentence as considered
by the Constitution Bench of this Court in Bachan Singh v. State of Punjab,
[1980] 2 SCC 684. He said that the evidence which had been led to prove
the charges under TADA could not be used while appreciating the
C evidence regarding commission of offences under IPC and on that con-
sideration awarding death sentence for those offences. Mr. Natarajan also ...
pointed out two or three errors in the judgment in recording of the name
or otherwise of the accused which he said could have bearing on the award
of sentence. Finally, he again contended that the planners and perpetrators •
D of the crinie were all dead and three of the seven accused also held guilty
for offence under Section 120-B/302 IPC have been sent.enced to life
imprisonment and. so far the case of four review petitioners is concerned
they be also awarded sentence of life imprisonment. It is difficult to accept
the arguments of Mr. Natarajan. All the three Judges constituting the
Bench gave separate judgments and each one of us considered the role of
E each one of the accused in great detail. The errors pointed out by Mr.
Natarajan are not even contradictions and are inconsequential or insig-
nificant not affecting the ultimate result. It is only after examining the role
of each of the accused on the basis of the evidence on record that the role
of four review petitioners was found different th<:n the three others who
F have been sentenced to life imprisonment.

Mr. Altaf Ahmed, Additional Solicitor General for India, questioned
the very maintainability of the review petitions. He said no error has been
pointed out which could be said to have led to miscarriage of justice. He
said the Judges had examined the role of the accused from all angles and
G it was only after that death sentence was confirmed on the four review
petitioners. Theory of sentencing was also fully considered in all the three
judgments separately given and nothing new has been pointed.

Having considered the scope of review and the rival contentions we
H find no merit in the review petition by the four convicts sentenced to suffer
SUTHENTHIRARAJA@ SANTHAN '·STATE THROUGH DSP/CBl,SIT [D.P. WADHWA, J.J 549

. the extreme penalty provided under the law. A
In the review petitions filed by the State through CBI Mr. Soli J.
Sorabjee, learned Attorney General for India, said that relevant considera-
. tions have not been taken into account to hold that the accused did not
commit the offence with intent to strike terror in people or in any section
of the people. He said earlier decisions of this Court in Niranjan Singh B
Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya, [1990] 4 SCC
76; Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others,
[1994] 4 SCC 602 and Girdhari Pannanand Vadhava v. State of
Maharashtra, [1996) 11 SCC 179, were not considered in proper perspective
by this Court. He made following submissions : C
....
1. The well-settled principle that a person is presumed to intend the
natural and' probable consequence of his act. The greater the probability
of a consequence, the more likely it is that the consequence was foreseen
and, if that consequence was foreseen, the more likely it is that that
consequence was also intended. D
2. A crucial part of the reasoning in Niranjan Singh's case [1990] 4
SCC 76@ 88 para 10, as also in Girdhari's case [1996] 11SCC179 @194,
has not been adverted to at all and has been overlooked.

3. There is clear mis-appreciation of the ratio of this Hon'ble Court's E
judgment in Hitendra Vishnu [1994] 4 SCC 602. The authority supports the
case of the prosecution that the offence committed is a terrorist act with a
view to strike terror.

4. The conclusion arrived at that the act in question was not com-
mitted with an intent 'to strike terror in the people or any section of the F
people is not in conformity with the admitted facts on record and findings
recorded in the judgment.

Mr. Sorabjee also referred to English law on the question of proof
of intention and quoted para 16 from Halsburry's Law or England (Fourth G
Edition), Volume 11(1), which is as under :

"16. Proof of intention and foresight. Whenever an offence is
defined so as to require proof that a person intended or foresaw
a particular result, the court or jury is not bound in law to infer
that such person intended or foresaw that result by reason only of H
550 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A its being a natural and probable consequence of his actions, but
must decide whether he did intend or foresee that result by
reference to all the evidence, drawing such inferences from the
evidence as may be proper in the circumstances. Foresight of the
consequences of an act does not necessarily imply the existence of
intention but it may be a factor from which, when considered
B together with all the other evidence, the jury may infer that the
accused had the alleged intention. The probability of the result is
another factor, and an important one, for the jury to consider when
deciding whether the result was intended. When directing juries
about the mental element in any crime of specific intent, judges
c should avoid any elaboration or paraphrase as to what is meant by
intent. Some further direction may, however, be necessary if the
prosecution invites the jury to infer intent from the foresight of a
-
consequence. As a matter of evidence, the greater the probability
of a consequence, the more likely it is that the consequence was
foreseen and, if that consequence was foreseen, the more likely it
D
is that that consequence was also intended." ·

In Niranjan Singh's case [1990] 4 SCC 76, which was quoted in the case of
Hitendra Vishnu Thakur and Others v. State of Maharashtra and 'others,
[1994] 4 SCC 602 this Court had said that intention of the accused was
E clearly to eliminate the rivals and gain supremacy in the underworld so that
they may be known as the bullies of the locality and would be dreaded as
such. In that case the intention was not to strike terror in the people or
any section of people. This Court added, "It would have been a different
matter if to strike terror some innocent persons were killed. In that case
F the intention would be to strike terror and the killings would be to achieve
that objective. In that case the intention was to liquidate Raju and Keshav
and thereby achieve the objective of gaining supremacy in the underworld.
The consequence of such violence is bound to cause panic and fear but the
intention of committing the crime cannot be said to be strike terror in the
people or any section of the people."
G
In Girdhari Parmanand Vadhava v. State of Maharashtra, (1996] 11
SCC 179, this Court again referred to the aforesaid observations made by
this Court in Niranjan Singh 's case. It was thus the submission of Mr.
Sorabjee that in the present case where so many innocent persons had been
H killed the intention could be gathered that the accused had committed the
SUTHENTHIRARAJA@?SANTHAN '·STATE THROUGH DSP/CBJ,SIT [THOMAS, l.) 551

crime with intent to strike terror in the people or any section of people. A
Mr. Natarajan in his reply submitted that there was no quarrel with the
statement of law as propounded by this Court, but he said that mens rea
was vital in the criminal trial and this Court on evidence came to the
conclusion that the accused did not commit the crime with an intention to
strike terror in the people or any section of people.
B
We do not think Mr. Sorabjee is right in his submission. All the
judgments of this Court were duly considered and so was the law on the
subject and it was only then on the basis of the evidence that this Court
concluded that the accused did not commit the crime with intent to strike
terror in the people or any section of the people. This Court made no C
general statement. In recent judgment in State through CBI, Delhi v. Gian
Singh, JT (1999) 6 SC 575, where the accused were sentenced to death
under Section 3(3)(I) of TADA for offence of murder of Sant Harcharan
Singh Longowal, this Court did conclude on the basis of evidence on record
that the main intention of the accused was to administer a terror or shock
wave to the people at large when Sant Harcharan Singh Longowal was not D
the only target of the shooters though perhaps he was one of the principal
targets.

We find no error in the judgment sought to be reviewed on the
ground that we were wrong in holding that the accused did not intent to
strike terror in the people or any section of the people and on that account E
they did not commit any offence under Section 3 of TADA.

Accordingly, review petitions are dismissed.

THOMAS, J. I am in respectful agreement with the rea.sons by which
my learned brother Wadhwa, J. has concluded that the Review Petitions F
are to be dismissed, though I have a dissent in regard to the sentence aspect
concerning A-1 Nalini. On that score, apart from reiterating my reasons for
awarding imprisonment for life as the sentence for the offence under Section
302 read with Section 120B of Indian. Penal Code to A-1 Nalini, I wish to

-· express my separate stand regarding the Review Petition filed by her.

The Constitution Bench in Bachan Singh v. State of Punjab, [1980]
G

2 sec 684 has narrowed down the scope for awarding death sentence to
the extremely restricted radius of "rarest of rare cases" in which the
alternative lesser sentence of imprisonment for life is unquestionably
foreclosed. H
552 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A In the main Judgment in the present case one of the three Judges
found that sentence of imprisonment for life would be sufficient to meet
the ends of justice as for A-1 Nalini.

In a case where a Bench of three Judges delivered judgment in which
the opinion of at least one judge is in favour of preferring imprisonment
B for life to death penalty as for any particular accused, I think it would be
a proper premise for the Bench to review the order of sentence of death
in respect of that accused. Such an approach is consistent with Article 21
of the Constitution as it helps saving a human life from gallows and at the
same time putting the guilty accused behind bars for life. In my opinion, it
would be a sound proposition to make a precedent that when one of the
C three judges refrains from awarding death penalty to an accused on stated
reasons in preference to the sentence of life imprisonment that fact can be ..
regarded sufficient to treat the case as not falling within the narrowed
ambit of "rarest of rare cases when the alternative option is unquestionably
foreclosed".
D
I may add as an explanatory note that the reasoning is not to be
understood as a suggestion that a minority opinion in the judgment can
··<--'-
supersede the majority view therein. In the realm of making a choice ·
between life imprisonment and death penalty the above consideration is
germane when the scope for awarding death penalty has now shrunk to.the
E narrowest circle and that too only when the alternative option is "unques-
tionably foreclosed". In a special situation where one of the three deciding
judges held the view that sentence of life imprisonment is sufficient to meet
the ends of justice it is a very relevant consideration for the Court to finally
pronounce that the prisoner can be saved from death as the lesser option
is not "unquestionably foreclosed" in respect of that prisoner.
F
So in my view the Review Petition filed in respect of A-1 Nalini
should be allowed and her sentence should be altered to imprisonment for
life. I, therefore, allow the Review Petition to the aforesaid limited extent.

SYED SHAH MOHAMMED QUADRI, J. On reading the draft
G order prepared by my learned brother Wadhwa, J. I endorsed my agree-
ment thereto as I felt that the order in a Review Petition should neither
reiterate nor add to the reasons contained in the judgment under review.
But thereafter I received the order of my learned brother Thomas, J.
containing his dissenting note regarding the sentence passed on A-1 Nalini
H and suggesting us to review the order of sentence of death. The learned
SUTHENTHIRARAJA@ SANTHAN v. STATE THROUGH DSP/CB!,SIT (QUADRI, J. ( 553
Judge observed : A

"In a case where a Bench of three Judges delivered judgment in
which the opinion of at least one Judge is in favour of preferring
imprisonment for life to death pe~alty as for any particular ac-
cused, I think it would be a proper premise for the Bench to review
B
the order of sentence of death in respect of that accused."

The ambit of Rule XL(l) of Supreme Court Rules which provides
grounds for Review, as interpreted by this Court in P.N. Eswara Iyer & 01~"
V. Registrar, Supreme Court of India, [1980] 4 sec 680, vis-a-vis criminal

proceedings, is not confined to "an error apparent on the face of the c
record". Even so by process of interpretation it cannot be stretched to
embrace the premise indicated by my learned brother as a ground for
review. That apart there are two difficulties in the way. The first is that the
acceptance of the said proposition would result in equating the opinion of
the majority to a ground analogous to 'an error apparent on the face of the D
record' and secondly in a bench of three Judges or of greater strength if a
learned Judge is not inclined to confirm the death sentence imposed on a
convict, the majority will be precluded from confirming the death sentence
as that per se would become open to review.

In this view of the matter, agreeing with brother Wadhwa, .J. I dismiss
E
the Review Petitions.

In view of the orders of the Court taking the majority view the review
petitions are dismissed.
F
G.N. Petitions dismissed.