K. Govindaswami Pillai vs Government of India and Others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1985 Supreme(Mad) 452

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K VENKATASWAMI, THE HONOURABLE MR. JUSTICE M. N. CHANDURKAR & THE HONOURABLE MR. JUSTICE NATARAJAN
K. Govindaswami Pillai - Appellant
Versus
Government of India and Others - Respondent
Case No : W.P. No. 9290 of 1985 and W.M.P. No. 13918 of 1985
Decided On : 06 November 1985

Advocates Appeared:S. Krishnaswami, P. Narasimhan, N. R. Chandran, Advocates.

Headnote:
The judgment deals with the scope and effect of Chapter XXVIII and Sections 366 to 371 contained therein. It also examines whether referred trial proceedings constitute an integral part of the trial proceedings before the Sessions Court and whether by reason of a sentence of death not being executable till the High Court confirms it in the reference made to it, the High Court also becomes a Court of trial and not a Court of appeal.
Fact of the Case:

The petitioner, the father of Jayaprakash, who was convicted by the Sessions Judge of Chengalpattu in S.C. 89 of 1984 on the file of his Court under nine counts under S. 302, IPC, for having committed the murder of his sister, sister's husband, their child and six others, between the hours 3.30 p.m. and 10 p.m. on 24-2-1984, and sentenced to be hanged by neck till he is dead, subject to the confirmation of the sentence by the High Court, filed a writ petition under Art. 226 of the Constitution praying for the issue of a writ of declaration or any other appropriate writ, order or direction in the nature of writ for declaring that - (1) the death sentence passed on the accused is not executable as he had no chance of a regular appeal as a matter of right and as a matter of course on points of law and on facts to a higher court under the Code or under any other law(2) that the procedure prescribed under Ss. 235(2) and 354(3) of the Code and under Art. 22(2) read with S. 167 of the Code and Ss. 3 and 9 of the Evidence Act and Order 624 of the Tamil Nadu Police Standing Orders and S. 154(2) of the Code have not been followed and that the non-compliance of the procedure is violative of Arts. 14, 19, 20 and 21 of the Constitution; (3) that as the death sentence imposed upon the accused under S. 302, IPC, has an alternative punishment, it is violative of Arts. 14, 19 and 21 of the Constitution, since the death sentence has been given to him without being given an opportunity of appeal as a matter of right and course to a higher court; (4) that the execution of the death sentence, as provided for under S. 413 of the Code is not executable as the accused had no opportunity to prefer an appeal to a higher Court as a matter of right, and as such, any proceeding under S. 413 of the Code is violative of Arts. 14, 19 and 21 of the Constitution; (5) that the evidence provable under S. 27, Evidence Act read with S. 162(2) of the Code as far as it relates to S. 27, Evidence Act, is not in accordance with the rights of the accused under Arts. 14, 19, 20 and 21 of the Constitution; and (6) that in the result, the death sentence passed upon accused Jayaprakash by the Sessions Judge, Chengalpattu, and confirmed in R.T. 11 of 1984 by this Court is not executable, and pass such other or further orders as this Honorable Court may deem fit and proper in the interests of law and fair procedure and thus render Justice.
Finding of the Court:

The Court held that every person convicted in a trial held by a Sessions Judge or an Additional Sessions Judge, and sentenced to death or imprisonment or fine, has an indefeasible right of appeal to the High Court, unless the case falls under the excepted categories set out in Ss. 375 and 376. It therefore goes without saying that every accused person sentenced to death by a Court of Session has not only a right, but an undeniable right, to file a first appeal on facts to the High Court against his conviction and sentence.
Issues: 1. Whether the pronouncement of a Division Bench of this Court in S. S. A. Vivekanandan v. State of Tamil Nadu, etc. W.P. 11886 of 1983, order dated 2nd July 1985 set out the correct position of law and whether the petitioner is entitled to invoke the ratio in the said case to his aid 2. Whether the procedure prescribed under Ss. 235(2) and 354(3) of the Code and under Art. 22(2) read with S. 167 of the Code and Ss. 3 and 9 of the Evidence Act and Order 624 of the Tamil Nadu Police Standing Orders and S. 154(2) of the Code have not been followed and that the non-compliance of the procedure is violative of Arts. 14, 19, 20 and 21 of the Constitution; 3. Whether as the death sentence imposed upon the accused under S. 302, IPC, has an alternative punishment, it is violative of Arts. 14, 19 and 21 of the Constitution, since the death sentence has been given to him without being given an opportunity of appeal as a matter of right and course to a higher court; 4. Whether the execution of the death sentence, as provided for under S. 413 of the Code is not executable as the accused had no opportunity to prefer an appeal to a higher Court as a matter of right, and as such, any proceeding under S. 413 of the Code is violative of Arts. 14, 19 and 21 of the Constitution; 5. Whether the evidence provable under S. 27, Evidence Act read with S. 162(2) of the Code as far as it relates to S. 27, Evidence Act, is not in accordance with the rights of the accused under Arts. 14, 19, 20 and 21 of the Constitution; and 6. Whether in the result, the death sentence passed upon accused Jayaprakash by the Sessions Judge, Chengalpattu, and confirmed in R.T. 11 of 1984 by this Court is not executable, and pass such other or further orders as this Honorable Court may deem fit and proper in the interests of law and fair procedure and thus render Justice.
Ratio Decidendi: The Court held that the reference proceedings under Chapter XXVIII are not extended trial proceedings, but are appellate in nature and hence, when powers of confirmation, annulment or modification are exercised by the High Court under S. 368, it would amount to exercise of powers by the Appellate Court and consequently, there can be no further right of first appeal on facts to the Supreme Court.
Final Decision: The Court dismissed the writ petition and the rule was discharged.

Judgment :-

NATARAJAN, J.

On a reference made by Nainar Sundaram, J. this writ petition has been heard by this Full Bench for determination of the question, whether the pronouncement of a Division Bench of this Court in S. S. A. Vivekanandan v. State of Tamil Nadu, etc. W.P. 11886 of 1983, order dated 2nd July 1985 set out the correct position of law and whether the petitioner is entitled to invoke the ratio in the said case to his aid

2. The petitioner herein is the father of one Jayaprakash alias Jayaprakasam, who was convicted by the Sessions Judge of Chengalpattu in S.C. 89 of 1984 on the file of his Court under nine counts under S. 302, IPC, for having committed the murder of his sister, sister's husband, their child and six others, between the hours 3.30 p.m. and 10 p.m. on 24-2-1984, and sentenced to be hanged by neck till he is dead, subject to the confirmation of the sentence by the High Court. While the Sessions Judge made a reference of the case of Jayaprakash to this Court under S. 366. Cr.P.C., (hereinafter called the Code) for confirmation of sentence, the accused too preferred an appeal in S.C.A. 703 of 1984 under S. 374(2) of the Code. The reference, which was numbered as R.T. No. 11 of 1984 and the criminal appeal were clubbed and heard together by a Division Bench of this Court, consisting of V. Ramaswami and K. M. Natarajan, JJ. The learned Judges affirmed the convictions under the nine counts and the sentence of death too on the ground that the murders had been perpetrated in a dastardly, brutal and inhuman manner. The learned Judges have given the reasons for confirming the sentence of death in the following terms

"Turning to the question of sentence, we find that the appellant acted like a demon showing no mercy to the helpless victims, three of whom are little children and two are women and the murders have been perpetrated in a cruel, callous and fiendish fashion. He has not only murdered his sister, who had entertained him and provided him with job, but also her husband, her six months old milking child, two brothers of his brother-in-law, wife of the brother-in-law's brother and his two daughters aged 6 years and 2 years and also the employee in the factory who was staying with them and the entire family was exterminated for no fault of theirs. He has not only murdered all the nine members of the entire family but also removed their belongings. Applying the guidelines laid down by their Lordships of the Supreme Court in Bachan Singh v. State of Punjab, and considering the facts and circumstances of this case, we are of the view that this is one of the rarest of rare cases which warrants only the sentence of death and that the failure to invoke the sentence of death in a case of such grave nature and magnitude of the crime where nine murders were committed in a very dastardly, brutal and inhuman manner, will bring to naught the sentence of death provided by S. 302, IPC. Hence, no interference is called for in the sentence also." *

3. The reference under S. 366 of the Code was ordered in terms of the confirmation of the conviction and sentence and the appeal filed by the accused was dismissed

4. On pronouncement of the judgment, the counsel for the accused made an oral application under Art. 134A of the Constitution praying for the grant of leave under Art. 134(1)(c) of the Constitution to appeal to the Supreme Court. The learned Judges declined to grant leave on the ground that in terms of their detailed judgment for affirming the conviction and sentence, and since no substantial question of law of general importance which needed to be decided by the Supreme Court arose for consideration, a certificate of leave was not called for

5. Thereafter, the accused preferred a special leave petition in S.L.P. (Crl) No. 1758 of 1985 to the Supreme Court under Art. 136 of the Constitution praying for grant of special leave, but it was dismissed by the Supreme Court by order dated 23rd July, 1985. The accused then soug

Click Here to Read the rest of this document

Judicial Analysis