PETITIONER: STATE OF ORRISSA Vs. RESPONDENT: BHUPENDRA KUMAR BOSE DATE OF JUDGMENT: 22/12/1961 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA CITATION: 1962 AIR 945 1962 SCR Supl. (2) 380 CITATOR INFO : R 1974 SC 396 (25) RF 1975 SC2299 (186,228,315,606) R 1977 SC1884 (26) R 1982 SC 710 (19) R 1985 SC 724 (19) ACT: Municipal Elections-Electoral rolls improperly prepared-<ORG> declaring elections invalid-Validating Ordinance-Constitutionality of- Expiry of ordinance-Whether invalidity revives- Orissa Municipal Act, 1950 (Orissa 33 of 1950)- Orissa, Ordinance 1 of 1959, ss. 3 , 4 and 5- Constitution of India, Arts. 14, 226 and 254 HEADNOTE: Elections were held for the Cuttack Municipality and 27 persons were declared elected as Councillors. One B, who was defeated at the elections, filed a writ petition before the <ORG> challenging the elections. The <ORG> held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Municipalities Act, 1950, as the age qualification had been published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed; Consequently the <ORG> set aside the elections. The <ORG> took the view that the judgment affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the Governor promulgated an ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared in respect of other municipalities. Thereupon, B filed a writ petition before the <ORG> contending that the ordinance was unconstitutional. The <ORG> found that the ordinance contravened Art. 14 of the Constitution, that it did not successfully cure the invalidity and that it offended Art. 254(1) of the Constitution as it was inconsistent with many Central Act s falling in the concurrent list and was unconstitutional. The <ORG> and the Councillors appealed and challenged the findings of the <ORG>. B raised two further contentions that the appeal had become infructuous as the ordinance had expired and that the ordinance was invalid as it purported to invalidate the judgment of the <ORG>. ^ Held, that the ordinance was valid and that it successfully cured the invalidity of the electoral roll and of the elections to the Cuttack Municipality. The Ordinance did not offend Art. 14 of the Constitution. Its object was not only to save the elections to the 381 Cuttack Municipality but also to other municipalities whose validity might be challenged on similar grounds. It did not single out B for any discriminatory treatment. <CITATION> ,  S. C. R. 279, referred to. <CITATION> ,(1904)68 L. Ed. 179, distinguished. The Ordinance effectively removal the defects in the electoral rolls found by the <ORG> by its first judgment. It was not necessary for it to further state that the result of elections was not materially affected. Section 5(1) of the Ordinance which saved the actions taken and powers exercised by the Councillors, the Chairman and the Vice-Chairman was not repugnant to any existing law and did not contravene Art. 254(2) of the Constitution. Section 5(1) was confined to action taken under the Orissa Municipalities Act and did not extend to violations of other laws made by <ORG> under the concurrent list. The first judgment of the <ORG> under Art. 226 of the Constitution could not be equated with Art. 226 itself. As such the Governor did not transgress any constitutional limitation in nullifying its effect by the validating Ordinance. The invalidity of the electoral rolls and the elections to the Cuttack Municipality did not revive on the expiry of the Ordinance. The general rule with regard to temporary statutes is that, in the absence of a special provision to the contrary, proceedings being taken under it against a person will ipso facto terminate as soon as the statute expires. But, if the right created by the Statute is of an enduring character and has vested in the person, that right cannot be taken away simply because the statute has expired. The rights created by the Ordinance lasted even after the Ordinance lapsed as its object was to remove the invalidity permanently. <CITATION>  S.C.R. 621, <NAME> v. Director of Public Prosecutions,  A.C. 362, <NAME> v. <NAME> (1841) 151 E. R. 1024 and <NAME> v. <NAME>, (1803) 3 East 205, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 525 and 526 of 1960.

Appeals from the judgment and order dated March 20, 1959, of <ORG> in O.J.C. No. 12 of 1959.

<NAME>, <NAME> and <NAME>, for the appellant (In C.A. No. 525/60) and respodent No. 1 (in C.A. No. 526 of 1960.) <NAME>, for the appellants (in C.A. No. 526/60) and Respondents Nos. 2 to 8, 10, 13 to 16, 19-21, 23, 25, 27, and 28 (in C.A. No. 525/60).

<NAME>. <NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1 (in C.A. No. 525/60) and 2 (in C.A. No. 526 of 60).

1961. December 22. The Judgment of the Court was delivered by <NAME>, J.-These two appeals are directed against the order passed by <ORG> under Art. 226 of the Constitution striking down as unconstitutional sections 4 and 5 (1) of orissa Ordinance I of 1959 promulgated by the Governor of Orissa on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. <NAME> against the State of Orissa and 27 persons who were elected Councillors of the Cuttack Municipality, including the Chairman and the Vice-Chairman respectively. Appeal No. 525 has been filed by the State of Orissa whereas Appeal No. 526 is filed by the said Municipal Councillors. The appellants in both the appeals obtained leave from <ORG> to appeal to this Court.

It appears that during December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 Orissa (XXXIII of 1950) (hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960 were declared elected as Councillors. From amongst them, <NAME> was elected the Chairman and <NAME> the Vice-Chairman. Mr. <NAME>, who is an Advocate practising in Cuttack and a resident within the municipal limits of Cuttack, had contested the said elections as a candidate from Ward No.13. He was, however, defeated. Thereupon, he presented an application to <ORG> (O.J.C. No. 72 of 1958) to set aside the said elections. To this application he impleaded the State of Orissa and the 27 elected Councillors. In his petition Mr. <NAME> alleged that the elections held for the Cuttack Municipality were invalid and he claimed an injunction restraining the 27 respondents from functioning as elected Councillors and the Chairman and the Vice- Chairman amongst them from discharging their duties as such. The respondents to the petition traversed the allegations made by Mr. <NAME> and urged that the elections were valid and that the petitioner was not entitled to any relief under. Art. 226.

<ORG> upheld the contentions raised by the petitioner. It came to the conclusion that the qualifying date for determining the age qualification of voters under s.13 of the Orissa Municipal Act had been published by <ORG> only on January 10, 1958, though the preliminary electoral rolls had already been published on December 23, 1957. In consequence, the claims and objections had been invited for a period of 21 days from the said date to January 12, 1958. As a result of the delay made in publishing the qualifying date for the determination of age qualification of voters, the citizens of Cuttack were, in fact, given only two days' time to file their claims and objections, whereas under the relevant Election Rules they were entitled to 21 days. <ORG> also came to the conclusion that this drastic abridgment of the period for filing claims and objections had materially affected the results of the elections, by depriving several voters of their right to be enrolled as such. <ORG> also found that whereas a candidate was entitled to 15 clear days for the purpose of canvassing, the notification issued under the Orissa Municipal Election Rules curtailed this period to 14 days. According to <ORG>, the respondents to the petition had failed to show that the results of the elections had not and could not have been affected by the contravention of the said Rules. On these findings, the elections in question were set aside and appropriate orders of injunction issued as claimed by the petitioner. This judgment was pronounced on December 11, 1958.

It appears that the State of Orissa took the view that the effect of the said judgment could not be confined only to Cuttack Municipality. As a result of the findings made by <ORG> during the course of the said judgment the validity of elections to other Municipalities' might also be exposed to the risk of challenge and that would have necessitated the preparation of fresh electoral rolls after following the procedure prescribed in that behalf by the Act. That is why the Governor of Orissa promulgated the impugned Ordinance on January 15, 1959. Broadly stated, the effect of the Ordinance was that the elections to the Cuttack Municipality stood validated and the said Municipality began to function once again. It also validated the electoral rolls prepared in respect of the other Municipalities in the State of Orissa and thus sought to save elections held or to be held in respect of the said Municipalities from any possible challenge.

When Mr. <NAME> found that his success in the Writ Petition (O.J.C. No. 72 of 1958) had thus been rendered illusory by the Ordinance, he moved <ORG> again by the present Writ Petition. He contended that the material provisions of the Ordinance, viz., ss. 4 and 5(1) were unconstitutional and he asked for an appropriate relief on that basis. <ORG> has again upheld the contentions raised by Mr. <NAME> and has struck down ss.4 and 5(1) of the Ordinance and issued appropriate orders of injunction restraining the elected Councillors and the Chairman and Vice-Chairman from functioning as such. The State of Orissa and the 27 Councillors by separate applications obtained a certificate from <ORG> and have come to this Court by their two separate appeals Nos. 525 and 526 of 1960, Before dealing with the validity of the impugned provisions of the Ordinance, it is necessary to consider the broad features of the Ordinance itself. As the preamble to the Ordinance shows, the Governor of Orissa promulgated it because he thought it necessary to provide for the validation of electoral rolls and elections to Municipalities. In his opinion, the preparation of fresh electoral rolls and the holding of fresh elections which would have become necessary unless a validating Ordinance had been passed, would have entailed huge expenditure and would have given rise to problems regarding the administration of such Municipalities during the intervening period. He also thought that it was necessary to take immediate steps to provide for the validation of the electoral rolls and the elections since <ORG> was not then in session and the Governor thought circumstances existed which rendered it necessary to take immediate action. In exercise of the powers conferred on him by Art. 213(1) of the Constitution, he was, therefore, pleased to promulgate the Ordinance. That, according to the statement made in the preamble to the Ordinance explains the genesis of its promulgation.

The Ordinance consists of five sections. Section 1 gives its short title and extent, while s.2 is the defining section. Sections, 3, 4 and 5 read thus:-

"3. (1) Notwithstanding the Order of any Court to the contrary or any provision in the Act or the rules thereunder:

(a) the electoral rolls of the Cuttack Municipality shall be, and shall always be deemed to have been validly prepared and published; and

(b) the said electoral rolls shall be deemed to have come in force on the date of publication and shall continue to be in force until they are revised in accordance with the rules made in this behalf under the Act.

(2) The validity of the electoral rolls shall not be called in question in any court on the ground that the date on which a person has to be not less than 21 years of age was fixed under Section 13 of the act after the publication of the preliminary electoral rolls.

4. Any order of a court declaring the election to the Cuttack Municipality invalid on account of the fact that the electoral rolls were invalid on the ground specified in Sub-section (2) of section 3 or on the ground that the date of polling of the election was not fixed in accordance with the Act or the rules made thereunder, shall be deemed to be and always to have been of, no legal effect, whatsoever, and the elections to the said Municipality are hereby validated.

5. (1) All actions taken, and powers exercised by the Councillors, Chairman or Vice-Chairman of the Cuttack Municipality prior to the coming into force of this Ordinance shall be deemed to have been validly taken, and exercised. (2) All actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the order of the Government of Orissa in <ORG> No. 8263 L.S.G. dated the 13th December, 1958, shall be deemed to have been taken and exercised by the Council of the said Municipality or its Chairman or Vice- Chairman, as the case may be."

It will thus be seen that s. 3 purports to validate the electoral rolls which had been held to be invalid by <ORG> in Writ Petition No. 72 of 1958. Sub-section (1) of s. 3 deals specifically with the infirmities found in the elections held for the Cuttack Municipality whereas sub-s. (2) deals with the defects in the electoral rolls in respect of all the Municipalities. Section 4 validates, in particular, the elections to the Cuttack Municipality which had been held to be invalid by <ORG>. Section 5(1) purports to protect all actions taken and powers exercised by the Councillors, the Chairman and the Vice-Chairman prior to the coming into force of the Ordinance, while s. 5(2) validates all actions taken and powers exercised by the District Magistrate of Cuttack in respect of the Cuttack Municipality in pursuance of the Order there specified. In other words, the Ordinance is a validating Ordinance. It purports to validate the elections of the Cuttack Municipality in particular and to make valid and regular the electoral rolls which would otherwise have been held to be irregular and invalid in accordance with the judgment of <ORG>.

Before <ORG>, on behalf of Mr. <NAME> five points were raised. It was argued that the provisions of the Ordinance were a mere colourable device to set aside the judgment of <ORG> in O.J.C. No. 72 of 1958. It was, in fact, and in substance, not any exercise of legislative power by the Governor but assumption by him of judicial power which is not warranted by the Constitution. <ORG> has rejected this contention and the finding of <ORG> on this point has not been challenged before us. So we are relieved of the task of considering the merits of this finding.

It was then contended that s. 4 of the Ordinance contravenes the equality before law guaranteed by Art. 14 of the Constitution. It was also urged alternatively that even if s. 4 did not contravene Art. 14 , it did not successfully cure the invalidity of the elections to the Cuttack Municipality arising out of the fact that material prejudice had been caused to the citizens by the abridgement of the period for filing claims and objections and of the period for canvassing. In regard to s. 5(1) the argument was that it was invalid under Art. 254(1). All these three contentions have been accepted by <ORG> and the correctness of the findings recorded by <ORG> in that behalf fall to be considered in the present Appeals. The last contention raised in support of the petition was that on February 23, 1959, a Bill entitled "Orissa Municipal Election Validating Bill, 1959" which contained substantially similar provisions as those of the Ordinance, was sought to be introduced in <ORG> but was defeated by a majority of votes and that made the ordinance invalid. This contention has been rejected by <ORG> and the finding of <ORG> on this point has not been challenged before us. Thus, out of the 5 points raised before <ORG>, 3 have been argued before us. For Mr. <NAME>, Mr. <NAME> has also urged two additional points. He has contended that the present appeals have really become infructuous in view of the fact that the impugned Ordinance lapsed on April 1, 1959. This argument has been strenuously pressed before us in the form of a preliminary objection against the competence of the appeals themselves. On the merits, Mr. <NAME> has urged an additional ground that the Ordinance was invalid inasmuch as it purported to invalidate the judgment of <ORG> in O.J.C. No. 72 of 1958 delivered under Art. 226 of the Constitution.

Let us first consider whether s. 4 offends the equality before law guaranteed by Art. 14. In coming to the conclusion that the said section is unconstitutional on the ground that it contravenes Art. 14. <ORG> was very much impressed by the fact that as a result of its earlier judgment, Mr. <NAME> had obtained a very valuable right of preventing the existing Councillors from functioning as such and of having fresh elections conducted according to law in which he would have the right to stand as a candidate once again. The petitioner Mr. <NAME>, may legitimately ask, observed <ORG>, why, when hundreds of successful suitors who have sought the help of that <ORG> for relief under Art. 226 were allowed to enjoy the fruits of their success, he alone should have been discriminated against by hostile legislation. With respect, this rhetorical approach adopted by <ORG>, in dealing with the question about the validity of s. 4 is open to the obvious criticism that it is inconsistent with the view taken by <ORG> itself in this very judgment that the Governor was competent to issue an Ordinance to invalidate the judgment of <ORG> pronounced in O.J.C. No. 72 of 1958; as we have already pointed out one of the contentions raised by Mr. <NAME> against the validity of the Ordinance was that in the guise of the exercise of the legislative powers, the Governor had purported to exercise judicial powers and that was beyond his competence. Since the finding of <ORG> on this question has not been challenged before us by Mr. <NAME>, we propose to express no opinion on its merits. But if it is held that in promulgating the validating Ordinance the Governor was exercising his powers under Art. 213(1) and his legislative competence in that behalf is not in doubt, then it is difficult to appreciate how <ORG> should have allowed itself to be influenced by the grievance made by Mr. <NAME> that he had been deprived of the fruits of his success in the earlier Writ Petition.

<ORG> was, no doubt, influenced by its conclusion that Mr. <NAME> alone had been singled out for discriminatory treatment of the impugned Ordinance and that, according to <ORG>, constituted violation of the provisions of Art. 14. There are, however, two obvious infirmities in this conclusion. Looking at the scheme of the Ordinance, it is clear that ss. 3 and 4 must be read together. The object of the Ordinance was two-fold. Its first object was to validate the elections to the Cuttack Municipality which had been declared to be invalid by <ORG> and its other object was to save elections to other Municipalities in the State of Orissa whose validity might have been challenged on grounds similar to those on which the elections to the Cuttack Municipality had been successfully impeached. It is with this two-fold object that s. 3 makes provisions under its two sub-ss. (1) and (2). Having made the said two provisions by s. 3 , s. 4 proceeded to validate the elections to the Cuttack Municipality. If we bear in mind this obvious scheme of the Ordinance, it would be unreasonable to read s. 4 in isolation and a part from s. 3 . <ORG> was in error in dealing with s. 4 by itself unconnected with s. 3 when it came to the conclusion that the only subject of s. 4 was to single out Mr. <NAME> and deprive him of the fruits of his success in the earlier Writ Petition. If ss. 3 and 4 are read together, it would be clear that Mr. <NAME> alone had not been singled out or discriminatory treatment; the validating provisions applied, no doubt, to the Cuttack Municipal elections but they are also intended to govern any future and even pending dispute in regard to the elections to other Municipalities. Therefore in our opinion, <ORG> was not right in coming to the conclusion that the object of the Ordinance was only to validate the Cuttack Municipal elections and nothing more.

Besides, if the power to validate by promulgating an Ordinance is conceded to the Governor under Art. 213(1 ), it would not be easy to appreciate why it was not open to the Governor to issue an Ordinance dealing with <ORG> themselves. The Cuttack Municipal Elections had been set aside by <ORG> and if the Governor thought that in the public interest, having regard to the factors enumerated in the preamble to the Ordinance, it was necessary to validate the said elections, it would not necessarily follow that the Ordinance suffers from the vice of contravening Art. 14.  Article 14 has been the subject matter of decisions in this Court on numerous occasions. It is now well-established that what the said Article forbids is class legislation no doubt, but it does not forbid reasonable classification for the purposes of legislation. In order that the test of permissible classification should be satisfied, two conditions have to be fulfilled, viz., (1) the classification must be founded on an intelligible differentia which would distinguish persons or things grounded together from others left out of the group, and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. As this Court has held in the case of <CITATION> (1), a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. Therefore, if the infirmity in the electoral rolls on which the decision of <ORG> in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State of Orissa, then it may have been open to the Governor to issue an Ordinance only in respect of <ORG>, and if, on account of special circumstances or reasons applicable to <ORG>, a law was passed in respect of the said elections alone, it could not have been challenged as unconstitutional under Art. 14. Similarly, if Mr. <NAME> was the only litigant affected by the decision and as such formed a class by himself, it would have been open to the <ORG> to make a law only in respect of his case. But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate <ORG> and the electoral rolls in respect of other Municipalities as well. Therefore, we are satisfied that <ORG> was in error in coming to the conclusion that section 4 contravenes Art. 14 of the Constitution. Having regard to the fact that certain infirmities, in the electoral rolls were presumably found to be common to electoral rolls in several Municipalities the Governor thought that the decision of <ORG> raised a problem of public importance affecting all Municipal elections in the State and so, acting on the considerations set out in the preamble to the ordinance, he proceeded to promulgate it. In dealing with the challenge against s. 4 of the said Ordinance, <ORG> should have considered all the provisions of the Ordinance together before coming to the conclusion that section 4 was discriminatory and contravened Art

14. In support of the finding of <ORG>, Mr. <NAME> referred us to the decision in the <CITATION> . (1) In that case the Court was dealing with a statute which exempted certain persons from the obligation to obtain a licence for the privilege of selling goods as peddlers. The impugned statute conferred exemption on persons resident in the State, who had served as soldiers in the war for the suppression of the Rebellion in the Southern States, and were honourably discharged. This statute was held to contravene the provisions of the 14th Amendment whereby no state can deny to any person within its jurisdiction the equal protection of the laws. In our opinion, this decision can afford no assistance to Mr. <NAME> in supporting the finding of <ORG> that s. 4 contravenes Art. 14. The services rendered by the soldiers in the war for the suppression of the Rebellion in the Southern States had hardly any rational connection with the exemption granted to them from obtaining licence for selling goods as peddlers and so, the classification purported to be made by the impugned statute was obviously unreasonable and irrational. That is not so in the present case. Certain irregularities in the electoral rolls were discovered and it was thought that unless the said irregularities were validated, public exchequer would be involved in huge expenditure and problems regarding the administration of Municipalities during the intervening period would arise. That is why the Ordinance was promulgated. The impugned provisions of the Ordinance cannot be said to be based on a classification which is not rational and which has no reasonable connection with the object intended to be achieved by the Ordinance. Therefore, in our opinion the conclusion of <ORG> that s. 4 contravened Art. 14 cannot be sustained.

As we have already pointed out, <ORG> has taken the view that even if s. 4 did not offend against Art 14, it nevertheless could not cure the invalidity of the elections to the Cuttack Municipality inasmuch as it had not said anything about the finding of <ORG> that the irregularities complained against had caused material prejudice to the citizens of Cuttack by the abridgement of the period for filing claims and objections and of the period for canvassing. When the validating provision, observes <ORG>, merely cures the invalidity arising out of the fixation of the qualifying date after the publication of the preliminary electoral rolls and is completely silent about the results of the elections being materially affected thereby, it cannot be said to have annulled the judgment of this Court in O. J. C. No. 72 of 1958. The same reasoning would also apply to the abridgement of the period of canvassing from 15 days to 14 days which also materially affected the results of the elections. <ORG> thought that if the Governor wanted to annul the effect of its earlier decision, he should have made express provision to that effect or at least should have referred to that fact in Section 4 . It is not easy to appreciate this view. What the Ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them. Once that is done, there is hardly any occasion to say further that no prejudice shall be deemed to have been caused by the said infirmities of the electoral rolls. In validating the elections to the Cuttack Municipality, the Ordinance was not expected or required to cover the reasons given by the judgment or the finding recorded in it. The basis of the judgment was the irregularities in the Electoral rolls and the procedure followed in holding the elections. Those irregularities have been validated and that inevitably must mean that the elections which were held to be invalid would have to be deemed to be valid as a result of the Ordinance and so no question of material prejudice can arise. That being so, we do not think there is any substance in the alternative argument urged in support of the plea that s. 4 is ineffective even if it does not contravene Art, 14.

That takes us to the question as whether s. 5(1) is invalid. <ORG> has taken the view that s. 5(1) purports to protect not only actions taken and powers exercised under the Municipal Act but all actions and all powers exercised even outside the Municipal Act in violation of other laws. Basing itself on this broad and wide construction of 5(1), <ORG> thought that between ss.5(1) and s.477A of the Indian Penal Code there was inconsistency. That is why it struck down s. 5(1) under Arts. 254(2) and 213(1) of the Constitution. We have no hesitation in holding that the construction placed by <ORG> on s. 5 (1) is obviously unreasonable. The object of s. 5 (1) is plain and unambiguous. It seeks to save actions taken and powers exercised by the Councillors, the Chairman or the Vice- Chairman in pursuance of, and in accordance with, the provisions of the Municipal Act. Having validated the elections to the Cuttack Municipality, it was obviously necessary to validate actions taken and powers exercised by the appropriate authorities and Councillors as such after the elections were held and before they were invalidated by the judgment of <ORG>. Having regard to this plain object which s.5(1) is intended to serve, it is,. we think, wholly unreasonable to put upon its words an unduly wide construction and then strike it down as inconsistent with Art. 254(2) of the Constitution. It is true that s. 5(1) is not in express terms confined to all actions taken and powers exercised under the Municipal Act, but, in the context, that is obviously intended. Indeed, it is doubtful whether it was really necessary to add the words under the Municipal Act having regard to the scheme of the ordinance and the context in which s. 5(1) is enacted. Therefore, we do not think that <ORG> was justified in holding that s. 5(1) was void to the extent of its repugnancy to the existing laws dealing with matters in the Concurrent List. There is no repugnancy to any existing laws and so, there is no contravention of Art. 254(2) of the Constitution at all.

We will now deal with the two additional grounds urged before us by Mr. <NAME>. He contends that the Governor was not competent to issue an Ordinance with a view to over-ride the judgment delivered by <ORG> in its jurisdiction under Art. 226 of the Constitution. This argument is obviously untenable, for it erroneously assumes that the judgment delivered by <ORG> under Art. 226 has the same status as the provisions in the Constitution itself. In substance, the contention is that just as a provision in the Constitution like the one in Art. 226 cannot be amended by the Governor by issuing an Ordinance, so a judgment under Art. 226 cannot be touched by the Governor in his Ordinance making power. It is true that the judgment delivered by <ORG> under Art.226 must be respected but that is not to say that the <ORG> is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of <ORG> under Art. 226 with Art 226 itself and confer upon it all the attributes of the said constitutional provision.

We must now turn to the main argument urged before us by Mr. <NAME> that the Ordinance having lapsed on April 1st 1959, the appeals themselves have become infructuous. He contends that the Ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so, as soon as it lapsed, the invalidity in the Cuttack Municipal elections which had been cured by it revived and so there is no point in the appellants challenging the correctness of <ORG> decision. Indeed, it was this point which Mr. <NAME> strenuously stressed before us in the present <ORG>. If the true legal position be that after the expiration of the Ordinance the validation of the elections effected by it comes to an end, then Mr. <NAME> would be right in contending that the appeals are infructuous. But is it the true legal position ?-that is the question which calls for our decision.

It is true that the provisions of s. 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by <NAME>, J., as he then was, in <CITATION> (1) the general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of s. 6 of the General Clauses Act. Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Art. 213(2) (a).

<NAME> v. <ORG> (2) is an illustration in point. The Emergency Powers (Defence) Act, 1939, s. 11 , sub-s. 3, with which that case was concerned, provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done. The appellant <NAME> was convicted in May, 1946, of offences committed in 1943 and 1944, contrary to Regulation 2A of the Defence (General) Regulations 1939, made pursuant to the Act. Both the Act and the Regulation expired on February 24, 1946. It was as a result of this specific saving provision contained in s. 11 (3) of the Act that <ORG> held that, although regulation 2A had expired before the trial of the appellant, he was properly convicted after the expiration of the Act, since s. 11 (3) did not expire with the rest of the Act, being designed to preserve the right to prosecute after the date of expiry. Mr. <NAME> contends that there is and can be, no corresponding saving provision made by the Ordinance in question and so, the invalidity of the Cuttack Municipal Elections would revive as soon as the Ordinance expired by lapse of time. This contention is based on the general rule thus stated by <NAME>: "that unless a temporary Act contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. That is why offences committed against temporary Acts must be prosecuted and punished before the act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate."

In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. <NAME> relies is inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the act expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an inflexible and universal rule ? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. As observed by <NAME>, B. in the case of <NAME> v. <NAME>, (2) "there is a difference between temporary statutes and statutes which are repealed the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction." In this connection, it would be useful and interesting to consider the decision in the case of <NAME> itself. That case related to 6th Geo. 4, c. 133, s. 4 which provided that every person who held a commission or warrant as surgeon or assistant surgeon in His Majesty's <ORG> or <ORG>, should be entitled to practise as an apothecary without having passed the usual examination. The statute itself was temporary and it expired on August 1, 1826. It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after August 1, 1826, because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. The Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute, Lord <NAME>, C. B. observed that "it is by no means a consequence of an act of <ORG>'s expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an act of <ORG>; would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration ? The case of a right acquired under the Act is stronger. The 6 Geo. 4 c. 133, provides that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment." It is in support of the same conclusion that <NAME>, B. made the observations which we have already cited. "We must look at this act", observed <NAME>, B., "and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question. It seems to me that the meaning of the legislature was that all assistant-surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privileges, as such was of an executory nature, capable of being carried into effect after the 1st of August, 1826." Take the case of a penalty imposed by a temporary statute for offences created by it. If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal ? In our opinion, the answer to this question has to be in the negative. Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter.

This question sometimes arises in another form. As <NAME> has observed: "If an act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex-hypothesis the temporary Act expires and is not repealed, the rules of construction laid down by ss.11(1) and 38 (2) of the Interpretation Act, 1889, do not apply, But there will be no revivor if it was clearly the intention of the legislature to repeal the earlier Act absolutely." Therefore even as regards the effect of the repealing of an earlier Act made by a temporary Act. the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down. This position has been tersely expressed by Lord <NAME>, C. J., when he observed in <NAME> v. <NAME> (1) "a law though temporary in some of its provisions, may have a permanent operation in other respects. The stat, 26 Geo. 3, c. 108, professes to repeal the statute of 19 Geo. 2, c. 35, absolutely, though its own provisions, which it substituted in place of it, were to be only temporary." In other words, this decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act. We have referred to this aspect of the matter only by way of analogy to show that no inflexible rule can be laid down about the effect of the expiration of a temporary Act.

Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which had been declared to be invalid by <ORG> by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid. Can it be said that the validation was intended to be temporary in character and was to last only during the life-time of the Ordinance ? In our opinion, having regard to the object of the ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of <NAME> and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr. <NAME> against the competence of the appeals can be upheld.

The result is that the appeals are allowed, the order passed by <ORG> is set aside, and the Writ Petition filed by Mr. <NAME> is dismissed with costs throughout.

Appeals allowed.


PETITIONER: EDIGA ANAMMA Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT11/02/1974 BENCH: <NAME>, V.R. BENCH: <NAME>, V.R. SARKARIA, RANJIT SINGH CITATION: 1974 AIR 799 1974 SCR (3) 329 1974 SCC (4) 443 CITATOR INFO : F 1974 SC1039 (12) F 1974 SC2281 (6) RF 1975 SC 573 (9) F 1976 SC 653 (13) F 1976 SC2071 (4,5) RF 1976 SC2386 (4) RF 1977 SC 949 (18,19) R 1977 SC1747 (6) RF 1977 SC1812 (2) E 1979 SC 916 (6,45,86,198) R 1979 SC1384 (10,12) RF 1980 SC 898 (81,82,197,198) MV 1982 SC1325 (38,69,71) RF 1983 SC 361 ((2)4,10,21) D 1983 SC 465 (9) RF 1985 SC 231 (2) ACT: Criminal Law--Practice and Procedure--Offence of murder--Circumstances justifying lesser sentence. HEADNOTE: The appellant, a rustic young woman, flogged out of her husband's house by her father-in-law, was living with her parents with her only child. She committed a premeditated, cleverly planned murder of another young woman and her child because of rivalry between the appellant and the murdered woman for the affections of an illicit lover. <ORG> awarded the death sentence and <ORG> confirmed. In appeal to this Court. HELD : The death sentence must be dissolved and life sentence substituted. (i) Modern penology regards crime and criminal as equally material when the right sentence has to be picked out although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of social and personal data of the culprit to the extent required in the verdict on sentence. However, in the Criminal Procedure Bill, 1973, <ORG> has wisely written into the law a post conviction stage when the judges shall "hear the accused on the question of sentence and then pass sentenced on him according to law." [334 C] The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated. The disturbed conscience of the state on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious partial abolition and the retreat from total retention. [336 H] Code of Criminal Procedure Section 367(5) as amended by Act 26 of 1955; Criminal Procedure Bill, 1973, Sections 235, 238 and 354(3); Indian Penal Code (Amendment) Bill, 1972, Section 122 , referred to. (ii) The case on hand has to be disposed of under the present Code and the Court has to fall back upon the method of judicial bunch in imposing or avoiding capital sentence aided by such circumstances as are present on the record introduced for the purpose of proving guilt. [334 D] (iii) In the present case the criminal's social and personal factors, her feminity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards awarding of life imprisonment. [339 B--C] Further, the Sessions Judge pronounced the death penalty on December, 31, 1971 and the appeal is being heard in February 1974. This prolonged agony has ameliorative impact according to the rulings of this Court. <CITATION> A.I.R. 1944 F.C.I.; <CITATION> , 1973 C.L.J. 1773; <CITATION> , A.I.R. 1973 S.C. 2699. referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67 of 1973.

Appeal by Special Leave from the Judgment and Order dated the 24th March, 1972 of <ORG> in Criminal Appeal No. 12 of 1972 and Referred Trial No. 1 of 1972.

<NAME>, amicus curiae for the appellant. <NAME> and <NAME> for the respondent. The Judgment of the Court was delivered by <NAME>, J. In a rural region of Andhra Pradesh Freudian fury or explosion of sex jealousy expressed itself in a gruesome murder of a young woman and her tender child by the accused, :a young woman, with an only child ten years old, all, because notwithstanding both being married, they had invested amorous affections in a middle-aged libertine. <NAME>, conveniently a widower. It is an admitted fact that the accused, although married, was keeping illicit relations with <NAME>, a shepherd, but she discovered that lately her paramour was on flirting contacts with the deceased. This knowledge angered her so much that she extinguished the life of her rival on November 4, 1971 in the afternoon in a jungle, manipulating her murderous venture so cleverly that for a time people thought that she was the murdered and searched for her body. Closer enquiry revealed that the victim was <NAME> and the other innocent one her baby less than two years old.

<NAME>, appearing as amicus curiae, has presented a painstakingly meticulous argument on behalf of the prisoner, who has been condemned to death by the courts below. It is but meet that we appreciate the industrious advocacy enthusiastically made by this young advocate. By sundown on November 4, 1971 a cadaver was found in a field outside the village of Konapur, Medak District, Andhra Pradesh. The deceased was a damsel who was first mistaken to be the accused because her face had been burnt out of recognition and on her body was found clothing which belonged to the accused a deviced to, as later evidence discloses, by the accused to throw enquirers off ,the scent. On November 8, 1971 the dead body of a baby, <NAME>. daughter of <NAME>, the deceased, was recovered, from the sand bed ,of a stream near the field. Investigations disclosed that <NAME>. the accused, was the perpetrator of this fiendish crime. She was duly prosecuted, convicted and sentenced to death for the offence of murder and life imprisonment for secreting evidence of the crime, 'under s. 20  1 , 1 . P. C. An appeal by the accused and a referred trial under the Code resulted in a Bench of <ORG> affirming the guilt and upholding the sentence. A jail appeal has come before us, argued by <NAME> as amicus curiae.

The people involved are more or less primitive rustics and sex inhibitions do not appear to have interdicted private philandering. The prisoner had been married to P.W. 7 of Ankenpally, three miles distant from Konapur where her parents resided. Carnal knowledge with P.W. 16 developed even when she was in her husband's house and she manifested her passion by stealing gold rings from the house of one <NAME> to make it over to P.W. 16 as a memento of her illicit love, Indeed, this little stealing, induced by her improper relations with P. W. 16, was discovered. She suffered flagellation from her father-in-law for this act, and her father, P.W. 2, removed her to his own house as a sequel. The setting of Konapur did not stand in the way of her continued intimacy with <NAME> who responded by shifting to this village himself.

The deceased, <NAME>, was the wife of P.W. 12 who was, as ill-luck would have it, the neighbour of the accused's family. Opportunity tempted and <NAME> also established erotic contact with that lascivious, P.W. 16. The prisoner, in due course, came to know about the shifting of affections by her paramour who tried to bluff her in vain. Fired by jealously the prisoner fixed her mind upon liquidating her rival.

On November 4, 1971 at about 3 p.m. the ill-starred <NAME> had left for the fields taking the baby with her. The accused tempted and shadowed her, with some clothes from her house, to be washed in the village stream. P. W. 15, P. W. 4 and P. W. 13 have given testimony which, if believed, will show that the accused and the deceased were seen together in the fatal field at about 5 p.m., the day the mother and child died. It is said that the accused had removed a chisel from her house as she proceeded to the field and used it to lethal purpose. The medical evidence shows that <NAME> and <NAME> were stabbed to death with a chisel identified by the accused's own father, <NAME>, and the blacksmith who made it, P.W. 15. Apparently overborne with uncontrollable hatred for the woman who hijacked her paramour's sexual affection, the accused had planned to kill with cunning. The manner of stabbing to death was bad enough; it was more brutal for her to have disfigured the face of the victim which was found burnt. With a view to mislead and thereby evade easy detection she removed from the deceased's body her clothes and clothed it with a language belonging to herself. She removed the child's body, wrapped it in a piece of cloth brought by her and buried it beneath the river sand. Thereafter she made towards the house of P. W. 11, her uncle, told P. W. 16 what she had done and pressed him to elope with her. The sense of safety of P.W. 16 prevailed over his urge for sex relations with this girl and so he declined to follow her. The disparate woman left for her husband's village, while a search for her was being made by <NAME> her father. The dead body in the field was found covered with the accused's clothing and beguiled by this circumstance <NAME> reported to the police <NAME>, P.W., 5 (Ex. P 1) that his daughter had been murdered, perhaps by her father-in-law. Taken in by this report, the <NAME> informed the police and the Sub- Inspector, <NAME>6, proceeded to the scene of occurrence, held inquest and sent the body for postmortem examination. <NAME>2, the doctor, did the autopsy in the afternoon of November 5. 1971 and the body was brought back to Konapur by sundown. The Inspector of Police took over the investi- gation, took into custody the clothes" near the scene and questioned a number of persons in the village. The tragic body was being made ready for cremation when the <NAME> of village Ankanpally, P.W. 10, moved down to the place with the accused, to the bewilderment of the people gathered. Meanwhile, P.W. 12, the husband of <NAME>, finding his wife and child missing, went in search of them vain. The tidings came of the dead body and the revelation that it was not that of the accused, as originally suspected. So apprehension turned on the dead body being that of <NAME>. They went to the place but it was night and the next morning, i.e., November 6, 1971, P. W. 12the husband-and <NAME>-examined the corpse and to their shock discovered it to be the body of <NAME>. A <NAME>, P-10, was prepared. P.W. 12 reported to the police officer, <NAME>7 (Ex. P-2) and investigations revived in the new direction. P. W. 27 sent for the accused, who wanted to see her son, and they all met at the police station. P.W. 16 turned up at the police station, and breaking down perhaps under the stress of all that had happened, the accused said that she would confess. Ex. P- 7, the confession, was recorded which led to the discovery of the child's body, the bundle containing the burnt clothes and chisel, etc. (Ex. P-8). The langha of the accused was also recovered (Ex. P-9). Post-mortem was done over the body of the child, the accused was arrested and eventually she was charged with offences under S. 302 and s. 20  1 , I. P. C of course, there is no direct evidence in the case but the prosecution has placed a clinching wealth of circumstances and an extra-judicial confession to P.W. 16 to substantiate its version. It is trite law that Ex. P-7, the confession made while in police custody, is inadmissible except to the narrow extent salvaged by discoveries made in terms of S. 27 of the Evidence Act. We are left, therefore, with the confessional statement made to P.W. 16 orally. If it can be invested with veracity the guilt of the accused is virtually made out. But it is common-place law-and vehemently urged- that a retracted confession made orally to a near-villain like P.W. 16, who had reason to play for safety, was liable to be rejected without a second look at the statement. <ORG>-and <ORG>-have considered the many weaknesses relating to this confession. Those defects have been pointed as deadly by counsel for the appellant. We are satisfied that the credence given to it by the courts below cannot be treated as strange or otherwise seriously erroneous. Certainly he had no ill-feeling for the accused and nothing palpably improbable has been made out in the spontaneous unburdening of her bosom by the accused in distress, hastening to her paramour after the murder in the hope that she would now vanish with her lover, and telling him the murderous truth. Marginal mistrust generated by counsel's argument is inadequate to reject the testimony of P.W. 16. However, there are circumstances attaching to his whereabouts and the slight delay in his statement to the police and the dubiety of his character which permitted his openly wearing a stolen gold ring received from another man's wife. It is but fair, therefore, for the <ORG> to search for convincing corroboration. The precedents cited before us by counsel for the appellant take us no further than the need to ask for satisfactory reinforcement of a retracted confession not too good to be treated as sufficient in itself to fasten the guilt.

We are, therefore, thrown to the task of evaluating the circumstances and the extent to which they buttress up the self-incrimination content in the confession- Motive by itself is not much, particularly in the absence of direct evidence, but in the company of other factors it plays a probative role. The discovery of the child's dead body and the clothes belonging to the accused, as well as the chisel of P. W. 2, the father, which was admittedly missing, are a clear pointer to the guilt, although by themselves do not cover the entire distance from "may be" to "must be" in the proof of guilt. The noose of guilt is tightened by the testimony of P.Ws. 4, 13 and 15. P.W. 13, the mother-in-law of <NAME>, deposed that the deceased, her daughter-in-law, went out to fetch vegetables from the fields and the accused was seen following her with a bundle of clothes to wash them in the stream. P. W. 15, an apparently disinterested man, speaks of having seen the accused at Khallam at about 5 p.m. near where the deceased also was. Although the trial court did not choose to believe him, the appellate court thought that it was not risky to rely on his testimony. <NAME> swore. to having seen the accused at Khallam at about sundown on the relevant date. This shepherd also states that he saw the deceased collecting firewood near about there and heard the cries of a girl. There has been a detailed discussion of the evidence of these witnesses by <ORG> and notwithstanding the attempt elaborately made by <NAME>, the evidence of these witnesses has not been fractured or rendered incredible.

The fact that the accused was seen last with the deceased in a place where and at a time when few others were around, the fact that the deceased's body was covered cleverly by the clothes of the accused-foolishly, as we now see by hind- sight-the discovery of telltale clothes on the baby's body, the lethal chisel, her blood-stained skirt concealed in the bush, all strongly probabilise the truth of the confession. In a well-considered judgment the learned Judges of <ORG> have covered all the relevant evidence and reached the unhesitating conclusion that the accused had done to death <NAME> and <NAME>. <NAME> persistent effort to attack almost every part of the prosecution evidence testifies to his industry, which we appreciate, but hardly carries conviction. All the circumstances converge towards the focal point of guilt of the accused, her fatuous assumption that others would be deceived along a wrong trail has failed, and the impending cremation which would have blotted out a vital evidence was averted and truth has come out. We have hardly 'any doubt that the conviction deserves to be confirmed.

Counsel for the <ORG> correctly drew our attention to 'the great limitations on the exercise of the extraordinary jurisdiction under art. 136 of the Constitution, particularly, when dealing with the concurrent findings of fact. He is right in contending that we, should dismiss arguments which nibble at the credibility of witnesses. But finding the case hanging on a retracted extra-judicial confession from 9--L954 Sup CI/74 a person who does not necessarily inspire great confidence, corroborated only by circumstantial evidence, we thought it proper to make a conscientious search to see, if truth had been reached and miscarriage of justice averted. We are satisfied, as already stated, that the accused's guilt, to the extent human instruments can apprehend, has been made out.

Guilt once established, the punitive dilemma begins. The choice between death penalty and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence. However, in the Criminal Procedure Code , 1973, about to come into force, <ORG> has wisely written into the law a post-conviction stage when the Judges shall "hear the accused on the question of sentence and then pass sentence on him according to law." (S. 235 & s. 248 ).

The case on hand has to be disposed of under the present Code and we have to fall back upon the method of judicial hunch in imposing or avoiding capital sentence, aided by such circumstances as are present on the record introduced for the purpose of proving guilt. We are aware that in <CITATION> .(1), there was an argument about the absence of procedure laid down by the law for determining whether the sentence- of death or something less is appropriate in the case. The Court viewed this Criticism from the constitutional angle and observed :

"The <ORG> 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 him- self 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." "The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference (1)  1 S. C. C. 20.

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."

In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as ,much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the <ORG> when the actual sentence is determined.

The prisoner is a young woman of 24 flogged out of her husband's house by the father-in-law, living- with her parents with her only child sex-starved and single. The ethos of the rural area where the episode occurred does not appear to have been too strict or inhibitive in matters of sex, for the deceased and the accused were both married and still philandered out of wedlock with <NAME>, a middle-aged widower who made no bones about playing the freelance romancer simultaneously with them. Therefore, the accused incautiously slipped down into the sex net spread by <NAME>, and while entangled and infatuated, discovered in the deceased a nascent rival. With the reckless passion of a jealous mistress she planned to liquidate her competitor and crudely performed the double murder, most foul. Perhaps it may be a fable extenuation to remember that the accused is a young woman who attended routinely to the chores of domestic drudgery and allowed her flesh to assert itself salaciously when invited by uncensured opportunity for lonely meetings with <NAME>. It may also be worth mentioning that, apart from her youth and womanhood, she has a young boy to look after. What may perhaps be an extrinsic factor but recognised by the court as of humane significance in the sentencing context is the brooding horror of 'hanging' which has been haunting the prisoner in her condemned cell for over two years. The Sessions Judge pronounced the death penalty on December 31, 1971, and we are now in February 1974. This prolonged agony has ameliorative impact according to the rulings of this Court. The leading case in <CITATION> (1) was relied upon by this Court in <CITATION> (2). The following passage from the <ORG> decision is telling :

"In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of this death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death."

(1) A. 1. R. [1944] F. C. L (2) (1974) C. L. J. 1775.

The decision in <CITATION> (1) strikes a similar note. Although this consideration is vulnerable to the criticism made by counsel for the <ORG> that as between two capital sentence cases that which is delayed in its ultimate disposal by the courts receives the less terrible punishment while the other heard with quick despatch, for that very reason, fails to relieve the victim from condemnation to death.

In this unclear situation it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad hoc forensic impressionism to decide for life or for death. Even so, such sentencing material as we have been able to salvage from the guilt material in the paper book persuades us to award life imprisonment to the prisoner and modify to that extent the death sentence imposed by the courts below. It behaves us to indicate why we have chosen this course. In the twilight of law in this area, we have been influenced by the seminal trends present in the current sociological thinking and penal strategy in regard to murder. We have also given thought to the legal changes wrought into the penal code in free India. We confess to the impact made on us by legislative and judicial approaches made in other countries although we have warned ourselves against transplanting into our country concepts and experiences valid in the West.

It cannot be emphasised too often that crime and punishment are functionally related to the society in which they occur, and Indian conditions and stages of progress must dominate the exercise of judicial discretion in this case. In India the subject of capital punishment has abortively come before <ORG> earlier, although our social scientists have not made any sociological or statistical study in depth yet. On the statutory side there has been a significant change since India became free. Under s.367(5) of the Criminal Procedure Code , as it stood before its amendment by Act 26 of 1955, the normal rule was to sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be recorded in writing. By amendment, this provision was deleted with the result that the court is now free to award either death sentence or life imprisonment, unlike formerly when death was the rule and life term the exception, for recorded reasons. In the new Criminal Procedure Code , 1973 a great change has overtaken the law. Section 354(3) reads :

"354(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."

The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule and capital sentence the exception to be (1) A. 1. R. 1973 S. C. 2699.

resorted to for reasons to be stated. In this context it may not be out of place to indicate-not that it is conclusive since it is now tentative that under the Indian Penal Code (Amendment) Bill, 1972, s. 302 of the Penal Code has been substituted by a less harsh provision limiting death penalty to a few special cases (vide s. 122 of the new bill).

It is obvious that the disturbed conscience of the <ORG> on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention.

<NAME>) has adjudged capital sentence constitutional and whatever our view of the social invalidity of the death penalty, personal predilections must bow to the law as by this Court declared, adopting the noble words of Justice <NAME> of California uttered in a death sentence case : "As a judge, I am bound to the law as I find it to be and not as I fervently wish it to be". (The Yale Law Journal, Vol. 82, No. 6, P.1138). Even so, when a wise discretion vests in the court, what are the guidelines in this life and death choice ? The humanism of our Constitution, echoing the concern of the Universal Declaration of Human Rights, is deeply concerned about the worth of the human person. Ignoring the constitutional content of <NAME> (2), and <NAME>), the humanist thrust of the Judicial vote against cruel or unusual punishment cannot be lost on the Indian judiciary. The deterrence strategists argue that social defence is served only by its retention,-thanks to the strong association between murder and capital punishment in the public imagination,-while the correctional therapists urge the reform of even murderers and not to extinguish them by execution. History hopefully reflects the march of civilization from terrorism to humanism and the geography of death penalty depicts retreat from country after country. The U.K. and the U.S.A. are notable instances. Among the socialist nations it has been restricted to very aggravated forms of murder. The lex talionis principle of life for life survives in some States still, only to highlight that in punitive practice, as in other matters we do, not live in 'one world' but do move zigzag forward to the view that the uniquely deterrent effect of death penalty is, in part, challenged by jurists, commissions and statistics. But as a counterweight we have what an outstanding justice of the Ontario appeal court said some years ago(4) "The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice-not for- its abolition. Nowadays, with the advent of armed criminals and the substantial increase in armed robberies, criminals of long standing if arrested, must expect long sentences.

However, if they run no risk of hanging, when found guilty of murder, they will kill policemen and witnesses with the prospect of a future no more unhappy, as one of them put it. than being fed, lodged, and clothed for the rest of their lives."

(1)[1973] 1 S. C. C. 20.

(2) 100 California Reporter 152 (3) 408 U. S.-218 (4) Capital Punishment-Thorstn Sellin P.

The final position, as we see it, is neither with the absolute abolitionist nor with the Mosaic retributions. It is relativist, and humanist, conditioned by the sense of justice and prevailing situation of the given society. In England, men once believed it to be just that a thief should lose his life (as some Arab Chieftains do to-day) but the British have gone abolitionist now without regrets. In contemporary India, the via media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws.

While, deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime, to espouse a monolithic theory of its deterrent efficacy is unscientific and so we think it right to shift the emphasis, to accept composite factors of penal strategy and not to put all the punitive eggs in the 'hanging' basket but hopefully to try the humane mix.

We assume that a better world is one without legal knifing of life, given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socioeconomic conditions and legislative judgment have a role. Judicial activism can only be a signpost, a weather vane, no more. We think the penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangmen's rope. 'Thou shalt not kill' is a slow commandment in law as in life, addressed to citizens as well as to States, in peace as in war. We make this survey to just if your general preference where s.302 keeps two options open and the question is of great moment. Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socioeconomic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being .under s. 302 read with s. 149 , or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the borrandous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astro- logical imponderable in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.

Here, the criminal's social and personal factors are less harsh, her feminity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards award of life imprisonment. We realise the speculative nature of the correlation between crime and punishment in this case, as in many others, and conscious of fallibility dilute the death penalty. The larger thought that quick punishment, though only a life term, is more deterrent than leisurely judicial death award with liberal interposition of executive clemency, and that stricter checking on illicit weapons by the police deters better as social defense against murderous violence than a distant death sentence, is not an extraneous. component in a court verdict on form of punishment.

We have indicated enough to hold that, marginal vaccination notwithstanding, the death sentence must be dissolved and life sentence substituted. To this extent the appeal is allowed, but otherwise the con-

viction is confirmed.

<NAME>

Appeal allowed in part.