DEPARTURE/ CONTRADICTION IN SUPREME COURT JUDGMENTS

Subject Title: Criminal Law 3.3 Submitted to: Prof. (Dr.) G.S. Bajpai Dr. Vinod Kumar Mrs. Sarita Sangwan Submitted by: Akaant Kumar Mittal Roll N.:04 B.A.LLB. 2011

National Law University, Delhi

TABLE OF CONTENTS TABLE OF CASES ...................................................................................................................... i TABLE OF STATUTES ............................................................................................................ii CHAPTER I .................................................................................................................................. 1 INTRODUCTION ....................................................................................................................... 1
1.1 OVERVIEW ..................................................................................................................................... 1 1.2 RESEARCH QUESTION ............................................................................................................. 2 1.3 RESEARCH METHOD ................................................................................................................ 2 1.4 RESEARCH PLAN ........................................................................................................................ 2

CHAPTER II ................................................................................................................................ 6 ISSUE OF DEATH PENALTY ................................................................................................ 6

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra ............................................... 10

CHAPTER III ........................................................................................................................... 13 POWER OF COURT TO DIRECT/STOP INVESTIGATION .................................... 13 CHAPTER IV ............................................................................................................................ 18 CONCLUSION ......................................................................................................................... 18
RECOMMENDATIONS .................................................................................................................. 18

BIBLIOGRAPHY ...................................................................................................................... iii

TABLE OF CASES Additional District Magistrate Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207. Bachan Singh v. State of Punjab, AIR 1980 SC 898. Bantu v. The State of U.P., (2008) 11 SCC 113. Dayanidhi Bisoi v. State of Orissa, 2003 CriLJ 3697. Devender Pal Singh v. State of NCT of Delhi 2002 CriLJ 2034. Dhananjoy Chatterjee @ Dhana v. State of West Bengal, [1994] 1 SCR 37. Ediga Anamma v. State of A.P, (1974) 4 SCC 443 Greene v. Secretary of State for home affairs, (1942) A.C. 284. Harbans Singh v. State of Uttar Pradesh, (1982) 2 SCC 101. Devender Pal Singh v. State of NCT of Delhi, 2002 CriLJ 2034. Jaichand Loll Sethia v. State of West Bengal, [1966] Su. S .C. R. 464. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, 1965 AIR 1039. Liversidge v. Anderson, (1942) A.C. 206. M.C. Mehta v. Union of India, (2007) 1 SCC 110. Mohan Anna Chavan v. State of Maharashtra, (2008) 11 SCC 113. 2 5,6 10 10
10

9 6 3 8 10 4 2 3 14 10

Mrs. Rupan Deol Bajaj and another vs. Kanwar Pal Singh Gill and another, AIR 1996 SC 309. N. Nagendra Rao v. State of Andhra Pradesh, 1994 AIR 2663. Nirmal Singh Kahlon v. State of Punjab and Ors., (2009) 1 SCC 441. 16 2 13

Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, [2009] 9 SCR 90. 9 Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra, AIR 2009 SC 56. State of M.P. vs. Ramesh C. Sharma, (2005) 12 SCC 628 9 14

State of Punjab vs. Central Bureau of Investigation and Ors., AIR 2011 SC 2962. 15, 16 State of U.P. v. Sattan @ Satyendra and Ors., (2009) 4 SCC 736. State of West Bengal v. SN Basak, [1963] 2 SCR 52. Surja Ram v. State of Rajasthan, 1997 CriLJ 51. Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195. Vineet Narain and Ors. v. Union of India (UOI) and Anr., AIR 1998 SC 889. 10 15 10 14, 16 13

TABLE OF STATUTES Indian Evidence Act, 1860 Indian Penal Code, 1872 Criminal Procedure Code, 1973 The Constitution of India, 1950

ii

CHAPTER I

INTRODUCTION 1.1 OVERVIEW Judiciary is one of the three main structures of Indian Democracy, the other two being legislature and executive. The Indian Judiciary in order to be independent from any executive pressure has been given separate powers by the basic source of power, i.e., the Constitution of India. 1 The Salaries of Judges of Supreme Court 2 and High Court 3 are charged from the Consolidated fund of India, therefore, cannot be subjected to any change for adverse by the Legislature or the Executive. 4 The Supreme Court being the Union Judiciary is the highest Judiciary and all other courts, including High courts are subordinate to it in terms of Jurisdiction (except in matter of power to issue writs 5 ). Another power, which is given to Supreme Court, which is of immense value in terms of depicting its supremacy to decide upon any issue and grant remedy to meet the ends of the Justice, is under Article 142 of the Constitution of India.6 Add to that is the power of Judicial Precedent which binds the lower judiciary by its decisions. 7 The decisions of High Courts bind the Session Courts and lower courts but the decisions of Supreme Court binds Supreme Court bench of same or lower strength, the High Courts and all the lower courts. In case of conflict the Supreme Court judgment shall always prevail. The Constitution of India, hence, has granted Supreme Court the status of Ultimate Custodian of Fundamental Rights and a court of Last Resort to rectify any wrong or eroded judgment of High Court or Lower Court. Since, there is no judiciary above the Supreme Court in Constitution of India, judgments of the Supreme Court are hence final and binding upon everyone. But now the Moot Question arises that what if the Supreme Court judgments are themselves contradicting? In order to reach this question we will firstly have to find judgments, which are leading us to the above question. Therefore, it becomes all and more important to undertake a study, which shall strive to find judgments rendered by the Supreme Court itself, which are themselves contradicting its earlier stance on that particular issue.

Article 124 provides for the Constitution of Supreme Court, the Union Judiciary; whereas Article 214 provides for the Constitution of High Courts, the State Judiciary. 2 Article 146 (3), The Constitution of India Act. 3 Article 229 (3), The Constitution of India Act. 4 Except in case of a Financial Emergency; Article 360 (4) (b), The Constitution of India Act. 5 High Court issue writs under Article 32 of the Constitution of India for enforcing Fundamental Rights and Legal Rights under Article 226 of the Constitution of India; while Supreme Court can issue writs for the enforcement of Fundamental Rights under Article 32 of the Constitution of India. 6 Article 142 of the Constitution of India states, The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. 7 Article 141, The Constitution of India Act. 1

1.2 RESEARCH QUESTION 1. Whether there are any judgments of Supreme Court of India, which are contradicting to previous Supreme Court judgments? 2. What are the alternative methods to rectify the wrong if a binding Supreme Court judgment is departed from?

1.3 RESEARCH METHOD The researcher has employed the method of Doctrinal Research i.e. by analyzing data from secondary sources such as cases and bare acts. The researcher has extracted information from these sources and attempted to critically analyze the same and frame a coherent paper highlighting the core issues. 1.4 RESEARCH PLAN The researcher has divided the paper into various chapters to frame it in a coherent manner. In the first chapter a basic introduction along with the research question has been provided to define the ambit of the paper. The second chapter deals with the issue of death penalty. The third chapter deals exclusively with the issue of Courts power to direct investigation. The fourth chapter deals with the conclusion and recommendations.

One of the few ways by which a contradicting Supreme Court judgment or wrong judgment or outdated judgment, can be rectified is by the Supreme Court itself, but it shall be done with higher bench strength than the wrong judgment, which is also a cumbersome task as illustrated by a very intriguing case scenario in law of Torts in which there is a concept of vicarious liability of state, where a state can be held vicariously liable for the acts of its servants or employees done in course of their employment. In 1965 the Supreme Court rendered a judgment in the case of Kasturilal Ralia Ram Jain v. State of Uttar Pradesh8, where the appellant Kasturi Lals gold, silver and other goods were taken into custody by police. Later he was released on bail and after sometime silver was returned but not gold. The gold was under Mohammad Amir, then Head Constable, and had been kept in the police station under his charge, which were later misappropriated by him. Issue arose that whether there was negligence or not on part of police officials, answer to which was in affirmative. The court held that if the impugned act is done in the course of an undertaking or employment which is referable to the exercise of sovereign power, or to the exercise of delegated sovereign power, then, the concept of sovereign immunity would apply but in this case the impugned act of absconding with gold was not referable to the exercise of sovereign power. However, later the Supreme Court in a judgment rendered by Division Bench in the case of N. Nagendra Rao v. State of Andhra Pradesh 9 , departed from the Kasturi Lal judgment which was given by a constitutional bench and removed the concept of sovereign immunity and held that
8 9

AIR 1965 SC 1039. AIR 1994 SC 2663. 2

doctrine of sovereign immunity has no relevance in the present day context when the concept of sovereignty itself has undergone drastic change. The case was one where appellants fertilizers and food grains were seized under the control orders issued under Essential Commodities Act, 1955 but only violation of improper accounts was found, hence orders were passed of confiscating some part of the stock, and release the rest. This was also not complied with. After nearly 8 months of the order of release of goods, a notice was given to the appellant to take the delivery of the goods. The goods were, then, damaged, hence a suit was filed against the state, where the state contended; (i) Sovereign immunity of state, (ii) discharge of statutory duty in good faith was contended by the state. The court stated that no civilized system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign and since the concept of public interest has changed with structural change in the society, no legal or political system to-day can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without any remedy, thereby reiterating the supremacy of Fundamental Rights. Therefore, in ascertaining whether the vicariously liable for the acts of its servants depends upon the nature of power and how it is exercised. Even though the judgment given in Nagendra Rao (supra) case is considered a good law, yet the wrong judgment of Kasturi Lal (supra) case still has force in law as it is rendered by a constitutional bench. No one can forget the judgment of the Honble Supreme Court in the case of Additional District Magistrate Jabalpur v. Shivkant Shukla10, where the Supreme Court by 4:1 majority held valid the detention of thousands of Political figures by the imposition of National Emergency under Article 352 of the Constitution of India. The President order dated 27th June, 1975 made Article 359 of the Indian Constitution suspended the detainees right to enforce any rights conferred by Article 14, 21 and 22 of the constitution of India and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended and at a bar for the respondents to invoke the jurisdiction of High Courts under Article 226 to ask for the writ of Habeas Corpus. The High Court held that though Article 21 and 22 of the Constitution are suspended yet a person's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statute which form the conditions precedent to the exercise of power under that statute as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary. In that case the, then, Chief Justice A. N., J. relied on Liversidge case 11 and Greene case 12 and refuted the respondents contention that the presidential order operates only in respect of fundamental rights and would not affect the rights of personal liberty under common, statute law and natural
10 11

AIR 1976 SC 1207. Liversidge v. Anderson (1942) A.C. 206. 12 Greene v. Secretary of State for home affairs (1942) A.C. 284. 3

law13, by stating Liberty is confined and controlled by law, whether common law or statute. In words of Burke- freedom is not abstract or absolute. If extraordinary powers are given, they are given because emergency is extraordinary.14 But it is important to know that in Liversidge case, Lord Atkin gave the dissenting opinion and observed that laws mean the same irrespective of the times, whether war or peace. He said the reasonable clause gave the courts the power to judge the act of the Secretary of State. After few years, as Lord Diplock in I.R.C. v Rossminster Ltd thought that "the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right".15 The departure from the basic tenants of the Constitution of India by the Court in this judgment can be ascertained by the dissenting judgment of Justice H.R. Khanna who stated that the vesting of power of Detention without trial in the executive, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.16, what is stake in this case not merely liberty of few individuals but rule of law.17 While referring to a decision of this Court in the case of Jaichand Loll Sethia v. State of West Bengal18 wherein the Constitution Bench of this Court observed after referring to the case of Makhan Singh (supra) that a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that its detention has been ordered mala fide. Similarly, it will be open to the citizens to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. While it is argued that the times of emergency demands the control to be in executive yet such a draconic power to combining prosecutor and judges together also goes against the fundamentals of the Criminal Procedure Code, 1973, which departed from two pillars of criminal justice system, i.e., Police and Judiciary to adoption of three component system of Police, Judiciary and Prosecutor. This brings us to another way how a wrong judgment of Supreme Court can be given an over ruling effect, which is by legislative enactment on that aspect. For instance, the misuse of Article 352 in 1975 was cured by 44th Amendment in 1978 by substituting the word armed rebellion to that of internal disturbance 19 thereby excluding the imposition of emergency in case of peaceful demonstrations. Also, where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of [the rights conferred by Part III (except articles 20 and 21)] as may be

13 14

AIR 1976 SC 1207, para 18. AIR 1976 SC 1207, para 33. 15 http://www.pucl.org/Topics/Law/2006/adm_jabalpur.html. 16 AIR 1976 SC 1207. 17 Ibid. 18 [1966] Su. S .C. R. 464. 19 Substituted by the Constitution (Forty-fourth Amendment) Act, 1978, section 37, for "internal disturbance" (w.e.f. 20-6-1979) 4

mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.20 Now, comes the power of President under Article 72 (1) (c) where the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.21 This power, now, in a recent happening where 14 Judges of High Court have written letter to the President to grant pardon to those convicts who have been wrongly given death penalty in contradiction to the Supreme Court dictum of death penalty in rarest of rare cases propounded in the case of Bachan Singh v. State of Punjab22. How this dictum came into being and how in recent cases that was digressed from will be dealt in chapter 1 of this research paper. As of now, this power of granting power in cases where death penalty is awarded is generally provided taking into account the reformative policies of our criminal justice system. It basically endeavors to reform the criminal if he/she feels that there is some scope of restructuring the guiltys life, unless he has committed a very heinous crime that is a question of fact depending of facts of each case, instead of punishing him to death.

20

Constitution (Forty-fourth Amendment) Act, 1978, Section 40, for "the rights conferred by Part III" (w.e.f. 20-6-1979). 21 Article 72 (1) (c), The Constitution of India. 22 AIR 1980 SC 898. 5

CHAPTER II

ISSUE OF DEATH PENALTY In 1980, the Honble Supreme Court of India in a constitutional bench judgment in the case of Bachan Singh v. State of Punjab23 that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. In Bachan Singh (Supra) case, the Supreme Court propounded the famous Rarest of Rare doctrine. Now, what this rarest of rare doctrine considers is (a) Taking into account the criminals circumstances also, not circumstances of the case, (b) the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society and the probability that the accused can be reformed and rehabilitated,24 which were majorly interpreted on the bases that Section 367(5) of the Criminal Procedure Code, 1898, which states the normal punishment for murder was the death sentence, and in exceptional cases, if the judge awarded life imprisonment, he had to record reasons for not passing the death sentence was amended and replaced by the New Criminal Procedure Code, 1973, Section 354(3) requiring the judge to give special reasons for imposing a death sentence. This effectively replaced the presumption in favour of a death sentence with one against it. The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated.25 In the case of Ediga Anamma v. State of A.P26, the Supreme Court tried to give some positive indicators against death sentence under Indian law:(i)

Where the murderer is too young or too old, the clemency of penal justice helps him,

(ii)

Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime

23 24

[1983] 1 SCR 145, para 207. Ibid, para 205. 25 Ediga Anamma v. State of A.P., (1974) 4 SCC 443, para 20. 26 Ibid. 6

into a lesser one, judicial commutation is permissible Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible
(iii)

Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty.

(iv)

Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate.

(v)

if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 read with Section 149, or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime.

Negative indicators like the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law for a sterner sentence. But this was also overruled in Rajendra Prasad27 case , which by the majority (of 2:1) has completely reversed the view that had been taken in Ediga Anamma case (supra) regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3), 'murder most foul' is not the test. Also, the shocking nature of the crime or the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal" and this enunciation was also overruled by the Bachan Singh28 case (supra) which by reading S. 354 (3) and S. 235 (2) held that the court must pay due regard to both crime and criminal. But the above points (i), (ii) were also approved in Bachan Singh case and adding few more mitigating factors cited from Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, recommendations by Dr. Chitale. The court in case of Bachan Singh (supra) noted that in Britain, in the wake of serious violent incidents of terrorism, a Bill was moved in Parliament to reintroduce capital punishment for murder and certain other offences. It was defeated by a free vote on April 19, 1979. Even so, no less than 243 members of Parliament had voted in favor of this measure. We have noted that Israel has also recently reintroduced death penalty for certain criminal 'acts of inhuman cruelty'. In People's Republic of China, a new legislation was adopted on July 1, 1979 by China's Parliament, according to Article 43 of which, death penalty can be imposed "for the most heinous crimes". The impact of Bachan Singh case on death sentences was such that so as to completely
27 28

AIR 1979 SC 916. [1983] 1 SCR 145, para 199. 7

change the death penalty landscape and constitute a watershed in the history of criminal law in India. The death sentence, formerly awarded in almost all murder cases, was now reserved for that exceptional and extreme category which was measured in fractions rather than in integers. Between 1974 and 1978, there were 85,000 murders and 25 executions, that is, there were 34 executions for one lakh murders, as reported in Kehar Singh (1989). Since 1980, there have been 10,11,703 murders and about 83 executions at the rate of 8.2 executions for one lakh murders (Crime in India).29 Facts About Preference of Judges But on the other hand there are numerous examples as to how Supreme Court has interpreted the dictum of rarest of rare doctrine. A recent report by Yug Mohit Chaudhry posted findings that Justice Pasayats conviction rate of about 73 per cent was significantly higher than the collective conviction rate (19 per cent) of other judges during his tenure. Thus, a case not allotted to Justice Pasayats Bench was about four times more likely to escape capital punishment. A death-penalty case had an almost equal chance of being heard by Justice Pasayats or Justice Sinhas Bench, but the convicts chances of living were almost 100 per cent if his case was allotted to the latter instead of the former. Plus, a prisoners chances of living were better by more than 50 per cent if his case was allotted to Justice Balakrishnans Bench rather than Justice Pasayats Bench. Now, the moot question, according to Yug Mohit, is that "Would a death sentence appellant not be justified in asking, Am I to live or die on the basis of the constitution of the Bench and not the evidence in the case? Is that justice according to law?30 An important illustration of as to how Supreme Court has been inconsistent to follow one policy can be the case of Harbans Singh v. State of Uttar Pradesh31. In October 1975, the Allahabad High Court confirmed the death sentence imposed by the trial court on Jeeta Singh, Kashmira Singh and Harbans Singh for playing equal roles in murdering four members of a family. Each of them challenged their sentence separately before the Supreme Court. While Jeeta Singhs appeal was dismissed by a Bench of three judges (Justices Y.V. Chandrachud, V.R. Krishna Iyer and N.L. Untwalia) and he was hanged, a different Bench of two judges (Justices M. Fazal Ali and P.N. Bhagwati) commuted Kashmira Singhs death sentence to life imprisonment. Another Supreme Court Bench dismissed Harbans Singhs appeal and review petition though he had sought equal treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution and recommended presidential clemency, which was granted. In Ravji alias Ram Chandra v. State of Rajasthan32, the Supreme Court held that

29

http://www.frontlineonnet.com/fl2917/stories/20120907291702900.htm, retrieved on 20 th September, 2012. 30 http://www.frontlineonnet.com/fl2917/stories/20120907291702500.htm, retrieved on 24 th September, 2012. 31 (1982) 2 SCC 101. 32 AIR 1996 SC 787, para 25. 8

It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal... if for such heinous crime the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance.

In this case, the appellant killed his three minor sons and wife in asleep, tried to kill kis mother who came to prevent her son from killing his family, then, tried to kill the neighbor Smt. Galal and after that tried to flee away from the place of occurrence, when a poor old man Gulabji came on his way and enquired as to what had happened, he immediately hacked Gulabji to death in an extremely brutal manner and thereafter fled away the place of occurrence and tried to hide himself. The Court in this case, while quoting the judgment of Honble Supreme Court in Dhananjoy Chatterjee @ Dhana v. State of West Bengal33 stated that
In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. The measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defence less and unprotected state of the victim.

This was exactly what the Supreme Court held by taking into account that there was no wrong on part of the victims and the accused was educated, of sound mind and suffered from no insanity instead he did not even visited his mother while she was in the hospital or remorse killing his family or the accused was devoid of any mitigating factors that could run into his favor. Hence, reckoning the barbarous nature of the act of the accused, he was sentenced to death. But complications arose by the use of phrase It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial is in direct contradiction of the phrase used in Bachan Singh (supra) case, which stated that the court should take into account not only circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal34 But the disturbing instance rose in the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 35 , where the Supreme Court in a division bench, while referring to Ravji case (supra), stated that
We are not oblivious that this case has been followed in at least 6 decisions of this Court
33 34

[1994] 1 SCR 37. [1983] 1 SCR 145, para 164. 35 [2009] 9 SCR 90, para 66. 9

in which death punishment has been awarded in last 9 years, but, in our opinion, it was rendered per incuriam.

The Honble Supreme Court cited the judgments where the Ravji Case judgment has been followed : (i) Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra36; (ii) Mohan Anna Chavan v. State of Maharashtra37; (iii) Bantu v. The State of U.P.38; (iv) Surja Ram v. State of Rajasthan39; (v) Dayanidhi Bisoi v. State of Orissa40; (vi) State of U.P. v. Sattan @ Satyendra and Ors.41 Now, analyzing any of the above judgments to reach upon a conclusion that still the case of death penalty test is wide open.

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra42

The accused was found guilty of sexually assaulting and then, murdering the victimdeceased, a poor girl of 9 years old for what the court termed as animal lust of the accused-appellant. The court expressed its concern over a large number of cases in recent times coming before this Court involving rape and murder of young girls and found the present case to fall under the category of rarest of rare cases. Judgment Relied on in Shivaji Case (supra) The Shivaji judgment was based on the position reiterated in Devender Pal Singh v. State of NCT of Delhi43 which stated that the principle culled out of Bachan Singh's case (supra) and Machhi Singh's44 case is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. The court said that the community may entertain such sentiment in the following circumstances: (a) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community, (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
36 37

AIR 2009 SC 56. (2008) 11 SCC 113. 38 (2008) 11 SCC 113. 39 1997 CriLJ 51. 40 2003 CriLJ 3697. 41 (2009) 4 SCC 736. 42 AIR 2009 SC 56. 43 2002 CriLJ 2034. 44 1983 CriLJ 1457. 10

Relying on the above decisions and charting a balance sheet of aggravating and mitigating circumstances, the court held the case to fall under the rarest of rare dictum. Now, the question arises whether the Devendra judgment has also wrongly interpreted the Bachan Singh judgment along with Macchi Singh case judgment, since it does not provide for taking into account the circumstances of the guilty and mentions taking into account the community feeling. ANSWERS LIES IN BACHAN SINGH CASE The Supreme Court in Bachan Singh judgment in para 124, cites the instance of Furman v. Georgia case, where the Supreme Court of the United States held by a majority, that the imposition and carrying out of the death penalty constitutes 'cruel and unusual' punishment, in violation of the Eighth and Fourteenth Amendments. Justice Marshall ruled that "it was morally unacceptable to the people of the United States". This opinion of the learned Justices was sharply rebuffed by the people of the United States through their chosen representatives. Soon after the decision in Furman, bowing to the thrust of public opinion, the Legislatures of no less than 32 States, post-baste revised their penal laws and reinstituted death penalty for murder and certain other crimes. Public opinion polls then taken show that approximately 70 per cent of Americans have been in favour of death penalty. So, Supreme Court in Bachan Singh case stated that judicial opinion does not necessarily reflect the moral attitudes of the people. At the same time, it is a reminder that Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion. Another inherent conflict exposed in Bachan Singh case (supra) is that at one hand, it says to take into account the circumstances of case and criminal to be taken into account while deciding sentencing, while on the other hand it approves the following points:
Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity;...

Questions that now Arise, according to Researcher Now, it gives birth to some questions that: (i) whether the Supreme Court assumed in the Devendra case that no circumstances of the guilty justify the sentiment that had incited the community so as give death penalty to guilty, or (ii) whether no accused can be in such a circumstance so as commit such an act that could incite such a sentiment in any community so as to give death penalty to the guilty. Now, the proposal of balancing the mitigating factors including guiltys circumstances and aggravating factors like exceptional depravity, would be a very subjective test

11

depending upon each Bench. But the Flaw in Shivaji case is that it does not talk about the circumstances of the accused, except for the fact that it mentions the statement of Yashodabai (PW 7) that the accused was not doing any work and his wife and children were not residing with him. This omission amounted to the contradiction of Bachan Singh case dictum of taking into account the circumstances of the guilty.

12

CHAPTER III POWER OF COURT TO DIRECT/STOP INVESTIGATION The second issue where the Supreme Court is unsure as to what is the prevailing situation of law is whether court can direct investigation or not? In the case of Vineet Narain and Ors. v. Union of India (UOI) and Anr.45, the petitioner, who was a journalist, filed a public interest litigation. According to him, the prime investigating agencies like the Central Bureau of Investigation and the Revenue authorities failed to perform their legal obligation and take appropriate action when they found, during investigation with a terrorist, detailed accounts of vast payments, called `Jain diaries', made to influential politicians and bureaucrats and direction was also sought in case of a similar nature that may occur hereafter. A number of directions were issued by the Supreme Court. The Court in that case observed that "it is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people." The court said that given the political personalities of the people to be investigated in the "Jain diaries" case and the time already lost in commencing the investigations, it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf. These Court monitored investigations were again never criticized. For instance, in the case of Nirmal Singh Kahlon v. State of Punjab and Ors.46, the court refuted a contention on behalf of Nirmal Singh that in Vineet Narain case that once the investigation is over and charge sheet is filed the task of the monitoring Court comes to an end by stating:
63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India (2007) 1 SCC 110, loses all significance.

The primary question in Vineet Narain case was : Whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of executive ? However, as the case progressed, the court innovated a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. Para 55 of the judgment states:
there are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities
45 46

AIR 1998 SC 889. (2009) 1 SCC 441. 13

to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognized and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its roleunless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition. It took several years for the CBI to commence investigation and that too as a result of the monitoring by this Court. It is not as if the CBI, on conclusion of the investigation, formed the opinion that no case was made out for prosecution so that the earlier inaction may have been justified. The CBI did file numerous charge- sheets, which indicated that in its view a prima facie case for prosecution had been made out. This alone is sufficient to indicate that the earlier inaction was unjustified. However, discharge of the accused on filing of the charge- sheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima fade case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lackingunless a competent prosecution follows a fair and competent investigation, the exercise in the ultimate analysis would be futile. Investigation and prosecution are inter-related and improvement of investigation without improving the prosecution machinery is of no practical significance.

But in the case of State of M.P. vs. Ramesh C. Sharma47, the court cited the judgment in the case of Union of India v. Prakash P. Hinduja,48 para 20,
the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer-in-charge of the police station in Court under Section 173(2), Cr. P.C., this field being exclusively reserved for the investigating agency.

Then, in the case of M.C. Mehta v. Union of India 49 , the Supreme Court held that investigation of crime and punishment are clear cut and well-demarcated sphere of activities in field of crime detection and crime punishment. Investigation of an offence is the field reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive is charged with a duty to keep vigilance over law and order situation. It is obliged to prevent crime. If an offence is committed allegedly, it is the State's duty to investigate into the offence and bring the offender to book. Once it investigates through the police department and finds an offence having been committed, it is its duty to collect evidence for the purposes of proving the offence. Once that is completed, the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190, Cr.P.C. and his duty comes to an end. Therefore, there is a well- defined and well- demarcated functions in the field of crime detection and its subsequent adjudication by the Court. But due to the power Under Article 142 of the Constitution, Supreme Court is empowered to take aid and assistance of any authority for doing complete justice in any cause or matter pending
47 48

(2005) 12 SCC 628, para 5. (2003) 6 SCC 195. 49 (2007) 1 SCC 110. 14

before it. The case was of a project known as "Taj Heritage Corridor Project", which was initiated by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food plazas, shops and amusement activities. The Court in this case directed for a detailed enquiry, which was carried out by the Central Bureau of Investigation (CBI). On the basis of the CBI report, the Court directed registration of FIR and made further investigation in the matter. 50 The court questioned the role played by the concerned Minister for Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh. By the intervention of this Court, the said project was stalled. Then, in the case of State of Punjab vs. Central Bureau of Investigation and Ors.51, the facts leading up to the Supreme Court were that High Court took sou moto notice of a news item in a newspaper and when the case was taken up before the High Court, the Additional Advocate General placed before the High Court a copy of the order of the Additional Director General of Police (Crime), Punjab entrusting the investigation into 4 FIRs to a special investigation team (for short 'the SIT'). The High Court observed that the SIT had been constituted without the permission of the Court and issued notice to the CBI for the purpose of entrusting the investigation of the case to the CBI. The Supreme Court held that the provisions of the Code of Criminal Procedure u/s 482 do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Court or to prevent the abuse of any process of the Court or otherwise to secure the ends of justice. The language of Subsection (8) of Section 173 of the Code of Criminal Procedure, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Code of Criminal Procedure for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice. Then again, earlier in State of West Bengal v. SN Basak52 this Court approved the view taken by the Privy Council in Nazir Ahmad case and held as under in Para 3 of the reports (it is pertinent to note that Section 561-A of CrPC 1898 corresponds to S. 482 of CrPC 1973:
".....The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information it cognizable offences and Section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the court under Section 561-A of the Criminal Procedure Code."

50 51

Ibid, para 5. AIR 2011 SC 2962. 52 [1963] 2 SCR 52. 15

BASIC PROBLEM Now, the basic issue, which arises is that the Supreme Court time and again stated the powers of magistrate to supervise in investigation but the powers of courts, while investigation is still in process, for either quashing FIRs or investigation as, for instance, it happened in Mrs. Rupan Deol Bajaj and another vs. Kanwar Pal Singh Gill and another53, where the High Court quashed the FIR and investigation thereof under the pretext of S. 482 or where High Court intervenes as happened in the case State of Punjab vs. Central Bureau of Investigation and Ors. (supra), which are time and again taken by the Supreme Court in bad taste. In Rupal Bajaj case (supra) one of the main reasons for quashing the FIR by High Court was that there were 48 more persons present; 24 ladies and equal number of gentlemen and according to High Court, it sounded both unnatural and unconscionable that the petitioner (Mr. Gill) would attempt or dare to outrage the modesty of the author of the First Information Report in their very presence inside the residential house of Financial Commissioner (Home).

The Supreme Court in response to this said

we are constrained to say that in making the above observations the High Court has flagrantly disregarded - unwittingly we presume - the settled principle of law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course as has been pointed out in Bhajan Lal's case (supra) an F.I.R. or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR it was not possible to do so. For the reasons aforesaid we must hold that the High Court has committed a gross error of law in quashing the FIR and the complaint. Accordingly, we set aside the impugned judgment and dismiss the petition filed by Mr. Gill in the High Court under Section 482 Cr.P.C

That is precisely the reason as to why Supreme Court is issuing guidelines to restrict the High Courts in exercising its power under S. 482 of the Code, which is a special power not to be resorted to every time in routine, rather in case of extreme flagrant circumstances it may be used. While making the above presumption, it seems that the High Court wore the duty of investigating the case in itself because in a case where serious allegations were made on High Ranking Officials, when the High Court renders a decision to quash the FIRs, such a decision must be supported by some evidences. But the judgment in the case of Union of India (UOI) vs. Prakash P. Hinduja and Anr.54 holding in Para 19 that the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the
53 54

AIR 1996 SC 309. AIR 2003 SC 2612. 16

investigating agency, also clearly disregards to take into account Article 142, 32 and 226 of the Constitution of India and also clear wordings of S. 482 of the Code.

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CHAPTER IV CONCLUSION
In Conclusion, the researcher was able to find few judgments of the Honble Supreme Court, which either departed or contradicted its prior stance. The researcher finds that the main reason for such a scenario is (a) Absence of authority above the Supreme Court to supervise the judgments of the Court so that any authoritative judgment on the same subject/ issue is not rendered redundant by the later judgment wrongfully digressing from it as happened in the case of Bachan Singh (CB) being not contradicted by Ravji Case (DB), (b) then, the difficulty of confining the contours of the judgments, since judgments are not statutes that can be expressed in key terms and limited phrases and deal with many issue at the same time, there is rendered a possibility of later the Court misinterpreting or deliberately interpreting the area left undealt by the judgment to contradiction with the earlier authoritative judgment. RECOMMENDATIONS The researcher concludes by saying that it is important for the Supreme Court to rest all the speculations left open on the issue of Death Penalty test and Limitation on the Power of High Court and Supreme Court in directing investigation. This can be done by firstly identifying the major areas and concepts that more prone to digression by reasons of their cropping up on regular basis or which involve more subjective opinion of the decision makers by either laying down a report where authoritative judgments on key issues (not undermining any other issue) like the test of death penalty, features of basic doctrine etc. are recorded, so that in the midst of references, placing reliance and digression from them in future by any judgment, the meaning of the earlier judgment is not lost like it happened in Bachan Singh after it was being interpreted by the Ravji Case, Devendra Case and then, in Shivaji Case, and the Supreme Court can issue a strict warning to the counsels and future Supreme Court judges of not falling prey to ignorance or their own fallibilities or allegiance to their rabid view points. Both of these suggestions aim to prevent any future complications of position.

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BIBLIOGRAPHY
Gupta S.P.Sen, THE CODE OF CRIMINAL PROCEDURE, 1973, 1st ed. 2010, Kamal Law House, Kolkata . Kataria R.P., COMMENTARY ON THE CODE OF CRIMINAL PROCEDURE, 1973, 4th ed., 2007, Orient Publishing Company, New Delhi. Mookerji S.K, (rev.), PRINCEPS COMMENTARY OF CRIMINAL PROCEDURE, 1973, Vol. II, 19th ed. 2010, Delhi Law House, Delhi. Paranjape N.V, (ed.), THE CODE OF CRIMINAL PROCEDURE, 1973, 3rd ed. 2009, Central Law Agency, Allahabad. Pillai K.N.Chandrashelhar, (ed.), R.V.KELKARS CRIMINAL PROCEDURE, 5th ed. 2008, Eastern Book Company, Lucknow. Roy S.R, (ed.), B.B.MITRA ON CODE OF CRIMINAL PROCEDURE,1973, Vol. I, 20th ed. 2005, Kamal Law House, Kolkata. Sarkar Sudipto, CODE OF CRIMINAL PROCEDURE, 9th ed., 2007, Wadhwa and Company, Nagpur.

INTERNET SOURCES: www.scconline.com www.manupatra.com

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