VIKRAM SINGH@ VICKY & ANR.versusUNION OF INDIA & ORS.

                      [2013] 8 S.C.R. 1090


A               VIKRAM SINGH@ VICKY & ANR.
                                v.
                    UNION OF INDIA & ORS.
               (Criminal Appeal No. 824 of 2013)
                          JULY 2, 2013
B
            [T.S. THAKUR AND SUDHANSU JYOTI
                    MUKHOPADHAYA, JJ.]

       Penal Code, 1860 - s. 364A - Constitutional validity of
C - Challenged by appellants-convicts on the ground that
  inasmuch as the same prescribes death sentence for a case
  of kidnapping for ransom, the same is so harsh as to make it .
  unreasonable and unfair hence violative of Article 21 of the
  Constitution - Matter referred to larger Bench in view of the
o peculiar fact situation in which the instant case arose and the
  grounds on which provisions of s. 364A were assailed -
  Constitution of India, 1950 - Article 21.

      The appellants were sentenced to death by hanging
E both under Section 302 and 364A of IPC by the trial Court,
  which was upheld by the High Court and finally affirmed
  by the Supreme Court.

       Seeking review of their conviction on the ground that
  Section 364A IPC is itself unconstitutional being violative
F of Articles 14 and 21 of the Constitution, the appellants
  filed writ petition before the High Court praying for
  striking down Section 364A of IPC and for an order
  restraining the execution of the death warrant against
  them. Re-opening of the case of the appellants and
G commutation of the death sentence to imprisonment for -
  life were also prayed for in the said petition. The High
  Court dismissed the writ petition which was challenged
  in the instant appeals.

H                              1090
VIKRAM SINGH @VICKY &ANR v. UNION OF INDIA1091
                 & ORS.
      The constitutional validity of Section 364A of IPC was     A
challenged on the ground that inasmuch as the same
prescribes death sentence for a case of kidnapping for
ransom, the same is so harsh as to make it unreasonable
anc:I unfair hence violative of Article 21 of the Constitution
of India.                                                        B

    Referring the matter to larger Bench, the Court

     HELD: 1. Constitutional validity of any Parliamentary
or State legislation is judged on the twin tests of
legislative competence of the legislature that enacts the        C
law or on the ground that the legislative enactment
violates a fundamental right guaranteed to the citizen.
There is no other ground on which the constitutional
validity of an enactment may be determined by a Court
of law competent to do so. [Para 11] [1098-C-D]                  D

     2. In the instant case, the appellants were convicted
both under Sections 302 and 364A of the IPC and
sentenced to death for each one of the two offences.
When asked whether any juristic exercise aimed at                E
determining the constitutional validity of Section 364A will
be of any assistance to the appellants who may despite
an acquittal under Section 364A remain condemned to
death for the capital offence of murder under Section 302
IPC, it was argued on behalf of the appellants that if
Section 364A IPC were to be declared ultra vires of the          F
Constitution, the sentence awarded to the appellants
under Section 302 may call for a fresh look, having regard
to the fact that the Courts had while awarding death
sentence to the appellants had taken them to be guilty
under both the provisions, which would no longer hold            G
good, if Section 364A were to be held ultra vires. There
is no need to express any final opinion on this aspect at
this stage. For the present, there is a last ditch attempt
by the appellants to avoid the extreme penalty that the
law provides for even the most heinous crime punishable          H
    1092    SUPREME COURT REPORTS                 [2013] 8 S.C.R.

A under the Code. The plea may indeed be in complete
  desperation but one can well understand such
  desperation among those who are waiting at the gallows
  for the hangman to put the noose around their neck.
  Dismissal of this appeal is bound to take them a step
8 closer to the end. That apart the questions raised may
  require an authoritative answer, by a Bench of three
  Judges having regard to the fact that the death sentence
  awarded to the appellants has been affirmed by a Bench
  of co-ordinate jurisdiction. In view of the peculiar fact
c situation in which the case arises and the grounds on
  which the provisions of Section 364A are assailed, this
  case ought to go before a larger Bench of three Judges
  for hearing and disposal. [Para 12 and 13] [1098-F-H;
  1099-A-B, C-F]
D       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 824 of 2013.
      From the Judgment and Order dated 03.10.2012 of the
  High Court of Punjab & Haryana at Chandigarh in CWP No.
E 18956 of 2012 (O&M).
       Sidharth Luthra, ASG, Dinesh Kumar Garg, 8.S. 8illowria,
  Abhishek Garg, Ranjana Narayan, T.A. Khan, Rajat Mathur,
  Pranay Agrawala, 8. Krishna Prasad, Kuldip Singh, Mohit
  Mudgil, Abhishek Singh, Mohit D. Ram for the appearing
F parties.
        The Judgment of the Court was delivered by
        T.S. THAKUR, J. 1. Leave granted.
       2. For a person found guilty of a capital offence and
G sentenced to death even by the highest Court of the land the
  options for reprieve are very limited. Once the conviction of the
  accused and the sentence awarded to him attains finality the
  prospects of judicial intervention recede further. Undeterred by
  these limitations the appellants who have been sentenced to
H death by hanging both under Section 302 and 364A of the
VIKRAM SINGH @ VICKY & ANR. v. UNION OF INDIA 1093
           & ORS. [T.S. THAKUR, J.]
Indian Penal Code have taken a chance with a petition seeking          A
review of their conviction not because anything grossly
erroneous is pointed out about the conclusions arrived at by
the Courts that dealt with their cases but on the ground that
Section 364A of the IPC which makes kidnapping for ransom
an offence is itself unconstitutional being violative of Articles 14   B
and 21 of the Constitution. Writ Petition (Crl.) D No. 15177 of
2012 was first filed in this Court by the petitioner, Vikram Singh
@ Vicky for a declaration that Section 364A inserted in the
Indian Penal Code by Act 42 of 1993 w.e.f. 22nd May 1993 is
ultra vires the Constitution to the extent the same prescribes         c
death sentence for any one proved guilty. The petitioner prayed
for a further writ quashing the death sentence awarded to him
by the trial Court, upheld by the High Court and finally affirmed
by this Court in Criminal Appeals No.1396-97 of 2008. A
mandamus directing commutation of the sentence awarded to
                                                                       0
the petitioners to imprisonment for life was also prayed for.
      3. The writ petition aforementioned was eventually
withdrawn with liberty to the petitioners to file a writ petition
before the jurisdictional High Court. The Petitioners accordingly
filed CWP No.18956 of 2012 before the High Court of Punjab             E
and Haryana at Chandigarh once again praying for striking
down Section 364A of IPC and for an order restraining the
execution of the death warrant against them. Re-opening of the
case of the petitioners and commutation of the death sentence
to imprisonment for life were also prayed for in the said petition.    F
A Division Bench of the High Court of Punjab and Haryana has,
upon consideration, dismissed the petition by its judgment and
order dated 3rd October 2012 which is impugned in these
appeals.
      4. The High Court has taken the view that the question           G
whether Section 364A of IPC was attracted and whether a
person found guilty of an offence punishable under that
provision could be sentenced to death without applying the test
of 'rarest of rare cases' was not only available to the petitioners
                                                                       H
    1094    SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   as an argument before this Court in the appeal filed by them
    but that such a plea had been raised but lost by them. The High
    Court while saying so relied upon the following passage from
    the judgment of this Court in the appeal filed by the appellants
    against their conviction:
B
        "... A plain reading of the Objects and Reasons which led
        to the amendment shows the concern of Parliament in
        dealing with kidnapping for ransom a crime which called
        for a dete"ent punishment, even in a case where the
        kidnapping had not resulted in the death of the victim.
c       The statistics further reveal that kidnapping for ransom
        had become a lucrative and thriving industry all over the
        country which must be dealt with. in the harshest possible
        manner and an obligation rests on Courts as well. Courts
        to lend a helping hand in that direction. In the case before
D       us. we find that not only was Abhi Verma kidnapped for
        ransom which act would by itself attract the death penalty
        but he was murdered in the process. It is relevant that
        even before the aforesaid amendments. this Court in
        Henry's case (supra) observed that death sentence could
E       be awarded even in a case of kidnapping and murder
        based on circumstantial evidence .. "

                                              (emphasis supplied)

        5. The High Court also held that the question of quantum
F   of sentence awarded to the petitioners had also been
    examined by this Court in the following paragraph of the
    judgment delivered in the criminal appeal:

        "24. Some of the judgments aforesaid refer to the
G       ongoing debate as to the validity and propriety of the
        death sentence in a modern society. There are the
        moralists who say that as God has given life, he alone
        has the right to take it away and this privilege cannot be
        usurped by any human being. There are others who
H       believe that the death sentence cannot be taken as a
VIKRAM SINGH @ VICKY & ANR. v. UNION OF INDIA 1095
           & ORS. [T.S. THAKUR, J.]
     retributive or deterrent factor as the statistics show that       A
     the possibility of a death sentence has never acted as a
     deterrent to serious crime. The theory which is widely
     accepted in India, however, is that as the death penalty
     is on the statute book it has to be awarded provided the
     circumstances justify it. The broad principle -~as been laid      B
     in Bachan Singh's case (supra) as the "rarest of the rare
     cases''. Bachan Singh case has been followed by a series
     of judgments of this Court delineating and setting out as
     to the kind of matters that would fall within this category.
     In Machhi Singh & Ors. Vs. State of Punj.ab 1983 (3)              c
     sec 470 this Court gave an indication as to what could
     constitute this category ... "
     6. The High Court on the above reasoning concluded that
this Court had considered the nature of the offence and its
gravity and come to the conclusion that the same deserved the          D
maximum punishment prescribed for both the offences proved
against them. The High Court held that the plea now sought to
be raised by the petitioners in the writ petition to the effect that
Section 364A of IPC was attracted only when the offence is
committed against Government or a foreign country etc. or that         E
no such offence was made out in case of the petitioners, had
not found favour with this Court.

      7. Having said that, the High court proceeded to examine
the plea raised by the petitioners on its merit, referred to the
                                                                       F
historical background in which the provisions of Section 364A
were added to the statute book and helc;i that Section 364A of
IPC even in the form in which it was initially introduced made
kidnapping by any person in the circumstances indicated in the
said provision an offence no matter at the time of initial insertion
of Section 364A, India was not committed to the International          G
Convention Against the Taking of Hostages, 1979 to which it
became a party only on 7th September 1994: It was only then
that Section 364A was amended to incorporate the expression
"... any foreign State or international inter-governmental
organisation or any other person ... " to honour the commitment        H
    1096    SUPREME COURT REPORTS                   (2013] 8 S.C.R.


A made in terms of the said Convention. The High Court
  accordingly repelled the argument that Section 364A was
  intended only to take care of situations where kidnapping was
  meant to coerce the Government or any international
  organisation to do or not to do a particular act including the
B demand for payment of ransom. The writ petition was dismissed
  on the ground that there was no substance in the contentions
  urged in support thereof even on merits. The present appeals
  by special leave assail the correctness of the view taken by the
  High Court.
c       8. Appearing for the appellants, Mr. D.K. Garg strenuously
  argued that the High Court had fallen in error in holding the
  provisions of Section 364A to be constitutionally valid and also
  that the question whether the petitioners could be found guilty
  under Section 364A and sentenced to death has been
D examined by this Court in the appeals filed by the appellants
  against their conviction and sentence. Elaborating the
  submissions, Mr. Garg argued that the provisions of Article 21
  of the Constitution guaranteed to the petitioners a fundamental
  right to life and liberty and protected them against deprivation
E of those rights otherwise than in accordance with the procedure
  prescribed by law. He urged that in order to satisfy the
  requirement of Article 21 of the Constitution it was necessary
  not only that the deprivation was in accordance with a validly
  enacted law but also that such law was just and fair. Deprivation
F of life and liberty on the basis of a law that was either unjust or
  unfair would, according to Mr. Garg, offend the constitutional
  guarantee contained in Article 21. He contended that inasmuch
  as Section 364A of IPC made even a first offender liable to
  be punished with death, it was much too harsh to be considered
G fair and reasonable.

         9. It was further argued that the provisions of Section 364A
    are ultra vires also because a simple kidnapping for ransom
    in which the victim is released without any harm to him/her with
    or without payment of the ransom demanded for his/her release,
H
VIKRAM SINGH @ VICKY & ANR. v. UNION OF INDIA1097
           & ORS. [T.S. THAKUR, J.]

is also on a plain reading of Section 364A, punishable with             A
death without there being any guidelines in Section 364A for
the Courts to follow while determining the quantum of
punishment to be awarded in a given case.

      10. Mr. Siddharth Luthra, learned ASG, appearing for the
                                                                        B
 respondents per contra argued that Section 364A of IPC was
a validly enacted piece of legislation. In the absence of any
challenge to the legislative competence of the Parliament to
enact the said provision, Section 364A of the Code could not
be assailed for want of legislative competence. As regards the          C
question of fairness of the law, the argument that Section 364A
was unfair and hence violative of Article 21 of the Constitution,
it was contended that it was within the legislative competence
of the Parliament to provide remedies and prescribe
punishment for different offences depending upon the nature
and gravity of such offences and the societal expectation for           D
weeding out ills that afflict or jeopardise the lives of the citizens
and the security and safety of the vulnerable sections of the
society especially children who are prone to kidnapping for
ransom and being brutally done to death if their parents are
unable to pay the ransom amount. Mr. Luthra referred to 42nd            E
Law Commission Report, The Criminal Law (Amendment) Bill
1992 introduced in the Rajya Sabha as also the Statement of
Objects and Reasons of the Bill for introduction of Section 364A
and contended that kidnapping innocent persons for ransom
had become rampant and called for strong legislative measures           F
to root out the malady by providing heavy penalties for those
indulging in such nefarious and barbaric acts. He also referred
to the International Convention and the Report of the Committee
of Home Affairs in support of his submission that Section 364A
was amended in the year 1995 to fulfil India's commitment               G
towards the international convention signed by it in the year
1994 by providing for severe penalty for those engaged in acts
of violence and terrorism against the State, any foreign country
or any international organisation. The provisions of Section
364A were, therefore, not only intended to deal with simple             H
    1098    SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A cases of kidnapping for ransom but also cases in which
  terrorists and other extremist organisations resort to kidnapping
  for ransom or to such other acts only to coerce the Government
  to do or not to do something. Judged in the historical
  perspective in which the Law Commission had recommended
B enactment of the law, and the salutary purpose which it is aimed
  at achieving the provisions of Section 364A were neither unfair
  nor unreasonable, argued Mr. Luthra.

        11. Constitutional validity of any Parliamentary or State
  legislation is judged on the twin tests of legislative competence
C of the legislature that enacts the law or on the ground that the
  legislative enactment violates a fundamental right guaranteed
  to the citizen. There is no other ground on which the
  constitutional validity of an enactment may be determined by a
  Court of law competent to do so. Mr. Luthra rightly argued that
D the challenge to the provisions of Section 364A of the IPC is
  not founded on the plea that the Parliament was not competent
  to enact such a law. Mr. Garg also fairly conceded that the
  petitioners have not challenged the provisions on the ground
  that the Parliament was not competent to enact the same. His
E challenge to the constitutional validity rests entirely on the
  ground that in as much as the same prescribes death sentence
  for a case of kidnapping for ransom the same is so harsh as
  to make it unreasonable and unfair hence violative of Article
  21 of the Constitution of India.
F
       12. The petitioners have been, as noticed earlier, convicted
  both under Sections 302 and 364A of the IPC and sentenced
  to death for each one of the two offences. We, therefore, asked
  Mr. Garg whether any juristic exercise aimed at determining the
G constitutional validity of Section 364A will be of any assistance
  to the petitioners who may despite an acquittal under Section
  364A remain condemned to death for the capital offence of
  QlUrder under Section 302 IPC. Mr. Garg, however, argued that
  if Section 364A, of the Indian Penal Code were to be declared
  ultra vires of the Constitution, the sentence awarded to the
H
VIKRAM SINGH @ VICKY & ANR. v. UNION OF INDIA 1099
           & ORS. [T.S. THAKUR, J.]
petitioners under Section 302 may call for a fresh look, having          A
regard to the fact that the Courts had while awarding death
sentence to the petitioners had taken them to be guilty under
both the provisions, which would no longer hold good, if Section
364A were to be held ultra vires.
                                                                         B
      13. We do not wish to express any final opinion on this
aspect at this stage. The question whether a pronouncement
as to the vires of Section 364A will have any impact on the
sentence awarded to the petitioners .Vl{OLjld arise only if Section
364A is held to be constitutionally inva'lid. It is only then that the   C
Court may go into the question of the impact of such a
pronouncement. For the present, what we have before us is a
last ditch attempt by the petitioners to avoid the extreme penalty
that the law provides for even the r:riost heinous crime
punishable under the code. The plea may indeed be in
complete desperation but one can well understand such                    D
desperation among those who are waiting at the gallows for
the hangman to put the noose around their neck. Dismissal of
this appeal is bound to take them a step closer to the end. That
apart the questions raised may require an authoritative answer,
by a Bench of three Judges having regard to· the fact that the           E
death sentence awarded to the petitioners has been affirmed
by a Bench of co-ordinate jurisdiction. The peculiar fact situation
in which the case arises and the grounds on which the
provisions of Section 364A are assailed persuade us to the
view that this case ought to go before a larger Bench of three           F
Judges for hearing and disposal.

     14. We, accordingly, refer this matter to a Bench of three
Judges for~earing and disposal. The appellants shall, furnish
additional serof papers within four weeks, failing which the             G
Registry shall take steps to have additional copies prepared
for the Court. Since it is a death sentence case, we permit
learned counsel for the parties to mention the matter before the
larger Bench for an early hearing.

B.B.B.                          Matter referred to Larger Bench.         H