Supreme Court of India
VIKRAM SINGH@ VICKY &ANR.versusUNION OF INDIA & ORS.
- Citation
- 2015 INSC 591
- Decided
- 21 August 2015
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
Section 364A IPC, including its provision for death or life imprisonment, is constitutionally valid and not disproportionate; the death sentences awarded to the appellants stand.
Summary
The appellants were convicted under Sections 302 and 364A of the IPC for kidnapping a 16‑year‑old boy, demanding a Rs 50 lakh ransom and murdering him, and were sentenced to death. They challenged the constitutionality of Section 364A on the ground that its mandatory death or life imprisonment provision was disproportionate and violated Articles 21, 32 and 226 of the Constitution. The Supreme Court examined the legislative history, the scope of "any other person" in Section 364A, the rule of ejusdem generis, and the proportionality doctrine, concluding that the provision was enacted to combat kidnapping for ransom, including terrorist‑related cases, and that the discretion to award death or life imprisonment remains with the courts. The Court held that the death sentences were justified as "rarest of rare" cases and that Section 364A is not unconstitutional. Consequently, the appeal was dismissed.
Issues considered
- The constitutionality of Section 364A IPC insofar as it prescribes death or life imprisonment
- Whether Section 364A applies only to kidnappings involving the government/foreign state or also to private ransom demands
- Whether the expression "any other person" in Section 364A should be interpreted ejusdem generis
- Whether the death sentence in the present case is disproportionate to the offence
- Whether a writ under Article 32/226 can be entertained after a final judgment of this Court
Legislation cited
- Constitution of Indias. Article 129, s. Article 142, s. Article 21, s. Article 226, s. Article 32
- Indian Penal Code, 1860s. 11, s. 302, s. 364A
Subjects
kidnapping for ransomdeath penaltySection 364A IPCproportionality of punishmentconstitutional validityArticle 32Article 226rarest of rarestatutory interpretationejusdem generis
Judgment
[2015) 10 S.C.R. 816
A VIKRAM SINGH@ VICKY &ANR. •
v.
UNION OF INDIA & ORS.
(Criminal Appeal No.824 Of 2013)
B
AUGUST 21, 2015
[T. S. THAKUR, R.K. AGRAWAL AND
ADARSH KUMAR GOEL, JJ.)
Penal Code, 1860:
c
ss. 302 and 364A - Kidnapping and killing of 16 year
old boy demanding ransom of Rs 50 lakh from his father -
Conviction u/ss. 302 and' 364A and imposition of death
sentence - Order attaining finality upto this Court - Writ
D petition by appellant u!Art. 32 challenging vires of s. 364A to
the extent the same prescribes death sentence for anyone
found guilty, dismissed as withdrawn with liberty to the
appellants to approach High Court- Thereaft~r, writ petition
before the High Court dismissed, upholding the vires of s.
E 364A - On appeal, held: Provisions of Section 364A in so far
as the same prescribes death or !ife imprisonment is not
unconstitutional on account of the punishment being
disproportionate to the gravity of the crime committed by the
appellants- s. 364A was enacted for the safety and security
F of the citizens and the unity, sovereignty and integrity of the
country-Appellants were held guilty not only uls. 364A, but
even for murder punishable u/s. 302 - Award of death
sentence was considered to be just, fair and reasonable, even
G by the standards of rarest of rare cases...:.. 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.
s. 364A - When attracted- Held: Kidnapping/abduction
H demanding ransom from private persons also- attracts s.
816
VIKRAM SINGH@VICKYv. UNION OF INDIA 817
364A - Language employed in s. 364A is wide enough to A
cover even cases where the demand for ransom is made not
as a part of any terrorist act but also for monetary gain from a
private individual- Provision does not suggest that the same
is attracted only in ransom situations arising in· acts of
terrorism directed against the Government or any foreign state B
or international inter-governmental organization.
s. 364A - Ingredients of- Stated.
s. 364A - Scope and purport of- Examination of historical
perspective - Explained and discussed. C
Constitution of India, 1950 - Art. 32, 226 - Writ
jurisdiction - Order attaining finality upto this Court - Writ
petition by appellant u!Art. 32 challenging vires of s. 364A
dismissed as withdrawn with liberty to the appellants to 0
approach High Court- Thereafter, writ petition before the High
Court dismissed, upholding the vires of s. 364A - On appeal,·
held: In view of the decision in Rupa Ashok Hurra's case, if
against a final judgment of this Court, a remedy was not
available u/Art.· 32, the same would also not be available u/ E
Art. 226 - Only remedy available, is by invoking this Court's
inherent powers u!Arts. 129, 142 for recall, reversal or
modification of the order passed by this Court in the criminal
appeal filed by appellants- Thus, writ petition before the High
Court for that relief is untenable. F
Interpretation of statutes - Rule of ejusdem generis -
Applicability - Whether the expression 'any other person'
appearing in s. 364A ought to be read ejusdem generis with
the expression preceding the said words - Held: s. 364A G
made use of only two expressions viz. 'government' or 'any
other person' - Parliament did not use multiple expressions
in the provision constituting a distinct genus class or category
- It used only one single expression viz. 'government' which
does not constitute a genus, even when it may be a specie - H
818 SUPREME COURT REPORTS [2015] 10 S.C.R.
A Tenor of the provision, the context and .the statutory definition
of the expression 'person' all militate against any attempt tO
restrict the meaning of the term 'person' to the 'government'
or 'foreign State' or 'international inter-governmental
organisations' only, thus, the rule is not applicable.
B
Sentence/Sentencing: Proporlionality of sentence -
Guiding principles - Stated.
Dismissing the appeal, the Court
c HELD: 1. The provisions of Section 364A IPC in so
far as the same prescribes death or life imprisonment is
not unconstitutional on account of the punishment being
disproportionate to the gravity of the crime committed
by the appellants. A sentence of death in a case of murder
D may be rare, but, if the Courts have, upon consideration
of the facts and evidence, found that the same is the only
sentence that can be awarded, it is difficult to revisit that
question in collateral proceedings like the one at hand.
The Court cannot merely on a hypothetical situation
E strike down a provision disregarding the actual facts in
which the challenge has been mounted. Assumed
hypothetical situations cannot be brought to bear upon
the vi res of Section 364A. The stark facts that have been
held proved in the instant case would at any rate take
F the case out of the purview of any such hypothetical
situation. It is said so because the appellants have been
held guilty not only under Section 364A, but even for
murder punishable under Section 302 IPC. Sentence of
G death awarded to them for bo~h 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
H death, which is what appears to have weighed with the
VIKRAM SINGH @VICKYv. UNION OF INDIA 819
Courts in awarding to the appellants the capital A
punishment. [Para 51] (869-H; 870-A]
2. 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 s ·
approach the High Court. Even so, in the light of the
pronouncement of this Court in Rupa Ashok Hurra's
case, if against a final judgment of this Court, a remedy
was not available under Article 32 the same would also
not be available under Article 226. If this Court could not C
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 Ashok
Hurra's case is by invoking ~his Court's inherent powers . D
under Articles 129 and 142 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. (Para 10] (834-G-H; 835-A-B] E
Rupa Ashok Hurra v. Ashok Hurra and Anr. 2002
(2) SCR 1006: (2002) 4 SCC 388- referred to.
3.1 Section 364A came on the statute book initially F
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 G
acquired menacing dimensions that called for an
effective legal framework to prevent such ransom
situations and punish those responsible for the same.
The further amendment to Section 364A in the year 1994
simply added the expressions "foreign state or H
820 SUPREME COURT REPORTS [2015) 10 S.C.R.
A international inter-governmental organisation" to the
provision without deleting the pre-existing expression
"any other person". The expression "any other person"
appearing in Section 364A IPC right from the time of its
initial incorporation in the Code was meant to apply the
B provisions not only to situations where the Government
was asked to pay ransom or to do any other act but even
to situations where any other person which would
include a private person also was asked to pay ransom.
The subsequent amendment in the year 1994 also did
C not remove the expression "any other person" in Section
364A while adding the expression "foreign State or
international inter Government organisation" to the
provision as it originally existed. There is nothing in the
provision to suggest that the same is attracted only in
0
ransom situations arising in acts of terrorism directed
against the Government or any foreign state or
international inter-governmental organization. The
language employed in the provision is, wide enough to
E cover even cases where the demand for ransom is made
not as a part of any terrorist act but also for monetary
gain from a private individual. [Paras 17, 18, 19] [840-E-
H; 841-A-D]
F 3.2 Section 364A has three distinct components viz.-
the person concerned kidnaps or abducts or keeps the
victim in detention after kidnapping or abduction;
threatens to cause death or hurt or causes
apprehension of death or hurt or actually hurts or
G causes death; and 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 cioing something or to pay
H ransom. These ingredients are distinctly different from
VIKRAM SINGli@ VICKYv. UNION OF INDIA 821
the offence of extortion under Section 383 IPC. The A
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. [Para 22] [842-E-H] . B
4.1 The submission that the expression 'any other
person' appearing in Section 364A ought to be read
ejusdem gen eris with the expression preceding the said
words, cannot be accepted. The rule of ejusdem generis C
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 D
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 E
it is not possible to find the genus in the use of the words
preceding the general words, the rule of ejusdem generis
would have no application. Section 364A added to IPC
m~de use of only two expressions viz. 'government' or F
'any other person'. The Parliament did not use multiple
expressions in the provision constituting a distinct genus
class or category. It used only one single expression viz.
'government' which does not constitute a genus, even
when it may be a specie. [Paras 23 and 26][843-B-D; 844- G
G-H]
4.2 The term 'person' used in the expression 'any
other person', appearing in Section 364A IPC must be
understood as referring to 'person' as defined in Section H
822 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 11 IPC. The term 'person' appearing ins. 364A would
include a company or association or body of persons
whether incorporated or not, apart from natural persons.
The tenor of the provision, the context and the statutory
definition of the expression 'person' all militate against
B any attempt to restrict the meaning of the term 'person'
to tile 'government' or 'foreign State' or 'international
inter-governmental organisations' only. [Paras 28 and 29]
[846-E-F, G-H; 847-A]
C Mis. Siddeshwari Cotton Mills (P) Ltd. v. Unionof
India andAnr. 1989 (1) SCR 214: (1989) 2 SCC
458; Tribhuban Prakash Nayyar v.Union of India
1970 (2) SCR 732: (1969) 3 sec 99, UPSEB v.
Hari Shanker 1979 (2) SCR 355: (1978) 4 SCC
D 1G; Grasim Industries Ltd. v. Collector of Customs,
Bombay 2002 (2) SCR 945: (2002) 4 sec 297 -
referred to.
SS Magnhild v. Mcintyre Bros. & Co. (1920) 3 KB
E 321 - referred to.
Statutory Construction by Francis Bennion; Statute
Law' by Craies (7th Edn.)- referred to.
F 5. In Section 364A, the Court enjoys the discretion
whether to award the extreme penalty of death or the
lesser alternative of a life imprisonment. Whether life or
death would be the proper sentence is in the absolute
discretion of the Court which the Courts are expected
G to exercise wisely having regard to the facts of the case
and the gravity of the offence and its severity or barbarity.
[Para 33] [849-F-H]
Mithu etc. v. State of Punjab etc. 1983 (2) SCR
690: (1983) 2 sec 277 - distinguished.
H
VIKRAM Slt-.GH@VICKYv. UNION OF INDIA 823
Malleshi v. State of Karnataka 2004 (4) Suppl. A
SCR 441: (2004) 8 SCC 95; Suman Sood @
Kama/Jeet Kaur v. State of Rajasthan 2007 (6)
SCR 499: (2007) 5 SCC 634; Vinod v. State of
Haryana 2008 (1) SCR 1141: (2008) 2 SCC 246;
Akram Khan v. State of West Bengal 2011 (13) B
SCR 459: (2012) 1 SCC 406; Vikram Singh &
Ors. v. State of Punjab 2010 (2) SCR 22 : (2010)
3 sec 56 - referred to.
6. A legislation is presumed to be constitutionally C
valid with the burden of showing the contrary lying
heavily upon any one who challenges its validity. Not
only that, courts show due deference to the
parliamentary wisdom and exercise self restraint while
examining the vires of legislations validly enacted. [Para D
34] [854-C-D]
Maru Ram v. Union of India & Ors. (1981) 1 SCC
107; Bachan Singh v. State of.Punjab (1980) 2
SCC 684; State of M.P. v. Bala alias Balaram 2005 E
(3) Suppl. SCR 859: (2005) 8 SCC 1 - referred
to.
7. The principles as regards the proportionality of
sentences are as follows: (a) Punishments must be F
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 G
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
H
824 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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
B 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
C 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
0
to the offence committed, there are very few and rare
cases of sentences of imprisonment being held
disproportionate. [Para 49] [866-E-H; 867-A-E]
8. Given the background in which the law was
E 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
F 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
G 364A would doubtless be exercised by the Courts along
judicially recognized lines and death sentences
awarded only in the rarest of rare cases. Butjlist because
the sentence of death is a possible punishment that may
be awarded in appropriate cases cannot make it per se
H
VIKRAM SINGH @VICKYv. UNION OF INDIA 825
inhuman or barbaric. In the ordinary course and in cases A
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 B
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 C
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
0
Constitution. [Para 50] [868-G-H; 869-A]
Naresh Shridhar Mirajkar etc. v. State of
Maharashtra AIR 1967 SC 1: 1966 SCR 744;
Prem Chand Garg v. Excise Commissioner, U.P.,
Allahabad AIR 1963 SC 996: 1963 Suppl. SCR E
885; Maru Ram v. Union of India & Ors. (1981) 1
sec 107 - referred to.
Weems v. United States 217 US 349:54 L.Ed 793:
30 S. Ct 544 (1910); Enmund v. Florida 647 458 F
US 782 (1982); Coker v. Georgia 433 US 584
(1977); Herman Solem v. Jerry Buckley Helm 463
US 277, 77 Led 2d 637, 103 s Ct 3001; Ronald
Allen Harmelin v. Michigan 501 US 957; Rumme!
v. Estelle 445 U.S 263; Solem v. Helm 463 US G
277; Ewing v. California 538 US 11; R. v. Smith
(1987) 1 SCR 1045; R. \/. Goltz (1991) 3 SCR
485; R. II. Fergusson (2008) 1 SCR 96 - referred
to. ·
H
826 SUPREME COURT REPORTS [2015] 10 S.C.R.
A Case Law Reference
1966 SCR 744 referred to. Para 6
1963 Suppl. SCR 885 referred to. Para 6
B 2002 (2) SCR 1006 referred to. Para 6,9,10
1989 (1) SCR 214 referred to. Para 24
1970 (2) SCR 732 referred to. Para 25
c 1979 (2) SCR 355 referred to. Para 25
2002 (2) SCR 945 referred to. ·Para 27
2004 (4) Suppl. SCR 441 referred to. Para 31
D 2007 (6) SCR 499 referred to. ..Para 31
2008 (1) SCR 1141 referred to. Para 31
2011 (13) SCR 459 referred to; Para 31
E
1983 (2) SCR 690 distinguished. Para 33
2010 (2) SCR 22 referred to. Para 33
(1981) 1sec101 referred to. Para 34
F
(1980) 2 sec 684 referred to. Para 35
2005 (3) Suppl. SCR 859 referred to. Para 36
(1987) 1 SCR 1045 referred to. Para 46
G
(1991) 3 SCR 485 referred to. Para 47
(2008) 1 SCR 96 ref~rred to. Para 48
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal
H No. 824 of2013.
VIKRAM SINGH @ VICKYv. UNION OF INDIA 827
From the Judgment and Order dated 03.10.2012 of the A
High Court of Punjab and Haryana at Chandigarh in CWP No.
18956 of 2012 (O&M).
Ranjit Kumar, S.G. Neeraj Kishan Kaul,ASG, RS. Sodhi,
Amit Desai, V. Madhukar, AAG, Tripurari Ray, S.S. Billowria, s
Rajinder Singh, Anil Kaushik, Dinesh Kumar Garg, Mohd.
lrshad Hanif, N.A. Usmani, S.A. Haseeb, Binu Tamta, Ranjana
Narayan, Sushma Suri, 8. Krishna Prasad,Anvita Cowshish,
Mohit Nain, Kuldip Singh, Abhishek Singh, Pankaj Sharma,
C. Mukherji, Mohit D. Ram, Hemant Sharma, lndu Sharma, C
Gopalakrishna Shenoy, Dr. AbhishekAtrey, Aakansha Kaul,
Nitesh Daryanani, D.S. Mahra for the appearing parties.
The Judgment of the Court was delivered by
D
T. S. THAKUR, J. 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 E
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 F
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 G
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, H
828 SUPREME COURT REPORTS [2015] 10 S.C.R.
A ·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
B 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
C the case at hand and whether a person found.guilty of an offence
punishable underthe'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
0
following passage of the judgment of this Court in the appeal
filed by the appellants against their conviction:
"... A plain reading of the Objects and Reasons which
led to the amendment shows the concern of
E 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
F
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
G 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 in Henry's case (supra) observed that death
H sentence could be awarded even in a case of·
VIKRAM SINGH @ VICKYv. UNION OF INDIA 829
[T.S. THAKUR, J.]
kidnapping and murder based on circumstantial A
evidence... "
2. 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 B
appeal filed by the appellants:
"24. Some of the judgments aforesaid refer to the
ongoing debate as to the validity and propriety of the
death sentence in a modem society. There are the c
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 D
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. E
The broad principle has been laid in Bachan Singh's
case (supra) as the "rarest of the rare cases". Bachan
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 F
category. In Machhi Singh & Ors. Vs. State of
Punjab 1983 (3) SCC 470 this Court gave an
indication as to what could constitute this category... "
3. The High Court on the above reasoning concluded that G
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 H
830 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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 againstthe petitioners which plea could
not be re-agitated by them in collateral proceedings. Having
B said t~at 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
C kidnapping by any person in the circumstances indicated in
the said provision an offence no matter at lhe 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
0
only thereafter that Section 364A was amended to incorporate
the expression "any foreign state or international inter-
governmental organization or any other person" to honour
the commitment under the said Convention. The High Court,
E 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
F 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
G 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.
H
5. Appearing for the appellants, Mr. Tripurari Ray followed
VIKRAM SINGH @VICKYv. UNION OF INDIA 831
[T.S. THAKUR, J.]
by M/s Altaf Ahmad and R.S. Sodhi, senior advocates, who A
appeared for the interveners, strenuously argued that Section
364A of the IPC was attracted only in situations where an
offence was committed against the Government, any foreign
State or international inter-governmental organisation. The
provision, argued the learned counsel, had no application to B
situations in which a victim was abducted or kidnapped for
ransom demand from a private individual. The provisions of
Section 364A, it was contended, were meant to deal with
kidnapping by terrorists for ransom or where terrorists take
hostages with a view to compelling the Government or a foreign C
State or international in.ter-gov~rnmental organisation to do or
abstain from doing any act including payment of ransom.
6. On behalf of the respondents, it was contended by Mr.
Ranjit Kumar, Solicitor General, that the question whether D
Section 364A IPC was attracted to the fact situation of the
case at hand was examined and decided by this Court in the
criminal appeal filed by the appellants against their conviction
and sentence. The view taken by this Court in the appeal having
attained finality, it was not open to the appellants to re-agitate E
the issue in collateral proceedings. Reliance in support of that
submission was placed upon the decisions of this Court in
Naresh ShridharMirajkaretc. v. State of Maharashtra (AIR
1967SC1), Prem Chand Garg v. Excise Commissioner, F
U.P., Allahabad (AIR 1963 SC 996) and Rupa Ashok Hurra
v. Ashok Hurra and Anr. (2002) 4 SCC 388.
7. Alternatively, it was contended that Section 364A of the
IPC was widely worded to cover not only situations where
terrorists take hostages to compel the Government or a foreign G
State or any international inter-governmental organisation but
also where any person abducts or kidnaps the victim for no
more than compelling payment of ransom by the family of the
victim. It was contended thatthe High Court had rightly analysed H
the provisions, examined the historical perspective to hold that
832 SUPREME COURT REPORTS [2015) 10 S.C.R.
A Section 364A was not confined only to cases involving acts of
terrorism but was attracted even in cases where the crime is
committed for securing ransom.
8. There is no gainsaying that in an appeal directed
B 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
C 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
D 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
E was, thus, not maintainable in law.
9. In Rupa Ashok Hurra's case (supra), a Constitution
Bench of this Court examined the options available to a litigant
aggrieved of a final judgmenUorder of this Court after the
F dismissal of the review petition filed by him. This Court
reviewed the case law on the subject and held that a final
judgmenUorder passed by this Court cannot be assailed in an
application under Article 32 of the Constitution of India by an
aggrieved person regardless whether he was or was not a
G party to the case. This Court also examined the competing
considerations of giving finality to the judgments of the Court
of last resort, on the one hand, and the need to dispense justice
on reconsideration of a judgment on the other and held that in
H rarest of rare situations, a final judgment of the Court may
VIKRAM SINGH@VICKYv. UNION OF INDIA 833
[T.S. THAKUR, J.]
require re-consideration to set right the miscarriage of justice A
complained of. In such cases it would not only be proper but
even obligatory for the Court to both legally and morally rectify
the error. This Court further held that the duty to do justice in
such rarest of rare cases shall prevail over the policy of certainty
or finality of judgments. The following two passages from the 8
decision are apposite:
"40. The petitioners in these writ petitions seek re-
consideration of the final judgments of this Court after
they have been unsuccessful in review petitions and in C
that these cases are different from the cases referred
to above. The provision of Order XL Rule 5 of (he
Supreme Court Rules bars further application for review
in the same matter. The concern of the Court now is
whether any relief can be given to the petitioners who D
challenge the final judgment of this Court, though after
disposal of review petitions, complaining of the gross
abuse of the process of Court and irremedial injustice.
In a State like India, governed by rule of law, certainty of E
law declared and the final decision rendered on merits
in a /is between the parties by the highest court in the
country is of paramount importance. The principle of
finality is insisted upon not on the ground that a
judgment given by the apex Court is impeccable but F
on the maxim "Interest reipublicae ut sit finis litium".
41.xxxxxxxxxx
42. The concern of this Court for rendering justice in a
cause is not less important than the principle of finality G
of its judgment. We are faced with competing principles
- ensuring certainty and finality of a judgment of the
Court of last resort and dispensing justice on
reconsideration of a judgment on the ground that it is
vitiated being in violation of the principle of natural H
834 SUPREME COURT REPORTS [2015) 10 S.C.R.
A justice or giving scope for apprehension of bias due to
a Judge who participated in the decision making
process not disclosing his links with a party to the case
or on account of abuse of the process of the court. Such
a judgment, far from ensuring ·finality, will always remain
B under the cloud of uncertainty. Almighty alone is the
dispenser of absolute justice - a concept which is not
disputed but by a few. We are of the view that though
Judges of the highest Court do their best, subject of
course to the limitation of human fallibility, yet situations
c may arise, in the rarest of the rare cases, which would
require reconsideration of a final judgment to set right
miscarriage of justice complained of In such case it
would not only be proper but also obligatory both legally
and morally to rectify the error. After giving our anxious
D
consideration to the question, we are persuaded to hold
that the duty to do justice in these rarest of rare cases
shall have to prevail over the policy of certainty of
judgment as though it is essentially in public interest
E that a final judgment of the final court in the country
should not be open to challenge, yet there may be
circumstances, as mentioned above, wherein declining
to reconsider the judgment would be oppressive to
judicial conscience and cause perpetuation of
F . irremediable injustice."
10. 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 reseNed to the appellants
G to app'roach the High Court. Even so, in the light of the
pronouncement of this Court in Rupa Ashok Hurra's case
(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 Artide 226. If this Court could not
H take resort to Article 32 for reopening for examination its final
VIKRAM SINGH @VICKYv. UNION OF INDIA 835
[T.S. THAKUR, J.]
judgement, the High Court could also not do so under Article A
226. The only remedy which the appellants could resort to in
terms of the view taken in Rupa Ashok Hurra's case (supra)
is by invoking this Court's inherent 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 B
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 C
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 D
brought by the appellants. We do so not only because the
matter was argued at considerable length before us but also
because the lives of the appellants hang in the balance. We
will, therefore, be loathe in shutting out the arguments advanced
on behalf of the appellants on a technical ground touching the E
maintainability of the petition filed by the 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 F
statute book. When we do so, we find that the proposal for
addition of Section364A to the Indian Penal Code was first
modified by the Law Commission of India in its 42"d Report
submitted in 1971. The relevant portion of the report reads as
und~ G
"16. 100 We consider it desirable to have a specific
section to punish severely kidnapping or abduction for
ransom, as such cases are increasing. At present, such
kidnapping or abduction is punishable under Section H
836 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 365 since the kidnapped or abducted person will be
secretly and wrongfully confined.
We also considered the question whether a provision
for reduced punishment in case of release of the person
B kidnapped without harm should be inserted, but we
have come to the conclusion that there is no need for
it. We propose the following section:-
"364A. Kidnapping or abduction for ransom - Whoever
c kidnaps or abducts any person with intent to hold that
person for ransom shall be punished with rigorous
imprisonment for a term which may extend to 14 years,
and shall also be liable to fine."
xxxxxxxxxxxxxxxxxxx
D
Chapter25
SUMMARY OF RECOMMENDATIONS
E 25.1.xxxxxxxxxxx
A brief summary of the principal recommendations
made in each chapter is given below:
xxxxxxxxxxxxxxx
F
(14) Kidnapping or abduction for ransom should be
an aggravated form of the offence of kidnapping or
abduction punishable with rigorous imprisonment
upto fourteen years and fine."
G
13. The recommendations of the Law Commission appear
to have languished for nearly two decades before the Criminal
Law (Amendment) Bill, 1992 was presented to the Parliament
by the Government proposing to add to the IPC Section 364A
H in a form slightly different from the one in which the Law
VIKRAM SINGH @VICKYv. UNION OF INDIA 837
[T.S. THAKUR, J.]
Commission had recommended such addition. What is A
important is that in the statement of Objects and Reasons,
accompanying the bill •. a two-fold justification was given by the·
Government for the proposed addition namely: (i) that
kidnappings by terrorists for ransom for creating panic amongst
the people and for securing release of their associates and B
cadres had assumed serious dimensions and (ii) The Law
Commission had in its 42"d Report recommended a specific
provision to deal with the menace of kidnapping and
abductions for ransom. The Bill eventually led to the Criminal
Law Amendment Act 1993 (Act 42 of 1993), introducing C
Section 364A to the Indian Penal Code with effect from 22nd
May, 1993, in the following words:
"364A. Kidnapping for ransom, etc.- Whoever
kidnaps or abducts any person or keeps a person in D
detention after such kidnapping or abduction and
threatens to cause death or hurt to such person, or by
his conduct gives rise to a reasonable apprehension
that such person m~y be put to death or hurt, or causes
hurt or death to such person in order to compel the E
Government or any other person to do or abstain from
doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be
liable to fine."
F
14. Shortly after the introduction of the above provision
arose the need for an amendment to the same. The amendment
was necessitated by reason of India acceding to the
international convention against the taking of hostages adopted
by the General assembly of the United Nations on 17th G
December, 1979 in the background of Iranian hostage crisis.
The Convention aimed at fighting international terrorism, came
into force with effect from 3rd June, 1983 but was acceded to
· by India with effect from 7th September, 1994.
H
838 SUPREME COURT REPORTS [2015] 10S.C.R.
A 15. The Indian Penal Code (Amendment) Bill 1994, Bill
No.LXVof 1994 was, in the above background, introduced in
the Rajya Sabha on 25th August, 1994 to.amend Section 364A
so as to substitute the expression "any other person" by the
words "any foreign State or international inter-governmental
B organisation or any other person" in the said section. The
Statement of Objects and Reasons for the amendment also
gave the background in which the amendment was considered
necessary. The Statement of Objects and Reasons
accompanying the bill were as under:
c
"STATEMENT OF OBJECTS AND REASONS
An international convention against the taking of
Hostages was adopted by the United Nations General
Assembly on the 1'11h December, 1979
D
2. The said convention seeks to develop international
cooperation between the states in devising and
adopting effective measures for prevention
prosecution and punishment of all acts of hostage
E taking.
3. India has decided to accede to the said convention
since it is one of the important conventions aimed at
fighting international terrorism. For the purpose of
implementing the convention it is proposed to amend
F
section 364A of the Indian Penal Code which provides
punishment for the offence of kidnapping for ransom
etc. It is proposed to widen the scope of the said
section by including therein situations where the
G offence is committed with a view to compelling foreign
states or international inter governmental
organisations to do or abstain from doing any act or
to pay a ransom.
4. The bill seeks to achieve the above object."
H
VIKRAM SINGt:@VICKYv. UNION OF INDIA 839
[T.S. THAKUR, J. )
16. A Committee of Home Affairs constituted by Rajya A
Sabha examined the issue and submitted a report dated 29th
November, 1994 in support of the amendment to Section 364A.
The existing Section 364A did not, it opined, take care'of
situation where the offence was committed with a view to
compel a foreign State or international inter-governmental B
organisation to do or abstain from doing any act or paying
ransom. The relevant extract of the Report is as under:
"In its note furnished to the Committee, the Ministry of
Home Affairs explained the packground and the c
necessity for amending section 364-A of the Indian
Penal Code, 1860, as under:-
(i) An International Convention Against the Taking of
Hostages was adopted by the General Assembly of the D
United Nations on 17th December, 1979. The
Convention was adopted in the background of Iranian
hostage crisis and aimed at fighting international
terrorism. The Convention entered into force on 3rd
June, 1983. E
(ii) As per the Convention, if any person seizes or detains
and threatens to kill, to injure or to continue to detain
another person in order to compel a third party, namely,
a State, an International inter-governmental F
organisation, a natural or juridical person or a group
of persons to do or abstain from doing any act as an
explicit or implicit condition for the release of the
hostages, it will constitute the offence of hostage taking.
G
(iii) India acceded to the Convention with effect from ?1h
September, 1994.
(iv) At present, the offence of hostage taking is not defined
in the Indian law. However, vide Criminal Law
H
840 SUPREME COURT REPORTS [2015] 10 S.C.R.
A (Amendment) Act, 1993, Section 364A was added to
the Indian Penal Code to make kidnapping for ransom,
etc. An offence punishable with death or imprisonment
for life and also fine. This provision read with other
provisions of the Indian Penal Code on abetment and
B attempt, would already cover hostage taking, as defined
in the Convention to the extent that this Act is confined
to the territory of India. Section 364A /PC does not take
care of situations where the offence is committed with
a view to compelling foreign States or international inter-
c governmental organisation to do or abstain from doing
any act or to pay a ransom.
(v) Hence, the Indian Penal Code (Amendment) Bill, 1994
seeks to amend the said section 364A on kidnapping
D for ransom, etc. to make it clear that kidnapping a
person to compel the Government or any foreign State
or international inter-governmental organization or any
other person is punishable under that section."
E 17. 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
F 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
G the expressions "foreign state or international inter-
governmental organisation" to the provision without deleting
the pre-existing expression "any other person".
18. A conspectus of the above leaves no manner of doubt
H that the expression "any other person" appearing in Section
VIKRAM SINGH @VICKY v. UNION OF INDIA 841
[T.S. THAKUR, J.]
364A right from the time of its initial incorporation in the Code A
was meant to apply the provisions not only to situations where
the Government was asked to pay ransom or to do any other
act but even to situations where any other person which would
include a private person also was asked to pay ransom. The
subsequent amendment in the year 1994 also did not remove B
the expression "anyotherperson"in Section 364Awhile adding
the expression "foreign State or international inter
Government organisation" to the provision as it originally
existed.
c
19. There is nothing in the provision to suggest that the
same is attracted only in ransom situations arising in acts of
terrorism directed against the Government or any foreign state
or international inter-governmental organization. The language
employed in the provision is, in our view, wide enough to cover D
even cases where the demand for ransom is made not as a
part of any terrorist act but also for monetary gain from a private
individual. ·
20. It was next argued by Mr. Sodhi that kidnapping for E
ransom was already covered by the existing provisions in the
IPC. He urged that Sections 359, 360 and 361 of the IPC deal
with 'kidnapping', which according to Section 359 is of two
kinds viz. kidnapping from India and kidnapping from lawful
guardianship. 'Kidnapping from India' is under Section 360 F
of the IPC while 'kidnapping from lawful guardianship' is
covered by Section 361. of the IPC. Both the situations are
made punishable under Section 363 of the IPC with
imprisonment for a term which may extend to seven years
besides fine. 'Abduction' defined in Section 362 of the IPC, is G
not by itself punishable as is the case with kidnapping.
'
21. Section 383 of the IPC defines 'extortion', while
Section 384 of the IPC makes the same punishable with
imprisonment that may extend to three years, or with fine, or H
842 SUPREME COURT REPORTS [2015] 10 S.C.R.
A wit~ both. Similarly, Sections 386, 387, 388, 389 of the IPC
deal with aggravated forms of extortion and are made suitably
punishable. It was contended that once a person is kidnapped
and put in fear of death or injury to coerce the person so
kidnapped or any other person to deliver any property or
B valuable security or anything signed which may be converted
into a valuable security can be punished suitably under the
provisions mentioned above. This, according to Mr. Sodhi
implies that the existing provisions in the IPC were sufficient
to deal with ordinary situations involving kidnapping for
C ransom, thereby, making it unnecessary for the Parliament to
introduce Section 364A of the IPC to cover an ordinary crime
situation. The corollary, according to Mr. Sodhi, is that Section
364A was added only to deal with terrorist related ransom
situations and not ordinary crimes, like the one in the case at
0
hand.
22. The 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
E kidnaps or abducts or keeps the victim in detention after
kidnapping or abduction; (ii) threatens to caus~ death or hurt
or causes apprehension of death or hurt or actually hurts or
causes death; and (iii) the kidnapping, abduction or detention
F 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
G 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
H or abduction for ransom was effectively covered under the
VIKRAM SINGH @VICKYv. UNION OF INDIA 843
[T.S. THAKUR, J.]
existing provisions of the IPC must, therefore, fail. A
23. We may before parting with this aspect of the matter
also deal with the argument that the expression 'any other
person' appearing in Section 364A ought to be read ejusdem
generis with the expression preceding the said words. The B
argument needs notice only to be rejected. The 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 C
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 D
it is not possible to find the genus in the use of the words
preceding the general words, the rule of ejusdem generiswill
have no application.
24. In Mis. Siddeshwari Cotton Mills (P) Ltd. v. Union E
of India and Anr. (1989) 2 SCC 458 M.N. Venkatachaliah,
J., as His Lordship then was, examined the rationale underlying
ejusdem generis as a rule of construction and observed:
"14. The principle underlying this approach to statutory F
construction is that the subsequent general words were
only intended to guard against some accidental
omission in the objects of the kind mentioned earlier
and were not intended to extent to objects of a wholly
different kind. This is a presumption and operates G
unless there is some contrary indication. But the
preceding words or expressions of restricted meaning
must be susceptible of the import that they represent a
class. ff no class can be found, ejusdem generis rule is
not attracted and such broad construction as the H
844 SUPREME COURT REPORTS [2015)108.C.R.
A subsequent words may admit will be favoured. As a
learned author puts it:
..... if a class can be found, but the specific words exhaust
the class, then rejection of the rule may be favoured
B because its adoption would make the general words
unnecessary; if, however, the specific words do not
exhaust the class, then adoption of the rule may be
favoured because its rejection would make the specific.
words unnecessary."
c
(See: Construction of Statutes by EA Driedger P. 95
quoted by Francis Bennion in his tatutory Construction,
pp. 829 and 830)
25. Relying upon the observations made by Francis
0
Bennion in his "Statutory Construction" and English decisions
in SS Magnhild v. Mcintyre Bros. & Co. (1920) 3 KB 321
and those rendered by this Court in Tribhuban Prakash
Nayyarv. Union of/ndia (1969) 3 SCC 99, UPSEB v. Hari
E Shanker(1978) 4SCC16, his Lordship summed-up the legal
principle in the following words:
"19. The preceding words in the statutory provision
which, under this particular rule of construction, control
and limit the meaning of the subsequent words must
F
represent a genus or a family which admits of a number
of species or members. If there is only one species it
cannot supply the idea of a genus."
26. Applying the above to the case at hand, we find that
G Section 364A added to the IPC made use of only two
expressions viz. 'government' or 'any other person'. The
Parliament did not use multiple expressions in the provision
constituting a distinct genus class or category. It used only
H one single expression viz. 'government' which does not
constitute a genus, even when it may be a specie. The situation,
VIKRAM SINGH @VICKYv. UNION OF INDIA 845
[T.S. THAKUR, J.]
at hand, is somewhat similar to what has been enunciated in A
'Craies on Statute Law' (71h Edn.) atpages 181-182 in the
following passage:
"The modem tendency of the law, it was said, [by Asquith
Jin Allen v. Emmerson (1944) KB 362)] is "to attenuate s
the application of the rule of ejusdem generis." To invoke
the application of the ejusdem generis rule there must
be a distinct genus category. The specific words must
apply not to different oi.Jjects of a widely differing
character but to something which can be called a class C
or kind of objects. Where this is lacking, the rule cannot
apply, (Hood-Barrs v. /RC (1946) 2 All ER 768) but the
mention of a single species does not constitute a
genus. (Per Lord Thankerton in United Towns Electric
Co. Ltd. v. Attorney General for Newfoundland (1939) 1 D
All ER 423). "Unless you can find a category," said
Farwell L.J., (in Tillmans and Co. v. S.S. Knutsford
(1908) 2 KB 385) "there is no room for the application
of the ejusdem generis doctrine," and where the words
are clearly wide in their meaning they ought not to be E
qualified on the ground of their association with other
words. For instance, where a local Act required that
"theatres and other places of public entertainment"
should be licensed, the question arose whether a "fun- F
fair" for which no fee was charged for admission was
within the Act. It was held to be so, and that the ejusdem
generis rule did not apply to confine the words "other
places" to places of the same kind as theatres. So the
· insertion of such words as " or things of whatever G
description" would exclude the rule. (Attorney General
v. Leicester Corporation (1910) 2 Ch. 359). In N.A.L.GO.
v. Bolton Corpn. (1943) AC 166) Lord Simon L.C.
referred to a definition of"workman" as any person who
has entered into a works under a contract with an H
846 SUPREME COURT REPORTS [2015] 10 S.C.R.
A employer whether the contract be by way of manual
labour, r;lerical work "or otherwise" and said: "The use
of the words 'or otherwise' does not bring into play the
ejusdem generis principle: for 'manual labour' and
'clerical work' do not belong to a single limited genus"
B and Lord Wright in the same case said: "The e;usdem
generis rule is often useful or convenient. but it is merely
a rule of construction. not a rule of law. In the present
case it is entirely inapt. It presupposes a 'genus' but here
the only 'genus' is a contract with an employer".
c
(emphasis supplied)
27. The above passage was quoted with approval by this
Court in Grasim Industries Ltd. v. Collector of Customs,
D Bombay (2002) 4 SCC 297 holding that note 1(a) of Chapter
84 relevant to that case was clear and unambiguous. It did not
speak of a class, category or genus followed by general words
making the rule of ejusdem generis inapplicable.
E 28. There is yet another angle from which the issue can
be viewed. The term 'person' used in the expres~ion 'any other
person', appearing in Section 364A of the IPC must be
understood as referring to 'person' as defined in Section 11 of
the IPC. Section 11 of the IPC defines the term 'person' as
F under:
"The word "person" includes any Compaf!y or
Association or body of persons, whether incorporated
or not."
G 29. This would mean that the term 'person' appearing in
Section 364A would include a company or association or body
of persons whether incorporated or not, apart from natu.ral
persons. The tenor of the provision, the context and the statutory
H definition of the expression 'person' all militate against any
attempt to restrict the meaning of the term 'person' to the
VIKRAM SINGH @VICKYv. UNION OF INDIA 847
[T.S. THAKUR, J.]
'government' or 'foreign State' or 'international inter- A
governmental organisations' only.
30. That brings us to the only other contention urged on
behalf of the appellants. It was argued that Section 364A to
the extent it denied to the Courts the discretion to award a B
sentence other than death or life imprisonment was ultra vires
of the right to life guaranteed to the appellants under Article 21
of the Constitution. Support for that proposition was drawn
from the decision of this Court in Mithu etc. v. State of Punjab
etc. (1983) 2 SCC 277whereby a Constitution Bench of this C
Court, struck down Section 303 of the IPC as unconstitutional.
It was urged that denial of judicial discretion to award a
sentence other than death was held by this Court to be a reason
good enough to declare the provision constitutionally invalid.
Since Section 364A, also did not leave any discretion with the D
Court in the matter of sentence except death or life
imprisonment, it was on a parity of reasoning liable to be struck
down as unconstitutional.
31. On behalf of the respondents, it was argued that E
Mithu's case (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 F
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 G
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 H
848 SUPREME COURT REPORTS [2015] 10 S.C.R.
A 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
B had been thoroughly examined in the criminal appeal filed by
the appellants including on the question of sentence to be
awarded to them. The issue whether a lesser punishment would
meet the ends of justice may arise in a given case where the
victim is released soon after he is kidnapped or abducted
C without doing any harm to him. But in the case at hand, the
victim was done to death which called for the extreme penalty
rightly awarded to the appellants upon consideration of the
relevant circumstances. Reference was also made to the
decisions of this Court in Mal/eshi v. State of Karnataka
0
(2004) 8 SCC 95; Suman Sood · @ Kamal Jeet Kaur v.
State of Rajasthan (2007) 5 SCC 634; Vinod v. State of
Haryana (2008) 2 SCC 246 and Akram Khan v. State of
West Bengal (2012) 1SCC406, in which too life sentence
E was awarded even when the victim was released unharmed. It
was lastly argued that courts must show deference to
parliamentary wisdom underlying a legislation and as far as
possible avoid interference with the quantum of sentence
prescribed by law unless of course the same was so
F outrageously brutal, barbaric or disproportionate as to be
unacceptable by any civilised society. That not being the case
at hand, there was no compelling need for thiE Court to
interfere, argued the learned Counsel.
G 32. In Mithu's case (supra), this Court had before it a
challenge to the constitutional validity of Section 303, which
prescribed but one sentence for an offender who committed a
murder while undergoing a sentence of imprisonment for life.
This Court struck down Section 303 of the IPC holding that
H there was no rational basis for classifying persons who
VIKRAM SINGH @VICKYv. UNION OF INDIA 849
[T.S. THAKUR, J. ]
committed murder while they are under a sentence of life A
imprisonment and those who are not under any such sentence
for purposes of awarding to the former category a mandatory
death sentence. The Court held that Section 303 assumed
that life convicts are a dangerous breed of humanity as a class,
without there being any scientific data for such an assumption. B
This Court further found that prescription of a mandatory death
sentence for the offence of murder as a second offence merely
for the reason that the offender was under a sentence of life
imprisonment for the first such offence is arbitrary and
unreasonable, and that mandatory death sentence would not C
seNe any social purpose. The motivation of the two offences
may be different, the circumstances in which they may be
committed may be different and even the ~o offences may
be basically different genre. This Court also found that there
0
was no rational distinction between a person who commits
murder while undergoing the sentence of life imprisonment and
another who does so after he has already undergone such
sentence. This Court in the above backdrop took the view that
the mandatory death sentence deprived the Court of its wise E
and beneficial discretion in the matter of life and death, making
it harsh, unjust and unfair.
33. The above features, noticed by this Court in Mithu's
case (supra), are not present in the case at hand for Section F
364A does not mandate a death sentence as was the case
with Section 303 of the IPC. In Section 364A, the Court enjoys
the discretion whether to award the extreme penalty of death
or the lesser alternative of a life imprisonment. There is also
no element of any discrimination between persons who commit G
the offence, like the one noticed by this Court in Mithu's case ·
(supra). Whether life or death would be the proper sentence is
in the absolute discretion of the Court which the Courts are
expected to exercise wisely having regard to the facts of the
ca~e and the gravity of the offence and its severity or barbarity. H
'
850 SUPREME COURT REPORTS [2015] 10 S.C.R.
A To that extent, there is indeed no comparison between Mithu's
case (supra) and the case of the appellants who have been
awarded death sentence not because the law so mandated
but because this Court after considering the attendant
circumstances found that to be the only sentence which would
B meet the ends of justice . .This is evident from the following
passages appearing in the judgment of this Court in the criminal
appeal filed by the appellants [Vikram Singh & Ors. v. State
of Punjab (2010) 3 SCC 56]:
c "56. Much argument and passion have been expended
by the learned counsel as to the propriety of the death
sentence in the facts of the case. Mr Sharan has
emphasised that as the prosecution story rested on
circumstantial evidence, this fact by itself was a relevant
D consideration in awarding the lesser sentence. It has
also been pleaded that the appellants were all young
persons and the possibility that they could be reformed
during their incarceration could not be ruled out and
this too was a factor which had to be considered in
E awarding the sentence.
57. Mr. Sharan has also referred us to Dhondiba Gundu
Pomaje v. State of Maharashtra (1976) 1 SCC 162 that
an accused of young age should not ordinarily be meted
F out a death sentence. Reference has also been made
by Mr Sharan to some observations in Bachan Singh
v. S{ate of Punjab (1980) 2 SCC 684 that the mitigating
circumstance in favour of an accused must also be
factored in. It has also been pleaded that the additional
G circumstance in favour of Sonia was that she was not
only young but she was also a lady and as it was
possible that she had been influenced into the
unpleasant situation by her husband, the death
sentence should not be given to her in any case. Mr
H
Sharan has also piaced reliance on two recent
VIKRAM SINGH@VICKYv. UNION OF INDIA 851
[T.S. THAKUR, J.]
judgments of this Court in Santosh Kumar A
Satishbhushan Bariyar v. State of Maharashtra (2009)
6 SCC 498 and Sushi/ Kumarv. State of Punjab (2009)
10 sec 434 whereby it has been indicated that the
latest trend in jurisprudence was that the death penalty
should not be awarded except in the most extraordinary B
of cases and that the position and background of the
appellant-accused was to be kept in mind in evaluating
the circumstances for and against· the imposition of the
death sentence. ·
c
58. These submissions have been strongly controverted
by Mr. Jaspal Singh and Mr. Ku/deep Singh, the teamed
counsel representing the complainant and the State of
Punjab respectively. It has been emphasised that
Sections 364-A and 302 both provided for the D
imposition of a death sentence and as kidnapping for
ransom was perhaps the most heinous of offences, no
latitude should be shown to the appellants as they had
poisoned a young boy to death for money The teamed
counsel have also placed reiiance on Henry E
Westmuller Roberts v. State of Assam (1985) 3 SCC
291 and Mohan v. State ofT.N. (1998) 5 SCC 336 where
the kidnap victim was a young boy and had
subsequently been done to death, the Court had F
awarded the. death penalty.
xxxxxxxxxxxxxxxxxxxxxxxxxxx
64. A plain reading of the Objects an,d Reasons which
led to the amendment shows the concern of Parliament G
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 has become a lucrative and thriving industry H
852 SUPREME COURT REPORTS [2015] 10 S.C.R.
A all over the country which must be dealt with in the
harshest possible manner and an obligation rests on
the courts as well. The courts to lend a helping handin
that direction.
B 65. 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 r:elevant that even before the aforesaid
amendments, this Court in Henry case (1985) 3 sec
C 291 observed that death sentence could be awarded
even in a case of kidnapping and murder based on
circumstantial evidence holding that: (SCC p. 313, para
40)
D "40. . .. We are of the opinion that the offences
committed by Henry, the originator of the idea of
kidnapping children of rich people for extracting
ransom, are very heinous and pre-planned. He had
been attempting to extract money from the unfortunate
E boy's father,· PW 23 even after the boy 'had been
murdered by making the father to believe that the boy
was alive and would be returned to him if he paid the
ransom. In our opinion, this is one of the rarest of rare
cases in which the extreme penalty of death is called
F for the murder of the innocent young boy, Sanjay in cold
blood after he had been kidnapped with promise to be
given sweets. We, therefore, confirm the sentence of
death and the other sentences awarded to Henry by
the High Court under Sections 302, 364, 201 and 387
G /PC and dismiss Criminal Appeal No. 545of1982 filed
by him."
66. Moreover, as already indicated, we have the
eyewitness statement of PW 13 Baljeet Saini with regard
H to the kidnapping of Abhi Verma from outside the
VIKRAM SINGH@ VICKYv. UNION OF INDIA 853
[T.S. THAKUR, J.]
school. A
67. Likewise, in Mohan case (1998) 5 SCC 336 which
again related to a kidnapping for ransom and murder
under Sections 364-A and 302 of a young boy aged
ten years, while assessing the aggravating and B
mitigating circumstances, it was observed that the
former far outweighed the others. It was held as under:
(SCC p. 343, para 14)
"14. So far as appellant Gopi is concerned, he not only c
did participate by pulling the rope around the neck of
the boy, as already narrated, but went to his house and
brought a coir rope. After removing the rope from the
neck of the boy, he encircled the coir rope again around
the boy's neck and pulled the said rope for about half a o
minute and the boy stopped breathing. Thereafter he
took out one Keltron TV box from underneath the cot
and packed the boy in the box. These aggravating
circumstances on the part of accused Mohan and Gopi
clearly demonstrate their depraved state of mind and E
the brutality with which they took the life of a young boy
It further transpires that after killing the boy and
disposing of the ctead body of the boy, Mohan also did
not lose his lust for money and got the ransom of Rs 5
lakhs." F
68. We must also emphasise that in this tragic scenario
and in the drawing up of the balance sheet, the plif]ht of
the hapless victim, and the abject te"or that he must
have undergone while in the grip of his kidnappers, is G
often ignored. Take this very case. Abhi Verma was only
16 years of age, and had been picked up by Vikram
Singh who was known to him but /:Jad soon realised the
predicament that he faced and had shouted for help.
His terror can further be visualised when he would have H
854 SUPREMECOURT REPORTS' [2015] 10 S.C.R.
A heard the threatening calls to his father and seen the
preparations to do away with him, which included the
taping of his mouth and the administration of an
overdose of dangerous drugs. The hon-or, distress and
the devastation felt in the family on the loss of an only
B son, can also be imagined."
34. Reliance upon Mithu's case (supra) does not,
therefore, help the appellant in their challenge to the vires of
Section 364A. Having said that, we must add that a legislation
C is presumed to be constitutionally valid with the burden of
showing the contrary lying heavily upon any one who challenges
its validity. Not only that, courts show due deference to the
parliamentary wisdom and exercise self restraint while
examining the vires of legislations validly enacted. Reference
D may in this regard be made to the decision of this Court in
Maru Ram v. Union oflndla & Ors. (1981) 1SCC107where
FazalAli, J. in his concurring judgment observed:
"93. Thus, on a consideration of the circumstances,
E mentioned above, the conclusion is inescapable that
Parliament by enacting Section 433-A has rejected the
reformative character of punishment, in respect of
offences contemplated by it, for tf]e time being in view
of the prevailing conditions in our country. It is well
F settled that the legislatufe understands the needs and
requirements of its people much better than the courts
because the Parliament consists of the elected
representatives of the people and if the Parliament
decides to enact a legislation for the benefit of the
G people, such a legislation must be meaningfully
construed and given effect to so as to subserve the
purpose for which it is meant."
35. Reference may also be made to the decision of this
H Court in Bachan Singh v. State of Punjab (1980) 2 SCC
VIKRAM SINGh@V!CKYv. UNION OF INDIA 855
[T.S. THAKUR, J.]
684where Sarkaria, J. speaking for majority observed: A
"175. We must leave unto the Legislature, the things
that are Legislature's. "The highest judicial duty is to
recognise the limits on judicial power and to permit the
democratic processes to deal with matters falling outside B
of those limits." As Judges, we have to resist the
temptation to substitute our own value-choices for the
will of the people. Since substituted judicial "made-to-
order'' standards, howsoever painstakingly made, do
not bear the people's imprimatur, they may not have C
the same authenticity and efficacy as the silent zones,
and green belts designedly marked out and left open
by Parliament in its legislative planning for fair play of
judicial discretion to take care of the variable,
unpredictable circumstances of the individual cases, D
relevant to individualised sentencing. When Judges,
acting individually or collectively, in their benign anxiety
to do what they think is morally good for the people,
take upon themselves the responsibility of setting down
social norms of conduct, there is every danger, despite E
their effort to make a rational guess of the notions of
right and wrong prevailing in the community at large
and despite their intention to abide by the dictates of
mere reason, that they might write their own peculiar F
view or personal predilection int-0 the law, sincerely
mistaking that changeling for what they perceive to be
the community ethic. The perception of "community"
standards or ethics may vary from Judge to Judge. In
this sensitive highly controversial area of death penalty, G
with all its complexity, vast implications and manifold
ramifications, even all.the Judges sitting cloistered in
this Court and acting unanimously, cannot assume the
role which properly belongs to the chosen
representatives of the people in Parliament, particularly H
856 SUPREME COURT REPORTS [2015] 10 S.C.R.
A when Judges have no divining rod to divine
accurately the will of the people. In Furman 408 US
238 ((1992), the Hon'ble Judges claimed to articulate
the contemporary standards of morality among the
American people .. But speaking through public
B referenc:/a, Gallup Polls and the State legislatures,
the American people sharply rebuffed them. We must
draw.a lesson from the same."
36. To the same effect are the observations made by
C this Court in State ofM.P. v. Bala alias Balaram (2005) 8
SCC 1 where this Court said:
"12. The punishments prescribed by the Penal Code
reflect the legislative recognition of the sbcial needs,
o the gravity of the offence concerned, its· impact on
the society and what the legislature considers as a
punishment suitable for the particular offence. It is
necessary for the courts to imbibe that legislative
wisdom and to respect it."
E
37. In a Parliamentary democracy like ours, laws are
enacted by the Parliament or the State legislature within their
respective legislative fields specified under the Constitution.
The presumption attached to these laws is that they are
F meant to cater to the societal demands and meet the
challenges of the time,·for the legislature is presumed to be
supremely wise and.aware of such needs and challenges.
The means for redressing a mischief are also in the realm
of legislation and so long as those means are not violative·
G of the constitutional provisions or the fundamental rights of
the citizens, the Courts will show deference towards them.
That, however, is not to say that laws that are outrageously
barbaric or penalties that. are palpably inhuman or
shockingly disproportionate to the gravity of the offence for
H which the same are prescribed cannot be interfered With.
VIKRAM SINGH @VICKYv. UNION OF INDIA 857
[T.S. THAKUR, J. ]
As observed by Chandrachud, CJ in Mithu's case (supra) A
if the Parliament were tomorrow to amend the IPC and
make theft of cattle by a farmer punishable with cutting of
the hands of the thief, the Courts would step in to declare
the provision as constitutionally invalid and in breach of the
right to life. The Court observed: B
"6 ......................................... .
Two instances, undoubtedly extreme, may be taken
by way of illustration for the purpose of showing how c
the courts are not bound, and are indeed not free, to
apply a fanciful procedure by a blind adherence to
the letter of the Jaw or to impose a savage sentence.
A law providing that an accused shall not be allowed
to lead evidence in self-defence will be hit by Articles o
14 and 21. Similarly, if a law were to provide that the
offence of theft will be punishable with the penalty of
the cutting of hands, the law will be bad as violating
Article 21. A savage sentence is anathema to the
civilized jurisprudence of Article 21. These are, of E
course, extreme illustrations and we need have no
fear that our legislatures will ever pass such laws. But
these examples serve to illustrate that the last word
on the question of justice and fairness does not rest
with the legislature. Just as reasonableness of F
restrictions under clauses (2) to (6) of Article 19 is for
the courts to determine so is it for the courts to decide
whether the procedure prescribed by a law for
depriving a person of his life or liberty is fair, just and
reasonable." G
38. That punishment must be proportionate to the
offence is recognised as a fundamental principle of criminal
jurisprudence around the world. In Weems v. United States·
.(217 US 349; 54 L.Ed 793; 30 S. Ct 544 (1910) the H
858 SUPREME COURT REPORTS [2015] 1OS.C.R.
A petitioner had been convicted for falsifying a public
document and sentenced to 15 years of what was described
as 'cadena temporal', a form of imprisonment that included
hard labour in chains and permanent civil disabilities. The
US Supreme Court, however, declared the sentence to be
B cruel not only in terms of length of imprisonment but also in
terms of shackles and restrictions that were imposed by it.
That punishment for crime should be graduated and
proportionate to the offence, is a precept of justice, declared
the Court.
c
39. That decision was followed by Enmund v. Florida
647 458 US 782 (1982) where the Court held that death
penalty was excessive for the felony of murder where the
petitioner did not take life, attempt to take life or intend that
D life be taken or that lethal force be used. In Cokerv. Georgia
433 US 584 (1977) US Supreme Court held sentence of
death to be grossly disproportionate and excessive for the
crime of rape. In Herman Solem v. Jerry Buckley Helm
463 US 277, 77 Led 2d 637, 103 S Ct 3001, the US
E Supreme Court was dealing with a case where Helm was
found guilty of what is described as "uttering a no account
check" for 100 dollars, ordinarily punishable with
imprisonment for a period of five years and a fine of 5000
F dollars but was sentenced under the recidivist statute of
South Dakota to undergo imprisonment for life. The question
that fell for determination was whether the sentence was
disproportionate to the crime committed by Helm. The Court
by majority held that the general principle of proportionality
G was applicable as much to sentence of imprisonment as it
was to capital sentences and that while applying the
proportionality principle in capital cases, the Court had not
drawn any distinction between capital cases, on the one
hand, and case of imprisonment, on the other, even when
H the penalty of death differs from all other forms of punishment
VIKRAM SINGH @VICKYv. UNION OF INDIA 859
[T.S. THA~UR, J. ]
not in degree but in kind. The Court held that decisions A
rendered in capital cases were not of much assistance while
deciding the constitutionality of punishments in non-capital
cases, with the result that outside the context of capitat
punishment, successful challenges to the-proportionality of
sentences were exceedingly rare. That did not, observed B
the Court, however, mean that proportionality analysis was
entirely inapplicable to the non-capital cases. The Court
summed-up its conclusion regarding the doctrine of
proportionality as applicable to cases involving sentence
of imprisonment in the following words: C
"[6a, 7, BJ In sum, we hold as a matter of principle
that a criminal sentence must be proportionate to the
crime for which the defendant has been convicted.
Reviewing courts, of course, should grant substantial D
deference to the broad authority that legislatures
necessarily possess in determining the types and
limits of punishments for crimes, as well as to the
discretion that trial courts possess in .sentencing
convicted criminals. But no penalty is per se E
constitutional. As the Court noted in Robinson v.
California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct
1417, a single day in prison may be unconstitutional
in some circumstances."
F
40. More importantly, the Court recognised the following
guiding principles for determining whether the sentence of
imprisonment was disproportionate to the offence allegedly
committed by the accused~
G
'T1 OJ In sum, a court's proportionality analysis under the
Eighth Amendment should be guided by objective
criteria, including (i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii) the · H
860 SUPREME COURT REPORTS [2015) 10 S.C.R.
A sentences imposed for commission of the same crime
in other jurisdictions."
41. Applying the above principles to the case before it,
the Court declared:
B
"[1c] The Constitution requires us to examine Helm's
sentence to determine if it is proportionate to his crime.
Applying objective criteria, we find that Helm has
received the penultimate sentence for relatively minor
c criminal conduct. He has been treated more harshly
than other criminals in the State who have committed
more serious crimes. He has been treated more harshly
than he would have been in any otherjurisdiction, with
the possible exception of a single State. We conclude
D that his sentence is significantly disproportionate to his
crime, and is therefore prohibited by the Eighth
Amendment. The judgment of the Court of Appeals is
accordingly affirmed."
E 42. More recently in Ronald Allen Harrrielin v.
Michigan 501 US 957 the U.S. Supreme Court revisited
the approach to be adopted while determining the question
of constitutionality of sentences for non-capital offences.
This was a case where the petitioner was convicted for
F possessing 672 gms. of cocaine and sentenced to a
mandatory term of life in prison without possibility of parole.
The question that fell for consideration was whether the
mandatory life imprisonment was in consonance with the
Eighth Amendment to the U.S. Con_stitution. Kennedy, J. in
G his concurring judgment noted the view taken by the Court
in Weems v. United States (supra), Enmund v. Florida
458 US 782, Rummel v. Estelle 445 U.S 263, and Solem
v. Helm 463 US 277 to observe that although the said
decisions recognise the principle of proportionality, its
H precise contours remain unclear. The Court, based on a
VIKRAM SINGH@VICKYv. UNION OF INDIA 861
[T.S. THAKUR, J.]
conspectus of the decisions, formulated some common A
principles applicable in situations that required examination
of limits of proportionality. The first principle culled out from
the decisions earlier pronounced by the Court was that
prescribing punishment for crimes rests with the legislature
and not Courts and that Courts ought to show deference to B
the wisdom of the legislature. The Court observed:
"The first of these principles is that the fixing of prison
terms for specific crimes involves a substantive
penological judgment that, as a general matter, is C
"properly within the province of legislatures, not
courts." Rumel, supra, at 275-276, 63 L Ed2d 382,
100SCt1133. Determinations about the nature and
purposes of punishment for criminal acts implicate
difficult and enduring questions respecting the D
sanctity of the individual, the nature of Jaw, and the
relation between law and the social order. '~s a moral
or political issue [the punishment of offenders]
provokes intemperate emotions, deeply conflicting
interests and intractable disagreements." D. Garland, E
Punishment and Modern Society 1 (1990). The
efficacy of any sentencing system cannot be
assessed absent agreement on the purposes and
objectives of the penal system. And the responsibility F
for making these fundamental choices and
implementing them lies with the legislature. See
Gore v. United States [51 US 999] 357 US 386,
393, 2 L Ed 2d 1405, 78SCt1280 (1958) ("whatever
views may be entertained regarding severity of G
punishment, whether one believes in its efficacy or
its futility ... these are peculiarly questions of
legislative policy). Thus, "[r]eviewing courts ... should
grant substantial deference to the broad authority that
legislatures necessarily possess in determining the H
862 SUPREME COURT REPORTS [2015) 1OS.C.R.
A types and limits of punishments for crimes." So/em,
supra, at 290, 77 L Ed 2d 637, 103 S Ct 3001. See
also Rummel, supra, at 274, 63 L Ed 2d 382, 100 S
Ct 1133 (acknowledging "reluctance to review
legislatively mandated terms of imprisonment");
B Weems, supra, at 379, 54 L Ed 793, 30 S Ct 544
("The function of the legislature is primary, its
exercises fortified by presumptions of right and
legality, and is not to be interfered with lightly, nor by
any judicial conception of their wisdom or propriety'?."
c
43. The second principle recognised by the Court was
that the Eight Amendment does not mandate adoption of
any one penological theory and that principles that guide
criminal sentencing have varied with the times.
D
44. 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
E 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
F 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
G proportionality of particular sentences are exceedingly rare.
The Court summed-up in the following words:
"[3b} All of these principles - the primacy of the
legislature, the variety of legitimate penologica/
H schemes, the nature of our federal system, and the
VIKRAM SINGH @VICKYv. UNION OF INDIA 863
[T.S. THAKUR, J. ]
requirement that proportionality review be guided by A
objective factors - inform the final one: The Eighth
Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only
extreme sentences that are "grossly
disproportionate ..... " B
45. In Ewing v. California [538 US 11] the US
Supreme Court held that it is enough if the state has a
reasonable basis for believing that its punishment advances
the goals of its criminal justice system in any substantial C
way. The Court upheld the sentence of life imprisonment
awarded to Ewing for theft o! three golf sticks because it
reflected a rational legislative judgment, entitled to
deference. The Court observed:
D
"Our traditional deference to legislative policy
choices finds a corollary in the principle that the
Constitution "does not mandate adoption of any one
penological theory." Id., at 999, 115 L Ed 2d 836,
111 S Ct 2680 (Kennedy, J., concurring in part and E
conrurring in judgment). A sentence can have a
variety of justifications, such as incapacitation,
deterrence, retribution, or rehabilitation. See 1 W
LaFave &A. Scott, Substantive Criminal Law 1.5, pp
30-36 (1986) (explaining theories of punishment). F
Some or all of these justifications may play a role in
ci State's sentencing scheme. Selecting the
sentencing rationales is generally a policy choice to
· be made by state legislatures, not federal courts.
G
xxxx xx xx xx xx
xx xx xx xx xx xx
Ewing's sentence is justified by the State's public-
safety interest in incapacitating and deterring H
864 SUPREME COURT REPORTS [2015] 10 S.C.R.
A recidivist felons, and amply supported by his own
long, serious criminal record. . . . . . . . . . To be sure,
Ewing's sentence is a long one. But it reflects a
rational legislative judgment, entitled to deference,
that offenders who have committed serious or violent
B felonies and who continue to commit felonies must
be incapacitated. The State of California "was
entitled to place upon [Ewing} the onus of one who is
simply unable to bring his conduct within the social
norms prescribed by the criminal law of the State."
c Rummel, supra, at 284 63 L Ed 2d 382, 100 S Ct
1133. Ewing's is not "the rare case in which a
threshold comparison· of the crime committed and
the sentence imposed leads to an inference of gross
disproportionality."
D
46. The Canadian view on the principle of proportionality
of sentence is no different. Several decisions of the
Canadian Supreme Court, have held proportionality of
punishment to the gravity of the offence to be a constitutional
E requirement. In R. v. Smith (1987) 1 SCR 1045, the
Supreme Court of Canada said:
"In assessing whether a sentence is grossly
disproportionate, the court must first consider the
F gravity of the offence, the personal characteristics of
the offender and the particular circumstam:es of the
case in order to determine what range of sentences
would have been appropriate to punish, rehabilitate
or deter this particular offender or to protect the public
G from this particula"r offender. The other purposes
which may be pursued by the imposition of
punishment, in particular the deterrence of other
potential offenders, are thus not relevant at this stage
of the inquiry. This does not mean that the judge or
H
VIKRAM SINGH @VICKYv. UNION OF INDIA 865
[T.S. THAKUR, J.]
the legislator can no longer consider general A
deterrence or other penological purposes that go
beyond the particular offender in determ/,1ing a
sentence, but only that the resulting sentence must
not be grossly disproportionate to what the offender
deserves." B
47. In R. v. Goltz (1991) 3 SCR 485, the Canadian
Supreme Court also recognised the principle that legislative
edicts as to quantum of punishment should not be lightly
upset. The Court observed: C
"Moreover, it is clear from both Smith and Lyons, that
the test is not one which is quick to invalidate
sentences crafted by legislators. The means and
purposes of legislative bodies are not to be easily o
upset in a challenge under s. 12.
xxx xxx xxx
This acknowledgement that sanctions serve
numerous purposes underscores the legitimacy of a E
legislative concern that sentences be geared in
significant part to the continued welfare of the public
through deterrent and protective aspects of a
punishment. This perspective is explicitly affirmed F
in R. v. Luxton per Lamer C.J. Thus, while the
multiple factors which constitute the Smith test are
aimed primarily at ensuring that individuals not be
subjected to grossly disproportionate punishment, it
is also supported by a concern to uphold other G
legitimate values which justify penal sanctions.
These values unavoidably play a role in the
balancing of elements in a S. 12 analysis."
48. In R. v. Fergusson (2008) 1SCR96, the Canadian H
866 SUPREME COURT REPORTS [2015] 10 S.C.R.
A Supreme Court held that for the Court to interfere with the
sentencing provision it was not enough to say that the
sentence was excessive. What must be demonstrated is
that the sentence is so outrageously disproportionate that
the Canadians would find the punishment abhorrent or
B intolerable. The following observations succinctly sum up
the test to be adopted:
"The test for whether a particular sentence constitutes
cruel and unusual punishment is whether the
C sentence is grossly disproportionate: R. v. Smith
(1987) 1 SCR 1045. As this Court has repeatedly
held, to be considered grossly disproportionate, the
sentence must be more than merely excessive. The
sentence must be "so excessive as to outrage
D standards of decency" and disproportionate to the
extent that Canadians "would find the punishment
abhorrent or intolerable".
49. To sum up:
E
(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
F
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.
G
(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.
H
VIKRAM SINGH@ VICKYv. UNION OF INDIA 867
[T.S. THAKUR, J. ]
(e) Courts, however, have the jurisdiction to interfere when A
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.
B
(f) Absence of objective standards for determining the
legality of the p_rescribed sentence makes the job of
the Court reviewing the punishment difficult.
(g) Courts cannot interfere with the prescribed punishment c
only because the punishment is perceived to be
excessive.
'"
(h) In dealing with questions of proportionality of
sentences, capital punishment is considered to be
0
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 E
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 F
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 G
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 H
868 SUPREME COURT REPORTS [2015) 10 S.C.R.
A 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
B economic gains but by terrorist organizations is what
necessitated the incorporation of Section 364A of the IPC
and a sfringent 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
C 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
D 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
E 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
F 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
G 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
H
VIKRAM SINGH@VICKYv. UNION OF INDIA 869
[T.S. THAKUR, J.]
for being described as barbaric or inhuman so as to infringe A
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 B
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 C
challenge has been mounted. Our answer is in the negative.
A~sumed 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 D
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
E
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 F.
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 G
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.
A sentence of death in a case of murder may be rare, but, if
the courts have, upon consideration of the facts and H
870 SUPREME COURT REPORTS [2015] 10 S.C.R.
A evidence, found that the same is the only sentence that can
be awarded, it is difficult to revisit that question in collateral
proceedings like the one at hand.
52. In the result this appeal fails and is, hereby,
B dismissed.
Nidhi Jain Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "kidnapping for ransom"Sign in to search