# SHIV MOHAN SINGH v. STATE (DELHI ADMINISTRATION) March 10. 1977

- **Citation:** [1977] 3 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1976-07-02
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-mohan-singh-v-state-delhi-administration-march-10-1977-7176
- **Pages:** 10

## Headnote

Review-Exercise of the powers of Review inust be justified by lite co1npelling pressure of fresh circumstances within the limits of law-Suprenze Court
Rules. 1966 Order XI-Penal Code (1860) S. 302-Sentence-Validity of death
sentence.
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Criminal Procedure Code, 1973 (Act /I of 1974)-Section 235(2)-Right
to be heard al the stage of passing sentence-Considerations in sentencing.
The petitioner was convicted u/ s 302 I.P .C. and sentenced to death by
the trial court which was confirmed by the High Court.
The Special Leave
~pplication, to this Court was dismissed. A further petition for rehearing and
a review petition thereafter having been dismissed, a petition for directions
regarding remand of the case to the court of Sessions for reconsideration of
the sentence in !he light of s.235(3) of the Criminal Procedure Code 1973,
was made, simultaneously with mercy petitions to the President.
The mercy
petitions to the President and the petition for direction to this Court having
been rejected .. the petitioner's father moved the instant review petition.
Dismissin~ the petition the Court,
HELD : ( 1) This court's review power has repeatedly been invoked in
vain and n~tu1ally a further exercise of the same power must be justified by
the compelling pressure of fresh circumstances within the limits
of
law.
Recognised grounds such as manifest injustice induced by obvious' curial error
or oversight or new and important matter not reasonably within the ken
or
reach of the party seeking review on the prior occasion, may warrant inter~
E · ference to further justice.
(2) Under the Indian Penal Code death penalty has been ruled to be
constitutkmal. The law having sanctioned
it and this Court having refused
special leave against conviction and sentence in this very case, it is a vanquished
cause to argue for a vague illegality vitiating capital sentence as such.
[179 D-E]
Gregg v. Georoia, U.S. Supreme Court decided on July 2, 1976 held not
F
applicable.
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(3) In India under present conditions deterrence through death ptnalty
may not be a time-barred punishment in some frightful areas of barbarous.
murder.
Illuslratively the court has mentioned that the brutal features of the
criine and the hapless and helpless state of the victim steel the heart of
the
law to impose the sterner senten~. [180 A-B]
Ediga Annam1na v. State of A.P., [1974] 4 S.C.C. 443 explained.
( 4) The la\!;· is thus harsh and humane and when faced with arguments
about the so.:1ai invalidity of the death penalty the personal predilections
of
the judge n1ust bow to the raw.
The Bench with all its will to break through
is 't;ound by a jurisdictional servitude.
This fetter is that if there is no legal
ground for the alleged grievances the court cannot grant relief.
The court
enters a province of "powerless power'
1 and finds itself in a quandary between
codified law and progressive thought.
The latter beckons, but the former binds.
[180 B, 177 F-G]
(5) l:Iearing i~ obligatory at the sentencing stage under the new Criminal
Procedure Code.
The humanist principle of individualising punishment to
suit the person and his circumstances is best served by hearing the culprit even
on the nature and quantum of tho penalty to be imposed. [180 Fl
·~
'
SHIV MOHAN SINGH v. STATE {DELHI ADMN.) (Krishna Iyer, !.) 173
(6) The heinousness of the crime is a relevant factor in the choice of the
sentence.
The circumstances of the crime, especially social pressures \vhich
induce the crime 1;vhich may be epitomised as "a just sentence in an unjust
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society" are another considerations. The criminal. not the crime, must figure
prominently ir. shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.
Sombre sentencing is the Fifth Act in the tragedy of a murder
trial
and for the judges of the Supreme Court, assumes a grim seriousness
and
poignant gravity.
The Penal Code does not give: the judge a free hand wh

## Text

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172
SHIV MOHAN SINGH
v.
STATE (DELHI ADMINISTRATION)
March 10. 1977
(Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.]
Review-Exercise of the powers of Review inust be justified by lite co1npelling pressure of fresh circumstances within the limits of law-Suprenze Court
Rules. 1966 Order XI-Penal Code (1860) S. 302-Sentence-Validity of death
sentence.
~
c
D
Criminal Procedure Code, 1973 (Act /I of 1974)-Section 235(2)-Right
to be heard al the stage of passing sentence-Considerations in sentencing.
The petitioner was convicted u/ s 302 I.P .C. and sentenced to death by
the trial court which was confirmed by the High Court.
The Special Leave
~pplication, to this Court was dismissed. A further petition for rehearing and
a review petition thereafter having been dismissed, a petition for directions
regarding remand of the case to the court of Sessions for reconsideration of
the sentence in !he light of s.235(3) of the Criminal Procedure Code 1973,
was made, simultaneously with mercy petitions to the President.
The mercy
petitions to the President and the petition for direction to this Court having
been rejected .. the petitioner's father moved the instant review petition.
Dismissin~ the petition the Court,
HELD : ( 1) This court's review power has repeatedly been invoked in
vain and n~tu1ally a further exercise of the same power must be justified by
the compelling pressure of fresh circumstances within the limits
of
law.
Recognised grounds such as manifest injustice induced by obvious' curial error
or oversight or new and important matter not reasonably within the ken
or
reach of the party seeking review on the prior occasion, may warrant inter~
E · ference to further justice.
(2) Under the Indian Penal Code death penalty has been ruled to be
constitutkmal. The law having sanctioned
it and this Court having refused
special leave against conviction and sentence in this very case, it is a vanquished
cause to argue for a vague illegality vitiating capital sentence as such.
[179 D-E]
Gregg v. Georoia, U.S. Supreme Court decided on July 2, 1976 held not
F
applicable.
G
H
(3) In India under present conditions deterrence through death ptnalty
may not be a time-barred punishment in some frightful areas of barbarous.
murder.
Illuslratively the court has mentioned that the brutal features of the
criine and the hapless and helpless state of the victim steel the heart of
the
law to impose the sterner senten~. [180 A-B]
Ediga Annam1na v. State of A.P., [1974] 4 S.C.C. 443 explained.
( 4) The la\!;· is thus harsh and humane and when faced with arguments
about the so.:1ai invalidity of the death penalty the personal predilections
of
the judge n1ust bow to the raw.
The Bench with all its will to break through
is 't;ound by a jurisdictional servitude.
This fetter is that if there is no legal
ground for the alleged grievances the court cannot grant relief.
The court
enters a province of "powerless power'
1 and finds itself in a quandary between
codified law and progressive thought.
The latter beckons, but the former binds.
[180 B, 177 F-G]
(5) l:Iearing i~ obligatory at the sentencing stage under the new Criminal
Procedure Code.
The humanist principle of individualising punishment to
suit the person and his circumstances is best served by hearing the culprit even
on the nature and quantum of tho penalty to be imposed. [180 Fl
·~
'
SHIV MOHAN SINGH v. STATE {DELHI ADMN.) (Krishna Iyer, !.) 173
(6) The heinousness of the crime is a relevant factor in the choice of the
sentence.
The circumstances of the crime, especially social pressures \vhich
induce the crime 1;vhich may be epitomised as "a just sentence in an unjust
A
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society" are another considerations. The criminal. not the crime, must figure
prominently ir. shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.
Sombre sentencing is the Fifth Act in the tragedy of a murder
trial
and for the judges of the Supreme Court, assumes a grim seriousness
and
poignant gravity.
The Penal Code does not give: the judge a free hand where
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n1urdcr has been n1adc out.
The choice is painfully-not quite scientifically
though-li1nitcd. to but two alternativeG. [173 P, 180 A-C]
<Jbserration : [Sentencing under the Indian scheme is not yet realistically
forward looking nor correctionally flexible, but Parliament in its wisdom n1ay
examine this inadequacy].
CRIMINAL APPELLATE JURISDICTION : Review Petition No. 2 of
C
1977.
(Petition for review of this Court's order dated 22-9-1976 in Cr!.
M.P. Nos. 1567, 1600-1601/76).
.
Sita/ A. K. Dhar, for the petitioner.
R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-If 'survival ·after death' may aptly describe any
litigative phenomenon,
the present review
proceeding
may
well
qualify for that quaint claim. The relief of. review "elates to the death
penalty imposed npon the petitioner by the trial court, confirmed in
appeal, and dismissed even at the stage of special leave by this Court.
In the ordinary course, judicial finality, has thus been affixed on the
capital sentence so awarded although Presidential clemency, which has
been, sought and negatived, may still be open unμer Article 72 of
Constitution.
Mercy, like divinity, is amenable to unending exercise
but in this mundane matter it is for the Head of State to act and not
for the apex Court.
Sombre sentencing is the Fifth Act in the tragedy of a murder trial
and, for the Judges of the Supreme Court, aswmes a grim seriousness
and poignant gravity since the petitioner's final appeal for
judicial
commutation, if rejected, may perhaps prove imminently fatal to his
life. Even so, when we chronicle the events connected with the judicial proceedings in this Conrt it will be realised that our review power
has repeatedly, been invoked in vain and naturally a further exercise
of the same power must be justified by the compelling pressure
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fresh circumstances within the limits of the law.
The nature of. the
judicial process, even at the tallest tower; is such that, to use Gardozo's
elegant expressions, 'a jqdge even when he is free, is still not wholly
. free; he is not to innovate at pleasure; he is not a knight-errant, roaming at will in pnrsuit of his own ideal of beanty or of goodness; he
is to draw inspiration from consecrated principles'. Where the Jndge's
values and those prevailing in society clash, the
judge must, in
theory, give way to the 'objective right'.
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The focus, therefore; must turn on the existence of grounds
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manifest miscarriage of justice unavailable on the earlier occasions.
Before that, a brief reference may be made to the 'criminal' facts.
A treacherous murder of a tender school-boy by the petitioner, the
circumstances of which were so heartless and heinous, terminated
condiguly at the trial court and the High Court; the extreme penalt)l
having been visited on the offender for his horrendous killing.
This
Court refused special leave to appeal, drawing the dark curtain on
· the criminal proceedings.
The petitioner struggled to extricate himself from the executioner by a sequence of desperate steps.
On his
behalf, a motion for re-hearing the special leave petition was fruitlessly made to this Court. A review petition was made again to this
Court in vain. Yet another, out of the same motive but with modified
reliefs, was made and dismissed.
Then followed an application for
directions regarding remand of the case to the court of sessions for
reconsideration of the sentence in the light of s. 235(3) of the Code
of Criminal Procedure, 1973.
Dismissal of this proceeding did not
deter the petitioner from persisting in moving this Court. That is
how the present review petition has been put in on his behalf by his
father.
Mercy petitions to the President punctuated the court proceedings
but they too were turned down.
The ·convict, nevertheless, clung on
and, as stated earlier, his pathetic persistence in the plea for commutation has been pressed before us by counsel on two scores.
He has
urged that a decision of this Court in Santa Singh v. State of
Punjab(') of which he was not aware at the earlier stages entitles
him to a remand to the Sessions Court for reconsideration of the
sentence of death.
Secondly, he has also pressed upon us personal
and social circumstances which have received jndicial approval as
justifying the imposition of the lesser sentence of life
imprisonm~nt
even where the offence of murder has been made out.
In the ordinary course, the supplicant's forensic battle for life must
be repelled ·by us since this Court has refused leave, rejected review
petitions and denied reconsideration.
Even so, realising that by this
prolonging proceeding he is longing for dear life and clutching at legal
straws, we have desisted from a dramatic rejection of the petition outP,ght, anxious to set if there be some tenable ground which reasonably warrants judicial interdicts to halt the hangman's halter.
We
were willing to strain, within permissible limits, to blend leniency with
legality.
'The last breath' is the last hold of the law on the Jiving
to do justice and at that point judges, while hating the crime, do not
hate the man who committed it, such being the humanism of penal
justice. Circuit Judge Christmas Humphreys told the B.B.C. Reporter
recently that a judge looks "at the man in the dock in a different way,
not just a criminal to be punished, but a fellow human being, another
form of life who is also a form of the same one life as oneself'. In
the context of Karuna and punishment for Karma the same Judge
said:
(I) Criminal Appeal No. 230of1976 decided on 17-8-76.
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SHIV MOHAN SINGH 11. STATE (DELHI ADMN.) (Krishna Iyer, !.) 1 75
"The two things
are not incompatible.
You
do
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punish him for what he did, but you bring in a quality of
what is sometimes called mercy, rather than an emotional
hate against the man for doing something harmful.
You
feel with him; that is what compassion means."
(The Listener, d/25.11.1976, P. 692)
But if the harsh frontiers of the criminal are clearly drawn, to travel
beyond is out of bounds. for the court.
The focus of counsel's first submission was turned on the compassion of the Code of Criminal Procedure, 1972 which obligates the
court, under section 235, to hear the ·convict on the question of sentence.
The provision is salutary although its 11pplication to the present case is moot, in. the light of section 484 of the Code.
Witlfout
pausing to decide wl1ether the new Code applies, we have extended
to the petitioners the benefit of the benignant provision and allowed his
·counsel to present the circumstances he relies on to activate our commiserative jurisdiction.
lt is true that the New Code provides many additional facilities for
persons accused of crim~, the paramount idea being to avoid an innocent man being mistakenly found guilty or punished disproportionately.
In the present case, the conviction has become conclusive and.
only the question of sentence is being argued for extenuating consideration.
Even so, sometimes one is led to wonder whether the
words of Learned Hand have some relevance to the Indian system.
The learned Judge said of the American system :
"Under our criminal Procedure, the accused has every
advantage.
While the prosecution is held rigidly to the
charge, the accused need not disclose the barest outline of
his defence.
He is immune from questioning or comment
on his silence; he cannot be convicted when there is the
least fair doubt in the minds of anyone of the 12 Jurers.
Our procedure has always been haunted by the ghost of the
innocent man convicted. It is an unreal dream. What w~
need to fear is the archaic formalism
and
the
watery
sentiment that obstructs, delays and defeats the prosecution
of crime".
We advert to this aspect only to emphasize a sense of perspective
in the judiciary when applying the protective procedural provisions
of the Code.
Sentencing under the Indian scheme, is not yet realistically forward-looking nor correctionally flexible but Parliament in
its wisdom, may examine this inadequacy.
The penalty of death is an irrevocable process and naturally our
pensive thought was turned to the moral-jnral aspects of the utility
and futility of this dmdly sanction of State a_gainst citizen of hanging
a human being into a cold oadaver.
The miscellany of ideological-
~ociological-jural considerations, although not pertinent within the
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[1977] 3 S.C.R.
narrow horizon of a. court of law, has. a fascinating and portentous
significance when we remind ourselves that the Supreme Court goes
beyond chopping little .Jaw into spacious jurisprudence on great occasions and our Penal Code is itself under review before Parliament.
This prolegomenon to the principles of capital sentence is
our
alibi for a brief divagation into the basics of infliction of death as a
weapon of extinction society uses against its terribly deviant members
as beyond deterrence.
Is the death penalty a purposeful punitive
strategy or legitimate legal weapon, viewed against the advanced penological goals of reformation, deterrence and social defence? Why is
death terrifying and what are the objects of punishment served by its
infliction ?
.
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The. literature on doing ju'stice at the sentencing stage is profound
and proliferatin_g and penological controversy on death penalty has led
to a Great Divj_~e among sociologists, jurists and spiritualists. To go
eggregiously wrong on punishment is to commit the 'crime' of sentence,
r'"
and, naturally, since taking the life of the prisoner neither prevents him
nor reforms him (for he is no more), theorie's supporting
capital
punishment prove self-defeating.
Moreover, the irreversible step of
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extinguishing the offender's life leave society with no opportunity to
retrieve him if 'the conviction and ·punishment be found later to be
founded on . flawsome evidence' or the sentence is discovered to be
induced by some phoney aggravation, except the poor consolation of
posthumous rehabilitation as ha's been done in a few other countries
for which there is no procedure in our system.
May be, these are
campaign points of abolitionists against capital sentence.
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Envisioned from another fundamentally different angle, is
the
dread of death penalty a deterrant? Socrates would not recant, Jesus
would not plead, St. Joan would not deny-with the cup of poison,
bleeding crucifixion and burning 'stakes starting them in the face as
punishment.
Why, Higher Truth, acting through its inspired· agents,
taunts human law; for, then the body gives little purchase over the
soul, as Gandhiji demonstrated by defiance of British-Indian 'justice'.
And, more dramatically yet dimly, psychic, electronic and medical
explorations, scientifically conducted, are reportedly revealing through
fascinating flashes of research and recording and extraordinary but
tested investigations into rebirth, that death is only discarnation, not
utter dissolution, that after 'death' we survive and act in a demonstrable, subtle dimension of existence. No longer is this thesis projected as faith but sought to be proved as fact.
If, in the not distant
G · future, the greatest of all man's fears-fear of death-is dispelled by
the finding of noetic science proving that you live after 'death' and
can communicate with the 'living', that the confusion between discarnation and death can be scientifically explored and cleared, a revolution
in the penological programmes of society would have dawned.
The
trans-physical human future, as sciences unravel, may make our current penal strategies obsolescent.
At Court, current criminal law
binds us willy-nilly and we have to abandon the subject suggestively.
The basic issue 'What is death ?', may engage us psycho-crimino··
logically, although a wee-bit digressively for a moment, to assess the
SHIV MOHAN SINGH v. STATE (DELHI AoMN.) (Krishna Iyer, J.) I 77
social impact of the death penalty.
By and large, humankind holds
fast to the belief that death is a total extinction of dear life and views
its arrival through the executioner's rope or electric chair or firing
squad with awesome horror.
With poetic pragmatism, Shakespeare
expressed this common feeling when he referred, in tb.e context of
death, to 'that undiscovered country from whose iourn no traveller
returns'.
There are others, however--and among them are ancient
seers, modern-divines and several psychic researchers i.n institutes who
regard as super-sensory.
Reality or scientific v~rity that there is life
after life, that the phenonmenon of death may even have a liberating
effect, that the -grosser existence is in corporeal life and the subtler in
the incorporeal state and life-death-life is a continuum.
Our sages
assert with vision that 'dcathbound littleness is not all we are' and
great death as integral to the life process.
Many scientists are investigating what happens after death and lifting the dark veil with luminous evidence of ethenic survival.
Even so, most men-'even pious
ones-are earthy materialists, and, in our work-a-day world, fake it
an axiom that it is given to us to live but once.
The law, a people's
practical scheme, which operates on the behavioral patterns
and
psyche of the humdrum run of mortals, steers clear of super-scientific
and mystic maybes and grunds itself on the hard-headed realist's view
that the sentence of death is the maximum punishment as it puts the
criminal out of material existence.
Indeed, it. is a fiercely final step
for mortals and; in a sense, abhorrent because survival after death,
though slowly, murkily, falteringly, gaining scientific, ground, is still
suspect and has not made headway into the thoughtways of jurisprudes and legislators, rationalists and
practical people. If after-life
and re-birth are verities, as many noetic scientists claim to prove
beyond easy dismissal both penology and criminology will undergo
re-evaluation.
For, as punishment 'death penalty' will cease
to be
terrible and criminologyically, crime will be inescapably punished in
this life or on re-birth.
These futuristic projections are of no practical consequence now.
Jurispmdence has to react to
and
build
upon established belief-systems, branches of human knowledge
and
behavioral sciences.
But these problems are more Tomorrow's challenge to philosophers, spiritualists, social and mental scientists, fundamental thinkers,
parliamentarians and penal reformers.
The B,ench, with all its will
to break-through, is bound by a jurisdictional servitude.
This fetter
· s, as stressed by Government counsel, that if there is no legal ground
_er the alleged grievance, the Court cannot grant relief.
The Court
enters a province of 'powerless power' and finds itself .in a quandary
between codified law and progressive thought.
The latter . beckons,
but the former binds.
We divagated into the import and portent of life and after-life
on capital sentence not because these distant, dubious searches have
immediate legal standing but merely to show how we may be swept
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off our feet if we chase 'tomorrow' theories, especially since law in
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court is hard realism.
To-day for the condemned prisoner, the day
of execution is the dreadful last day of life.
Even so, critics like
Becearia have said 'the death penalty cannot be useful, because of
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[19771 3 s.c.R.
the example of barbarity it gives men. . . . It seems to me absurd that
laws which are an expression of the public will, which detest and
punish homicide, should themselves commit it'. On the other hand,
the deterrent and retributive theorists prevail amongst penologists and
lextalionis continues in sublimated form Orthodox
jurists
have
shared the view of Genesis 9: 6: "Whosoever sheddeth a man's
blood, so shall his blood be shed." To epitomize, in this blurred
area of criminal jurisprudence we are lost in the conflict between
ideals, theories and research findings and the subject remains so fluid
that legislative decision-making and jurisprudential debate must crystallize into a Code before the Court can activise these norms
or
incorporate them as judge-made l!!w.
The plea of counsel against death penalty has topical flavour and
echoes the recent American debate. To abbreviate the discussion,
we content ourselves with adverting to the judicial divisio'! of opinion
in the Supreme Court of U.S.A. in Gregg v. Georgia (decided on July
2, 1976) wherein Mr. Justice Brennan, in his dissenting judgment,
drove home his point thus :
"I emphasi~e only that foremost among
the
'moral
concepts' recognized in our cases and inherent in the clause
is the primary moral principle that the state, even as
it
punishes, must treat its citiz~_!I~ in a manner consistent with
their intrinsic worth as human beings a pnnis.hment must
not be so severe as to be degrading to human dignity.
A
judicial determination whether the
punishment of
death
comports with human dignity is. therefore not only permitted
bnt compelled by the clause.
Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it
serves no penal purpose more effectively than a less severe
punishment; therefore the principle inherent in the clause
that prohibits pointless infliction of excessive punishment
when less severe punishment can adequately achieve the
same purposes invalidates the punishment."
Mr. Justice Marshall added the weight of his opinion :
"The ~wo . purposes that . sustain the death penalty as
non-excessive m the court's view are general deterrence and
retribution.
The Enrlich study, in short,
is of little,
if any assistance in assessing the deterrent impact of the death penalty.
The evidence I reviewed in Furman remains convincing,
in my view, that 'capital punishment is not necessary as a
deterrent to crime in onr society'.
The justification for the
death penalty must be found elsewhere.
H
The other principal purpose said to be served by the
death pena!ty is retribution.
The notion that retribution
can serve as a moral justification for the sanction of death
finds credence in the opinion of my brothers Stewart, Powell,·
•
SHIV MOHAN SINGH v. STATE (DELHI ADMN.) (Krishna Iyer, J.)
179
and Stevens, and that of my brother White in Roberts v.
Louisiam. It is thh; notion that I find to be the most disturbiug aspect of to-day's unfortunate decision.
The foregoing contentions-that society's
expression
of moral ontrage through the imposition of the death penalty
pre-empts the citizenry from taking .the law into its ()Wn
hands and reinforces moral values-are not retributive in
the purest sense.
They are essentially utilitarian in that
they portray tjie death penalty as valuable because of its
beneficial results.
These justifications for the de_;ith penalty
are inadequate because the penalty is, quite clearly I think
not necessary to the accomplishment of those res_ults.
There remains for consideration, however, whar might
be termed the purely retributive justification for the death
penalty-that the death pen~lty is appropriate, not because
of ifs beneficial effect on society, but because the taking of
the murderer's life is itself morally good. Some of the language of the plurality's opinion appears positively to embrace
this notion of retribution for its own sake as a justification for
capital punishment."
These American views of eminent judges deserve deferential notice
but do not aid us in the decision of this Indian Appeal which relates
to implement!ltion of a valid sentence since, under the Indian Code,
death penalty. has been ruled to be constitutional.
The law having
sanctioned it and this Court having refused special leave against conviction and sentence. in this very case, it is a vanquished cause to
argue for a vague illegality vitiating capital sentence as such. To tbat
extent the pall must fall.
Counsel for the. petitioner brought to our notice a number of recent decisions of this Court where judges have expressed themselves
in favour of a sentcncill.g policy of life term as against death penalty.
In Ediga Annamma (1974 (4) SCC 443) the Court pointed to tli!e
retreat of death penalty as part of punitive strategy in many countries
of the world.
Counsel cited rulings of this Court to show that where
the murderer too young or too old or the haunting horror of being
hanged has been hovering over his head for a few years or the
condemned prisoner .is the sole bread-winner of the whole family, the
lesser sentence of life imprisonment should be the judicial choice.
He brought to our notice the social and personal circumstances in the
present case r~evant to the above approach.
Undoubtedly,
the
prisoner was a young man around 21 /22 years when he committed
the crime.
He claims that his young wife will be helpless, that upon
him depends t)1e family for livelihood, that his mother is blind, that
all of them will have a miserable, indigent life if the petitioner were
to be extinguished from earthly existence. He also emphasised that
since 1974 the sentence of death had been shattering his morale. It
· must, however, be pointed out that counsel for the State refuted some
of the more important of these grounds and went to the extent of
even stating that the petitioner's wifg had remarried.
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[1977] 3 S.C.R.
In Ediga Annamma this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally
clearly highlighted that in India under present conditions deterrence
through death penalty may not be. a time-barred punisb![lent in some
frightful areas of barbarous murder.
Illustratively, the
Court has
mentioned that the brutal features of the crime and the hapless and
helpless state of the victim steel the heart of the Jaw to impdse the
sterner sentence.
The Jaw is thus harsh and humane and when faced with arguments. about the social invalidity of the death penalty the personal
predilections of the Judge must bow to the law as by this Court
declared, adopting the noble words of Justice Stenley Mask of California uttered in a death sentence case : "As Judge, I am bound to
the Jaw as I find it to be and not as fervently wish it to be''.
(The Yale Law Journal No. 6, p. 1138).
A learned writer on the Indian Constitution has observed :-
" .... judges must enforce the laws, whatever they be,
and decide according to the best of their lights; but the
laws are not always jnst, and the lights are not always luminous.
Nor, again are judicial methods always adequate to
secure justice."
We have given deep consideration to the many circumstances pressed by the petitioner's counsel to review our earlier orders dismissing
review and refosing special leave to appeal.
While we agree that
Judges, like others are fallible and their findings are not 'untouchably' sacrosanct, we disagree that on an overall view of the many
circumstances of the crime and the criminal in the present case, the
sentence of death should be departed from.
Recognized grounds such as manifest injustice induced by obvious
curial error or oversight, or new and important matter not >easonably
within the ·ken or reach of the party seeking review on the prior
occasion, may warrant interference, to further justice.
The scenario
of events in this case rules out the arguments urged by counsel. Hear-
. ing is obli"'atory at the sentencing stage under the New Criminal
Procedure Code.
The humanist principle of individualising punishment to suit the person and his circumstances is best served by hearing is obligatory at the sentencing stage under the New Criminal
imposed.
In the present case, the date of commen;ement of
the
trial might rule out the applicability of the new Code. Moreover, he
bad already come to this Court seeking special leave to appeal at a
time when the new Code was in force.
He did not urge the ground
of denial of opportunity to be heard at the sentencing stage. Assuming indulgently in his favour that he came to know the correct law on
this branch only after the decision of this Court in Shallt Singh
(Supra), his earlier application for review wa·s disposed of after that
ruling was rendered by this Court.
Even then the present grievance
of non-hearing was not pressed.
He has missed the bns and his
contention based on the new Code is of doubtful substance.
Even so,
having regard to the compassion that must temper the rigour _of rigid
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SHIV MOHAN SINGH v. STATE (DELHI ADMN.) (Krishna Iyer, J.)
181
rules we have allowed counsel a fresh opportunity to put forward
A
before us, after taking instructiolls from his client, ?II the circumstances the Court should consider by way of ameliorative gesture and
reduction of th~ death penalty to a life term incaraceration. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, especially social pressures
which induce the clime which we may epitomise as 'a just sentence
in an unjust society' are another consideration. The criminal, not
B
the crime, must figure prominently in shaping the sentence where a
reform of the individual, rehabilitation into society and other measures
to prevent recurrence, are weighty factors.
The Penal Code
does
not give the Judge a free hand where murder has been made out.
The choice is painfully-not quite ·scientifically though-limited to
but two alternatives. We have given reasons why, as the law now
stands, we decline to de1j1olish the death sentence.
We, therefore,
C
dismiss the review petition.
The judicial fate notwithstanding, there are some circumstances
suggestive of a claim to Presidential clemency. The two jurisdictions
are different, although some considerations may overlap.
We parti-
~ularly mention this because it may_ still be open to the petitioner to
mvoke the mercy power of the President and his success or failure in
D
th~t endeavour may _decide the arrival or othe1wise of his doomsday.
With these observatlon·s we leave the 'death penalty' judicially 'untouched'.
-
s. R.
Review P'tition dismissed.
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