GURVAIL SINGH @ GALAversusSTATE OF PUNJAB

              \



                  (2013) 17 S.C.R. 983


                GURVAIL SINGH @ GALA                         A
                               v.
                     STATE OF PUNJAB
         (Writ Petition (Crl.) No. D. 8788 of 2013)
                    AUGUST 26, 2013
                                                              B
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

      Sentence/Sentencing - Competence of Supreme Court
to fix a number of years of sentence (with or without remission)
when the Court commutes death sentence to life imprisonment C
- Supreme Court awarded 30 years imprisonment without
remission to the petitioner after commuting the death
sentence to life imprisonment - Writ petition filed seeking
directing to convert the sentence of 30 years without remission
to a sentence of life imprisonment - Relying on the judgment D
passed in Sangeet case also sought declaration that
 Supreme Court is not competent to fix a particular number of
years (with or without remission), when it commutes death
sentence to life imprisonment - Held: - The Court can fix
number of years of sentence (with or without remission) - E
 However, the convict is deprived of the benefit of remissions
 only in cases where the death sentence i$ commuted to life
 imprisonment and it does not apply in all the cases of life
 imprisonment - The issue in question has been decided by
 Supreme Court in *Sahib Hussain case and had found that F
judgment in **Sangeet case on this issue was unwarranted.

     Shraddananda (2) @ Murali Manohar Mishra vs. State
of Karnataka (2008) 13 SCC 767: 2008 (11) SCR 93; State
of U.P. vs. Sanjay Kumar (2012) 8SCC 537: 2012 (7) SCR
359; *Sahib Hussain @ *Sahib Jain vs. Sate of Rajasthan       G
(2013) 6 SCALE 219 - relied on.

    **Sangeet and Anr. vs. State of Haryana (2013) 2 SCC
452: 2012 (13) SCR 85 - held inapplicable.
                             983                             •H
     984         SUPREME COURT REPORTS                  [2013] 17 S.C.R.

A.       Gurvail Singh @ Gata and Anr. vs. State of Punjab
     (2013) 2 SCC 713: 2013 (1) SCR 783 - referred to.

                              Case Law Reference:
             2013 (1) SCR 783             referred to          Para 2C
             2012 (13) SCR 85             held inapplicable Para 3
             2008 (11) SCR 93             relied on            Para 5
             2012 (7) SCR 359             retied on            Para 6
c            (2013) 6 SCALE 219           relied on            Para 9

         CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl).
     No. 8788 of 2013.

             Under Article 32 of the Constitution of India.
D
             Rishi Malhotra for the Appellant.

             The following Order of the Court was delivered

                                  ORDER
E
          1. This Writ Petition is filed for direction to convert the
     sentence of the petitioner from 30 years in jail without remission
     to a sentence of life imprisonment; and further to declare that
     this Court is not competent to fix a particular number of years
F    (with or without remission) when it commutes the death
     sentence to life imprisonment while upholding the conviction of
     the accused under Section 30i of Indian Penal Code, 1860
     (hereinafter referred to as 'the IPC').

G            2. Facts and circumstances giving rise to this petition are
     that:

        A. The petitioner alongwith co-accused was charged for
  killing 4 persons on the intervening night of 20/21.8.2000 and
  tried for the offences punishable under Sections 302 read with
H 34 IPC. The trial court vide judgment and order dated
  GURVAIL SINGH @ GALA v. STATE OF PUNJAB                    985


27.1.2005/5.2.2005 convicted and awarded death sentence to           A
him alongwith co-accused Jaj Singh.

     B. The High Court vide its judgment and order dated
22.9.2006 dismissed the Criminal Appeal filed by the petitioner
and affirmed the death sentence reference made by the trial          8
court so far as the petitioner and the co-accused are concerned.

    C. Aggrieved, the petitioner challenged the said judgment
and order dated 22.9.2006 by filing the criminal appeal and this
Court vide judgment and order dated 7.2.2013 affirmed the
conviction. However, the death sentence was converted into life      C
imprisonment with a direction that the petitioner shall serve 30
years in jail without remission. The aforesaid decision is
reported in Gurvail Singh @ Gala & Anr. v. State of Punjab,
(2013) 2  sec  713.
                                                                     D
    D. Aggrieved, the petitioner preferred a review petition,
which was also dismissed.

    Hence, the writ petition.

    3. Shri Rishi Malhotra, learned counsel appearing on             E
behalf of the petitioner, has submitted that this Court lacks the
power to issue directions that convicts shall serve a particular
minimum sentence with or without remission when death
sentence is commuted to life imprisonment. Such an argument
is being advanced in view of the judgment of this Court in           F
Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452,
wherein a two Judge Bench of this Court while dealing with the
issue considered the earlier judgments and observed:

     "55. A reading of some recent decisions delivered by this       G
     Court seems to suggest that the remission power of the
     appropriate Government has effectively been nullified by
     awarding sentences of 20 years, 25 years and in some
     cases without any remission. Is this permissible? Can this
     Court (or any Court for that matter) restrain the appropriate
     Government from granting remission of a sentence to a           H
     986       SUPREME COURT REPORTS                [2013) 17 S.C.R.


 A         convict? What this Court has done in Swamy
           Shraddananda (2) @ Murali Manohar Mishra v. State of
           Kamataka, (2008) 13 SCC 767 and several other cases,
           by giving a sentence in a capital offence of 20 years or
           30 years imprisonment without remission, is to effectively
 B         injunct the appropriate Government from exercising its
           power of remission for the specified period. In our opinion,
           this issue needs further and greater discussion, but as at
           present advised, we are of the opinion that this is not
           permissible. The appropriate Government cannot be told
 c         that it is prohibited from granting remission of a sentence.
           Similarly, a convict cannot be told that he cannot apply for
           a remission in his sentence, whatever the
           reason."(Emphasis added)

           4. The issue involved herein has been raised before this
  D Court time and again. Two Judge as well as three Judge Bench
    · have several times explained the powers of this Court in this
      regard and it has consistently been held that the Court cannot
      interfere with the clemency powers enshrined under Articles 72
      and 161 of the Constitution of India or any Rule framed
- E thereunder except in exceptional circumstances. So far as the\
      remissions etc. are concerned, these are executive powers of
      the State under which, the Court may issue such directions if
      required in the facts and circumstances of a particular case.

 F        5. The issue raised in this petition was elaborately dealt
     with by a three Judge Bench in Swamy Shraddananda (supra)
     wherein it was held as under:

           "91. The legal position as enunciated in Pandit Kishori Lal
           v. King Emperor AIR 1945 PC 64, Gopal Vinayak Godse
 G         v. State of Maharashtra AIR 1961 SC 600, Maru Ram v.
           Union of India (1981) 1 SCC 107, State of M.P. v. Ratan
           Singh (1976) 3 SCC 470, and Shri Bhag"Yan v. State of
           Rajasthan (2001) 6 sec 296, and the unsound way in
           which remission is actually allowed in cases of life
 H         imprisonment make out a very strong case to make a
GURVAIL SINGH @ GALA v. STATE OF PUNJAB                   987


 special category for the very few cases where the death          A
 penalty might be substituted by the punishment of
 imprisonment for life or imprisonment for a term in excess
 of fourteen years and to put that category beyond the
 application of remission.
                                                                  B
 92. The matter may be looked at from a slightly different
 angle. The issue of sentencing has two aspects. A
 sentence may be excessive and unduly harsh or it may be
 highly disproportionately inadequate. When an appellant
 comes to this Court carrying a death sentence awarded
 by the trial court and confirmed by the High Court, this         C
 Court may find, as in the present appeal, that the case just
 falls short of the rarest of the rare category and may feel
 somewhat reluctant in endorsing the death sentence. But
 at the same time, having regard to the nature of the crime,
 the Court may strongly feel that a sentence of .life             D
 imprisonment tliat subject to remission normally works out
 to a term of 14 years would be grossly disproportionaJe
 and inadequate. What then the Court should do? If the
 Court's option is limited only to two punishments, one a
 sentence of imprisonment, for all intents and purposes, of       E
 not more than 14 years and the other death, the court may
 feel tempted and find itself nudged into endorsing the
 death penalty. Such a course would indeed be disastrous.
 A far more just, reasonable and proper course would be
 to expand the options and to take over what, as a matter         F
  of fact, lawfully belongs to the court, i.e., the vast hiatus
  between 14 years' imprisonment and death. It needs to be
  emphasized that the Court would take recourse to the
  expanded option primarily because in the facts of the case,
  the sentence of 14 years imprisonment would amount to           G
  no punishment at all."

                                          (Emphasis added)

  6. The issue was again reconsidered in State of UP. v.
                                                                  H
    988       SUPREME COURT REPORTS                 [2013) 17 S.C.R.


A   Sanjay Kumar, (2012) 8 SCC 537, and rejecting a similar
    contention the Court observed:           ·

          "24 ..... The aforesaid judgments make it crystal clear that
          this Court has merely found out the via media, where
8         considering the facts and circumstances of a particular
          case, by way of which it has come to. ~he conclusion that it
          was not the 'rarest of rare cases', warranting death penalty,
          but a sentence of 14 years or 20 years, as referred to in
          the guidelines laid down by the States would be totally
          inadequate. Life imprisonment cannot be equivalent to
c         imprisonment for 14 years or 20 years, rather it always
          meant as the whole natural life. This Gour! has always
          clarified that the punishment so awarded;would be subject
          to any order passed in exercise of the clemency powers
          of the President of India or Governor of State, as the case
D         may be. Pardons, reprieves and remissions are granted
          in exercise of prerogative power. There is no scope of
          judicial review of such orders except on very limited
          grounds for example non-application of mind while passing
          the order; non-consideration of·relevant material; or if the
E         order suffers from arbitrariness. The power to grant
          pardons and to commute sentences is coupled with a duty
          to exercise the same fairly and reasonably. Administration
          of justice cannot be perverted by executive or political
          pressure. of course, adoption of uniform standards may
F         not be possible while exercising the power of pardon.
          Thus, such orcJers do not interfere With the sovereign power
          of the State. More so, not being in contravention of any
          statutory or constitutional provision, the orders, even if
          treated to have been passed under Article 142 of the
G         Constitution do not deserve to be labelled as unwarranted.
          The aforesaid orders have been passed considering the
          gravity of the offences in those cases that the accused
          would not be entitled to be considered for premature
          release under the guidelines issued for that purpose i.e.
H
  GURVAIL SINGH @ GALA v. STATE OF PUNJAB                    989


    under Jail Manual etc. or even under Section 433-A Code         A
    of Criminal Procedure."

                                             (Emphasis added)

      7. In spite of that, a two Judge Bench of this Court raised
certain doubts about the competence of this Court to pass such      B
orders in Sangeet (supra). If the two Judge Bench was of the
opinion that earlier judgments, even of a larger Benc'1 were not
justified, the Bench ought to have referred the matter to the
lar~er Bench. But without doing so, the aforesaid observations
have been made.                                                     C

     8. It may be pertinent to mention that the case of the
petitioner Gurvail Singh @ Gala has been decided by none
other than the Hon'ble Judge presiding over the Bench, which
decided the case of Sangeet (supra). However, different view        o
has been taken from that of the case of Sangeet (supra) which
had been decided earlier and reference of the said case has
also been made in the case of the petitioner.

    9. Be that as it may, this very question was raised again
before this Court in Sahib Hussain @ Sahib Jan v. State of          E
Rajasthan, 2013 (6) SCALE 219. This Court reconsidered the
whole issue examining all the judgments including Sangeet
(supra) and ultimately held as under:

     "29 ..... ln this case (Sangeet) though the Division bench F
     raised a doubt about the decision of a three-Judge Bench
     in Swamy Sharaddananda (supra), yet the same has not
     been referred to a rarger Bench. In Swamy Sharaddananda
     (Supra), after taking note of remissions by various State
     Governments without adequate reasons or even      an·flill)SY G
     grounds, in order to set right the same, a three-Judge
     Bench analysed all the relevant aspects including the·
     earlier decisions and discussed them in the following
     paragraphs.
                                                                    H
    990       SUPREME COURT REPORTS                 (2013] 17 S.C.R.


A         30. It is clear that in Swamy Shraddananda (supra), this
          Court noted the observations made by this Court in
          Jagmohan Singh v. State of U.P., (1973)1 SCC 20 and
          5 years after the judgment in Jagmohan's case, Section
          433-A was inserted in the Code imposing a restriction on
B         the power of remission or commutation in certain cases.
          After the introduction of Section 433-A another Constitution
          Bench of this Court in Bachan Singh v. State of Punjab,
          (1980) 2 sec 684, with reference to power with regard
          to Section 433-A which restricts the power of remission
c         and commutation conferred on the appropriate
          Government, noted various provisions of Prisons Act, Jail
          Manual etc. and concluded that reasonable and proper
          course would be to expand the option between 14 years.
          imprisonment and death. The larger Bench has also
          emphasized that "the Court would take recourse to thl'!
D
          extended option primarily because in the facts of the case
          the sentence of 14 years imprisonment would amount to
          no punishment at all." In the light of the detailed discussion
          by the larger Bench, we are of the view that the
          observations made in Sangeet's case (supra) are not
E         warranted. Even otherwise, the above principles, as
          enunciated in Swami Shraddananda (supra) are
          applicable only when death sentence is commuted to life
          imprisonment and not in all cases where the Court
          imposes sentence for life."
F
                                                  (Emphasis added)

        10. Thus, it is evident that the issue raised in this petition
  has been considered by another Bench and after reconsidering
G all the relevant judgments on the issue the Court found that the
  observations made in Sangeet (supra) were unwarranted, i.e.
  no such observations should have been made. This Court
  issued orders to deprive a convictfrom the benefit of remissions
  only in cases where the death sentence has been commuted

H
  GURVAIL SINGH @ GALA v.. STATE OF PUNJAB                     991


to life imprisonment and it does not apply in all ·the cases           A
wherein the person has been sentenced to life imprisonment.

      11. The case at hand is squarely covered by the afo'resaid
judgment in Sahib Hussain (Supra). No further discussion is
 required. The petition is misconceived, and does not present          8.
 any special feature warranting any interference. Thus, it is
accordingly, dismissed.

Kalpana K. Tripathy                       . Writ Petition dismissed.