The amendment of Section 367(5) of the Code of Criminal Procedure by Central Act XXVI of 1955 restored the discretion conferred by Section 302 of the Indian Penal Code, which provided for the alternative sentences of death or imprisonment for life for the offence of murder.

Headnote:
CRIMINAL LAW - SENTENCING - MURDER - NORMAL PENALTY - DISCRETION OF COURT - SECTION 302 INDIAN PENAL CODE - SECTION 367(5) CODE OF CRIMINAL PROCEDURE - AMENDMENT OF 1955 - EFFECT.
Fact of the Case:

The accused was convicted of murder and sentenced to death. The question arose as to whether, after the amendment of Section 367(5) of the Code of Criminal Procedure by Central Act XXVI of 1955, it was correct to hold that the normal penalty for an offence under Section 302 of the Indian Penal Code was death, and that the lesser penalty of imprisonment for life could not be awarded in the absence of extenuating circumstances.
Finding of the Court:

The Court held that after the amendment of Section 367(5) of the Code of Criminal Procedure, it was not correct to hold that the normal penalty for an offence under Section 302 of the Indian Penal Code was death, or that the lesser penalty of imprisonment for life could not be awarded in the absence of extenuating circumstances. The matter was, after the amendment, left to the discretion of the Court. The Court must, however take into account all the circumstances and state its reason for whichever of the two sentences it imposes in its discretion.
Issues: Whether the amendment of Section 367(5) of the Code of Criminal Procedure by Central Act XXVI of 1955 affected the normal penalty for an offence under Section 302 of the Indian Penal Code.
Ratio Decidendi: The Court held that the amendment of Section 367(5) of the Code of Criminal Procedure by Central Act XXVI of 1955 had the effect of restoring the discretion conferred by Section 302 of the Indian Penal Code, which provided for the alternative sentences of death or imprisonment for life for the offence of murder. The Court held that the previous rule, which required the imposition of the death sentence as the normal penalty for murder unless there were extenuating circumstances, was no longer operative. The Court held that the Court now had the discretion to impose either of the two sentences prescribed in Section 302 of the Indian Penal Code, but that the Court must still give its reasons for imposing a particular sentence.
Final Decision: The Court answered the question referred to it as follows: "After the amendment of sub-section (5) of Section 367 of the Code of Criminal Procedure by Central Act XXVI of 1955 , lit is not correct to hold that the normal penalty for an offence under Section 302 of the Indian Penal Code is a sentence of death or that the lesser penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is, after the amendment, left to the discretion of the Court. The Court must, however take into account all the circumstances and state its reason for whichever of the two sentences it imposes in its discretion."

JUDGMENT - Kotval, C.J.

1. Vali Mohammad Jan Mohammad was tried before the additional Sessions Judge, Aurangabad, for the murder of the Mohabbat and was convicted under Section 302 I.P.C. and sentenced to death. When the papers were submitted to this Court for confirmation of the sentence to death. When the papers were submitted to this Court for confirmation of the sentence of death, the case was heard along with the appeal filed by the accused, Criminal Appeal No. 899 of 1968 A division Bench of this Court (Tarkunde and Gatne, JJ.) have confirmed the conviction in appeal but have referred a question of law as regards the sentence to be imposed in such cases. The question arises in view of a conflict of decisions in this Counts, the question referred is as follows:-

After the amendment of sub-section (5) of Section 367 of the Code of Criminal Procedure by Central Act XXVI of 1955, is it correct to hold that the normal penalty for an offence under Section 302 of the Indian Penal Code is death, and that the lesser penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence?"

The Division Bench considered in necessary to refer this question because in its view there is a conflict between the decision of the Division Bench in State of Maharashtra V. Gourishankar Kawadu, 68 Bom LR. 236 on the one hand and the decision of Division Benches of this Court in Confirmation Cases No. 13 of 1958, No. 36 of 1962 and No. 8 of 1966 (Bom) , on the other.

The Division Bench considered it necessary to refer this question because e in its view there is a conflict between the decision of the Division Bench in State of Maharashatra v. Gourishankar Dawadu, 68 Bom LR 236 on the one hand and the decision of Division Benches of this Court in Confirmation Cases No. 13 of 1958, No. 36 of 1962 and No. 8 of 1966 (Bom), on the other.

2. The difference of view arises form the amendment of Section 367 of the Code of Criminal Procedure by Central Act XXVI of 1955 which came into force on the 1st of January 1956. The present Sub-section (5) of Section 367 is radically different and does not concern itself with the subject with which we are dealing. When the amendment was made the entire sub-section (5) as it then stood was dropped by the Amending Act and a new sub-section (5) on an entirely different subject was substituted.

3. Sub-section (5) of Section 367 as it originally stood was as follows;-

" If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why sentence of death was not passed. Section 302 of the Indian Penal Code which was affected by the amendment remains the same as it was when enacted. It says "whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine." The section, therefore, gives the Court a discretion as to the punishment to be imposed for an offence of murder and that discretion is to be exercised between the two alternatives mentioned namely the sentence of death and the sentence of imprisonment for life.

4. The question which arises in the present reference is what was the effect of the old sub-section (5) of Section 367 upon this provision of the substantive law. Some of the decisions to which we will presently refer have taken the view that sub-section (5) of Section 367 was merely procedural in its effect. It only meant to prescribe that reasons should be given and did not affect the discretion conferred by section 302 in the matter of imposition of the sentence. On the other hand, there are several decisions in which the view has been taken that sub-section(5) as it stood prior to the amendment clearly indicated that the normal sentence to be imposed for an offence of murder was the sentence of death. The Section prescribed that where the Court sentences such a person to any punishment other

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