<NAME>, Member (J)

1.This a revision petition filed before <ORG> which on transfer is being treated as an appeal.

2. The appellant has manufactured at his site at Chibramau Cold Storage, Farrukhabad, diffusers and condensers which are parts of refrigerating and air-conditioning machinery. The appellants did not pay duty for their products. The fact was discovered by the authorities on an inspection of the appellants' Cold Storage on 24-3-1976. The party had manufactured three diffusers each of 2500' length of 1" diametre pipe, three condensers each of 12 pipes of 20" X 2" diameter, and 5 condensers each of 12 pipes of 20" length x 2" diameter. These items had been installed in their cold storage as parts of refrigerating and air-conditioning machinery. A show cause notice was issued demanding duty besides imposition of penalty. The appellants contended that the parts did not attract duty under Tariff Item No. 29A(3). The appellants were only arranging the pipes and diffusers in a zig-zag way and that the parts did not form part of refrigerating and air-conditioning machinery. He also relied on the judgment of <ORG> <CITATION> (1980 E.L.T. 600) in support of his contentions, The Assistant Collector upheld the demand for duty and imposed a penalty of Rs. 250/- for contravention of the provisions of the Act. The appellant preferred an appeal and the Appellate Collector upheld the order of lower authority and rejected the appeal.

3. <NAME>, Advocate for the appellants, argued that the appellants were not manufacturing or offering for sale parts of any refrigerating and air-conditioning machinery and were therefore not liable to pay duty. In support of his arguments, he relied on a judgment of <ORG> in Messrs <NAME>, <NAME> v. <ORG> <NAME> and Ors. (reported as <ORG> in 1980 E.L.T. p. 600).

4. <NAME>, the <ORG>, argued that the parts manufactured were condensers and diffusers which would amount to parts of air-conditioning and refrigerating machinery. He also submitted that the appellants had removed the goods without any intimation to the authorities or filing the necessary classification lists. In other words, he pointed out that the provisions of Rule 9 with Rule 49 of the Central Excise Rules, 1944 would be attracted. Even if the goods were captively utilised by the appellants, they would be dutiable. On the question of applicability of the Tariff Item 29(A)(3), he pointed out that the latest ruling of <ORG> reported in the 1984 E.L.T. p. 333 ( <CITATION> .) supported the view of the department, that cooling coils and condensers would squarely fall within the description of Item 29(AX3) of the Central Excise Tariff. He emphasised that this judgment has considered various citations including the ruling of the Hon'ble <ORG>, and being the latest decision should be applicable to the present facts. He also cited the case decided by <ORG> in the matter of <CITATION> .

5. We have considered all the relevant arguments advanced by the party in order to come to careful consideration of the respective submissions. On the question of excisability of the product, the latest pronouncement of <ORG> in 1984 E.L.T. 333 is against the appellants. The Hon'ble Gujarat High Court after noting and dissenting from the <ORG> judgment and its own earlier decision has held that the parts of refrigerating and air-conditioning appliances and machinery would attract duty under Item 29A(3).

6. In this connection, it is also pointed out by <NAME> that a special leave petition against the decision of Hon'ble Allahabad High Court in <ORG> has been admitted by <ORG>. We also find that after rendering of the decision of the Hon'ble Allahabad High Court, Rule 9 and Rule 49 of the Central Excise Rules have been amended by the Notification of the Government of India in the Ministry of Finance (<ORG>) G.S.R. 74(E), dated 20-2-1982. In view of the change in the circumstances and in view of the reasoning set out in the latest judgment, we are inclined to support and follow the reasoning set out in 1984 E.L.T. 333. The learned counsel for the appellants argued that the appellants' factory is situated within the jurisdiction of the Hon'ble Allahabad High Court and that the decision of <ORG> should not be applied to their factory. He also filed written statements on 22-3-1984 stating that the <ORG> has to follow the ruling of <ORG> in the territory of which the cause of action has arisen in preference to the rulings of other <ORG> on the same point.

7. We have given our anxious thought on these arguments. The rulings cited by the learned counsel for the appellants in his written submission of 1976 AIR Andhra Pradesh-p. 84 ( <CITATION> .) and 1973 1 <ORG> Cases 446 ( <CITATION> ) have no application there in the cause of action wholly or part arose within the jurisdiction of the respective <ORG> exercising jurisdiction. As already observed, the issue involved is one relating to rate of duty and value of the goods for the purpose of assessment. Further, we have already pointed out the circumstances which lead us to apply the ratio of the latest decision. Hence we are unable to accept the contentions of the learned counsel for the appellants.

8. Even considering the matter on the basis of Tariff Entry, the petitioner's contentions cannot be approved. Tariff 29A reads as follows :

"29A. Refrigerating and Air-conditioring appliances and Machinery, all sorts, and parts thereof :

1. Refrigerators and other refrigerating appliances which 20% ad are ordinarily sold or offered for sale as ready assemb- valorem. led units, such as ice makers, bottle coolers, display cabinets and water coolers.

2. Air-conditioners and other air-conditioning appliances, 20% ad which are ordinarily sold or offered for sale as ready valorem. assembled units, including package type air-conditioners and evaporative type of coolers.

3. Parts of refrigerating and air-conditioning appliances 30% ad and machinery, all sorts. valorem.

Item 3 contemplates parts of refrigerating and air-conditioning appliances and macbincy. The appellants had admittedly manufactured the parts intended for refrigeration and air-conditioning appliances and has installed them in their plant. The concept of sale envisaged under Sub-clauses 1 and 2 would not be applicable in respect of Item 3. Even otherwise, Rule 9 has been amended and excisable goods manufactured in any place utilised as such should be deemed to have been removed. Admittedly, no intimation was given to the concerned authorities before the removal of the goods. The appellants cannot be heard to say that they did not manufacture any refrigerating or air-conditioning parts in the commercial sense. The mere fact that there was no sale as condensers, diffusers or compressors will not help the appellants.

9. The learned counsel for the appellants relied on the decision in Order No. B-l 10/ <CITATION> , in which this <ORG> followed the decision in <ORG> of the Hon'ble Allahabad High Court. The decision rendered by the Hon'ble Gujarat High Court in 1984 E.L.T. p. 333 cited (supra) has been reported subsequent to that decision. Even otherwise, this court is inclined to follow the later ruling. Further, on facts it is seen that the product concerned in the decision B-110/84 consisted of a secondhand air-compressor with copper tubes soldered in a zig-zag way and connected to the wooden box with a compressor by a milk vendor of small means. Though the department critically considered it as part of the refrigerating machinery, this <ORG>, on a considerntion of all the facts placed, upheld the case of the assessee. That decision does not apply to the present facts where the appellants have manufactured diffusers and condensers. Mr. <NAME> also urged that the amendment of Rule 9 retrospectively would be invalid. He placed reliance on AIR 1970 S.C. p. 1950. But as rightly pointed out by <NAME>, the amendment of Rule 9 and Rule 49 were approved by <ORG>. The retrospective effect of the amendment was pursuant to the Finance Bill of 1982. The <ORG> being the rule making authority has unrestricted powers to emend the Rule.

10 The removal was without any information to the department and hence the infringement of Rule 9 has been made out. The show cause notice has been issued on 4-7-1976 prior to the amendment of Rule 10. The restricted shorter period of limitation of six months would not apply.

11 Though the appellants have contravened the provisions of the statute, the circumstances under which the contravention took place, especially in view of the unsettled state of affairs with conflicting decisions should be adverted to This situation definitely calls for interference in respect of the personal penalty Hence while confirming the demand for duty. the penalty imposed is set aside. The order of the lower authorities is modified accordingly and the appeal is allowed in part.


JUDGMENT <NAME>, J.

1. The respondent <NAME> was successful in the U.P. Civil Service (Executive) Competition held in 1940. He joined the service on June 20, 1940. Thereafter he was confirmed in due course. After serving in some districts in U.P. he was posted to Lakbimpur Kheri in July, 1944. He joined there as S.D.O. on July 20, 1944. On the basis of a report submitted by his Deputy Commissioner on August 20, 1944, the Government placed him under suspension on August 23, 1944. Mr. <NAME>, the Commissioner, Lucknow Division was appointed as the enquiry officer to enquire into the allegations made against the respondent. He framed the following four charges against him.

(1) That on or about August 15, 1944, one Mst. <NAME> was presented before you in Court by the police under a warrant under Section 100, Cr.P.C . You did not decide the case on the 15th August but postponed it to the 19th August 1944 making over the girl to the custody of one <NAME>. On 17th of August you sent for Mst. <NAME> from the house of <NAME> at about 7 p.m. through your orderly <NAME> and detained the girl at your house for immoral purposes. Next morning the girl expressed desire to go with her father who came to receive her at your house but you did not allow her to do so and again sent back the girl to the house of <NAME>.

(2) That on or about August 10, 1944, the police, on the complaint of one <NAME> produced before you one Mst. <NAME> for whose arrest you had issued a warrant under Section 100 , Cr.P.C . You directed Mst. <NAME> and <NAME> to be escorted to your house by your orderly <NAME>. You sent away <NAME> and detained Mst. <NAME> alone at your house for about two hours evidently to use her for immoral purposes.

(3) That sometime in the last week of July, 1944, a girl named <NAME> was produced before you under a warrant of arrest issued by you under Section 100 , Cr.P.C . but you asked the parties to present the girl after court hours at your house. When the girl was brought to your house you asked the people accompanying her to stay outside and took the girl alone inside your house under the I pretext of recording her statement and detained her there for two hours evidently to use her for immoral purposes.

(4) That in all these three cases you conducted yourself in a manner unbe coming of an officer of the <ORG> and, therefore, you are asked to show cause why you should not be dismissed from service.

2. These charges were duly served on the respondent. Thereafter Mr. <NAME> held an enquiry on the basis of those charges in the presence of the respondent He came to the conclusion that the respondent was guilty of all the charges though he found that there is no positive evidence of any immoral act on bis part The Government accepted those findings and after obtaining the concurrence of <ORG> dismissed the respondent.

3. The respondent thereupon filed a suit on December 4, 1948, challenging on various grounds, the validity of the order dismissing him. The learned Judge who tried the suit set aside the order of dismissal on the sole ground that a second show cause notice as required by Section 240 of the Government of India Act, 1935 had not been given. This decision was upheld in appeal both by <ORG> as well as by this Court. In its judgment, <ORG> had observed that it was open to the Government to continue the second stage of the enquiry in accordance with law. On April 12, 1949, the Government set aside the order of dismissal made by it on November 25, 1944. At about the same time it issued a notice to the respondent calling upon him to show cause why he should not be dismissed from service on the basis of the findings reached by the enquiry Officer. By that notice he was required to show cause against the proposed punishment by May 31, 1949. That notice was served on the appellant on April 30, 1949. On receipt of that notice, the respondent wrote to the Government requesting that he may be allowed time upto July 31, 1949 to show cause against the proposed punishment. But the Government granted him time only upto June 25, 1949. He was told that no further time will be given to him and if he failed to show cause by that time, it will be deemed that he has no cause to show. Despite this warning, the respondent did not show cause against the proposed punishment. On the other hand he challenged the Government's right to call upon him to show cause against the proposed punishment as he proposed to file an appeal against the order of <ORG> in so far as that Court did not-uphold his contention that the enquiry held by Mr. <NAME> was wholly vitiated. Thereafter the Government proceeded ex parte. It accepted the report of the enquiry officer, came to a tentative conclusion that the respondent should be dismissed; it consulted <ORG> afresh and dismissed the appellant by its order dated August 30 1949. That order reads thus:

Government of <ORG>.

Notification Dated Lucknow, August 30, 1949 With effect from August 30, 1949, <NAME>, Deputy Collector, under suspension is dismissed from service.

Sd/-

<NAME> Chief Secretary.

As a result of the aforementioned order another round of litigation started which has culminated in this appeal. The respondent challenged the impugned order in Civil Suit No. 14 of 1953 in <ORG>, Allahabad on various grounds. The plaint filed by him is prolific. That plaint as amended covers twenty closely printed pages. Most of the grounds taken in the plaint are irrelevant and have no bearing on the issues arising for decision. Several of the grounds alleged against the preliminary enquiry held by the Deputy Commissioner as well as the formal enquiry held by Mr. <NAME> are petty and deserve no serious consideration.

4. It is unfortunate that the trial court did not bear in mind the scope of a suit challenging the validity of a departmental enquiry held against a government servant. That court does not appear to have borne in mind that a member of <ORG> in India prior to January 26, 1950 held office during the pleasure of the <ORG> and that the only safeguard he had was the procedural safeguard guaranteed under Sub-section (2) of Section 240 of the Government of India Act, 1935. A perusal of the judgment of the trial court shows that that court constituted itself as an appellate court over the enquiry officer. It admitted evidence to show that the findings reached by the enquiry officer are incorrect. It took upon itself the responsibility of reassessing the evidence relating to those charges. On the basis of the evidence adduced before it, it came to the conclusion that the enquiry officer's findings as regards charges Nos. 2 and 3 are not sustainable but on charge No. 1, it accepted the finding of the enquiry Officer. On that charge, it observed that "There is no doubt that this was a most improper conduct of the plaintiff and this was not the way how a Deputy Collector is expected to function." It found that the girl <NAME> was sent for from the house of <NAME> by the respondent through bis orderly <NAME> on the 17th of August, 1944; she came to his house at about 8-30 p. m. he asked the girl whether she had her menses and about the time when her hairs had begum to grow. It also found that the girl remained in the Magistrate's house for the whole of the night and that she slept in the night at a distance of two ft. from the cot in which the respondent slept that night. Admittedly there was no other female member in the house of the respondent that night. It may be noted that these findings were reached primarily on the basis of the admissions made by the respondent.

5. The trial court came to the conclusion that there were no serious irregularities in the conduct of the enquiry. It held that even though there were technical breaches of some of the rules, in its opinion, those breaches were not sub stantial. It further held that specific charges had been served on the respondent; he had been given reasonable time to file his written statement; the oral enquiry was held in his presence and that he was heard in person. It also held that the enquiry officer had given reasonable opportunity to the respondent to cross-examine the witnesses. In conclusion it observed "my clear opinion, therefore, is that there has been no breach of Rule 55 as contended to by the plaintiff. The procedure laid down in Rule 55 has been substantially adhered to and Mr. <NAME> was also conscious of this fact all the time."

6. The trial court rejected the contention of the respondent that he had not been given reasonable opportunity to show cause against the proposed punishment Rejecting the contention of the respondent that the impugned order is not valid as the same was not made in the name of Governor, the trial court observed that the order was made in the name of the Government. It was made after obtaining the approval of the Premier and with the concurrence of <ORG>; hence that order is substantially in accordance with law. In the result it dismissed the respondent's suit with costs.

7. <ORG> reversed the decree of the trial court on the following grounds:

(1) The respondent was appointed by the Governor and therefore he could not have been dismissed by the Chief Secretary, an authority subordinate to the Governor;

(2) The order of dismissal did not con form to the requirements of law as the same was not made in the name of Governor as required by Section 59 of the Government of India Act, 1935;

(3) The Premier had not agreed to the dismissal of the respondent. He had only agreed to accept the findings of the enquiry officer and to refer the matter to <ORG>. Dealing with that aspect of the case, this is what the Court observed;

After perusal of the file pertaining to the dismissal of the plaintiff in the year 1949, we are satisfied that it does not contain any material to show that the order of dismissal of the year 1949 was passed by the Premier himself or that the Premier had applied his mind to the question, and had felt satisfied in the matter. The file contains an office report. It was pointed out in that report that although notice to show cause against the proposed punishment had been issued to the plaintiff, he did not file any reply to the same. It was said that the plaintiff did not show cause against the aforesaid notice, because according to the plaintiff he had filed an appeal in this Court from the decision in Suit No. 1 of 1948 and that no cause could be shown until that appeal has been decided. The office report also said that notice of the appeal had not been received by the <ORG> till then. The time given to the plaintiff to show cause had expired and as the plaintiff did not place any fresh material before the authorities, his case should be decided on the basis of the old enquiry and materials that were already before the <ORG> authorities, and that it was also said that on the basis of those materials, the Government should be asked to order that the plaintiff be dismissed from service. It was also proposed that as the matter had once been sent to <ORG> at an earlier stage, the matter be again sent to <ORG>. The aforesaid report was placed before the Hon'ble Premier and the Hon'ble Premier wrote on that report 'agree'.

X X X X X In fact we are of the view that the word "agree, used by the Premier does not imply that he agreed to the dismissal of the plaintiff. Read in the context of the report, the only conclusion that can be arrived at is that the Hon'ble Premier had agreed only to the proposal that the case of the plaintiff be decided on the basis of the old materials and that the matter be referred to <ORG>. We are, therefore, of the view that even those documents which were contained in the Government file, do not go to establish that the order of dismissal was passed by the Premier or that it was issued after the Premier had applied his mind to the facts of the case and after he had felt satisfied about the same." and (4) That the enquiry held by Mr. <NAME> is vitiated for the following reasons:

(i) That the enquiry officer had not given any finding on the 4th charge:

(ii) That there is no proof to show that Mr. <NAME> had been appointed to enquire into the charges by the competent authority or the second show cause notice had been issued by the competent authority;

(iii) That the respondent had not been supplied with a copy of the report of Mr. <NAME> before he was called upon to show cause against the proposed punishment; and

(iv) That the enquiry officer did not allow the respondent to cross-examine <NAME> in respect of some portion of his evidence.

8. We are in agreement with the trial court that the first charge leveled against the respondent is conclusively established.In respect of that charge apart from any other evidence, we have the admissions made by the respondent himself in his written statement filed in reply to the charges leveled against him. Therein he admitted that the girl was produced before him in his court by the police on August 15, 1944 after arresting her on the strength of the warrant issued by him under Section 100 , Cr.P.C . When he examined her in court, the girl stated that she was 20 years' old but yet he would not release her as according to him, from her appearance he concluded that she was not more than 17 years; therefore he entrusted her to the charge of <NAME> and posted the case to the 19th of that month but on the 17th at about 6 p. m. he sent his orderly <NAME> to get the girl to his house and the girl was brought to his house at about 8-30 p. m. He further stated that in order to question her, he took the girl inside his house on the open roof at about 9-30 p. m.; there he asked her whether she had her menses; he went on questioning her till about 10 or 10-15 p.m.; thereafter as the girl was afraid to go to the house of <NAME>, she remained in his house for the night Proceeding further he stated she slept on the ground on open roof. I also slept there. So did my servant. I had no women-folk in the household there. In the morning as soon as <NAME> came I asked him to take the girl wherever she liked to go". On his own admissions, it is seen that a young girl who had been brought to court in execution of a warrant issued by him, was brought to his house on a night and that she remained in his house for the whole of that night and further that she slept near his cot that night. If the respondent had any genuine doubt as regards the correct age of the girl, he should have got her examined by a medical officer. The extraordinary course adopted by the respondent is not capable of any innocent explanation. Even if we brush aside all Other evidence in the case, on the basis of the respondent's own admissions the only reasonable conclusion any responsible person would have come to is that (he respondent is unworthy of holding any responsible post Any minor irregularity in the matter of conducting the enquiry cannot vitiate a finding which is SO obviously correct. Once it is held that the respondent was properly found guilty under Charge No. 1, it is unnecessary to go into the other charges. The gravity of the offence of the respondent under the first charge is such as to merit his dismissal from service. As observed by this Court in State of Orissa v. <NAME> that if the order of the government can be supported on any finding as to substantial misdemeanour for which the punishment imposed can be lawfully imposed, it is not for the court to consider whether that ground alone would have weighed with the authority dismissing the public servant.

9. Reasonable opportunity contemplated by Section 240 of the Government of India Act, 1935 as under Article 311(2) of the Constitution primarily consist or (I) opportunity to the concerned officer to deny his guilt and establish his innocence which means he must be told what the charges against him are and the allegations on which such charges are based; (ii) he must be given reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf and (ffi) he must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him - <CITATION> 1958 SCR 1081.

10. All these requirements have been substantially complied with in the present case. It is true that an enquiry under Section 240 of the Government of India Act, must be conducted in accordance with the principles of natural justice. But those principles are not embodied principles. What principle of natural justice should be applied in a particular case depends on the facts and circumstances of that case. All that the courts have to see is whether the non-observance of any of those principles in a given case is likely to have resulted in deflecting the course of justice. In the present case so far as the first charge is concerned, the fact that the respondent was not given full opportunity to cross-examine <NAME> could not have in the least affected the finding of the enquiry officer as it was primarily based on the admissions made by the respon dent. <ORG> was not right in its conclusion that the report of the enquiry officer had not been made available to the respondent before he was called upon to show cause against the proposed punishment A summary of that report had been given to him when he asked for it for the purpose of submitting a memorial to the Government against the order made in 1944 dismissing him from service. It is not shown that that summary did not contain all the relevant facts and circumstances taken into consideration as well as the conclusions reached by the enquiry officer and the recommendations made by him. The entire records of the enquiry were be fore the courts in proceedings commenced by the respondent in 1948 and quite clearly it would have included the report of the enquiry officer. Further it was open to the respondent to ask for a copy of that report when he was asked in 1949 to show cause against the proposal to dismiss him. He did not do so nor did he object to the notice calling upon him to show cause why he should not be dismissed, on the ground that he had not been supplied with a copy of the report made by the enquiry officer. The learned judges of <ORG> were wholly wrong in holding that there was no proof to show that Mr. <NAME> had been appointed to enquire into the allegations. No such plea had been taken in the plaint There is a presumption that official acts had been done according to law.

11. In this Court, the respondent who argued' his own case contended that the enquiry was vitiated because the enquiry officer had relied on the statements given by some of the witnesses behind his back; that he had not been given the true copies of the statements of the witnesses recorded by the Deputy Commissioner; that the translations of those statements given to him were full of mistakes and that Mr. <NAME> was biased against him.

12. This Court has repeatedly laid down that the fact that the statements of the witnesses taken at the preliminary stage of the enquiry were used at the time of the formal enquiry does not vitiate the enquiry if those statements were made available to the delinquent officer and he was given opportunity to cross-examine the witnesses in respect of those statements-see State of Mysore v. <NAME> . It is clear from the records of the case that the respondent had been permitted to go through the statements recorded from the witnesses by the Deputy Commissioner and prepare his own notes; he was supplied with the English translations of those statements and that he was permitted to cross-examine those witnesses in respect of those statements. It may be that there were some mistakes in the translations. In our opinion those mistakes could not have vitiated the enquiry. They were quite trivial mistakes. We agree with the trial court that the enquiry officer had given reasonable time to the respondent to prepare his case.

13. The allegation that Mr. <NAME> was biased against the respondent is unsubstantiated. The much too often asserted plea of the respondent that he was prosecuted for his nationalistic views and attitudes is belied by the admitted facts. That plea appears to have been put forward as a mere cloak to cover the reprehensible conduct of the respondent.

14. We are surprised that <ORG> should have held that the enquiry is vitiated because the enquiry officer did not give any finding on the fourth charge. The fourth charge is not an independent charge at all. All that it says is that if the delinquent officer is guilty of the first three charges his conduct should be held to be unbecoming of an officer of <ORG> and that he should be asked to show cause why he should not be dismissed from service. As the enquiry officer came to the conclusion that the respondent is guilty of the first three charges, it follows that he had also com(c) to the conclusion that the respondent's conduct was unbecoming of an officer of <ORG> and therefore he should be asked to show cause why he should not be dismissed from service. It is regrettable that the learned Judges of <ORG> while dealing with the ap peal ignored the substance and went after shadows.

15. The conclusion of <ORG> that the respondent was appointed by the Governor and therefore he could not have been dismissed by the Chief Secretary, an authority lower in rank than the Governor is based on no pleadings. No such allegation was made in the plaint nor any issue raised in that regard. The plaintiff did not lead any evidence to show that he had been appointed by the Governor. The contention that he was dismissed by an authority lower in rank than that appointed him was not urged before the trial court. That contention appears to have been taken for the first time in <ORG>. <ORG> should not have entertained that contention. Under Section 241 of the Government of India Act, 1935, appointments to the Civil Service and Civil Posts in connection with the affairs of a Province could have been made by the Governor or such person as he might have directed. The material on record does not afford any basis for the conclusion that the res pondent was appointed by the Governor. Therefore <ORG>, in our opinion, was wholly wrong in holding that the respondent was dismissed by an authority lower in rank than that appointed him.

16. In view of our above conclusion, it is not necessary to go into the question whether the proposal to dismiss the respondent was approved by the Premier though on the basis of the facts found by <ORG>, there is hardly any doubt that he did approve the proposal to dismiss the respondent from service.

17. This Court has repeatedly held that the provisions of Article 166(1)(2) (similar to Sub-sections (1) and (2) of Section 59 of the Government of India Act, 1935), are directory and substantial compliance with those provisions is sufficient - <CITATION> 1955 SCR 1011 and <CITATION> . In this case the impugned order was made in the name of <ORG>. It was signed by the Chief Secretary. Therefore prima facie it is a valid order. We need not go further into that question in view of our conclusion that the respondent has failed to prove that he was appointed by an authority higher in rank than the Chief Secretary of the <ORG>.

18. For reasons mentioned above this appeal is allowed, the judgment and decree of <ORG> are set aside and the decree of the trial <ORG> restored. The respondent shall pay costs of the appellant both in this <ORG> and in <ORG>. The respondent brought the suit from which this appeal arises in forma pauperis. Hence he is liable to pay the <ORG>-fees payable on the suit claim.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF U. P. DATE OF JUDGMENT03/10/1972 BENCH: <NAME>, D.G. BENCH: <NAME>, D.G. SIKRI, S.M. RAY, A.N. DUA, I.D. BEG, M. HAMEEDULLAH CITATION: 1973 AIR 947 1973 SCR (2) 541 1973 SCC (1) 20 CITATOR INFO : E 1974 SC 799 (13,22) D 1974 SC1039 (7,16) RF 1974 SC1999 (12) F 1974 SC2281 (4) F 1977 SC 608 (9) RF 1977 SC1926 (14) F 1978 SC 771 (23) RF 1978 SC1675 (241) E 1979 SC 916 (3,5,6,11,15,124) R 1979 SC1384 (26) R 1980 SC 898 (5,6,8,11,70,71,73,80,150,152, MV 1982 SC1325 (2) R 1983 SC 473 (16) RF 1983 SC1155 (3) F 1992 SC 395 (4,5) ACT: Indian Penal Code S. 302- -Validity--Provision for sentence of death whether violative of freedoms under Art. 19 Constitution of India--Whether suffers from excessive delegation--Whether violative of Art. 14 - Whether deprives accused of his life without any "procedure established by law" within meaning of Art 21. HEADNOTE: The sentence of death for an offence under S. 302 of the Indian Penal Code imposed on the appellant by the Sessions Judge and confirmed by he <ORG> was challenged in appeal by special leave in this Court on the following grounds : (i) that the death sentence puts an end to all fundamental rights guaranteed under clauses (a) to (g) of sub-clause (ii) of Art. 19 of the Constitution and therefore the law with regard to capital sentence is unreasonable and not in the interest of the general public; (ii) that the discretion invested in the Judges to Impose capital punishment is not based on any standards or policy required by the <ORG> for imposing capital punishment in preference to imprisonment for life; (iii) that the un- controlled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by Art. 14 of the Constitution (iv) that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life, and therefore Art. 21 is violated. Dismissing the appeal, HELD : (i) Articles 72(1)(c), and 134 of the Constitution and entries 1 and 2 in List III of the Seventh Schedule to the Constitution show that the Constitution makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve, and the like. But, more important than these pro, visions in the Constitution is Art 21, which. provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law. In the face of these indications of constitutional postulates, it will be very difficult to hold that capital sentence was regarded per se as unreasonable or not in the public interest. In the context of our Criminal law, which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. Proposals for its abolition have not been accepted by <ORG>. In this state of affairs, it cannot be said that capital punishment, as such, is either unreasonable or not in public interest. [549C-F; 552B] (ii) In India, the onerous duty of passing the death sentence is cast on Judges, and, for more than a century judges have been carrying out this duty under the Indian Penal Code . The impossibility of laying down standards is at the very core of the Criminal law as administered in India' which invests the judges with a very wide discretion in the 542 matter of fixing the degree of punishment. That discretion in the matter of sentence is liable to be corrected by superior Courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. [559B] (iii) Crime as crime may appear to be superficially the same, but the facts and circumstances of- a crime are widely different, and, since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances, there is hardly any ground. for a challenge under Art. 14. [559G] (iv) The accused in a trial for murder has opportunities at various stages of the trial to bring on record facts and circumstances that would justify, on conviction, the lesser penalty of life imprisonment. There is also nothing in the Criminal Procedure Code which prevents additional evidence being taken. It is, however, not the experience of criminal courts in India that the accused with a view to obtaining a reduced sentence, ever offers to call additional evidence. [561B] It is necessary to emphasize that the court is principally concerned with facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C . The trial does not come to an end unlit all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what, section 306(2) and 309(2) . purport to provide for. These provisions are part of the procedure established by law, and, unless it is shown that they are invalid for any other reason, they must be regarded as valid. No reasons were offered to show that they are constitutionally- invalid, and hence, the death sentence imposed after trial in accordance with the procedure established. by law is not unconstitutional under Art. 21. [561C] <CITATION> . 1971 S.C. 757, <CITATION>  S.C.R. 597, Furman v. State of Georgia, (Nos. 69-5003, 69-5030 and 69-5031 decided on June 29, 1972), <ORG> v. <NAME>, Crl. Law Journal 475, <NAME> v. California, <ORG>, 28, 713 and <NAME> and others v. The State Bihar,  S.C.R. 1045, referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 173 of 1971.

Appeal, by special leave from the judgment and order dated February 26, 1971 of <ORG> at Allahabad in Criminal Appeal No. 1229 of 1970 and Reference No. 96 of 1970.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the appellant.

<NAME> for the respondent.

<NAME> and <NAME> for the State of Tamil Nadu.

<NAME> and <NAME> for the State of Mysore., <NAME>, Additional Solicitor General of India, <NAME> and <NAME> for the Attorney General. <NAME> and <NAME> for the Advocate General, Himachal Pradesh.

<NAME> for intervener (<NAME>). <NAME> and <NAME> for Interveners (<NAME> and <NAME>).

The Judgment of the Court was delivered by <NAME>, J. The appellant <NAME> has been convinced under section 302-IPC for the murder of one <NAME> and sentenced to death by the learned Sessions Judge, Shahjahanpur. The conviction and the sentence are confirmed by <ORG>. on the appellant coming to this Court by special leave, special leave was granted limited to the question of sentence only.

The short facts of the case are that some six or seven years before the present offence, one <NAME>, father of <NAME>, a cousin of the appellant, was murdered. The deceased <NAME> was charged for that murder but was eventually acquitted by <ORG>. As a result of that murder, there was ill-feeling between <NAME>, on the one hand, and the appellant and <NAME>, on the other. Both of them were minors at the time of the murder of <NAME>. But by now they had grown up and it is plain from the evidence that <NAME>'s murder was the result of this ill-feeling. <NAME> was murdered on September 10, 1969 at about 5.00 P.M. A day earlier, there was a quarrel between <NAME> and <NAME>, on the one hand, and <NAME>, on the other, on the question of a right to irrigate their fields. However, the dispute was settled by persons who reached the spot at the time and nothing untoward happened. Next day, however, the appellant armed with a country made pistol and <NAME> armed with a lathi concealed themselves in a bajra field and emerged from the same as <NAME> passed by to go to his field for fetching fodder. The appellant asked <NAME> to stop so that the matter between them could be settled once for all. Naturally <NAME> tried to run away but he was chased by the appellant and shot in the back. <NAME> fell down after running some distance and died. That is how the murder was committed. On the facts and circumstances of the case, the learned Ses- sions Judge held that the appellant deserved the extreme penalty. <ORG>, while confirming the death sentence, observed that there were no extenuating circumstances and the sentence of death awarded to the appellant was just and proper. The question is whether this Court should interfere with the sentence.

Under section 367(5) of the Criminal Procedure Code as it stood before its amendment by Act 26 of 1955 the normal rule was to sentence the accused to death on a conviction for murder and to impose the lesser sentence of imprisonment for life for reasons to be recorded in writing. That provision is now deleted and it is left to the judicial discretion of the court whether the death sentence or the lesser sentence should be imposed. That discretion has been exercised concurrently by <ORG> and <ORG> and the question is whether there are sufficient reasons for this court to interfere with that discretion. As pointed out by this Court in <CITATION> .(1) this Court normally does not interfere with the discretion exercised by <ORG> on the question of sentence un- less <ORG> has disregarded recognised principles in imposing the sentence and there has been a failure of justice. It. cannot be said on the facts of this case that there has been any breach of the principles governing the matter of sentence. The appellant had armed himself with a gun and was lying in wait for the victim to pass. There was no immediate cause. The murder was entirely motivated by ill-feelings nurtured for years. The offence was pre- meditated. On seeing the appellant, <NAME> started running away, but he was chased and done to death. In these circumstances, it can hardly be said that <ORG> did not exercise its discretion properly. We are, therefore, not inclined to interfere with the sentence imposed by <ORG>.

Mr. <NAME> appearing on behalf of the appellant however, raised the question of constitutional impermissibility of the death sentence for murder, and we have to deal with the question at some length. In the first place he contended, the death sentence puts an end to all fundamental rights guaranteed under clauses (a) to (g) of sub-clause (1) of Article 19 and, therefore, the law with regard to capital sentence is unreasonable and not in the interest of the general public. Secondly,, he contended, the discretion invested in the Judges to impose capital punishment is not based on any standards or policy required by the <ORG> for imposing capital punishment in preference to imprisonment for, life. In his submission, this was a stark abdication of essentials legislative function, and, therefore, section 302-IPC is vitiated by the vice of excessive delegation of essential legislative function. Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution. because two persons found guilty of murder on similar facts are liable to be treated differently--one forfeiting his life and the other suffering merely a sentence of life imprisonment. Lastly it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the Constitution was violated and hence for that reason also the sentence of death is unconstitutional.

The first submission is based on the provisions of Article 19 of the Constitution. That Article does not directly deal with the freedom to live. It deals with 7 freedoms like freedom of speech ,and expression, freedom to assemble peaceably and without arms etc., but not directly with the freedom to live. It is, however, contended that freedom to live is basic to all the several freedoms and since the enjoyment of those seven freedoms is impossible without conceding freedom to live, the latter cannot be denied by any land unless such law is reasonable and is required in general public interest. It was, therefore, contended that, unless it was shown that the sentence 'of death for murder passed the test of reasonableness and general public interest, it would not be a valid law.

We will assume for the purposes of the present argument that the right to live is basic to the freedoms mentioned in Article 19 and that no law can deprive the life of a citizen unless it is reasonable and in the public interest. The question, therefore, for our consideration is whether the law, namely, section 302-IPC which prescribes the sentence of death for murder passes the above test.

In this connection it would be proper to recall the observations of <NAME>, CJ in <CITATION> (1) at page 607 : "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard. or- general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed. the extent and urgency of the evil sought to be remedied thereby. the disproportion of the imposition, the prevailing conditions at the time. should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it (1)  S.C.R. 597.

is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." The responsibility of Judges in that reject is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint. The arguments advanced by Mr. <NAME> against death penalty per se were practically similar to those which were addressed recently to <ORG> in the case of <NAME> v. State of Georgia (Nos. 69-5003, 619-5030 and 69- 5031 decided on June 29, 1972) and obtained the assent of two Judges, Mr. Justice <NAME> and Mr. Justice <NAME>. In that case the Judges were invited to reject capital punishment on the ground that it violated the Eighth Amendment which forbade "cruel and unusual punishments". <NAME>, <NAME> accepted the validity of the challenge in these words :

"If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary justice and if there is no reason to believe that it serves any judicial purpose more effectively than some less severe punishment, then the due infliction of that punishment violates the command of the clause that the <ORG> may not inflict inhuman and uncivilized punishments upon those convicted of crimes."

<NAME>, <NAME> observed as follows "There is but one conclusion that can be drawn from all of this-i.e., the death penalty is an excessive and unnecessary, punishment which violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but, it is persuasive. It is not improper at this point to take judicial notice of the fact that for more than 200 years men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally as well. And they have done so with great success. Little if any evidence had been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the constitution. We know that at some point the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that Judges can determine not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment."

In another place he observed "I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional."

The arguments advanced by Mr. <NAME> were intended to persuade us to come to the above conclusion on the abstract question as to whether death penalty for murder was constitutionally permissible.

It is, however, to be noted in the above case of <NAME> v. State of Georgia that though the learned Judges by a majority of 5 to 4 set aside the sentences of death with which they were concerned, it was only <NAME> and <NAME>, <NAME>. who were prepared to outlaw capital punishment on the ground that it was an anachronism, degrading to human dignity and unnecessary in modern life. The other three Judges namely Mr. Justice <NAME>, Mr. Justice <NAME> and Mr. Justice <NAME> who formed the majority along with <NAME> and <NAME>, <NAME>. did not take the view that the Eighth Amendment prohibited capital punishment for all crimes and under all circumstances. Mr. Justice <NAME>, indeed held, that the death penalty contravened the Eighth Amendment. But his judgment is not capable of being read as requiring the final abolition of capital punishment. Mr. Justice <NAME> and Mr. Justice <NAME> merely concluded that the death sentence before them must be set aside because prevailing sentencing practices did not comply with the Eighth Amendment. The minority of four Judges (<NAME>, <NAME>, <NAME>, <NAME> and <NAME> <NAME>s) held that death penalty did not contravene the Eighth Amendment. Mr. Justice <NAME> in reversing the death sentence was of the view that "the Eighth Amendment required legislatures to write penal laws that are even handed, nonselective, and nonarbitrary, and to require judges to see to it that gene-

ral laws are not applied sparsely, selectively, and spottily to unpopular groups." As is clear from his judgment <NAME>, J was very much exercised by the fact that the law with regard to death penalty was being enforced in a discriminatory manner the victim being mostly the poor and the despised, especially, if he was a member of a suspect or unpopular minority-obviously meaning the Negros. At the end of the judgment, however, he made it clear that he was not considering in that case whether mandatory death penalty would be constitutional if it was enforced evenhandedly and in nondiscriminatory manner. Mr. Justice <NAME> after noting that at least two of his brothers (<NAME> and <NAME>, <NAME>) had concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments stated "their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide". At a later stage he made it clear that "the constitutionality of capital punishment in the abstract is not, however, before us in these cases." Mr. Justice <NAME> started his opinion : "In joining the court's judgment, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided." It will thus be seen that although the death Sentences in that case were set aside by a majority, three out of five Judges who formed the majority did not consider it necessary to outlaw capital punishment on the social and moral considerations which prevailed upon the other two Judges namely <NAME> and <NAME>, <NAME>. In short, even when the court was presented with a wealth of evidence compiled by Sociologists and research workers in refutation of the necessity of retaining capital punishment, only two Judges out of nine could be persuaded to hold that capital punishment per se is constitutionally impermissible. So far as we are concerned in this country, we do not have, in our constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of <ORG> are accustomed to apply "the due process" clause. Indeed what is cruel and unusual may, in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a serious problem. Not a few are found to hold that life imprisonment. especially., as it is understood in U.S.A. is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right upto the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example,. , Article 72 (1) (c) provides that the President shall have power to rant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence "in all cases where the sentence is a sentence of death". Article 72(3) further provides that "Nothing in subclause (c) of clause (1) shall affect the power to suspend, remind commute a sentence of death exercisable by the Governor of a State under any law for the time being in force." The obvious reference is to sections 401 and 402 of the Criminal Procedure Code. Then again entries 1 and 2 in List III of the Seventh Schedule refer to criminal law and criminal procedure. In entry no. 1 the entry Criminal Law is extended by specifically including therein "all matters included in the Indian Penal Code at the commencement of this Constitution". All matters not only referred to offences but also punishments--one of which is the death sentence. Article 134 gives a right of appeal to <ORG> where <ORG> reverses an order of acquittal and sentences a person to death. All these provisions clearly go to show that the Constitution-makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve and the like. But more important than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law. In the face of these indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se as unreasonable or not in the public interest.

Reference was made by Mr. <NAME> to several studies made by Western scholars to show the ineffectiveness of capital punishment either as a deterrent or as appropriate retribution. There is large Volume of evidence compiled in the West by kindly social reformers and research workers to confound those who want to retain the capital punishment. The controversy is not yet ended and experiments are made by suspending the death sentence where possible in order to see its affect. On the other hand most of these studies suffer from one grave defect namely that they consider all murders as stereotypes, the result of sudden passion or the like, disregarding motivation in each individual case. A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in exe- cution. In some others where the victim is a person of high standing in the country Society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society.

We have grave doubts about the expediency of transplanting Western experience in our country. Social conditions are different and so also the general intellectual level In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a. dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have not been referred to any large scale studies of crime statistics compiled in this country with the object of estimating the need of protection of the society against murders. The only authoritative study is that of <ORG> published in 1967. It is its Thirty-Fifth Report. After collecting as much available material as possible and assessing the views expressed in the West both by abolitionists and the retentionists <ORG> has come to its conclusion at paras 262 to 264. These paragraphs are summarized by the <ORG> as follows at page 354 of the Report "The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

It is difficult to rule out the validity, of, or the strength behind, many of the arguments for abolition nor does, the <ORG> treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values. Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present 'juncture, India cannot' risk the experiment of abolition ;of capital punishment.

<NAME>

Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context.

Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

On a consideration of all the issues involved, the <ORG> is of the opinion, that capital punishment should be retained in the present state of the country."

A very responsible body has come to the above conclusion, after considering all the relevant factors. On the conclusions. thus offered to us, it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest.

In dealing with the question of reasonableness, we cannot ignore the procedural safeguards provided by the statute. An accused charged for murder is first put up before a Magistrate, who on an examination of the evidence commits him to <ORG> for trial. The accused knows at this stage what is, the evidence against him. The trial is conducted before a Sessions Judge or an Additional Sessions Judge with considerable experience in the trial of criminal cases. if the Sessions Judge, after trial, comes to the conclusion that the accused is guilty of murder and deserves to be sentenced to death, he is required under section 374 of the Criminal Procedure Code to submit to, <ORG> the proceedings before him and it is <ORG> which has to review the whole evidence and consider whether the sentence of death passed by the Sessions Judge should be confirmed. The rule under section 378 is that this review of the evidence shall be made by a bench of not less than two Judges. If the sentence of death is confirmed, the accused can in appropriate cases appeal to <ORG> by special leave. In cases where the Sessions Judge acquits the accused of murder but <ORG> in appeal sets aside the acquittal and sentences him to death, the accused is entitled under the Constitution to prefer an appeal as of right to this Court. It will be thus seen that there are inbuilt procedural safeguards against any hasty decision.

As is well known, the subject of capital punishment is a difficult and controversal subject, long and hotly debated. It has evoked strong views. In that state of affairs if the <ORG> decides to retain capital punishment for murder, it will be difficult for this <ORG> in the absence of objective evidence regarding its unreasonableness to question the wisdom and propriety of the <ORG> in retaining it. A Bill for the abolition of capital punishment was introduced in <ORG> in 1956 but the same was rejected on November 23, 1956. Similarly a resolu- tion for the abolition of capital punishment was introduced in <ORG> in 1958 but the same was withdrawn after debate. Later in 1961 a similar resolution was moved in <ORG> but the same was negatived in 1962. A resolution for its abolition was discussed in <ORG> but the same was withdrawn after discussion. All this goes to show that the representatives of the people do not welcome the prospect of abolishing capital punishment. In this state of affairs, we are not prepared to conclude that capital punishment, as such, is either unreasonable or not in the public interest.

The next contention of Mr. <NAME> was that by providing in section 302-IPC that one found guilty thereunder is liable to be punished either with death sentence or imprisonment for life, the legislature has abdicated its essential function is not providing by legislative standards in what cases the Judge should sentence the accused to death and in what cases he should sentence him only to life imprisonment. It may be noted here that prior to the Amending Act 26 of 1956, section 367(5) of the Criminal Procedure Code read as follows :

"If the accused is convicted of an offence punishable with death and the court's sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed."

By the amendment this provision is deleted and, as the Code at present stands, punishment for murder is one of the two--namely death or imprisonment for life. Neither section 302-IPC nor any other provision in the Criminal Procedure Code says in what cases the capital punishment is to be imposed and in what others the lesser punishment. It is, therefore, argued by Mr. <NAME> that the <ORG> has left this awful duty to the Judge or Judges concerned without laying down any standards to guide them in their decision. In fact he says the <ORG> has abdicated its legislative function and this delegation of its power to the Judges is vitiated by the vice of excessive delegation. We think there is no merit in this submission. In this connection we have to take note of the policy of the law with regard to crimes and their punishments. The position in England is stated by <NAME> in Laws of England, Third Edition, Volume 10 at page 486. The relevant portion of para 888 is as follows :

"DISCRETION OF COURT AS TO PUNlSHMENT In all crimes except those for which the sentence of death must be pronounced a very wide discretion in the matter of fixing the degree of punishment is allowed to the Judge who tries the case. The policy of the law is, as regards most crimes, to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit. The exercise of this discretion is a matter of prudence and not of law, but art appeal lies by the leave of the Court of Criminal Appeal against an sentence not fixed by law, and if leave is given, the sentence can be altered by that court. Minimum penalties have in some instances been prescribed by the enactment creating the offence."

The position in India is practically the same. The exception made in English Law with regard to the sentence of death does not hold good in India. The policy of our criminal law As regards all crimes, including the crime of murder, is to fix a maximum penalty-the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the Judge. In England, murder and treason were offences for which the death sentence was mandatory. If after trial the accused was found guilty by the Jury, neither the Jury nor the Judge had any discretion in the matter of sentence. The Judge had to sentence the accused to death. The sentence may be reprieved by the Home Secretary after-taking all the circumstances of the case and other matters into consideration. But that was no part of the judicial process.

Absence of any discretion with regard to the sentence raised strong criticism in England because it was recognised, as was done in many other countries, that death penalty was not the only appropriate punishment for murder. <ORG> was thereupon appointed in 1949 to consider and report whether liability under the Criminal Law in Great Britain, to suffer capital punishment for murder should be limited or modified and if so to what extent and by what means. In its report published in 1953 the <ORG> found it impossible to improve the position either by redefining murder or by dividing murder into degrees. In para 535 of the Report it pointed out that "the general liability under the existing law to suffer capital punishment for murder cannot be satisfactorily limited by such means, (i.e. re- defining murder or dividing murder into degrees) because no legal definition can cover all the multifarious considerations, relating to the offender as well as to his crime, which ought to be taken into account in deciding whether the supreme penalty should be exacted in each individual case." Ile <ORG> considered various alternatives-one of them being a provision on the lines of section 302-IPC which was pressed with great force, by Sir <NAME> a former Chief Justice of <ORG>, and later a Privy Councillor. He pressed on the <ORG> the advisability of leaving it to the Judge whether the death sentence should be imposed or the lesser sentence, adding further that this procedure had worked quite well in India for generations and there was no reluctance on the part of the Judges to assume the responsibility to pass the death sentence. The Judges in England, however unanimously refused to accept such a responsibility. The question then arose whether the responsibility for the death sentence may be given to the Jury as was done in some of the States in America. The Royal <ORG> fell in with this suggestion and ex pressed itself as follows (See para 595 of the Report).

"It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to excess. We cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action. The law itself should mitigate it. We have been forced to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees. No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience : there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the courts a discretion that in effect supersedes it. Such a discretion, if it is to be part of the legal process, and not an act of executive clemency, must be given either to the Judge or to the jury. We find that the Judges 'in this country, for reasons we respect, would be most reluctant to assume this duty. There remains the method of entrusting it to the jury. We are satisfied that as long as capital punishment is retained this is the only prac- ticable way of correcting the outstanding defects of the existing law."

In India the difficulty encountered by the <ORG> had been overcome long ago and it is accepted by the public that only the Judges shall decide the sentence. Where an error is committed in the matter of sentence the same is liable to be corrected by appeals and revisions to higher courts for which appropriate pro-

vision was made in the Criminal Procedure Code . The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the <ORG> has defined an offence with sufficient clarity and prescribed the maximum punishment therefore, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. As pointed out by <NAME> in his Law of Crimes, Twenty-Second Edition page 93 "The authors of the Code had,, in' many cases not heinous, fixed a minimum as well as a maximum punishment. The <ORG> were of opinion that, considering the general terms in which offences were defined, it would be inexpedient, in most cases, to fix a minimum punishment; and they had accordingly so altered the Code as to leave the minimum punishment for all offences, except those of the gravest nature, to the discretion of the Judge who would have the means in each case of forming an opinion as to the character of the offender, and the circumstances, whether aggravating or mitigating, under which the offence had been committed. But with respect to some heinous offence-such as offences against the <ORG>, murder, attempt to commit murder, and the like-they had thought it right to fix a minimum punishment". In the whole code there is only one section (Section '303) where death is prescribed as the only punishment for murder by a person under sentence for imprisonment for life. There, are several other sections in which death sentence could be imposed, but that sentence is not mandatory. Under two sections namely section 302- -murder, and section 121- --waging-war against the Government of India, alternative punishments of death or imprisonment for life are leviable. These are the two sections where the maximum punishment is death and the minimum is imprisonment for life. There are two other sections in the Indian Penal Code where the minimum punishment is prescribed-one is section 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and (2) Section 396 which provides that at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be published shall not be less than seven years. As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge. The reasons are explained by <NAME> on the page referred to above.

"Circumstances which are properly and expressly recognized by the law as aggravations calling for in 18-L498SupCI/73 creased severity of punishment are principally such as consist in the manner in which the offence is perpetrated; whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. These considerations naturally include a number of particulars, as of time, place, per- sons and things, varying according to the nature of the case. Circumstances which are to be considered in alleviation of punishment are : (1) the minority of the offender; (2) the old age of the offender; (3) the condition of the offender e.g., wife, apprentice; (4) the order of a superior military officer; (5) provocation; (6) when offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the state of health and the sex of the delinquent. <NAME> mentions the following circumstances in mitigation of punishment which should be inflicted : (1) absence of bad intention; (2) provocation; (3) self preservation; (4) preservation of some near friends; (5) transgression of the limit of self-defence; (6) submission to the menaces; (7) submission to authority; (8) drunkenness; (9) childhood."

Indeed these are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender. The list is not intended to be exhaustive. In fact <ORG> has held that considerable delay in the disposal of a case may be a factor in awarding lesser punishment. <CITATION> (1). The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of criminal breach of trust punishable under section 409- - IPC , The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day's imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that section, that would be an impossible task. All that could be reasonably done by the <ORG> is to tell the Judges that between the maximum and minimum Prescribed for an offence. they should, on balancing the aggravating and (1) Crl. Law journal 475.

mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence. Take the other case of the offence of causing hurt. Broadly, that offence is divided into two categories-simple hurt and grievous hurt. Simple hurt is again sub-divided- simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence- section 324 . Where grievous hurt is caused by a lethal weapon, it is punishable under section 326 and is a more aggravated form of causing grievous hurt than the one punishable under section 325 . Under section 326 the maximum punishment is imprisonment for life and the minimum can be one day's imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the unimportant bones of the human body, he would be as much punishable under section 326-IPC as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Here too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task. What is thus true with regard to punishment imposed for other offences of the code is equally true in the case of murder punishable under section 302-IPC . Two alternate sentences are provided one of which could be described as the maximum and the ether minimum. The choice is between these two punishments and as in other cases the discretion is left to the Judge to decide upon the punishment in the same manner as it does in the case of other offences, namely, balancing the aggravating and mitigation- circumstances. The framers of the Code attempted to confine the offence of murder within as narrow limits as it was possible for them to do in the circumstances. All culpable homicides were not made punishable under section 302-IPC . Culpable homicides were divided broadly into two classes (1) culpable homicide amounting to murder and (2) culpable homicide not amounting to murder. Culpable homicide which fell in the one or the other of the four strictly limited categories described in section 300-IPC amounted to murder unless it fell in one of the five exceptions mentioned in that section, in which case the offence of murder was reduced to culpable homicide not amounting to murder. Any further refinement in the definition of murder was not practicable and, therefore, not attempted. The recent experience of <ORG> referred to above only emphasizes the extreme difficulty. The <ORG> frankly admitted that it was not possible to prescribe the lesser punishment of imprisonment for life by redefinition of murder or by dividing murder into degrees. It conceded that no formula was possible that would provide a reasonable criterion for the infinite variety of circumstances, that may affect the gravity of the crime of murder that conclusion forced the <ORG> to the view that discretionary judg-

ment on the facts of each case is the only way in which they can be equitably distinguished. See : para 595 of the <ORG>'s Report.

American experience is not different. In some of the States murder and rape were punishable with death. But that was not the only punishment. The, Law gave the Jury discretion in capital sentencing, and the question arose recently before <ORG> in <NAME> v. California(1) whether in tile absence of any standards for deciding when the accused should be sentenced to death or to life imprisonment the provision of law which gives the discretion to the Jury was constitutional. Mr. Justice <NAME> delivered the opinion of five Judges and Mr. Justice <NAME> substantially agreed with that opinion in a separate judgment. The majority held that "the infinite variety of cases and facets to each case would make general standards either meaning less 'boiler plate' or a statement of the obvious that no Jury would need." The majority agree with the view of <ORG> already referred to and observed "those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." The model Judicial ('ode which was presented to the court as an attempt towards standardization was strongly criticised by the majority who pointed out that tile Craftsmen of the Model Judicial Code had expressly agreed with ,he conclusion of <ORG> that the factors which determined whether the, sentence of death is the appropriate penalty in particular cases are too complex to be expressed within the limits of a simple formula. Some of the circumstances of aggravation and mitigation were mentioned in the Appendix to, the Code . But it was pointed out that the Draftsmen of the Code did not restrict themselves to the items referred to in the Appendix but expressly stated that besides the above circumstances the court was bound to take into consideration "any other facts that the court deems relevant". This only meant that any exhaustive enumeration of aggravating or mitigating circumstances is impossible-the admission of which emphasizes the view that standardisation is impossible. Finally the majority observed at page 726 : "In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that com- mitting to the untrammeled discretion of the jury the power to pronounce life or death in capital, cases is offensive to anything in the Constitution."

(1) <ORG> Supreme court report Lawyers' Edition, 28,

713. In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code . The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter sentences as a already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused. It was next contended by Mr. <NAME> that uncontrolled and unguided discretion in the judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution. we do not find any merit in this contention also. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and Circumstances of one case can hardly be the same as the facts and circumstances of another. It has been pointed out by this <ORG> in <NAME> and others v. The State of Bihar(") Art. 14 can hardly be invoked in matters of judicial, discretion. This <ORG> observed at page 1054 "It has, however, to be remembered that, in the language of F ankurter, <NAME> in <NAME> v. <NAME>, 'the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the <ORG>s or the executive agencies of a State'. The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination..... Further, the discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by the Subordinate courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals." Crime as crime may appear to be superficially the same but the, facts and circumstances of a crime are widely different and since a decision of the court as regards punishment is dependent upon a consideration of all the' facts and circumstances, there is Hardly any ground for challenge under Article 14.

Lastly it was contended by Mr. <NAME> that under Article 21 of the Constitution no person shall be deprived of his life except according to procedure established by law and, in his submission.

(1) [1955] S.C.R. 1045.

before the-sentence of death is passed there is, in fact, no procedure established by law. It is admitted that the Criminal Procedure Code lays down a detailed procedure but that procedure, according to Mr. <NAME>, is limited to the finding of guilt. After the accused is found guilty of the offence, there is no other procedure laid down by the law for determining whether the sentence of death or something less is appropriate in the case. Therefore, he contended, death sentence is unconstitutional. We are not impressed by this argument also. The accused who is charged for murder knows that he is liable to be sentenced to death in <ORG> itself. He knows what the evidence is. He further knows that if after trial in <ORG> he is found guilty of murder, he is liable to be sentenced to the extreme penalty. Experience of trials shows that where the accused knows that the facts of the case are against him. the whole attempt on the part of his counsel is to fill the record with as many circumstances in his favour as possible which would tend to show that he is either guilty of a lesser crime or, in any event, there are mitigating and extenuating circumstances. The court is primarily concerned with all the facts and circumstances in so far as they are, relevant to the crime and how it was committed and since at the end of the trial he is liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts. Again he and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence. In important cases like murder the court 'always gives a chance to the accused to address the court on the question of sentence. Under the Criminal Procedure Code after convicting the accused the court has to pronounce the sentence according to law. In a Jury trial if the accused is convicted the Judge shall (unless he proceeds in accordance with the provisions of section 562 ) pass sentence on him according to law. See section 306 (2). Similarly, where the case is tried by the Judge himself sub-section (2) of section 309 says that if the accused is convicted, the Judge. shall, unless he proceeds in accordance with the provisions of section 562 , pass sentence on him according to law. The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is, that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the court. Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered by the court unless there is something in the evidence itself which belies him or the Public Prosecutor for the <ORG> challenges the facts. If the matter is relevant and essential to be considered, there is nothing in the Criminal Procedure Code which prevents additional evidence being taken. It must, however, be stated that it is not the experience of criminal courts in India that the accused with a view to obtaining a reduced sentence ever offers to call additional evidence. However, it is necessary to emphasize that the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what section 306(2) and 309(2) Cr. P.C. purport to provide for. These provisions are part of the procedure established by law and, unless it is shown that they are invalid for any other reasons, they must be 'regarded as valid. No reasons are offered to show that they are constitutionally invalid, and, hence, the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21.

In the result, the appeal fails and is dismissed.

<ORG> Appeal dismissed.