- (1.) This appeal, by special leave, arises in somewhat peculiar circumstances. The appellants were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana in appeal and eventually by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012 before this Court for a declaration that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty. The petitioner further prayed for quashing the death sentence awarded to the petitioner by the trial court as affirmed by the High Court and by this Court in Criminal Appeals No.1396-1397 of 2008. A mandamus directing commutation of the sentence awarded to the petitioner to imprisonment for life was also prayed for. The writ petition was eventually withdrawn with liberty to the petitioners to approach the jurisdictional High Court for redress. The appellant, thereafter, moved the High Court of Punjab and Haryana at Chandigarh in CWP No.18956 of 2012 praying for a mandamus striking down Section 364A of the IPC and for an order restraining the execution of the death sentence awarded to them. Reopening of the case of the appellants and commutation of the death sentence for imprisonment for life were also prayed for in the writ petition. A Division Bench of the High Court of Punjab and Haryana has, while dismissing the said petition by its judgment and order dated 3rd October, 2012, taken the view that the question whether Section 364A of the IPC was attracted to the case at hand and whether a person found guilty of an offence punishable under the provision could be sentenced to death was not only raised by the appellants as an argument before this Court in appeal filed by them, but, was noticed and found against them. The High Court while saying so relied upon the following passage of the judgment of this Court in the appeal filed by the appellants against their conviction: " 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 deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. 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 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 observed that death sentence could be awarded even in a case of kidnapping and murder based on circumstantial evidence..."
(2.) The High Court further held that the question of quantum of sentence had also been examined by this Court in the following paragraph of the judgment delivered in the criminal appeal filed by the appellants: "24. Some of the judgments aforesaid refer to the 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 believe that the death sentence cannot be taken as a retributive or deterrent factor as the statistics show that 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 has been laid in Bachan Singh's case 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 Punjab, 1983 3 SCC 470 this Court gave an indication as to what could constitute this category "
(3.) The High Court on the above reasoning concluded that this Court had considered the nature of the offence and its gravity and held that the appellants deserved the maximum punishment prescribed for both the offences proved against them. The High Court held that the plea now sought to be raised by the writ-petitioners to the effect that Section 364A of the IPC was attracted only when the offence was committed against the government or a foreign country etc. or that no such offence was made out in the case of the petitioners, had been examined and decided against the petitioners which plea could not be re-agitated by them in collateral proceedings. Having said that the High Court proceeded to examine the plea raised by the appellants on its merit, referred to the historical background in which the provisions of Section 364A were added to the statute book and held 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 Convention Against the Taking of Hostages, 1979 to which it became a party only on 7th September, 1994. It was only thereafter that Section 364A was amended to incorporate the expression "any foreign state or international inter-governmental organization or any other person" to honour the commitment under the said Convention. The High Court, accordingly, repelled the argument that Section 364A was attracted only in situations where kidnapping was meant to coerce the government or any international organization to do or not to do a particular act including the demand for payment of ransom. The writ petition was, on that reasoning, dismissed by the High Court, which dismissal is what is under challenge in this appeal before us.;