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PETITIONER: JAGMOHAN SINGH

       Vs.

RESPONDENT: THE STATE OF U. P.

DATE OF JUDGMENT03/10/1972

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. SIKRI, S.M. RAY, A.N. DUA, I.D. BEG, M. HAMEEDULLAH

CITATION:  1973 AIR  947            1973 SCR  (2) 541  1973 SCC  (1)  20  CITATOR INFO :  E          1974 SC 799  (13,22)  D          1974 SC1039  (7,16)  RF         1974 SC1999  (12)  F          1974 SC2281  (4)  F          1977 SC 608  (9)  RF         1977 SC1926  (14)  F          1978 SC 771  (23)  RF         1978 SC1675  (241)  E          1979 SC 916  (3,5,6,11,15,124)  R          1979 SC1384  (26)  R          1980 SC 898  (5,6,8,11,70,71,73,80,150,152,  MV         1982 SC1325  (2)  R          1983 SC 473  (16)  RF         1983 SC1155  (3)  F          1992 SC 395  (4,5)

ACT: Indian  Penal Code S. 302--Validity--Provision for  sentence of  death  whether  violative  of  freedoms  under  Art.  19 Constitution   of  India--Whether  suffers  from   excessive delegation--Whether violative of Art. 14 -Whether  deprives accused  of his life without any "procedure  established  by law" within meaning of Art 21.

HEADNOTE: The  sentence  of death for an offence under S. 302  of  the Indian  Penal Code imposed on the appellant by the  Sessions Judge  and  confirmed  by he High Court  was  challenged  in appeal  by  special  leave in this Court  on  the  following grounds  :  (i) that the death sentence puts an end  to  all fundamental  rights guaranteed under clauses (a) to  (g)  of sub-clause (ii) of Art. 19 of the Constitution and therefore the law with regard to capital sentence is unreasonable  and not  in  the interest of the general public; (ii)  that  the discretion   invested  in  the  Judges  to  Impose   capital punishment is not based on any standards or policy  required by  the  Legislature  for  imposing  capital  punishment  in preference  to  imprisonment for life; (iii)  that  the  un- controlled  and unguided discretion in the Judges to  impose

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capital  punishment or imprisonment for life is hit by  Art. 14  of the Constitution (iv) that the provisions of the  law do  not  provide  a  procedure  for  trial  of  factors  and circumstances  crucial  for making the  choice  between  the capital  penalty  and imprisonment for life,  and  therefore Art. 21 is violated. Dismissing the appeal, HELD  : (i) Articles 72(1)(c), and 134 of  the  Constitution and  entries 1 and 2 in List III of the Seventh Schedule  to the  Constitution  show  that the  Constitution  makers  had recognised  the death sentence as a  permissible  punishment and had made constitutional provisions for appeal, reprieve, and  the like.  But, more important than these pro,  visions in  the  Constitution  is Art 21, which.  provides  that  no person  shall  be deprived of his life except  according  to procedure  established  by  law.  The  implication  is  very clear.  Deprivation of life is constitutionally  permissible if  that is done according to procedure established by  law. In   the  face  of  these  indications   of   constitutional postulates,  it will be very difficult to hold that  capital sentence  was regarded per se as unreasonable or not in  the public interest. In  the context of our Criminal law, which punishes  murder, one cannot ignore the fact that life imprisonment works  out in most cases to a dozen years of imprisonment and it may be seriously  questioned whether that sole alternative will  be an adequate substitute for the death penalty.  Proposals for its abolition have not been accepted by Parliament. In  this state of affairs, it cannot be said that capital punishment, as such,  is either unreasonable or not in public  interest. [549C-F; 552B] (ii) In  India,  the  onerous  duty  of  passing  the  death sentence  is  cast on Judges, and, for more than  a  century judges  have  been carrying out this duty under  the  Indian Penal  Code.  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 542 matter of fixing the degree of punishment.  That  discretion in  the  matter  of sentence is liable to  be  corrected  by superior  Courts.   The exercise of judicial  discretion  on well  recognised principles is, in the final  analysis,  the safest possible safeguard for the accused. [559B] (iii)     Crime as crime may appear to be superficially  the same, but the facts and circumstances of- a crime are widely different,  and,  since a decision of the court  as  regards punishment  is  dependent upon a consideration  of  all  the facts  and circumstances, there is hardly any ground. for  a challenge under Art. 14. [559G] (iv) The accused in a trial for murder has opportunities  at various  stages  of the trial to bring on record  facts  and circumstances that would justify, on conviction, the  lesser penalty of life imprisonment.  There is also nothing in  the Criminal  Procedure Code which prevents additional  evidence being taken.  It is, however, not the experience of criminal courts in India that the accused with a view to obtaining  a reduced  sentence, ever offers to call additional  evidence. [561B] It is necessary to emphasize that the court is  principally concerned with facts and circumstances, whether  aggravating or mitigating, which are connected with the particular crime under inquiry.  All such facts and circumstances are capable of  being  proved in accordance with the provisions  of  the Indian Evidence Act in a trial regulated by the Cr.P.C.  The

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trial  does not come to an end unlit all the relevant  facts are proved and the counsel on both sides have an opportunity to  address the court.  The only thing that remains  is  for the Judge to decide on the guilt and punishment and that  is what,  section 306(2) and 309(2) Cr.P.C. purport to  provide for.  These provisions are part of the procedure established by  law, and, unless it is shown that they are  invalid  for any  other  reason,  they must be  regarded  as  valid.   No reasons were offered to show that they are constitutionally- invalid,  and hence, the death sentence imposed after  trial in accordance with the procedure established. by law is  not unconstitutional under Art. 21. [561C] Ram  Narain and others v. The State of U. P. 1971 S.C.  757, State  of Madras v. V. G. Row [1952] S.C.R. 597,  Furman  v. State of Georgia, (Nos. 69-5003, 69-5030 and 69-5031 decided on  June  29, 1972), Municipal Committee v.  Baisakhi  Rain, Crl.  Law Journal 475, Mccautha v. California, United States Supreme Court Reports Lawyears’ Edition, 28, 713 and  budhan Ckoudhry and others v. The State Bihar, [1955] S.C.R.  1045, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 173 of 1971. Appeal,  by special leave from the judgment and order  dated February  26, 1971 of the Allahabad High Court at  Allahabad in Criminal Appeal No. 1229 of 1970 and Reference No. 96  of 1970. R.   K.  Garg, A. K. Gupta, Indira Jai Singh, V. J.  Francis and R.    S. Sharma for the appellant. O.   P. Rana for the respondent. A.   V.  Rangam  and A. Subhashini for the  State  of  Tamil Nadu. R.   N. Bagra and M. Veerappa for the State of Mysore., 543 F.   S.  Nariman, Additional Solicitor General of India,  P. Parameshwara Rao and B. D. Sharma for the Attorney General. Bakshi Sita Ram and R. N. Sachthey for the Advocate General, Himachal Pradesh. A.   K. Gupta for intervener (Shyam Narain). R.   K.  Jain  and R. K. Garg  for  Interveners  (Duraipandi Thevar and Krishna Thevar). The Judgment of the Court was delivered by PALEKAR, J. The appellant Jagmohan Singh has been  convinced under  section 302-IPC for the murder of one  Chhotey  Singh and  sentenced  to  death by  the  learned  Sessions  Judge, Shahjahanpur.  The conviction and the sentence are confirmed by the Allahabad High Court. on the appellant coming to this Court by special leave, special leave was granted limited to the question of sentence only. The short facts of the case are that some six or seven years before  the  present offence, one Shivraj Singh,  father  of Jagbir Singh, a cousin of the appellant, was murdered.   The deceased  Chhotey Singh was charged for that murder but  was eventually acquitted by the High Court.  As a result of that murder, there was ill-feeling between Chhotey Singh, on  the one hand, and the appellant and Jagbir Singh, on the  other. Both  of  them  were minors at the time  of  the  murder  of Shivraj Singh.  But by now they had grown up and it is plain from the evidence that Chhotey Singh’s murder was the result of   this  ill-feeling.   Chhotey  Singh  was  murdered   on September  10, 1969 at about 5.00 P.M. A day earlier,  there was  a quarrel between Jagmohan Singh and Jagbir  Singh,  on

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the  one  hand,  and Chhotey Singh, on  the  other,  on  the question of a right to irrigate their fields.  However,  the dispute  was settled by persons who reached the spot at  the time and nothing untoward happened.  Next day, however,  the appellant armed with a country made pistol and Jagbir  Singh armed with a lathi concealed themselves in a bajra field and emerged  from the same as Chhotey Singh passed by to  go  to his field for fetching fodder.  The appellant asked  Chhotey Singh  to  stop  so that the matter between  them  could  be settled once for all.  Naturally Chhotey Singh tried to  run away  but  he was chased by the appellant and  shot  in  the back.   Chhotey Singh fell down after running some  distance and died.  That is how the murder was committed. On the facts and circumstances of the case, the learned Ses- sions  Judge  held that the appellant deserved  the  extreme penalty.   The  High  Court,  while  confirming  the   death sentence, observed 544 that  there  were  no  extenuating  circumstances  and   the sentence  of  death awarded to the appellant  was  just  and proper.  The question is whether this Court should interfere with the sentence. Under  section 367(5) of the Criminal Procedure Code  as  it stood before its amendment by Act 26 of 1955 the normal rule was  to  sentence the accused to death on a  conviction  for murder and to impose the lesser sentence of imprisonment for life for reasons to be recorded in writing.  That  provision is now deleted and it is left to the judicial discretion  of the court whether the death sentence or the lesser  sentence should  be  imposed.   That discretion  has  been  exercised concurrently  by the Trial Court and the High Court and  the question  is whether there are sufficient reasons  for  this court to interfere with that discretion.  As pointed out  by this Court in Ram Narain and others v. The State of  U.P.(1) this  Court normally does not interfere with the  discretion exercised by the High Court on the question of sentence  un- less the High Court has disregarded recognised principles in imposing  the  sentence  and there has  been  a  failure  of justice.  It. cannot be said on the facts of this case  that there  has been any breach of the principles  governing  the matter of sentence.  The appellant had armed himself with  a gun and was lying in wait for the victim to pass.  There was no  immediate cause.  The murder was entirely  motivated  by ill-feelings  nurtured  for  years.  The  offence  was  pre- meditated.   On seeing the appellant, Chhotey Singh  started running away, but he was chased and done to death.  In these circumstances, it can hardly be said that the High Court did not  exercise its discretion properly.  We  are,  therefore, not  inclined to interfere with the sentence imposed by  the High Court. Mr.  Garg  appearing  on behalf of  the  appellant  however, raised  the question of constitutional  impermissibility  of the death sentence for murder, and we have to deal with  the question  at some length.  In the first place he  contended, the  death  sentence puts an end to all  fundamental  rights guaranteed  under  clauses (a) to (g) of sub-clause  (1)  of Article  19 and, therefore, the law with regard  to  capital sentence  is  unreasonable and not in the  interest  of  the general  public.   Secondly,, he contended,  the  discretion invested  in the Judges to impose capital punishment is  not based on any standards or policy required by the Legislature for   imposing   capital   punishment   in   preference   to imprisonment for, life.  In his submission, this was a stark abdication   of   essentials  legislative   function,   and, therefore,  section  302-IPC  is vitiated  by  the  vice  of

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excessive  delegation  of  essential  legislative  function. Thirdly,   he  contended,  the  uncontrolled  and   unguided discretion  in  the Judges to impose capital  punishment  or imprisonment   for  life  is  hit  by  Article  14  of   the Constitution. because two persons 545 found  guilty  of murder on similar facts are liable  to  be treated  differently--one forfeiting his life and the  other suffering merely a sentence of life imprisonment.  Lastly it was contended that the provisions of the law do not  provide a  procedure for trial of factors and circumstances  crucial for  making  the  choice between  the  capital  penalty  and imprisonment  for  life.   The  trial  under  the   Criminal Procedure Code is limited to the question of guilt.  In  the absence of any procedure established by law in the matter of sentence,  the  protection  given  by  Article  21  of   the Constitution was violated and hence for that reason also the sentence of death is unconstitutional. The  first submission is based on the provisions of  Article 19 of the Constitution.  That Article does not directly deal with  the  freedom to live.  It deals with 7  freedoms  like freedom  of  speech  ,and expression,  freedom  to  assemble peaceably  and without arms etc., but not directly with  the freedom to live.  It is, however, contended that freedom  to live  is  basic to all the several freedoms  and  since  the enjoyment  of  those seven freedoms  is  impossible  without conceding  freedom to live, the latter cannot be  denied  by any  land unless such law is reasonable and is  required  in general public interest.  It was, therefore, contended that, unless  it was shown that the sentence ’of death for  murder passed  the  test  of  reasonableness  and  general   public interest, it would not be a valid law. We will assume for the purposes of the present argument that the  right  to live is basic to the  freedoms  mentioned  in Article 19 and that no law can deprive the life of a citizen unless  it  is reasonable and in the public  interest.   The question,  therefore, for our consideration is  whether  the law,  namely, section 302-IPC which prescribes the  sentence of death for murder passes the above test. In  this  connection  it would be proper   to  recall  the observations  of Patanjali Sastri, CJ in State of Madras  v. V. G. Row(1) at page 607 : "It is important in this  context to  bear in mind that the test of  reasonableness,  wherever prescribed,  should  be applied to each  individual  statute impugned, and no abstract standard. or- general pattern,  of reasonableness can be laid down as applicable to all  cases. The  nature of the right alleged to have been infringed  the underlying  purpose of the restrictions imposed. the  extent and  urgency of the evil sought to be remedied thereby.  the disproportion  of the imposition, the prevailing  conditions at the time. should all enter into the judicial verdict.  In evaluating  such  elusive  factors  and  forming  their  own conception  of what is reasonable, in all the  circumstances of a given case, it (1)  [1952] S.C.R. 597. 546 is  inevitable that the social philosophy and the  scale  of values  of the judges participating in the  decision  should play an important part, and the limit to their  interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and  the sobering reflection that the Constitution is meant not  only for  people of their way of thinking but for all,  and  that the  majority of the elected representatives of  the  people have,  in  authorising the imposition of  the  restrictions,

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considered  them  to be reasonable." The  responsibility  of Judges in that reject is the greater, since the question  as to  whether  capital sentence for murder is  appropriate  in modern times has raised serious controversy the world  over, sometimes,  with  emotional overtones.   It  is,  therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint. The arguments advanced by Mr. Garg against death penalty per se  were practically similar to those which  were  addressed recently  to  the Supreme Court of America in  the  case  of Furman  v. State of Georgia (Nos. 69-5003, 619-5030 and  69- 5031  decided on June 29, 1972) and obtained the  assent  of two  Judges, Mr. Justice Brennan and Mr.  Justice  Marshall. In  that  case  the Judges were invited  to  reject  capital punishment  on  the  ground  that  it  violated  the  Eighth Amendment  which  forbade "cruel and  unusual  punishments". Brennan, J. accepted the validity of the challenge in  these words :               "If a punishment is unusually severe, if there               is  a strong probability that it is  inflicted               arbitrarily,  if it is substantially  rejected               by  contemporary  justice and if there  is  no               reason to believe that it serves any  judicial               purpose more effectively than some less severe               punishment,  then the due infliction  of  that               punishment violates the command of the  clause               that  the  State may not inflict  inhuman  and               uncivilized  punishments upon those  convicted               of crimes."               Marshall, J. observed as follows               "There is but one conclusion that can be drawn               from all of this-i.e., the death penalty is an               excessive  and unnecessary,  punishment  which               violates    the   Eighth    Amendment.     The               statistical evidence is not convincing  beyond               all  doubt, but, it is persuasive.  It is  not               improper at this point to take judicial notice               of  the fact that for more than 200 years  men               have  labored  to  demonstrate  that   capital               punishment   serves  no  purpose   that   life               imprisonment could not serve equally as  well.               And  they  have done so  with  great  success.               Little if               547               any  evidence  had been adduced to  prove  the               contrary.   The point has now been reached  at               which   deference  to  the   legislatures   is               tantamount to abdication of our judicial roles               as factfinders, judges, and ultimate  arbiters               of  the  constitution.  We know that  at  some               point  the  presumption  of  constitutionality               accorded  legislative  acts  gives  way  to  a               realistic  assessment  of  those  acts.   This               point comes when there is sufficient  evidence               available  so  that Judges can  determine  not               whether  the  legislature  acted  wisely,  but               whether  it had any rational basis  whatsoever               for  acting.  We have this evidence before  us               now.    There   is  no  rational   basis   for               concluding  that  capital  punishment  is  not               excessive.   It therefore violates the  Eighth               Amendment."               In another place he observed               "I  believe  that the great mass  of  citizens               would  conclude on the basis of  the  material

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             already  considered that the death penalty  is               immoral and therefore unconstitutional." The arguments advanced by Mr. Garg were intended to persuade us to come to the above conclusion on the abstract  question as to whether death penalty for murder was  constitutionally permissible. It  is, however, to be noted in the above case of Furman  v. State  of  Georgia  that  though the  learned  Judges  by  a majority  of  5 to 4 set aside the sentences of  death  with which they were concerned, it was only Brennan and Marshall, JJ.  who were prepared to outlaw capital punishment  on  the ground  that  it  was an  anachronism,  degrading  to  human dignity  and  unnecessary in modern life.  The  other  three Judges  namely Mr. Justice Douglas, Mr. Justice Stewart  and Mr. Justice White who formed the majority along with Brennan and  Marshall,  JJ. did not take the view  that  the  Eighth Amendment  prohibited capital punishment for all crimes  and under all circumstances.  Mr. Justice Douglas, indeed  held, that  the  death penalty contravened the  Eighth  Amendment. But  his judgment is not capable of being read as  requiring the  final  abolition of capital  punishment.   Mr.  Justice Stewart  and  Mr. Justice White merely  concluded  that  the death  sentence  before  them  must  be  set  aside  because prevailing  sentencing  practices did not  comply  with  the Eighth Amendment.  The minority of four Judges (Burger,  CJ, Blackmun, Powell and Rehnquist JJs) held that death  penalty did  not  contravene  the  Eighth  Amendment.   Mr.  Justice Douglas in reversing the death sentence was of the view that "the  Eighth Amendment required legislatures to write  penal laws  that are even handed, nonselective, and  nonarbitrary, and to require judges to see to it that gene- 548 ral laws are not applied sparsely, selectively, and spottily to unpopular groups." As is clear from his judgment Douglas, J  was  very much exercised by the fact that  the  law  with regard   to   death  penalty  was  being   enforced   in   a discriminatory  manner the victim being mostly the poor  and the despised, especially, if he was a member of a suspect or unpopular minority-obviously meaning the Negros.  At the end of  the judgment, however, he made it clear that he was  not considering  in  that case whether mandatory  death  penalty would be constitutional if it was enforced evenhandedly  and in  nondiscriminatory  manner.  Mr.  Justice  Stewart  after noting  that at least two of his brothers (Brennan and  Mar- shall,  JJ) had concluded that the infliction of  the  death penalty    is   constitutionally   impermissible   in    all circumstances  under  the Eighth and  Fourteenth  Amendments stated  "their  case  is  a  strong  one.   But  I  find  it unnecessary  to  reach  the  ultimate  question  they  would decide".   At  a  later stage he made  it  clear  that  "the constitutionality  of capital punishment in the abstract  is not,  however, before us in these cases." Mr. Justice  White started  his  opinion : "In joining  the  court’s  judgment, therefore,  I do not at all intimate that the death  penalty is  unconstitutional  per se or that there is no  system  of capital  punishment  that  would  comport  with  the  Eighth Amendment.   That  question, ably argued by  several  of  my Brethren,  is not presented by these cases and need  not  be decided."  It  will  thus be seen that  although  the  death Sentences  in that case were set aside by a majority,  three out of five Judges who formed the majority did not  consider it necessary to outlaw capital punishment on the social  and moral  considerations  which prevailed upon  the  other  two Judges namely Brerman and Marshall, JJ.  In short, even when the  court was presented with a wealth of evidence  compiled

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by  Sociologists and research workers in refutation  of  the necessity  of retaining capital punishment, only two  Judges out  of  nine  could  be  persuaded  to  hold  that  capital punishment per se is constitutionally impermissible. So far as we are concerned in this country, we do not  have, in our constitution any provision like the Eighth  Amendment nor  are we at liberty to apply the test  of  reasonableness with the freedom with which the Judges of the Supreme  Court of America are accustomed to apply "the due process" clause. Indeed  what  is  cruel  and  unusual  may,  in  conceivable circumstances, be regarded as unreasonable.  But when we are dealing with punishments for crimes as prescribed by law  we are confronted with a serious problem.  Not a few are  found to  hold  that  life imprisonment.  especially.,  as  it  is understood  in U.S.A. is cruel.  On the other hand,  capital punishment cannot be described as unusual because that  kind of punishment has been with us from ancient times right 549 upto the present day though the number of offences for which it can be imposed has continuously dwindled.  The framers of our Constitution were well aware of the existence of capital punishment  as a permissible punishment under the law.   For example,.  ,Article 72 (1) (c) provides that  the  President shall  have  power to rant pardons, reprieves,  respites  or remissions of punishment or to suspend, remit or commute the sentence  of  any person convicted of any  offence  "in  all cases  where the sentence is a sentence of death".   Article 72(3)  further  provides that "Nothing in subclause  (c)  of clause (1) shall affect the power to suspend, remind commute a  sentence of death exercisable by the Governor of a  State under  any  law for the time being in  force."  The  obvious reference  is  to  sections  401 and  402  of  the  Criminal Procedure  Code.  Then again entries 1 and 2 in List III  of the  Seventh  Schedule refer to criminal  law  and  criminal procedure.   In  entry  no.  1 the  entry  Criminal  Law  is extended  by  specifically including  therein  "all  matters included  in  the Indian Penal Code at the  commencement  of this  Constitution".   All  matters  not  only  referred  to offences  but  also punishments--one of which is  the  death sentence.   Article 134 gives a right of appeal to the  Sup- reme  Court  where  the  High Court  reverses  an  order  of acquittal  and  sentences  a person  to  death.   All  these provisions  clearly go to show that the  Constitution-makers had   recognised  the  death  sentence  as   a   permissible punishment  and  had  made  constitutional  provisions   for appeal,  reprieve  and the like.  But  more  important  than these  provisions  in the Constitution is Article  21  which provides that no person shall be deprived of his life except according to procedure established by law.  The  implication is  very  clear.  Deprivation of  life  is  constitutionally permissible   if  that  is  done  according   to   procedure established  by  law.  In the face of these  indications  of constitutional postulates it will be very difficult to  hold that capital sentence was regarded per se as unreasonable or not in the public interest. Reference  was made by Mr. Garg to several studies  made  by Western  scholars  to show the  ineffectiveness  of  capital punishment   either  as  a  deterrent  or   as   appropriate retribution.  There is large Volume of evidence compiled  in the West by kindly social reformers and research workers  to confound  those who want to retain the  capital  punishment. The controversy is not yet ended and experiments are made by suspending the death sentence where possible in order to see its affect.  On the other hand most of these studies  suffer from one grave defect namely that they consider all  murders

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as  stereotypes, the result of sudden passion or  the  like, disregarding  motivation in each individual case.   A  large number  of murders is undoubtedly of the common  type.   But some at least are diabolical in conception and cruel in exe- cution.  In some others where the victim is a person of high 550 standing  in the country Society is liable to be  rocked  to its  very foundation.  Such murders cannot be simply  wished away  by finding alibis in the social maladjustment  of  the murderer.  Prevalence of such crimes speaks, in the  opinion of many, for the inevitability of death penalty not only  by way of deterrence but as a token of emphatic disapproval  by the society. We  have grave doubts about the expediency of  transplanting Western  experience in our country.  Social  conditions  are different and so also the general intellectual level In  the context  of  our  criminal law which  punishes  murder,  one cannot  ignore the fact that life imprisonment works out  in most  cases to a. dozen years of imprisonment and it may  be seriously  questioned whether that sole alternative will  be an  adequate substitute for the death penalty.  We have  not been referred to any large scale studies of crime statistics compiled  in this country with the object of estimating  the need of protection of the society against murders.  The only authoritative  study is that of the Law Commission of  India published  in  1967. It is its Thirty-Fifth  Report.   After collecting  as  much  available  material  as  possible  and assessing   the  views  expressed  in  the  West   both   by abolitionists  and the retentionists the Law Commission  has come  to  its  conclusion  at  paras  262  to  264.    These paragraphs  are summarized by the Commission as  follows  at page 354 of the Report               "The issue of abolition or retention has to be               decided   on  a  balancing  of   the   various               arguments  for  and  against  retention.    No               single argument for abolition or retention can               decide   the  issue.   In  arriving   at   any               conclusion  on  the  subject,  the  need   for               protecting  society in general and  individual               human beings must be borne in mind.               It is difficult to rule out the validity,  of,               or the strength behind, many of the  arguments               for  abolition nor does, the Commission  treat               lightly    the   argument   based    on    the               irrevocability  of the sentence of death,  the               need  for a modern approach, the  severity  of               capital  punishment,  and the  strong  feeling               shown by certain sections of public opinion in               stressing deeper questions of human values.               Having  regard, however, to the conditions  in               India, to the variety of the social upbringing               of  its inhabitants, to the disparity  in  the               level   of  morality  and  education  in   the               country,  to the vastness of its area, to  the               diversity   of  its  population  and  to   the               paramount  need for maintaining law and  order               in the country at the present ’juncture, India               cannot’  risk the experiment of abolition  ;of               capital punishment.               551               Arguments  which would be valid in respect  of               one  area  of the world may not hold  good  in               respect  of  another area,  in  this  context.               Similarly, even if abolition in some parts  of               India  may not make a material difference,  it

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             may  be fraught with serious  consequences  in               other parts.               On a consideration of all the issues involved,               the Commission is of the opinion, that capital               punishment  should be retained in the  present               state of the country." A  very responsible body has come to the  above  conclusion, after   considering  all  the  relevant  factors.   On   the conclusions.  thus  offered to us, it will be  difficult  to hold that capital punishment as such is unreasonable or  not required in the public interest. In  dealing with the question of reasonableness,  we  cannot ignore  the procedural safeguards provided by  the  statute. An  accused  charged  for murder is first put  up  before  a Magistrate,  who on an examination of the  evidence  commits him  to the Court of Sessions for trial.  The accused  knows at this stage what is, the evidence against him.  The  trial is  conducted  before  a Sessions  Judge  or  an  Additional Sessions Judge with considerable experience in the trial  of criminal cases. if the Sessions Judge, after trial, comes to the  conclusion  that the accused is guilty  of  murder  and deserves  to  be sentenced to death, he  is  required  under section 374 of the Criminal Procedure Code to submit to, the High  Court  the proceedings before him and it is  the  High Court  which has to review the whole evidence  and  consider whether  the sentence of death passed by the Sessions  Judge should  be  confirmed.  The rule under section 378  is  that this review of the evidence shall be made by a bench of  not less  than  two  Judges.   If  the  sentence  of  death   is confirmed,  the accused can in appropriate cases  appeal  to the  Supreme  Court by special leave.  In  cases  where  the Sessions  Judge acquits the accused of murder but  the  High Court  in appeal sets aside the acquittal and sentences  him to death, the accused is entitled under the Constitution  to prefer an appeal as of right to this Court.  It will be thus seen  that there are inbuilt procedural  safeguards  against any hasty decision. As  is  well known, the subject of capital punishment  is  a difficult and controversal subject, long and hotly  debated. It has evoked strong views.  In that state of affairs if the Legislature decides to retain capital punishment for murder, it  will  be  difficult for this Court  in  the  absence  of objective   evidence  regarding  its   unreasonableness   to question  the  wisdom and propriety of  the  Legislature  in retaining it.  A Bill for the abolition of capital 552 punishment  was introduced in the Lok Sabha in 1956 but  the same was rejected on November 23, 1956.  Similarly a resolu- tion for the abolition of capital punishment was  introduced in the Rajya Sabha in 1958 but the same was withdrawn  after debate.  Later in 1961 a similar resolution was moved in the Rajya  Sabha  but  the  same  was  negatived  in  1962.    A resolution for its abolition was discussed in the Lok  Sabha but the same was withdrawn after discussion.  All this  goes to  show  that  the representatives of  the  people  do  not welcome  the prospect of abolishing capital punishment.   In this state of affairs, we are not prepared to conclude  that capital  punishment, as such, is either unreasonable or  not in the public interest. The  next  contention of Mr. Garg was that by  providing  in section  302-IPC that one found guilty thereunder is  liable to  be punished either with death sentence  or  imprisonment for  life,  the  legislature  has  abdicated  its  essential function  is not providing by legislative standards in  what cases the Judge should sentence the accused to death and  in

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what cases he should sentence him only to life imprisonment. It  may be noted here that prior to the Amending Act  26  of 1956, section 367(5) of the Criminal Procedure Code read  as follows : "If  the accused is convicted of an offence punishable  with death and the court’s sentences him to any punishment  other than death, the court shall in its judgment state the reason why sentence of death was not passed." By the amendment this provision is deleted and, as the  Code at  present  stands,  punishment for murder is  one  of  the two--namely death or imprisonment for life.  Neither section 302-IPC  nor any other provision in the  Criminal  Procedure Code  says  in what cases the capital punishment  is  to  be imposed  and in what others the lesser punishment.   It  is, therefore, argued by Mr. Garg that the Legislature has  left this  awful  duty to the Judge or Judges  concerned  without laying  down any standards to guide them in their  decision. In   fact  he  says  the  Legislature  has   abdicated   its legislative function and this delegation of its power to the Judges is vitiated by the vice of excessive delegation.   We think  there  is  no  merit in  this  submission.   In  this connection  we  have to take note of the policy of  the  law with  regard to crimes and their punishments.  The  position in  England is stated by Halsbury in Laws of England,  Third Edition,  Volume  10 at page 486.  The relevant  portion  of para 888 is as follows :               "DISCRETION OF COURT AS TO PUNlSHMENT               In  all  crimes  except those  for  which  the               sentence  of death must be pronounced  a  very               wide discretion in the               553               matter  of fixing the degree of punishment  is               allowed to the Judge who tries the case.               The  policy  of the law is,  as  regards  most               crimes,  to  fix a maximum penalty,  which  is               intended  only  for the worst  cases,  and  to               leave  to  the  discretion of  the  judge  the               determination  of  the extent to  which  in  a               particular case the punishment awarded  should               approach to or recede from the maximum  limit.               The exercise of this discretion is a matter of               prudence  and not of law, but art appeal  lies               by  the leave of the Court of Criminal  Appeal               against  an sentence not fixed by law, and  if               leave is given, the sentence can be altered by               that  court.  Minimum penalties have  in  some               instances  been  prescribed by  the  enactment               creating the offence." The  position  in  India  is  practically  the  same.    The exception made in English Law with regard to the sentence of death  does  not  hold good in India.   The  policy  of  our criminal  law As regards all crimes, including the crime  of murder, is to fix a maximum penalty-the same being  intended for  the worst cases, leaving a very wide discretion in  the matter  of punishment to the Judge.  In England, murder  and treason  were  offences  for which the  death  sentence  was mandatory.   If after trial the accused was found guilty  by the Jury, neither the Jury nor the Judge had any  discretion in  the matter of sentence.  The Judge had to  sentence  the accused to death.  The sentence may be reprieved by the Home Secretary after-taking all the circumstances of the case and other  matters into consideration.  But that was no part  of the judicial process. Absence of any discretion with regard to the sentence raised strong  criticism in England because it was  recognised,  as

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was done in many other countries, that death penalty was not the  only  appropriate  punishment  for  murder.   A   Royal Commission  was thereupon appointed in 1949 to consider  and report  whether  liability under the Criminal Law  in  Great Britain,  to suffer capital punishment for murder should  be limited  or  modified and if so to what extent and  by  what means.  In its report published in 1953 the Commission found it  impossible to improve the position either by  redefining murder  or by dividing murder into degrees.  In para 535  of the Report it pointed out that "the general liability  under the  existing  law to suffer capital punishment  for  murder cannot  be satisfactorily limited by such means,  (i.e.  re- defining murder or dividing murder into degrees) because  no legal   definition   can   cover   all   the    multifarious considerations,  relating to the offender as well as to  his crime,  which  ought to be taken into  account  in  deciding whether  the  supreme  penalty should  be  exacted  in  each individual case." Ile Commission considered various 554 alternatives-one  of them being a provision on the lines  of section  302-IPC which was pressed with great force, by  Sir John  Beaumont  a former Chief Justice of  the  Bombay  High Court,  and  later a Privy Councillor.  He  pressed  on  the Commission  the  advisability  of leaving it  to  the  Judge whether  the death sentence should be imposed or the  lesser sentence,  adding  further that this  procedure  had  worked quite  well  in  India  for generations  and  there  was  no reluctance  on  the  part  of  the  Judges  to  assume   the responsibility  to pass the death sentence.  The  Judges  in England,  however  unanimously  refused  to  accept  such  a responsibility.    The  question  then  arose  whether   the responsibility  for the death sentence may be given  to  the Jury  as  was done in some of the States  in  America.   The Royal Commission fell in with this suggestion and ex pressed itself as follows (See para 595 of the Report).               "It  is not questioned that the  liability  to               suffer  capital punishment under the  existing               law  is  rigorous to excess.   We  cannot  but               regard  it as a reproach to our  criminal  law               that this excessive rigour should be tolerated               merely  because it is corrected  by  executive               action.   The law itself should  mitigate  it.               We  have  been forced to the  conclusion  that               this  cannot  be  done by  a  redefinition  of               murder or by dividing murder into degrees.  No               formula  is  possible  that  would  provide  a               reasonable criterion for the infinite               variety  of circumstances that may affect  the               gravity of the crime of murder.  Discretionary               judgment on the facts of each case is the only               way   in   which   they   can   be   equitably               distinguished.   This conclusion is borne  out               by American experience : there the  experiment               of degrees of murder, introduced long ago, has               had to be supplemented by giving to the courts               a  discretion  that in effect  supersedes  it.               Such a discretion, if it is to be part of  the               legal  process,  and not an act  of  executive               clemency, must be given either to the Judge or               to the jury.  We find that the Judges ’in this               country, for reasons we respect, would be most               reluctant to assume this duty.  There  remains               the  method of entrusting it to the jury.   We               are   satisfied  that  as  long   as   capital               punishment is retained this is the only  prac-

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             ticable  way  of  correcting  the  outstanding               defects of the existing law." In  India the difficulty encountered by the  Commission  had been overcome long ago and it is accepted by the public that only  the Judges shall decide the sentence.  Where an  error is committed in the matter of sentence the same is liable to be  corrected by appeals and revisions to higher courts  for which appropriate pro- 555 vision  was  made  in  the  Criminal  Procedure  Code.   The structure of our criminal law which is principally contained in  the  Indian Penal Code and the Criminal  Procedure  Code underlines the policy that when the Legislature has  defined an  offence  with  sufficient  clarity  and  prescribed  the maximum  punishment  therefore,  a wide  discretion  in  the matter of fixing the degree of punishment should be  allowed to  the  Judge.  As pointed out by Ratanlal in  his  Law  of Crimes,  Twenty-Second Edition page 93 "The authors  of  the Code  had,, in’ many cases not heinous, fixed a  minimum  as well as a maximum punishment.  The Committee were of opinion that,  considering the general terms in which offences  were defined,  it would be inexpedient, in most cases, to  fix  a minimum punishment; and they had accordingly so altered  the Code  as to leave the minimum punishment for  all  offences, except those of the gravest nature, to the discretion of the Judge  who would have the means in each case of  forming  an opinion  as  to  the  character of  the  offender,  and  the circumstances,  whether  aggravating  or  mitigating,  under which  the offence had been committed.  But with respect  to some  heinous  offence-such as offences against  the  State, murder,  attempt  to commit murder, and  the  like-they  had thought it right to fix a minimum punishment". In  the whole code there is only one section (Section  ’303) where death is prescribed as the only punishment for murder by  a  person  under sentence  for  imprisonment  for  life. There,  are several other sections in which  death  sentence could be imposed, but that sentence is not mandatory.  Under two   sections  namely  section  302--murder,  and   section 121---waging-war   against   the   Government   of    India, alternative  punishments of death or imprisonment  for  life are leviable.  These are the two sections where the  maximum punishment  is  death and the minimum  is  imprisonment  for life.  There are two other sections in the Indian Penal Code where  the minimum punishment is prescribed-one  is  section 397 which provides that if at the time of committing robbery or  dacoity, the offender uses any deadly weapon, or  causes grievous  hurt to any person, or attempts to cause death  or grievous  hurt  to any person, the imprisonment  with  which such offender shall be punished shall not be less than seven years and (2) Section 396 which provides that at the time of attempting  to  commit robbery or dacoity, the  offender  is armed  with any deadly weapon, the imprisonment  with  which such  offender  shall be published shall not  be  less  than seven  years.   As regards the rest of  the  offences,  even those  cases  where  the maximum  punishment  is  the  death penalty, a wide discretion to punish is given to the  Judge. The  reasons are explained by Ratanlal on the page  referred to above.               "Circumstances   which   are   properly    and               expressly    recognized   by   the   law    as               aggravations calling for in               18-L498SupCI/73                556               creased severity of punishment are principally               such  as  consist in the manner in  which  the

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             offence  is  perpetrated;  whether  it  be  by               forcible  or  fraudulent means, or by  aid  of               accomplices  or  in the  malicious  motive  by               which  the  offender  was  actuated,  or   the               consequences  to the public or  to  individual               sufferers,  or  the  special  necessity  which               exists  in particular cases for  counteracting               the  temptation  to offend, arising  from  the               degree  of  expected  gratification,  or   the               facility of perpetration peculiar to the case.               These   considerations  naturally  include   a               number of particulars, as of time, place, per-               sons  and  things, varying  according  to  the               nature  of the case.  Circumstances which  are               to be considered in alleviation of  punishment               are  : (1) the minority of the  offender;  (2)               the old age of the offender; (3) the condition               of  the offender e.g., wife,  apprentice;  (4)               the order of a superior military officer;  (5)               provocation;  (6) when offence  was  committed               under  a  combination  of  circumstances   and               influence  of motives which are not likely  to               recur  either with respect to the offender  or               to any other; (7) the state of health and  the               sex  of the delinquent.  Bentham mentions  the               following   circumstances  in  mitigation   of               punishment  which  should be inflicted  :  (1)               absence of bad intention; (2) provocation; (3)               self  preservation; (4) preservation  of  some               near  friends; (5) transgression of the  limit               of   self-defence;  (6)  submission   to   the               menaces;  (7)  submission  to  authority;  (8)               drunkenness; (9) childhood." Indeed  these  are not the only  aggravating  or  mitigating circumstances which should be considered when sentencing  an offender.   The list is not intended to be  exhaustive.   In fact the Punjab High Court has held that considerable  delay in the disposal of a case may be a factor in awarding lesser punishment.  See Municipal Committee v. Baisakhi Ram(1). The  policy of the law in giving a very wide  discretion  in the matter of punishment to the Judge has its origin in  the impossibility of laying down standards.  Take, for  example, the  offence  of criminal breach of trust  punishable  under section 409--IPC, The maximum punishment prescribed for  the offence  is imprisonment for life.  The minimum could be  as low as one day’s imprisonment and fine.  It is obvious  that if any standards were to be laid down with regard to several kinds  of breaches of trust by the persons referred in  that section,  that would be an impossible task.  All that  could be reasonably done by the Legislature is to tell the  Judges that  between  the  maximum and minimum  Prescribed  for  an offence. they should, on balancing the aggravating and (1)  Crl.  Law journal 475. 557 mitigating   circumstances   as  disclosed  in   the   case, judicially  decide what would be the  appropriate  sentence. Take  the  other  case  of  the  offence  of  causing  hurt. Broadly, that offence is divided into two  categories-simple hurt  and grievous hurt.  Simple hurt is again  sub-divided- simple hurt caused by a lethal weapon is made punishable  by a higher maximum sentence-section 324.  Where grievous  hurt is caused by a lethal weapon, it is punishable under section 326  and is a more aggravated form of causing grievous  hurt than  the one punishable under section 325.   Under  section 326 the maximum punishment is imprisonment for life and  the

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minimum  can  be one day’s imprisonment and fine.   Where  a person by a lethal weapon causes a slight fracture of one of the unimportant bones of the human body, he would be as much punishable  under  section 326-IPC as a person  who  with  a knife scoops out the eyes of his victim.  It will be  absurd to say that both of them, because they are liable under  the same section should be given the same punishment.  Here too, any  attempt  to lay down standards why in  one  case  there should  be more punishment and in the other less  punishment would be an impossible task.  What is thus true with  regard to  punishment  imposed for other offences of  the  code  is equally true in the case of murder punishable under  section 302-IPC.  Two alternate sentences are provided one of  which could  be  described as the maximum and the  ether  minimum. The choice is between these two punishments and as in  other cases the discretion is left to the Judge to decide upon the punishment  in  the same manner as it does in  the  case  of other  offences,  namely,  balancing  the  aggravating   and mitigation-   circumstances.   The  framers  of   the   Code attempted to confine the offence of murder within as  narrow limits   as  it  was  possible  for  them  to  do   in   the circumstances.    All  culpable  homicides  were  not   made punishable  under section 302-IPC.  Culpable homicides  were divided  broadly  into  two classes  (1)  culpable  homicide amounting to murder and (2) culpable homicide not  amounting to  murder.  Culpable homicide which fell in the one or  the other  of the four strictly limited categories described  in section 300-IPC amounted to murder unless it fell in one  of the five exceptions mentioned in that section, in which case the  offence of murder was reduced to culpable homicide  not amounting   to  murder.   Any  further  refinement  in   the definition of murder was not practicable and, therefore, not attempted.   The recent experience of the  Royal  Commission referred  to above only emphasizes the  extreme  difficulty. The Commission frankly admitted that it was not possible  to prescribe the lesser punishment of imprisonment for life  by redefinition  of murder or by dividing murder into  degrees. It conceded that no formula was possible that would  provide a   reasonable  criterion  for  the  infinite   variety   of circumstances,  that may affect the gravity of the crime  of murder  that  conclusion forced the Commission to  the  view that discretionary judg- 558 ment on the facts of each case is the only way in which they can  be  equitably  distinguished.  See : para  595  of  the Commission’s Report. American experience is not different.  In some of the States murder  and rape were punishable with death.  But  that  was not the only punishment.  The, Law gave the Jury  discretion in  capital  sentencing,  and the  question  arose  recently before   the  Supreme  Court  of  America  in  McGauthn   v. California(1)  whether in tile absence of any standards  for deciding when the accused should be sentenced to death or to life  imprisonment  the  provision of law  which  gives  the discretion  to  the Jury was  constitutional.   Mr.  Justice Harlan delivered the opinion of five Judges and Mr.  Justice Black  substantially agreed with that opinion in a  separate judgment.   The majority held that "the infinite variety  of cases  and facets to each case would make general  standards either  meaning  less ’boiler plate’ or a statement  of  the obvious  that no Jury would need." The majority  agree  with the  view  of the Royal Commission already referred  to  and observed "those who have come to grips with the hard task of actually  attempting  to draft means of  channeling  capital sentencing  discretion have confirmed the lesson  taught  by

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the  history recounted above.  To identify before  the  fact those  characteristics  of  criminal  homicides  and   their perpetrators  which  call  for the  death  penalty,  and  to express  these  characteristics  in language  which  can  be fairly  understood and applied by the sentencing  authority, appear to be tasks which are beyond present human  ability." The  model Judicial (’ode which was presented to the  court as   an   attempt  towards  standardization   was   strongly criticised  by  the  majority  who  pointed  out  that  tile Craftsmen  of the Model Judicial Code had  expressly  agreed with ,he conclusion of the Royal Commission that the factors which  determined  whether  the, sentence of  death  is  the appropriate  penalty in particular cases are too complex  to be expressed within the limits of a simple formula.  Some of the   circumstances  of  aggravation  and  mitigation   were mentioned in the Appendix to, the Code.  But it was  pointed out  that  the  Draftsmen  of  the  Code  did  not  restrict themselves  to  the items referred to in  the  Appendix  but expressly  stated that besides the above  circumstances  the court was bound to take into consideration "any other  facts that  the court deems relevant".  This only meant  that  any exhaustive   enumeration   of  aggravating   or   mitigating circumstances   is   impossible-the   admission   of   which emphasizes  the  view that  standardisation  is  impossible. Finally  the  majority observed at page 726 : "In  light  of history,  experience, and the present limitations  of  human knowledge,  we  find it quite impossible to  say  that  com- mitting to the untrammeled discretion of the jury the  power to pronounce life or death in capital, cases is offensive to anything in the Constitution." (1) United States Supreme court report Lawyers’ Edition, 28, 713. 559 In India this onerous duty is cast upon Judges and for  more than  a century the judges are carrying out this duty  under the  Indian  Penal Code.  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.   That discretion in the matter sentences  as  a already  pointed  out, liable to be  corrected  by  superior courts.   Laying  down of standards to  the  limited  extent possible  as was done in the Model Judicial Code  would  not serve  the purpose.  The exercise of judicial discretion  on well-recognised  principles is, in the final  analysis,  the safest possible safeguard for the accused. It  was  next contended by Mr. Garg  that  uncontrolled  and unguided   discretion  in  the  judges  to  impose   capital punishment or imprisonment for life was hit by Article 14 of the  Constitution.  we  do  not  find  any  merit  in   this contention  also.  If the Law has given to the Judge a  wide discretion in the matter of sentence to be exercised by  him after   balancing   all  the  aggravating   and   mitigating circumstances  of  the crime, it will be impossible  to  say that  there would be at all any discrimination, since  facts and Circumstances of one case can hardly be the same as  the facts and circumstances of another.  It has been pointed out by this Court in Budhan Choudhry and others v. The State  of Bihar(")  Art.  14  can  hardly be  invoked  in  matters  of judicial, discretion.  This Court observed at page 1054  "It has,  however, to be remembered that, in the language  of  F ankurter,  J. in Snowden v. Hughes, ’the  Constitution  does not  assure uniformity of decisions or immunity from  merely erroneous  action,  whether by the Courts or  the  executive agencies  of  a  State’.   The  judicial  decision  must  of

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necessity  depend  on the facts and  circumstances  of  each particular  case and what may superficially appear to be  an unequal application of the law may not necessarily amount to a  denial  of equal protection unless there is shown  to  be present  in  it  an element of  intentional  and  purposeful discrimination.....  Further,  the  discretion  of  judicial officers is not arbitrary and the law provides for  revision by  superior  courts  of orders passed  by  the  Subordinate courts.   In such circumstances, there is hardly any  ground for  apprehending any capricious discrimination by  judicial tribunals."  Crime as crime may appear to  be  superficially the  same  but the, facts and circumstances of a  crime  are widely  different  and  since a decision  of  the  court  as regards punishment is dependent upon a consideration of  all the’ facts and circumstances, there is Hardly any ground for challenge under Article 14. Lastly it was contended by Mr. Garg that under Article 21 of the  Constitution  no person shall be deprived of  his  life except according to procedure established by law and, in his submission. (1)  [1955] S.C.R. 1045. 560 before the-sentence of death is passed there is, in fact, no procedure  established  by  law.  It is  admitted  that  the Criminal  Procedure Code lays down a detailed procedure  but that  procedure,  according to Mr. Garg, is limited  to  the finding of guilt.  After the accused is found guilty of  the offence,  there is no other procedure laid down by  the  law for  determining whether the sentence of death or  something less  is appropriate in the case.  Therefore, he  contended, death sentence is unconstitutional.  We are not impressed by this  argument also.  The accused who is charged for  murder knows  that  he is liable to be sentenced to  death  in  the Committing Court itself.  He knows what the evidence is.  He further  knows that if after trial in the Sessions Court  he is  found guilty of murder, he is liable to be sentenced  to the extreme penalty.  Experience of trials shows that  where the  accused  knows that the facts of the case  are  against him. the whole attempt on the part of his counsel is to fill the  record  with  as many circumstances in  his  favour  as possible  which would tend to show that he is either  guilty of a lesser crime or, in any event, there are mitigating and extenuating circumstances.  The court is primarily concerned with all the facts and circumstances in so far as they  are, relevant to the crime and how it was committed and since  at the  end of the trial he is liable to be sentenced, all  the facts   and  circumstances  bearing  upon  the   crime   are legitimately brought to the notice of the court.  Apart from the   cross-examination  of  the  witnesses,  the   Criminal Procedure Code requires that the accused must be  questioned with  regard to the circumstances appearing against  him  in the  evidence.  He is also questioned generally on the  case and there is an opportunity for him to say whatever he wants to  say.   He has a right to examine himself as  a  witness, thereafter, and give evidence on the material facts.   Again he  and his counsel are at liberty to address the court  not merely on the question of guilt but also on the question  of sentence.  In important cases like murder the court  ’always gives  a chance to the accused to address the court  on  the question  of  sentence.  Under the Criminal  Procedure  Code after convicting the accused the court has to pronounce  the sentence  according to law.  In a Jury trial if the  accused is  convicted  the  Judge  shall  (unless  he  proceeds   in accordance with the provisions of section 562) pass sentence on  him according to law.  See section 306 (2).   Similarly,

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where the case is tried by the Judge himself sub-section (2) of  section 309 says that if the accused is  convicted,  the Judge.  shall,  unless he proceeds in  accordance  with  the provisions of section 562, pass sentence on him according to law.   The sentence follows the conviction, and it  is  true that  no  formal  procedure  for  producing  evidence   with reference  to  the sentence is specifically  provided.   The reason  is, that relevant facts and circumstances  impinging on  the  nature and circumstances of the crime  are  already before the court.  Where counsel addresses the court with 561 regard  to the character and standing of the  accused,  they are  duly considered by the court unless there is  something in  the  evidence  itself which belies  him  or  the  Public Prosecutor  for  the  State challenges the  facts.   If  the matter is relevant and essential to be considered, there  is nothing  in  the  Criminal  Procedure  Code  which  prevents additional  evidence  being  taken.  It  must,  however,  be stated  that it is not the experience of criminal courts  in India  that the accused with a view to obtaining  a  reduced sentence ever offers to call additional evidence. However,  it  is necessary to emphasize that  the  court  is principally  concerned  with the  facts  and  circumstances, whether aggravating or mitigating, which are connected  with the  particular  crime under inquiry.  All  such  facts  and circumstances are capable of being proved in accordance with the  provisions  of  the  Indian Evidence  Act  in  a  trial regulated by the Cr.  P.C. The trial does not come to an end until  all the relevant facts are proved and the counsel  on both  sides have an opportunity to address the  court.   The only  thing that remains is for the Judge to decide  on  the guilt  and  punishment and that is what section  306(2)  and 309(2)  Cr.  P.C. purport to provide for.  These  provisions are part of the procedure established by law and, unless  it is  shown that they are invalid for any other reasons,  they must be ’regarded as valid.  No reasons are offered to  show that  they  are constitutionally invalid,  and,  hence,  the death  sentence imposed after trial in accordance  with  the procedure  established by law is not unconstitutional  under Article 21. In the result, the appeal fails and is dismissed. G.C.                        Appeal dismissed. 562