3-judge Bench to decide constitutional validity of Section 364A of IPC

A three-judge Bench of the Supreme Court will decide the constitutional validity of Section 364A of the Indian Penal Code on kidnap and ransom providing for the death penalty.

Justices T.S. Thakur and S.J. Mukhopadhaya referred an appeal filed by Vikram Singh and another person, facing the death sentence, to Chief Justice of India Altamas Kabir for posting it before a three-judge Bench.

Justice Thakur said: “For a person found guilty of a capital offence and sentenced to death, even to the highest court of the land the options for reprieve are very limited. Once the conviction of the accused and the sentence awarded to him attain finality, the prospects of judicial intervention recede further.”

However, the Bench said, “undeterred by these limitations, the appellants, who have been sentenced to death by hanging under both 302 and 364A of the IPC, have taken a chance with a petition seeking review of their conviction, not because anything grossly erroneous is pointed out about the conclusions arrived at by the courts that dealt with their cases but on the ground that Section 364A is itself unconstitutional being violative of Articles 14 [equality] and 21 [protection of life and personal liberty] of the Constitution.”

The appellants contended that inasmuch Section 364A made even a first offender liable to be punished with death, it was too harsh to be considered fair and reasonable. Also, its provisions were ultra vires because the kidnap victim might be released without any harm or without payment of ransom. There were no guidelines in Section 364A for courts to follow while determining the quantum of punishment in a given case, they said.

The two-judge Bench said: “We do not wish to express any final opinion on this aspect at this stage. The question whether a pronouncement as to the vires of 364A will have any impact on the sentence awarded to the petitioners would arise only if the Section is held to be constitutionally invalid. It is only then that the court may go into the question of impact of such a pronouncement. For the present, what we have before us is a last-ditch attempt by the appellants to avoid the extreme penalty that the law provides for the most heinous crime punishable under the code. The plea may indeed be in complete desperation but one can well understand such desperation among those who are waiting at the gallows for the hangman to put the noose around their necks.”

The Bench said: “Dismissal of this appeal is bound to take them a step closer to the end. That apart, the questions raised may require an authoritative answer by a Bench of three judges having regard to the fact that the death sentence awarded to the appellants has been affirmed by a Bench of coordinate jurisdiction.”

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