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SC – Death Penalty for “Kidnapping for Ransom” (S.364A IPC) not Unconstitutional

By: Ashok KM | August 22, 2015
Death Penalty for “Kidnapping for Ransom

Three Judge Bench upheld the Death Penalty of Vikram Singh for kidnapping and killing a 16 year old boy, demanding a ransom of 50Lakhs from his father.

The Supreme Court of India on Friday, in Vikram Singh vs. Union of India, dismissed an appeal by a death row convict, and held that Section 364A awarding death penalty as a possible punishment, for kidnapping any person threatening to cause death in order to compel Government or any other person, to pay ransom , is not unconstitutional. Three Judge bench of Justices T.S. Thakur, R.K. Agrawal  and Adarsh Kumar Goel examined the background of the Section 364A and held that it was enacted for the safety and security of the citizens and the unity, sovereignty and integrity of the country. The punishment prescribed, the court held “cannot be dubbed as so   outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional.” The court however, said that the death penalty prescribed, may be only awarded in cases which falls in rarest of rare category. Just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric, the court held.

Factual Background

The appellants were tried, convicted and sentenced to death under Sections 302 and 364A of the Indian Penal Code, for kidnapping and killing a 16 year old boy, demanding a ransom of 50 Lakhs from his father. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana and later by the  Supreme Court. Confirming his death penalty, the Apex Court had observed,  “Abhi Verma was only 16 years of age, and had been picked up by Vikram Singh who was known to him but had soon realized the predicament that he faced and had shouted for help. His terror can further be visualized when he would have heard the threatening calls to his father and seen the preparations to do away with him, which included the taping of his mouth and the administration of an overdose of dangerous drugs. The horror, distress and the devastation felt in the family on the loss of an only son, can also be imagined.”

After the appeal remedy exhausted, they filed a Writ petition before the High Court challenging the constitutionality of Section 364A awarding death penalty which also got dismissed. Thereafter they filed this appeal before Supreme Court. The Two Judges Bench placed this appeal before Three Judges bench for an authoritative pronouncement.

The Law under challenge

Section 364A, introduced in the year 1993,  awards death penalty or life imprisonment for kidnapping or abducting any person and threatening to cause death or hurt to such person,  in order to compel the Government , 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

Kidnapping/Abduction demanding ransom from private persons also attracts Section 364A 

The court held that Section 364A is wide enough to cover even cases where the demand for ransom is made not as a part of any terrorist act but also for monetary gain from a private individual. Rejecting the contentions of the Counsels for Petitioners who said that it is attracted only for offences committed against the Government, any foreign State or international inter-governmental organisation, the court said “There is nothing in the provision to suggest so”. The Court highlighted the facts that though Section 364A was amended later, legislature chose not to delete “any other person” from it.

364A deals with ordinary crimes too

The counsel for petitioner had argued that, since the Kidnapping/abduction of a person for ransom is already covered by other provisions of Penal code, Section 364A was added only to deal with terrorist related ransom situations and not ordinary crimes. Terming this line of argument “attractive”, the court however held that ingredients of 364A are unique, and cannot be found in other provisions of IPC even in the provisions dealing with extortion.

Rule of Ejusdem generis does not apply

It was also contended by the counsels for petitioner that the expression ‘any other person’ appearing in Section 364A may be readejusdem generis with the expression preceding the said words. Rejecting this contention, the court said “The tenor of the provision, the context and the statutory definition of the expression ‘person’ all militate against any attempt to restrict the meaning of the term ‘person’ to the ‘government’ or ‘foreign State’ or ‘international inter-governmental organisations’ only.”

Mithu’s case distinguishable 

In Mithu etc. vs. State of Punjab etc. (1983) 2 SCC 277, denial of judicial discretion to award a sentence other than death was held by this Court to be a reason good enough to declare the Section 303 of IPC constitutionally invalid. It was argued by the counsels that Section 364A is similar to Section 303 so far as it denies discretion to award a sentence other than capital punishment. The court held that Mithu’s case is clearly distinguishable from the facts and circumstances involved in this case.  Many features discussed in Mithu’scase  are not present in the case at hand for Section 364A. The court held. “In Section 364A, the Court enjoys the discretion whether to award the extreme penalty of death or the lesser alternative of a life imprisonment” and in Section 303 IPC there was no such alternative even.

Section 364A not disproportionate 

Citing various Indian and foreign decisions, the court laid down the principles governing proportionality of punishments.

  • Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed. 
  • Prescribing punishments is the function of the legislature and not the Courts’. 
  • The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs. 
  • Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences. 
  • Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency. 
  • Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult. 
  • Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive. 
  • In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate.

The counsel for the petitioner contended that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Rejecting that contention, terming it ‘hypothetical’, the court opined “Hypothetical situations are pressed into service to bring home the force of the contention.

The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation”.  The appellant in this case was convicted under section 302 IPC also which was upheld by Supreme Court also. The court held “A sentence of death in a case of murder may be rare, but, if the courts have, upon consideration of the facts and evidence, found that the same is the only sentence that can be awarded, it is difficult to revisit that question in collateral proceedings like the one at hand.”

Read the Judgment here.

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