JUDGMENT <NAME> - A Division Bench of this Court has in view of the difference of opinion between various Courts including different Benches of this Court referred the first question which has been stated to <ORG> for opinion. The question referred by <ORG> is :

"(i) Whether a reference to <ORG> is competent on the point indicated in the question following, which was not raised before or considered by the <ORG> ?"

It arises in the following circumstances. <NAME> was a <ORG> servant. After retiring from <ORG> service in June, 1946, he started a business in the name and style of <ORG> for purchasing and selling of goods from <ORG> and from other sources. The previous year in the present case is from the 1st of July, 1946, to the 30th of June, 1947. He filed a return showing a profit of Rs. 6,184. It is claimed that the accounts were found to be correct and in order but three items stated to be from undisclosed sources were taken into the revenue account by the Income-tax Officer. The items were

1. Rs. 40,000 found to be in fixed deposit on the 16th of July, 1946, in the name of the assessees wife.

2. Rs. 34,778 in the assessees personal account out of which Rs. 18,350 were dated after the 31st March, 1947.

3. Rs. 5,000 also in the assessees bank accounts, all of which were before the 31st of March, 1947.

It is necessary to see as to what was raised before the various officers and tribunals at various stages by the assessee. When the mater was taken to the Income-tax Appellate Assistant Commissioner the question with regard to Rs. 40,000 was raised in the forms that this Rs. 40,000 which was in deposit in the name of the wife of the assessee was obtained by her by selling her jewellery for a sum of Rs. 20,000 and that she took a loan of Rs. 15,000 from her father and the balance was made up out of the savings which she was able "to collect from the personal expenses." This statement was not accepted by the Income-tax Officer nor by the Assistant Commissioner.

In regard to the sum of Rs. 34,778 the Income-tax Officer refused to accept the explanation of the assessee, and the only question which seems to have been raised before the Appellate Assistant Commissioner is shown by his order at page 17 of the paper book and that was whether to the conclusion that this sum was undisclosed profits, and after taking into consideration the explanation given by the assessee the Assistant Commissioner allowed a deduction of Rs. 5,778 on this account.

Similarly in regard to Rs. 5,000 the Assistant Commissioner accepted the explanation of the assessee and held that only Rs. 3,500 remained unexplained and he thus allowed a deduction of Rs. 1,500.

The grounds of appeal filed by the assessee before <ORG> have not been placed before us but the order shows what was urged before the <ORG> have not been placed before us but the order shows what was urged before the <ORG> at the appellate stage.

In regard to Rs. 40,000 it was urged that this was the belongings of the wife and it was also submitted that the first transaction of the business having taken place in August 1946 no profits could have arisen as early as the 16th of July, 1946. The <ORG> then went on to discuss the case which had been put forward on behalf of the <ORG> and then discussed the case which was put forward by the assessee as to how the Rs. 40,000 had been obtained, and after considering all that the <ORG> observed :

"We are satisfied that, for the reasons given by him, the Appellate Assistant Commissioner was right in refusing to admit the affidavit of the goldsmith produced at the belated stage for the first time before him. In our view, the assessee has not satisfactorily explained the receipt of Rs. 20,000 out of the so-called deposit of the sum of Rs. 40,000 and we, therefore, uphold Rs. 20,000 under this item and delete the balance of Rs. 20,000."

With regard to other items Nos. 2 and 3 the <ORG> upheld the order of the Appellate Assistant Commissioner and gave reasons why the explanation given by the assessee could not be accepted. They thus reduced the sum of Rs. 40,000 by the assessee could not be accepted. They thus reduced the sum of Rs. 40,000 by Rs. 20,000 but did not interfere with the order of the Appellate Assistant Commissioner in regard to the rest.

Notice was served on the assessee on the 18th of August, 1951, and he made an application under section 66(1) of the Indian Income-tax Act. This application is printed at page 4, but the printed copy does not show as to when it was filed. We take it that it must have been filed within the sixty days allowed by section 66(1) of the Income-tax Act. The assessee sought to raise six questions of law and I law and I need only refer to the first question which was :

"1. Whether on the facts and in the circumstances of the case the <ORG> was correct in law in finding that out of Rs. 40,000, a fixed deposit receipt, the assessee had not been able to prove the source of Rs. 20,000 ?"

On the 26th of October, 1952, the assessee made an application under section 35 of the Income-tax Act and in clause (3) he stated :

"...... The following items included in Rs. 29,000 do not fall within the financial year cavern the assessment year 1948-49. On the other hand, as indicated by the dates, the same fall within the year preceding, assessment year 1947-48......"

<ORG> by an order dated the 17th February, 1953, have drawn up a statement of the case and have referred the following two questions for decision of the <ORG> :

"(1) Whether a reference to <ORG> is competent on the point indicated in the question following, which was not raised before or considered the Tribunal ?

(2) If the answer to above question is in the affirmative, whether cash credits the nature and source of which were not satisfactorily explained and which came to the surface in the financial year 1946-47 were properly assessed as the assessees income from undisclosed sources for the assessment for 1948-49 ?"

It is necessary to say that in the sixth paragraph of the statement the following was added :

"The Commissioner wishes us to add that the questions above set out were not raised in the assessees application under section 66(1) either. That is true. The omission may preclude the assessee from insisting on a reference being made to <ORG> on such questions, but cannot fetter the Tribunals discretion in any manner. This fact also will no doubt be kept in mind by <ORG> in arriving at a decision on the first question."

It was urged before <ORG> that "the assessment for 1948-49 made in respect of the cash credits which came to the surface before 1st April, 1947, (that is, before the financial year 1947-48) is illegal." A reference is then made to certain rulings for and against the point that a reference under section 66 is competent if on the facts found by the <ORG> a question of law can be fairly raised, though the question might not have been considered by the <ORG>. It is under these circumstances, that two questions of law were referred for decision by this <ORG> and the first one has been referred for the opinion of <ORG>.

In order to decide the question that has been referred, that is whether a reference to <ORG> is competent on a question which was not raised before or considered by the <ORG> it is necessary to refer to the scheme of the Act.

Section 30 Provides for appeals to the Appellate Assistant Commissioner against an assessment under the Act. It runs :

"(1) Any assessee objecting to the amount.... or denying his liability to be assessed...... may appeal to the Appellate Assistant Commissioner against the assessment......."

This appeal has to be presented within thirty days of the receipt of notice of demand and has to be in the prescribed form which is to be verified in the prescribed manner; and the form is prescribed under rule 21 made under section 59 of the Income-tax Act. At the hearing of an appeal before the Appellate Assistant Commissioner an appellant can be allowed to go into any ground of appeal not specified in the grounds of appeal if the Appellate Assistant Commissioner allows it.

Appeals against the order of an Appellate Assistant Commissioner be provided in section 33 of the Act for which a period of sixty days is prescribed. This appeal also has to be in the prescribed form and has to be verified in the prescribed manner and is to be accompanied by a fee of Rs. 100. The prescribed form requires that grounds of appeal should be separately paragraphed.

The order of <ORG> is final subject to the provisions of section 66 .

Now, section 66(1) provides for a statement of the case by <ORG> to <ORG> and when quoted it runs as under :

"66. Statement of case by <ORG> to <ORG>. - (1) within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33 the assessee or the Commissioner may, by application in he prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the <ORG> to refer to the <ORG> any question of law arising out of such order, and the <ORG> shall within ninety days of the receipt of such application, draw up a statement of the case and refer it to the <ORG> :

Provided that if, in the exercise of its powers under sub section (2), <ORG> refuses to state a case which it has been required by the assessee to state, the assessee to state, the assessee may, within thirty days from the date on which be receives notice of the refusal to state the case withdrawn his application and, if he does so, the fee paid shall be refunded."

Thus, according to this section, after an application is made within the prescribed time on the prescribed form with the request fee the <ORG> has to draw up a case and refer it to <ORG>, and if it refuses to state the case which it has been required by the assessee to state, the assessee may within the prescribed time withdraw his application, and sub-section (2) of section 66 provides that if the Appellate <ORG> refuses to state the case on the ground that no question of law arises, an application can be made to <ORG> for an order to the Appellate <ORG> to state the case and refer it and the Appellate <ORG> is then bound to state the case and refer it to <ORG>.

Sub-section (3) of section 66 provides that if <ORG> rejects the application on the ground that it is barred by time and an application is made to <ORG> by the assessee and if the <ORG> not satisfied as to the correctness of the decision the <ORG> can order <ORG> to treat the application as if it was made within time.

Sub-section (4) provides that if <ORG> is not satisfied that the statements in a case referred under section 66 are sufficient to enable it to determine the question raise, then it may refer the case back to the <ORG> to make such additions or alteration as the <ORG> may direct.

Under sub-section (5) <ORG> at the hearing is bound to decide the questions of law which are raised.

Under section 59 of the Act rules have been made giving the prescribed form for an application under section 66 and sub-section (5) of this section makes the rules published under this section as if they were enacted in the Act. Rule 22A gives the form for reference under section 66(1) . In clause 4 it requires the applicant to mention the questions of law which arise out of the order of the <ORG>, and clause 5 requires the applicant to indicate the questions out of the questions mentioned in clause 4 on which he requires a reference to be made to <ORG>.

A combined reading of section 66 and the statutory rules made under section 59 shows that an application for reference to <ORG> has to be made

(i) Within sixty days from the date of service of the order;

(ii) on a prescribed form;

(iii) the applicant has to indicate the questions which he wants to be referred to <ORG> and on which the requires the case to the stated;

(iv) the <ORG> cannot suo motu refer any question which is dehors paragraph 5 of the application made on the prescribed form.

Rules have also been made in regard to the proceedings and powers of <ORG>. These are <ORG> Rules, 1946. Rule 12 of these rules provides that an appellant cannot before the <ORG> be heard on any ground which he has not set forth in the memorandum of appeal or taken by leave of the <ORG> under the rule. Rule 36 makes certain rules applicable mutates mutandis to an application under sub-section (I) of section 66 , but it must be noted that rule 12 is not one of them and, therefore, at the time when an application for making a reference under section 66(1) is heard the <ORG> is confined to the ground set forth in the application for reference and a fortiori cannot suo motu raise a question of law which has not been set forth in paragraph 5 of the prescribed form.

In a Division Bench judgment of this Court, <CITATION> , the assessee had applied to <ORG> under section 66(1) of the Income-tax Act to state a case on certain questions and at the time of the hearing of the application raised two other questions also which <ORG> refused to raise, and it was held that the <ORG> was right in not allowing the assessee to urge or be heard in support of two additional questions because rule 12 has not been made applicable to applications under section 66(1) of the Act. Thus it was held that the <ORG> had no discretion to raise questions which were not in the application made on the form prescribed for applications under section 66(1) . This in my opinion, supports the construction placed on section 66(1) read with rules made under section 59 of the Act the <ORG> cannot raise a question of law suo motu.

But Mr. <NAME> submitted that the correct view is that any question can be raised irrespective of whether it is in the grounds or not and he sought to support his submission with the observation of <NAME>, J., in <CITATION> , where the learned Judge said at page 462 :

"<ORG> seems to think that it is not bound to decide an appeal before it by applying the appropriate law to the facts found by it simply because the assessee has erroneously relied on wrong provisions in support of his relief; and that it is not bound to refer to <ORG> the question of law that really arises on the facts found by it if the assessee does not raise the question of law in a particular form at the hearing of the appeal before the <ORG> or in his application under section 66(1) of the Act.

This it was held "is a serious misconception about the duties of <ORG>."

With great respect I am unable to accept the view taken by <NAME>, J., and for reasons which I have given above. Besides the rules under section 59 which are deemed to be a part of the statute do not seem to have been considered by the learned Judges.

In <NAME> v. Commissioner of Income-tax, Punjab it was held by the Full Bench that the Commissioner cannot travel beyond the question originally indicated by the assessee not can <ORG> raise any question suo motu which is not covered by the reference.

The form of the question before us, however, is confined to the power of the <ORG> to refer a point which was not raised before of considered by the <ORG>, and in this case this particular question was not in the prescribed application, not was it raised within the sixty days allowed by section 66(1) of the Income-tax Act, and the question referred to us has to be read in the light of paragraph 6 which shows that objection was taken as to the assessees right to get a reference made on this point, but the reference was made by the <ORG> suo motu, and I have already held that a reference suo motu is not within the contemplation of law.

The question arises, and that seems to be the purport of the question of law which has been referred to this Court, as to whether any point which was not raised before or considered by the <ORG> can be said to fall within section 66(1) of the Income-tax Act. The assessee contended that if the facts have been found by the <ORG> in its appellate order and from those facts a question of law can be fairly deduced, then it would fall within section 66(1) and must be taken to arise out of the order of the <ORG>, whether that question of law was raised before or considered by the <ORG> or not.

The scheme of section 66 indicates that in order that the jurisdiction of <ORG> may be invoked the question must have been raised, considered and decided by the <ORG>. Under section (2) of section 66 it is only when the Appellate <ORG> refuses to state a question of law on the ground that no such question of law arises and <ORG> is not satisfied with the correctness of this decision that it can call upon the <ORG> to state the case and refer it. Similarly, in sub-section (3) the jurisdiction or the power of <ORG> requiring the Appellate <ORG> to treat the application made under subsection (1) of section 66 was within time arises if the Appellate <ORG> has rejected the application on the ground that it is barred by time. Under sub-section (4) it is again when a statement is made to <ORG> and it is not satisfied that the statement is sufficient to determine the question raised it can send it back to the Appellate <ORG> to make such additions or alternations as <ORG> may direct.

The words of the section therefore show that the jurisdiction of <ORG> arises when a case is stated or is directed to be stated, and a case can only be stated if an application that behalf is made on the prescribed form or if <ORG> finds that the <ORG> has wrongly refused to state case on the ground that no question of law arises. It shows therefore that a case must be raised before the <ORG> before it can make the reference or refuse to make the reference, and in these circumstances it cannot be said that a question would arise merely because the facts justify the deduction of a question of law from the facts found even though the question is never raised before the <ORG>.

In support of the view that unless a question has been raised and decided by a <ORG> no questions of law can be said to arise there is a large number of authorities. In this court this matter was decided by a Division Bench consisting of <NAME> and <NAME>, in <ORG> v. commissioner of Income-tax. It was held in this case after referring to rules 12 and 36 of the Appellate <ORG> Rules that the <ORG> could not be directed to state a questions of law which had not been decided by the <ORG>. The reference there was to two questions Nos. 3 and 4 which had not been raised before the <ORG> and therefore could not be considered or decided by the <ORG>.

In <NAME> and Co. v. commissioner of <ORG>, Delhi, it was contended that under section 66(1) it is sufficient to state in a application that the <ORG> may refer to the <ORG> questions of Law arising out of the order of the <ORG>. In others words it is not for the assessee to formulate the questions but this contention was repelled because of rule 22A of the India <ORG> Rules, 1922, which gives the form of a application under sub-section of section 66 of the Act.

The jurisdiction of a High court is advisory. What it means is that in every case where the <ORG> decides a question of law it can approach <ORG> with the prayer to give a finding to as whether the view taken by the <ORG> on a questions of law is correct. That the jurisdiction is merely advisory has been consistently held in the cases which have been cited before us including those upon which the assessee relies; see <CITATION> .

<CITATION> , it was held by <ORG> that under section 66 the function of <ORG> is advisory only and is confined to considering and answering the actual question referred to it, and it was this reason that <ORG> deprecated as irregular the practice of <ORG> formulating questions itself and deciding them. <ORG> in <CITATION> said : "The Commissioner unfortunately omitted to formulate any questions of law arising out of this transaction. The duty of <ORG> under section 66 is to decide the questions of law raised by the case referred to them by the Commissioner and it is for the Commissioner to state formally the questions which arises. Here is <ORG> itself formulated the questions to be decided as being..... Their Lordships deprecate this departure from regular procedure......"

The same opinion was expressed by <ORG> in <ORG> v. <ORG>, Bombay Presidency and Aden, Where <ORG> had decided a case on an argument submitted to them for the first time, and <ORG> pointed out at page 50 that any claim as to liability to tax based on the argument was matter outside the letter of reference and was irrelevant to the questions submitted.

<CITATION> it was held that a questions framed by the Commissioner which is not happily worded can be recast so as to make it more precise.

After reference to all these cases a Full Bench of <ORG> in <CITATION> held that the word "any" before the words "questions of law arising out of such order" does not indicate that by merely making an application under sub-section (2) an assessee can call upon the Commissioner "to delve deep into the case and to refer them to <ORG>; and further in case of the Commissioner refusal he can similarly require <ORG> to hunt up to refer them. In my view, what the word any really connotes in this context is that, it, for example, ten questions of law arise in a case, it is open to the assessee to choose all or any of them as he likes and require a reference in that respect only but it is he who has to exercise his choice in the first instance and none else. Commissioner nor <ORG> can it of his or its dissatisfaction with the commissioners decision on a point which was never raised before him and it only when it is only when it is so dissatisfied, that it can take action under sub-section (3) ?" According to this case the assessee has to make an indication of the questions of law which he wishes to raise and he can require any one of them to be referred to <ORG>, and in the case of refusal the jurisdiction of <ORG> arises if there is its revenue, in that the questions to be referred must be raised, considered and decided by the <ORG> before any reference can be made.

It might also be stated at this stage that the proceedings under sub-section (2) of section 66 , for instance, are in the nature of a mandamus, and the officer concerned must first be given an opportunity to perform his duty before dissatisfaction can arises, that is, there must be a demand and refusal. And how can there be a mandamus if the question has never been raised at all ?

In <NAME> v. Commissioner of Income-tax it was held that the jurisdiction of <ORG> under section 66(3) is confined only to those matter which are contained in the application made to the Commissioner under sub-section (2) of section 66 and it is only in relation to such matters that the refusal of the Commissioner to state the case can be investigated by <ORG>, and therefore if a point is not raised before the Commissioner, his refusal to state the case cannot be declared to be unjustified.

<CITATION> , the questions decided was that no application lies under section 66(2) of the Act for requiring the <ORG> to refer the question for decision if in the application under section 66(1) the assessee did not arise that question. In this case it was held that directions under section 66(2) are in the nature of mandamus and a direction will not ordinarily he issued to the <ORG> unless the <ORG> was required to do and had an opportunity of considering the questions, in other words, unless there was evidence of a distinct demand and such a demand was met by refusal.

Thus it comes to this that according to nature of the proceedings under section 66 which given to <ORG> not a supervisory but merely an advisory jurisdiction <ORG> can be asked to given an opinion on a questions which has been stated by the <ORG> or which <ORG> call upon the <ORG> to state, and in the latter case it can only arise where the <ORG> was asked by the assessee in the form indicated by section 66 to consider the questions and to state it to <ORG>.

What then is the meaning of the words "any questions of law arising out of such order", that is the order of the <ORG>. The revenue contended that the questions can only arise if it is raised before the <ORG> and considered by it. <NAME> case supports this contention.

Reliance was also placed on <ORG> v. Commissioner of Income-tax, Punjab. It was held in this case by <ORG>., that if a questions is not raised in the appeal before the Assistant Commissioner of Income-tax, it cannot be said to arise out of an order made by him under section 31 and the assessee has no right to require the Commissioner to refer the question. This case was severely curtsied on the ground that no reasons had been given by the learned judges but in my opinion if the decision, and I say so with respect, is confined to the facts of that case no fault can be found with it.

In Madras the same view was taken in <CITATION> , which was a petition under section 66(2) of the Income-tax Act. The question on which directions of <ORG> were sought under section 66(2) were not referred to <ORG> in the first instance because they were not raised at the hearing before the <ORG>. After referring to section 66(1) and 66(2) <NAME>, J., was of the opinion that a questions of law which an Appellate <ORG> can be required to refer under section 66(1) is a question of law arising out of such an order, that is, the order of the Appellate <ORG> passed on appeal, and when it was contended that though the question had not been raised before the <ORG> it can well be said to arise out of its order if on the facts of the case appearing from the order the question fairly arises <NAME>, J., observed.

"I am of opinion that a question of law can be said to arise out of an order of <ORG> only if such order discloses that the question was raised before the <ORG>,"

and the learned Judge followed the judgment of <ORG> in <ORG> and <NAME> case, and held that <CITATION> , was application to the facts of that case, and referring to the <ORG> decision in <ORG> v. <NAME> the learned Judge said that the case could not furnish a useful analogy as the scope of the remedy under section 66 of the Indian Income-tax Act has to be determined with reference to the language of the statute. This judgment has been criticised by counsel for the assessee on the ground that if literally applied it would make it possible for the shutting out of a question of law being raised in the High Court where although a question has raised and argued before a <ORG> but has been absolutely ignored even though such a question may be of very great importance, but the observations of the learned Judge must be confined to the facts of that case where the two questions which were then sought to be raised had never been either raised or argued before the <ORG>. It cannot apply to other set of circumstances which may have a different answer. But when we are considering the powers of the <ORG> we must presume that they will be exercised in accordance with law in that all questions which are in the grounds of appeal and are raised and argued before the <ORG> will be decided by it, and if they are not so decided it is open to the assessee or the Commissioner, as the case may be, to indicate in the application made under section 66(1) that the questions were raised and argued but not decided, and if even then the case is not stated an application under section 66(2) might be a proper remedy. But it is not necessary to decide this question really, because it does not arise on the facts of the present case.

In two other cases <ORG> has taken the same view as was taken by <NAME>, J., in <NAME> case. <CITATION> . it was held that a question as the apportionment of profits between British Indian and Indian States could not be raised as it was not question referred to <ORG> and as it was not a question raised before <ORG> it could not be said that it was a question which arose out of the order of <ORG>. <NAME> case was followed. It was argued in this case that the questions actually refereed to <ORG> were wide enough to cover the question of apportionment of profits but it was observed that the <ORG> had to understand the question referred in the light of the statement of facts and of the case which is the basis of the reference to the <ORG> and after referring to <NAME> case it was held that the question can arise out of the order of the <ORG> only if the order discloses that the question of apportionment was not raised before the <ORG> nor before the Appellate Assistant Commissioner. The <ORG> observed :

"The question of apportionment was not raised before <ORG>, not to speak of the Appellate Assistant Commissioner. In these circumstances it is impossible to hold that it is a question which arise out of the order of <ORG> and which is covered by the question that are actually referred to us."

The next Madras case is <CITATION> , and it was there held that a question of law would arise out of an order of <ORG> only if it has been raised and dealt with before the <ORG>. Before <ORG> counsel appearing for the assessee had conceded that section 41 would not directly apply to the facts of the case as the section is applicable in the case of a trust if it is declared by a duly executed instrument in writing. The words "arising out of such order" were dealt with at page 812 and they were held to mean that a question would arise out of an order only if it had been raised and halt with before <ORG>. Reliance was placed on <ORG> v. Commissioner of Income-tax and <NAME> case and reference was made to a judgment of <ORG> in <CITATION> where it was pointed out by that Court that as the statement of the case prepared by <ORG> under the rules framed under the Income-tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for an addition or deletion from that statement, <ORG> in dealing with the questions should find and restrict itself to the facts contained in the statement of the case and it should answer the question of law on that fact finding authority which is no part of it advisory jurisdiction. It was because of this that the assessee was not allowed to raise the question which he had expressly conceded before the <ORG>. In this Madras case, <CITATION> , it was observed :

"The question was not one which was raised and debated and considered by the Appellate tribunal and by no stretch of language can it be said that the applicability of section 41 is a question of law arising out of such order. It is, therefore, not open to us to consider the applicability of section 41 to the facts of the present case."

The same view was taken in <ORG>. <CITATION> the assessee made an application under section 66 of the Income-tax Act raising several questions, one of which was rejected on the ground that it did not arise out of its order and the other questions were not referred because they were question of fact. On an application being made under section 66(2) of the Act it was held by <ORG> that as the question was not raised before the <ORG> it did not arise out of its order and, therefore, it was not open to <ORG> to go being that decision. Discussing this matter at page 494 it was said that it could not even be argued that the question arose out of the <ORG> order because that point was expressly abandoned before the Appellate Assistant Commissioner. The Court was of the opinion that the jurisdiction of <ORG> was purely advisory and strictly limited and that after a case had been disposed of by the <ORG> in appeal a reference can be made to <ORG> for its advice on the question divided but the question must be the same which was actually raised before the <ORG> and dealt with by it, for, "the section says that it must arise out of the <ORG> order. If the <ORG> decline to make a reference on the ground that no question of law arises, the applicant has the right to move <ORG>, and <ORG> may, if it is satisfied that the decision of the <ORG> in refusing to make a reference was not correct, direct a case to be stated and referred." Construing the words "no question of law arises", the Court observed :

"It cannot possibly mean that no question of law of any kind arises asked for by the applicant, does not arise. A contrary view would lead to the manifestly absurd position that where the <ORG> agrees with <ORG> does arise, only that question will be reference to the <ORG> does arise, only that question will be referred, but if the <ORG> disagrees with the applicant, then the rights of the applicant are enlarged and he is entitled to a consideration of any question that might arise out of the facts. Such cannot possibly be the intention of the sub-section and the phrase I have quoted must be read as meaning that in the view of the <ORG> no question, such as the question formulated by the applicant, arises."

The same view was taken <NAME>, <NAME>, and <NAME>, J., in <CITATION> , and the following observations from that judgment are relevant :

"We are unable to take that view. It has been clearly laid down in <CITATION> , that a question of law can be said to arise out of an order of <ORG> only if such order discloses that the question was raised before the <ORG> cannot be said to arise out of its order even if on the facts of the case appearing from the order, the question fairly arises. We respectfully agree with the view expressed by <ORG>. The decision of <ORG> accords with the Principle underlying a mandamus."

The next Calcutta case is <CITATION> . where it was held that in a reference under section 66(1) of the Income-tax Act the proper course for <ORG> to adopt is to limit itself severely to the questions arising out of the order of the <ORG> and to proceed on the view that only those questions arise out of the order which have been dealt with by it and that of such questions again, those only should be considered and answered by <ORG> which have been actually referred. <ORG> may reframe a question referred in order to clarify its meaning or to bring out the real point of controversy to the surface but it cannot add some questions to those referred, whether on the ground that they were dealt with by the <ORG> or on the ground that though they were not so dealt with, they arise out of the facts of the case. At page 174 it was observed :

"In my opinion, it is not proper to overlook the fact that the jurisdiction of <ORG> upon a reference under section 66(1) of the Income-tax Act is purely advisory, that the sole task of the <ORG> is to answer the question actually referred on the case stated and that it is no part of its duty or right to give further advice or to set about raising other questions and proceeding to decide them. Oftener than not, questions are farmed in such a way as to ask whether a particular order is warranted by a particular section of the Income-tax Act . As is well-known, questions which may conceivably arise under any section of the Act are legion and it would be intolerable if <ORG>, in dealing with a reference, was called upon, and took it upon itself, to consider and decide all such questions. In my view, the proper course for <ORG> to adopt is to limit itself severely to the questions arising out of the order of the <ORG> and to proceed on the view that only those questions arise out of the order which have been dealt with by it and that of such questions again those only should be considered and answered by <ORG> which have been actually referred."

It was also said that in dealing with a reference the Court is not revising the assessment itself but only answering a particular question or questions. Reference was made to <NAME> v. Commissioner of Income-tax, Bombay, <NAME> and to <ORG> deprecating the practice of departing from the strict terms of the question referred, <CITATION> , <ORG> v. Commissioner of Income-tax, Bombay Presidency, and <CITATION> . In the last case <NAME>, L. J., delivering the judgment of the <ORG> observed that "although the question actually referred did not arise, but some other question might emerge with regard to the assessees liability to income-tax in respect of the same income, it would be clearly contrary to their Lordships practice to attempt to formulate any such question even if they had before them the material for so doing." It is true that this last case has reference only to the practice of <ORG> but it is significant that <ORG> has pronounced decisively in favour of the stricter view of section 66(1) of the Income-tax Act.

The view taken in Patna also accords with the Madras and the Calcutta view. <CITATION> it was held that section 66(1) and (2) of the Income-tax Act does not confer upon <ORG> a general Jurisdiction to decide a question that may possibly arise out of the income-tax assessment. The section confers a special and limited jurisdiction upon <ORG> to decide upon specific questions of law which have been raised between the assessee and the <ORG> before the <ORG> and upon which questions the parties are at issue and the correct interpretation of section 66(1) is that the question of law which a party seeks to refer must be a question of law which has been actually raised before the <ORG> or actually dealt with in its order. In this case it was contended that the expression "any question of law arising out of such order" in section 66(1) should be construed to mean that the question of law should fairly arise out of the facts appearing from the order and not necessarily that the question of law should have been actually argued before the <ORG> or dealt with in the <ORG>s order but this contention was repelled. Reliance was placed on <NAME> case, the Madras case <CITATION> and on the Calcutta case <CITATION> case. was held that the jurisdiction with which <ORG> is invested under the Income-tax Act is of an exceptional nature and in hearing the reference <ORG> has session only of such question of law as has been duly raised before the Appellate <ORG> and upon which there is statement of the case. In another Patna case <CITATION> . it was held that the special jurisdiction of <ORG> under section 66(2) depends upon the strict fulfilment of the preliminary conditions required by the parties before the <ORG> or dealt with in the order of the <ORG> <ORG> has no jurisdiction to discuss and answer that question. <ORG>, therefore, has no jurisdiction to call for a statement of the case on a question law which was not raised before the <ORG> and was not dealt with by in its appellate order.

Coming now to this High Court and <ORG> in <CITATION> a case which I have already referred to, a Division Bench held that two questions which had not been raised before <ORG> could not be said to arise from the order passed by it as perusal of the order showed that the questions of law sought to be raised were nowhere decided by the Tribunal and, therefore, they did not arise from the order passed by the Tribunal. In an older Lahore case <NAME> and Co. v. Commissioner of Income-tax, Punjab, which was an application for mandamus and where a question of law was not raised in the appeal to the Assistant Commissioner or decided by him, it was held that it did not arise out of the order under section 31 . It is true that there are no reasons beyond reference to section 31 , but this view is in accord with the opinion given in the <ORG> decision in <NAME> case and was also the opinion of this Court in <CITATION> decided by <NAME> and <NAME>, JJ., and to which I have already referred.

The assessee relied on <CITATION> . which was a case decided by <NAME> and <NAME>, JJ. It was held in this case that it cannot be said that under no circumstances can a point of law be said to arise out of an order of <ORG> under section 33 (4) of the Income-tax Act simply because the point has not been raised and discussed in the order itself. In this case two questions were sought to be referred and both were regarding jurisdiction. The <ORG> refused to refer these questions and it was contended on behalf of the <ORG> that the subject of a reference to <ORG> under section 66 need not necessarily be one which had been raised and discussed in the appellate order and that fundamental question such as want of jurisdiction is one which was said to arise out of the order of <ORG>, whether it had been raised in the appeal or discussed in the appellate order or not and this contention was accepted. Now, this was a question of jurisdiction and the question had been raised before the <ORG> under section 66(1) and, therefore, there was no defect due to there being no application on the prescribed form within the period of limitation and whether such fundamental question as the question of jurisdiction should or should not be held to arise out of the appellate order of the <ORG> is not the matter before us in the present case and it is not necessary, therefore, to express any opinion as to the correctness of this judgment and it must be confined to the facts of that particular case.

Reliance was then place by the assessee on <CITATION> . In this case <ORG> had called upon the <ORG> to state the case and the <ORG> and made the reference. Under section 66(5) <ORG>, it has been held in many case, is bound to decide the questions of law raised thereby meaning on a case stated by the <ORG> itself or under the directions of <ORG> or after <ORG> has required some additions to be made and they have been made. The statement of the case as given at page 231 of the report shows that the question of appeal before the Appellate <ORG> but was not argued and a question of considerable importance affecting the jurisdiction of the <ORG> was raised by the Advocate-General in that as the question was not dealt with by the <ORG> it was not open to the <ORG> to raise it nor was it open to <ORG> to decide it. <NAME>, J., referring to this objection said :

"Since the <ORG> has, although the question was not argued before it, raised the question of law and referred it to us we are bound to determine it under sub-section (5),"

and in this view of the matter the learned Judge did not discuss the wide question as to the correct meaning to be placed on the words "question of law arising out of such order" and was of the opinion that these words would fall to be determined only under an application under section 66(2) of the Income-tax Act. <NAME>, <NAME>, although he recognised that the question had been given up and not argued before the <ORG> and that the case had been stated by the <ORG>, gave his opinion as to the meaning of the words "arising out of such order" and said :

"Now, looking at the plain language of the section, apart from any authority, I should have stated that a question of law arose out of the order of the <ORG> if such a question was apparent on the order itself or it could be raised on the facts found by the <ORG> and which were stated in the order. I see no reason to confine the jurisdiction this <ORG> to such questions of law as have been argued before the <ORG> or are dealt with by the <ORG>. The section does not say so and there is no reason why we should construe the expression arising out of such order in a manner unwarranted by the ordinary grammatical construction of that expression. This <ORG> has no jurisdiction to decide questions which have not been referred by the <ORG>. If the <ORG> does not refer a question of law under section 66(1) which arises out of the order then the only jurisdiction of the <ORG> is to require the <ORG> to refer the same under section 66(2) . It is true that the <ORG> has jurisdiction to resettle questions of law so as to bring out the real issue between the parties but it is not open to the <ORG> to raise new question which have not been referred to it by the <ORG>."

It was recognised that if the <ORG> does not refer a question of law under section 66(1) if it arises out of the order, then the only jurisdiction of the <ORG> is to require the <ORG> to refer the same under section 66(2) and that the <ORG> has no jurisdiction to decide questions which have not been referred by the <ORG>. But in interpreting the expression "arising out of such order" the learned Chief justice gave it a wider meaning because he thought that that was warranted by the ordinary grammatical construction of that expression, but this view of the law is not shared by the other High <ORG>s or at least a very large majority of them. In my opinion, these observations of the learned Chief Justice were obiter because the case having been stated by the Appellate <ORG>, the question had to be answered under section 66(5) . At the bottom of page 235 the learned Chief Justice said in so many words that the <ORG> had actually raised the question of law and referred it for the opinion of the <ORG> and under section 66(5) they were bound to decide the question and it was not open to the Advocate-General once a question of law had been raised by the <ORG> to ask the <ORG> not to give its opinion. At page 236 the learned Chief Justice said :

"It may be that a particular question may be irrelevant or unnecessary and we may refuse to give our opinion on such a question, but I do not think that it is competent to a party to challenge the jurisdiction of this <ORG> to answer a question which has been raised by the <ORG>. The <ORG> wants our advice on a particular question of law and it is our statutory duty to give that advice to the <ORG>."

Besides being obiter the observations of the learned Chief Justic are not in accord with the scheme of section 66 and the rules made under section 59 of the Act which show that section 66 becomes operative only if the jurisdiction is invoked in a particular manner and if the <ORG> was first invited to give its decision on the questions sought to be referred. This view finds further support from language sub-sections (2), (3) and (4) of section 66 where the satisfaction of <ORG> with the order of the <ORG> is indicated and this can only arise if the <ORG> has been called upon and has given its decision on the question sought to be raised. I, therefore, respectfully dissent from the view taken by <NAME>, C.J., that a question can be said to arise out of the order of the <ORG> if it can fairly be deduced from the facts found even if it is not raised before the <ORG> or is expressly given up and is, therefore, respectfully discussed dissent from the view taken by <NAME>, C.J., that a question can be said to arise out of the order of the <ORG> if it can fairly be deduced from the facts found even if it is not raised before the <ORG> or is expressly given up and is, therefore, not discussed or referred to in its order.

Counsel then referred to a judgment of <ORG> in Commissioner of Income-tax, Bombay, & Aden v. <NAME>. The matter came on reference under a mandamus. Notices were issued to the assessees at Shikarpur under section 22 of the Income-tax Act but they ignored the notices. They duty of the Income-tax Officer in such circumstances as prescribed in section 23(4) is to "make the assessment to the best of his judgment." An appeal was taken to <ORG> against an assessment under this section and he dismissed it upon its merits. He did not deal with the question of competency of the appeal. He merely held that the order of assessment was valid and merely confirmed the tax. He must have been acting under the powers given to him under section 31(3)(a) of the Act, but he expressed no opinion whether such assessment was one made under section 23 (4). The matter was taken to the Commissioner and subsequently an application was made for stating the case of the Judicial Commissioners which was refused by <ORG> who ordered the Commissioner under section 66(3) of the Act to state a case and refer it to them for their decision and the decision of that Court was in favour of the assessees and an appeal was then taken to <ORG>. No doubt, in his judgment Lord <NAME> said that the Commissioner could not refuse to state the case because one of the questions that arose was whether the appeal to <ORG>er was competent and by deciding the question himself adversely to the assessee the Commissioner could not deprive him right of having the question decided by the Court and its was the view which was taken by the Judicial Commissioners also but in spite of that this case does not interpret the expression. "any question arising out of the appellate order" not did any such question arise because the reference was on a mandamus being issued by <ORG>.

Another case which was relied upon is <CITATION> . This case was expressly dissented from <ORG> in Seth Gurumukh Singhs case Referring to this <NAME>, J., was of the opinion that if it was laid down in this judgment that new questions can be put and not merely that the form of questions can be recast, then the interpretation put upon the words of sub-section (2) of section 66 was erroneous. <NAME>, C.J., in <NAME> case was of the opinion that under section 66(2) the assessee was not required to formulate precise questions of law. What he had to do was to require the Commissioner to refer to <ORG> any question of laws arising out of the order or decision of the Assistant Commissioner, and then the Commissioner had to draw up a statement of the case within sixty days and refer it with his own opinion thereon. It is not only <ORG> which has dissented from this view, but a Full Bench of <ORG> also in <CITATION> , has taken a contrary view. In this case the assessees under section 66 (2) Applied to the Commissioner requiring him to refer three questions of law which he contended arose out of the order of the Assistant Commissioner which the Commissioner refused to do. The assessees then applied under section 66 (3) for an order requiring the Commissioner to state the case and referred two questions for the determination of <ORG> and it was contended that the Court had power under section 66(3) to order the Commissioner to state a case and refer any question of law which the Court was of opinion arose out of the order of the Assistant Commissioner not withstanding that such question of law was not duly raised before either the Assistant Commissioner or the Commissioner. A Special Bench of <ORG> held that the Court has no jurisdiction to order the Commissioner to state a case which the assessee has not duly required the Commissioner to refer under section 66 (2) and it was also observed that section 66 (3) the Court at the hearing of an application by the assessee has seisin only of such questions of law as have duly been raised by or before the Commissioner and upon which the Commissioner has expressed his opinion. The ambit of section 66 (3) is not wider than that of section 66(2) . The reference here is to the law as it existed before <ORG> were Constituted.

<ORG> in <NAME> case, however, refused to accept the view taken by <ORG> and was of the opinion that an assessee can require the Commissioner to refer to <ORG> any question of law arising out of an order or decision of the Assistant Commissioner which, at any rate, would not be the law now particularly in view of the requirements of an application in a prescribed form under section 66(1) of the present Income-tax Act .

New Piecegoods case was decided by a Full Bench of <ORG>, but in this case it was not that the question of law was not raised but one of the two aspects of the same question was not raised as is clear from the statement of the case as given at page 322. The question raised and decided by the <ORG> was that on a proper construction of section 9 the amount paid for municipal taxes and urban immovable property tax should be allowed as deduction in computing the income from property, and the two aspects of the question were :

"(1) that this tax should be deducted in the first instance before arriving at the bona fide annual value, and (2) that the annual value of the property being ascertained these are permissible deductions under heads (iv) and (v) of sub-section (1)."

Therefore, this case also not support the proposition.

<CITATION> is the judgment of <ORG> where a mandamus was issued to refer a question that had not been raised before the <ORG>. In this case observations fations of <NAME>, C.J., were followed and it is a fundamental principle of administration of justice that a litigant has a right to present at any stage any question of law arising from the facts found by a <ORG> and that the assessee has to plead facts and not law and the <ORG> is always under an obligation to apply the appropriate law to the facts found by it. This view of the law I would respectfully say is too widely stated and is opposed to the whole scheme of the Income-tax Act which I have already discussed. Ordinarily, a <ORG> has to decide those questions which are raised before it and it and it does not and cannot decide questions which are not raised before it or are given up and in income-tax matters the jurisdiction is very much more limited be the function of the <ORG> is nothing more than advisory and it has to advise the <ORG> as to whether the decision made by it has to advise the <ORG> as to whether the decision made by it on questions of law is correct or not. Of course, the power of mandamus is also there but that also arises subject to section 66 (1) of the Act.

Mr. <NAME> also relied on the judgment of <NAME>, L. J., in Attorney-General v. <NAME> but that is under another statute and the law in India is different as has been pointed out in <CITATION> where "<ORG> has re answer any question of law which may arise out of the facts set of the statement of the case." In the English case cited the Commissioners had jurisdiction subject to certain formalities being complied with. There was an appeal to the Special Commissioners from the assessment and then they were required to state a case upon their determination and having so invoked the jurisdiction of the Commissioners, it was held that the applicants cannot afterwards be heard to say that there was no jurisdiction at all.

Mr. <NAME> also relied upon a judgment of <ORG> in <CITATION> . but in that case nobody contended that the question which was referred to <ORG> did not arise out of the <ORG> order or had not been properly referred to <ORG>, on the other hand it was said that a question of law having been referred under sub-section (1) of section 66 , <ORG> had to deal with it and answer it in exercise of its jurisdiction under sub-section (5). At page 541 <NAME>, J., said :

"The language of the question clearly indicates that the question of law has to be determined on the facts of this case. To accede to the contention of the assessee, will involve the under cutting down of the scope of the question by altering its language. Seeing that <ORG> permitted this argument to be advanced before them we are not prepared to shut it out."

As a matter of fact when cases are stated or are asked to be stated <ORG> cannot refuse to answer the question as is the view of <ORG> and as was held in <CITATION> and <CITATION> that where a question does not arise out of the order and the <ORG> refers the question of law to <ORG>, the Bench to whom the reference was made must deal with the question and answer it on the merits and cannot refuse to answer on the ground that it did arise out of the <ORG>s order.

The cases that have been discussed above show that -

(i) the jurisdiction of <ORG> the Income-tax Act is advisory and a limited one;

(ii) only such question of law arise out of an order of the <ORG> which have been raised and dealt with by it;

(iii) in order to raise a question of law the assessee or the Commissioner, as the case may be, must make an application within a specified time on a prescribed form raising the questions of law which arise out of the order and specify the question on which reference is sought;

(iv) on such an application being made it is for <ORG> to decide whether the questions are questions of law and if they are questions of law, to refer them for the opinion of <ORG>;

(v) if <ORG> refuses to refer the questions the applicant can approach the Court under section 66(2) to direct that a reference be made;

(vi) the jurisdiction of <ORG> is limited to the question raised and referred. <ORG> cannot raise any question which has not been referred to it either under section 66 (1) or section 66 (2);

(vii) the <ORG> itself has no power to raise a question suo motu. Its powers are also limited to the provisions of section 66 (1) or section 66 (2); and

(viii) once the question is properly raised and reference made to <ORG>, <ORG> is bound to answer the question.

In this view of the law I am of the opinion that if a question of law has not been raised and decided by the Tribunal, no reference can be made to <ORG> because the question cannot be held to arise out of order of <ORG>. I would, therefore, answer the question referred to <ORG> in the negative.

<NAME>, <NAME> - I have had the advantage of perusing the exhaustive judgment of my learned brother <NAME>, <NAME>, and agree with him that the first of the questions propounded for our consideration in this case should be answered in the negative.

In the first place, although it does not directly out of the question but only out of the sixth paragraph of the statement of the case, I agree with his view that the matter contained in the second question was never properly before the <ORG> under section 66 (1) of the Income-tax Act , and should never have been allowed to be raised at all on this ground alone.

I am also in general agreement with the proposition that no party can be allowed to set up a new case at the stage contemplated by section 66 , or to attempt to have points of law raised and stated which have not been raised before even if, in the widest sense of the term, they can be said to arise out of the facts as found in the appellate order of the <ORG>, and I am of the opinion that the present case is one which is covered by this proposition.

It is therefore with some diffidence and regret that I express the opinion that the view expressed by so many <ORG> and adopted by me learned brother, that in no case, if a question of law has not been raised and decided by the <ORG>, can a reference be made to the <ORG>, is too sweeping as it stands and requires some qualification. I feel it necessary to do so because all aspects of the question what is meant by a point arising out of a judgment have been argued able and at length before us and our opinion has been invited thereon.

The learned Advocate-General while arguing that the first question in the present case should be answered in the negative, nevertheless expressed the view that the decision of <NAME>, J., and myself in <CITATION> . was correct. There we decided that it could not be said that under no circumstances could a point of law be said to arise out of the appellate order of the <ORG> simply be the because it had not been raised and discussed in the order itself. The matter in issue in that case was the jurisdiction of the Appellate <ORG> itself to deal with the appeal, and I am still of the opinion that a fundamental issue of this kind can be raised under section 66 even if it has not been raised and dealt with in the appellate order. I think that the suggestion of the learned Advocate-General that a point of this kind should be deemed to have been dealt with, and so to arise out of the appellate order, was sound and sensible.

The other kind of case I have in mind is one where a point has been raised and argued in the appeal but from inadvertence or because the point was considered to be unworthly of serious consideration, it has been referred to in the appellate order. If the views of the various <ORG> recapitulated by my learned brother, and apparently his own view, are taken literally, such a point, even if of substance, cannot be raised and made the substance of a reference under section 66 because it "does not arise out of" the appellate order. This could lead to unfortunate consequences, and I do not think that the remedy suggested by Mr. <NAME> for the aggrieved party, that he should go <ORG> under article 226 of the constitute for a mandamus directing the <ORG> to write a fresh appellate order dealing with the point in question, is very satisfactory. It is certainly cumbersome, and in my section 66 omission to mention it in the judgment. In this way it could be said to arise out of the judgment.

With these qualifying remarks I agree that the first of the questions referred to us should be answered in the negative.

<NAME>, <NAME> - I agree that the first question referred to us should be answered in the negative.

Reference answered accordingly.


CASE NO.: Appeal (crl.) 1302 of 2006 PETITIONER: <NAME> @ Mubarik Hussain Appellant RESPONDENT: State of Rajasthan Respondent DATE OF JUDGMENT: 12/12/2006 BENCH: Dr. <NAME> & S.H. KAPADIA JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No. 4765 of 2006) Dr. ARIJIT PASAYAT, J Leave granted.

Challenge in this appeal is to the judgment rendered by <ORG> of <ORG> at Jodhpur confirming the death sentence awarded to the appellant for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ' IPC '). <ORG> had imposed a death sentence and, therefore, made a reference for confirmation of death sentence by <ORG> in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code').

Appellant also filed an appeal and both the case under reference and the appeal were taken up together and disposed of by a common judgment.

According to the prosecution accused killed his wife- <NAME>, three daughters namely, <NAME>, <NAME> and <NAME> @ Munni aged 9 years, 6 years and 4 years respectively and son <NAME> aged 2 = years. The Additional Sessions Judge (Fast Track), <NAME> had found the charge for commission of offence under Section 302  to have been proved and imposed the death sentence.

Prosecution version in a nutshell is as follows: On 10.12.2005 at about 6 A.M. <NAME> (PW-1) submitted a written report at <ORG>, <NAME> stating inter alia that In the evening of 9.12.2005 the appellant <NAME> gave beating to his wife and children. But they were rescued on his intervention. He described <NAME> as a person of notorious character. It was further averred that in the morning at about 5 a.m. his brother appellant <NAME> came out of the house shouting and making declaration that he has killed all the five bastards by strangulation one by one. He killed his wife <NAME>, daughters <NAME>, <NAME>, <NAME> @ Munni and son <NAME>. The dead bodies were found placed on the mattresses tying the thumbs of each leg of the dead bodies by thread. On this information police registered a case for offence punishable under Section 302 I.P.C. and proceeded with investigation. All the dead bodies were sent for postmortem. <ORG> consisting of three doctors conducted the postmortem of all the five dead bodies. The appellant was arrested. After usual investigation police laid charge-sheet against the appellant for offence punishable under Section 302 I.P.C. On being committed the appellant was tried of the charge of offence punishable under Section 302 I.P.C. by the court of Additional Sessions Judge (Fast Track), <NAME>. The trial court on consideration of the evidence led by the prosecution found the appellant guilty of offence under Section 302 I.P.C.

<ORG> relied upon the following circumstances to find the accused guilty.

(1) Extra judicial confession made by the appellant before <NAME> (PW-1), <NAME> (PW-2), <NAME> (PW-3) and <NAME> (PW-4).

(2) The presence of the appellant in the house wherein the alleged incident took place. (3) Recovery of ear ring of the wife from the possession of the appellant.

At the time of hearing the reference and the appeal the primary stand taken by the accused appellant was that the extra judicial confession relied upon by the prosecution is not correct. It was submitted that the alleged confession publicly standing on a platform is highly improbable. <ORG> found that the evidence of <NAME> (PW-1) and <NAME> (PW-

2) was cogent and credible. PW-1 was a neighbour and PW-2 is the brother of the accused-appellant. There is no reason as to why they would falsely implicate the accused-appellant by making an untruthful statement. Added to that, evidence of PW-1 about the behaviour of the appellant was relevant. The third circumstance was the recovery of ornament from the possession of the appellant. The circumstances highlighted by the prosecution according to <ORG> presented a complete chain of circumstances. Though it was submitted by the accused-appellant that even if the prosecution case was accepted in its totality, there was no special reason to impose the death sentence. <ORG> considered this plea in the background of what has been stated by this Court in <CITATION> (1983 (3) SCC 470) and <CITATION> (1980 (2) SCC 684). Reference was also made to the decision in <CITATION> (2003 (8) SCC 224). <ORG> was of the view that the appellant had acted in a most cruel and diabolic manner. He deliberately planned and meticulously executed the same. There was not even any remorse for such gruesome acts. On the contrary, he was satisfied with what he had done. He made a declaration of his act of abusing his wife and children. Accordingly, the death sentence was confirmed.

The stand taken by the accused-appellant before <ORG> was re-iterated in this appeal. Additionally, it was stated that the accused was in a state of drunkenness and did not know the consequences of what he did and, therefore, death sentence should not have been awarded.

On the contrary, learned counsel for the <ORG> submitted that the cruel and diabolic acts of the accused show that he does not deserve any leniency so far as the sentence is concerned. Drunkenness cannot be an excuse for such cruel and inhuman acts.

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. ( <CITATION> (AIR 1977 SC 1063); <CITATION> (AIR 1956 SC 316); <CITATION> (AIR 1983 SC 446); <CITATION> and Ors. (AIR 1985 SC 1224); <CITATION> (AIR 1987 SC 350); <CITATION> . (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. <CITATION> (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in <CITATION> . , wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

<CITATION> . (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

<CITATION> , (AIR 1992 SC

840), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir <NAME> in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by <ORG> as far back as in 1952.

In <NAME> and <NAME> of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

A reference may be made to a later decision in <CITATION> , (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The only other thing which needs consideration is whether death sentence as awarded by trial Court is proper.

Section 302  prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that <ORG> is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code , there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3) . There is another provision in the Code which also uses the significant expression "special reason". It is Section 361 . Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360 . Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360 , the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors, Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) of the old Code, by the Criminal Procedure Code  (Amendment) Act , 1955  which came into force on 1.1.1956, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code by Act 26 of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the court. The court must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC . This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence "special reasons" are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in the Code that the judicial decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

This Court in <CITATION> . (1974 (4) SCC 443) has observed : (SCC pp. 453-54, para 26) "26. Let us crystallize the positive indicators against death sentence under Indian law currently. Where the murderer is too young or too old, the clemency or penal justice helps him. Where the offender suffers from socio-economic, 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 Section 302 , read with Section 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 horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables 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 of life."

In <NAME> case (supra) it has been observed that: (<ORG> p. 751, para 209) "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; and (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is <NAME> case (supra).

In <NAME> (supra) and <NAME> (supra) cases the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

In <NAME> case (supra) it was observed: (SCC p. 489, para 39) The following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

The following guidelines which emerge from <NAME> case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (SCC p. 489, para 38):-

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

Section 85  deals with act of a person incapable of judgment by reason of intoxication caused against his will. As the heading of the provision itself shows, intoxication must have been against his will and/or the thing which he intoxicated was administered to him without his knowledge. There is no specific plea taken in the present case about intoxicant having administered without appellant's knowledge. The expression "without his knowledge" simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant. The defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. Basically, three propositions as regards the scope and ambit of Section 85  are as follows:

(i) The insanity whether produced by drunkenness or otherwise is a defence to the crime charged;

(ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and

(iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

In the instant case, the plea of drunkenness can never be an excuse for the brutal, diabolic acts of the accused. <ORG> and <ORG> have rightly treated the case to be one falling in rarest of rare category thereby attracting the death sentence.

The brutal acts done by the accused-appellant are diabolic in conception and cruel in execution. The acts were not only brutal but also inhuman with no remorse for the same. Merely because he claims to be a drunk at the relevant point of time, that does not in any way get diluted not because of what is provided in Section 85  but because one after another five lives were taken and that too of four young children. This case squarely falls under the rarest of rare category to warrant death sentence.

The appeal deserves dismissal which we direct.