Today I will be writing about the rarest of rare doctrine that is used primarily in criminal law while awarding death penalty to convicts in offences such as that of taking up arms against the state, kidnapping with ransom, murder and also in cases of rape. The most recent example in which death penalty was awarded is in the Nirbhaya Rape case that happened in the year 2012.

Now the issue that arises while awarding death penalty is that what constitutes as a case that falls under the ambit of the rarest of rare doctrine. This is because this is a grey area which is left upon the discretion of the court depending on the facts and circumstances of each case. The nature and gravity of an offence are certain ingredients which help to ascertain whether this doctrine would apply or not. With the help of aggravating circumstances judges might feel that death penalty might be awarded but looking at the mitigating circumstances in some cases such penalty is not granted.

Now I would like to refer to the first ever case law in India where such death penalty was awarded and the doctrine of rarest of rare was discussed about. This was the famous case of assassination of Mahatma Gandhi i.e Nathuram Godse v. Crown wherein the three-judge bench granted death penalty to Nathuram who had killed Mahatma Gandhi.

It is often seen that the rarest of rare doctrine is often applied and discussed by the courts in cases involving offences of murder or rape. Few landmark judgements for this are the killing of Indira Gandhi wherein the assassinators were given death penalty in the case of Kehar Singh v. Delhi Administration. They laid down criteria of the doctrine that in instance of a homicide of such eminent personality with hiring of professional killers and making a plan and then breaching public duty. However, in the famous Mattoo murder case raping and then murdering a woman and breaking almost every bone did not constitute something that was rarest of rare and therefore the apex court commuted the sentence from death penalty to life sentence.

The landmark judgement on this doctrine where the court tried to establish guidelines about when death penalty is to be imposed and when the doctrine of rarest of rare is to be applied came first time in the case of Bachan Singh v. State of Punjab. This was a five-judge bench decision wherein the court upheld the constitutional validity of death sentence and also that it passes the substantive test. For the procedural aspect of this the bench referred to section 354 clause 3 of the Code of Criminal Procedure which talks about the special reasons that are to be stated in the judgement while providing for death sentence. The court expanded and defined these special reasons as exceptional reasons which are to be invoked only in exceptional circumstances. Then they pointed out on the mitigating and aggravating circumstances that are to be looked into and weighed while passing such a sentence. They expanded this scope by adding a caveat that not only the nature of the crime is to be taken into consideration but also weightage is to be given to the criminal as well.This can be any possibility of reform and the age of criminal. The court gave a list on this matter and held that this was illustrative. The reason that the bench gave for this was that the punishment was to be given looking at it as a reformative way as these are certain salient features of a progressive society.

Then came the three-judge bench decision in the case of Machhi Singh v. State of Punjab. This although expanded the list of the aggravating circumstances by itemizing it and those which are necessary while awarding death penalty.

But at the same time, this was contrary to the earlier held point about the antecedents of the criminal that are to be taken into consideration while awarding such a sentence. The court in the present case ignored this fact and said that this was not necessary. This position was then later on reaffirmed by a two-judge bench decision by the apex court in the case of Ravji alias Ram Chandra v. State of Rajasthan and said prime importance is to be given to the nature and gravity of the crime so committed and not that of the offender. Now, what this had done was that although these judgements were contrary to the larger bench judgment in the case of Bachan Singh. This was still followed and which led to seven executions in between this time span where the apex court finally in the year 2009 reaffirmed the position of Bachan Singh and held the above two judgements to be per incuriam.

This was done in the case of Santosh Kumar v. State of Maharashtra where the apex court upheld Bachan Singh on the ground that the conduct, character and the antecedents of the accused are also to be taken into account while granting death penalty and using the rarest of the rare doctrine. It also said that life imprisonment is to be a rule and death penalty is to be regarded as an exception and also that public opinion and closure of the victim should not be taken into consideration.

Then there is another important aspect while discussing this doctrine which is that of the minimum of fourteen day period that is to be granted to the accused after all the legal options have been closed. This is done so that he is able to meet his family, execute any will and is in a proper state of mind. Also, that the accused is to be provided with a legal aid till the end and regular mental evaluation of the accused is to be done. All of this was affirmed in the three-judge bench case of Shatrughan Chauhan v. Union Of India.

After discussing all the important cases on this doctrine I would now analyse the current position and whether this is actually followed or not. In the recent and famous case of State of Maharashtra v. Yakub Menon the mitigating factors of the accused were not taken into account to an extent and death penalty was awarded. Therefore, according to me a list should be set out that should talk about the mitigating and aggravating circumstances in which death penalty should be awarded by applying the doctrine of the rarest of the rare cases. In certain offences like Section 303 of the Indian Penal Code mandatory death penalty that was awarded to the accused has now been held unconstitutional in the case of Mithu Singh v. State of Punjab as the mitigating and aggravating circumstances of each and every accused person may differ and so the discretion should be left to the court to decide the sentencing. The choice of such a punishment should be taken with due consideration of all the facts and circumstances and referring to the ratio in Bachan Singh which talks about the current position of this doctrine.

(I have not dealt with the death penalty and the right to life aspect and whether it is violated in this article as I was just discussing the doctrine of the rarest of rare which is applied while giving death sentence or capital punishment)

In my opinion, “Fruit of the poisonous tree” is a better approach towards dealing with illegally obtained evidence. To discuss why I think this is a better approach than the unfair operation principle currently being followed in India, I would analyse India’s current position concerning this and its evolution over the years.

The law governing evidence law in India includes the Indian Evidence Act 1872^[1*], any other state or parliament legislation indirectly talking about the angle of evidence and decisions rendered by the apex court.

[1* The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

The provisions relating to illegally obtained evidence barring few, are mentioned in Chapter 2 of the Indian Evidence Act of 1872^[2*]. There is no general provision that talks about the admissibility of illegal evidence. However, Section 5 of the act^[3*] talks about the relevancy of evidence. Now the major conflict that arises is between the right against self-incrimination under Article 20(3) of the Constitution of India^[4*] and the admissibility of the illegally obtained evidence. There is also a conflict related to Article 21 of the Constitution of India^[5*], which talks about the right to privacy. Since there is no provision resolving this particular conflict, we would rely on the famous landmark decisions that are constantly being changed and overruled.

[2* Ibid.]

[3* Section 5, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[4* Indian Constitution, Article 20, Clause 3.]

[5* Indian Constitution, Article 21.]

To start with, one of the oldest cases on the same question was that of the privy council in the case of R v. Leathem^[6*] where Justice Crompton for the court held that “It matters not how you get it; if you steal it even, it would be admissible”^[7*]. Thus ascertaining a position that was building ground for the unfair means principle. Following this principle, it may be analysed that the Indian Courts had taken a more consequentialist approach that is they were concerned with the result and not how that result was achieved. Despite the recommendations of the 1st law commission report^[8*], which clearly stated the police’s gross misuse of power and that there is a need to curb this power.

[6* R v. Leathem (1861) 8 Cox CC 498.]

[7* Ibid.]

[8* 1st Law Commission Report, Government of India http://lawcommissionofindia.nic.in/1-50/Report1.pdf.]

The first of the landmark judgments relating to this topic is in the case of Y.S. Nagree v. State of Maharashtra^[9*], where the court held that if it is proved that there is no compulsion being used to obtain an illegally obtained evidence, then that evidence is admissible and is not barred by Article 20(3) of the Constitution of India^[10*]. Then came another aspect in R.M. Malkani v. State of Maharashtra^[11*] wherein the court relied on a few English Law cases. The court held that Article 20(3) of the Constitution^[12*] violation is not done by procedure established by law, primarily saying that if it was obtained was not prescribed by law. This was the first case that laid down the Unfair Operation principle, although was not discussed in detail and was left to the court’s discretion. This situation was followed in many cases till this ratio was refined in the case of Pooran Mal v. Director of Inspector^[13*] where the court rejected the argument of comparing it with the U.S. jurisprudence wherein they follow the fruit of the poisonous tree doctrine upheld in the case of Mapp v. Ohio^[14*] that illegally obtained evidence is violative of the 4th and 5th amendment of the United States. The court rejected this claim relying on M.P. Sharma v. Satish Chandra^[15*] where they said both the jurisprudence had textual differences. Instead, they upheld the situation in the Malkani case by adding that it should be reasonably enforced and that the prosecution ought not to take advantage. It also said that “this is a rule of prudence and not a rule of evidence”. The current position is that held in the case of Baldev Singh v. State of Punjab^[16*] where the court explicitly noted: “that judicial process may come under a cloud to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law.”

[9* Y.S Nagree v. State of Maharashtra, (1967) 3 SCR 720 (India).]

[10* Indian Constitution, Article 21.]

[11* R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471 (India).]

[12* Indian Constitution, Article 20, Clause 3.]

[13* Pooran Mal v. Director of Inspector, (1974) 1 SCC 345 (India).]

[14* Mapp v. Ohio, SCC Online US SC 136 (S.Ct. 1961).]

[15* M.P. Sharma v. Satish Chandra (1954) SCR 1077 (India).]

[16* Baldev Singh v. State of Punjab, (1999) 6 SCC 172 (India).]

So the final situation that is prevalent in India is –

“1. If evidence has been obtained by violating a procedural statutory right granted to the accused, the court may exclude the use of such evidence if the court, in its discretion, thinks that admission of such evidence would render the trial unfair.

In my opinion, the process of recovery should be used in criminal trials but with reasonable restrictions. When we talk about the process of recovery which is derived from the theory of subsequent facts it becomes all the more important to refer to Section 27^[1*] which states “a person accused of any offence, in the custody of a police officer”^[2*]. Now the question arises that whether the discovery is admissible when the accused is in police custody or not in police custody. This has been in debate since the year 1884 as in Queen Empress v. Babu Lal^[3*] where the privy council held that the accused should be in police custody. This was later reversed in 1932 in the case of Namasudra v. Emperor^[4*] that held information to discovery could be outside the custody also. The current position is that what was held in the case of State of U.P. v. Deoman Upadhyay^[5*] where Shah, J. mentioned the said provision is not violative of Article 14 of the Constitution^[6*] as this is manifestly reasonable and creates an intelligible differentia between police custody and outside it. They also expanded the scope of police custody to constructive custody. This concept arises due to flexible interpretation of Section 46 of the Code of Criminal procedure^[7*]. This was again followed in Aghnoo Nagesia v. State of Bihar^[8*]. Also, in Lachman Singh v. State of U.P.^[9*] it was held that Section 27^[10*] is admissible only when accused is in police custody otherwise barred by Section 162 of Cr.P.C.^[11*].

[1* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[2* Ibid.]

[3* Queen Empress v. Babu Lal, (1899) ILR 21 AII 106 (India).]

[4* Durlav Namasudra v. Emperor, (1931) SCC OnLine Cal 146 (India).]

[5* State of U.P. v. Deoman Upadhyay, (1961) 1 SCR 14 (India).]

[6* Indian Constitution, Article 14.]

[7* The Code of Criminal Procedure, Section 46 (1898).]

[8* Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 (India).]

[9* Lachman Singh v. State, (1952) SCR 839 (India).]

[10* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[11* The Code of Criminal Procedure, Section 162 (1898).]

From the above position it is clear that the accused should be in police custody which is the constructive custody and in no way does it allow the accused to be outside the police custody. So the “,” in Section 27^[12*] should be omitted and “and” should be inserted that is “a person accused of any offence and in the custody of a police officer”. This would lead to clarity with both of these being essential for Section 27^[13*] to act as an exception to the general rule. Also this was the legislative intent as before the enactment of this section under the Indian Evidence Act, these provisions were present in the then Section 149 of the Code of criminal procedure code and which included “or” and which was removed in the year 1872 and changed it to “,”.

[12* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[13* Ibid.]

The second question is concerning the admissibility of this section as being violative of Article 20(3)^[14*]. This position was clarified by a twofold test given in the case of State of Bombay v. Kathi Kalu Oghad^[15*] which also held that the discovery is not self-incriminatory if it is not given under any threat. The test was as follows –

1) The testimony does not tend to incriminate the accused

2) Does this testimony make the accused at least probable for committing the crime

[14* Indian Constitution, Article 20, Clause 3.]

[15* State of Bombay v. Kathi Kalu Oghad (1962) 3 SCR 10 (India).]

This position was reiterated in Selvi v. State of Karnataka^[16*] which added two more tests to protect the rights of the accused. These are as follows-

1) The extent to which the accused was compelled.

2) Exercise of Judicial discretion concerning the unfair operation principle.

[16* Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).]

After these tests it is clear that Section 27^[17*] is not violative of Article 20(3) of the Constitution^[18*].

[17* Section 27, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).]

[18* Indian Constitution, Article 20, Clause 3.]

Section 26^[19*] of the act talks about the accused’s confessions not being admissible under police officer in the police custody. Thereby restricting its scope to just the police custody which was expanded to constructive custody as mentioned above. Whereas Section 25^[20*] talks about general confessions under the police whose ambit is wider and includes confessions made outside the police custody. Now what section 27^[21*] does is it talks about the exception to the general rule of admissibility of confessions under a police officer by the accused by providing certain requirements that need to be perused. That is why the language of the section starts with the word provided. Since the section is an exception there is vagueness and a grey area concerning which particular provision this exception applies to. It is essential for the accused to be in police custody for this exception to take place. Therefore the second amendment that I propose is that this provision is an exception to only Section 26^[22*] and this should be added as an exception to this provision. This position was also held in Udai Bhan v. State of U.P.^[23*] where they held that “Section 27 is nature of proviso to Section 26”^[24*].

[19* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[20* Section 25, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[21* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[22* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[23* Udai Bhan v. State of U.P., (1962) 2 Cri LJ 251 (India).]

[24* Ibid.]

I am also in favour of the 185th Law commission report^[25*] to the extent that it strikes down the 152nd law commission report’s view to completely repeal Section 27 as all confessions to police to be excluded. Also, it rejects the 69th report’s claim as to Section 27 being the exception to Section 24 as it includes confessions by ” threat, inducement and promise”. This would lead to the use of third-degree torture methods. Also I do not agree with the recommendations of adding “or” to the provision so that it becomes an exception to both Section 26 and Section 27 as although by expanding the scope of police custody by using constructive custody the courts have said that Section 27 would not extend to recovery being outside the police custody.

[25* 185th Law Commission Report, Government of India, Part II http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf.]

So the changes I am proposing is Section 27 be repealed and added to Section 26 with one amendment which as follows-

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence and in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”