2013 Supreme(SC) 270

Supreme Court of India
P. SATHASIVAM & B.S. CHAUHAN, JJ.
Yakub Abdul Razak Memon – Appellant
Versus
The State of Maharashtra, through CBI , Bombay – Respondent
CRIMINAL APPEAL NO. 1728 OF 2007
Decided On : 21-03-2013

Headnote:

Constitution Of India,1950 - Article 42 – Indian Penal Code,1860 - Sections 302, 307, 326, 324, 427, 435, 436, 201 - Designated Court under Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 19 - TADA (P) Act - Section 3(2)(i)(ii), 3(3)(4), 5 - Explosive Substances Act, 1908 - Sections 3, 4(a)(b), 5 and 6 – Prevention of Damage to Public Property Act - Section 4 - FIR – investigation - punishment - Masjid at Ayodhya was demolished on 06.12.1992. After its demolition, violence broke out throughout the country. In order to take revenge of the said demolition, Tiger Memon (AA) and Dawood Ibrahim, a resident of Dubai, formulated a conspiracy to commit a terrorist act in the city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and ammunitions from abroad. Tiger Memon, in association with his men, particularly, the accused persons, received those arms and ammunitions through sea-coasts of Bombay. In continuation of the said conspiracy, Tiger Memon sent some of the accused persons to Dubai and from there to Pakistan for training and handling in arms and ammunitions commercial hub of the country, the city of Bombay, witnessed an unprecedented terrorist act sending shock waves throughout the world. In a span of about two hours –Held, Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats - case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments—one being the “aggravating circumstances” and, the other being the “mitigating circumstance”. To balance the two is the primary duty of the court. The principle of proportionality between the crime and the punishment is the principle of “just deserts” that serves as the foundation of every criminal sentence that is justifiable. In other words, the “doctrine of proportionality” has valuable application to the sentencing policy under the Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the “rarest of rare cases”, warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non- consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be automatic or claimed as a right for the simple reason, that this is only an enabling provision and the same would be possible subject to fulfillment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court, in various decisions, has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government – Order accordingly