Section 303 of Indian Penal Code, 1860 – Explained!
The provision does not give any discretion to the Court in the matter of passing a sentence against a life-convict which has to be a sentence of death only. The provision shows that the framers of the Indian Penal Code intended to treat the murders committed by an ordinary person and those by a lifer differently.
Whereas in the former case the court is empowered to award either life imprisonment or a death sentence, the same discretion, to be exercised judicially, is not available while the court has to pass a sentence against a life-convict who has been held guilty of murder.
Being under sentence of imprisonment for life
The question of interpretation of the words ‘being under sentence of imprisonment for life’ was involved in the case of Shaik Abdul Azees v. State, where the Supreme Court held that where the appellant, sentenced to imprisonment for life for murder, is later released by the State Government by conditional remission of the sentence under section 401, Code of Criminal Procedure, 1898 (section 432, Code of Criminal Procedure, 1973), the appellant does not continue to be under sentence of imprisonment for life for section 303, and if he commits murder during remission period and thus contravenes the condition of remission, section 303 is not attracted and the court is not obliged under this section to impose a sentence of death.
It was further explained that an accused could not be under a sentence of imprisonment for life at the time of commission of the second murder unless he was actually undergoing such a sentence or there was legally extant a judicial final sentence which he was bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401, Code of Criminal Procedure, 1898 (section 432, Code of Criminal Procedure, 1973). Section 303 of the Indian Penal Code is applicable only to an accused, who on the date of commission of the second offence of murder, had earlier committed an offence for which his conviction and sentence of imprisonment for life were beyond judicial controversy and were operative.
A person must be actually and irrevocably a life beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with penalty of death under section 303. For the purpose of section 303 there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life.
The basis of the decision is that an accused to be punishable under a law must be proved to be so within the letter of the law, and if his case is not covered within the plain meaning of the words and more than one reasonable constructions of the enactment are possible, that which favours him shall be accepted.
The section is applicable only when a lifer commits murder. Consequently, where a life-convict is held guilty of culpable homicide not amounting to murder, this section is not attracted because even though he has caused death he has not committed murder. It has been held by the Supreme Court that the section applies not only in cases where an accused is guilty of the offence of murder simpliciter but also in cases of his constructive or joint guilt of murder under provisions like section 302 read with section 34 or section 149 of the Code.
Constitutionality of section 303
The question of unconstitutionality of section 303 was raised in Mithu v. State, on the ground that it is violative of Articles 14 and 21 of the Constitution. Chief Justice Chandrachud, who delivered the judgment on behalf of four of the judges including himself, held that section 303 violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 that no person shall be deprived of his life or personal liberty except according to procedure established by law.
The learned judge observed that the section was originally conceived to discourage assaults by life-convicts on the prison staff, but the legislature chose a language which far exceeds its intention. The action also assumes that life convicts are a dangerous breed of humanity as a class. The assumption is not supported by any scientific data. Justice Chinnappa Reddy, who gave a separate but concurring judgment, observed that section 303 particularly offends Article 21 and the new jurisprudence which has sprung around it ever since the Banks Nationalisation case freed it from the confines of Gopalan. Section 303 excludes judicial discretion.
The scales of justice are removed from the hands of the judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irresistible is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive.
In view of the above decision, all murder convicts, whether ordinary or life are to be punished only under section 302 of the Code now for which there is always a judicial discretion available to choose between imprisonment for life and sentence of death.
Before section 303 was declared unconstitutional it was a cognizable, non-bailable and non-compoundable offence which was triable by court of session.