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2010 DIGILAW 218 (AP)

State of Kerala v. Salini

2010-03-18

K.BALAKRISHNAN NAIR, P.N.RAVINDRAN, S.S.SATHEESACHANDRAN

body2010
Judgment :- S.S Satheesachandran, J. The question posed for consideration before us is when a reference is to be made by the Sessions Judge under R.131 of the Criminal Rules of Practice, Kerala, 1982 (hereinafter referred to as the ‘Rules’). Is the reference to be made pre or post sentence in a case of infanticide is the short question. In examining that question, correctness of some observations made in (Radhamony v. State of Kerala (Crl.A.No.496/1999)) directing a reference from the Sessions Judge before imposing the sentence also arise for consideration. 2. The facts giving rise to this reference can be summed up thus: The learned Additional District and Sessions Judge (Fast Track-I), Thiruvananthapuram, after trial of an accused, a woman for infanticide of her child, found her guilty and convicted her for the offence punishable under S.302 of the Indian Penal Code. After pronouncement of the verdict of guilty and conviction, an order of reference was made to the Government under R.131 of the Rules on the sentence to be imposed against the convictee taking note of the observations made in (Radhamony v. State of Kerala (Crl.A.No.496/1999)) and also a communication issued by the High Court for compliance of the directions in that decision. The convictee was released on bail on executing a self bond awaiting answer to the reference, for her appearance to impose the sentence. When the reference to the Government was routed through the Registrar (Subordinate Judiciary), High Court of Kerala, and that being placed before the Judge in charge of the District, one among us, Hon’ble Mr. Justice K. Balakrishnan Nair, the correctness of the procedure followed was doubted and a direction was issued for considering the matter on the judicial side after obtaining the orders of the Hon’ble Chief Justice. The Hon’ble Chief Justice ordered for consideration of the matter on the judicial side, and the Division Bench, before which the reference was made, after examining the various facets of the question involved and taking note that the observations made in (Radhamony v. State of Kerala (Crl.A.No.496/1999)) require clarification and also many references sent on the basis of that decision are awaiting before the Government ordered for reference of the matter for a decision of the Full Bench under S.4 of the Kerala High Court Act. The Division Bench, while making a reference as above, in its order has considered meticulously the question involved and has formed an opinion that R.131 of the Rules postulate a reference only after a sentence is imposed on the convictee and not before. However, since some of the observations made earlier by a co-equal bend in (Radhamony v. State of Kerala (Crl.A.No.496/1999)) had struck a different note and the communication issued by the High Court on the basis of such observations is being followed for making references, the Division Bench though it fit for making a reference to a large bench. Accordingly, the Hon’ble Chief Justice has order to place the matter before a Full Bench for deciding the question whether the reference to the Government under R.131 of the Rules has to be made pre or post imposition of sentence. 3. We heard the learned Director General of Prosecutions, Adv.Sri.V.G. Govindan Nair. The learned Director General of Prosecutions wanted us to examine the question for making the reference on the question of sentence to be imposed on a woman convicted of the murder of her child/children with reference to the sweeping powers enjoined by the Government to exercise mercy jurisdiction. Practically conceding that the executive has a role in the matter of remission of a sentence only after the judicial process is over, the learned Director General of Prosecutions stressed for having a different outlook and perspective with respect of the sentence to be awarded against a woman of infanticide of her child/children and the role of the State in the exercise of mercy jurisdiction in such cases in interpreting and analysing the scope of R.131 of the Rules. Pointing out that the High Court has framed R.131 of the Rules, it is urged by the learned Director General of Prosecutions that an effective role in modulating the proper sentence to be imposed on a woman convicted of infanticide of her child/children has been conferred on the State having regard to the mercy jurisdiction exercisable by the State and also that most of the indictees of infanticide are victims of exploitation in view of their social and economic backwardness, and the larger interest and welfare of the Society demand for a co-active role by the Government in imposing sentence on such hapless victims. The Sessions Judge after finding the indictee-woman of infanticide of her child/children – guilty and convicting her, it is submitted, has to award either of the two sentences – death or imprisonment for life against her as mandated under S.30. of IPC. Such sentence imposed by the learned Sessions Judge may be grossly disproportionate where the indictee is shown to be a victim of exploitation on account of her social and economic backwardness or such other extenuating circumstances. So much so, the State, according to the learned Director General of Prosecutions, in the case of women convictees of infanticide of their child/children in the larger interest of the society must be clothed with authority and empowerment to exercise the mercy jurisdiction before sentence is imposed on such convictee, and that alone has been consciously given recognition in R.131 of the Rules mandating a reference after conviction in a case of infanticide before imposition of sentence. 4. In the matter of reference relating to the scope and purport of R.131 of the Rules, that is, whether the reference by the Sessions Judge in the case of infanticide by a woman of her child/children should be pre or post sentence on the convictee, we do not find any question relating to the exercise of mercy jurisdiction enjoined on the State under the plenary powers conferred by the Constitution. Substantive provisions of punishment to be meted out to the offenders who are found guilty and convicted are governed by Chap.III of the Indian Penal Code. Procedure for criminal trial of the offenders prosecuted is governed by the Code of Criminal Procedure. The Rules framed by the High Court in exercise of the powers conferred under Art.227 of the Constitution of India and S.477 of the Code of Criminal Procedure are intended to guide the subordinate criminal courts to give effect to the substantive provisions of punishment subject to the procedure for trial laid down by the Code of Criminal Procedure. So much so, in examining the scope of Rule framed by the High Court to facilitate the criminal proceedings of the subordinate courts, it has to be scrutinized with reference to the relevant provisions covered by the Code of Criminal Procedure and not on the basis of the sweeping powers conferred on the State as a sovereign in the matter of remission of sentence under the Constitution of India. The plenary powers enjoined by the State under the Constitution as covered under Articles 72 and 161 thereof, no doubt, are supervening powers and not curtailed by any provisions covered by the penal laws or of the Criminal Procedure Code. The Apex Court in (K.M. Nanavati v. The State of Bombay (1960 KLT SN 11 (C.No.12) SC = AIR 1961 SC 112 )) pointing out that mercy jurisdiction is essentially vested in the Head of the Executive and not to the judiciary has recognized the supervening authority of the State to exercise such jurisdiction whether or not the judicial proceedings are continuing. In the reference involved, we are not called upon to decide any question with reference to the exercise of mercy jurisdiction conferred on the State but only the procedure to be followed by the Sessions Judge after conviction of a woman for infanticide. That, no doubt has to be considered with reference to the relevant provisions under the Code of Criminal Procedure. 5. R.131 of the Rules, the interpretation of which is covered by the question in the reference, reads thus: “131. Reference to Government in case of infanticide:- In all cases where women are convicted for the murder of their infant children, a reference shall be made through the High Court to the Government with an expression by the Sessions Judge of his opinion as to the propriety or otherwise of reducing the sentence. Every such reference shall be accompanied by copies of the material papers of the record.” The relevant provisions under the Code of Criminal Procedure relating to remission of sentence by the Government in exercise of its power to suspend or remit sentence are covered by Ss.432 and 433 of the Code of Criminal Procedure. The above Sections read thus: “432 Cr.P.C.: Power to suspend or remit sentences:- (1) when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced”. (Sub-ss.(2) to (7) of S.432 are omitted as noted directly relevant.) (a) a sentence of death, for any other punishment, provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment for fine.” 6. A Division Bench of this Court in (Radhamony v. State of Kerala (Crl.A.No.496/1999)) considering the scope of R.131 of the Rules, has made some observations that such reference has to be made before imposing the sentence of imprisonment on the indictee of infanticide. The Division Bench has observed as follows: “Before imposing the sentence of imprisonment for life after convicting the accused under S.302 of the Indian Penal Code for infanticide, R.131 of the Kerala Criminal Rules of Practice should have been followed. In many other cases also, we have noticed that when women are convicted for murder of the infant child, the Sessions Courts are not following the above rule of practice. Perhaps, such poor ladies may not get effective legal advice. Therefore, Registry is directed to send a copy of this Judgment to all Sessions Judges for future guidance to comply with R.131 of the Kerala Criminal Rules of Practice.” We may point out at this juncture that R.131 of the Rules mandating a reference arise for consideration only in the case of a woman convicted of infanticide of her child/children and not in the case of all women convicted of infanticide. Be that as it may, whether such reference should be before or after sentence, that alone has to be answered in the present reference and we proceed to consider that question. 7. The most significant, factor to be taken note of in examining the question is that executive can have any role in the matter of sentencing, only after the judicial process is completed. A criminal trial is regulated by the procedure made applicable by law and the judicial process once commenced against a person, accused of an offence, normally, has to reach its logical conclusion, whether he is guilty or not, and in the event of guilty, convicting and awarding of sentence or proper punishment as provided by law. A criminal trial is regulated by the procedure made applicable by law and the judicial process once commenced against a person, accused of an offence, normally, has to reach its logical conclusion, whether he is guilty or not, and in the event of guilty, convicting and awarding of sentence or proper punishment as provided by law. Can the State be conferred with any authority before completion of the judicial process to determine the quantum of sentence to be awarded to an offender which is primarily vested with the judicial authority once a conviction is entered against an offender, has to be answered with an emphatic ‘No’. The Apex Court negativing the challenges of unconstitutionality canvassed by a life convict against the restriction imposed under S.433A of the Code of Criminal Procedure in the granting of remission/commutation of sentence by the Government under S.432 and 433 of the Cr.P.C. has held thus in (Ashok Kumar v. Union of India (1991 Crl.L.J. 2483)):- “The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage for the exercise of this power generally speaking is post-judicial, that is after the judicial process has come to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect of the judicial verdict commences.” (emphasis supplied) The object behind R.131 of the Rules in directing the Sessions Judge to make a reference is to alert the State to consider the question of remission in exercise of its plenary powers over the punishment imposed against a woman convicted of infanticide of her child/children. The Sessions Judge in view of the statutory interdiction in the matter of punishment under S.302 of the IPC will be left with no choice other than imposing a sentence of death or imprisonment for life even in the case of a woman convicted of infanticide of her child/children. Whatever be that extenuating circumstances in her favour justifying a lesser sentence, like her social and economic backwardness, her young age and perhaps she was a victim of exploitation, the Sessions Judge has to follow the interdictions placed under the Statute in awarding sentence covered by S.302 of the IPC. Whatever be that extenuating circumstances in her favour justifying a lesser sentence, like her social and economic backwardness, her young age and perhaps she was a victim of exploitation, the Sessions Judge has to follow the interdictions placed under the Statute in awarding sentence covered by S.302 of the IPC. The High Court, most probably, taking note of the situation, has framed R.131 of the Rules mandating a reference to the State for considering the reduction of sentence imposed against such a convictee noticing that the power of remission can be exercised only by the State and the consideration of remission of sentence on such a convictee has to be treated as a special case without delay. We also notice the expression ‘reducing the sentence’ used in R.131 of the Rules, which makes it abundantly clear that the reference has to be made only after imposition of sentence by the court. 8. Any interpretation placed on R.131 of the Rules supporting the view that a reference has to be made by the Sessions Judge before imposing sentence will result in undesirable consequences. Not only that a judicial authority cannot abdicate its jurisdiction of awarding sentence to any other authority and, further, sentencing is a part of the completion of the criminal trial without which it is, generally, not over, the larger question arises for consideration can the State, the prosecuting agency, impose a sentence against the offender. If a reference is made before imposing sentence and the State is determining the question of sentence on the materials placed before it, it will be a case where the prosecuting agency is being conferred with a power of determining the sentence to be awarded to the convictee. That will be a death knell striking at the foundation of criminal justice, which is impermissible and illegal. Then also, the larger question may come in the event of such a reference made and the State determining the quantum of sentence, after examining the materials placed before it, that is, whether the Sessions Judge is bound to impose such sentence on the convictee. A trained judicial mind rich in experience, having expertise and knowledge in law, especially over sentencing policy, alone can determine the quantum of sentence to be awarded to an offender after weighing the totality of the facts and circumstances involved in the case. A trained judicial mind rich in experience, having expertise and knowledge in law, especially over sentencing policy, alone can determine the quantum of sentence to be awarded to an offender after weighing the totality of the facts and circumstances involved in the case. There cannot be any divesting of the power of sentence to a third party, whether it be the State or any other authority, and if the role of judicial authority is confined only up to the stage of conviction in a criminal trial that would militate against the rule of law and criminal justice. 9. Separation of judiciary from the executive is a basic feature of out Constitution. Even a constitution amendment, which runs counter to that principle will be void. If R. 131 is interpreted as mandating the Sessions Judge to share his sentencing discretion with the executive Government, the Rule will be liable to be condemned as unconstitutional and therefore, unenforcible. It is one of the basic principles of interpretation that Courts should avoid a construction, which would render the statute unconstitutional. 10. A Sessions Judge may any judicial officer when conducting a criminal trial is not witnessing a drama enacted before the court as a mute spectator but a participant actively engaged in the pursuit of justice. In the trial, after a conviction is entered against an offender on finding him guilty, the Judge is not imposing the sentence solely on the basis of finding of guilty against the convict, but taking note of several other factors. The mandate under Section 235 (2) of the Cr.P.C in the case of a sessions trial where the accused is found guilty and convicted of a grave offence, directs the Sessions Judge to hear the accused on the question of sentence, and then pass sentence on him according to law. In the event of a reference before the Government after conviction but before sentence is to be made and then the Sessions Judge has to await for the adequacy of the sentence to be determined by the State on the materials transmitted it follows that it is a clear flouting of the mandate under Section 235 (2) of the Cr.P.C, which commands imposition of sentence after hearing the accused and also the Prosecutor in passing sentence on him. Imposition of sentence against a convict is not solely depend upon the gravity of the offences, but after hearing him and also the Prosecutor on such question and taking into consideration all other relevant factors as to what sentence should be awarded. Though the court can ask any question to the accused at any stage of enquiry or trial to explain any circumstances appearing in the evidence against him, as stated in Section 313 of the Cr.P.C, it has to be noted the mandatory requirement to hear the accused in person once the criminal trial is set in motion is embedded in the Statute after the stage of conviction and before imposition of sentence to decide the question of sentence if he is found to be guilty. Hearing the accused on the question of sentence before awarding of the sentence as mandated under Section 235 (2) of the Cr.P.C in the case of a sessions trial, is a valuable indefeasible right of the accused and the court cannot fail in its duty in relegating that hearing to any other authority. Viewed in that angle also, we have no doubt that a reference under R.131 of the Rules emerge for consideration only after a sentence is imposed against the indictee – a woman of infanticide of her child/children. 11. R.131 of the Rules, if it is to be read as directing a reference before pre sentence, it may lead to yet another undesirable consequence when viewed with Section 465 of the Cr.P.C. The aforesaid section spells out that the sentence imposed by a court of competent jurisdiction cannot be assailed by the reason of error, omission or irregularity in the proceedings before or during trial unless it has caused failure of justice. So if the court is to pass a sentence on the basic of a reference made and answered by the Government in the absence of proof of failure of justice, whatever be the error or omission or irregularity in imposing such sentence, which is passed on the adequacy of the sentence determined by the State, it cannot be assailed before a superior forum. The wordings in Section 465 of the Cr.P.C is yet another circumstance indicating that the sentence can be passed only by the Court and not by any other agency including the Government. 12. The wordings in Section 465 of the Cr.P.C is yet another circumstance indicating that the sentence can be passed only by the Court and not by any other agency including the Government. 12. We also find that a close reading of R.131 of the Rules clearly spells out that in framing of that rule, there is only an omission of stating that the reference to be made only after a post sentence situation. It is seen that there was omission to add the words ‘and sentenced’ after the word ‘convicted’ in the Rule, but that omission appears to be accidental. It is evident from the Rule itself where it is directed that the Sessions Judge in making the reference has to express his opinion as to the propriety or otherwise of reducing sentence while making the reference to the Government that such reference is intended only after a post sentence situation. Otherwise, the question of reducing the sentence if not already imposed will not arise for consideration. There should be a sentence on the indictee and then only a reference can be made in compliance of R.131 of the Rules. A reference without imposing the sentence for consideration of reducing the sentence by the Government would render the Rule meaningless and a futile exercise. 13. Power of the Government to exercise remission under Section 432 and 433 of the Cr.P.C can come into play only after a sentence is imposed against the offender. Section 432 of the Cr.P.C unequivocally demonstrate that the power so vested with the Government can be invoked only if the offender “has been sentenced to punishment”. Where no sentence is imposed, the question of remission under the above section does not arise. That is also another circumstance which gives a clear insight that there cannot be a reference under R.131 of the Rules before sentence is imposed on the indictee. 14. The object behind R.131 of the Rules, no doubt, is to alert the Government to consider without delay the exercise of its powers of remission in the case of a woman convicted of infanticide of her child/children. The murder committed by her leaves the court with no alternative but to impose one of the two sentences provided for the offence of murder once she is found guilty and convicted. The murder committed by her leaves the court with no alternative but to impose one of the two sentences provided for the offence of murder once she is found guilty and convicted. However, punishment has to be tempered with mercy especially in the case of such hapless women, who is often a victim of exploitation. The court cannot impose a lesser sentence than what is provided under Section 302 of the IPC in the case of murder, and that being so, R.131 of the Rules framed by the High Court mandates the Sessions Judge to alert the Government of the conviction and sentence imposed in the case of infanticide where the indictee is the mother of the child murdered, with relevant records so that the Government may consider without delay the reduction of sentence invoking its power to remit the sentence. We do take note the rider placed under Section 433A of the Cr.P.C in the matter of exercising the powers of remission by the Government where an imprisonment for life is the punishment, but, for the answering of this reference, we do not wish to dilate on that point. We also note that whatever be the interdiction under Section 433A of the Cr.P.C, it does not place any embargo on the State in exercising the mercy jurisdiction exercisable by the Head of the State as enjoined under the Constitution. 15. Rules 131 of the Rules, it is to be noted, directing a reference to the Government for reducing the sentence does not apply to all cases of infanticide. Child murder for the sake of its jewels or connected with sexual assault by criminals of depraved mental psychosis are outside the scope of the Rule. The Rule is applicable only in cases where the convict of infanticide is the mother of a child/children murdered. Murder of a new born child or infant is very common in this country. Steeped in inviolable social barriers to remarriage and subject to rather severe moral code in respect of legitimacy, an unwed mother, often a victim of exploitation, to avoid detection, and more so by ignorance on account of her social and economic backwardness, is tempted to snub away the life of her new born child. But infanticide is nothing short of murder in law. But infanticide is nothing short of murder in law. The law in this respect atleast in the case of such women who are found guilty of infanticide may require amendment in the lines of the Infanticide Act of England, 1938. But till then, the anxiety of the High Court to treat them differentially as a special case in reducing their sentence after imposition of punishment by the State, after taking note of the relevant materials and the views and observations made by the Sessions Judge, who had imposed the sentence, is reflected and given effect to by R.131 of the Rules. We also find that recently the Kerala Prisons Rules, 1958, has been amended directing the Advisory Board, constituted under the Rules to recommend to the Government relating to the premature release of prisoners confined in the prisons, to review the cases of women offenders sentenced for infanticide as a special case. By the amendment brought under G.O.(P).No.18/2008 dated 18th January, 2008 a new clause has been introduced in R.545 of the Prisons Rules directing the Board to review immediately on admission in prison of convicted women offenders sentenced for infanticide so that they be sent to the care of voluntary organizations of good repute for a reasonable period of time. The anxiety of the State to treat the case of the women offenders sentenced for infanticide sent over to prison separately is seen by the amendment made to the Prisons Rules directing the Board to review their cases immediately. The amended rules under R.545 of the Prisons Rules indicate that the Government is of the view that such convicts need not suffer incarceration in prison but can be sent to the care of voluntary organizations of good repute for a reasonable period of time. R.131 of the Rules framed by the High Court for making a reference to the Government in the matter of reducing the sentence imposed against the woman convicted of murder of her child/children and Rule 545 of the Prisons Rules by which the Government had directed the Advisory Board to consider the cases of such women immediately, both of them, only reflect the humane approach of the High Court and also the Government in viewing the convicts of such murder calling for a differential treatment. 16. 16. Now coming to the observations made in Radhamony’s case (supra), we noticed that the interpretation of R.131 of the Rules never arose for consideration in that case. The convict in that case, a woman, for infanticide of her child, was inflicted punishment under Section 302 and 318 of the Indian Penal Code. She preferred a jail appeal against the conviction, and this Court on reappraisal of the evidence found her not guilty and acquitted her of both the offences. This Court noticing that a reference has not been made by the Sessions Judge in that case as contemplated under R.131 of the Rules emphasizing the need for making such a reference in cases of infanticide, directed the Registry to send a copy of the judgment to all Sessions Judges for future guidance. However, while issuing such a direction, an observation was made in the following manner; “Before imposing the sentence of imprisonment for life after convicting the accused under Section 302 of the Indian Penal Code for infanticide, R.131 of the Kerala Criminal Rules of Practice should have been followed.” The word ‘before’ used in the judgment indicating that a reference before pre sentence, we have no doubt, was not the intent or the purport of the direction, but only of bringing to the notice of the Sessions Judge an observance of the reference to be made in the case of infanticide. At any rate, in the above decision, the court has not considered whether such reference must be made before or after sentence. The anxiety of the court, as expressed in that decision, was only that a reference should be made after conviction of a woman of infanticide when she is the mother of the child/children murdered. Since the word ‘before’ used in the above decision and the communication sent by the High Court have given rise to a situation where the Sessions Judges are now following a practice of sending a reference to the Government, in such cases, at a stage of pre-imposition of sentence, we make it clear that the word ‘before’ used in the decision need not be given any significance and it has to be read in the context given as to the anxiety and concern expressed by the court for compliance of a reference under R.131 of the Rules. 17. 17. We make it clear that in a case of infanticide, in which a woman is convicted of murder of her child/children, the reference under R.131 of the Rules need be forwarded to the Government only after imposing the sentence, that is, a post sentence situation. In the present case, which has given rise to this reference, the learned Sessions Judge shall forthwith take steps for appearance of the accused, who had been enlarged on bail on executing a self bond and impose the sentence on her ‘after hearing’ as envisaged by law. After imposing sentence on the accused, the Sessions Judge shall comply with R.131 of the Rules in making a reference expressing his opinion as to the propriety or otherwise of reducing the sentence, forwarding such reference with copies of the material papers of the record. A reference made before imposing sentence as being no reference under R.131 of the Rules, a fresh reference shall be made after imposition of the sentence. 18. We are also informed that in several other cases, the Sessions Judges are awaiting answer to the references made to the Government in view of the observations made in Radhamony’s case (supra) and the communication sent over from the High Court. In such cases also, we direct the Sessions Judges not to wait for the answer to the references but to take steps forthwith to compel the appearance of the convicted accused and pass appropriate sentence against them after hearing as envisaged by law and then to make the reference under R.131 of the Rules to the Government on the question of reducing the sentence. Registry is directed to send a copy of the order to all the Sessions Judges for future guidance and to take note of the manner in which R.131 of the Rules is to be complied with.