VIKRAM SINGH@ VICKY &ANR. versus UNION OF INDIA & ORS.

11. Legal impediments in the choice of the remedy available to the appellants have not dissuaded the High Court C from examining and answering the contentions sought to be raised on the merits of the case. We too propose to go into the merits of the contentions urged on behalf of the appellants,· no matter it may not be necessary to do so in the light of what we have said about the maintainability of the proceedings D brought by the appellants. We do so not only because the matter was argued at considerable length before us but also because the lives of the appellants hang in the balance. We will, therefore, be loathe in shutting out the arguments advanced on behalf of the appellants on a technical ground touching the E maintainability of the petition filed by the appellants.

12. Any attempt to properly understand the true scope and purport of Section 364A must, in our opinion, start with the historical background in which the provision came on the statute book. When we do so, we find that the proposal for addition of Section364A to the Indian Penal Code was first modified by the Law Commission of India in its 42"d Report submitted in 1971. The relevant portion of the report reads as und~ "16. 100 We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable under Section H c 365 since the kidnapped or abducted person will be secretly and wrongfully confined. We also considered the question whether a provision for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section:- "364A. Kidnapping or abduction for ransom – Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imprisonment for a term which may extend to 14 years, and shall also be liable to fine." xxxxxxxxxxxxxxxxxxx Chapter25 SUMMARY OF RECOMMENDATIONS 25.1.xxxxxxxxxxx A brief summary of the principal recommendations made in each chapter is given below: xxxxxxxxxxxxxxx (14) Kidnapping or abduction for ransom should be an aggravated form of the offence of kidnapping or abduction punishable with rigorous imprisonment upto fourteen years and fine."

13. The recommendations of the Law Commission appear to have languished for nearly two decades before the Criminal Law (Amendment) Bill, 1992 was presented to the Parliament by the Government proposing to add to the I PC Section 364A H in a form slightly different from the one in which the Law VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J.] Commission had recommended such addition. What is A important is that in the statement of Objects and Reasons, accompanying the bill •. a two-fold justification was given by the· Government for the proposed addition namely: (i) that kidnappings by terrorists for ransom for creating panic amongst the people and for securing release of their associates and B cadres had assumed serious dimensions and (ii) The Law Commission had in its 42"d Report recommended a specific provision to deal with the menace of kidnapping and abductions for ransom. The Bill eventually led to the Criminal Law Amendment Act 1993 (Act 42 of 1993), introducing C Section 364A to the Indian Penal Code with effect from 22nd May, 1993, in the following words: "364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in D detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person m~y be put to death or hurt, or causes hurt or death to such person in order to compel the E Government or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."

14. Shortly after the introduction of the above provision arose the need for an amendment to the same. The amendment was necessitated by reason of India acceding to the international convention against the taking of hostages adopted by the General assembly of the United Nations on 17th G December, 1979 in the background of Iranian hostage crisis. The Convention aimed at fighting international terrorism, came into force with effect from 3rd June, 1983 but was acceded to · by India with effect from 7th September, 1994.

15. The Indian Penal Code (Amendment) Bill 1994, Bill No.LXVof 1994 was, in the above background, introduced in the Rajya Sabha on 25th August, 1994 to.amend Section 364A so as to substitute the expression "any other person" by the words "any foreign State or international inter-governmental B organisation or any other person" in the said section. The Statement of Objects and Reasons for the amendment also gave the background in which the amendment was considered necessary. The Statement of Objects and Reasons accompanying the bill were as under: c "STATEMENT OF OBJECTS AND REASONS An international convention against the taking of Hostages was adopted by the United Nations General Assembly on the 1 '11h December, 1979 2. The said convention seeks to develop international cooperation between the states in devising and adopting effective measures for prevention prosecution and punishment of all acts of hostage taking. 3. India has decided to accede to the said convention since it is one of the important conventions aimed at fighting international terrorism. For the purpose of implementing the convention it is proposed to amend section 364A of the Indian Penal Code which provides punishment for the offence of kidnapping for ransom etc. It is proposed to widen the scope of the said section by including therein situations where the offence is committed with a view to compelling foreign states or international inter governmental organisations to do or abstain from doing any act or to pay a ransom. 4. The bill seeks to achieve the above object." VIKRAM SINGt:@VICKYv. UNION OF INDIA [T.S. THAKUR, J. )

16. A Committee of Home Affairs constituted by Rajya A Sabha examined the issue and submitted a report dated 29th November, 1994 in support of the amendment to Section 364A. The existing Section 364A did not, it opined, take care'of situation where the offence was committed with a view to compel a foreign State or international inter-governmental B organisation to do or abstain from doing any act or paying ransom. The relevant extract of the Report is as under: "In its note furnished to the Committee, the Ministry of Home Affairs explained the packground and the c necessity for amending section 364-A of the Indian Penal Code, 1860, as under:- (i) An International Convention Against the Taking of Hostages was adopted by the General Assembly of the D United Nations on 17th December, 1979. The Convention was adopted in the background of Iranian hostage crisis and aimed at fighting international terrorism. The Convention entered into force on 3rd June, 1983. (ii) As per the Convention, if any person seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an International inter-governmental F organisation, a natural or juridical person or a group of persons to do or abstain from doing any act as an explicit or implicit condition for the release of the hostages, it will constitute the offence of hostage taking. (iii) India acceded to the Convention with effect from ?1h September, 1994. (iv) At present, the offence of hostage taking is not defined in the Indian law. However, vide Criminal Law H c (Amendment) Act, 1993, Section 364A was added to the Indian Penal Code to make kidnapping for ransom, etc. An offence punishable with death or imprisonment for life and also fine. This provision read with other provisions of the Indian Penal Code on abetment and attempt, would already cover hostage taking, as defined in the Convention to the extent that this Act is confined to the territory of India. Section 364A /PC does not take care of situations where the offence is committed with a view to compelling foreign States or international inter- governmental organisation to do or abstain from doing any act or to pay a ransom. (v) Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the said section 364A on kidnapping for ransom, etc. to make it clear that kidnapping a person to compel the Government or any foreign State or international inter-governmental organization or any other person is punishable under that section."

17. It is evident from the above that Section 364A came on the statute book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but F also because activities of terrorist organisations had acquired menacing dimensions that called for an effective legal framework to prevent such ransom situations and punish those responsible for the same. It is also manifest that the further amendment to Section 364A in the year 1994 simply added G the expressions "foreign state or international inter- governmental organisation" to the provision without deleting the pre-existing expression "any other person".

18. A conspectus of the above leaves no manner of doubt H that the expression "any other person" appearing in Section VIKRAM SINGH @VICKY v. UNION OF INDIA [T.S. THAKUR, J.] 364A right from the time of its initial incorporation in the Code A was meant to apply the provisions not only to situations where the Government was asked to pay ransom or to do any other act but even to situations where any other person which would include a private person also was asked to pay ransom. The subsequent amendment in the year 1994 also did not remove B the expression "anyotherperson"in Section 364Awhile adding the expression "foreign State or international inter Government organisation" to the provision as it originally existed.

19. There is nothing in the provision to suggest that the same is attracted only in ransom situations arising in acts of terrorism directed against the Government or any foreign state c or international inter-governmental organization. The language employed in the provision is, in our view, wide enough to cover D 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. ·

20. It was next argued by Mr. Sodhi that kidnapping for E ransom was already covered by the existing provisions in the IPC. He urged that Sections 359, 360 and 361 of the IPC deal with 'kidnapping', which according to Section 359 is of two kinds viz. kidnapping from India and kidnapping from lawful guardianship. 'Kidnapping from India' is under Section 360 of the IPC while 'kidnapping from lawful guardianship' is covered by Section 361. of the IPC. Both the situations are made punishable under Section 363 of the IPC with imprisonment for a term which may extend to seven years besides fine. 'Abduction' defined in Section 362 of the IPC, is G not by itself punishable as is the case with kidnapping.

21. Section 383 of the IPC defines 'extortion', while Section 384 of the IPC makes the same punishable with imprisonment that may extend to three years, or with fine, or H wit~ both. Similarly, Sections 386, 387, 388, 389 of the IPC deal with aggravated forms of extortion and are made suitably punishable. It was contended that once a person is kidnapped and put in fear of death or injury to coerce the person so kidnapped or any other person to deliver any property or B valuable security or anything signed which may be converted into a valuable security can be punished suitably under the provisions mentioned above. This, according to Mr. Sodhi implies that the existing provisions in the IPC were sufficient to deal with ordinary situations involving kidnapping for C ransom, thereby, making it unnecessary for the Parliament to introduce Section 364A of the IPC to cover an ordinary crime situation. The corollary, according to Mr. Sodhi, is that Section 364A was added only to deal with terrorist related ransom situations and not ordinary crimes, like the one in the case at hand.

22. The argument though attractive does not stand on closer scrutiny. The reasons are not far to seek. Section 364A has three distinct components viz. (i) the person concerned E kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to caus~ death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention F and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under G Section 383 of the IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364A proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that. kidnapping H or abduction for ransom was effectively covered under the VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J.] existing provisions of the IPC must, therefore, fail.

23. We may before parting with this aspect of the matter also deal with the argument that the expression 'any other person' appearing in Section 364A ought to be read ejusdem generis with the expression preceding the said words. The B argument needs notice only to be rejected. The rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class C or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where D it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generiswill have no application.

24. In Mis. Siddeshwari Cotton Mills (P) Ltd. v. Union E of India and Anr. (1989) 2 SCC 458 M.N. Venkatachaliah, J., as His Lordship then was, examined the rationale underlying ejusdem generis as a rule of construction and observed: "14. The principle underlying this approach to statutory F construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extent to objects of a wholly different kind. This is a presumption and operates G unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. ff no class can be found, ejusdem generis rule is not attracted and such broad construction as the H [2015)108.C.R. subsequent words may admit will be favoured. As a learned author puts it: ….. if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific. words unnecessary." c (See: Construction of Statutes by EA Driedger P. 95 quoted by Francis Bennion in his tatutory Construction, pp. 829 and 830)

25. Relying upon the observations made by Francis Bennion in his "Statutory Construction" and English decisions in SS Magnhild v. Mcintyre Bros. & Co. (1920) 3 KB 321 and those rendered by this Court in Tribhuban Prakash Nayyarv. Union of/ndia (1969) 3 SCC 99, UPSEB v. Hari E Shanker(1978) 4SCC16, his Lordship summed-up the legal principle in the following words: "19. The preceding words in the statutory provision which, under this particular rule of construction, control and limit the meaning of the subsequent words must represent a genus or a family which admits of a number of species or members. If there is only one species it cannot supply the idea of a genus."

26. Applying the above to the case at hand, we find that G Section 364A added to the IPC made use of only two expressions viz. 'government' or 'any other person'. The Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only H one single expression viz. 'government' which does not constitute a genus, even when it may be a specie. The situation, VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J.] at hand, is somewhat similar to what has been enunciated in A 'Craies on Statute Law' (71h Edn.) atpages 181-182 in the following passage: "The modem tendency of the law, it was said, [by Asquith Jin Allen v. Emmerson (1944) KB 362)] is "to attenuate s the application of the rule of ejusdem generis." To invoke the application of the ejusdem generis rule there must be a distinct genus category. The specific words must apply not to different oi.Jjects of a widely differing character but to something which can be called a class C or kind of objects. Where this is lacking, the rule cannot apply, (Hood-Barrs v. /RC (1946) 2 All ER 768) but the mention of a single species does not constitute a genus. (Per Lord Thankerton in United Towns Electric Co. Ltd. v. Attorney General for Newfoundland (1939) 1 D All ER 423). "Unless you can find a category," said Farwell L.J., (in Tillmans and Co. v. S.S. Knutsford (1908) 2 KB 385) "there is no room for the application of the ejusdem generis doctrine," and where the words are clearly wide in their meaning they ought not to be E qualified on the ground of their association with other words. For instance, where a local Act required that "theatres and other places of public entertainment" should be licensed, the question arose whether a "fun- fair" for which no fee was charged for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words "other places" to places of the same kind as theatres. So the · insertion of such words as " or things of whatever G description" would exclude the rule. (Attorney General v. Leicester Corporation (1910) 2 Ch. 359). In N.A.L.GO. v. Bolton Corpn. (1943) AC 166) Lord Simon L.C. referred to a definition of"workman" as any person who has entered into a works under a contract with an H c employer whether the contract be by way of manual labour, r;lerical work "or otherwise" and said: "The use of the words 'or otherwise' does not bring into play the ejusdem generis principle: for 'manual labour' and 'clerical work' do not belong to a single limited genus" and Lord Wright in the same case said: "The e;usdem generis rule is often useful or convenient. but it is merely a rule of construction. not a rule of law. In the present case it is entirely inapt. It presupposes a 'genus' but here the only 'genus' is a contract with an employer". (emphasis supplied)

27. The above passage was quoted with approval by this Court in Grasim Industries Ltd. v. Collector of Customs, D Bombay (2002) 4 SCC 297 holding that note 1 (a) of Chapter 84 relevant to that case was clear and unambiguous. It did not speak of a class, category or genus followed by general words making the rule of ejusdem generis inapplicable.

28. There is yet another angle from which the issue can be viewed. The term 'person' used in the expres~ion 'any other person', appearing in Section 364A of the IPC must be understood as referring to 'person' as defined in Section 11 of the IPC. Section 11 of the IPC defines the term 'person' as under: "The word "person" includes any Compaf!y or Association or body of persons, whether incorporated or not."

29. This would mean that the term 'person' appearing in Section 364A would include a company or association or body of persons whether incorporated or not, apart from natu.ral persons. The tenor of the provision, the context and the statutory H definition of the expression 'person' all militate against any attempt to restrict the meaning of the term 'person' to the VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J.] 'government' or 'foreign State' or 'international inter- governmental organisations' only.

30. That brings us to the only other contention urged on behalf of the appellants. It was argued that Section 364A to the extent it denied to the Courts the discretion to award a B sentence other than death or life imprisonment was ultra vires of the right to life guaranteed to the appellants under Article 21 of the Constitution. Support for that proposition was drawn from the decision of this Court in Mithu etc. v. State of Punjab etc. (1983) 2 SCC 277whereby a Constitution Bench of this C Court, struck down Section 303 of the IPC as unconstitutional. It was urged that 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 provision constitutionally invalid. Since Section 364A, also did not leave any discretion with the D Court in the matter of sentence except death or life imprisonment, it was on a parity of reasoning liable to be struck down as unconstitutional.

31. On behalf of the respondents, it was argued that E Mithu's case (supra) was clearly distinguishable inasmuch as the Court was in that case dealing with Section 303 IPC which did not leave any option for the Court except to award death sentence to a convict who while undergoing life imprisonment committed a murder. That is not the position in the case at hand where the Parliament has prescribed alternative sentences leaving it for the courts concerned to award what is considered suitable in the facts and circumstances of a given case. It was also submitted that there was nothing outrageous about the sentence provided under G Section 364A, keeping in view the nature and gravity of the offence and the fact that kidnappings and abductions for ransom had assumed alarming dimensions in the country apart from the fact that terrorists were also using that method to A achieve their nefarious ends.

Similar sentences were prescribed for several offences under the IPC that were considered grave by the Parliament who represent the will of the people. There was at any rate no reason for this Court to go into the question of quantum of sentence after the matter B had been thoroughly examined in the criminal appeal filed by the appellants including on the question of sentence to be awarded to them. The issue whether a lesser punishment would meet the ends of justice may arise in a given case where the victim is released soon after he is kidnapped or abducted C without doing any harm to him. But in the case at hand, the victim was done to death which called for the extreme penalty rightly awarded to the appellants upon consideration of the relevant circumstances. Reference was also made to the decisions of this Court in Mal/eshi v. State of Karnataka (2004) 8 SCC 95; Suman Sood · @ Kamal Jeet Kaur v. State of Rajasthan (2007) 5 SCC 634; Vinod v. State of Haryana (2008) 2 SCC 246 and Akram Khan v. State of West Bengal (2012) 1SCC406, in which too life sentence E was awarded even when the victim was released unharmed.

It was lastly argued that courts must show deference to parliamentary wisdom underlying a legislation and as far as possible avoid interference with the quantum of sentence prescribed by law unless of course the same was so F outrageously brutal, barbaric or disproportionate as to be unacceptable by any civilised society. That not being the case at hand, there was no compelling need for thiE Court to interfere, argued the learned Counsel.

32. In Mithu's case (supra), this Court had before it a challenge to the constitutional validity of Section 303, which prescribed but one sentence for an offender who committed a murder while undergoing a sentence of imprisonment for life. This Court struck down Section 303 of the IPC holding that H there was no rational basis for classifying persons who VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J. ] committed murder while they are under a sentence of life A imprisonment and those who are not under any such sentence for purposes of awarding to the former category a mandatory death sentence. The Court held that Section 303 assumed that life convicts are a dangerous breed of humanity as a class, without there being any scientific data for such an assumption. This Court further found that prescription of a mandatory death sentence for the offence of murder as a second offence merely for the reason that the offender was under a sentence of life imprisonment for the first such offence is arbitrary and unreasonable, and that mandatory death sentence would not C seNe any social purpose. The motivation of the two offences may be different, the circumstances in which they may be committed may be different and even the ~o offences may be basically different genre. This Court also found that there 0 was no rational distinction between a person who commits murder while undergoing the sentence of life imprisonment and another who does so after he has already undergone such sentence. This Court in the above backdrop took the view that the mandatory death sentence deprived the Court of its wise E and beneficial discretion in the matter of life and death, making it harsh, unjust and unfair.

33. The above features, noticed by this Court in Mithu's case (supra), are not present in the case at hand for Section 364A does not mandate a death sentence as was the case with Section 303 of the IPC. In Section 364A, the Court enjoys the discretion whether to award the extreme penalty of death or the lesser alternative of a life imprisonment. There is also no element of any discrimination between persons who commit G the offence, like the one noticed by this Court in Mithu's case · (supra). Whether life or death would be the proper sentence is in the absolute discretion of the Court which the Courts are expected to exercise wisely having regard to the facts of the ca~e and the gravity of the offence and its severity or barbarity. A To that extent, there is indeed no comparison between Mithu's case (supra) and the case of the appellants who have been awarded death sentence not because the law so mandated but because this Court after considering the attendant circumstances found that to be the only sentence which would B meet the ends of justice . .This is evident from the following passages appearing in the judgment of this Court in the criminal appeal filed by the appellants [Vikram Singh & Ors. v. State of Punjab (2010) 3 SCC 56]: c "56. Much argument and passion have been expended by the learned counsel as to the propriety of the death sentence in the facts of the case. Mr Sharan has emphasised that as the prosecution story rested on circumstantial evidence, this fact by itself was a relevant consideration in awarding the lesser sentence. It has also been pleaded that the appellants were all young persons and the possibility that they could be reformed during their incarceration could not be ruled out and this too was a factor which had to be considered in awarding the sentence. 57. Mr. Sharan has also referred us to Dhondiba Gundu Pomaje v. State of Maharashtra (1976) 1 SCC 162 that an accused of young age should not ordinarily be meted out a death sentence. Reference has also been made by Mr Sharan to some observations in Bachan Singh v. S{ate of Punjab (1980) 2 SCC 684 that the mitigating circumstance in favour of an accused must also be factored in. It has also been pleaded that the additional circumstance in favour of Sonia was that she was not only young but she was also a lady and as it was possible that she had been influenced into the unpleasant situation by her husband, the death sentence should not be given to her in any case. Mr Sharan has also piaced reliance on two recent VIKRAM SINGH@VICKYv. UNION OF INDIA [T.S. THAKUR, J.] judgments of this Court in Santosh Kumar A Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 and Sushi/ Kumarv. State of Punjab (2009) 10 sec 434 whereby it has been indicated that the latest trend in jurisprudence was that the death penalty should not be awarded except in the most extraordinary B of cases and that the position and background of the appellant-accused was to be kept in mind in evaluating the circumstances for and against· the imposition of the death sentence. c 58. These submissions have been strongly controverted by Mr. Jaspal Singh and Mr. Ku/deep Singh, the teamed counsel representing the complainant and the State of Punjab respectively. It has been emphasised that Sections 364-A and 302 both provided for the D imposition of a death sentence and as kidnapping for ransom was perhaps the most heinous of offences, no latitude should be shown to the appellants as they had poisoned a young boy to death for money The teamed counsel have also placed reiiance on Henry E Westmuller Roberts v. State of Assam (1985) 3 SCC 291 and Mohan v. State ofT.N.

(1998) 5 SCC 336 where the kidnap victim was a young boy and had subsequently been done to death, the Court had F awarded the. death penalty. xxxxxxxxxxxxxxxxxxxxxxxxxxx 64. A plain reading of the Objects an,d Reasons which led to the amendment shows the concern of Parliament G in dealing with kidnapping for ransom, a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom has become a lucrative and thriving industry H all over the country which must be dealt with in the harshest possible manner and an obligation rests on the courts as well. The courts to lend a helping handin that direction. 65. In the case before us, we find that not only was Abhi Verma kidnapped for ransom which act would by itself attract the death penalty but he was murdered in the process.

It is r:elevant that even before the aforesaid amendments, this Court in Henry case (1985) 3 sec 291 observed that death sentence could be awarded even in a case of kidnapping and murder based on circumstantial evidence holding that: (SCC p. 313, para 40) "40. . .. We are of the opinion that the offences committed by Henry, the originator of the idea of kidnapping children of rich people for extracting ransom, are very heinous and pre-planned. He had been attempting to extract money from the unfortunate boy's father,· PW 23 even after the boy 'had been murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom. In our opinion, this is one of the rarest of rare cases in which the extreme penalty of death is called for the murder of the innocent young boy, Sanjay in cold blood after he had been kidnapped with promise to be given sweets. We, therefore, confirm the sentence of death and the other sentences awarded to Henry by the High Court under Sections 302, 364, 201 and 387 /PC and dismiss Criminal Appeal No. 545of1982 filed by him." 66.

Moreover, as already indicated, we have the eyewitness statement of PW 13 Baljeet Saini with regard to the kidnapping of Abhi Verma from outside the VIKRAM SINGH@ VICKYv. UNION OF INDIA [T.S. THAKUR, J.] school. 67. Likewise, in Mohan case (1998) 5 SCC 336 which again related to a kidnapping for ransom and murder under Sections 364-A and 302 of a young boy aged ten years, while assessing the aggravating and B mitigating circumstances, it was observed that the former far outweighed the others. It was held as under: (SCC p. 343, para 14) "14. So far as appellant Gopi is concerned, he not only c did participate by pulling the rope around the neck of the boy, as already narrated, but went to his house and brought a coir rope. After removing the rope from the neck of the boy, he encircled the coir rope again around the boy's neck and pulled the said rope for about half a o minute and the boy stopped breathing. Thereafter he took out one Keltron TV box from underneath the cot and packed the boy in the box. These aggravating circumstances on the part of accused Mohan and Gopi clearly demonstrate their depraved state of mind and E the brutality with which they took the life of a young boy It further transpires that after killing the boy and disposing of the ctead body of the boy, Mohan also did not lose his lust for money and got the ransom of Rs 5 lakhs." 68.

We must also emphasise that in this tragic scenario and in the drawing up of the balance sheet, the plif]ht of the hapless victim, and the abject te"or that he must have undergone while in the grip of his kidnappers, is G often ignored. Take this very case. Abhi Verma was only 16 years of age, and had been picked up by Vikram Singh who was known to him but /:Jad soon realised the predicament that he faced and had shouted for help. His terror can further be visualised when he would have H SUPREMECOURT REPORTS' 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 hon-or, distress and the devastation felt in the family on the loss of an only son, can also be imagined."

34. Reliance upon Mithu's case (supra) does not, therefore, help the appellant in their challenge to the vires of Section 364A. Having said that, we must add that a legislation C is presumed to be constitutionally valid with the burden of showing the contrary lying heavily upon any one who challenges its validity. Not only that, courts show due deference to the parliamentary wisdom and exercise self restraint while examining the vires of legislations validly enacted. Reference D may in this regard be made to the decision of this Court in Maru Ram v. Union oflndla & Ors. (1981) 1SCC107where FazalAli, J. in his concurring judgment observed: "93. Thus, on a consideration of the circumstances, mentioned above, the conclusion is inescapable that Parliament by enacting Section 433-A has rejected the reformative character of punishment, in respect of offences contemplated by it, for tf]e time being in view of the prevailing conditions in our country. It is well settled that the legislatufe understands the needs and requirements of its people much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as to subserve the purpose for which it is meant."

35. Reference may also be made to the decision of this H Court in Bachan Singh v. State of Punjab (1980) 2 SCC VIKRAM SINGh@V!CKYv. UNION OF INDIA [T.S. THAKUR, J.] 684where Sarkaria, J. speaking for majority observed: "175. We must leave unto the Legislature, the things that are Legislature's. "The highest judicial duty is to recognise the limits on judicial power and to permit the democratic processes to deal with matters falling outside B of those limits." As Judges, we have to resist the temptation to substitute our own value-choices for the will of the people. Since substituted judicial "made-to- order'' standards, howsoever painstakingly made, do not bear the people's imprimatur, they may not have C the same authenticity and efficacy as the silent zones, and green belts designedly marked out and left open by Parliament in its legislative planning for fair play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing.

When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite E their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar F view or personal predilection int-0 the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of "community" standards or ethics may vary from Judge to Judge. In this sensitive highly controversial area of death penalty, with all its complexity, vast implications and manifold ramifications, even all.the Judges sitting cloistered in this Court and acting unanimously, cannot assume the role which properly belongs to the chosen representatives of the people in Parliament, particularly H when Judges have no divining rod to divine accurately the will of the people.

In Furman 408 US 238 ((1992), the Hon'ble Judges claimed to articulate the contemporary standards of morality among the American people .. But speaking through public referenc:/a, Gallup Polls and the State legislatures, the American people sharply rebuffed them. We must draw.a lesson from the same."

36. To the same effect are the observations made by C this Court in State ofM.P. v. Bala alias Balaram (2005) 8 SCC 1 where this Court said: "12. The punishments prescribed by the Penal Code reflect the legislative recognition of the sbcial needs, o the gravity of the offence concerned, its· impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it."

37. In a Parliamentary democracy like ours, laws are enacted by the Parliament or the State legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are F meant to cater to the societal demands and meet the challenges of the time,·for the legislature is presumed to be supremely wise and.aware of such needs and challenges. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative· G of the constitutional provisions or the fundamental rights of the citizens, the Courts will show deference towards them. That, however, is not to say that laws that are outrageously barbaric or penalties that. are palpably inhuman or shockingly disproportionate to the gravity of the offence for H which the same are prescribed cannot be interfered With. VIKRAM SINGH @VICKYv.

UNION OF INDIA [T.S. THAKUR, J. ] As observed by Chandrachud, CJ in Mithu's case (supra) A if the Parliament were tomorrow to amend the IPC and make theft of cattle by a farmer punishable with cutting of the hands of the thief, the Courts would step in to declare the provision as constitutionally invalid and in breach of the right to life. The Court observed: "6 ………………………………….. . Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how c the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the Jaw or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles o 14 and 21. Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of E course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws. But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of F restrictions under clauses (2) to (6) of Article 19 is for the courts to determine so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable."

38. That punishment must be proportionate to the offence is recognised as a fundamental principle of criminal jurisprudence around the world. In Weems v. United States· .(217 US 349; 54 L.Ed 793; 30 S. Ct 544 (1910) the H [2015] 1 O S.C.R. A petitioner had been convicted for falsifying a public document and sentenced to 15 years of what was described as 'cadena temporal', a form of imprisonment that included hard labour in chains and permanent civil disabilities. The US Supreme Court, however, declared the sentence to be B cruel not only in terms of length of imprisonment but also in terms of shackles and restrictions that were imposed by it. That punishment for crime should be graduated and proportionate to the offence, is a precept of justice, declared the Court. c 39. That decision was followed by Enmund v. Florida 647 458 US 782 (1982) where the Court held that death penalty was excessive for the felony of murder where the petitioner did not take life, attempt to take life or intend that D life be taken or that lethal force be used.

In Cokerv. Georgia 433 US 584 (1977) US Supreme Court held sentence of death to be grossly disproportionate and excessive for the crime of rape. In Herman Solem v. Jerry Buckley Helm 463 US 277, 77 Led 2d 637, 103 S Ct 3001, the US E Supreme Court was dealing with a case where Helm was found guilty of what is described as "uttering a no account check" for 100 dollars, ordinarily punishable with imprisonment for a period of five years and a fine of 5000 F dollars but was sentenced under the recidivist statute of South Dakota to undergo imprisonment for life. The question that fell for determination was whether the sentence was disproportionate to the crime committed by Helm. The Court by majority held that the general principle of proportionality G was applicable as much to sentence of imprisonment as it was to capital sentences and that while applying the proportionality principle in capital cases, the Court had not drawn any distinction between capital cases, on the one hand, and case of imprisonment, on the other, even when H the penalty of death differs from all other forms of punishment VIKRAM SINGH @VICKYv.

UNION OF INDIA [T.S. THA~UR, J. ] not in degree but in kind. The Court held that decisions A rendered in capital cases were not of much assistance while deciding the constitutionality of punishments in non-capital cases, with the result that outside the context of capitat punishment, successful challenges to the-proportionality of sentences were exceedingly rare. That did not, observed B the Court, however, mean that proportionality analysis was entirely inapplicable to the non-capital cases. The Court summed-up its conclusion regarding the doctrine of proportionality as applicable to cases involving sentence of imprisonment in the following words: "[6a, 7, BJ In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial D deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in .sentencing convicted criminals. But no penalty is per se E constitutional. As the Court noted in Robinson v. California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417, a single day in prison may be unconstitutional in some circumstances."

40. More importantly, the Court recognised the following guiding principles for determining whether the sentence of imprisonment was disproportionate to the offence allegedly committed by the accused~ 'T1 OJ In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the · H [2015) 10 S.C.R. sentences imposed for commission of the same crime in other jurisdictions." c 41. Applying the above principles to the case before it, the Court declared: "[1c] The Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment. The judgment of the Court of Appeals is accordingly affirmed."

42. More recently in Ronald Allen Harrrielin v. Michigan 501 US 957 the U.S. Supreme Court revisited the approach to be adopted while determining the question of constitutionality of sentences for non-capital offences. This was a case where the petitioner was convicted for F possessing 672 gms. of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. The question that fell for consideration was whether the mandatory life imprisonment was in consonance with the Eighth Amendment to the U.S. Con_stitution. Kennedy, J. in G his concurring judgment noted the view taken by the Court in Weems v. United States (supra), Enmund v. Florida 458 US 782, Rummel v. Estelle 445 U.S 263, and Solem v. Helm 463 US 277 to observe that although the said decisions recognise the principle of proportionality, its H precise contours remain unclear. The Court, based on a VIKRAM SINGH@VICKYv.

UNION OF INDIA [T.S. THAKUR, J.] conspectus of the decisions, formulated some common A principles applicable in situations that required examination of limits of proportionality. The first principle culled out from the decisions earlier pronounced by the Court was that prescribing punishment for crimes rests with the legislature and not Courts and that Courts ought to show deference to B the wisdom of the legislature. The Court observed: "The first of these principles is that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is C "properly within the province of legislatures, not courts." Rumel, supra, at 275-276, 63 L Ed2d 382, 100SCt1133. Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the D sanctity of the individual, the nature of Jaw, and the relation between law and the social order. '~s a moral or political issue [the punishment of offenders] provokes intemperate emotions, deeply conflicting interests and intractable disagreements." D. Garland, Punishment and Modern Society 1 (1990).

The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility F for making these fundamental choices and implementing them lies with the legislature. See Gore v. United States [51 US 999] 357 US 386, 393, 2 L Ed 2d 1405, 78SCt1280 (1958) ("whatever views may be entertained regarding severity of G punishment, whether one believes in its efficacy or its futility … these are peculiarly questions of legislative policy). Thus, "[r]eviewing courts … should grant substantial deference to the broad authority that legislatures necessarily possess in determining the H c [2015) 1 O S.C.R. types and limits of punishments for crimes." So/em, supra, at 290, 77 L Ed 2d 637, 103 S Ct 3001. See also Rummel, supra, at 274, 63 L Ed 2d 382, 100 S Ct 1133 (acknowledging "reluctance to review legislatively mandated terms of imprisonment"); Weems, supra, at 379, 54 L Ed 793, 30 S Ct 544 ("The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety'?."

43. The second principle recognised by the Court was that the Eight Amendment does not mandate adoption of any one penological theory and that principles that guide criminal sentencing have varied with the times.

44. The third principle recognised that divergences, both in underlying theories of sentencing and in the length of prescribed prison terms, is inevitable, because of the federal structure. The fourth principle shaped by the court E was that proportionality review by federal courts must be informed by objective factors to the maximum possible extent. While saying so, the Court held that penalty of death differs from all other forms of criminal punishments and that the easiest comparison between different sentences is the F comparison between capital punishment and non capital punishment. The decision also recognised that objective standards to distinguish between sentences for different terms of years are lacking with the result that outside the context of capital punishment, successful challenges to the G proportionality of particular sentences are exceedingly rare. The Court summed-up in the following words: "[3b} All of these principles – the primacy of the legislature, the variety of legitimate penologica/ schemes, the nature of our federal system, and the VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J. ] requirement that proportionality review be guided by A objective factors – inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate ….. "

45. In Ewing v. California [538 US 11] the US Supreme Court held that it is enough if the state has a reasonable basis for believing that its punishment advances the goals of its criminal justice system in any substantial C way. The Court upheld the sentence of life imprisonment awarded to Ewing for theft o! three golf sticks because it reflected a rational legislative judgment, entitled to deference. The Court observed: "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." Id., at 999, 115 L Ed 2d 836, 111 S Ct 2680 (Kennedy, J., concurring in part and E conrurring in judgment). A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W LaFave &A. Scott, Substantive Criminal Law 1.5, pp 30-36 (1986) (explaining theories of punishment). F Some or all of these justifications may play a role in ci State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to · be made by state legislatures, not federal courts. xxxx xx xx xx xx xx xx xx xx xx xx Ewing's sentence is justified by the State's public- safety interest in incapacitating and deterring H c recidivist felons, and amply supported by his own long, serious criminal record. . . . . . . . . . To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California "was entitled to place upon [Ewing} the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Rummel, supra, at 284 63 L Ed 2d 382, 100 S Ct 1133. Ewing's is not "the rare case in which a threshold comparison· of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

46. The Canadian view on the principle of proportionality of sentence is no different. Several decisions of the Canadian Supreme Court, have held proportionality of punishment to the gravity of the offence to be a constitutional E requirement. In R. v. Smith (1987) 1 SCR 1045, the Supreme Court of Canada said: "In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstam:es of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particula"r offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or VIKRAM SINGH @VICKYv. UNION OF INDIA [T.S. THAKUR, J.] the legislator can no longer consider general A deterrence or other penological purposes that go beyond the particular offender in determ/,1ing a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves."

47. In R. v. Goltz (1991) 3 SCR 485, the Canadian Supreme Court also recognised the principle that legislative edicts as to quantum of punishment should not be lightly upset. The Court observed: "Moreover, it is clear from both Smith and Lyons, that the test is not one which is quick to invalidate sentences crafted by legislators. The means and purposes of legislative bodies are not to be easily o upset in a challenge under s. 12. xxx xxx xxx This acknowledgement that sanctions serve numerous purposes underscores the legitimacy of a E legislative concern that sentences be geared in significant part to the continued welfare of the public through deterrent and protective aspects of a punishment. This perspective is explicitly affirmed F in R. v. Luxton per Lamer C.J. Thus, while the multiple factors which constitute the Smith test are aimed primarily at ensuring that individuals not be subjected to grossly disproportionate punishment, it is also supported by a concern to uphold other G legitimate values which justify penal sanctions. These values unavoidably play a role in the balancing of elements in a S. 12 analysis."

48. In R. v. Fergusson (2008) 1SCR96, the Canadian Supreme Court held that for the Court to interfere with the sentencing provision it was not enough to say that the sentence was excessive. What must be demonstrated is that the sentence is so outrageously disproportionate that the Canadians would find the punishment abhorrent or B intolerable. The following observations succinctly sum up the test to be adopted: "The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith (1987) 1 SCR 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable".

49. To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed. (b) Prescribing punishments is the function of the legislature and not the Courts'. (c) 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. (d) 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. VIKRAM SINGH@ VICKYv. UNION OF INDIA [T.S. THAKUR, J. ] (e) Courts, however, have the jurisdiction to interfere when A 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. (f) Absence of objective standards for determining the legality of the p_rescribed sentence makes the job of the Court reviewing the punishment difficult. (g) Courts cannot interfere with the prescribed punishment c only because the punishment is perceived to be excessive. (h) In dealing with questions of proportionality of sentences, capital punishment is considered to be 0 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 E sentences of imprisonment being held disproportionate.

50. Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially F because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the G government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming H [2015) 10 S.C.R. international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for B economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a sfringent punishment for those indulging in such activities.

Given the background in which the law was enacted and the concern shown by the Parliament for the C safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared D unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death E sentences awarded only in the rarest of rare cases. But 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. In the ordinary course and in cases which qualify to be called rarest of the rare, death F may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence.

Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of G our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify VIKRAM SINGH@VICKYv. UNION OF INDIA [T.S. THAKUR, J.] for being described as barbaric or inhuman so as to infringe A the right to life guaranteed under Article 21 of the Constitution.

51. It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity B of the offence committed by the accused. 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 C challenge has been mounted. Our answer is in the negative. A~sumed 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 D hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the I PC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court.

It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed F . with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment G is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative. A sentence of death in a case of murder may be rare, but, if the courts have, upon consideration of the facts and H A 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.

52. In the result this appeal fails and is, hereby, B dismissed. Nidhi Jain Appeal dismissed.