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TEAM CODE- A

2ND DHAWANI MANOCHA MEMORIAL NATIONAL MOOT COURT


COMPETITION, 2016

BEFORE
THE SUPREME COURT OF INDRADHWAJA
ORIGINAL JURISDICTION -2/ 2016
STATE OF HANSA
PETITIONER

V.
STATE OF PANCHTARA & ORS.
RESPONDENT

W.P.(PIL) NO. 9/2016


NGO- HELP
PETITIONER

V.
STATE OF PANCHTARA &
UNION OF INDIA
RESPONDENT

REVIEW PETITION NO. 3/2016


STATE OF HANSA
PETITIONER

V.
RIMPO, HARDO & OTHERS
RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENTS

Table of Contents

TABLE OF CONTENTS

S.NO
1.
2.

3.
4.
5.
6.
7.
8.

HEADING
TABLE OF CONTENTS

PAGE
NO.
I

INDEX OF AUTHORITIES

STATUTES

II

BOOKS REFERRED

II

DICTIONARIES

III

WEBSITES

III

CASE LAWS

III

LIST OF ABBREVIATIONS

VIII

STATEMENT OF JURISDICTION

IX

STATEMENT OF FACTS

ISSUES RAISED

XI

SUMMARY OF ARGUMENTS

XIII

ARGUMENTS ADVANCED
Preliminary Objection
I.
Whether The P.I.L. Filed By NGO Named HELP And The
Review Petition Filed By Union Of India Is Maintainable Or
Not?
II.
Whether the F.I.R. No. 219/1998 registered In State Of Hansa
Was Illegal As The Acts Formed Part Of Same Transaction
Purported To Be Investigated In Offences Registered Under
F.I.R. No. 298/1998?
III.

What Is The Duration Of Life Imprisonment When The


Sentence Of Death Has Been Commuted Into Sentence Of Life?
Whether The Imprisonment For Life Means Till The End Of
Convicts Life?

MEMORANDUM ON THE BEHALF OF RESPONDENTS

II

Table of Contents
IV.

V.

9.

Whether The Refusal Of President To Grant Pardon/ Remission


To Convicts Of F.I.R. No. 298/1998, The Provisions Of CrPC
Of Indradhwaja Can Be Used To Grant Remission And Can The
Union Give Consent To It As Required Under CrPC?
Whether Supreme Courts Order Creating Special Category Of
Offenders And Putting That Category Beyond Remission Is
Illegal And Unconstitutional?

THE PRAYER

12

16

XIV

MEMORANDUM ON THE BEHALF OF RESPONDENTS

III

Index of Authorities

INDEX OF AUTHORITIES
STATUTORY COMPILATIONS:
1. ARMS ACT, 1959
2. FEDERAL SPECIAL POLICE ESTABLISHMENT ACT, 1946.
3. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985
4. THE CODE OF CRIMINAL PROCEDURE OF INDRADHWAJA, 1973.
5. THE CONSTITUTION OF INDRADHWAJA.
6. THE EXPLOSIVE SUBSTANCES ACT, 1908
7. THE INDRADHWAJA PENAL CODE, 1860.
BOOKS REFERRED:
1. Basu, Dr. Durga Das, The Indian Constitutional Law (3rd Ed Kamal Law House, 2011).
2. Gaur, KD, Criminal Law: Cases and Materials (6th Ed. LexisNexis 2013).
3. Gour, Hari Singh, Penal Law of India (11th Ed. Law Publishers (India) Pvt. Ltd. 2011).
4.

Jain, M.P., Indian Constitutional Law (6th Ed LexisNexis Buttersworth, 2010).

5. Jethmalan, Ram, The Code of Criminal Procedure, 1973(1st Ed Thomson Reuters, 2015).
6. Kelkar, R.V, Criminal Procedure (5th Ed. Eastern Book Company 2014).
7. Lal, Batuk, The Code of Criminal Procedure, 1973 (5th Ed Orient Publishing Co., 2010).
8. Majumdar, P.K., Kataria, R.P., Commentary On Indian Constitutional Law (10th Ed
Orient Publishing Co., 2009).
9. Misra, S.N., Indian Penal Code (19th Ed. Central Law Publishing 2013).
10. Pillai, P.S.A., Criminal Law (12th Ed. LexisNexis 2015).
11. Rao, Mamta, Public Interest Litigation in India a Renaissance in Social Justice (2nd Ed
Eastern Book Company, 2004).
12. Ratanlal and Dhirajlal, The Indian Penal Code (33rd Ed. Central Law Agency 2011).
13. Sarkar, S.C., The Code of Criminal Procedure, 1973 (10th Ed Dwivedi Law Agency
2010).
MEMORANDUM ON THE BEHALF OF RESPONDENTS

IV

Index of Authorities
14. Sarkar, S.C., The Indian Penal Code,1860 (3rd Ed Dwivedi Law Agency 2011).
15. Sarvaria, SK., Indian Penal Code (10th Edition LexisNexis 2009).
16. Sathe, S.P., Judicial Activism in India (Oxford University Press, 2002).
17. Sen, D.N., The Code of Criminal Procedure, 1973 (Premier Publishing Co., 2008)
18. Sohoni, Vishwas Shridhar, Criminal Referencer (2nd Ed Orient Publishing Company,
2008).
DICTIONARIES:
1. BRYAN A. GARNER, BLACKS LAW DICTIONARY (8TH ED. 2001)
2. OXFORD ENGLISH DICTIONARY, (2ND ED. 2009)
3. WEBSTERS NEW INTERNATIONAL DICTIONARY (1926)
WEBSITES:
1. www.manupatra.com
2. www.judis.nic.in
3. www.supremecourtcaselaw.com
4. www.scconline.com
5. www.lawstudentshelpline.com
CASES REFERRED:
CASE

PG.No.

Adnan Bilal Mulla v. State of Mharashtra, 2006 Cri LJ 564(Bom.)

Aftab v. State of Hyderabad, (1995) 1 SCR 588

Ashok Kumar Joshi And Ors. vs State Of Rajasthan And Anr. 1996 (1)
WLN 52

Ashok Kumar vs. Union of India, (1991) 3 SCC 498

Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254 3.

Babulal vs. Emperor , AIR 1938 PC 130

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Index of Authorities
Bachan Singh v. State of Punjab (1980) 2 SCC 684

16

Bhagwan Das Jagdish Chandar v. Delhi Admn., AIR 1975 SC 1309

4,6

Biddle v. Perovich [71 L Ed 1161: 274 US480(1927]

12

C. Muniappan & Ors. vs. State of Tamil Nadu (2010) 9 SCC

Chhina Singh v. State of Punjab, 1997 Cri. LJ 2876

13

Chirra Shivraj vs. State of A.P. AIR 2011 SC 604

Dalbir Singh and others vs. State of Punjab (1979) 3 SCC 745

17

Dasrath Singh v. State, AIR 1956 Cal 260

Dhananjoy Chatterjee v. State of W.B (1994) 2 SCC 220

20

G.V. Ramanaiah v. The Superintendent of Central Jail Rajahmundry


and others, AIR 1974 SC 31

13

Gopal Vinayak Godse v. The State of Maharashtra and others (1961) 3


SCR 440

Gregg v. Georgia, 428 U.S. 153 (1976)

21

Gurvail Singh @ Gala and Anr. vs. State of Punjab (2013) 2 SCC 713

9,18

Jai Narain Misra v. State of Bihar, AIR 1972 SC 1764

K.Kunhahammad v. State of Madras, AIR 1960 SC 661

K.M. Nanavati v State of Maharashtra, AIR 1962 SC 605

12,17

Kamlananha v State of Tamil Nadu, AIR 2005 SC 2132

18

Kartar Singh v. State of Punjab, (1994) 3 SCC 569

14

M. Krishna Swami v. Union of India and Ors, (1992) 4 SCC 605

M.T. Khan v. Govt. Of Andhra Pradesh, 1997 Cri. LJ 1962

13

Madanlal v. State of Punjab, AIR 1967 SC 1590

Mahesh v. State of M. P, (1987) 3 SCC 80

19

Maru Ram v. Union of India and another, AIR 1980 SC 2147

MEMORANDUM ON THE BEHALF OF RESPONDENTS

9,13,15

VI

Index of Authorities
McGautha vs. California, (1971) 402 US 183

21

Mohd. Munna v. Union of India, (2005) 7 SCC 417

Mohinder Singh v. State of Punjab, (2013)3 SCC 294

15

Naib Singh v State of Punjab, AIR 1983 SC 855

17

Peoples Union for Civil Liberties and another v. Union of


India,(2004) 9 SCC 580

14

R. Dayananda Sagar and Ors. vs. Vatal Nagaraj and Ors.,AIR 1976
SC 2183

Rajendra Prasad vs. State of U.P, (1979) 3 SCC 646

17

Ram Pratap v. State, AIR 1970 Raj 250

Rameshbhai Chandubhai Rathode v. State of Gujarat , (2011) 2 SCC


764

Ranjit Singh alias Roda v. Union Territory of Chandigarh, (1984) 1


SCC 31
Raunaq International Ltd. v. I.V.R. Construction Ltd 1998 Supp(3)
SCR 421

Ravji v. State of Rajasthan, (1996) 2 SCC 175

19

Rubabbuddin Sheikh vs. State of Gujarat and Others, (2010) 2 SCC


200

S. Satyanarayan v Government of AP, AIR 2003 SC 3074

18

S. Swamirathnam vs. State of Madras, AIR 1957 SC 340

S.Nalini Srikaran v. State of Tamil Nadu, Writ Appeal No.1207 of


2008

10

Sadhu Singh and Others v. State of Punjab, (1984) 2 SCC 310

Sahib Hussain v State of Rajasthan, (2013) 9 SCC 778

18

Sailendra v. Emperor, (1938) 65 IA 158

Sanaboina Satyanarayana v Government of Andhra Pradesh and Ors.,


AIR 2003 SC 3074

21

Sangeet V. State of Haryana, 2013 (2) SCC 452

12

MEMORANDUM ON THE BEHALF OF RESPONDENTS

VII

Index of Authorities
Satvir Singh V Baldeva & Ors, AIR1997SC169

Sevaka Perumal v. State of T.N , (1991) 3 SCC 471

21

Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296

17

Simranjeet Singh Maan v. Union Of India, AIR 1993 SC 280

Somasundaran v. State, 1997 Cri LJ 1769 (Mad.)

Sriharan @ Murgan v. Union Of India, 2014 4 SCC 242

10

State of A.P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850

State of A.P. v. Subhaiah, AIR 1961 SC 1241

State of Punjab v. Joginder Singh, AIR 1963 SCR 913

12

State of U.P. v. Sanjay Kumar, (2012) 8 SCC 537

State v. M. Balakrishna, 1980 Cri Lj 1145 (Kant)

Swamy Shraddananda@Murali vs State Of Karnataka (2008) 13 SCC


767

17

T.T.Anthony vs. State of Kerala (2001) 6 SCC 181

Union of India v. V. Sriharan @ Murugan & Ors, WRIT PETITION


48 of 2014

12,15,18

Upkar Singh vs. Ved Prakash (2004) 13 SCC 292 2.

Venkatesh v. State, AIR 1967 Mys 44: 1967 Cri LJ 503

Yakub Abdul Razak Memon v. State of Maharashtra through CBI,


Bombay, (2013) 13 SCC 1

15

Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and


others, (2010) 5 SCC 246

14

MEMORANDUM ON THE BEHALF OF RESPONDENTS

VIII

List of Abbreviations

LIST OF ABBREVIATIONS

Section

A.I.R.

All India Reporter

Cal

Calcutta High Court

Cri LJ

Criminal Law Journal

CrPC

Code of Criminal Procedure

E.R.

England Reporter

Ed.

Edition

Honble

Honourable

I.P.C

Indradhwaja Penal Code

K.B.

Kings Bench

Ltd.

Limited

M.P.

Madhya Pradesh

Mad

Madras High Court

P&H

Punjab & Haryana Court

Raj

Rajasthan High Court

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Reporter

Vs

Versus

W.B.

West Bengal

MEMORANDUM ON THE BEHALF OF RESPONDENTS

IX

Statement of Jurisdiction

STATEMENT OF JURISDICTION
The Respondents, most humbly and respectfully, submits that the Petitioners in the present
case do not have the locus standi to approach this Honble court under Article 131, 32 and
137 of the Constitution of Indradhwaja. Therefore, the Petitions are not maintainable.

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Statement of Facts

STATEMENT OF FACTS
1. Political Setup
Indradhwaja is an Asian country whose socio-politico-legal order is similar to India.
Majority of the population (60%) follows Pihu religion while Soham religion
constitutes about 25% of the population and the rest belong to different religions. The
Constitution provides that the country shall be secular, democratic republic.
2. Incident occurred at State of Panchtara
On August 2, 1998, the religious leader of Pihus went to Panchtara State and was killed
by two persons identified as Rimpo and Hardo belonging to Soham religion. An FIR No.
298/1998 was registered under Arms Act, Indradhwaja Penal Code and Terrorist and
Disruptive Activities Act (TADA) against 12 persons. The case was handed over to FBI.
Supreme Court confirmed death sentence of Special Court in October 2005. Governor
rejected their mercy petition and thereafter the President rejected it in April 2014. The SC
commuted it into life imprisonment after the writ filed by accuseds on grounds of delay.
Panchtara wrote a letter for consultation to Union for remission of the sentence.
3. Riots in State of Hansa
Following the assassination, riots broke out in state of Hansa and 3000 people died. The
investigation led to discovery of highly explosive substances and conspiracy to spread
communal hatred. An FIR No. 219/1998 was registered against 7 persons including
Rimpo and Hardo. Supreme Court confirmed their conviction and passed an order to
sentence convicts beyond remission.
4. Clubbing of three petitions
Review filed by Union of Indradhwaja challenging SCs decision under FIR 219/1998,
Petition filed by Hansa to stay remission of convicts and PIL filed by an NGO to grant
remission are clubbed and are to be decided by 7 judge bench of the SC of Indradhwaja.

MEMORANDUM ON THE BEHALF OF RESPONDENTS

XI

Issues Raised

ISSUES RAISED
ISSUE-I
PRELIMINARY OBJECTION
Whether The P.I.L Filed By Ngo Named Help And The Review Petition Filed By Union
Of India Is Maintainable Or Not?
A. The P.I.L. filed by NGO- HELP is not maintainable in the present case.
B. Union of India has no locus standi to file review petition.
ISSUE-II
Whether F.I.R. No. 219/1998 Registered In Hansa State Was Illegal As The Acts
Formed Part Of The Same Transaction Which Were Purported To Be Investigated In
Offences Registered Under F.I.R. No. 298/1998 Of Panchatara State?
A. Acts committed at State of Hansa formed part of same transaction.
A.1. Test to determine sameness of transaction.
B. Criminal Conspiracy to spread communal hatred.
B.2 Joint trial in case of same transaction.
C. FIR No.- 219/1998 was illegal.
ISSUE- III
What Is The Duration Of Life Imprisonment When Sentence Of Death Has Been
Commuted Into Sentence Of Life? Whether The Imprisonment For Life Means Till The
End Of Convict's Life?
A. Life imprisonment means till the end of convicts life.
B. Remission not a vested right of the prisoner.
C. Commutation creates a distinct class of prisoners.
C.1. Commutation done on humanitarian basis in the present case.
C.2. No applicability of section-433a of CrPC in the present case.
ISSUE- IV
Whether After The Refusal Of The President To Grant Pardon/Remission To The
Convicts Of F.I.R. No. 298/1998, The Provisions Of Criminal Procedure Code Of
Indradhwaja Can Be Used To Grant Remissions And Can The Union Give Consent It?
A. Distinct powers conferred under Constitution of Indradhwaja and CrPC.

MEMORANDUM ON THE BEHALF OF RESPONDENTS

XII

Issues Raised
A.1. Clemency powers under constitution are Prerogative in nature.
A.2. The exercise of constitutional powers are no bar to statutory power.
B. State Government is an appropriate government to grant remission in the present case.
C. More procedural checks on statutory power of remission.
ISSUE-V
Whether The Supreme Court Order Creating Special Category Of Sentence And
Putting That Category Beyond Remission Is Illegal And Unconstitutional?
A. Special reasons assigned for the sentencing
A.1. Exceptional indications of murderous recidivism
A.2. No remission in exceptional cases
B. No absolute power of executive to grant remission under provisions of CrPC
B.1. Administration of justice is the sole objective
C. Punishment must be commensurate with the crime
C.1. Principle of proportionality
C.2 Ensure balance between the rights of the victim and accused
C.3. The order of Supreme Court is not Illegal and Unconstitutional

MEMORANDUM ON THE BEHALF OF RESPONDENTS

XIII

Summary of Arguements

SUMMARY OF ARGUMENTS
PRELIMINARY OBJECTION
I. Whether The P.I.L. Filed By NGO Named Help And The Review Petition Filed By
Union Of India Is Maintainable Or Not?
A third party cannot be permitted to question the correctness of the conviction
A third party has no locus standi to file a review petition.
II. Whether F.I.R. No. 219/1998 Registered In Hansa State Was Illegal As The Acts
Formed Part Of The Same Transaction Which Were Purported To Be Investigated In
Offences Registered Under F.I.R. No. 298/1998 Of Panchatara State?
A second FIR for offences in course of same transaction violates Article 21.
All persons who are parties to a conspiracy and are also concerned in the specific offences
thus committed can be lawfully tried jointly at the same trial.
III. Whether The Imprisonment For Life Means Till The End Of Convict's Life? What Is
The Duration Of Life Imprisonment When Sentence Of Death Has Been Commuted
Into Sentence Of Life?
Imprisonment for life must be treated as imprisonment for whole of convicts natural life.
Commutation constitutes a distinct class of convicts whose scope of remission gets limited.
IV. Whether After The Refusal Of The President To Grant Pardon/Remission To The
Convicts Of F.I.R. No. 298/1998, The Provisions Of Criminal Procedure Code Of
Indradhwaja Can Be Used To Grant Remissions And Can Union Can Give Consent
To It?
Sections 432 and 433 are not a manifestation of Articles 72 and 161 but a separate power.
The power exercisable under Section 432(1) which is lesser in degree should necessarily
be held to be exercisable in tune with the adjunct provision contained in the same section.
V. Whether The Supreme Court Order Creating Special Category Of Sentence And
Putting That Category Beyond Remission Is Illegal And Unconstitutional?
Court gave special reasons for sentencing convicts with life imprisonment beyond
remission.

MEMORANDUM ON THE BEHALF OF RESPONDENTS

XIV

Summary of Arguements
The power to grant remission of sentence is a matter of policy and no prisoner has absolute
right to claim remission.

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings

BODY OF ARGUMENTS
PRELIMINARY OBJECTION
I. WHETHER THE PIL FILED BY NGO NAMED HELP AND THE REVIEW PETITION FILED
BY UNION OF INDIA IS MAINTAINABLE OR NOT?
A. THE P.I.L. FILED BY NGO- HELP IS NOT MAINTAINABLE IN THE PRESENT CASE
1. The petitioners do not seek to enforce any of their fundamental rights nor do they
complain that the fundamental rights of persons who are incapable of approaching the
court have been violated. They seek to enforce the fundamental rights of others, namely,
the persons convicted under FIR No. 298/1998.
2. The court in the case of Simranjeet Singh Maan v. Union Of India1 held that there is no
provision in the CrPC or the Supreme Court Rules which permits an accused to be
represented by a person other than a lawyer. A third party, a total stranger to the trial
commenced against the two convicts, cannot be permitted to question the correctness of
the conviction recorded against them. If that were permitted any and every person could
challenge convictions recorded day in and day out by courts even if the persons convicted
do not desire to do so and are inclined to acquiesce in the decision.
3. In M. Krishna Swami v. Union of India and Ors.2 the High Court came to the conclusion
that the third party litigant had no 'locus standi' to maintain the action and so also the
interveners had no right to seek impleadment/intervention in the said proceeding.
4. In Raunaq International Ltd. v. I.V.R. Construction Ltd.3 the following observations were
made with the objective of streamlining the institution of PILs: When a petition is filed
as a public litigation, the Court must satisfy itself that the party which has brought the

AIR 1993 SC 280

(1992) 4 SCC 605

1998 Supp(3) SCR 421

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings
litigation is litigating bona fide for public good. Even when public interest litigation is
entertained, the Court must be careful to weigh conflicting public interest before
intervening.
B. UNION OF INDIA HAS NO LOCUS STANDI TO FILE REVIEW PETITION
5. In the case of Ashok Kumar Joshi And Ors. vs State Of Rajasthan And Anr.4, the court
observed that- It is well settled that review does not mean to rehear the entire matter, to
allow to raise new points which were not raised earlier and even erroneous order cannot
be corrected in the review petition as also filing of review petition is not permissible by a
third party who was not a party to the initial proceedings. Of course, review petition can
be allowed when there is an error apparent on the face of record, in view of the
observations made by the Hon'ble the Supreme Court.
6. In the case of Satvir Singh V Baldeva & Ors.5 the honble supreme court dismissing the
Review Petition held that Third party has no locus standi to challenge conviction on
ground of averments of violation of their fundamental rights."
7. A review of such a judgment is an exceptional phenomenon, permitted only where a
grave and glaring error or other well-established ground is made out. Unfortunately, the
theoretical possibility, successful in a microscopic rarity of cases, has led to frequent,
unfounded and indiscriminate petitions, almost as a routine sequel to a defeat in Court.
The present review petitions fall under the latter category and fail by the former test and
are therefore dismissed.6
8. Therefore, it is submitted that the Public Interest Litigation filed under Article 32 and the
Review Petition filed under Article 137 of the Constitution are not maintainable in the
present case.
4

1996 (1) WLN 52

AIR1997SC169

R. Dayananda Sagar and Ors. vs. Vatal Nagaraj and Ors. AIR1976SC2183

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings
UNDER ORIGINAL JURISDICTION-02/2016
II. WHETHER FIR NO. 219/1998 REGISTERED IN HANSA STATE WAS ILLEGAL AS THE
ACTS FORMED PART OF THE SAME TRANSACTION WHICH WERE PURPORTED TO BE
INVESTIGATED IN OFFENCES REGISTERED UNDER FIR NO. 298/1998 OF PANCHATARA
STATE?
9. It is humbly submitted before the honble bench that the FIR No. 219/1998 registered in
Hansa State for spreading communal hatred resulting in riots, was illegal as the act of
assassination registered under FIR no. 298/1998 of Panchatara State formed part of the
same transaction which were purported to be investigated in offences registered under
FIR No. 298/1998 of Panchatara State.
A. ACTS COMMITTED AT STATE OF HANSA FORMED PART OF SAME TRANSACTION
10. Sir James Stephen defines transaction as a group of facts so connected as to be referred
to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which
may be in issue.7 Sub-section (1)8 of Section-220 of Criminal Procedure Code of
Indradhwaja lays down that if in the transaction more offences than one are committed by
the same person he may be tried for all offences at one trial though offences may be
distinct and of different kinds.9
A.1. Test To Determine Sameness Of Transaction
11. From the facts of decided cases, following criteria may be stated to be relevant to connect
a series of acts as parts of the same transaction:
a. Continuity of action and sameness of purpose.10 It is, however, not necessary that all
the persons involved in one transaction must be present at each one of the incidents
7

Batuk Lal, Commentary on The Code of Criminal Procedure, 1973-1213(3rd Ed Orient Publishing
Company, 2005)
8

220.Trial for more than one offence.(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are
committed by the same person, he may be charged with, and tried at one trial for, every such offence.
9

Dasrath Singh v. State, AIR 1956 Cal 260, Somasundaran v. State, 1997 Cri LJ 1769 (Mad.)

10

Sailendra v. Emperor, (1938) 65 IA 158

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings
comprising the transaction.11
b. Proximity of time or place between the several acts.12 But these are not essential
where continuity of action and purpose are established.13
12. In the case of State of A.P. v. Cheemalapati Ganeswara Rao14 it was held that whether a
transaction can be regarded as the same would depend upon the particular facts of the
case. But it is generally thought that where there is proximity of time or place or unity of
purpose or design or continuity of action, in respect of a series of acts, it may be possible
to say that they form part of the same transaction.15 It is not necessary that every one of
these elements should co-exist for a transaction to be regarded as same.16
13. The real and substantial test to determine whether several offences are so connected as to
form the same transaction depends on whether they are so related to one another in the
point of purpose or as cause and effect or as principal and subsidiary acts as to constitute
one continuous action. 17
14. The mere interval of time between the commission of one of the offences and another
does not by itself necessarily import want of continuity though the length of interval may
be important on determining the question of connection between the two.18
15. Therefore, it is submitted that in the present case, the accuseds act of spreading
communal hatred by way of assassinating the religious leader of Pihus formed the part of

11

Jai Narain Misra v. State of Bihar, AIR 1972 SC 1764

12

State of A.P. v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850

13

Aftab v. State of Hyderabad, (1995) 1 SCR 588

14

AIR 1963 SC 1850

15

Ibid

16

State v. M. Balakrishna, 1980 Cri Lj 1145 (Kant)

17

Bhagwandas v. Delhi Administration, AIR 1975 SC 1309

18

Ibid

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings
same transaction purported to be investigated and tried under FIR No. 298/1998. Hence,
the act of State of Hansa by registering another FIR viz. No. 219/1998 and by trying it
separately is illegal.
B. CRIMINAL CONSPIRACY TO SPREAD COMMUNAL HATRED
16. In case of conspiracy, if specific offences are committed in pursuance of the said
conspiracy, all persons who are parties to that conspiracy and are also concerned in the
specific offences thus committed can be lawfully tried jointly at the same trial. 19
17. Merely because two separate complaints had been lodged, did not mean that they could
not be clubbed together and one charge sheet could not be filed.20
18. Where the alleged murders were followed by the killing of the sole eye-witness, it was
perceived by the Court to be an act forming part of the very same transaction and same
conspiracy in which the offence of killing of first two murders took place.21
19. In Mumbai bomb blast case, there were blasts at Ghatkopar, Bombay Central, Vile Parle
and Mulund, occurring within short span of three months in thickly populated areas. All
the blasts having similar pattern and mode and common people were targeted. Common
thread ran through all these incidents. Case was covered by Section 223(d). Accused was
arrested in connection with blast occurred at one place. Joint trial of accused with accused
of blasts of other was proper.22
B.1 Joint Trial In Case Of Same Transaction
20. A court can hold inquiry or trial in respect of the offences committed outside its
jurisdiction if the offences were committed in the course of same transaction and the
19

20

21

K.Kunhahammad v. State of Madras, AIR 1960 SC 661; State of A.P. v. Subhaiah, AIR 1961 SC 1241
C. Muniappan & Ors. vs. State of Tamil Nadu , (2010) 9 SCC
Rubabbuddin Sheikh vs. State of Gujarat and Others (2010) 2 SCC 200

22

Adnan Bilal Mulla v. State of Mharashtra, 2006 Cri LJ 564(Bom.); Madanlal v. State of Punjab, AIR 1967
SC 1590

MEMORANDUM ON THE BEHALF OF RESPONDENTS

Body of Pleadings
court is competent to try any of them.23
21. An Inspector of Police arrested two persons without any reason while going to a village,
shot at four men one of whom died, chased the others and caught two of them and
released them next day on payment of some money. He was charged under Section-302,
307, 347, 384 of IPC. It was found that though the offence of extortion was committed on
the next day and at a different place, the series of acts, namely, murder, wrongful
confinement and extortion, formed one transaction, being connected with each other.
Held, there was no misjoinder of charges.24
22. It is submitted that in the present case, the offence covered by the FIR No. 219/1998 is
part of the same conspiracy and culminated into the same series of acts forming part of
the same transaction in which the offence in the FIR No.298/1998 was committed. The
criminal conspiracy commenced from purchase of house at State of Hansa by the convicts
to the assassination of Sasha till the spread of riots.
C. FIR NO.- 219/1998 WAS ILLEGAL
23. The Court has consistently laid down the law on the issue interpreting the Code, that a
second FIR in respect of an offence or different offences committed in the course of the
same transaction is not only impermissible but it violates Article 21 of the Constitution.25
24. In C. Muniappan & Ors. vs. State of Tamil Nadu 26, the court laid down the consequence
test i.e., if an offence forming part of the second FIR arises as a consequence of the
offence alleged in the first FIR then offences covered by both the FIRs are the same and,
accordingly, the second FIR will be impermissible in law.
23

Ram Pratap v. State, AIR 1970 Raj 250; Venkatesh v. State, AIR 1967 Mys 44: 1967 Cri LJ 503; Also see
Section-184 of Cr.P.C.
24

Bhagwan Das Jagdish Chandar v. Delhi Admn., AIR 1975 SC 1309

25

T.T.Anthony vs. State of Kerala (2001) 6 SCC 181; Upkar Singh vs. Ved Prakash (2004) 13 SCC 292 2.
Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254 3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
26

(2010) 9 SCC

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25. The Court has held that if several persons conspire to commit offences, and commit overt
acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of
each and all the conspirators), these acts are committed in the course of the same
transaction, which embraces the conspiracy and the acts done under it. The common
concert and agreement which constitute the conspiracy, serve to unify the acts done in
pursuance of it.27
26. Referring to the fact-sheet28, the magisterial enquiry clearly revealed that the
assassination was carried out with a view to spread communal hatred and riots. Thus,
indicating the sameness of transaction.

27

S. Swamirathnam vs. State of Madras, AIR 1957 SC 340; Babulal vs. Emperor , AIR 1938 PC 130

28

Factsheet, Page No. 3, Line No. 7

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UNDER W.P. (PIL) NO. 09/2016
III. WHETHER THE IMPRISONMENT FOR LIFE MEANS TILL THE END OF CONVICT'S LIFE?
WHAT IS THE DURATION OF LIFE IMPRISONMENT WHEN SENTENCE OF DEATH HAS
BEEN COMMUTED INTO SENTENCE OF LIFE?
A. LIFE IMPRISONMENT MEANS TILL THE END OF CONVICTS LIFE
27. Here it is pertinent to refer to Section 45 and 53 of Indrdhawaja Penal Code which
defines the expression life asThe word "life" denotes the life of a human being, unless the contrary appears from the
context.
28. In The Constitution Bench judgement of Gopal Vinayak Godse v. The State of
Maharashtra and others29 it was held that: A sentence of imprisonment for life must
prima facie be treated as imprisonment for the whole of the remaining period of the
convicted persons natural life.
29. Mohd. Munna v. Union of India30 this Court observed that there was no provision either
in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment
could be treated as either 14 years or 20 years without there being a formal remission by
the appropriate Government. This opinion was recently restated in Rameshbhai
Chandubhai Rathode v. State of Gujarat31, and State of U.P. v. Sanjay Kumar.32
30. In Ranjit Singh alias Roda v. Union Territory of Chandigarh33 it was held that the life
imprisonment only means the entirety of the life unless it is curtailed by remissions
validly granted under the Code of Criminal Procedure by the Appropriate Government or
under Articles 72 and 161 of the Constitution by the Executive Head viz., the President
29

(1961) 3 SCR 440

30

(2005) 7 SCC 417. See also Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440

31

(2011) 2 SCC 764

32

(2012) 8 SCC 537

33

(1984) 1 SCC 31

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or the Governor of the State, respectively.34
B. REMISSION NOT A VESTED RIGHT OF THE PRISONER
31. In Constitutional Bench judgment of Maru Ram v. Union of India and another35 referring
to the Godses judgment, it was held that Even if the remissions earned have totalled
upto 20 years, still the State Government may or may not release the prisoner and until
such a release order remitting the remaining part of the life sentence is passed, the
prisoners cannot claim his liberty. The reason is that life sentence is nothing less than
life-long imprisonment. Moreover, the penalty then and now is the same life term. And
remission vests no right to release when the sentence is life imprisonment. It was held
that imprisonment for life lasts until the last breath, and whatever the length of
remissions earned, the prisoner can claim release only if the remaining sentence is
remitted by Government.
C. COMMUTATION CREATES A DISTINCT CLASS OF PRISONERS
32. In the case of Sadhu Singh and Others v. State of Punjab36, a three Judge Bench of the
Honourable Apex Court has held that 'prisoners whose death sentence commuted to life
imprisonment on mercy ground constitute a distinct class and cannot claim equality with
those sentenced to life imprisonment.
33. In the recent judgement of Gurvail Singh @ Gala and Anr. vs. State of Punjab37,this Court
issued orders to deprive a convict from the benefit of remissions only in cases where the
death sentence has been commuted to life imprisonment and it does not apply in all the
cases wherein the person has been sentenced to life imprisonment.

34

Ashok Kumar vs. Union of India, (1991) 3 SCC 498

35

AIR 1980 SC 2147

36

1984 SCC (Cri) 241 = (1984) 2 SCC 310

37

(2013) 2 SCC 713

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C.1. Commutation Done On Humanitarian Basis In The Present Case
34. It must be borne in mind that branding the case as one falling under the category of 'rarest
of rare', originally death sentence was awarded to the appellant, which was later on
commuted to one of life imprisonment, which seems to be purely on humanitarian
grounds. Such commutation of death sentence to one of life imprisonment does not in any
manner reduce the gravity of the offence proved to be involved by the appellant. The
gravity of an offence and the quantum of sentence prescribed in the Code could be a
reasonable basis for a valid classification if the object of such classification is to grant or
not to grant remission.38
35. In the case on hand, this Court while commuting the death sentence of some of the
convicts did not exercise the Executive Power of the State, and that it only exercised its
judicial power in the context of breach of Article 21 of the Constitution due to inordinate
delay in disposing off the mercy petition.39
36. If all the prisoners, irrespective of the gravity of the offences for which they are convicted
are classified and considered similarly, it will have serious repercussions on the safety
and security of the society besides shaking the foundation of the entire criminal justice
system of awarding appropriate quantum of sentence depending on the nature of the
offence proved to be committed by the accused. Therefore, this classification cannot at
all be branded as arbitrary or discriminatory or unfair or even unreasonable, so as to say
and hold that it violates Articles 14 and 21 of the Constitution.40
C.2. No Applicability Of Section-433A Of CrPC In The Present Case
37. Referring to the provisions of Section-433-A of CrPC, it is evident that the section is

38

S.Nalini Srikaran v. State of Tamil Nadu, Writ Appeal No.1207 of 2008

39

Sriharan @ Murgan v. Union Of India, 2014 4 SCC 242

40

Supra Note 32

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applicable only under two conditions:
a. where a sentence of imprisonment for life is imposed on conviction of a person for an
offence for which death is one of the punishments provided by law,
b. where a sentence of death imposed on a person has been commuted under section
433 into one of imprisonment for life.
38. Therefore, it is submitted that in the present case the commutation has been done by the
Supreme Court is the exercise of power under article 32 and not under the provisions of
CrPC by the executive authorities.

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ORIGINAL JURISDICTION- 02/2016
IV. WHETHER AFTER THE REFUSAL OF THE PRESIDENT TO GRANT PARDON/REMISSION TO
THE CONVICTS OF FIR NO. 298/1998, THE PROVISIONS OF CRIMINAL PROCEDURE CODE
OF INDRADHWAJA CAN BE USED TO GRANT REMISSIONS AND CAN UNION GIVE CONSENT
T O IT ?

39. It is humbly submitted that there is no specific provision prohibiting the execution of the
power under Sections 432 and 433 of Code of Criminal Procedure when once similar
such power was exercised by the Constitutional Authorities under Articles 72 and 161 of
the Constitution. There is also no such implied prohibition to that effect.
40. In K.M. Nanavati v. State of Bombay41 it was observed by Constitution Bench of this
Court, Pardon is one of the many prerogatives42 which have been recognized since time
immemorial as being vested in the sovereign, wherever the sovereignty may lie.
A. DISTINCT POWERS CONFERRED UNDER CONSTITUTION OF INDRADHWAJA AND
CRPC
41. In the recent judgement of Sriharan@ Murgan v. Union of India,43 it was held that
Sections 432 and 433 are not a manifestation of Articles 72 and 161 of the Constitution
but a separate, though similar, power, and Section 433A, by nullifying wholly or
partially these prior provisions does not violate or detract from the full operation of the
Constitutional power to pardon, commute and the like.
A.1. Clemency Powers Under Constitution Are Prerogative In Nature
42. The Supreme Court has ruled in State of Punjab v. Joginder Singh44 that the power under
Articles 72 and 161 is absolute and cannot be fettered by any statutory provision such as
Section-432, 433 and 433A of Cr.P.C. This power cannot be altered, modified or

41

1961) 1 SCR 497 at 516

42

Biddle v. Perovich [71 L Ed 1161: 274 US480(1927]

43

WRIT PETITION (CRL.) NO. 48 OF 2014

44

AIR 1963 SCR 913

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interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
43. The court in M.T. Khan v. Govt. Of Andhra Pradesh45, held that the statutory injunction
incorporated in Section 433-A, CrPC is no impediment, when power of pardon is invoked
under Article 72 or 161 of the Constitution.46
A.2 The Exercise Of Constitutional Powers Are No Bar To The Exercise Of
Statutory Power Of Remission
44. In Maru Ram v. Union of India47, it was observed that it is apparent that viewed
specifically, the two powers, one Constitutional and the other Statutory are co-extension.
But the two things may be similar but not the same. That is precisely the difference. The
power which is the creature of the Code cannot be equated with a high prerogative vested
by the Constitution in the highest functionaries of the Union and the States. The source is
different although the stream may be flowing along the same bed.
45. Therefore, it must be held that there is every scope and ambit for the Appropriate
Government to consider and grant remission under Sections 432 and 433 of the Code of
Criminal Procedure even if such consideration was earlier made and exercised under
Article 72 by the President and under Article 161 by the Governor.
B. STATE GOVERNMENT IS AN APPROPRIATE GOVERNMENT TO GRANT REMISSION
IN THE PRESENT CASE
46. The decision in G.V. Ramanaiah v. The Superintendent of Central Jail Rajahmundry and
others48 clearly lays down that it is the offence, the sentence in respect of which is sought
to be commuted or remitted, which determines the question as to which Government is
the appropriate Government.49
45

1997 Cri. LJ 1962

46

Chhina Singh v. State of Punjab, 1997 Cri. LJ 2876

47

AIR 1980 SC 2147

48

AIR 1974 SC 31

49

Law Commission of India, 41st Report on The code of criminal procedure ,1898-Vol 1

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47. In Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and others50 it was
held that the State Legislature is empowered to enact laws aimed at containing or
preventing acts which tend to or actually affect public order. Even if the said part
incidentally encroaches upon a field under Entry 1 of the Union List, the same cannot be
held to be ultra vires in view of the doctrine of pith and substance as in essence the said
part relates to maintenance of public order which is essentially a State subject.
48. In Peoples Union for Civil Liberties and another v. Union of India51 the validity of
Prevention of Terrorism Act, 2002 and in Kartar Singh v. State of Punjab52 validity of
TADA were questioned. It was observed that public order in List II empowers the State
to enact the legislation as it affects or relates to a particular State and that the term has to
be confined to disorder of lesser gravity having impact within the boundaries of the State
and that activity of more serious nature which threatens the security and integrity of the
country as a whole would not be within the field assigned to Entry 1 of List II.
49. The two judges in the dissenting view53 said that Section-302 of IPC is directly related to
public order under Entry 1 of List II of the 7th Schedule to the Constitution and is in the
exclusive domain of the State Government. In our view the offence in question is within
the exclusive domain of the State Government and it is the executive power of the State
which must extend to such offence.
C. MORE PROCEDURAL CHECKS ON STATUTORY POWER OF REMISSION
50. When in the course of exercise of larger Constitutional powers of similar kind under
Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised

50

(2010) 5 SCC 246

51

(2004) 9 SCC 580

52

(1994) 3 SCC 569

53

Supra Note 35

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with great care and caution and by having the benefit of act and advice of the Council of
Ministers,54 the one exercisable under a statute, namely, under Section 432(1) which is
lesser in degree should necessarily be held to be exercisable in tune with the adjunct
provision contained in the same section.55
51. In Mohinder Singh v. State of Punjab56 the court said that in order to check all arbitrary
remissions, the Code itself provides several conditions. Sub-sections (2) to (5) of Section
432 of the Code lay down basic procedure for making an application to the appropriate
Government for suspension or remission of sentence either by the convict or someone on
his behalf.57 The exercise of power of remission would be possible subject to fulfilment of
certain conditions.58 Those conditions are mentioned either in the Jail Manual or in
statutory rules. The decision to grant remission has to be well informed, reasonable and
fair to all concerned.
52. Viewed in that respect, it was said that the procedure to be followed whenever any
application for remission is moved, the safeguard provided under Section 432(2) should
be the sine-quo-non for the ultimate power to be exercised under Section 432 (1). The
Appropriate Government will get the valuable opinion of the judicial forum, which will
definitely throw much light on the nature of crime committed, the record of the convict
himself, his background and other relevant factors to take the right decision as to whether
or not suspension or remission of sentence should be granted.59

54

Maru Ram Etc. Etc vs Union Of India, 1980 AIR 2147, 1981 SCR (1)1196

55

Union of India v. V. Sriharan @ Murugan & Ors., WRIT PETITION (CRL.) NO. 48 OF 2014

56

(2013)3 SCC 294

57

2013 (2) SCC 452

58

Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay, (2013) 13 SCC 1

59

Ibid

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UNDER REVIEW PETITION NO. 02/2016
V. WHETHER THE SUPREME COURT ORDER CREATING SPECIAL CATEGORY OF SENTENCE
AND
PUTTING
THAT
UNCONSTITUTIONAL?

CATEGORY

BEYOND

REMISSION

IS

ILLEGAL

AND

53. It is humbly submitted before the Honble Bench that the order passed by Supreme Court
sentencing the offenders under F.I.R. No. 219/1998 by creating their special category kept
beyond the ambit of remission is legal and constitutionally valid for the following
reasonsA. SPECIAL REASONS ASSIGNED FOR THE SENTENCING
54. It was held that the expression special reasons in the context of the provision of Section
354(3) obviously means exceptional reasons founded on the exceptionally grave
circumstances of the particular case relating to the crime as well as the criminal.60
55. In the present case, the Honble bench has given the special reasons61 for sentencing the
convicts with life imprisonment till the end of natural life pertaining to the grievousness
of the offence by the way of spreading communal hatred leading to killing of 3000
innocent lives.
56. The sentence of imprisonment for a term of 14 years, that goes under the euphemism of
life imprisonment is equally, if not more, unacceptable.
57. A similar switchover was scripted by the legislature of England. The Murder (Abolition
of Death Penalty) Act 1965, which abolished death sentence for murder, made life
imprisonment the punishment for murder while empowering the court to declare a
minimum period which should elapse before the executive ordered the release of the
convict.62

60

Bachan Singh v. State of Punjab (1980) 2 SCC 684

61

Factsheet, Page No. 4

62

http://www.legislation.gov.uk /ukpga/1965/71/contents

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58. In Justice Verma Committee report of 2013 also supported the Supreme Court verdict, it
reiterated the proposition that a life imprisonment means the whole of the remaining
period of the convicts natural life.63
A.1. Exceptional Indications Of Murderous Recidivism
59. In Dalbir Singh and others vs. State of Punjab64, three Judges of this Court had occasion
to consider the awarding of death penalty where it was observed that life imprisonment
strictly means imprisonment for the whole of the man's life, but in practice amounts to
incarceration for a period between 10 and 14 years which may, at the option of the
convicting court, be subject to the condition that the sentence of imprisonment shall last
as long as life lasts where there are exceptional indications of murderous recidivism and
the community cannot run the risk of the convict being at large.
60. In a more recent case, Swamy Shraddananda vs. State of Karnataka65, while one of the
learned Judges took the view that the appellant deserved nothing but death, the others
made it clear that life imprisonment, rather than death, would serve the ends of justice.
But the Hon'ble Judges also made it clear that the appellant would not be released from
prison till the end of his life.
A.2. No Remission In Exceptional Cases
61. Upholding the verdict of 3 judge bench of Swamy Shraddananda@Murali vs State Of
Karnataka66, the court citing 91 and 92 para of the said judgement upheld the punishment
of life imprisonment beyond remission. It has now come to stay that when in exceptional
cases, death penalty is altered as life sentence, that would only mean rest of ones life
63

K.M. Nanavati v State of Maharashtra, AIR 1962 SC 605; Naib Singh v State of Punjab, AIR 1983 SC 855

64

(1979) 3 SCC 745, See also Rajendra Prasad vs. State of U.P, (1979) 3 SCC 646; Shri Bhagwan vs. State of
Rajasthan(2001) 6 SCC 296.
65

(2008) 13 SCC 767

66

(2008) 13 SCC 767

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span.
62. While the trial court on conviction and sentencing the accused, regard being had to the
heinousness of the offence directed that no order of remission or amnesty should be given
to the accused, the Supreme Court upheld such direction.67
B. NO ABSOLUTE POWER OF EXECUTIVE TO GRANT REMISSION UNDER PROVISIONS
OF CRPC
63. In Sahib Hussain v State of Rajasthan68 it was held that the court can issue directions to
curtail states executive power of remission, having regard to the facts and circumstances
of the case.
64. The power to grant remission of sentence is a matter of policy and no prisoner has
absolute right to claim remission.69
B.1. Administration Of Justice Is The Sole Objective
65. In Union of India v. V. Sriharan @ Murugan & Ors70 the court said, though we are not
attempting to belittle the scope and ambit of executive action of the State in exercise of its
power of statutory remission, when it comes to the question of equation with a judicial
pronouncement, it must be held that such executive action should give due weight and
respect to the latter in order to achieve the goals set in the Constitution.
66. The imposition of capital punishments in the Penal Code such power can be appropriately
exercised by the adjudicating Courts in the matter of ultimate imposition of punishments
in such a way to ensure that the other procedural provisions contained in the Code of
Criminal Procedure relating to grant of remission, commutation, suspension etc. on the

67

Kamlananha v State of Tamil Nadu, AIR 2005 SC 2132

68

(2013) 9 SCC 778, Gurvail Singh v State of Punjab (2013) 10 SCC 63

69

S. Satyanarayan v Government of AP, AIR 2003 SC 3074

70

WRIT PETITION (CRL.) NO. 48 OF 2014; See also Shri Bhagwan vs. State of Rajasthan (2001) 6 SCC 296

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prescribed authority, cannot be held to be or can in any manner overlap the power already
exercised by the Courts of justice.71
C. PUNISHMENT MUST BE COMMENSURATE WITH THE CRIME
67. In Mahesh v. State of M. P.72, the Supreme Court observed that: It will be a mockery of
justice to permit the accuseds to escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser punishment for the accused would be to
render the justice system of this country suspect. The common man will lose faith in
courts. In such cases, he understands and appreciates the language of deterrence more
than the reformative jargon.
68. The punishment to be awarded for a crime must not be irrelevant but it should conform to
and be consistent with the atrocity and brutality with which the crime has been
perpetrated, the enormity of the crime warranting public abhorrence and it should
respond to the society's cry for justice against the criminal. If for extremely heinous
crime of murder perpetrated in a very brutal manner without any provocation, most
deterrent punishment is not given, the case of deterrent punishment will lose its
relevance. 73
C.1. Principle Of Proportionality
69. Having regard to the proportionality of the crime committed, when it is decided that the
offender deserves to be punished with the sentence of life imprisonment (i.e.) for the end
of his life or for a specific period, the inherent power of the Court concerned should
empower the Court in public interest as well as in the interest of the society at large to
make it certain that such punishment imposed will operate as imposed by stating that no

71

Union of India v. V. Sriharan @ Murugan & Ors, 2nd December,2015

72

(1987) 3 SCC 80

73

Ravji v. State of Rajasthan, (1996) 2 SCC 175

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remission or other such liberal approach should not come into effect to nullify such
imposition.74
70. The criminal law adheres in general to the principle of proportionality in prescribing
liability according to the culpability of each kind of criminal conduct. It ordinarily allows
some significant discretion to the judge in arriving at the sentence in each case,
presumably to permit sentences to reflect more subtle considerations of culpability that
are raised by the special facts of each case.75
71. In respect of offences for which death is a punishment, the sentence for imprisonment
for life without commutation or remission be prescribed as an alternative sentence.
Suitable amendments shall be made to make it clear that when such punishment is
imposed, the Government is precluded from commuting or remitting the sentence.76
C.2.Ensure Balance Between The Rights Of The Victim And Accused
72. In Dhananjoy Chatterjee v. State of W.B.77 the court said,we must not only keep in
view the rights of the criminal but also the rights of the victim of the crime and the
society at large while considering the imposition of appropriate punishment.
73. Undue sympathy to impose inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of law and society could not
long endure under serious threats. If the courts did not protect the injured, the injured
would then resort to private vengeance. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence and the manner in which it was
executed or committed etc.78
74

Ibid

75

Lal, Batuk, Indian Penal Code 1860, Vol 2, Orient Publishing Company, Page 222

76

Committee on Reforms of Criminal Justice System Dr. Justice V.S. Malimath march 2003

77

(1994) 2 SCC 220

78

Sevaka Perumal v. State of T.N , (1991) 3 SCC 471

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C.3.The Order Of Supreme Court Is Not Illegal And Unconstitutional
74. Any attempt to standardise or to identify the types of cases for the purpose of death
sentence would amount to taking up the legislative function. The Court said that a
standardization or sentencing discretion is a policy matter which belongs to the sphere of
legislation and the Court would not by overleaping its bounds rush to do what
Parliament, in its wisdom, warily did not do. Here the Supreme Court is not legislating it
is only on the basis of facts of the present case that a particular category of offenders is
created. 79
75. An American decision in McGautha vs. California80, The infinite variety of cases and
facets to each case would make general standards either meaningless boiler plate or a
statement of the obvious that no Jury/Judge would need.
76. In Sanaboina Satyanarayana v Government of Andhra Pradesh and Ors.81, the
government order specifically stated that the prisoners convicted for "crimes against
women such as Section 376 and 354 of IPC which being sentenced to imprisonment for
life" will fall outside the scheme for remission which was upheld by the court.
77. Thus, it is humbly submitted that the Supreme Courts order creating category of
offenders is illegal and unconstitutional.

79

Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka (2008) 13 SCC 767.

80

(1971) 402 US 183; Gregg v. Georgia, 428 U.S. 153 (1976)

81

AIR 2003 SC 3074

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XIV

Prayer for Relief

PRAYER FOR RELIEF


In the light of the issues raised, authorities cited and arguments advanced, it is humbly
submitted that court may be pleased to hold, adjudge and declareUNDER ORIGINAL JURISDICTION. NO. 2/2016:
a. That the F.I.R No. 219/1998 registered at State of Hansa is illegal.
b. That this court in the interest of justice, allow the convicts named Rimpo and Hardo be
released on remission.
UNDER W.P. (P.I.L.) NO. 9/2016:
a. That the P.I.L. filed by NGO-Help is not maintainable.
b. That the convicts Rimpo and Hardo be not granted with remission.
c. That the convicts be transferred to State of Hansa to serve rest of their life sentence.
UNDER REVIEW PETITION NO. 2/2016:
a. That the Union has no locus standi to file review petition in the present case.
b. That the order of Supreme Court under F.I.R No. 219/1998 is legal and constitutional.
And any other relief that this Honble Court may be pleased to grant in the interest of justice,
equity and good conscience.
And for this act of kindness Your Lordships respondents shall as duty bound ever pray.

S.D./Counsel for Respondent

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