Supreme Court of India
STATE OF PUNJABversusDALBIR SINGH
- Citation
- 2012 INSC 66
- Decided
- 1 February 2012
- Disposal
- Dismissed
- Bench
- A K GANGULY
Holding
Section 27(3) of the Arms Act, 1959 is ultra vires the Constitution and is declared void.
Summary
The State of Punjab appealed the acquittal of CRPF constable Dalbir Singh, who had been charged under Sections 302, 307 IPC and Section 27 of the Arms Act for firing a self‑loading rifle that resulted in the death of a senior officer. The High Court acquitted him on the basis of irreconcilable inconsistencies in the prosecution evidence. The Supreme Court upheld the High Court's acquittal, finding no error in its appreciation of the evidence. The Court then examined the constitutionality of Section 27(3) of the Arms Act, which imposes a mandatory death penalty for any use of prohibited arms that results in death. It held that the provision is ultra vires the Constitution as it violates Articles 13, 14 and 21, lacks any guiding principles, and deprives the judiciary of discretion in sentencing. Consequently, Section 27(3) was declared void and the appeal dismissed.
Issues considered
- The propriety of interfering with the High Court's acquittal under Article 136.
- Whether Section 27(3) of the Arms Act, 1959, which mandates death penalty for use of prohibited arms resulting in death, is constitutionally valid under Articles 13, 14 and 21 of the Constitution.
Legislation cited
- 44th Amendment Act, 1978
- Arms Act, 1959s. Section 27(1), s. Section 27(2), s. Section 27(3), s. Section 7
- Code of Criminal Procedures. Section 235(2), s. Section 354(3)
- Constitution of Indias. Article 13, s. Article 14, s. Article 21, s. Article 23, s. Article 31, s. Article 359
- Indian Penal Code, 1860s. Section 302, s. Section 303, s. Section 307
Subjects
mandatory death penaltyArms ActSection 27(3)constitutional validityArticles 13 14 21due processjudicial discretionbenefit of doubtCRPF constablemurderacquittal
Judgment
[2012] 4 S.C.R. 608
A STATE OF PUNJAB
v.
DALBIR SINGH
(Criminal Appeal No. 117 of 2006)
FEBRUARY 01, 2012
B
[ASOK KUMAR GANGULY AND JAGDISH SINGH
KHEHAR, JJ.]
Arms Act, 1959 - s.27(3) - Vires of - Mandatory death
c penalty as imposed u/s.27(3) - If justified - Held: Mandatory
death penalty has been found to be constitutionally invalid in
various jurisdictions where there is an independent judiciary
and the rights of the citizens are protected in a Constitution -
In s.27(3), the provision of mandatory death penalty is more
unreasonable inasmuch it provides whoever uses any
0
prohibited arms or prohibited ammunition or acts in
contravention of s. 7 and if such use or act results in the death
of any other person then that person guilty of such use or
acting in contravention of s. 7 shall be punishable with death
E - The word 'use' has not been defined in the Act - Therefore,
the word 'use' has to be viewed in its common meaning - In
view of such very wide meaning of the word 'use' even an
unintentional or an accidental use resulting in death of any
other person shall subject the person so using to a death
penalty - Both the words 'use' and 'result' are very wide - Such
F a law is neither just, reasonable nor is it fair and falls out of
the 'due process' test - The concepts of 'due process' and the
concept of a just, fair and reasonable law has been read by
this Court into the guarantee u!Articles 14 and 21 of the
Constitution - s.27(3) is thus violative of Articles 14 and 21 of
G the Constitution - Principles of Eighth Amendment of the U.S.
Constitution (which provides for guarantee against cruel and
harsh punishment) have a/so been incorporated in our laws -
Direct mandate of the Constitution under Article 13 is that the
State shall not make any law which takes away or abridges
H 608
STATE OF PUNJAB v. DALBIR SINGH 609
the right conferred by Part Ill of the Constitution and any law A
made in contravention of the same is, to the extent of
contravention, void - s.27(3) is in clear contravention of Part
Ill rights - It also deprives the judiciary from discharging its
Constitutional duties of judicial review whereby it has the power
of using discretion in the sentencing procedure - s.27(3) is B
against the fundamental tenets of our Constitutional law as
developed by this Court - It is ultra vires the Constitution and
is void - Constitution of India, 1950 - Articles 13, 14 and 21.
Penal Code, 1860 - ss. 302 and 307 - Acquittal of
accused on ground of benefit of doubt - Justification - Accused C
CRPF constable, who had been warned by his officer for non-
performance of duty, opened fire from a self-loading rifle
(SLR) whereupon the officer was hit on the back and another
officer sustained multiple bullet injuries causing his death -
Conviction of accused-respondent by trial court inter alia u/ . D
ss. 302 and 307 /PC - High Court found irreconcilable
inconsistencies in the prosecution case relating to a)
deposition of witnesses and b) number of cartridges fired and
recovered, and acquitted respondent by giving him benefit of
doubt - On appeal, held: In the facts and circumstances of the E
case, it cannot be said that the order of the High Court was
either perverse or not based on proper appreciation of
evidence - No interference called for u!Article 136 of the
Constitution.
The prosecution case was that respondent, a CRPF F
constable, who had been warned by the Deputy
Commandant Quarter Master for his refusal to carry out
fatigue duty as assigned to him, opened fire towards the
Deputy Commandant's office from a Self Loading Rifle
(SLR) whereupon the Deputy Commandant was hit in his G
back while the Battalion Havaldar Major (B.H.M.), who was
also inside the office at the relevant time, sustained
multiple bullet injuries in his shoulders which ultimately
caused his death. The trial court convicted the
respondent under Section 302 IPC, sentencing him to H
610 SUPREME COURT REPORTS [2012] 4 S.C.R.
A rigorous imprisonment for life and fine of Rs.2,000/-,
under Section 307 IPC, sentencing him to rigorous
imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of the Arms Act, sentencing him to rigorous
imprisonment for 3 years and fine of Rs.1,000/-. The
B substantive sentences were ordered to run concurrently.
The High Court, however, reversed the order of
conviction on the grou'nd that there were irreconcilable
inconsistency in the prosecution case.
The High Court found that while PW.9 the alleged eye
C witness had deposed that respondent was apprehended
at the spot, disarmed handed over to the Court, however,
according to the Investigating Officer (10) PW.12, the
respondent was handed over to him outside the CRPF
headquarters three days after the incident and then on
D his disclosure statement the SLR was recovered. The
High Court further found that even though the
prosecution allegation was that 20 cartridges were fired,
only 7 empties were recovered and none of the bullets
were recovered. The High Court gave benefit of doubt to
E the respondent and acquitted him, and therefore the
instant appeal.
However, since the accused-respondent had been
charged under Section 27(3) of the Arms Act, 1959 as well
F and since the vires of Section 27(3) of the said Act had
been questioned, the instant appeal was heard both on
merits of the High Court order and also on the question
of vires of Section 27(3) of the Arms Act, 1959.
Dismissing the appeal, the Court
G
HELD:
On merits
1. There is no reason to interfere with the order of
H acquittal given by the High Court under Article 136 of the
STATE OF PUNJAB v. DALBIR SINGH 611
Constitution. It cannot be said that the order of the High A
Court is either perverse or not based on proper
appreciation of evidence. Therefore, on the merits of the
order of acquittal granted by the High Court there is no
reason to interfere. [Para 8) [621-F]
B
Vires of Section 27(3) of the Arms Act, 1959
2.1. A perusal of Section 27, sub-section (3) of the
Arms Act, 1959, the vires of which has been challenged,
shows that if by mere use of any prohibited arms or
prohibited ammunitions or if any act is done by any C
person in contravention of Section 7, he shall be
punishable with death. Section 7 of the said Act prohibits
acquisition or possession, or manufacture or sale of
prohibited arms or prohibited ammunitions. [Paras 14, 15)
~~&~ D
2.2. Section 7 imposes a prohibition on certain acts
in respect of prohibited arms and ammunitions but
Section 7 does not spell out the penalty. The penalty for
contravention of Section 7 is provided under Section E
27(3) of the Act. [Para 18) [626-C]
2.3. Section 27 is divided into three sub-sections.
Sub-section 1 prescribes that if any person who uses any
arms or ammunition in contravention of section 5 he shall
be punishable with imprisonment for a term which shall F
not be not less than three years but which may extend
to seven years and he shall also be liable to fine. Section
5 prohibits manufacture, sale of arms and ammunition.
Sub-section (2) of Section 27 provides for higher
punishment, inter alia, on the ground that whoever uses G
any prohibited arms or prohibited ammunition in
contravention of Section 7, he shall be punishable with
imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for
life and he shall also be liable to fine. [Para 19) [626-D-F] H
612 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 2.4. Between Section 5 and Section 7 of the Act a
distinction has been made since manufacture and sale
of arms and ammunition is dealt with in Section 5 but
Section 7 deals with prohibition of acquisition or
possession, or of manufacture or sale, of prohibited arms
B and ammunition. Therefore, there is a reasonable
classification between Section 5 and Section 7 of the Act.
Consequently, there is valid classification between
Sections 27(1) and 27(2) on the severity of the
punishment. [Para 20) [626-G-H; 627-A]
c 2.5. But so far as sub-section (3) of Section 27 is
concerned, the same stands apart in as much as it
imposes a mandatory death penalty. The difference
between sub-section (2) and sub-section (3) of Section
27 is that under sub-section (2) of Section 27 if a person
D uses any prohibited arms or ammunition in contravention
of Section 7, he shall be punished with imprisonment for
a term of less than seven years which may extend to
imprisonment for life and also with fine. But if the said
use or act prohibited under Section 7 results in the death
E of any other person he shall be punishable with death
penalty. Therefore, Section 27(3) is very wide in the sense
anything done in contravention of Section 7 of the Act and
with the use of a prohibited arms and ammunition
resulting in death will attract mandatory death penalty.
F Even if any act done in contravention of Section 7,
namely, acquisition or possession, or manufacture or
sale, of prohibited arms results in death of any person,
the person in contravention of Section 7 shall be
punished with death. This is thus a very drastic provision
G for many reasons. Apart from the fact that this imposes
a mandatory death penalty the Section is so widely
worded to the extent that if as a result of any accidental
or unintentional use or any accident arising out of any
act in contravention of Section 7, death results, the only
H punishment, which has to be mandatorily imposed on
STATE OF PUNJAB v. DALBIR SINGH 613
the person in contravention is, death. Notably, the A
language used is 'results' which is wider than the
expression 'causes'. The word 'results' means the
outcome and is wider than the expression 'causes'.
Therefore, very wide expression has been used in
Section 27(3) of the Act and without any guideline leading B
to mandatory punishment of death penalty. [Paras 21, 22)
[627-B-G]
3. In Section 302 of IPC death penalty is not
mandatory but it is optional. Apart from that the word
'murder' has been very elaborately defined in Section 300 C
of IPC with various exceptions and explanations. But in
the case of Section 27(3) law is totally devoid of any
guidelines and no exceptions have been carved out.
[Paras 24 and 25) [628-B; 629-D]
D
4. The Parliament while making law has to function
under the specific mandates of the Constitution. Apart
from the restrictions imposed on distribution of legislative
powers under Part XI of the Constitution by Article 245
onwards, the direct mandate of the Constitution under E
Article 13 is that the State shall not make any law which
takes away or abridges the right conferred by Part Ill of
the Constitution and any law made in contravention of the
same is, to the extent of contravention, void. Article 13(2)
clearly prohibits the making of any law by the State which F
takes away or abridges rights, conferred by Part Ill of the
Constitution. In the event of such a law being made the
same shall be void to the extent of contravention. Only
the judiciary can give the declaration that a law being in
contravention of the mandate of Part-Ill of the Constitution G
is void. Therefore, power of judicial review is inherent in
our Constitution. Article 13 of the Constitution is,
therefore, a unique feature in our Constitution. [Paras 26,
27 and 28) [629-E-F; 630-E-F]
5.1. Mandatory death penalty has been found to be H
614 SUPREME COURT REPORTS [2012] 4 S.C.R.
A constitutionally invalid in various jurisdictions where
there is an independent judiciary and the rights of the
citizens are protected in a Constitution. In our
Constitution the concept of 'due process' was
incorporated in view of the judgment of this Court in
B Maneka Gandhi. The principles of Eighth Amendment of
the U.S. Constitution (which provides for guarantee
against cruel and harsh punishment) have also been
incorporated in our laws. This has been acknowledged
by the Constitution Bench of this Court in Sunil Batra.
c Almost on identical principles mandatory death penalty
provided under Section 303 IPC has been held ultra vires
by the Constitution Bench of this Court in Mithu. Apart
from that it appears that in Section 27(3) of the Act the
provision of mandatory death penalty is more
unreasonable inasmuch it provides whoever uses any
0
prohibited arms or prohibited ammunition or acts in
contravention of Section 7 and if such use or act results
in the death of any other person then that person guilty
of such use or acting in contravention of Section 7 shall
be punishable with death. The word 'use' has not been
E defined in the Act. Therefore, the word 'use' has to be
viewed in its common meaning. In view of such very wide
meaning of the word 'use' even an unintentional or an
accidental use resulting in death of any other person shall
subject the person so using to a death penalty. Both the
F words 'use' and 'result' are very wide. Such a law is
neither just, reasonable nor is it fair and falls out of the
'due process' test. A law which is not consistent with
notions of fairness while it imposes an irreversible
penalty like death penalty is repugnant to the concept of
G right and reason. [Paras 87, 88, 89, 90] [656-G-H; 657-A;,
D-H; 658-A]
5.2. The principle of 'due process' is an emanation
from the Magna Carta doctrine. This was accepted in
H American jurisprudence. All these concepts of 'due
STATE OF PUNJAB v. DALBIR SINGH 615
process' and the concept of a just, fair and reasonable A
law has been read by this Court into the guarantee under
Articles 14 and 21 of the Constitution. Therefore, the
provision of Section 27(3) of the Act is violative of Article
14 and 21 of the Constitution. [Paras 92, 94] [658-C, F]
8
5.3. Apart from that the said Section 27 (3) is a post
Constitutional law and has to obey the injunction of
Article 13 which is clear and explicit. In view of the
mandate of Article 13 of the Constitution which is an
Article within Part-Ill of our Constitution, Section 27(3)
having been enacted in clear contravention of Part-Ill C
rights, Section 27(3) of the Act is repugnant to Articles 14
and 21 and is void. [Paras 95, 96] (658-G; 659-B)
5.4. Section 27(3) of the Act also deprives the
judiciary from discharging its Constitutional duties of o
judicial review whereby it has the power of using
discretion in the sentencing procedure. This power has
been acknowledged in Section 302 IPC and in Bachan
Singh case it has been held that the sentencing power
has to be exercised in accordance with the statutory E
sentencing structure under Section 235(2) and also under
Section 354(3) of the Code of Criminal Procedure. [Paras
97, 98) (659-C, D]
5.5. Section 27(3) of the said Act while purporting to
impose mandatory death penalty seeks to nullify those F
salutary provisions in the Code. This is contrary to the
law laid down in Bachan Singh. [Para 99) [659-E]
5.6. In fact the challenge to the constitutional validity
of death penalty under Section 302 IPC has been G
negatived in Bachan Singh in view of the sentencing
structure in Sections 235(2) and 354 (3) of the Criminal
Procedure Code. By imposing mandatory death penalty,
Section 27(3) of the Act runs contrary to those statutory
safeguards which give judiciary the discretion in the H
616 SUPREME COURT REPORTS [2012] 4 S.C.R.
A matter imposing death penalty. Section 27(3) of the Act
is thus ultra vires the concept of judicial review which is
one of the basic features of our Constitution. [Para 100]
[659-F, G]
8 5.7. The ratio in both Bachan Singh and Mithu has
been universally acknowledged in several jurisdictions
across the world and has been accepted as correct
articulation of Article 21 guarantee. Therefore, the ratio in
Mithu and Bachan Singh represents the concept of Jus
cogens meaning thereby the peremptory non derogable
C norm in international law for protection of life and liberty.
That is why it has been provided by the 44th Amendment
Act of 1978 of the Constitution, that Article 21 cannot be
suspended even during proclamation of emergency
under Article 359(vide Article 359(1 )(a) of the Constitution.
D Therefore Section 27(3) of the Arms Act is against the
fundamental tenets of our Constitutional law as
developed by this Court. Section 27(3) of Arms Act, 1959
is ultra vi res the Constitution and is void. [Paras 100, 101,
102, 103 and 104] [659-H; 660-A-D]
E
Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2)
SCR 690; Maneka Gandhi vs. Union of India (1978) 1 SCC
248 : 1978 (2) SCR 621 ; Bachan Singh v. State of Punjab
(1980) 2 SCC 684 and Sunil Batra vs. Delhi Administration
F and Others (1978) 4 sec 494 : 1979 (1) SCR 392 - relied
on.
Subhash Ramkumar Bind Alias Vakil and another vs.
State of Maharashtra (2003) 1 SCC 506 : 2002 (4) Suppl.
SCR 65; Surendra Singh Rautela vs. State of Bihar (now
G State of Jharkhand) (2002) 1 SCC 266 : 2001 (5) Suppl.
SCR 340; State of Punjab vs. Swaran Singh Murder
Reference No. 5 of 2000 decided by Full Bench of Punjab
& Haryana High Court on 26.5.2009; Santokh Singh vs.
State of Punjab, 2000(3) Recent Criminal Reports 637 -
H referred to.
STATE OF PUNJAB v. DALBIR SINGH 617
James Tyrone Woodson and Luby Waxton vs. State of A
=
North Carolina, 428 US 280 49 L Ed 2d 944; Stanislaus
Roberts vs. State of Louisiana, 428 US 325 = 49 L Ed 2d
974; Harry Roberts vs. State of Louisiana, 431 US 633 = 52
L Ed 2d 637; George Summer vs. Raymond Wallace
Shuman, 483 US 66 = 97 L Ed 2d 56; Reyes vs. The Queen, B
(2002) 2 AC 235 = (2002) UKPC 11; Regina v. Hughes,
(2002) 2 AC 259 = (2002) UKPC 12; Fox v. The Queen (2002
(2) AC 284); Bowe & Anr. vs. The Queen -(2006) 1 WLR
1623; Bernard Coard and Others vs. The Attorney General
(Criminal Appeal No. 10/2006- unreported judgment of c
privy council); Francis Kafantayeni and Others vs. Attorney
General [High Court of Malawi- Constitutional Case No.12
of 2005 [2007] M.W.H.C.1]; Attorney General vs. Susan
Kigula and 417 others (Supreme Court of Uganda-
Constitution Appeal No.03/2006); Godfrey Ngotho Mutiso 0
vs. Republic (Kenyan Court of Appeal- Criminal Appeal
No.1712008); Ong Ah Chuan vs. Public Prosecutor and
Another, (1981) A.C. 648; Munn vs. Illinois, 24 L Ed. 77 : 94
US 113, 142 (1876) and Planned Parenthood of
Southeastern Pennsylvania vs. Casey, 120 L ED 2d 674 - E
referred to.
Case Law Reference:
1983 (2) SCR 690 relied on Para 30
2002 (4) Suppl. SCR 65 referred to Para 34 F
2001 (5) Suppl. SCR 340 referred to Para 35
2000(3) Recent Criminal referred to Para 38
Reports 637
G
1978 (2) SCR 621 relied on Para 46
(1980) 2 sec 684 relied on Para 46
1979 (1) SCR 392 relied on Para 47
428 US 280 = 49 L Ed 2d 944 referred to Para 49 H
618 SUPREME COURT REPORTS [2012) 4 S.C.R.
A 428 US 325 = 49 L Ed 2d 97 4 referred to Para 51
431 US 633 = 52 L Ed 2d 637 referred to Para 53
483 US 66 = 97 L Ed 2d 56 referred to Para 55
B (2002) 2 AC 235 = (2002) referred to Para 58
UKPC 11
(2002) 2 AC 259 = (2002) referred to Para 62
UKPC 12
(2002 (2) AC 284) referred to Para 64
c
(2006) 1 WLR 1623 referred to Para 66
[2007) M.W.H.C.1-
High Court of Malawi) referred to Para 75
D
(1981) A.C. 648 referred to Para 83
24 L Ed. 77: 94 US 113, referred to Para 92
142 (1876)
E 120 L ED 2d 674 referred to Para 93
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 117 of 2006.
From the Judgment & Order dated 27.07.2005 of the High
F Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 250-DB of 1996.
Gourab Banerji, ASG (for Ld. Attorney General for India),
S.A. Haseeb, Sahil Tagotra, B.K. Prasad Gautam Jha, Ajay
G Pal, Jagjit Singh Chhabra, Siddhartha Dave,. Senthil
Jagadeesan, Jentiben A.O., Harinder Mohan Singh for the
appearing parties.
The Judgment of the Court was delivered by
H GANGULY, J. 1. This appeal at the instance of the State
STATE OF PUNJAB v. DALBIR SINGH 619
[ASOK KUMAR GANGULY, J.]
has been preferred from the judgment of the Division Bench of A
the High Court of Punjab and Haryana at Chandigarh, dated
July 27, 2005 in Criminal Appeal No. 250/1996 whereby High
Court gave the appellant the benefit of doubt and acquitted him
of the charges framed against him.
2. Briefly, the facts of the case are that the respondent B
Dalbir Singh, a constable in 36th Battalion Central Reserve
Police Force, at the relevant time was posted at Fatehabad,
District Amritsar, Punjab. On April 11th, 1993, Harish Chander,
the Battalion Havaldar Major (hereinafter 'B.H.M.') in 'Company
D' of the Battalion, reported to Hari Singh, the Deputy C
Commandant Quarter Master (hereinafter 'Deputy
Commandant'), that the accused had refused to carry out the
fatigue duty assigned to him. On such report being made, the
Deputy Commandant directed the B.H.M. and Sub Inspector
Kewal Singh to produce the accused before him. As per these D
directions, the accused was produced before the Deputy
Commandant at 11 :15 a.m. Upon being warned verbally about
his non compliance of the orders for fatigue duty, the accused
requested the warning to be issued in writing. Upon such a
response, the Deputy Commandant ordered the B.H.M. and the E
Sub Inspector to have the accused present before him the next
morning.
3. However, immediately after these talks, the Deputy
Commandant's office saw firing from a Self Loading Rifle
F
(SLR), even as the Deputy Commandant himself and the B.H.M.
were inside it. As the Deputy Commandant positioned himself
. underneath a table, he allegedly noted that it was the accused
who was firing from a rifle from a tent pitched outside. He was
allegedly hit in hi~ back. The B.H.M. sustained multiple bullet G
injuries in his shoulders.
4. This entire incident was allegedly witnessed by
Constable Dalip Kumar Mishra and Sub Inspector Kewal Singh.
Eventually, when the firing had stopped and the accused was
trying to reload his gun, he was overpowered and disarmed by H
620 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Constable Mishra. The Deputy Commandant directed the Sub
Inspector Kewal Singh to hand over the accused to the police,
while he himself and B.H.M. Harish Chander were rushed to
Sri Guru Nanak Hospital. Unfortunately, B.H.M. Harish Chander
died en route and his body was identified in the hospital. The
Deputy Commandant recorded his statement (Ex. PH) and an
8
F.l.R. (Ex. PH/2) was registered at the hospital by Sub Inspector
Jaswant Singh.
5. During investigation, the Investigating Officer, in the
presence of SI Kewal Singh and Constable Mishra, found 20
C empty bullet-cartridges (Ex.P4-P23) at the Battalion
Headquarters at Khawaspur. These were taken into
possession after putting them in a sealed parcel through
recovery memo (Ex.PK). The empty cartridges were sent to the
Forensic Science Laboratory on 15.4.1993 and the SLR was
D forwarded on 23.4.1993.
6. After investigation a challan was put in the Court of the
llaqua Magistrate who found that the case was exclusively
triable by the Court of Session, committed the same to Court
E of Session. The accused was charged under Section 302 and
307 of IPC and under Section 27 of the Arms Act. The accused
pleaded not guilty and the Prosecution was called upon to
examine its witnesses including DCQM Hari Singh (PW.6), SI
Kewal Singh (PW.7), Constable Mishra (PW.9) and Sub
Inspector Jaswant Singh. The accused, upon examination,
F denied all circumstances and asserted that he was innocent
and had been falsely implicated. The Trial Court consequently
convicted the accused under Section 302 of IPC, sentencing
him to rigorous imprisonment for life and fine of Rs.2,000/-,
under Section 307 of IPC, sentencing him to rigorous
G imprisonment for 5 years and fine of Rs.2,000/-, and under
Section 27 of Arms Act, sentencing him to rigorous
imprisonment for 3 years and fine of Rs.1,000/-. The substantive
sentences were ordered to run concurrently.
H 7. In the impugned judgment the High Court while reversing
STATE OF PUNJAB v. DALBIR SINGH 621
[ASOK KUMAR GANGULY, J.]
the order of conviction found that there is some irreconcilable A
inconsistency in the prosecution case. The High Court found that
PW.9 the alleged eye witness deposed that the respondent was
, apprehended at the spot by him and he was disarmed by him
and the SLR which was being used by the accused was taken
in his possession and the accused was handed over to the B
Court. But according to the Investigating Officer (10) PW.12, he
went to the place of occurrence on the date of occurrence i.e.
on 11.4.93, but neither the accused nor the SLR allegedly used
by the accused were handed over to him. The further evidence
of the 10 is that on 14.4.93, the accused was handed over to c
him outside the CRPF headquarters. Then on his disclosure
statement the SLR was recovered. In view of such irreconcilable
discrepancy in the evidence of the prosecution, the High Court
came to the finding that the prosecution was trying to suppress
a vital part of the case and the incident did not take place in 0
the manner presented by the prosecution. The High Court further
found that even though the prosecution allegation is that 20
cartridges were fired, only 7 empties were recovered and none
of the bullets were recovered. The High Court found that the
same is very surprising when the prosecution version is that 20 E
bullets were actually fired in a room towards the side where
there are no windows. It is, therefore, impossible that none of
the bullets had been recovered. In view of the aforesaid finding
of the High Court the accused was given the benefit of doubt.
8. We are of the opinion that there is no reason to interfere F
with the order of acquittal given by the High Court sitting in our
jurisdiction under Article 136 of the Constitution. We do not think
that the order of the High Court is either perverse or not based
on proper appreciation of evidence. Therefore, on the merits
of the order of acquittal granted by the High Court we find no G
reason to interfere. But since in this case the accused was
charged under Section 27(3) of the Arms Act (hereinafter, 'the
Act') and since the vires of Section 27(3) of the said Act has
been questioned, we proceed to examine the said issue in
detail. H
622 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 9. In this matter leave was granted on 16.1.2006. On
31.8.2010, a Division Bench of this Court issued notice to the
Attorney General as vires of Section 27(3) of the Act was
challenged in the said proceeding.
B 10. Pursuant to such notice Mr. Gourab Banerjee, the
learned ASG initially submitted before this Court on 15th March,
2011 and again on 21st July, 2011 that a proposal to amend
Section 27(3) of the Act is under consideration of the
Government of India and as such matter was adjourned.
Thereafter the matter was heard on 1st December, 2011 and
C on subsequent dates both on merits of the High Court order
and also on the question of vires of Section 27(3) of the Act.
11. Since the Court is to examine the constitutional validity
of Section 27, sub-section (3) of the Act, for a proper
D appreciation of the questions invobJed, Section 27 of the Act
is set out below:-
"27.Punishment for using arms, etc.-
(1) Whoever uses any arms or ammunition in contravention
E of section 5 shall be punishable with imprisonment for a
term which shall not be less than three years but which may
extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited
F ammunition in contravention of section 7 shall be
punishable with imprisonment for a term which shall not be
less than ·Seven years but which may extend to
imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited
G ammunition or does any act in contravention of section 7
and such use or act results in the death of any other person,
shall be punishable with death."
12. The present form of Section 27 including Section 27(3)
H
STATE OF PUNJAB v. DALBIR SINGH 623
[ASOK KUMAR GANGULY, J.]
has come by way of amendment, namely, by Amending Act 42 A
of 1988, the previous Section 27 was substituted. The Arms
Act was enacted in 1959. At the time when it was enacted,
Section 27 was in the following form:-
"27. Punishment for possessing arms, etc., with intent to
8
use them for unlawful purpose -
Whoever has in his possession any arms or
ammunition with intent to use the same for any unlawful
purpose or to enable any other person to use the same
for any unlawful purpose shall, whether such unlawful C
purpose has been carried into effect or not, be punishable
with imprisonment for a term which may extend to seven
years, or with fine or with both."
13. The Statements of Objects and Reasons of Act 42 of o
1988 (the Amending Act) are as follows:-
"Act 42 of 1988. - The Arms Act, 1959 had been
amended to provide for enhanced punishments in respect
of offences under that Act in the context of escalating
terrorist and anti-national activities. However, it was E
reported that terrorist and anti-national elements,
particularly in Punjab had in the recent past acquired
automatic firearms, machine guns of various types, rockets
and rocket launchers. Although the definitions of the
expressions "arms", "ammunitions", "prohibited arms" and F
"prohibited ammunition" included in the Act are adequate
to cover the aforesaid lethal weapons in the matter of
punishments for offences relating to arms, the Act did not
make any distinction between offences involving ordinary
arms and the more lethal prohibited arms and prohibited G
ammunition. Further while the Act provided for punishment
of persons in possession of arms and ammunition with
intent to use them for any unlawful purpose, it did not
provide for any penalties for the actual use of illegal arms.
To overcome these deficiencies, it was proposed to H
624 SUPREME COURT REPORTS [2012] 4 S.C.R.
A amend the Act by providing for deterrent punishment for
offences relating to prohibited arms and ammunition and
for the illegal use of firearms and ammunition so as to
effectively meet the challenges from the terrorist and anti-
national elements. Accordingly, the Arms (Amendment)
B Ordinance, 1988 was promulgated by the President on the
27th May, 1988. The Ordinance amended the Act to
provide for the followings among other things namely:-
(i) The definitions of "ammunition" and "prohibited
ammunition" have been amended to include missiles so
c as to put the matter beyond any doubt;
(ii) Deterrent punishments have been provided for offences
involving prohibited arms and prohibited ammunition;
0 (iii) Punishments have also been provided for the use of
illegal arms and ammunition and death penalty has been
provided if such use causes death."
14. A perusal of Section 27, sub-section (3), the vires of
which has been challenged, shows that if by mere use of any
E prohibited arms or prohibited ammunitions or if any act is done
by any person in contravention of Section 7, he shall be
punishable with death.
15. Section 7 of the said Act prohibits acquisition or
F possession, or manufacture or sale of prohibited arms or
prohibited ammunitions. The said Section 7 is set out below:-
"7. Prohibition of acquisition or possession, or of
manufacture or sale, of prohibited arms or prohibited
ammunition.-
G
No person shall--
(a) acquire, have in his possession or carry; or
(b) use, manufacture, sell, transfer, convert, repair, test or
H
STATE OF PUNJAB v. DALBIR SINGH 625
[ASOK KUMAR GANGULY, J.]
prove; or A
(c) expose or offer for sale or transfer or have in his
possession for sale, transfer, conversion, repair, test or
proof;
any prohibited arms or prohibited ammunition unless he B
has been specially authorised by the Central Government
in this behalf."
16. In the definition clause prohibited ammunitions and
prohibited arms have been defined respectively under Section c
2, sub-Sections (h) and (i) respectively of the said Act. Those
definitions are set out below:-
"(h) "Prohibited ammunition" means any ammunition,
containing, or designed or adapted to contain, any noxious
liquid, gas or other such thing, and includes rockets, 0
bombs, grenades, shells, missiles articles designed for
torpedo service and submarine mining and such other
articles as the Central Government may, by notification in
the Official Gazette, specify to be prohibited ammunition;"
E
"(i) "prohibited arms" means--
(i) firearms so designed or adapted that, if pressure
is applied to the trigger, missiles continue to be
discharged until pressure is removed from the F
trigger or the magazine containing the missiles is
empty, or
(ii) weapons of any description designed or
adapted for the discharge of any noxious liquid, gas
or other such thing, G
and includes artillery, anti-aircraft and anti-tank
firearms and such other arms as the Central
Government may, by notification in the Official
Gazette, specify to be prohibited arms;" H
626 SUPREME COURT REPORTS [2012) 4 S.C.R.
A 17. The word 'acquire', 'possession' or 'carry' has not been
defined under the said Act nor the word 'used', 'manufacture',
'sale', 'convert', 'repair', 'test' or 'prove' have been defined in the
Act. The word 'transfer' has only been defined in Section 2(k)
to mean as follows:-
B
"(k) "transfer" with its grammatical variations and cognate
expressions, includes letting on hire, lending, giving and
parting with possession."
18. Section 7 imposes a prohibition on certain acts in
C respect of prohibited arms and ammunitions but Section 7 does
not spell out the penalty. The penalty for contravention of Section
7 is provided under Section 27(3) of the Act as mentioned
above.
0 19. lfwe look at Section 27, which has been set out above,
it is divided into three sub-sections. Sub-section 1 prescribes
that if any person who uses any arms or ammunition in
contravention of section 5 he shall be punishable with
imprisonment for a term which shall not be not less than three
E years but which may extend to seven years and he shall also
be liable to fine. Section 5 prohibits manufacture, sale of arms
and ammunition. Sub-section (2) of Section 27 provides for
higher punishment, inter alia, on the ground that whoever uses
any prohibited arms or prohibited ammunition in contravention
of Section 7, he shall be punishable with imprisonment for a
F term which shall not be less than seven years but which may
extend to imprisonment for life and he shall also be liable to fine.
20. Section 7 prohibits acquisition or possession, or of
manufacture or sale, of prohibited arms or prohibited
G ammunition. Therefore, between Section 5 and Section 7 of the
Act a distinction has been made since manufacture and sale
of arms and ammunition is dealt with in Section 5 but Section
7 deals with prohibition of acquisition or possession, or of
manufacture or sale, of prohibited arms and ammunition.
H Therefore, there is a reasonable classification between Section
STATE OF PUNJAB v. DALBIR SINGH 627
[ASOK KUMAR GANGULY, J.]
5 and Section 7 of the Act. Consequently, there is valid A
classification between Sections 27(1) and 27(2) on the severity
of the punishment.
21. But so far as sub-section (3) of Section 27 is
concerned, the same stands apart in as much as it imposes a
8
mandatory death penalty. The difference between sub-section
(2) and sub-section (3) of Section 27 is that under sub-section
(2) of Section 27 if a person uses any prohibited arms or
ammunition in contravention of Section 7, he shall be punished
with imprisonment for a term of less than seven years which may
extend to imprisonment for life and also with fine. But if the said C
use or act prohibited under Section 7 results in the death of any
other person he shall be punishable with death penalty.
Therefore, Section 27(3) is very wide in the sense anything
done in contravention of Section 7 of the Act and with the use
of a prohibited arms and ammunition resulting in death will D
attract mandatory death penalty. Even if any act done in
contravention of Section 7, namely, acquisition or possession,
or manufacture or sale, of prohibited arms results in death of
any person, the person in contravention of Section 7 shall be
punished with death. This is thus a very drastic provision for E
many reasons. Apart from the fact that this imposes a mandatory
death penalty the Section is so widely worded to the extent that
if as a result of any accidental or unintentional use or any
accident arising out of any act in contravention of Section 7,
death results, the only punishment, which has to be mandatorily F
imposed on the person in contravention is, death. It may be also
noted in this connection that language used is 'results' which is
wider than the expression 'causes'. The word 'results' means
the outcome and is wider than the expression 'causes'.
G
22. Therefore, very wide expression has been used in
Section 27(3) of the Act and without any guideline leading to
mandatory punishment of death penalty.
23. In this connection we may compare Section 302 of the
H
628 SUPREME COURT REPORTS [2012] 4 S.C.R.
A IPC with Section 27(3) of the Act. Section 302 is as follows:
"302. Punishment for murder.- Whoever commits
murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine."
B 24. In Section 302 of IPC death penalty is not mandatory
but it is optional. Apart from that the word 'murder' has been
very elaborately defined in Section 300 of IPC with various
exceptions and explanations. Section 300 of IPC is set out
below:
c
"300. Murder.-Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or-
Secondly.-lf it is done with the intention of causing such
D
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or
Thirdly.-lf it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
E inflicted is sufficient in the ordinary course of nature to
cause death, or-
Fourthly.-lf the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
F cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception 1.-When culpable homicide is not murder.-
G Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident.
H
STATE OF PUNJAB v. DALBIR SINGH 629
[ASOK KUMAR GANGULY, J.]
The above exception is subject to the following provisos:- A
First-That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly.-That the provocation is not given by anything B
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done
in the lawful exercise of the right of private defence. c
Explanation.-Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact."
25. But in the case of Section 27(3) law is totally devoid D
of any guidelines and no exceptions have been carved out. It
is common ground that the said amendment of Section 27 was
brought about in 1988 which was much after the Constitution
of India has come into operation.
E
26. The Parliament while making law has to function under
the specific mandates of the Constitution. Apart from the
restrictions imposed on distribution of legislative powers under
Part XI of the Constitution by Article 245 onwards, the direct
mandate of the Constitution under Article 13 is that the State
F
shall not make any law which takes away or abridges the right
conferred by Part Ill of the Constitution and any law made in
contravention of the same is, to the extent of contravention, void.
Article 13 is set out hereinbelow:
"13. Laws inconsistent with or in derogation of the G
fundamental rights: (1) All laws in force in the territory
of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such
inconsistency, be void. . H
630 SUPREME COURT REPORTS [2012] 4 S.C.R.
A (2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of
the contraventi()n, be void.
(3) In this article, unless the context otherwise requires,-
B
(a) "law'' includes any Ordinance, order, bye-law,
rule, regulation, notification, custom or usage having
in the territory of India the force of law;
c (b) "laws in force" includes laws passed or made
by a Legislature or other competent authority in the
territory of India before the commencement of this
Constitution and not previously repealed,
notwithstanding that any such law or any part thereof
D may not be then in operation either at all or in
particular areas.
(4) Nothing in this article shall apply to any amendment of
this Constitution made under Article 368.
E 27. It is obvious from the aforesaid that Article 13(2) clearly
prohibits the making of any law by the State which takes away
or abridges rights, conferred by Part Ill of the Constitution. In
the event of such a law being made the same shall be void to
the extent of contravention.
F
28. It is obvious that only the judiciary can give the
declaration that a law being in contravention of the mandate of
Part-Ill of the Constitution is void. Therefore, power of judicial
review is inherent in our Constitution. Article 13 of the
G Constitution is, therefore, a unique feature in our Constitution.
29. Mr. Banerjee, the learned A.S.G appearing on behalf
of Union of India submitted that after notice was issued in this
matter to the Attorney General, the matter was examined by the
Government of India and a tentative decision to amend Section
H 27(3) of the Act retrospectively with effect from 27th May, 1988
STATE OF PUNJAB v. DALBIR SINGH 631
[ASOK KUMAR GANGULY, J.]
was under the contemplation of the Government. Pursuant to A
such exercise, the Union Home Minister gave notice to the
Secretary General of the Lok Sabha on 17th November, 2011
of its intention to move for leave to introduce the said Bill in the
Lok Sabha and the Bill was introduced in the Lok Sabha in the
following form. The form in which it is sought to be introduced B
in the Lok Sabha is as follows:
"Be it enacted by Parliament in the Sixty-second year
of the Republic of India as follows:-
1. (1) This Act may Short title and c
be called the Arms commencement
(Amendment) Act, 2011
(2) It shall be deemed to have
come into force on the 27th
D
day of May, 1988
54 of 2. In the Arms Act, 1959 in
1959 Section 27, in sub-section
(3), for the words "shall be
punishable with death" The E
words "shall be
punishable with death or
imprisonment for life and
shall also be liable to fine",
shall be substituted. F
30. Leaned Addi. Solicitor General submitted that in the
light of the aforesaid pronouncement by this Court in Mithu vs.
State of Punjab - (1983) 2 SCC 277, the government is
examining the question of making suitable amendments as
indicated above to Section 27(3) of the Act. G
31. This Court, however, is not inclined to defer its decision.
The Court, however, cannot refuse to examine the provision in
view of a very fair stand taken by learned ASG.
32. The Judges of this Court have taken an oath to uphold H
632 SUPREME COURT REPORTS [2012] 4 S.C.R.
A and preserve the Constitution and it is well known that this Court
has to protect the Constitution as a sentinel on the qui vive
against any abridgement of its principles and percepts.
33. It may be noted that Section 27(3) as it stands as on
date was considered by this Court in several judgments. Those
B judgments are noted hereinbelow.
34. It was considered in the case of Subhash Ramkumar
Bind Alias Vakil and another vs. State of Maharashtra reported
in (2003) 1 sec 506. In that case the appellant Bind was
charged under Section 302/34 and also under Section 27(3)
C of the Act and death sentence was awarded to Bind by the
Sessions Court and the same was affirmed by the High Court.
This Court while reducing the death sentence awarded by the
High Court to one of life did not pronounce on the constitutional
validity of Section 27(3) even though this Court referred to the
D statement of Objects and Reasons of the Amending Act which
introduced Section 27(3). This Court found that the arms in
question could not be brought within the definition of 'prohibited
arms' as defined under Section 2(i) of the Act. This Court held
that in order to bring the arms in question within the prohibited
E arms, the requirement of the statute was to issue a formal
notification in the Official Gazette but as the State was relying
on an administrative notification, this Court held that the same
cannot be treated as a gazette notification and the conviction
of Bind under Section 27(3) of the Act was set aside. This Court
F did not pronounce either way on the constitutional validity of
Section 27(3). Therefore, the decision in Bind (supra) is not an
authority on the constitutional validity of Section 27(3) of the Act.
35. Section 23 was again considered by this Court in the
case of Surendra Singh Rautela vs. State of Bihar (now State
G of Jharkhand) - (2002) 1 SCC 266. The appellant Surendra
Singh Rautela was initially convicted under Section 27(3) of the
Arms Act and was given- death penalty. Thereafter, the same
sentence was set aside by the High Court on merits.
36. In Surendra Singh (supra), before this Court learned
H
STATE OF PUNJAB v. DALBIR SINGH 633
[ASOK KUMAR GANGULY, J.]
senior counsel appearing on behalf of the State very fairly A
stated that he was not in a position to challenge the order of
acquittal of the appellant under Section 27(3) on merits.
Therefore, the question of constitutional validity of Section 27(3)
was neither canvassed nor examined before this Court.
37. The question of constitutional validity of Section 27(3) B
of the Arms Act was referred to Full Bench of Punjab and
Haryana High Court in the case of State of Punjab vs. Swaran
Singh - Murder Reference No. 5 of 2000 decided on 26.5.2009.
38. The matter went before the Full Bench as the Division
Bench of the High Court of Punjab and Haryana expressed C
doubt about the correctness of the decision rendered by the
Division Bench in Santokh Singh vs. State of Punjab, 2000(3)
Recent Criminal Reports 637.
39. The following questions were raised: D
(i) Whether the judgment of Division Bench is correct
in law?
(ii) Whether section 27(3) of the Arms Act is
unconstitutional being violative of Article 14 and 21
of the Constitution of India? E
40. The Court found that a 303 rifle has not been notified
as a prohibited arm by the Central Government. The Court dealt
with the provisions of Rule 3 and Schedule I to the said Rules
categorising arrns and ammunition for the purpose of Rule 3 F
under the said Act.
41. On such consideration, the Full Bench, on a careful
reading of Rules 3 and 4 and two Schedules, came to a
conclusion that in the absence of a notification by the
Government declaring 303 rifle as a prohibited arm, the said G
weapon cannot be treated as the one prohibited under the Act
and accordingly affirmed the view taken in the case of Santokh
Singh (supra). However, the Full Bench did not answer the
question No.2 in the light of the law declared in Mithu (supra).
Therefore the constitutional validity of Section 27(3) has not H
634 SUPREME COURT REPORTS [2012] 4 S.C.R.
A been decided by the Full Bench.
42. The question of constitutional validity of mandatory
death sentence was examined by this court in Mithu (supra).
In that case the constitutional validity of Section 303 of IPC
came up for consideration. Provision of Section 303 of IPC is
B set out below:
"303. Punishment for murder by life-convict.-
Whoever, being under sentence of imprisonment for life,
commits murder shall be punished with death."
c 43. Chief Justice Y.V. Chandrachud giving the majority
opinion held that the sentence of death, prescribed by Section
303 of IPC for the offence of murder committed by a person
who is under a sentence of life imprisonment is a savage
sentence and this Court held that the same is arbitrary and
oppressive being violative of Articles- 21 and 14 of the
0
Constitution. Relevant para 23 at page ~96 of the report is set
out below:
"23. On a consideration of the various circumstances which
we have mentioned in this judgment, we are of the opinion
E that Section 303 of the Penal Code violates the guarantee
of equality contained in Article 14 as also the right
conferred by Article 21 of the Constitution that no person
shall be deprived of his life or personal liberty except
according to procedure established by law. The section
was originally conceived to discourage assaults by life
F
convicts on the prison staff, but the legislature chose
language which far exceeded its intention. The Section
also assumes that life convicts are a dangerous breed of
humanity as a class. That assumption is not supported by
any scientific data. As observed by the Royal Commission
G
in its Report on "Capital Punishment":
"There is a popular belief that prisoners serving a
life sentence after conviction of murder form a
specially troublesome and dangerous class. That is
H not so. Most find themselves in prison because they
STATE OF PUNJAB v. DALBIR SINGH 635
[ASOK KUMAR GANGULY, J.]
have yielded to temptation under the pressure of a A
combination of circumstances unlikely to recur."
In Di/ip Kumar Sharma v. State of M.P., this Court was
not concerned with the question of the vires of Section 303,
but Sarkaria, J., in his concurring judgment, described the 8
vast sweep of that Section by saying that "the section is
Draconian in severity, relentless and inexorable in
operation" [SCC para 22, p. 567: SCC (Cri) p. 92). We
strike down Section 303 of the Penal Code as
unconstitutional and declare it void. It is needless to add C
that all cases of murder will now fall under Section 302 of
the Penal Code and there shall be no mandatory sentence
of death for the offence of murder."
44. In the said judgment, Chief Justice Y.V. Chandrachud,
who was delivering the majority judgment observed that the D
col'i has to exercise its discretion in the matter of life and death.
In the opinion of the learned Chief Justice any sentencing
process by which the legislature deprives the courts of their
legitimate jurisdiction to exercise their discretion not to impose
the death sentence in appropriate cases, and compels them E
to shut their eyes to mitigating circumstances is
unconscionable. The relevant observations made in paragraphs
12 and 16 are set out below
"12. The other class of cases in which, the offence of
murder is committed by a life convict while he is on parole F
or on bail may now be taken up for consideration. A life
convict who is released on parole or on bail may discover
that taking undue advantage of his absence, a neighbour
has established illicit intimacy with his wife. If he finds them
in an amorous position and shoots the seducer on the spot, G
he may stand a fair chance of escaping from the charge
of murder, since the provocation is both grave and sudden.
But if, on seeing his wife in the act of adultery, he leaves
the house, goes to a shop, procures a weapon and returns
to kill her paramour, there would be evidence of what is H
636 SUPREME COURT REPORTS [2012] 4 S.C.R.
A called mens rea, the intention to kill. And since, he was not
acting on the spur of the moment and went away to fetch
a weapon with murder in his mind, he would be guilty of
murder. It is a travesty of justice not only to sentence such
a person to death but to tell him that he shall not be heard
B why he should not be sentenced to death. And, in these
circumstances, now does the fact that the accused was
under a sentence of life imprisonment when he committed
the murder, justify the law that he must be sentenced to
death? In ordinary life, we will not say it about law, it is not
c reasonable to add insult to injury. But, apart from that, a
provision of law which deprives the Court of the use of its
wise and beneficent discretion in a matter of life and death,
without regard to the circumstances in which the offence
was committed and, therefore, without regard to the gravity
of the offence, cannot but be regarded as harsh, unjust and
D
unfair. It has to be remembered that the measure of
punishment for an offence is not afforded by the label which
that offence bears, as for example 'theft', 'breach of trust'
or 'murder'. The gravity of the offence furnishes the
guideline for punishment and one cannot determine how
E grave the offence is without having regard to the
circumstances in which it was committed, its motivation
and its repercussions. The legislature cannot make
relevant circumstances irrelevant, deprive the courts of
their legitimate jurisdiction to exercise their discretion not
F to impose the death sentence in appropriate cases,
compel them to shut their eyes to mitigating circumstances
and inflict upon them the dubious and unconscionable duty
of imposing a preordained sentence of death. Equity and
good conscience are the hallmarks of justice. The
G mandatory sentence of death prescribed by Section 303,
with no discretion left to the court to have regard to the
circumstances which led to the commission of the crime,
is a relic of ancient history. In the times in which we live,
that is the lawless law of military regimes. We, the people
H of India, are pledged to a different set of values. For us,
STATE OF PUNJAB v. DALBIR SINGH 637
[ASOK KUMAR GANGULY, J.]
law ceases to have respect and relevance when it compels A
the dispensers of justice to deliver blind verdicts by
decreeing that no matter what the circumstances of the
crime, the criminal shall be hanged by the nPr.k until he is
dead.
B
16. Thus, there is no justification for prescribing a
mandatory sentence of death for the offence of murder
committed inside or outside the prison by a person who
is under the sentence of life imprisonment. A standardized
mandatory sentence, and that too in the form of a sentence C
of death, fails to take into account the facts and
circumstances of each particular case. It is those facts and
circumstances which constitute a safe guideline for
determining the question of sentence in each individual
case. "The infinite variety of cases and facets to each
would make general standards either meaningless 'boiler D
plate' or a statement of the obvious ....... " As observed by
Palekar, J., who spoke for a Constitution Bench in
Jagmohan Singh v. State of UP.: [SCC para 26, p. 35:
sec (Cri) p. 1 a41
E
"The impossibility of laying down standards is at the
very core of the criminal law as administered in
India which invests the judges with a very wide
discretion in the matter of fixing the degree of
punishment. ... The exercise of judicial discretion on F
well-recognised principles is, in the final analysis,
the safest possible safeguard for the accused."
45. In his concurring judgment Justice 0. Chinnappa Reddy
held as follows:
G
"25. Judged in the light shed by Maneka Gandhi and
Bachan Singh, it is impossible to uphold Section 303 as
valid. Section 303 excludes judicial discretion. The scales
of justice are removed from the hands of the Judge so
soon as he pronounces the accused guilty of the offence. H
638 SUPREME COURT REPORTS [2012) 4 S.C.R.
A So final, so irrevocable and so irrestitutable [sic
irresuscitable] is the sentence of death that no law which
provides for it without involvement of the judicial mind can
be said to be fair, just and reasonable. Such a law must
necessarily be stigmatised as arbitrary and oppressive.
B Section 303 is such a law and it must go the way of all
bad laws. I agree with my Lord Chief Justice that Section
303, Indian Penal Code, must be struck down as
unconstitutional."
46. It is now well settled that in view of decision in Maneka
C Gandhi vs. Union of India - (1978) 1 SCC 248, Bachan Singh
Vs. State of Punjab - (1980) 2 SCC 684 and Mithu (supra)
'due process of law' is part of our Constitutional jurisprudence.
47. The Constitution Bench in Sunil Batra vs. Delhi
D Administration and Others - (1978) 4 SCC 494, has also held
that the guarantee against cruel and harsh punishment given
in the Eighth Amendment of the U.S. Constitution is also part
of our constitutional guarantee. Once the concept of 'due
process of law' and the guarantee against harsh and cruel
E punishment (Eighth Amendment of the U.S. Constitution) are
woven in our Constitutional guarantee, it is the duty of this Court
to uphold the same whenever any statute even prima-facie
seeks to invade the same. This also seems to be the mandate
of Article 13(2) of the Constitution of India.
F 48. Mr. Banerjee, learned ASG has rendered considerable
assistance to this Court by placing before the Court judgments
from different jurisdiction on the question of mandatory capital
punishment and also decisions where Court examined cases
of cruel and unusually harsh punishment.
G
49. In this connection we may refer to the judgment of the
U.S. Supreme Court in the case of James Tyrone Woodson
and Luby Waxton vs. State of North Carolina, 428 US 280 =
49 L Ed 2d 944. In that case the petitioners were convicted of
H first degree murder in view of their participation in an armed
STATE OF PUNJAB v. DALBIR SINGH 639
[ASOK KUMAR GANGULY, J.]
robbery of a food store. In the course of committing the crime A
a cashier was killed and a customer was severely wounded.
The petitioners were found guilty of the charges and sentenced
to death. The Supreme Court of North Carolina affirmed the
same. But then certiorari was granted by the U.S. Supreme
Court to examine the question whether imposition of death B
penalty in that case constituted a violation of the Eighth and
Fourteenth Amendments of the U.S. Constitution. The factual
background of that case is that in 1974 North Carolina General
Assembly codified a statute making death the mandatory
sentence for all persons convicted of first degree murder. c
Stewart, J., speaking for the Court held that the said mandatory
death sentence was unconstitutional and violated the Eighth
Amendment. The learned Judge held:-
" ... A process that accords no significance to relevant
facets of the character and record of the individual offender D
or the circumstances of the particular offense excludes
from consideration in fixing the ultimate punishment of
death the possibility of compassionate or mitigating
frailties of humankind. It treats all persons convicted of a
designated offense not as uniquely individual human E
beings, but as members of a faceless, undifferentiated
mass to be subjected to the blind infliction of the penalty
of death .
.... This Court has previously recognized that "for the F
determination of sentences, justice generally requires
consideration of more than the particular acts by which the
crime was committed and that there be taken into account
the circumstances of the offense together with the
character and propensities of the offender." ....
Consideration of both the offender and the offense in order G
to arrive at a just and appropriate sentence has been
viewed as a progressive and humanizing development.
...While the prevailing practice of individualizing sentencing
determinations generally reflects simply enlightened policy H
640 SUPREME COURT REPORTS [2012] 4 S.C.R.
A rather than a constitutional imperative, we believe that in
capital cases the fundamental respect for humanity
underlying the Eighth Amendment, see Trop v Dulles, 356
US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion),
requires consideration of the character and record of the
B individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the
process of inflicting the penalty of death .... This conclusion
rests squarely on the predicate that the penalty of death
is qualitatively different from a sentence of imprisonment,
c however long. Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one
of only a year or two. Because of that qualitative difference,
there is a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific case."
D
50. However, strong dissent was expressed by Justice
White, Chief Justice Burger and Justice Rehnquist. According
to these learned Judges, North Carolina statute providing for
mandatory death penalty upon proof of guilt in a case of first
E degree murder was constitutionally valid.
51. A similar conclusion was pronounced on the same day
i.e. 2nd July, 1976 in Stanislaus Roberts vs. State of Louisiana,
=
428 US 325 49 L Ed 2d 974 in a case of death penalty for a
F crime of first degree murder under the laws of Louisiana. Justice
John Paul Stevens giving the majority opinion observed at
pages 981-982 of the report as follows:-
" ... The history of mandatory death penalty statutes
indicates a firm societal view that limiting the scope of
G capital murder is an inadequate response to the harshness
and inflexibility of a mandatory death sentence statute ....
A large group of jurisdictions first responded to the
unacceptable severity of the common-law rule of automatic
death sentences for all murder convictions by narrowing
H the definition of capital homicide. Each of these
STATE OF PUNJAB v. DALBIR SINGH 641
[ASOK KUMAR GANGULY, J.]
jurisdictions found that approach insufficient and A
subsequently substituted discretionary sentencing for
mandatory death sentences. See Woodson v North
Carolina, ante, at 290-292, 49 L Ed 2d 944, 96 S Ct
2978."
B
"The futility of attempting to solve the problems of
mandatory death penalty statutes by narrowing the scope
of the capital offense stems from our society's rejection of
the belief that "every offense in a like legal category calls
for an identical punishment without regard to the past life C
and habits of a particular offender". Williams v. New York,
337 US 241, 247, 93 L Ed 1337, 69 S Ct 1079 (1949).
See also Pennsylvania v. Ashe, 302 US 51, 55, 82 L Ed
43, 58 S Ct 59 (1937)."
"The constitutional vice of mandatory death sentence D
statutes - lack of focus on the circumstances of the
particular offense and the character and propensities of the
offender - is not resolved by Louisiana's limitation of first-
degree murder to various categories of killings. The
diversity of circumstances presented in cases falling within E
the single category of killings during the commission of a
specified felony, as well as the variety of possible offenders
involved in such crimes, underscores the rigidity of
Louisiana's enactment and its similarity to the North
Carolina statute. Even the other more narrowly drawn F
categories of first-degree murder in the Louisiana .law
afford no meaningful opportunity for consideration of
mitigating factors presented by the circumstances the
particular crime or by the attributes of the individual
offender." G
52. Here also Chief Justice Burger, White J., Balckmum,
J., and Rehnquist, J., dissented and upheld the constitutionality
of the Louisiana statute.
53. In Harry Roberts vs. State of Louisiana, 431 US 633 H
642 SUPREME COURT REPORTS (2012] 4 S.C.R.
A =52 L Ed 2d 637, the case arose out of a Louisiana statute
imposing mandatory death penalty for the first degree murder
of a police officer. The Court opined:-
"To be sure, the fact that the murder victim was a peace
officer performing his regular duties may be regarded as
B
an aggravating circumstance. There is a special interest
in affording protection to these public servants who
regularly must risk their lives in order to guard the safety
of other persons and property. But it is incorrect to
suppose that no mitigating circumstances can exist when
c the victim is a police officer. Circumstances such as the
youth of the offender, the absence of any prior conviction,
the influence of drugs, alcohol, or extreme emotional
disturbance, and even the existence of circumstances
which the offender reasonably believed provided a moral
D justification for his conduct are all examples of mitigating
facts which might attend the killing of a peace officer and
which are considered relevant in other jurisdictions.
As we emphasized repeatedly in Roberts and its
E companion cases decided last Term, it is essential that the
capital sentencing decision allow for consideration of
whatever mitigating circumstances may be relevant to
either the particular offender or the particular offense.
Because the Louisiana statute does not allow for
F consideration of particularized mitigating factors, it is
unconstitutional."
54. Accordingly, death penalty was set aside by the
majority and the matter was remitted for further proceeding.
Here also Chief Justice Burger, Justice Blackmum, Justice
G White and Justice Rehnquist gave strong dissents, opining that
the statute was constitutionally valid.
55. Again similar question came up before the U.S.
Supreme Court in George Summer vs. Raymond Wallace
H =
Shuman, 483 US 66 97 L Ed 2d 56. This case came from
STATE OF PUNJAB v. DALBIR SINGH 643
[ASOK KUMAR GANGULY, J.)
Nevada which mandated death penalty for murder committed A
by a person while serving a life sentence without the possibility
of parole. The statutory provision considered in this case is
somewhat akin to Section 303 of Indian Penal Code. Justice
Blackmum delivering the majority opinion held that Nevada
statute was unconstitutional being violative of Eighth and B
Fourteenth Amendments. The learned Judge held:-
" ...... This Court has recognized time and again that the
level of criminal responsibility of a person convicted of
murder may vary according to the extent of that individual's C
participation in the crime. See, e.g., Tison v. An'zona, 481
US 137, 95 L Ed 2d 127,107 S Ct 1676 (1987); Enmund
Florida, 458 US 782, 73 L Ed 2d 1140, 102 S Ct 3368
(1982). Just as the level of an offender's involvement in a
routine crime varies, so too can the level of involvement of
an inmate in a violent prison incident. An inmate's D
participation may be sufficient to support a murder
conviction, but in some cases it may not be sufficient to
render death an appropriate sentence, even though it is a
life-term inmate or an inmate serving a particular number
of years who is involved. E
...... The circumstances surrounding any past offense may
vary widely as well. Without consideration of the nature of
the predicate life-term offense and the circumstances
surrounding the commission of that offense, the label "life- F
term inmate" reveals little about the inmate's record or
character. Even if the offense was first-degree murder,
whether the defendant was the primary force in that
incident, or a no triggerman like Shuman, may be relevant
to both his criminal record and his character. Yet under the G
mandatory statute, all predicate life-term offenses are
given the same weight - a weight that is deemed to
outweigh any possible combination of mitigating
circumstances."
H
644 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 56. The Court insisted on a guided discretion on the
statute by holding:-
"... state interests can be satisfied fully through the use of
a guided-discretion statute that ensures adherence to
B constitutional mandate of heightened reliability in death-
penalty determinations through individualized sentencing
procedures. Having reached unanimity on the constitutional
significance of individualized sentencing in capital cases,
we decline to depart from that mandate in this case today.
We agree with the courts below that the statute under which
c respondent Shuman was sentenced to death did not
comport with the Eighth and Fourteenth Amendments."
57. This judgment was also dissented by Justice White,
Chief Justice Rehnquist and Justice Scalia.
D
58. In this connection if we look at some of the judgments
delivered by the Privy Council we would find the same principle
has been followed in Reyes vs. The Queen, (2002) 2 AC 235
= (2002) UKPC 11. In Reyes (supra) the appellant was
E convicted and sentenced to death under the laws of Belize he
committed the murder by shooting. The Privy Council granted
leave to the accused to raise two issues on constitutional points
- (i) mandatory death penalty infringes both the protection
against subjection to inhuman or degrading punishment or other
treatment in violation of rights under Section 7 of the
F Constitution of Belize and also in violation of the right to life
protected under Sections 3 and 4 of the said Constitution. The
second issue was on the constitutionality of hanging. Section
4(1) and Section 7 of the Constitution of Belize are as follows:-
G "4(1 ). A person shall not be deprived of his life intentionally
save in execution of the sentence of a court in respect of
a criminal offence under any law of which he has been
convicted."
H
"7. No person shall be subjected to torture or to inhuman
STATE OF PUNJAB v. DALBIR SINGH 645
[ASOK KUMAR GANGULY, J.]
or degrading punishment or other treatment." A
59. In the case of Reyes (supra) the decision of this Court
in Mithu (para 36 page 252 of the report) as also the decision
of this Court in Bachan Singh (para 43, page 256 of the report)
were considered. The Board observed:-
B
" ... The Board is however satisfied that the provision
requiring sentence of death to be passed on the defendant
on his conviction of murder by shooting subjected him to
inhuman or degrading punishment or other treatment
incompatible with his right under section 7 of the C
Constitution in that it required sentence of death to be
passed and precluded any judicial consideration of the
humanity of condemning him to death. The use of firearms
by dangerous and aggressive criminals is an undoubted
social evil and, so long as the death penalty is retained, D
there may well be murders by shooting which justify the
ultimate penalty. But there will also be murders of quite a
different character (for instance, murders arising from
sudden quarrels within a family, or between neighbours,
involving the use of a firearm legitimately owned for no E
criminal or aggressive purpose) in which the death penalty
would be plainly excessive and disproportionate. In a crime
of this kind there may well be matters relating both to the
offence and the offender which ought properly to be
considered before sentence is passed. To deny the F
offender the opportunity, before sentence is passed, to
seek to persuade the court that in all the circumstances to
condemn him to death would be disproportionate and
inappropriate is to treat him as no human being should be
treated and thus to deny his basic humanity, the core of G
the right which section 7 exists to protect. .. "
60. In paragraph 44 at page 257 of the report the Board
made a very valid and very interesting distinction between
mercy and justice, which is set out below:-
H
646 SUPREME COURT REPORTS [2012] 4 S.C.R.
A " ...... Mercy, in its first meaning given by the Oxford English
Dictionary, means forbearance and compassion shown by
one person to another who is in his power and who has
no claim to receive kindness. Both in language and
literature mercy and justice are contrasted. The
B administration of justice involves the determination of what
punishment a transgressor deserves, the fixing of the
appropriate sentence for the crime. The grant of mercy
involves the determination that a transgressor need not
suffer the punishment he deserves, that the appropriate
c sentence may for some reason be remitted. The former
is a judicial, the latter an executive, responsibility ....... It
has been repeatedly held that not only determination of guilt
but also determination of the appropriate measure of
punishment are judicial not executive functions ..... The
opportunity to seek mercy from a body such as the
D
Advisory Council cannot cure a constitutional defect in the
sentencing process."
61. The Privy Council thus overruled the decision of the
Court of Appeal of Belize.
E
62. In Regina v. Hughes, (2002) 2 AC 259 (2002)=
UKPC 12, the defendant (accused) was convicted by the High
Court of Saint Lucia for murder. The Criminal Code of Saint
Lucia provided death sentence to be imposed on anybody who
F is convicted of murder and Hughes was sentenced to death.
The Board found that under Section 178 of the Criminal Code,
imposition of death sentence for murder was mandatory and
the Court had no power to impose a lesser sentence. The
Board held such inhuman and degrading sentencing procedure
G to be void. In this case also this Court's decision in Mithu
(supra) and Bachan Singh (supra) were considered by the
Privy Council. In paragraph 52, the Board held:-
" ...... It follows that the decision as to the appropriate
penalty to impose in the case of murder should be taken
H by the judge after hearing submissions and, where
STATE OF PUNJAB v. DALBIR SINGH 647
[ASOK KUMAR GANGULY, J.]
appropriate, evidence on the matter. In reaching and A
articulating such decisions, the judges will enunciate the
relevant factors to be considered and the weight to be
given to them, having regard to the situation in Saint Lucia.
The burden thus laid on the shoulders of the judiciary is
undoubtedly heavy but it is one that has been carried by B
judges in other systems. Their Lordships are confident that
the judges of Saint Lucia will discharge this new
responsibility with all due care and skill."
63. Therefore, the constitutionality of Section 178 of the C
statute was not affirmed and instead matter was left to the
discretion of the judges.
64. The question again came up before the Privy Council
in the case of Fox vs. The Queen (2002 (2) AC 284).
D
65. In that case the defendant was convicted by the High
Court of Saint Chrisopher and Nevis on two counts of murder
and he was sentenced to death on each count pursuant to
Section 2 of the Offences against the Person Act, 1873, which
prescribed a mandatory death sentence for murder. His appeal E
against conviction and sentence was dismissed by the Eastern
Caribbean Court of Appeal (Saint Christopher and Nevis). Then
the Judicial Committee of the Privy Council granted him special
leave to appeal against both conviction and sentence. Ultimately
appeal was dismissed against conviction, but on the question F
of sentence the Privy Council held that Section 2 of the offences
against the Person Act, 1873 was inconsistent with section 7
of the Constitution and accordingly sentence of death was
quashed and the matter was remitted to the High Court to
determine the appropriate sentence having regard to all the G
circumstances of the case and in the light of the evidence
relevant to the choice of sentences. In doing so the Privy Council
applied its ratio in the case of Reyes (supra) and also the ratio
in Regina (supra).
66. The Privy Council again had to consider the same H
648 SUPREME COURT REPORTS [2012) 4 S.C.R.
A question in Bowe & Anr. vs. The Queen -(2006) 1 WLR 1623.
In that case also both he appellants were convicted for murder
and sentenced to death in terms of the Section 312 of the Penal
Code of The Bahamas and their appeals against conviction did
not succeed.
B
67. Section 312 of the Code was challenged to the extent
that it provides that persons other than pregnant women
charged for murder under Section 312 of the Code must be
punished by death sentence.
c 68. In that case the Court of Appeal held by a majority that
any challenge to the constitutionality of the Code providing for
mandatory sentence must be made to the Supreme Court.
69. Allowing the appeal, the Privy Council held that the
0 Court of appeal erred in construing Article 28 of the Constitution
as precluding it from entertaining a challenge to the
constitutionality of a sentencing provision.
70. In paragraph 29 of the judgment, the Privy Council
formulated the principles which are relevant for consideration
E in a case of mandatory death sentence. The said principles are
set out below:
(I) It is a fundamental principle of just sentencing that
the punishment imposed on a convicted defendant
F should be proportionate to the gravity of the crime
of which he has been convicted.
(II) The criminal culpability of those convicted of murder
varies very widely.
G (Ill) Not all those convicted of murder deserve to die.
(IV) Principles (I), (II) and (Ill) are recognised in the law
or practice of all, or almost all, states which impose
the capital penalty for murder.
H
STATE OF PUNJAB v. DALBIR SINGH 649
[ASOK KUMAR GANGULY, J.]
(V) Under an entrenched and codified Constitution on A
the Westminster model, consistently with the rule
of law, any discretionary judgment on the measure
of punishment which a convicted defendant should
suffer must be made by the judiciary and not by the
executive. B
71. The Privy Council answered the question in
paragraphs 30, 31, 32, 34 and 35 of the judgment.
72. In para 43 the conclusion of the Board was as follows:
c
"The Board will accordingly advise Her Majesty that
section 312 should be construed as imposing a
discretionary and not a mandatory sentence of death. So
construed, it was continued under the 1973 Constitution.
These appeals should be allowed, the death sentences 0
quashed and the cases remitted to the Supreme Court for
consideration of the appropriate sentences. Should the
Supreme court, on remission, consider sentence of death
to be merited in either case, questions will arise on the
lawfulness of implementing such a sentence, but they are E
not questions for the Board on these appeals."
73. In the unreported judgment of the Privy Council in
Bernard Coard and Others vs. The Attorney General (Criminal
Appeal No. 10/2006) the same principle has been upheld. In
that appeal from the Court of Appeal of Grenada, the Judicial F
Committee of Privy Council consisted of Lord Bingham of
Cornhill, Lord Hoffmann, Lord Phillips of Worth Matravers, Lord
Carswell and Lord Brown of Eaton-under-Heywood. The facts
were that in Grenada, a revolutionary outfit was split into two
factions, one of which was led by the appellant Bernard Coard. G
In a violent incident Maurice Bishop, the then Prime Minister
of Grenada and others we.re executed by Coard's supporters.
Over that incident, the appellants were mandatorily sentenced
to death for murder. However the Governor General commuted
the death sentence to life imprisonment, and a pardon was H
650 SUPREME COURT REPORTS [2012] 4 S.C.R.
A granted on the condition that the appellants be kept in custody
with hard labour for the remainder of their lives. The appellant
challenged the sentence.
74. The Board, while rejecting the other contention by the
B appellant, allowed the appeal on the ground that the mandatory
death sentence was unconstitutional. The Board relied on its
previous decision in Regina (supra). In paragraph 32 of the
judgment, the Board inclined in favour of accepting the principle
of determination of a sentence by the judiciary rather than
accepting the statutory mandate of a death sentence. The
C judgment by Lord Hoffmann laid down the following principles:
"32. Fifthly, and perhaps most important, is the highly
unusual circumstance that, for obvious reasons, the
question of appellants' fate is so politically charged that it
D is hardly reasonable to expect any Government of
Grenada, even 23 years after the tragic events of October
1983, to take an objective view of the matter. In their
Lordships opinion that makes it all the more important that
the determination of the appropriate sentence for the
E appellants, taking into account such progress as they have
made in prison, should be the subject of a judicial
determination."
75. Similar principles were followed in the High Court of
Malawi in the case of Francis Kafantayeni and Others vs.
F Attorney General (Constitutional Case No.12 of 2005 [2007]
M.W.H.C.1). Facts therein were that the accused was convicted
of murder and sentenced to mandatory death penalty. The
challenge to the constitutionality of death penalty was on four
grounds, all based on the Malawi Constitution. The first ground
G related to depravation of right to life under Section 16, the
second related to inhuman and degrading treatment under
Section 19, the third related to right to a fair trial under Section
42 (2) (f) and finally the fourth challenge was that it violated
principles of separation of powers of State.
H
STATE OF PUNJAB v. DALBIR SINGH 651
[ASOK KUMAR GANGULY, J.]
76. The Court, after analyzing the relevant provisions of the A
Constitution and the Penal Code, and the leading authority or
Reyes (supra}, struck down mandatory death penalty holding
that such penalty was degrading and inhuman, and denied the
right to a fair trial. The Court expressed its opinion in the
following words: B
"We agree with counsel that the effect of the mandatory
death sentence under section 210 of the Malawi Penal
Code for the crime of murder is to deny the accused as a
convicted person the right to have his or her sentence C
reviewed by a higher court than the court that imposed the
sentence; and we hold that this is a violation of the right to
a fair trial which in our judgment extends to sentencing."
77. In the concluding portion of the judgment, the court, by
exercising a degree of caution, observed as follows: D
"Pursuant to Section 5 of the Constitution, we declare
section 210 of the Penal Code to be invalid to the extent
of the mandatory requirement of the death sentence for the
offence of murder. For the removal of doubt, we state that E
our declaration does not outlaw the death penalty for the
offence of murder, but only the mandatory requirement of
the death penalty for that offence. The effect of our decision
is to bring judicial discretion into sentencing for the offence
of murder, so that the offender shall be liable to be
sentenced to death only as the maximum punishment." F
78. The Supreme Court of Uganda, at Mengo, struck a
similar note in the case of Attorney General vs. Susan Kigula
and 417 others (Constitution Appeal No.03/2006). Out of the
various issues urged before the Court, one of them was, that G
the laws of Uganda, which provide for mandatory death
sentence were unconstitutional and that the carrying out of a
death sentence after a long delay is a cruel, inhuman and
degrading treatment. Equally degrading is the legal mode of
carrying out a death sentence by hanging. The majority of the H
652 SUPREME COURT REPORTS [2012] 4 S.C.R.
A judges by relying upon Mithu (supra) and Reyes (supra),
James Tyrone Woodson (supra) held that imposition of
mandatory death sentence for certain offences was
unconstitutional. A most pertinent ruling has been given in the
following words:
B
"In our view if there is one situation where the framers of
the Constitution expected an inquiry, it is the one involving
a death penalty. The report of the Judge is considered so
important that it forms a basis for advising the President
on the exercise of the prerogative of mercy. Why should it
c not have informed the Judge in passing sentence in the
first place."
79. Furthermore, the administration of justice was
considered a function of the Judiciary under Article 126 of the
D Constitution. The entire process of trial from the arraignment
of an accused person to his/her sentencing was what
constitutes administration of justice. By providing mandatory
death penalty Parliament removed the power to determine
sentence from the Court's power and that, the Court is to be
E inconsistent with Article 126 of the Constitution.
The Court further held:
"We do not agree with learned counsel for the Attorney
General that because Parliament has the powers to pass
F laws for the good governance of Uganda, it can pass such
laws as those providing for a mandatory death sentence.
In any case, the Laws passed by Parliament must be
consistent with the Constitution as provided for in article
2 (2) of the Constitution."
G
It also held:
"Furthermore, the Constitution provides for the separation
of powers between the Executive, the Legislature and the
Judiciary. Any law passed by Parliament which has the
H
STATE OF PUNJAB v. DALBIR SINGH 653
[ASOK KUMAR GANGULY, J.)
effect of tying the hands of the judiciary in executing its A
function to administer justice is inconsistent with the
Constitution. We also agree with Professor Sempebwa,
for the respondents, that the power given to the court under
article 22 (1) does not stop at confirmation of conviction.
The Court has power to confirm both conviction and B
sentence. This implies a power NOT to confirm, implying
that court has been given discretion in the matter. Any law
that fetters that discretion is inconsistent with this clear
provision of the Constitution."
80. In a still more recent decision in the case of Godfrey
c
Ngotho Mutiso vs. Republic (Criminal Appeal No.17/2008), the
Kenyan Court of Appeal pronounced its judgment in a criminal
appeal arising from the judgment of the High Court of Kenya.
The three-judge Bench delivering the verdict, considered the
matter as an issue of singular historical moment in the country D
in dealing with the offence of murder and penalty of death.
81. The Court formulated the following proposition:
"In its judgment, the Court of Appeal clarified the various E
issues, particularly, the fact that the appellant did not
challenge the conviction for the offence of murder nor the
constitutionality of the death penalty itself. The Court then
framed the issue for determination and listed out the
various authorities relied upon by the counsel. The
submissions made by the counsel for the appellants were
F
summarized by the Court as follows:
"The imposition of the mandatory death penalty for
particular offences is neither authorized nor prohibited in
the Constitution. As the Constitution is silent, it is for the G
courts to give a valid constitutional interpretation on the
mandatory nature of sentence.
Mandatory death sentence is antithetical to
fundamental human rights and there is no constitutional H
654 SUPREME COURT REPORTS [2012] 4 S.C.R.
A justification for it. A convicted person ought to be given an
opportunity to show why the death sentence should
not be passed against him.
The imposition of a mandatory death sentence is
arbitrary because the offence of murder covers a broad
B
spectrum. Making the sentence mandatory would therefore
be an affront to the human rights of the accused.
Section 204 of the Penal Code is unconstitutional
and ought to be declared a nullity. Alternatively the word
c "shall" ought to be construed as "may".
There is a denial to (sic of) a fair hearing when no
opportunity is given to an accused person to offer
mitigating circumstances before sentence, which is the
D normal procedure in all other trials for non-capital offences.
Sentencing was part of the trial and mitigation was an
element of fair trial.
Sentencing is a matter of law and part of the
administration of justice which is the preserve of the
E Judiciary. Parliament should therefore only prescribe the
maximum sentence and leave the courts to administer
justice by sentencing the offenders according to the gravity
and circumstances of the case."
F 82. By formulating the aforesaid propositions, the Court
held that Section 204 of the Penal Code which provided for
mandatory death penalty was unconstitutional.
83. However, a discordant note was struck by the Privy
Council in one of its old judgments in the case of Ong Ah
G Chuan vs. Public Prosecutor and Another, (1981) A.C. 648.
The judgment was rendered by Lord Diplock, in a Bench
consisting of Lord Diplock, Lord Keith of Kinkel, Lord Scarman
and Lord Roskill. The Board heard the appeal from the Court
of Criminal Appeal from Singapore, against a conviction for the
H offence of drug trafficking of heroine in Singapore. As the
STATE OF PUNJAB v. DALBIR SINGH 655
[ASOK KUMAR GANGULY, J.]
amount of heroine was more than 15 grams in each case, a A
sentence of death was imposed on each of the defendants.
Even though, before the Court of Appeal, the constitutionality
of the provisions of the Drug Act was not challenged, leave was
sought before the Board on those issues. Especially the
constitutional issue was that the provision in Section 29 in. B
Schedule II for mandatory death penalty for trafficking in
controlled drugs, in excess of the prescribed quantities, was
unconstitutional.
84. The Board permitted the questions to be raised.
Ultimately, the Board came to the following findings: C
"The social object of the Drugs Act is to prevent the growth
of drug addition in Singapore by stamping out the illicit
drug trade and, in particular, the trade in those most
dangerously addictive drugs, heroin and morphine. The D
social evil caused by trafficking which the Drugs Act seeks
to prevent is broadly proportional to the quantity of
addictive drugs brought on to the illicit market. There is
nothing unreasonable in the legislature's holding the view
that an illicit dealer on the wholesale scale who operates E
near the apex of the distributive pyramid requires a
stronger deterrent to his transactions and deserves more
condign punishment than do dealers on a smaller scale
who operate nearer the base of the pyramid. It is for the
legislature to determine in the light of information that is F
available to it about the structure of the illicit drug trade in
Singapore, and the way in which it is carried on, where the
appropriate quantitative boundary lies between these two
classes of dealers. No plausible reason has been
advanced for suggesting that fixing a boundary at G
transactions which involve 15 grams of heroin or more is
so low as to be purely arbitrary.
The Court also held:
"Wherever a criminal law provides for a mandatory H
656 SUPREME COURT REPORTS [2012] 4 S.C.R.
A sentence for an offence there is a possibility that there may
be considerable variation in moral blameworthiness,
despite the similarity in legal guilt of offenders upon whom
the same mandatory sentence must be passed. In the case
of murder, a crime that is often committed in the heat of
B passion, the likelihood of this is very real; it is perhaps
more theoretical than real in the case of large scale
trafficking in drugs, a crime of which the motive is cold
calculated with equal punitive treatment for similar legal
guilt." (Page 674 of the report)
c 85. In their Lordships' view there is nothing unconstitutional
in the provision for a mandatory death penalty for trafficking in
significant quantities of heroin and morphine. Their Lordships
held that the quantity that attracts death penalty is so high as
to rule out the notion that it is the kind of crime that might be
D committed by a good hearted Samaritan out of the kindness
of his heart as was suggested in the course of argument. But
if by any chance it were to happen, the prerogative of mercy is
available to mitigate the rigidity of the law which the long
established constitutional way of doing is the same in
E Singapore as in England. (674 of the report)
86. However the aforesaid opinion of Lord Diplock, was
subsequently noticed by the Privy Council in Bowe (supra) at
page 1644, wherein the decision in Ong Ah Chuan (supra) was
F explained inter alia, on the ground that the Constitution of
Singapore does not have a comparable provision like the
Eighth Amendment of the American Constitution relating to
cruel and unusual punishment.
87. It is clear from the discussion hereinabove that
G mandatory death penalty has been found to be constitutionally
invalid in various jurisdictions where there is an independent
judiciary and the rights of the citizens are protected in a
Constitution.
H 88. It has already been noted hereinabove that in our
STATE OF PUNJAB v. DALBIR SINGH 657
[ASOK KUMAR GANGULY, J.]
Constitution the concept of 'due process' was incorporated in A
view of the judgment of this Court in Maneka Gandhi (supra).
The principles of Eighth Amendment have also been
incorporated in our laws. This has been acknowledged by the
Constitution Bench of this Court in Sunil Batra (supra). In para
52 at page 518 of the report, Justice Krishna Iyer speaking for B
the Bench held as follows:
"52. True, our Constitution has no 'due process' clause or
the VIII Amendment; but, in this branch of law, after Cooper
and Maneka Gandhi the consequence is the same. For C
what is punitively outrageous, scandalizingly unusual or
cruel and rehabilitatively counter-productive, is unarguably
unreasonable and arbitrary and is shot down by Articles
14 and 19 and if inflicted with procedural unfairness, falls
foul of Article 21."
D
89. Almost on identical principles mandatory death penalty
provided under Section 303 of the Indian Penal Code has been
held ultra vires by the Constitution Bench of this Court in Mithu
(supra). Apart from that it appears that in Section 27(3) of the
Act the provision of mandatory death penalty is more E
unreasonable inasmuch it provides whoever uses any
prohibited arms or prohibited ammunition or acts in
contravention of Section 7 and if such use or act results in the
death of any other person then that person guilty of such use
or acting in contravention of Section 7 shall be punishable with F
death. The word 'use' has not been defined in the Act.
Therefore, the word 'use' has to be viewed in its common
meaning. In view of such very wide meaning of the word 'use'
even an unintentional or an accidental use resulting in death of
any other person shall subject the person so using to· a death G
penalty. Both the words 'use' and 'result' are very wide. Such a
law is neither just, reasonable nor is it fair and falls out of the
'due process' test.
90. A law which is not consistent with notions of fairness
while it imposes an irreversible penalty like death penalty is H
658 SUPREME COURT REPORTS [2012] 4 S.C.R.
A repugnant to the concept of right and reason.
91. In Dr. Bonham case- (1610) 8 Co Rep 114a: 77ER
646, Lord Coke explained this concept several centuries ago.
The classical formulation by Lord Coke is:-
B "lt appears in our books, that in many cases, the common
law will control acts of Parliament, and sometimes adjudge
them to be utterly void: for when an act of Parliament is
against common right and reason, or repugnant, or
impossible to be performed, the common law will control
c it and adjudge such act to be void."
92. The principle of 'due process' is an emanation from
the Magna Carta doctrine. This was accep!ed in American
jurisprudence [See Munn vs. Illinois, 24 L Ed. 77 : 94 US 113,
D 142 (1876)].
93. Again this was acknowledged in Planned Parenthood
of Southeastern Pennsylvania vs. Casey, 120 L ED 2d 674,
wherein the American Supreme Court observed as follows:
E "The guarantees of due process, though having their roots
in Magna Carta's 'per legem terrae' and considered as
procedural safeguards 'against executive usurpation and
tyranny,' have in this country 'become bulwarks also
against arbitrary legislation'."
F
94. All these concepts of 'due process' and the concept
of a just, fair and reasonable law has been read by this Court
into the guarantee under Articles 14 and 21 of the Constitution.
Therefore, the provision of Section 27(3) of the Act is violative
of Article 14 and 21 of the Constitution.
G
95. Apart from that the said Section 27 (3) is a post
Constitutional law and has to obey the injunction of Article 13
which is clear and explicit. Article 13(2) is as follows:
H "13(2) The State shall not make any law which takes away
STATE OF PUNJAB v. DALBIR SINGH 659
[ASOK KUMAR GANGULY, J.]
or abridges the rights conferred by this Part and any law A
made in contravention of this clause shall, to the extent of
the contravention, be void."
96. In view of the aforesaid mandate of Article 13 of the
Constitution which is an Article within Part-Ill of our Constitution, B
Section 27(3) having been enacted in clear contravention of
Part-Ill rights, Section 27(3) of the Act is repugnant to Articles
14 and 21 and is void.
97. Section 27 (3) of the Act also deprives the judiciary from
discharging its Constitutional duties of judicial review whereby C
it has the power of using discretion in the sentencing procedure.
98. This power has been acknowledged in Section 302
of the Indian Penal Code and in Bachan Singh (supra) case it
has been held that the sentencing power has to be exercised o
in accordance with the statutory sentencing structure under
Section 235(2) and also under Section 354(3) of the Code of
Criminal Procedure.
99. Section 27(3) of the said Act while purporting to
impose mandatory death penalty seeks to nullify those salutary E
provisions in the Code. This is contrary to the law laid down in
Bachan Singh (supra).
100. In fact the challenge to the constitutional validity of
death penalty under Section 302 of Indian Penal Code has F
been negatived in Bachan Singh (supra) in view of the
sentencing structure in Sections 235(2) and 354 (3) of the
Criminal Procedure Code. By imposing mandatory death
penalty, Section 27(3) of the Act runs contrary to those statutory
safeguards which give judiciary the discretion in the matter G
imposing death penalty. Section 27(3) of the Act is thus ultra
vires the concept of judicial review which is one of the basic
features of our Constitution.
101. It has also been discussed hereinabove that the ratio
in both Bachan Singh (supra) and Mithu (supra) has been H
660 SUPREME COURT REPORTS [2012] 4 S.C.R.
A universally acknowledged in several jurisdictions across the
world and has been accepted as correct articulation of Article
21 guarantee. Therefore, the ratio in Mithu (supra) and Bachan
Singh (supra) represents the concept of Jus cogens meaning
thereby the peremptory non derogable norm in international law
8 for protection of life and liberty.
102. That is why it has been provided by the 44th
Amendment Act of 1978 of the Constitution, that Article 21
cannot be suspended even during proclamation of emergency
C under Article 359(vide Article 359(1)(a) of the Constitution.
103. This Court therefore holds that Section 27(3) of the
Arms Act is against the fundamental tenets of our Constitutional
law as developed by this Court.
0 104. This Court declares that Section 27(3) of Arms Act,
1959 is ultra vires the Constitution and is declared void. The
appeal is thus dismissed on merits and the High Court
judgment acquitting the respondent is affirmed.
8.8.8. Appeal dismissed.
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