STATE OF KERALA Vs. RAMACHANDRAN

JUDGEMENT

(1.) WHEN the ten Death Sentence References were posted before the Division Bench, the Division Bench felt that whether Sessions Courts have the power to award the harsher variety of life sentence recognized in Swamy Sraddanandha (2) v. State of Karnataka, 2008 KHC 5272 : 2008 (13) SCC 767 : AIR 2008 SC 3040 : 2008 CriLJ 3911, as an option to avoid sentence of death is to be settled. The Division Bench considered it a general and common question which is to be decided and all the 10 DSRs were heard on this question. The Division Bench formulated the following questions and heard the learned counsel appearing in the DSRs, the Director General of Prosecution, the Additional Director General of Prosecution and also the counsel who challenged the conviction by independent appeals. The questions formulated are the following:

(2.) FINDING that the matter must receive attention of a larger bench, which must consider exhaustively and lay down the authoritive law so that there will be no confusion in the minds of the Sessions Judges about their competence to impose the harsher sentence of life as permitted by Swami Sraddanandha (2) and their obligation to consider whether the harsher sentence of imprisonment for life is also unquestionably foreclosed before imposition of death sentence, learned Judge directed that the matter be referred to a larger bench under S.4 of the Kerala High Court Act. It was also observed that the Honourable Chief Justice may consider the great import of the question and place the matter before a larger bench (of at least 5 Judges) invoking the power under S.6 of the High Court Act. The other Judge did not agree with the said views and held that though Swami Sraddanandha (2) lays down another alternative option of imprisonment for life beyond any remission, to avoid the imposition of death penalty, that power was restricted to the Supreme Court and High Courts and is not available to the Sessions Courts. It was also found that there is no necessity to refer the matter to a larger bench, especially when it would only prolong the agony of those inmates of death row and each Death Sentence Reference case is to be heard independently.

(3.) IT was pointed out at the outset that when there is a conflict of opinion in the Division Bench and one of the Judges of the Division Bench so requires, as provided under the proviso to S.392 of Code of Criminal Procedure, the appeal shall be reheard and decided by a larger Bench of Judges and as one of the Judges in the Division Bench specifically so required, the DSRs should have been posted before a larger bench and not before a Single Judge and therefore the DSRs are to be placed before the Chief Justice to post the case before a larger bench. It was also pointed out that when the DSRs were not heard on merits, no opinion was formed by the Division Bench on merits of the DSRs so as to have two different opinions as provided under S.392 of Code of Criminal Procedure and if at all only a preliminary point was heard, which could have been heard either separately in one DSR or in one of the appeals and there is no necessity to hear the matter in all the DSRs and thereby prolong the agony of the accused who are sentenced to capital punishment.