Criminal Law

9
Mar

Examining rarest of the rare case in imposing death penalty

Rarest of the rare case is the principle enshrined in Bachan Singh v. State of Punjab[1]which limits the vast discretion of the court in imposing death penalty. Death as a highest punishment was thrown from a general rule to only in exceptional circumstances and that too after recording special reason for imposing such a highest punishment which cannot be reverted back in any circumstances after its execution. The phrase “rarest of the rare” case still remains to be defined while the concern for human life, the norms of a civilised society and the need to reform the criminal has engaged the attention of the courts. The sentence of death has to be based on the action of the criminal rather than the crime committed. The doctrine of proportionality of sentence vis-a-vis the crime, the victim and the offender has been the greatest concern of the courts.[2]

Mitigating circumstances in awarding death sentence

In Bachan Singh v. State of Punjab,[3]the Supreme Court held that following mitigating circumstances are relevant and must be given weightage in determination of sentence.

  • The age of the accused.
  • The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
  • The probability that the accused can be reformed and rehabilitated.
  • That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  • That the accused acted under the duress or domination of another person.
  • That to condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

Read: The Mandatory Death Penalty

Case 1; In State of Tamil Nadu v. T. Suthanthiraraja,[4]  the former Prime Minister, Rajiv Gandhi, was killed under a conspiracy and main accused were granted death penalty, treating it as rarest of the rare cases. Mere fact that one of the convict was woman and mother of a child, who was born while she was in custody, was not considered a ground for not awarding her with the extreme penalty.

Case 2; In State v. Sushil Sharma[5]the accused pursuing political career and being power drunk was living with the deceased, a fellow female leader, without claiming her to be his wife. He had strong motive to get rid of her. He, therefore, not only pumped bullets in her  head but also chopped off her head but also chopped off her limbs and then put the body on tandoor for burning it. it was held that the act of the accused reflected extreme depravity and it would fall within category of rarest of the rare case.

Case 3; In Swamy Sharaddananda @ Murli Manohar Mishra v. State of Karnataka,[6] the death of wife was caused by administering a high dose of sleeping drugs and she was put alive in a wooden box. Subsequently, she was buried in a pit dug outside bedroom. This ghastly killing was committed ion a planned and cold blooded manner but no physical or mental pain was caused to the victim. Hence, case was not considered as rarest of the rare case and death sentence was substituted by life imprisonment for rest of the life.

Case 4; In Prajeet Kumar Singh v. State of Bihar,[7]the accused had committed brutal murder of three children of his landlord and had injured three others, i.e, landlord, his wife, and their eldest son. The accused was in arrears of his fooding and lodging charges and when the landlord demanded payment he committed this inhuman and extremely brutal act in a grotesque, diabolic, revolting or dastardly manner. Convicting the accused and confirming death penalty it was observed that helpless victim have been murdered which is indicative of the fact that the act was diabolic of the superlative degree in conception and cruel in execution and does not fall within any comprehension of the basic humanness which indicate the mindset which cannot be said to be amenable for any reformation. The accused was entitled to death penalty.

Case 5; In State of Tamil nadu v. Rajendran,[8] the accused had strangulated his wife and set his hut on fire with the result wife and two children were burnt and witness had seen him coming out of the hut and standing outside as silent spectator without raising any alarm. It was held that circumstances were indicating that the accused was perpetrator of crime and he was rightly convicted under section 302/436 IPC but death sentence was altered to imprisonment for life as it was not a rarest of the rare case.

[1] (1980) 2 SCC 684

[2] State of U.P. v. Om Prakash, (2015) 4 SCC 467

[3] (1980) 2 SCC 684

[4] AIR 1999 SC 2640

[5] 2007 CrLJ 4008 (Del)

[6] 2008 CrLJ 3911 (SC)

[7] 2008 CrLJ 1680 (Pat)

[8] AIR 1994 SC 3535

8
Mar

A brief analysis of 262nd Report of Law Commission of India on Death Penalty

The Law Commission of India in its 262nd Report, 2015 recommended that the death penalty may be abolished for all the crime other than terrorism related offences and waging war.

Following are the major findings and recommendation of the Commission:

  1. The march of our own jurisprudence—from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of the rare cases— shows the direction in which we have to head. Informed also by the expanded and depended contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individuals, prevailing standards of constitutional; morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty.
  2. There is no valid penological justification for treating terrorism differently from other, concern is often raised that abolition of death penalty for terrorism related offences and waging war, will affect national security. However, given the concern raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.
  3. The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war.
  4. The Commission trust that this Report will contribute to a more rational principled and informed debate on the abolition of the death penalty for all the crimes.
  5. Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible.
5
Mar

Who are the men whom the gallows shallow?

“The white-collar criminals and the corporate criminals whose wilful economic and environmental crimes inflict mass deaths or who hire assassins and murder by remote control? Rarely, with a few exceptions, they hardly fear the halter. The feuding villager, heady with country liquor, the striking workers desperate with defeat, the political dissenter and sacrificing liberator intent on changing the social order from satanic misrule, the waifs and strays whom society has hardened by neglect into street toughs, or the poor householder, husband or wife, driven by dire necessity or burst of tantrums. It is this person who is the morning meal of the macabre executioner.” –

Rajendra Prasad v. State of Uttar Pradesh, Supreme Court of India (1979)

The total number of prisoners convicted and sentenced to death for the several heinous offences are 349 which is categorised under following sub-category.

Murder simpliciter: Includes cases where the prisoners were convicted under Section 300 of the IPC (murder), or Section 300 of the IPC (murder) along with the Arms Act, 1959; the Explosive Substances Act, 1908 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Total numbers of prisoners under this category are 213 which constitute 57.1% of the total number of prisoner convicted and sentenced to death under all the categories. Of these, 25.8% (55 prisoners) were sentenced to death for the murder of a single person.

­Sexual offences: Includes cases where the main offence along with the murder charge was rape, and also includes cases involving a repeat conviction for rape punishable with death under Section 376E of the IPC. Total numbers of prisoners under this category are 84 which constitute 22.5% of the total number of prisoner convicted and sentenced to death under all the categories.

Read: Women related law

Terror offences: Includes cases where the prisoners were convicted under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), the Prevention of Terrorism Act, 2002, the Unlawful Activities (Prevention) Act, 1967 or for the offence of ‘waging war’ under Section 121 of the IPC. 31

­Kidnapping with murder: Includes those cases where the main offence along with the murder charge was kidnapping. Total numbers of prisoners under this category are 24.

Dacoity with murder: Includes cases where prisoners were convicted for dacoity with murder under Section 396 of the IPC. Total numbers of prisoners under this category are 18.

Offences under defence legislations: Among the prisoners in our study, one was given the death penalty for an offence under the Border Security Force Act, 1968, while another was sentenced to death under the Army Act, 1950. Total numbers of prisoners under this category are ­2.

Drug offences: Includes cases where prisoners have been sentenced to death under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) for a repeat conviction under the Act. Total numbers of prisoners under this category are 1.

3
Mar

Constitutionality of Death Sentence for Non-Homicidal Offence

It is rare but death penalty can also be imposed for non-homicidal offence such as in case of conviction under section 121 and 376E of Indian Penal Code, and section 31A of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS).

In a research conducted by NLU-D it was found that 12 out of the 373 prisoners were sentenced to death for non-homicide offences i.e. for offences that did not result in the loss of human life. These prisoners were convicted in three cases. Eight prisoners from Karnataka were sentenced to death in the Bangalore Church Blasts case (June 2000) even though the blasts did not cause any loss of life. Section 121 of the IPC, under which they were sentenced, criminalises “waging, or attempting to wage war, or abetting waging of war, against the Government of India.” Three prisoners from Maharashtra were sentenced to death in the Shakti Mills gang-rape case under Section 376E of the IPC, which was introduced as part of the Criminal Law (Amendment) Act, 2013. These amendments were part of the Central Government’s response to the protests that broke out after the gang-rape in Delhi on 16 December 2012. The provision introduced the death penalty for the non-homicide offence of a repeat conviction for rape. The constitutionality of the provision is currently under challenge in the High Court of Bombay. One prisoner from Gujarat was sentenced to death under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). This provision allows for the death penalty in instances of repeat conviction for certain offenses involving commercial quantity of any narcotic drugs or psychotropic substances.

In Santosh Kumar Bariyar v. State of Maharastra [(2009) 6 SCC 498] while sharing Supreme Court’s “unease and sense of disquiet” it was observed that “the balance sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to removed the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of ‘the rarest of the rare case” has been most variedly and inconsistently applied by the various high Courts as also this court.”

But unfortunately, even after landmark judgment in Santosh Bariyar case, it seems that in some cases the circumstances pertaining to the criminal (Criminal test) are still not given the importance they deserve. Rajendra Pralhadrao Wasnik v. State of Maharastra [(2012) 5 SCC 317] was a case of rape and murder of a three year old child in a vicious and brutal manner. The Supreme Court confirmed the sentence of death after taking into consideration the brutal nature of the crime (crime test) but not the circumstances of the criminal. Mohd. Mannan v. State of Bihar [(2011) 5 SCC 317] was a case of a brutal rape and murder of a seven year old girl. While confirming the sentence of death, the Supreme Court referred to the nature of the crime and the extreme indignation of the community. On that basis, it leaned towards awarding the death sentence and observed as follows;

            “when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence.”

In some other cases, aggravating circumstances pertaining to the criminal (not the crime) have been considered relevant. Reference may be made to two decisions rendered by the Supreme Court which, incidentally, seem to have overlooked the presumption of innocence.

The tests which have to apply, while awarding death sentence, are “crime test”, “criminal test”, and the R-R test. To award death sentence, the crime test has to be fully satisfied, that is 100% and the criminal test must be 0%, that is, no mitigating circumstances favouring the accused. If there is any circumstances favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc. The criminal test may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still the court need to apply the rarest of the rare test. R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crime or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and inform women with those disabilities etc.

The expression special reason under section 353 (3) CrPC, 1973 means exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as criminal.

Hence, sentence of death penalty in non-homicide offences is against the principle enshrined in Bachan Singh case while was later developed in Santosh Briyar. Such a highest sentence shall be avoided.

2
Mar

Offences where death penalty as a highest punishment is imposed

There are 59 sections in 18 central legislations in India where death as the highest punishment is imposed. Out of there 59 sections, 12 sections are alone present in IPC. This article is brief analysis of all those 59 sections of 18 central legislations where death as a highest penalty is imposed.

Sections under IPC where the highest punishment of an offence is death

Section 121 in Indian Penal Code

  1. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.—Whoever, wages war against the [Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or [imprisonment for life] 77 [and shall also be liable to fine].

[Illustration]  [***] A joins an insurrection against the [Government of India]. A has committed the offence defined in this section. [***]

Section 132 in Indian Penal Code

  1. Abetment of mutiny, if mutiny is committed in consequence thereof.—Whoever abets the committing of mutiny by an officer, soldier, [sailor or airman] in the Army, [Navy or Air Force] of the [Government of India], shall, if mutiny be committed in consequence of that abetment, be punished with death or with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 302 in Indian Penal Code

  1. Punishment for murder.—Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

Section 305 in Indian Penal Code

  1. Abetment of suicide of child or insane person.—If any person under eighteen years of age, any insane person, any delir­ious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or [imprisonment for life], or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 307 in Indian Penal Code

  1. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.—[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

(a) A shoots at Z with intention to kill him, under such circum­stances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section.

(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.

Section 364A in Indian Penal Code

364A. Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 2[any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

Section 388 in Indian Penal Code

  1. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.—Whoever commits extor­tion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with [imprisonment for life],

or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be one punishable under section 377 of this Code, may be punished with [imprison­ment for life].

Section 389 in The Indian Penal Code

  1. Putting person in fear of accusation of offence, in order to commit extortion.—Whoever, in order to the committing of extor­tion, puts or attempts to put any person in fear of an accusa­tion, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with [imprisonment for life],

or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with [imprison­ment for life].

Section 396 in Indian Penal Code

  1. Dacoity with murder.—If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Section 506 in The Indian Penal Code

  1. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—

And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.

Central legislations other than IPC with offences punishable by death

The Air Force Act, 1950

Section 34 in The Air Force Act, 1950

  1. Offences in relation to the enemy and punishable with death.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend, or uses any means to compel or induce any commanding officer or other person to commit the said act; or

(b) intentionally uses any means to compel or induce any person subject to military, naval or air force law to abstain from acting against the enemy, or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy, shamefully cast away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms, ammunition, stores or supplies; or

(f) treacherously or through cowardice sends a flag of truce to the enemy; or

(g) in time of war or during any air force operation, intentionally occasions a false alarm in action, camp or quarters or spreads reports calculated to create alarm or despondency; or

(h) in time of action leave his commanding officer or his post, guard, piqued, patrol or party without being regularly relieved or without leave; or

(i) having been made a prisoner of war, voluntarily serves with or aids the enemy; or

(j) knowingly harbours or protects an enemy not being a prisoner; or

(k) being a sentry in time of war or alarm, sleeps upon his post or is intoxicated; or

(l) knowingly does any act calculated to imperil the success of the military, naval or air forces of India or any forces co-operating therewith or any part of such forces; or

(m) treacherously or shamefully causes the capture or destruction by the enemy of any aircraft belonging to the forces; or

(n) treacherously uses any false air signal or alters or interferes with any air signal; or

(o) when ordered by his superior officer or otherwise under orders to carry out any air forces operations, treacherously or shamefully fails to use his utmost exertions to carry such orders into effect; shall on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 37 in The Air Force Act, 1950

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union. shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 67 in The Air Force Act, 1950

  1. Attempt.—Any person subject to this Act who attempts to commit any of the offences specified in sections 34 to 66 inclusive, and in such attempt does any act towards the commission of the offence shall, on conviction by court-martial, where no express provision is made by this Act for the punishment of such attempt, be liable if the offence attempted to be committed is punishable with death, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and if the offence attempted to be committed is punishable with imprisonment, to suffer imprisonment for a term which may extend to one-half of the longest term provided for that offence or such less punishment as in this Act mentioned.

The Arms Act, 1959

Section 27 in Arms Act

  1. Punishment for using arms, etc.—

(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.

The Army Act, 1950

Section 34 in The Army Act, 1950

  1. Offences in relation to the enemy and punishable with death. Any person subject to this Act who commits any of the following offences, that is to say,-

(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which

it is his duty to defend, or uses any means to compel or induce any commanding officer or other person to commit any of the said acts; or

(b) intentionally uses any means to compel or induce any person subject to military, naval or air force law to abstain from acting against the enemy, or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms., ammunition, stores or supplies; or

(f) treacherously or through cowardice sends a flag of truce to the enemy; or

(g) in time of war or during any military operation, intentionally occasions a false alarm in action, camp, garrison or quarters, or spreads reports calculated to create alarm or despondency; or

(h) in time of action leaves his commanding officer or his post, guard, picquet, patrol or party without being regularly relieved or without leave; or

(i) having been made a prisoner of war, voluntarily serves with or aids the enemy; or

(j) knowingly harbours or protects an enemy not being a prisoner; or

(k) being a sentry in time of war or alarm, sleeps upon his post or is intoxicated; or

(l) knowingly does any act calculated to imperil the success of the military, naval or air forces of India or any forces co- operating therewith or any part of such forces; shall, on conviction by court- martial, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 37 in The Army Act, 1950

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union. shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

The Assam Rifles Act, 2006

Section 21 in Assam Rifles Act, 2006

  1. Offences in relation to the enemy and punishable with death.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) shamefully abandons or delivers up any post, place or guard, committed to his charge or which it is his duty to defend; or

(b) intentionally uses any means to compel or induce any person subject to this Act or to army, naval, air force law or any member of other armed forces to abstain from acting against the enemy or to discourage such person from acting against the enemy; or

(c) in the presence of enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms, ammunition, stores or supplies or in any other manner whatsoever; or

(f) in time of active operation against the enemy intentionally occasions a false alarm in action, camp, quarters or spreads or causes to be spread reports calculated to create alarm or despondency; or

(g) in time of action leaves his Commandant or other superior officer or his post, guard, picket, patrol or party without being regularly relieved or without leave; or

(h) having been captured by the enemy or made a prisoner of war, voluntarily serves with or aids the enemy; or

(i) knowingly harbours or protects an enemy not being a prisoner; or

(j) being a sentry in time of active operation against the enemy or alarm, sleeps upon his post or is intoxicated; or

(k) knowingly does any act calculated to imperil the success of the Force or the army, naval, air forces of India or any other armed forces of the Central Government co-operating therewith or any part of such forces, shall, on conviction by an Assam Rifles Court, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 34 in The Assam Rifles Act, 2006

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union. shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

 

The Border Security Force Act, 1968

Section 14 in The Border Security Force Act, 1968

  1. Offences in relation to the enemy and punishable with death.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) shamefully abandons or delivers up any post, place or guard, committed to his charge or which it is his duty to defend; or

(b) intentionally uses any means to compel or induce any person subject to this Act or to army, naval, air force law or any member of other armed forces to abstain from acting against the enemy or to discourage such person from acting against the enemy; or

(c) in the presence of enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms, ammunition, stores or supplies or in any other manner whatsoever; or

(f) in time of active operation against the enemy intentionally occasions a false alarm in action, camp, quarters or spreads or causes to be spread reports calculated to create alarm or despondency; or

(g) in time of action leaves his Commandant or other superior officer or his post, guard, picket, patrol or party without being regularly relieved or without leave; or

(h) having been captured by the enemy or made a prisoner of war, voluntarily serves with or aids the enemy; or

(i) knowingly harbours or protects an enemy not being a prisoner; or

(j) being a sentry in time of active operation against the enemy or alarm, sleeps upon his post or is intoxicated; or

(k) knowingly does any act calculated to imperil the success of the Force or the army, naval, air forces of India or any other armed forces of the Central Government co-operating therewith or any part of such forces, shall, on conviction by an Assam Rifles Court, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 17 in The Assam Rifles Act, 2006

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union. shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

The Coast Guard Act, 1978

Section 17 in The Coast Guard Act, 1978

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes or conspires with any other person to cause any mutiny in the Coast Guard or in the military, navel or air forces of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to mutiny or of any such conspiracy, does not, without delay, give information thereof to his Commanding Officer or other superior officer; or

(e) endeavours to seduce any person in the Coast Guard or in the military, naval or air forces of India or any forces co-operating therewith from his duty or allegiance to the Union, shall, on conviction by a Coast Guard Court, be liable to suffer death or such less punishment as is in this Act mentioned: Provided that a sentence of death awarded under this section shall not be carried out unless it is confirmed by the Central Government.

The Commission of Sati (Prevention) Act, 1987

Section 4 in The Commission of Sati (Prevention) Act, 1987

  1. Abetment of sati.—

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and shall also be, liable to fine.

(2) If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be liable to fine. Explanation.—For the purposes of this section, any of the following acts or the like shall also be deemed to be an abetment, namely:—

(a) any inducement to a widow or woman to get her burnt or buried alive along with the body of her deceased husband or with any other relative or with any article, object or thing associated with the husband or such relative, irrespective of whether she is in a fit state of mind or is labouring under a state of intoxication or stupefaction or other cause impeding the exercise of her free will;

(b) making a widow or woman believe that the commission, of sati would result in some spiritual benefit to her or her deceased husband or relative of the general well being of the family;

(c) encouraging a widow or woman to remain fixed in her resolve to commit sati and thus instigating her to commit sati;

(d) participating in any procession in connection with the commission of sati or aiding the widow or woman in her decision to commit sati by taking her along with the body of her deceased husband or relative to the cremation or burial ground;

(e) being present at the place where sati is committed as an active participant to such commission or to any ceremony connected with it;

(f) preventing or obstructing the widow or woman from saving herself from being burnt or buried alive;

(g) obstructing, or interfering with, the police in the discharge of its duties of taking any steps to prevent the commission of sati.

The Geneva Conventions Act, 1960

Section 3 in The Geneva Conventions Act, 1960

  1. Punishment of grave breaches of Conventions.-

(1) If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the Conventions he shall be punished–

(a) where the offence involves the wilful killing of a person protected by any of the Conventions, with death or with imprisonment for life; and

(b) in any other case, with imprisonment for a term which may extend to fourteen years.

The Indo-Tibetan Border Police Force Act, 1992

Section 16 in The Indo-Tibetan Border Police Force Act, 1992

  1. Offences in relation to the enemy or terrorist and punishable with death.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) shamefully abandons or delivers up any post, place or guard, committed to his charge or which it is his duty to defend; or

(b) intentionally uses any means to compel or induce any person subject to this Act or to any other law relating to military, naval, air force or any other armed force of the Union to abstain from acting against the enemy or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy or terrorist, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to the enemy, terrorist or any person in arms against the Union; or

(e) directly or indirectly assists the enemy or terrorist with money, arms, ammunition, stores or supplies or in any other manner whatsoever; or

(f) in time of active operation against the enemy or terrorist, intentionally occasions a false alarm in action, camp, quarters or spreads or causes to be spread reports calculated to create alarm or despondency; or

(g) in time of action leaves his commanding officer or other superior officer or his post, guard, picket, patrol or party without being regularly relieved or without leave; or

(h) having been captured by the enemy or made a prisoner of war, voluntarily serves with or aids the enemy; or

(i) knowingly harbours or protects an enemy, not being a prisoner; or

(j) being a sentry in time of active operation against the enemy or alarm, sleeps upon his post or is intoxicated; or

(k) knowingly does any act calculated to imperil the success of the Force or the military, navy or air force of India or any forces co-operating therewith or any part of such forces, shall, on conviction by a Force Court, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 19 in The Indo-Tibetan Border Police Force Act, 1992

  1. Mutiny.—Any person subject to this Act who commits any of the following offences, that is to say,—

(a) begins, incites, causes or conspires with any other person to cause any mutiny in the Force or in the military, navy or air force of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to mutiny or of any such conspiracy, does not, without delay, give information thereof to his commanding officer or other superior officer; or

(e) endeavours to seduce any person in the Force or in the military, navy or air force of India or any forces co-operating therewith from his duty or allegiance to the Union, shall, on conviction by a Force Court, be liable to suffer death or such less punishment as is in this Act mentioned.

The Navy Act, 1957

Section 34 in The Navy Act, 1957

  1. Misconduct by officers or persons in command.—Every flag officer, captain or other person subject to naval law who, being in command on any ship, vessel or aircraft of the Indian Navy, or any naval establishment—

(a) fails to use his utmost exertions to bring into action any such ship, vessel or, aircraft which it is his duty to bring into action; or

(b) surrenders any such ship vessel or aircraft to the enemy when it is capable of being successfully defended or destroyed; or

(c) fails to pursue the enemy whom it is his duty to pursue or to assist to the utmost of his ability any friend whom it is his duty to assist; or

(d) in the course of any action by or against the enemy improperly withdraws from the action or from his station or fails in his own person and according to his rank to encourage the persons under his command to fight courageously; or

(e) surrenders any such naval establishment or any part of such an establishment to the enemy when it is capable of being successfully defended or when it is his duty to cause it to be destroyed; shall,—

(a) if such act is committed with intent to assist the enemy or from cowardice, be punished with death or such other punishment as is hereinafter mentioned; and

(b) in any other case, be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned.

Section 35 in The Navy Act, 1957

  1. Misconduct by persons other than those in command.—Every person subject to naval law who, not being in command of any naval establishment or any ship, vessel or aircraft of the Indian Navy, fails when ordered to prepare for action by or against the enemy, or during any such action, to use his utmost exertions to carry the lawful orders of his superior officers into execution shall,—

(a) if such act is committed with intent to assist the enemy, be punished with death or such other punishment as is hereinafter mentioned; and

(b) in any other case, be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereinafter mentioned.

Section 36 in The Navy Act, 1957

  1. Delaying or discouraging action or service commanded.—Every person subject to naval law who wilfully delays or discourages upon any pretext whatsoever, any action or service which has been commanded on the part of the Navy, regular Army, or Air Force or of any forces co-operating therewith shall,—

(a) if such act is committed with intent to assist the enemy, be punished with death or such other punishment as is hereinafter mentioned; and

(b) in any other case, be punished with imprisonment which may extend to seven years or such other punishment as is hereinafter mentioned.

Section 37 in The Navy Act, 1957

  1. Penalty for disobedience in action.—Every person subject to naval law who, being in the presence or vicinity of the enemy or having been ordered to be prepared for action by or against the enemy—

(a) deserts his post; or

(b) sleeps upon his watch, shall be punished with death or such other punishment as is hereinafter mentioned.

Section 38 in The Navy Act, 1957

  1. Penalty for spying.—Every person not otherwise subject to naval law who is or acts as a spy for the enemy shall be punished under this act with death or such other punishment as is hereinafter mentioned as if he were a person subject to naval law.

Section 39 in The Navy Act, 1957

  1. Correspondence, etc., with the enemy.—Every person subject to naval law, who,—

(a) traitorously holds correspondence with the enemy or gives intelligence to the enemy; or

(b) fails to make known to the proper authorities any information he may have received from the enemy; or

(c) assists the enemy with any supplies; or

(d) having been made a prisoner of war, voluntarily serves with or aids to enemy, shall be punished with death or such other punishment as is hereinafter mentioned.

Section 43 in The Navy Act, 1957

  1. Punishment for mutiny.—Every person subject to naval law, who,—

(a) joins in a mutiny; or

(b) begins, incites, causes or conspires with any other persons to cause a mutiny; or

(c) endeavours to incite any person to join in a mutiny or to commit an act of mutiny; or

(d) endeavours to seduce any person in the regular Army, Navy or Air Force from his allegiance to the Constitution or loyalty to the State or duty to his superior officers or uses any means to compel or induce any such person to abstain from acting against the enemy or discourage such person from acting against the enemy; or

(e) does not use his utmost exertions to suppress or prevent a mutiny; or

(f) wilfully conceals any traitorous or mutinous practice or design or any traitorous words spoken against the State; or

(g) knowing or having reason to believe in the existence of any mutiny or of any intention to mutiny does not without delay give information thereof to the commanding officer of his ship or other superior officer; or

(h) utters word of sedition or mutiny, shall be punished with death or such other punishment as is hereinafter mentioned.

Section 44 in The Navy Act, 1957

  1. Persons on board ships or aircraft seducing naval personnel from allegiance.—Every person not otherwise subject to naval law who being on board any ship or aircraft of the Indian Navy or on board any ship in the service of the Government endeavours to seduce from his allegiance to the Constitution or loyalty to the State or duty to superior officers any person subject to naval law shall be punished under this Act with death or such other punishment as is hereinafter mentioned as if he were a person subject to naval law.

Section 49 in The Navy Act, 1957

  1. Desertion.—

(1) Every person subject to naval law who absents himself from his ship or from the place where his duty requires him to be, with an intention of not returning to such ship or place, or who at any time and under any circumstances when absent from his ship or place of duty does any act which shows that he has an intention of not returning to such ship or place is said to desert.

(2) Every person who deserts shall,—

(a) if he deserts to the enemy, be punished with death or such other punishment as is hereinafter mentioned; or

(b) if he deserts under any other circumstances, be punished with imprisonment for a term which may extend to fourteen years or such other punishment as is hereinafter mentioned, and in every such case he shall forfeit all pay, head money, bounty, salvage prize money and allowances that have been earned by him and all annuities, pensions, gratuities, medals and decorations that may have been granted to him and also all clothes and effects which he may have left on board the ship or the place from which he deserted, unless the tribunal by which he is tried or the Central Government or the Chief of the Naval Staff, otherwise directs.

Section 56 in The Navy Act, 1957

  1. Offences by officers in charge of convoy.—

(1) All officers appointed for the convoy and protection of any ships or vessels shall diligently perform their duty without delay according to their instructions in that behalf.

(2) Every such officer subject to naval law, who,—

(a) does not defend the ships and goods under his convoy without deviation to any other objects; or

(b) refuses to fight in their defence if they are assailed; or

(c) cowardly abandons and exposes the ships in his convoy to hazard; or

(d) demands or exacts any money or other reward from any merchant or master for convoying any ships or vessels entrusted to his care; or

(e) misuses the masters or mariners thereof, shall be punished with death or such other punishment as is hereinafter mentioned, and shall also make such reparation in damages to the merchants, owners and others as a civil court of competent jurisdiction may adjudge.

The Sashastra Seema Bal Act, 2007

Section 16 in The Sashastra Seema Bal Act, 2007

16 Offences in relation to enemy and punishable with death. —Any person subject to this Act who commits any of the following offences, namely:—

(a) shamefully abandons or delivers up any post, place or guard, committed to his charge or which it is his duty to defend; or

(b) intentionally uses any means to compel or induce any person subject to this Act or to any other law relating to military, naval, air force or any other armed force of the Union to abstain from acting against the enemy, or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy, terrorist or any person in arms against the Union; or

(e) directly or indirectly assists the enemy or terrorist with money, arms, ammunition, stores or supplies or in any other manner whatsoever; or

(f) in time of active operation against the enemy or terrorist, intentionally occasions a false alarm in action, camp, quarters, or spreads or causes to be spread reports calculated to create alarm or despondency; or

(g) in time of action leaves his commanding officer or other superior officer or his post, guard, picket, patrol or party without being regularly relieved or without leave; or

(h) having been captured by the enemy or made a prisoner of war, voluntarily serves with or aids the enemy; or

(i) knowingly harbours or protects an enemy, not being a prisoner; or

(j) being a sentry in time of active operation against the enemy or alarm, sleeps upon his post or is intoxicated; or

(k) knowingly does any act calculated to imperil the success of the Force or the military, naval or air force of India or any forces co-operating therewith or any part of such forces, shall, on conviction by a Force Court, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 19 in The Sashastra Seema Bal Act, 2007

19 Mutiny. —Any person subject to this Act who commits any of the following offences, namely:—

(a) begins, incites, causes or conspires with any other person to cause any mutiny in the Force or in the military, naval or air force of India or any forces co-operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to mutiny or of any such conspiracy, does not, without delay, give information thereof to his commanding officer or other superior officer; or

(e) endeavours to seduce any person in the Force or in the military, naval or air force of India or any forces co-operating therewith from his duty or allegiance to the Union, shall, on conviction by a Force Court, be liable to suffer death or such less punishment as is in this Act mentioned.

Section 20 in The Sashastra Seema Bal Act, 2007

20 Desertion and aiding desertion. —

(1) Any person subject to this Act who deserts or attempts to desert the service shall, on conviction by a Force Court,—

(a) if he commits the offence when on active duty or when under orders for active duty, be liable to suffer death or such less punishment as is in this Act mentioned; and

(b) if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Section 2 in The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;

(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;

(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;

(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or

(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.

The Suppression Of Unlawful Acts Against Safety Of Maritime Navigationand Fixed Platforms On Continental Shelf Act, 2002

Section 3. Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-

(1) Whoever unlawfully and intentionally-

(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;

(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for lif;

(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;

(d) places or causes to be placed on a fixed platform or a ship, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or that ship or cause damage to that fixed platform or that ship or its cargo which endangers o is likely to endanger that fixed platform or the safe navigation of that ship shall be punished with imprisonment for a term which may extend to fourteen years;

(e) destroys or damages maritime navigational facilities or interferes with their operation if such act is likely to endanger the safe navigation of a ship shall be punished with imprisonment for a term which may extend to fourteen years;

(f) communicates information which he knows to be false thereby endangering the safe navigation of a ship shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine;

(g) in the course of commission of or in attempt to commit, any of the offences specified in clauses (a) to (d) in connection with a fixed platform or clauses (a) to (f) in connection with a ship-

(i) causes death to any person shall be punished with death;

(ii) causes grievous hurt to any person shall be punished with imprisonment for a term which may extend to fourteen years;

(iii) causes injury to any person shall be punished with imprisonment for a term which may extend to ten years;

(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and

(v) threatens to endanger a ship or a fixed platform shall be punished with imprisonment for a term which may extend to two years.

The Unlawful Activities Prevention Act, 1967

Section 10 inThe Unlawful Activities Prevention Act, 1967

  1. Penalty for being member of an unlawful association, etc.—Where an association is declared unlawful by a notification issued under section 3 which has become effective under sub­-section (3) of that section,—

(a) a person, who­—

(i) is and continues to be a member of such association; or

(ii) takes part in meetings of such association; or

(iii) contributes to, or receives or solicits any contri­bution for the purpose of, such association; or

(iv) in any way assists the operations of such association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine; and

(b) a person, who is or continues to be a member of such association, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property,—

(i) and if such act has resulted in the death of any person, shall be punishable with death or imprisonment for life, and shall also be liable to fine;

(ii) in any other case, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.]

 

Section 16 inThe Unlawful Activities Prevention Act, 1967

  1. Punishment for terrorist act.—

(1) Whoever commits a terrorist act shall,—

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

1
Mar

The Mandatory Death Penalty

The mandatory death penalty continues to remain on the statute books in India though it has been held to be unconstitutional. In Mithu v. State of Punjab [(1983) 2 SCC 277] , the Supreme Court has struck down Section 303 as void and unconstitutional for being violative of both Article 14 and 21 of the Constitution. it regards life-convict to be a dangerous class without any scientific basis and thus violates Article 14 and similarly by completely cutting out judicial discretion it becomes a law which is not just, fair and reasonable within the meaning of Article 21 read with Article 14. So all the matter are now punishable only under section 302 of IPC.

The J & K High Court held that section 303 of Ranbir Penal Code being in pari-materia with Indian Penal Code’s section 303, mandate of Supreme Court striking down the section 303 IPC will automatically result in striking down the corresponding provisions in RPC (Ranbir Penal Code).

In Indian Harm Reduction Network v. Union of India, 2011 [Criminal Writ Petition No. 1784 OF 2010] , the High Court of Bombay held that the provision for mandatory death sentence under Section 31A of the The Narcotic Drugs and Psychotropic Substances Act, 1985 was in violation of Article 21 of the Constitution, and held that the words “shall be sentenced to death” be read as “may be sentenced to death.”

In State of Punjab v. Dalbir Singh, 2012 [Criminal Appeal No.117 OF 2006], the Supreme Court struck down Section 27(3) of the Arms Act, 1959 which made the offence of using prohibited arms, if it results in the death of a person, as punishable with death. It was found that Section 27(3) was in breach of Articles 14 and 21 of the Constitution, as it took away judicial discretion in matters relating to imposition of the death penalty.

Despite mandatory death sentence being declared unconstitutional in the cases mentioned above, it is a matter of grave concern that it continues to be a part of certain central legislation. Section 195A of the IPC, Section 3(1)(g) (i) of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 and Section 3(2)(i) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 still provide for the mandatory death sentence.

22
Feb

Legal right of the person at the time of arrest

It is sad to mention that very few of us actually know our legal right that too at the time of arrest. One shall, whether or not, a legal practitioner shall know her/his legal right to protect himself from unjust circumstances.

To protect the legal rights of the person emphasised in D.K. Basu v. State of Bengal [AIR 1997 SC 610] that custodial torture is a naked violation of human dignity and degradation which destroys to a very large extent the individual personality.

Further, section 41-B, 50-A, and 54 was introduced through CrPC (Amendment) Act, 2005 lay down the procedure of arrest of a person and duties of the officer making the arrest.

Read: The Police cannot refuse to register FIR

Section 41-B lays down the procedure of arrest of a person and duties of the officer making the arrest. Apart from preparing a memorandum of arrest, which shall be attested either by a member of the family of the arrested person or a respectable member of the locality, it is the duty of the police officer to inform the arrested person that he has a right to have a relative or a friend named by him to be informed of his arrest.

Section 50 further confers the right to the arrested to have full particulars of the offence and other grounds of arrest.

Section 50-A casts an obligation on the person making the arrest to inform about the arrest, the place where the arrested person is being held and the right of the arrested person to be brought to police station. To the person so nominated by the arrested person.

Section 54 makes an obligation on the arresting authority to ensure that the arrested person is examined by a government doctor or a registered medical practitioner.

Section 51 lay down the procedure before making the personal search of the accused. The searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. This rule is meant to avoid the possibility of implanting an object to be shown in the search. The ground of such arrest must be given to the accused. Where no such grounds are given, the search becomes illegal and thus it could lead to acquittal of the accused, or amount to compensation to the accused in case of the accused have to suffer harassment.

Read: When police refuses to register an FIR?

Section 53 further protects the person from illegal investigation or from illegal process to conduct legal investigation. It lays down the condition that medical examination will have to be done at the instance of a police officer not below the rank of sub-inspector. The person shall not be subjected, voluntarily or involuntarily, to polygraph and brain fingerprinting tests as these types of test is barred by Article 21 (3) of the Constitution of India. In Selvi v. State of Kernataka [AIR 2010 SC 1974] the Supreme Court mentioned that subjecting a person to polygraph and brain fingerprinting tests involuntarily has been held as amounting to forcible interference with his mental process. It is clear violation of right of privacy.

Section 53-A provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in Government Hospital or in absence by local authority. It is necessary for the woman who was raped to go through DNA test. Denial or obstruction by, whomever, is penal.

Section 55-A lay down that it shall be duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. The constitution of India, under Article 22 (2) also provides for producing the arrested person before magistrate within 24 hours.

Section 57 mentioned that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place to the Magistrate’s court.

20
Feb

When police refuses to register an FIR?

When the criminal offence has been committed, the complainant should ordinarily first avail of his remedy of filing an FIR in the Police Station under section 154 (1) of CrPC. Under section 154 the information relating to the commission of the cognizable offence can be given to an officer in charge of the police station. Further, if the officer in charge of police station refuses to record the information in writing then lodge the complaint to the Superintendent of Police in writing by post under section 154 (3). Thus, the station house officer refuses to register a complaint then the alternative remedy is Superintendent of Police under section 154 (3), but what if both the concerning authority refuses to register the FIR.

If the Station House Officer as well as the Superintendent of Police refuses to register the FIR, or having registered it, do not hold proper investigation, the complainant then has a third alternative remedy to file an application under section 156 (3) CrPC before the concerned Magistrate. On receiving such a complaint the Magistrate may direct registration of FIR and/or proper investigation to impart justice in the alleged offence, and he can, in that case, also monitor the investigation.[1]

In Priyanka Srivastava[2], the Supreme Court issued guidelines to the Magistrate for dealing with a petition under section 156 (3) CrPC. If a victim is in remote corner of the state and the police refused to register the FIR, he need not have to come to High Court to file application under section 482 CrPC to invoke the jurisdiction of the High Court. The justice have to be served to the victim by the nearest Magistrate under section 156 (3)  CrPC. There is no need to lodge the complaint under section 156 (3) CrPC in the manner of petition/plaint to the Magistrate. A written application in either of the language will serve the cause. The affidavit so attached, ass said in Priyanka case, can be formal form affixing the necessary Court fees stamp.

Read: The Police cannot refuse to register FIR

Similar relief can be availed through Legal Service Authority Act, 1987, under which, a viable mechanism for providing access to justice to anyone in need of it, has been put in place. In every Taluk in the state, a judicial officer, in the rank of civil Judge or Senior Civil Judge (Munsif cadre/Sub-Judge Cadre) has been appointed as the chairman of the Taluk Legal Service Committee. Likewise, in every district, a judicial officer in the rank of Senior Civil Judge (Principle Sub Judge) has been appointed as the District Legal Service Authority. Under Article 144 of the constitution of India, it is the duty of these authorities also to act in aid of the Supreme Court and therefore, they should also ensure that the mandate of Lalita Kumari[3] IV-V are implemented. Any person who is aggrieved by refusal of the Police to register an FIR on his complaint or issue a CSR receipt, can approach the local Legal Service Authority and being approached, the Legal Service Authority shall entertain the complaint and ensure the implementation of the directions of the Supreme Court in Laslita Kumari IV and V.

Also, when the fair and impartial trial has not been conducted in the case, or the appellant has prove of manifest illegality in the investigation conducted under section 173 CrPC, the appellant has alternative remedy to approach the Magistrate. The Magistrate has ample of power to supervise and even monitor the investigation.[4] The Supreme Court further stated in Sakiri Case that the magistrate, under section 156 (3) CrPC can check on the police performing their duties and where the Magistrate finds that the police have not done their duty or has not investigated the case properly, the magistrate can direct the Police to carry out the investigation properly and can monitor the same.

[1] Devarapalli v. Narayana, AIR 1976 SC 1672; Madhu bala v. Suresh Kumar, AIR 1977 SC 3104

[2] Priyanka Srivastava & Anr v. State of U.P. & Ors AIR 2015

[3] Lalita Kumari v. State of U.P., AIR 2013 4 SCC 1 [W.P. No. 68/2008]

[4] Sakiri Vasu v. State of U.P. and ors 2008 (1) RCR (Cr) 392 (SC)