2001 Supreme(SC) 886

2001(4) Supreme 363
Supreme Court of India
(From Guahati High Court)
K.T. Thomas, R.P. Sethi & S.N. Phukan, JJ.
Ram Deo Chauhan @ Raj Nath —Petitioner/Appellant
versus
State of Assam —Respondent
Review Petition (Criminal) No. 1105 of 2000
In
Criminal Appeal No. 4 of 2000
Decided on 10-5-2001
Counsel for the Parties :
For the Petitioner/Appellant : S. Muralidhar, Advocate.
For the Respondent : Sunil Kr. Jain, Amitesh Lal, Advocates for M/s. Jain Hansaria and Co., Advocates.

Very important point
(By Majority of 2 : 1)
Death penalty imposed cannot be re-opened in review petition under Article 137 of Constitution on the ground that petitioner was a juve­nile on the date of Commission of the offence. However, this is with­out prejudice to the right of the petitioner to get the benefit under Sections 432, 433 and 433A of Cr.P.C. 1973.

Headnote:(i) Criminal Procedure Code, 1973—Section 309(2) Proviso (as amended in 1978)—Effect of “no adjournment shall be granted for the purpose only of enabling the accused persons to show cause against the sen­tence proposed to be imposed on him”—Legal position regarding the necessity to afford opportunity for hearing to the accused on the question of sentence.

       Per Thomas, J.

       Held : (1) When the conviction is under Section 302 IPC (with or without the aid of Section 34 or 149 or 120B of IPC) if the Sessions Judge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the accused on the question of sentence. Section 235(2) of the Code will not be violated if the sentence of life imprisonment is awarded for that offence without hearing the accused on the question of sentence. (2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence. (3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and the sentence shall also be pronounced on the same day. (4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge propose to impose death penalty) the proviso to Section 309(2) is not a bar for affording such time. (5) For any reason the court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences the convicted ­person shall be committed to jail till the verdict on the sentence is pronounced. ­Further detention will depend upon the process of law. (Para 4)

       Per Sethi, J.

       The mandate of the Legislature is clear and unambiguous that no adjournment can be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be ­imposed upon him. In a case punishable with death or imprisonment for life, there is no difficulty for the court where the sentence proposed to be imposed is alternative sentence of life imprisonment but if it proposes to award the death sentence, it has discretion to adjourn the case in the interests of Justice as held in Sukhdev Singh’s case. I have no doubt in holding that despite the bar of third proviso to sub-section (2) of Section 309, the Court, in appropriate cases, can grant adjournment for enabling the accused persons to show cause against the sentence proposed on him particularly if such proposed sentence is sentence of death. We hold that in all cases where a conviction is recorded in cases triable by the Court of Sessions or by Special Courts, the court is enjoined upon to direct the accused convict to be immediately taken into custody, if he is on bail, and kept in jail till such time the question of sentence is decided. After the sentence is awarded, the convict is to undergo such sentence unless the operation of the sentence awarded is stayed or suspended by a competent court of jurisdiction. Such a course is necessitated under the present circumstances prevalent in the country and is in consonance with the spirit of law. A person granted bail has no right to insist to remain at liberty on the basis of the orders passed in his favour prior to his conviction. (Para 51)

       (ii) Constitution of India—Article 137—Scope of Review—Order 40 Rule 1 of Supreme Court Rules—Scope of Review in criminal matters—Whether grounds urged in petition and at the bar make out a case of review? (No).

       Per Sethi, J.

       Held : The grounds urged in the petition and at the Bar do not make out a case for review. In the guise of this petition, the petitioner has sought the re-appraisal of the whole evidence firstly to hold him not guilty and even if he is found guilty to give him the benefit of the Act. The contentions raised and the prayer made are admittedly beyond the scope of review. This petition can be dismissed only on this ground. (Para 30)

       Per Phukan, J.

       Review as the expression itself shows is a fresh view of matters already examined. As my learned Brothers have elaborately delineated the scope of review, it is unnecessary to traverse the path again. Suffice it would be to say that power of review is a restricted power which authorises the Court which passed the order sought to be reviewed, to look over and go through the order, not in order to substitute a fresh or a second order; but in order to correct it or improve it because some materials which it ought to have considered has escaped its consideration. As my learned Brothers have agreed on the scope of review, the sentence of death imposed cannot be reopened. With respect, I agree with my learned Brother Mr. Justice R.P. Sethi. (Para 54)

       (iii) Constitution of India—Article 137—Review of death penalty in a murder case on ground that accused was a juvenile on date of offence—Whether may be considered—If so, whether death penalty be converted to life imprisonment—Whether accused is entitled to benefit of Juvenile Justice Act, 1986 (No by Majority of 2 : 1)—Case law discussed.

       Per Sethi, J.

       Held : However, being the case of death sentence, we have decided to consider the whole matter in depth to ascertain as to whether the petitioner is entitled to the benefit of the Act or not. We have further opted to consider that even if he is not proved to be juvenile, can he be given the benefit of his age on the ground of his allegedly being on the borders of the age contemplated under the Act for the purposes of awarding him the alternative sentence of imprisonment for life. (Para 30)

       I am also satisfied that the petitioner was not a juvenile within the meaning of the Act nor did he seriously claim to be a juvenile for the purposes of getting the benefit of Section 22 of the Act. The Judgment of the trial court and the High Court cannot be assailed on the ground of having been passed in violation of the mandate of law. (Para 39)

       From the evidence produced and the material placed before the courts below, there is not an iota of doubt in my mind to hold that the petitioner was a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act. He is proved to be major at the time of the commission of the offence. No doubt, much less a reasonable doubt is created in the mind of the Court, for the accused entitling him the benefit of a lesser punishment. It is true that the accused tried to create a smoke screen with respect to his age but such efforts appear to have been made only to hide his real age and not to create any doubt in our mind. The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists for finality of judgments and is more concerned with the strengthening of the judicial system. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakens the faith of the common man in the justice dispensation system has to be discouraged. (Para 45)

       After committing the crime of murder of four innocent persons, the petitioner cannot be permitted to resort to adopt means and tactics or to take measures which, if accepted or condoned, may ­result in the murder of the judicial system itself. The efforts made by the accused by way of this petition, are not likely to advance the interests of justice but on the contrary frustrate it. (Para 46)

       Upon consideration of all relevant circumstances and in view of the settled position of law, I have no doubt in my mind that the present Review Petition is without merit, the grounds mentioned therein have been concocted and carved out for escaping the rigours of law and the sentence imposed upon the accused by well considered judgments of the trial court, High Court and this Court. The review petition is accordingly dismissed. (Para 52)

       Per Thomas, J. dissenting from Sethi, J.

       In my thoughtful rumination on that alternative option I feel inclined to respectfully dissent from my learned brother’s conclusion that there is no scope to alter the death penalty imposed on the petitioner. (Para 1)

       Of course the doctors’ estimates of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. When the possibility of the petitioner having been a juvenile on the relevant date cannot be excluded from the conclusion by adopting such reasonable standards, the interdict contained in Section 22(1) of the Juvenile Act cannot be bypassed for awarding death penalty to the petitioner so long as the death penalty is permitted to survive Article 21 only if the lesser alternative can be foreclosed unquestionably. In other words, if the age of the petitioner cannot be held to be unquestionably above 16 on the relevant date its corollary is that the lesser sentence also cannot unquestionably be foreclosed. We have to abide by the declaration of law made by the majority of Judges of the Constitution Bench in Bachan Singh’s case. For the aforesaid reasons I am persuaded to allow this review petition and alter the sentence of death to imprisonment for life. The review petition is disposed in the above terms. (Paras 22 and 23)

       Per Phukan, J. agreeing with Sethi, J.

       As my learned Brothers have elaborately delineated the scope of review, it is unnecessary to traverse the path again. Suffice it would be to say that power of review is a restricted power which authorises the Court which passed the order sought to be reviewed, to look over and go through the order, not in order to substitute a fresh or a second order; but in order to correct it or improve it because some materials which it ought to have considered has escaped its consideration. As my learned Brothers have agreed on the scope of review, the sentence of death imposed cannot be reopened. With respect, I agree with my learned Brother Mr. Justice R.P. Sethi. (Para 54)

       But, a question that remains to be considered further is the effect of conclusion arrived at by my learned Brother Mr. Justice Thomas. Is the accused remediless; that remains to be seen. (Para 55)

       In the circumstances, if any motion is made in terms of Sections 432, 433 and 433A of the Code and/or Article 72 or Article 161 of the Constitution as the case be, the same may be appropriately dealt with. It goes without saying that at the relevant stage, the factors which have weighed with my learned Brother Mr. Justice Thomas can be duly taken note of in the context of Section 432(2) of the Code. (Para 58)

       Held finally : In view of the majority judgment the review petition is dismissed. However, this is without prejudice to the right of the petitioner to get the benefit under Sections 432,433 & 433-A of the Code of Criminal Procedure. (Paras 59 and 60)