# • JOSEPH PETER v. STAIB OF GOA, DAMAN AND DIU

- **Citation:** [1977] 3 S.C.R. 771
- **Court:** Supreme Court of India
- **Decided:** 1977-05-04
- **Bench:** V. R. Krishna Iyer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joseph-peter-v-staib-of-goa-daman-and-diu-7247
- **Pages:** 4

## Headnote

771
C'rirninal Procedure Code, .1973. (Act II of 1974), Section 354(3)-Discretionary power to choose fretween capital sentence and life tenn is
a
limited
one-Leai·e should. be. refused when it is difficult to fault the court which has
lXercised such a po_w~er under Art. 136 of the Constitution.
Crifninal Procedure Code, 1898, Section 377-Scope of .
A'
B
. .Goa,
Daman
and Diu (Judicial
Commissioner's
Court)
Regulation.
1963-Regulation 8(1) does 1wt bar the referred jurisdiction of the
Judicial
C
Com1nissioner's Court.
-
-
Sentence-Extenuating
circumstances--Circumstance
that
the
accused
is a young man or that the sentence of death has been haunting him for
long
alone cannot entitle him for judicial cle1ne11cy.
-
The petitioner was convicted for the offence of murder under s. 302, I.P.C.
and sentenced to death by the Trial Court. The Judicial Commissioner, Goa
confirmed the death sentence in the referred trial under s. 374 of the 1898 Code
of Criminal Procedure.
Dismissing the special leave petition to appeal, the Court.
D.
RELD ·:- ( 1) ·Discretion to choose between the capital sentence
and
life
term under s. 354(3) of the 1973 Code of Criminal Procedure is limited. -Jf
the offence ha&-- been perpetrated with attendant aggravating circumstances, if
the pefpetrator disclOses· an eXtremely depraved state of mind and
diabolical
E
trickery in committing. the homicide; accompanied by brutal dealing with the
cadaver, infliction of death Penalty 'cannot be avoided. Special
leave
under
Art. 136 of the Constitution cannot be· granted when it is difficult to fault the
court on any ground, statutory ~-precedent~al. {772 G-H, 773 A]
Ediga Annamma, .AIR 1974 SC. 799, referred to.
(2) Section 377 of· 1g9g Code ot Criminal Procedure apPlies only to situations where the court at the lime of the confirmation of the death sentence
F
consists of two or "more Judges.. Section 4(1)(i:). of the -Code
of Criminal
Procedure, in relation to a Unfon ·Tetritory,y brings within the
definition
of
"High Court'', the highest coilrt of c.riminal -appeal for that area, namely, the
Judicial Commissioner's Court.
If, at the time the case for confirmation
of
death sentence is being heard, the Judicial ·commissioner's Court consists of
more than one Judge, at least two Judges must attest the confirmation. So
long as one Judicial Commissioner alone functions in the Court, section
377
\:i;'as not attracted. In the present case there is nothing illegal in a single (i.e.
G.
the only) Judicial Com.missioner deciding the reference. [773 D-FJ
(3) Referral jurisdiction under s. 377 is akin to appeal and
revision.
Regulation 8 ( 1) of the Goa, Daman and Diu (Judicial Commissioner's Court)
Reglllation 1963 does not disentitle the Judicial Commissioner from exercising
pov,rer _ u/s. 377, Cr.P.C. In the instant case, th<! Judicial Commissioner's confirrria!i~n of death sen!ence is not without jurisdiction. [774 C-D]
(4) -Judici:al clemency cannot attenuate the sentence .of death on the· sole
1:1
circumstance that the accused was. a. young man and the sentence · of death
been hauruing him fo~ .long withop.t pther supple_ment f~ctors or ~n th~ face of
surrounding beastly Clfcumstarices of the crone.
Possibly, P~es1dential power
wider but judicial powecis :erriba"ked. (774 E;F]
I0-7Q7SCI/77
772
SUPREME COURT REPORTS
(1977] 3 $.C.R.
A'

## Text

;
•
JOSEPH PETER
v.
STAIB OF GOA, DAMAN AND DIU
May 4, 1977
[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.J
771
C'rirninal Procedure Code, .1973. (Act II of 1974), Section 354(3)-Discretionary power to choose fretween capital sentence and life tenn is
a
limited
one-Leai·e should. be. refused when it is difficult to fault the court which has
lXercised such a po_w~er under Art. 136 of the Constitution.
Crifninal Procedure Code, 1898, Section 377-Scope of .
A'
B
. .Goa,
Daman
and Diu (Judicial
Commissioner's
Court)
Regulation.
1963-Regulation 8(1) does 1wt bar the referred jurisdiction of the
Judicial
C
Com1nissioner's Court.
-
-
Sentence-Extenuating
circumstances--Circumstance
that
the
accused
is a young man or that the sentence of death has been haunting him for
long
alone cannot entitle him for judicial cle1ne11cy.
-
The petitioner was convicted for the offence of murder under s. 302, I.P.C.
and sentenced to death by the Trial Court. The Judicial Commissioner, Goa
confirmed the death sentence in the referred trial under s. 374 of the 1898 Code
of Criminal Procedure.
Dismissing the special leave petition to appeal, the Court.
D.
RELD ·:- ( 1) ·Discretion to choose between the capital sentence
and
life
term under s. 354(3) of the 1973 Code of Criminal Procedure is limited. -Jf
the offence ha&-- been perpetrated with attendant aggravating circumstances, if
the pefpetrator disclOses· an eXtremely depraved state of mind and
diabolical
E
trickery in committing. the homicide; accompanied by brutal dealing with the
cadaver, infliction of death Penalty 'cannot be avoided. Special
leave
under
Art. 136 of the Constitution cannot be· granted when it is difficult to fault the
court on any ground, statutory ~-precedent~al. {772 G-H, 773 A]
Ediga Annamma, .AIR 1974 SC. 799, referred to.
(2) Section 377 of· 1g9g Code ot Criminal Procedure apPlies only to situations where the court at the lime of the confirmation of the death sentence
F
consists of two or "more Judges.. Section 4(1)(i:). of the -Code
of Criminal
Procedure, in relation to a Unfon ·Tetritory,y brings within the
definition
of
"High Court'', the highest coilrt of c.riminal -appeal for that area, namely, the
Judicial Commissioner's Court.
If, at the time the case for confirmation
of
death sentence is being heard, the Judicial ·commissioner's Court consists of
more than one Judge, at least two Judges must attest the confirmation. So
long as one Judicial Commissioner alone functions in the Court, section
377
\:i;'as not attracted. In the present case there is nothing illegal in a single (i.e.
G.
the only) Judicial Com.missioner deciding the reference. [773 D-FJ
(3) Referral jurisdiction under s. 377 is akin to appeal and
revision.
Regulation 8 ( 1) of the Goa, Daman and Diu (Judicial Commissioner's Court)
Reglllation 1963 does not disentitle the Judicial Commissioner from exercising
pov,rer _ u/s. 377, Cr.P.C. In the instant case, th<! Judicial Commissioner's confirrria!i~n of death sen!ence is not without jurisdiction. [774 C-D]
(4) -Judici:al clemency cannot attenuate the sentence .of death on the· sole
1:1
circumstance that the accused was. a. young man and the sentence · of death
been hauruing him fo~ .long withop.t pther supple_ment f~ctors or ~n th~ face of
surrounding beastly Clfcumstarices of the crone.
Possibly, P~es1dential power
wider but judicial powecis :erriba"ked. (774 E;F]
I0-7Q7SCI/77
772
SUPREME COURT REPORTS
(1977] 3 $.C.R.
A'
CRIMINAL APPELLATE JURISDICTION : Special
Leave
Petitiqn
(Criminal) No. 216/1977.
B
c
D
E
F
G
H
(From the Judgment and Order dated 28-9-1973 of the Judicial
Commissioner, Court, Goa Daman and Diu in Crl. Appeal No.
\
17 /72).
S. J. S. Fernadez, amicus curiae, for· the petitioner.
The Order of the Court was delivered by
KRISHNA IYER, J.-A death sentence, with all its dreadful scenario
of swinging desper,.tely out of the last breath of mortal life, is
an
excrutiating hour for the judges called upon to lend signature to this
macabre stroke of the executioner's rope.
Even so, judges
must
enforce the Jaws, whatever they be, and decide according to the best
of their lights, but the Jaws, are not always just and the lights
are
not always luminous.
Nor, again, are judicial methods always adequate to secure justice.
We are bound by the Penal Code and the
Criminal Procedure Code, by the very oath of our office.
Section 354(3) of the new Code gives the· convicting judge, on a
murder charge, a discretion to choose between capital sentence and
life term.
It is true that in the present Code, the unmistakable shift
in legislative, emphasis is on life imprisonment for murder as the rule
and capital sentence an exception, to be resorted to for reasons . to
be stated (Edige Annamma, 1974 SC 799, AIR).
Even so, the discretion is limited and courts can never afford to forget Benjamin
Cardozo's wise gnidance :
"The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure.
He is not a knighterrant roaming at will in pursuit of his own ideal of beauty
or of goodness. He is to draw his inspiration from consecrated
principles.
He is not to yield to spasmodic sentiment, · to
vague and unregnlated benevolence.
He is to exercise a
discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to 'the primordial
necessity of order in the social life.
Wide enough in all conscience is the field of discretion that remains."
(Cardozo : The Nature of the Judicial
Process : Wale
University Press ( 1921)).
We have heard counsel on the merits and perused the paper book
with some care and see no ground to disturb the conviction.
The
question of 'sentence' projects sharply before us and what we,
have
stated above turns our focus on circumstances justifying the graver
sentence.
The learned Sessions Judge has given valid reasons
as
to why he is imposing the death sentence.
The gnidelines laid down
by this Court, in its precedents which bind us, tell us that if the offence
has been perpetrated with attendant aggravating circumstances, if the
perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state
of the Jaw, avoiding infliction of the death penalty.
When discretion
has been exercised by the. trial Court and it is difficult to fault that
i
•
•
•
JOSEPH PETER v. GOA (Krishna Iyer, J.)
773
court on any ground, statutory or precedential, an appellate review and
A
even referral action become too narrow to demolish the discretionary
exercise of power by the inferior court.
So viewed, it is clear that
the learnd Judicial Commissioner has acted rightly in affirming
the
death sentence.
We are unable to grant 'leave on this score either.
Counsel for the petitioner has urged that the affirmation by the
Judicial Commissioner's court of Goa, Diu and Daman, of the Death
B
sentence is illegal.
According to him s. 377 of the old code (which
govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads :
"377.
In every case so submitted the confirmation ol
the sentence, or any new sentence or order passed by fhe
High Court, shall, when such Court consists of two or more
C
Judges, be made, passed and signed by at least two
of
them."
This section means, as we understand it, thai when the High
Court concerned consists of two or more judges, the confirmation or
other sentence shall be signed by at least two of them.
This provision obviously applies only to situations where ihe court, at the time
D
of the confirmation oi; the death sentence, consists of two or more
judges.
It
is
true
that
s.
4(1) (i)
in
relation
to a
Union
Territory
brings
within
the
definition
of
the
'High Court' the highest court of criminal appeal for that area viz.,
the Judicial Commissioner's court.
It therefore follows that if, at the
time ihe case for confirmation of the death senfence is being heard, the
Judicial Corumissioner's court consists of more than one judge,
at
E
least two judges must attest the confirmation.
In the present case
it is common ground that when the case was heard and judgment pronounced there was only one Judicial Commissioner, although the sanctioned strengtl1 was two.
So long as one Judicial Commissioner alone
functioned in the court, s. 377 was not attracted. The necessary
inference is that in the present case there is nothing illegal in a
Single (i.e. the only) Judicial C0U1U1issioner deciding the reference.
F
We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a deaili sentence invol~ is because
of the law's grave concern that human life shall not be judicially depnved unless at least two minds at almost the highest level are applied.
Even so, exceptional siiuations may arise where two judges are not
available in a High Court and, in that narrow contingency, the Code
permits what has now happened.
We cannot fault the judgment on
G
this ground either.
Counsel for the petitioner contends that the Criminal Procedure
Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law whi'ch prevails
against the general.
On that footing he argues tbat under Regulation 8 (1) the Court of the Judicial Commissioner shall have only
H
such jurisdiction as is exercisable in respect of Goa, Daman and Diu
by the Tribunal de Relacao.
According to him, the said Tribunal
did not have the powers of. confirmation of death
sentence,
and,
A
B
c
D
E
F
174
SUPREME COURT REPORTS
[1977] 3 s.c.11.
therefore, the judicial Commissioner cannot exercise such power.
He also argues that under the said provision the Judicial Commissioner·
is the highest Court of Appeal and Revision but not of Reference and
for that reason cannot exercise the pow~rs under section 377 of
the old Criminal Procedure Code.
We see 'no force in these twin
submissions.
A Code is complete and that marks the. distinction between a Code and an ordinary enactment.
The Criminal Procedure
Code, by that canon, is self-contained andl complete. It defines a
High Court which takes in a Judicial Commissioner's Court. (Section
4(1)(i).
We need not and indeed may not travel beyond the Code
into the territory of the Regulation.
Even otherwise, there is nothing
in Regulation 8(1) which helps the petitioner. It provides that
the Judicial Commissioner shall be the highest criminal Court, 'Appeal
and Revision' used in that provision are words of the widest import
and cover all proceedings which are not original proceedings
but
are by way of judicial review for a higher level.
Referral jurisdiction, under section 3 77, is skin to appeal and revision and we think
that Regulation 8(1) does not di~entitle the Judicial Commissioner
from exercising power under section 3 77 of the Code : nor are we
inclined to accept the submission that on the speculative assumption
that the Tribunal de Relacao did, not have the power to confirm death
sentences, and, therefore, the Judicial Commissioner, acting as the
High Court under the Code, cannot enjoy such power.
Regulation
8 (1) does not limit the jurisdiction of the Judicial Commissioner in
the sense counsel wants us to accept.
We therefore hold that the
Judicial Commissioner's confirmation of the death sentence is
not
without jnrisdiction.
Undeterred by the fact that the murder is grnesome counsel has
pleaded that at least on the question of sentence leave should be granted
because his client is a young man and the sentence of death has been
haunting him agonisingly for around six years. May be that such a
long spell of torment ;may be one circumstance in giving the lesser
sentence.
Even so, we have to be guided by the rulings of this·Court
which have not gone to the extent of holding that based on this"Circumstance alone, without other supplementing {actors or in the face ofi
surrounding beastly circumstances of the crime, judicial clemency can
attenuate the sentence-. Possibly, Presidential power is wider but judicial power is embanked.
We refuse special leave and dismiss the petition.
Petition dismissed: