JUDGMENT <NAME>, J.

1. This is an application by the Sholapur Municipality against the order of the learned District Judge of Sholapur purporting to act under Section 198 of the Bombay City Municipalities Act, XVIII of 1925, and directing the Sholapur Municipality to pay compensation for 2997 square feet at the rate of Rs. 1-12-0 per square foot to opponent No. 1 <NAME> alone, and holding that opponent No. 2 <NAME>'s mortgage was vitiated by the doctrine of lis pendens, inasmuch as he took the mortgage with notice of a prior agreement by the owner with Tuljaram during the pendency of a suit by the latter.

2. Opponent No. 1 <NAME> was the owner of the land in suit, and demanded compensation from the Municipality for the land encroached upon by the Municipality at the rate of Rs. 2-8-0 per square foot. The Chief Officer with the consent of <ORG> referred the matter to arbitration under Section 198, Sub-section (1), of the Bombay City Municipalities Act, 1925. The arbitrators gave an award allowing Rs. 1-12-0 per square foot. The award did not specify the number of square feet but the area mentioned in the proceedings related to 2997 square feet. <NAME> then made the present application to the District Court demanding the amount as determined by the panchas, and prayed for an order compelling the Municipality to pay the amount due to the applicant at Rs. 1-12-0 per square foot as determined by the panchas with regard to the area of 2997 square feet. The general body subsequently resolved that 860 square feet covered by the drain were to be acquired, and deposited in Court the amount due in respect of the 860 square feet resolved to be acquired. Opponent No. 2 <NAME> claimed the money as the mortgagee of the property from the predecessor-in-title of the applicant <NAME>.

3. The learned District Judge held that at the time when the negotiations were going on and when the panchayat was constituted, the intention of the <ORG> was to acquire an area of 2997 square feet in order to open up and widen the roads in the locality, that it was impossible to say that the applicant's acceptance of the rate fixed by the panchas was not induced by the consideration of the resulting improvements to his remaining property, and that it was not open to the <ORG> to withdraw from the acquisition of 2997 square feet, and that the award was binding on both the parties not only in respect of the rate but also in respect of the area. With regard to opponent No. 2 the learned District Judge held that Gangappa had both actual and constructive notice of the agreement in favour of Tuljaram and that the mortgage of Gangappa was affected by the doctrine of lia pendena, and ordered interest at the rate of six per cent for the remaining portion of the compensation until payment or deposit in the <ORG> and ordered the <ORG> to bear the coats of Tuljaram.

4. It is urged on behalf of the Municipality that the application made by Tuljaram for compelling the Municipality to pay compensation for the whole of the land is not warranted by any of the provisions of Section 198 of the Bombay City Municipalities Act, 1925, and, therefore, <ORG> had no jurisdiction to entertain the application and the order passed by <ORG> is a nullity and should be set aside. It is urged, on the other hand, that the order passed by <ORG> is not appealable according to the decision in <CITATION> (1911) I.L.R. 36 Bom. 47, s.c. 13 Bom. L.R. 958, and that an application for revision is also incompetent according to the decision in <CITATION> (1916) I.L R. 40 Bom. 509, s.c. 18 Bom. L.R. 340.

5. Under Section 198, Sub-section (1), of the Bombay City Municipalities Act, 1925, if an agreement is not arrived at with respect to any compensation directed to be paid by the Act, the amount and the apportionment of the same, if necessary, shall be determined by a panchayat of five persons, of whom two shall be appointed by the <ORG>, two by the party, and one, who shall be sirpanch, shall be selected by the members appointed. Under Sub-section (2), if both parties fail to appoint the panchas or if the members fail to select the sirpanch, the members can be appointed by the District Judge at the instance of either party. Under Sub-section (8), in the event of the panchayat not giving a decision within one month the matter shall be determined by <ORG> according to the procedure provided by the Land Acquisition Act , 1894. Under Sub-section (4), either party, if dissatisfied with the decision of the panchayat, may apply to <ORG> which shall determine the matter in accordance with Sub-section (3), i.e. according to the procedure prescribed by the Land Acquisition Act , In the present case the panchayat gave the decision in favour of Tuljaram, and it cannot be said that he was dissatisfied with the decision of the panch. The application, therefore, of Tuljaram to <ORG> to compel the defendant to pay compensation for the whole area of 2997 square feet does not fall under Sub-section (4) of Section 198 . Under Sub-section (5), the <ORG> has power, after the award has been made by the panchayat or <ORG>, to take possession of the land after paying the amount of compensation to the party to whom such compensation may be payable, and if the party refuses to accept such compensation, or it there is no person competent to alienate the land, or if there is any dispute as to the title to the compensation or as to the apportionment, the <ORG> may deposit the amount of the compensation in <ORG>, It is clear from the provisions of Section 198 that the application made by Tuljaram to <ORG> to compel the <ORG> to pay compensation for the whole land is not maintainable under any of the provisions of the section. The decision of the panchayat was in favour of Tuljaram, and if the <ORG> was dissatisfied with the decision, it could have applied to <ORG> under Sub-section (4) of Section 198 . It appears that the section has failed to make provision for compelling the <ORG> to pay the amount determined by the panchayat, though provision has been made in favour of the <ORG> to take possession of the property after paying compensation to the party entitled to it or depositing it in Court.

6. It is, therefore, clear that <ORG> had no jurisdiction in this case to entertain the application made by <NAME>, It had also no jurisdiction to determine the right of opponent No. 2 <NAME> who was a mortgagee from the predecessor-in-title of <NAME>. The question of apportionment of the compensation had not been referred to the panchayat under Sub-section (1) of Section 198 , and the determination by <ORG> of the right of <NAME> to the compensation was illegal and without jurisdiction, Mr. <NAME>, appearing on behalf of the opponent <NAME>, was constrained to admit that the application made by his client to the lower Court was not justified by the provisions of Section 193 . <ORG>, therefore, clearly had no jurisdiction to decide the question submitted for its consideration and the decision is null and aoid.

7. The next question is whether <ORG> has power to interfere with the order of <ORG>. <CITATION> it was held that no appeal lay from the decision of <ORG> under Clause (3) of Section 160 of the Bombay District Municipal Act (Bom. Act III of 1901), which corresponds to Section 198 of the Bombay City Municipalities Act, 1925, that though a right of appeal is given by Section 54 of the Land Acquisition Act, no appeal is provided by Section 160 of the Bombay District Municipal Act corresponding to Section 198 of the Bombay City Municipalities Act, and that the order of <ORG> is not a decree because it is made not under the ordinary civil jurisdiction but under the special jurisdiction created by the special Act.

8. <CITATION> , it was held that no application can be made under the revisional jurisdiction of <ORG> from the decision of <ORG> under Clause (3) of Section 160 of the Bombay District Municipal Act, III of 1901. In that case it was held that as no appeal lay from the decision of the. <ORG> under that section, it would be anomalous to hold that an application for revision lay, and further it was held, following the decision in the case of <NAME> v. <NAME> (1895) I.L.R. 21 Bom. 279, that though the words occurring in Section 160 are "<ORG>", the distinction was not sufficient to support an application for revision to <ORG>. Section 198 of the Bombay City Municipalities Act of 1925 refers to "District Judge" in Sub-section (2) and refers to "<ORG>" in Sub-sections (3), (4) and (6), just as in Sub-section (2) and Sub-section (3) of Section 160 of the Bombay District Municipal Act of 1901. It is difficult to under-stand why "District Judge" is mentioned in Sub-section (2) of Section 198 and "<ORG>" in Sub-sections, (8), (4) and (5). The differentiation in the phraseology may be explained if the District Judge is considered a persona designata so far as Sub-section (2) is concerned, and the <ORG> as distinguished from the District Judge is to determine the rights of the parties under Sub-sections. (3), (4) and (5).

9. In <NAME> v. <NAME> it was held that a District Judge acting under Section 23 of the Bombay District Municipal Act was not a Court within the meaning of the word in Section 622 of the Civil Procedure Code, 1882, corresponding to a, 115 of the present Code, and <ORG> had no jurisdiction to revise his order, and it was held that a District Judge as distinguished from <ORG> is a persona designata. The decision in <NAME>'s case was followed in <CITATION> (1925) I.L.R. 50 Bom. 357, s.c. 28 Bom. L.R. 519.

10. <CITATION> (1913) I.L.R. 38 Mad. 594 it was held by <ORG> that an order made by <ORG> under Section 10 of the Religious Endowments Act was an order revisable by the High <ORG> under Section 115 of the Civil Procedure Code, Reference was made to the decision in the case of <NAME> v. <NAME> and the decision that the District Judge was a persona designata under Section 23 of the Bombay District Municipal Act was held to be correct on the ground that the District Judge was a persona designata for a specific purpose and not an officer exercising judicial functions under the Act, but it was held that under the Religious Endowments Act <ORG> was not a persona designata but a civil <ORG> exercising jurisdiction under the Act. The case went on appeal to <ORG> in <NAME> v. <NAME> (1917) L.R. 44 I.A. 261, s.c. 19 Bom. L.R. 715, where it was observed by their Lordships of <ORG>:" Moreover it is to <ORG> and not to the individual Judge who may preside in or constitute <ORG> that jurisdiction is given." The decision in the case of <NAME> was referred to in the Madras case which went up to <ORG>, and the remark of their Lordships appears to have been made in reference to the designation of the person who had to decide an election under Section 23 of the Municipal Act as a District Judge as distinguished from <ORG>, Their Lordships of <ORG> confirmed the view of <ORG> that <ORG>, under Section 10 of the Religious Endowments Act, XX of 1863, empowering a civil <ORG> to fill up the vacancy in <ORG>, was acting in a judicial capacity as a <ORG> and not merely in an administrative capacity, and that though no appeal lay under the Civil Procedure Code from such an order, the matter in which the order of <ORG> was made was a "case" within the meaning of Section 115 of the Civil Procedure Code.

11. It appears, therefore, that where a Judge or the presiding officer of a <ORG> as distinguished from the <ORG> itself is directed to perform any function of an authority created by a statute, such a Judge may be considered as a persona designata and not a <ORG>, but where a civil <ORG> subordinate to the High <ORG> is constituted an authority to decide the rights between the parties and is directed to perform judicial functions, it is difficult to hold that such a <ORG> is a persona designata and not a <ORG> subordinate to the High <ORG>.

12. In <ORG>, v. Postmaster General [1913] A.C. 5446 it was held that <ORG>, which as regards England consisted of one ex officio and two appointed <ORG>ers, was established as <ORG> and an appeal lay from the <ORG> to <ORG> except upon questions of fact and locus standi. Lord <NAME> of Waddington observed as follows (p. 562):

Where by statute matters are referred to the determination of a <ORG> of record with no further provision, the necessary implication is, I think, that the <ORG> will determine the matters, as a <ORG>. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.

13. The question was fully discussed by the full bench of <ORG> in <ORG> v. <NAME> (1925) I.L.R. 3 Ram. 560, F.B., where a distinction is made between the entrustment of the determination of any question concerning rights to a Judge or the presiding officer of a <ORG> as distinguished from the <ORG> itself. The same reasoning was adopted in <CITATION> (1923) I.L.R. 50 Mad. 121, 128.

14. The decision in <CITATION> proceeds on two grounds, first, that it would be anomalous to hold that an application for revision would lie when no appeal would lie, When the determination of the rights of parties is entrusted by statute to a civil <ORG> which has to act judicially, the decision of that <ORG> will be subject to appeal if the right is given by the statute, but the fact that no appeal is provided by the statute is not a sufficient basis for concluding that the <ORG> is not subordinate to the High <ORG> and that an application for revision would not lie. Ordinarily an application for revision would lie only when no appeal is provided. The question, therefore, is whether the <ORG> which decides the rights between the parties according to the provisions of any statute is a subordinate <ORG>. Though in Sub-section (2) of Section 198 reference is made to the District Judge, whereas in Sub-sections. (3)(4) and (5) reference is made to the District <ORG>, the District <ORG> under Sub-sections (3) and (4) has to act according to the procedure provided by the Land Acquisition Act of 1894. Though the District Judge may be a persona designata so far as Sub-section (8) is concerned as being empowered to appoint the members of the panchayat, it does not necessarily follow that the District <ORG> mentioned in Sub-section (3) and (4) is not a <ORG> but a persona designati under the Act. I feel some difficulty in agreeing with the view taken in the case of <CITATION> . The case of <CITATION> can be distinguished on the ground that the order of the District <ORG> in that case was passed under clause 0) of Section 160 of Bombay Act III of 1901, whereas in the present case the application made by Tuljaram does not fall under any of the provisions of Section 198 of Bombay Act XVIII of 1925, and the conditions necessary to invest the District <ORG> with jurisdiction to decide the matter in controversy do not exist. Even the Collector performing judicial functions under the Mamlatdars' <ORG>s Act is a subordinate <ORG> within the meaning of Section 115 according to the decision in <CITATION> (1912) I.L.R. 37 Bom. 114. s.c. 14 Bom. L.R. 947, though the Collector is not ordinarily a <ORG> subject to the jurisdiction of the High <ORG>. It is difficult to hold that the District <ORG> when exercising judicial functions is not subject to the superintendence and control of the High <ORG> though ordinarily subject to the superintendence and control of the High <ORG>. In my opinion, the District <ORG> exercising judicial functions in accordance with the procedure laid down in the Land Acquisition Act according to Sub-section (3) and (4) of Section 198 of the Bombay City Municipalities Act of 1925 is a subordinate <ORG> under Section 107 of the Government of India Act if not under Section 115 of the Civil Procedure Code.

15. In the present case, the application made to <ORG> to compel the Municipality to pay the compensation for the whole area was not maintainable under any of the provisions of a 198 of the Bombay City Municipalities Act. The decision, therefore, of <ORG> in such an application is ultra vires. The question as to the area was not referred to the panchayat, though it was assumed, and not disputed that the area to be acquired consisted of 2997 square feet. The determination of the apportionment of the compensation between opponent No. 1 and opponent No. 2 by <ORG> in the absence of any reference to arbitration of the panchayat under Sub-section (i) of Section 198 is also without jurisdiction, I think, therefore, that the decision of <ORG> though purporting to be made under Section 198 of the Bombay City Municipalities Act, 1925, does not fall within the ambit of that section and is ultra vires, and cannot be allowed to stand.

16. <CITATION> where there was no right of appeal to His Majesty in Council and where it appeared that the order of <ORG> was passed without jurisdiction, as the matter could not come in appeal to <ORG>, under Section 47 of the Civil Procedure Code, the orders made by <ORG> were vacated by their Lordships of <ORG>. <CITATION> (1925) 28 Bom. L.R. 64 it was held that no appeal lay to <ORG> from the order passed by the District Judge as persona designata under a scheme for management of a charitable institution, but at page 67 it was observed as follows:-

We are not concerned with hypothetical oases which have been suggested be us, such as, the District Judge declining to exercise the functions imposed upon him by the scheme, or in the exercise of those functions entirely failing to exercise any discretion in the matter, When such oases arise, we have no doubt that <ORG> will be competent to deal with them.

17. I think, on the whole, that <ORG> was not competent to deal with the application made by Tuljaram and its order is illegal and must be vacated. I would, therefore, set aside the order of the lower Court.

18. As this point was not raised by the <ORG> before the lower <ORG> and the action of the <ORG> is not free from blame in the present case, we think that the <ORG> ought to bear their own costs and pay separate sets of costs of the opponents in this <ORG> and in the lower <ORG>.

Broomfield, J.

19. The short facts necessary for deciding this revisional application are these:The present applicant, the Sholapur Municipality, desired to acquire some land belonging to <NAME>, opponent No. 1. It was agreed between the parties that 2997 square feet should be acquired, and as the Municipality considered that the compensation demanded by Tuljaram was exorbitant, the matter was referred to arbitration as provided by Section 198 of Act XVIII of 1925. The panchas decided that compensation should be paid at the rate of Rs. 1-12-0 per square foot. The area to be acquired was not settled by the panchas, because at the time there was no dispute on that point, But afterwards the Municipality changed its mind and proposed to acquire 860 square feet only at the same rate per square foot. Tuljaram having failed to obtain payment made an application to <ORG>, Miscellaneous Application No. 87 of 1928, described as an application under Section 198 of the Act, in which he prayed that the Municipality should be compelled to pay compensation at Rs. 1-12-0 per square foot for 2997 square feet. At the hearing of this application the District Judge considered two principal issues: (1) whether the Municipality was bound to acquire the whole area originally agreed upon, (2) whether the compensation should be paid to Tuljaram or to one <NAME>, who claimed an interest in the property as mortgagee. This <NAME> is opponent No. 2. He was not a party to the arbitration proceedings but was made a party to the proceedings before <ORG> at the instance of the Municipality. The District Judge decided (1) that the Municipality was bound to pay compensation at Rs. 1-12-0 per square foot for the whole area, and (2) that the compensation should be paid to <NAME>, and payment was ordered accordingly. The Municipality has applied to this Court for revision of this order.

20. A preliminary question arises as to whether the application is competent, that is to say, whether <ORG> has any power to revise the order of <ORG> purporting to have been made under Section 198 of Act XVIII of 1925. Prima facie it would appear that <ORG> must possess this power. Section 115 of the Civil Procedure Coda gives power to <ORG> to revise the proceedings of any <ORG> subordinate to <ORG> in a case in which no appeal lies. Section 4 , Clause. (1), of the Code provides as follows:

In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

21. This has been interpreted to mean that the provisions of the Code apply to proceedings under special Acts unless there is some provision in the special Act which shows a contrary intention. <CITATION> (1886) I.L.R. 13 Cal. 221. Velli Peviya Mira v. <NAME> (1886) I.L.R. 9 Mad. 332 was a case under the Madras Rent Recovery Act which contained an express provision that orders passed under it should not be liable to revision except by <ORG>. It was held, therefore, that <ORG> had no power of revision, the implication being that but for this provision <ORG> would have had that power. There is no provision in Act XVIII of 1925 such as there was in the Act dealt with in <NAME> v. <NAME>, which excludes the revisional jurisdiction of <ORG>. It would appear, therefore, that Section 115 must apply and give this <ORG> power to revise the order of the District Judge, if it can be regarded as an order of a <ORG> subordinate to <ORG>.

22. Then there is Section 107 of the Government of India Act which gives <ORG> powers of superintendence over all <ORG> subject to its appellate jurisdiction. The power of superintendence here referred to includes the power of revision: <NAME> v. <NAME> (1882) I.L.R. 9 Cal. 295, P.C. and <NAME> (1925) I.L.R. 3 Ran. 410, 429, 430, F.B. The words "subject to its appellate jurisdiction" do not mean, of course, subject to the appellate jurisdiction in that particular matter, for revision would not be necessary if an appeal lay, but subject to its appellate jurisdiction normally, or even in certain specific cases only: <NAME> v. King-Emperor (1918) 3 P.L.J. 581, F.B. <ORG>. therefore, has power to revise the order in question under Section 107 of the Government of India Act if it is an order of a <ORG> normally subject to the appellate jurisdiction of <ORG>.

23. That in the present case we are concerned with an order of a <ORG> is clear from the language of Section 198 . Under Clause (2) the District Judge is given power to appoint arbitrators in certain circumstances, but when it is a question of the determination of any dispute between the parties, whether on failure of the panchayat to give a decision, Clause (3), or in case either party is dissatisfied with the decision of the panchayat, Clause (4), it is the District <ORG> which is empowered to deal with the matter, and the procedure to be followed is that laid down in the Land Acquisition Act for proceedings referred for the determination of the <ORG>. That being so, the ratio decidendi of such cases as <NAME> v. <NAME> (1907) I.L.R. 30 Mad. 326, <NAME> v. <NAME> (1925) I.L.R. 3 Ran. 410, 429, 430, F.B., <NAME>, In re (1917) I.L.R. 42 Bom. 119, s.c. 19 Bom. L.R. 926, and <NAME> v. King-Emperor (1918) 3 P.L.J. 581, F.B., where it was held, respectively, that the High <ORG> has no power to revise the orders of a District Registrar, a Rent Collector under the Rangoon Rent Act, a District Judge acting departmentally as the head of an office, and a Commissioner appointed under the Defence of India Act, has little or no application in the present case. Lastly, Section 3 of the Code provides in terms that the District <ORG> is subordinate to the High <ORG> for the purposes of the Code. So that for the purposes of Section 107 of the Government of India Act the District <ORG> must be regarded as generally subject to the appellate jurisdiction of the High <ORG>.

24. If the matter were res integra, there could be no question, in my opinion, that this application for revision is competent. The difficulty arises owing to the decision in <ORG> v. <NAME>, where it was held that no application for revision lies against the decision of <ORG> under Clause (3) of Section 160 of the Bombay District Municipal Act III of 1901, which corresponds to Clause (3) of Section 198 of the present Act, The first point to be noted in connection with this case is that the application had been properly made to <ORG> under Clause (3) of Section 160 . In that case the panch had failed to deliver their award and <ORG> was, therefore, empowered to determine the dispute as to the amount of compensation. It is true that the Judge in that casehe happened to be an Assistant Judgedid not decide the dispute, because he was of opinion that he had no jurisdiction to do so until certain other matters had first been submitted to arbitration. Nevertheless it was possible for this <ORG> to hold in the circumstances that the order was one which was intended to be final and should not, therefore, be revised. It was not a case like the present where <ORG> was applied to for an order which it was not empowered to makethere is nothing in Section. 198 which gives <ORG> power to enforce an award on the application of a party who relies upon itand where moreover the <ORG> has determined a dispute, viz., that between Tuljaram and <NAME>, which had not been submitted to arbitration and was not within the jurisdiction of the <ORG> at all.

25. The judgment of Batchelor J. in <CITATION> (1916) I.L.R. 40 Bom. 539, s.c. 18 Bom. L.R. 340 is a short one and I quote the material part of it (p. 511):-

In the case of <CITATION> it has been decided by a Bench of this <ORG> that no appeal lies from the decision of <ORG> under Clause (3) of Section 160 of the Bombay District Municipalities Act. The object of this application is to obtain from the <ORG> a decision that although no appeal would lie, yet an application in revision does lie. Such a decision would, in our opinion, be seriously anomalous, and we do not think that the words of the Statute require us to make such a pronouncement, The only decision which seems to us fairly consistent with that already recorded in <NAME> case, is the decision that no application for revision is competent. In <NAME> v. <NAME> this <ORG> has held that it has no jurisdiction to revise the order of a District Judge acting under Section 23 of the Bombay District Municipalities Act of 1884. And although the words occurring in that section are 'District Judge,' whereas the words occurring in Section 160 , last clause, are 'District <ORG>,' we do not think that the distinction is sufficient to support the argument that an application for revision is competent, although admittedly no appeal would lie.

26. In <NAME> case it was decided that no appeal lies from the decision of <ORG> under Clause (3) of Section 160 of the Bombay District Municipal Act. The fact that there is no appeal does not ordinarily imply that there is no remedy by revision either. In fact revision only lies under Section 115 of the Code in cases where there is no appeal, So that evidently what <NAME> meant when he said that any other decision would be seriously anomalous was this, viz., that the particular grounds on which it had been decided that there was no appeal would apply equally in the case of a revision application. This appears to be the main ground of decision. A subsidiary ground was that in <NAME> v. <NAME> it was decided that <ORG> had no jurisdiction to revise the order of a District Judge under Section 23 of the Bombay District Municipal Act of 1884, on the ground that the District Judge was not a <ORG> but a persona designata. <NAME> apparently considered that it made no material difference whether the powers under a special Act were assigned to the District Judge or to the District <ORG>.

27. It is, therefore, necessary to refer to <CITATION> and <NAME> v. <NAME>, and see exactly what was decided in those cases and what the basis for the decisions was. The facts in <NAME> case were that an application had been properly made to <ORG> under Section 160 , Clause (3), for the determination of the compensation due to the applicant after failure of the panchayat to determine the amount. <ORG> made an order determining the amount and the applicant appealed, <NAME> view was that <ORG> only came in as a substitute for the panchayat where adjudication by the latter had failed, and, therefore, <ORG>'s order could not be questioned any more than the award of the panchayat could be questioned by way of an appeal. The learned Judge also referred to the provisos to Section 160 , Clause (3), which are the same as the provisos to Section 193 , Clause (3), of the present Act, namely, "(a) no application to the Collector for a reference shall be necessary", and "(b) the Court shall have full power to give and apportion the costs of all proceedings in any manner it thinks fit". These provisos were relied upon as indicating that the decision of <ORG> was intended to be final. This, so far as I can see, is the only reason in the judgment which can in any way be said to negative the power of <ORG> to revise <ORG>'s order The additional reason given for holding that there was no appeal, namely, that the order could not be regarded as a decree, would not affect the question of revision at all.

28. Now, if the decision in this case is to be considered not with reference to the question which was decided in the case itself, namely, the question whether there was an appeal, but with reference to the question whether a revision application lies, there are two important points of difference which, I think, must affect the decision. In the first place, though the award of a panchayat is no doubt final in the sense that it is not open to appeal, it is not final in the sense that it can be executed as it stands. It can only be made executable apparently by being filed as a decree as provided by the Civil Procedure Code or by means of a suit to enforce it. On the other hand, the order of <ORG> is itself enforceable in execution as held in <CITATION> (1923) I.L.R. 47 Bom. 654, s.c. 25 Bom. L.R. 305. In that very important respect, therefore, the award of a panchayat and the order of <ORG> do not stand on the same footing, and the argument that the <ORG> intended that there should be no interference with <ORG>'s order is, in my opinion, very materially weakened. The second argument baaed on the intention of the <ORG> to give finality to orders passed under Section 198 can only apply with any force to orders contemplated by the provisions of that section, As I have mentioned, in <CITATION> , it was possible to hold that <ORG>'s order came within the purview of the section. But what the <ORG> has decided and ordered in the present case is outside the purview of the section altogether. It would be impossible to hold that the <ORG> was functioning simply as a substitute for the panchayat when it dealt with matters not referred to the panchayat at all. The main line of reasoning in <NAME> case appears, therefore, to have no application.

29. As regards <NAME> v. <NAME>, that was a case under the Bombay District Municipal Act, 1884, Section 23 of which Act empowered the District Judge to pass an order for confirming or amending the declared result of an election or for setting the election aside. The section also provided that the District Judge might exercise any of the powers of a civil Court and that his decision should be conclusive. In the particular case the District Judge had refused to set aside an election and had ordered the applicant to pay the costs of the other party. It was this order for payment of costs which <ORG> was asked to revise, and it was held that the District Judge acting under Section 23 was not a Court and that <ORG> could not interfere.

30. Two points are to be noted in connection with this case. In the first place, the powers under Section 23 of the Act of 1884 were given to the District Judge and not to <ORG>. <NAME> in <CITATION> no doubt expressed the view that that made no difference. But that view, it would appear, is no longer tenable having regard to the judgment of <ORG> in <NAME> v. <NAME> (1917) I.L.R. 40 Mad. 793, s.c. 19 Bom. L.R. 715, P.C., The reasoning of Lord <NAME> in that case was that in determining whether an order is that of a <ORG>.


JUDGMENT (1) This is a suit filed for challenging the validity of certain orders passed under the provisions of the foreign exchange Regulation Act and the Sea Customs act and for recovering baci 310 tolas of gold confiscated in accordance with these orders. The plaintiff also seeks to recover in the alternative the value of gold viz., Rs. 30,790/- and interest at the rate of 6 per cent p.a. The plaintiffs case is as follws:

(2) The plaintiff was proceeding from Aden to Colombo and S. S. City of Durham by which the plaintiff was travelling arrived at Bombay on 30-11-1950 On that date the plaintiff for the purpose of visiting the city of Bombay was passing through the Blue Gate of the Alexandra Docks and was questioned by officer of customs. The plaintiff informed the officer that he was carrying gold which was in his cabin. The plaintiff produced gold wighing 310 tolas in his cabin and the same was seized. Ultimate by the impugned order dated 29-12-1950 one M.E. Rahaman the then collector of customs found that the condition of the reserve Bank of India notification No. 62/48-R. B. of 25-8-1948 had not been fulfilled in the case of the plaintiff and that the fold must be held to have been brought into India contravention of the provisions of the aforesaid Notification. He also found that the gold was not shown in the ships manifest as for through transist nor was it kept with the purser or captain of the ship. The collector of customs ordered confiscation of the gold under S. 167(8) of the sea customs act and further ordered that the gold should be allowed to be redeemed on payment of Rs. 30,790/- subject to production or permit from <ORG>.

(3) the aforesaid order dated 29-12-1950 was duly served on the plaintiff. A copy of that order is annexed as Ex. E to the plaint. The plaintiff was informed that an appeal against the order lay to <ORG>. New Delhi the plaintiff went in appeal against the order dated 29-12-1950 to the central <ORG>. That appeal was customs Appeal No. 976 of 1951. By its order dated 22-10-1951 the central <ORG> held that it saw no reason to interfere with the order passed by the collector of customs Bombay. In the result in my view the order of confiscation with the right of redemption as made by the collector of customs stood confirmed and became the order of <ORG>.

(4) As against those orders the plaintiff filed a Revision Application under the sea customs Act before <ORG> and by an order in Revision made on 24-6-1953 it was held that The government of India sees no reason to interefere with the order in appeal passed by <ORG>.

(5) the plaintiff (declared on 4-12-1953 and) filed on 18-12-1953 in this court Mis. Petition No. 342 of 1953 under Art. 226 of the consititution challenging all the aforesaid three order as being invalid on the ground that the plaintiff had not imported and was not importing these 310 tolas of gold into India and that the finding against the plaintiff by the customs collector and the central <ORG> and the government of India that he had contravened the notification <ORG> as already mentioned in the order of the customs collector was contrary to law and untenable. The plaintiff also contended that show cause notice was not served on him and he had not been given a proper hearing and the orders were vitiated by violation of rules of natural justice. On December 10th, 1953, <NAME> Dismissed the petition after considering all the contentions raised by the plaintiff in that petition.

(6) By his advocates letter dated December 14th, 1953 the plaintiff served anotice under section 80 of the Code of Civil Procedure in connection with this suit on the Union of India and the collector of customs and ultimately on February 24th, 1954 the plaintiff filed this suit once again to challenge the aforesaid orders.

(7) By their written statement the defendants have raised contentions tehcnical as well as on merits. The defendants contend that the order of the collector off customs was not contrary to the provisions of law or against the principles of natural justice or without giving any opportunity to the plaintiff to be heard or without obtaining any explanation from the plaintiff or without taking consideration the rules of natural justice. Customs authorities had information that the plaintiff who was travelling by S. S. City of durham inteded to smuggle gold into India and as a result of watch kept had found the gold under circumstances proving that it was illegallly imported into India.

(8) After issues were raised at the request of the counsel for the plaintiff and the defendants issues Nos. S. 4, 5 and 6 were directed to be tried as prediminary issues. These issues run as follows:

3. Whether this Hoble court has jurisdiction to entertain and try this suit.

4. Whether the suit is barred by the rule of res judicata as stated in para 7 of the written statement.

5. whether the suit against the second Defendant in his official name is maintainable.

6. Whether the plaint discloses any cause of action against the defendatns or any of them?

9. In support of his contention on issues Nos. 3 and 6 Mr. <NAME> for the defendants rlied upon the provision of Secs. 188 and 182 of the Sea Customs Act and the decision of the Privy council in <CITATION> . wherein the true effect of the provision of these sections has been considered. Section 188 of the Sea customs Act provides.

Any person deeming himself aggrieved by any decision or order passed by an officer of customs under this Act may within three months from the date of such decision or order, appeal therefrom to the chief customs <ORG>.

Such authority or officer may thereupon make such further enquiry and pass such order as he thinks fit. enfirming, altering or annulling the decisionor order appealed against. Xx xx?

Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191 of final.

(10) Mr. <NAME> has contended that having regard to the provision in Serc. 188 of the Act, the order of <ORG> must be held to be final except when it is found to be patently arbitray or perverse or where it is found that fundamental principles of natural justice have been violated a the proceedings wherein the orders were made. In that connection be had relied upon the observations of the Privy council that:

The exclusion of the jurisdiction of the civil courts is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. Even if jurisdiction is to excluded, the <ORG> courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal was not acted in conformity with the fundamental principles of judicial procedure.

An order passed in appeal under Section 188 of the Sea customs Act excludes the jurisdiction of the civil courts to entertain a challenge of the merits of that decision.

(11) Now, therefore th only question which this court can consider with reference to the validity of the orders passed by the customs collector and the central <ORG> must relate to non compliance with the provisions of the Act and or non conformity with or violation of the fundamental principles of judicial procedure, In that connection I have carefully scanned through all the averments in the plaint. In my view there is no allegation made in the plaint that either the collector of customs or the central <ORG> had no power to make theorder which they made. The plaint contains recitals of certain facts The plaintiff life savings and that the plaintiff was a passenger from Aden to colombo and in transit to colombo was entitled to carry gold with him under the notification of <ORG> dated 25th August 1948. The reasons why the orders passed by the customs collector of the Central <ORG> are contended to be invalid are that a show cause notice was not served on the plaintiff and that a hearing was not given to the plaintiff. A civil court would have jursidiction to consider the validity of decision and orders made under the provision of Section 182 or section 188 of the sea customs act on the grounds which have been summarised in the Privy council decision, viz., that the provision of the Act had not been complied with or that the tribunal had not acted in conformity with the fundamental principles of judicial procedure. The aforesaid contentions of the plaintiff regarding conduct of the proceedings would require to be examined by cour as the same involve violation of fundamental principles of judicial procedure. I cannot accept the contention of Mr. <NAME> that the plaint does not disclose any cause of action of any kind against the defendants or that in this case the court has no jurisdiction by reason of the provisions of section 188 of the sea customs Act.

(12) As regards the question of jursidcition Mr. <NAME> has relied upon the provision of CL XII of the letters Patent He has pointed out that <ORG> which is the 1st defendant does not carry on business nor reside in Bombay. He has also pointed out that it is absolutely essential for the plaintiff to challenge the order made in appeal by <ORG> and that amittedly that order was made by the central <ORG> at Delhi. <ORG> functions also at Delhi. The whooly in part in any event must at Delhi. Mr. <NAME> was made by <ORG> at Delhi. the plaintiff has admittedly not obtained any leave under Clause XII of the letters Patent.

(13) Mr. <NAME> says that since a material part of the cause of action arose outside Bombay this court could not have jurisdiction without plaintiff having obtained leave under Clause XII of the Letters Patent in the first instance.

(14) Mr. <NAME> has in that connection conteded that the confiscated gold must be held to have remained with the collector of customs in Bombay. As the order of <ORG> was that it saw no reason to interfere with the order passed by the collector of customs, Bombay and the order in revision was zalso that the government of India saw no reason to interfere with the order in appeal passed by <ORG> it was not necessary for the plaintiff to challenge the order in appeal and the order in revision and that the effective and subsisting order was the order of the collector of customs which was made in Bombay. Mr. <NAME> therefore contends that the whole of the cuase of action has arisen in Bombay. Mr. <NAME> <NAME> contends that the 2nd defendant resides and works his office at Bombay. he says that I accordingly should hold that this court has jursidiction to try this suit inrrespective of the plaintiff having not obtained leave under clause XII of the letters patent. His contention is that it was unnecessary for the plaintiff to obtaine leave under Clause XII of the Letters Patent.

(15) Now, in my view it is well settled that where the Statute provides for an appeal and an appeal is filed, the subsisting and effective order must be held to be the order and or decision of the appellate court and not of the first court or the trial court. In this connection the language of Section 188 of the sea customs Act is very material. It provides that "such authority or officer, (which refers to the appellate authority) may thereupon make such further enquiry and pass such order as he thinks fit confirming, altering or annulling the decision or order appealed against.

It cannot be denied that substantive right of appeal was available to the plaintiff and was exercised by the plaintiff. The plaintiff desired and wanted to challenge the decision of the colector customs and the ultimate decision which governed the rights of the plaintiff is the decision of the central <ORG>. In fact as soon as the plaintiff filed his appeal all the contentions of the plaintiff were before the Central <ORG>. The wording of the order made by <ORG> or <ORG> viz, that it saw no reason to interfere with th order passed by the collector of customs Bombay does not in any manner detract from the position that the order which gtoverns the rights of the parties is the order of the Central <ORG> and not of the collector of customs. It is true that having regard to the language of Section 188 , the central <ORG> should have used the words that it confirms the order of the collector of customs. In my view therefore the true construction of the order of the central <ORG> is that in confirmed the order of the collector, of customs and did not make any variation or change in that order. The order that must be challenged by the plaintiff and would require to be set aside if the plaintiff has to succeed must be the order of the central <ORG>. I therefore cannot accept the contention of Mr. <NAME> that the whole of the cause of action arose in Bombay. Mr. <NAME> admits that the Central <ORG> made its order in Delhi. He however says that the order was communicated to the plaintiff in Bombay. In my view the communication of the order to the plaintiff in Bombay cannot from part of any cause of action at all. The making of the order must be chasllenged. In my view a material part of the cause of action arose outside Bombay. As <ORG> does not carry on business or reside in Bombay. I hold that it was necessary for the plaintiff to apply for and obtain leave under cl XII of the Letters Patent before this court could have jurisdiction to try and entertain this suti. The plaintiff having failed to obtain such leave I also hold that this court has no jurisdiction to try this suit.

(16) Mr. <NAME>. contended that on the principles which are to be found in Section 11 of the civil Procedure code having regard to the decision of <NAME> in the matter of Mis. Petition No. 342 of 1953 filed by the plaintiff I should hold that the plaintiff is not entitled to reagitate the same contentions once again before his court. Mr. <NAME> has drawn my attentionto the whole of the judgment of <NAME> It is unnecessary to quote the whole judgment here. It is clear that <NAME> was of the opinion that the petitioner (plaintiff) was guilty of delay in filling that petition by which he had challenged the orders as mentioned in the plaint in this suit. However he did not dismiss the petition on the ground of delay. He stated However as the petition disclosed no cause on merits I do not propose to dismiss it on that preliminary point. <NAME> discussed in detail the contentionof the petitioner in that petition that the orders made by the collector of customs dated December 29. 1950 and <ORG> dated October 22, 1951 and <ORG> dated June 24th, 1953 were contrary to law and against principles of natural justice. In connection with the aforesaid contention of the petitioner (Plaintiff) <NAME> examined in detail the provision of Section 167 (8) of the Sea Customs Act as also section 182 of the Sea customs Act and Section 8 of the Foreign Exchange Regulation Act. He held that under explanation (I) to Section 8 of the foreign Regulation act it was quite clear that it is not necessaryy for the purpose of consituting an impor t that the article should actually be imported. It is sufficient if it is brought into any Port and if the intention is to take it out without being removed from the ship. He further held that the final authorityy to determine whether in a given case there was import was vested in the customs collector and that this court was not entitled to set aside a finding made by the customs collector in that connection, Against that decision on merits by <NAME> the petitioner (plaintiff) did not file any appeal.

(17)_ On the merits of the plaintiffs case and or the contentions available to the plaintiff that was a decision made by a court of competent jurisidiction entitled to give required relief. There must be finality to all questions and contentions raised as between the parties to a litigation.

(18) Moreoever, public policy requires that there should be an end of litigation. The question whether the decision whether it operates or does not operate as res judicata, otherwise, every decision would be impugned as erroneous and there would be no finality. The rule of res judicata may thus by put upon two grounds - the one, the hardship to the individual that he should be vexed twice for the same cause, and the other public policy that it is in thee interest of the <ORG> that there should be an end of litigation. Putting it in another form, it may be said that ever suit must be sustained by a cause of action, and there is no cause of action to sustasin the second suit of the same party, it being merged in the judgment in the first.

(19) Whatever be the nature of the proceeding by way of petition under Art. 226 of the consistution, in my view it would be contrary to well estblished principles of procedure that parties to a litigation should be entitled to reagitate the same questions of facts or law once again in spite of a decision having been given on merits of the case by a court of competent jurisdiction. It was not open to the plaintiff to bring to me an appeal against the decision of <NAME>. J If this suit is heared on merits and the contentions of the decision of <NAME> J. in Mis Petn. 342 of 19532. Such a position cannot be allwed to be maintained. If <NAME> J. had not gone into the merits of the contentions of the plaintiff there might have been some scope for argument that there is no question of finally findings having been made and that in spite of a writ petition having been dismissed the plaintiff was entitled to file this suit. But as I have already indicated the contentions which could be raised on merits were before the court in Miscellaneous Petion No., 342 of 1953 and have been decided by <NAME> J.

(20) Mr. <NAME> however contends that jurisdictionn exercised by this court under Art 226 of the constituion is not of a civil nature. He says that it is a supervisory jurisdiction. In that connection he has relied upon the decision of the Patna High court in collector of <NAME> v. <NAME>, (S) . In that case on behalf of the opposite parties it was contended that the proceeding in the High court for grant of a writ under Art. 226 of the constitution is not a civil proceeding within the meaning of Art 133 of the constitution and that the petitioner had no right of appeal to the supreme court under that Article. <NAME> acceptaed that contention as correct and held that the petitioners were not entitled to a certificate for going in appeal to the supreme court against the decision of the High court in the matter of petitions under Art. 226 of the constitution. If is unnecessary for me to make any comment on the decision of the Patna High court in that case. The issue before me is not whether a certificate should be granted for goin in appeal inn to the suprme cout in the matter of the petition under Art. 226 of the constitution. The issue before me is of general character and is this, viz., whether in the even of one of the judges of this court having finaly decided on merits the contentions raised in a write petition under Art. 226 this court would allow the same contentions to be regaitated in a suit. In my view the answer must be that such Judge of this court and or a court of competent jurisdiction decides on merits the validity or invalidity of an impugned order in a perition filed under Art. 226 of the constitution of the only remedy which can be open to the aggrieved party must be the usual remedy of appeal. In the words of <NAME> in the decision of in re <NAME>, .

"Although the decision of <ORG> refusing a writ or an order under Art 226 may became final qua the High court, it is not as if the consitution does not provide other remedies to the citizen. He has a right, an independent right to appraoch the <ORG> court under Art. 32 Apart from that there is a right of appeal given to the citizen from an order of refusal of the High court to enforce his fundamental righhts. He has the right to ask <ORG> to grant him special leave to appeal under Art. 136. therefore, it is not as it the citizen is without a remedy in the event of the High court refusing to review its own judgmnet, however erroneous that judgment may be.

(21) Mr. <NAME> has cited several authorities dealing with the nature of the proceedings by way of a petition under Article 226 of the constitution. Having regard to the view which I am taking I find it unnecessary to discuss the various authorities cited by Mr. <NAME>.

(22) It is relevant to point out that thhe High court of Madras in the case of <CITATION> ., , has held as follows:

"If the application for the iissue of a writ under Art 226 is made on the civil side in dealing with such an application the High court is governed by the provisions of the civil procedure Code, and the High court has jurisdiction to review its order under Art. 226.

The High court of Calcutta in the case of <CITATION> , , also observed as follows:

"A judgment of a singly judge on an application made under Art 226, whether in a matter arising within the original jurisdiction or inn a matter arising outside, is judgment pursuant to section 108 government of India Act 1915 and therefore is appealable under Clause 15 of the letters Patent.........................

"It is unarguable that nnothing but judgments given in exercise of the jurisdiction specifically conferred by and mentioned in the letters patent is contemplated by Clause 15 in actual fact, judgments given in exercise of several jurisdictions not expressly mentioned in the letters patent have been held to be appealable.

(23) Though no decision has been cited to me as regards the principles of Section 11 of the code of Civil Procedure of being applicable to a matter which is initially decided in a writ petition under Art. 226 of the constitution having regard to what I have already observed. I am of the view that the same principles ought to be held to be applicable to all such matters. I accordingly hold that the plaintiffs suit is barred by rules of res judicata.

(24) The 2nd refendant in this suit is described as the collector of customs. On December 29, 1950 the impugned order was made by one M.E. <NAME> who was the then collector of <ORG>. At the date when the suit was filed viz., February 24, 1954 it is admitted by Mr. <NAME> that one <NAME> was the collector of <ORG>. The Collector of <ORG> is not a legal entity, but is merely an office occupied by several persons from prima facie grounds a suit cannot be filed against any one who is not a legal entity. The 2nd defendant in this case is described as the collector of customs and does not indicate any legal entity or person agains whom this suit is filed. In my view a suit cannot be filed against or in the name of the collector of customs, and my ginding on issue No. 5 is that the suit against the 2nd defendant in official description is not maintainable.

(25) My answers to issues Nos. 3, 4, 5 and 6 are:

Issue: No. 3 : In the negative.

Issue: No. 4 : In the affirmative.

Issue: No. 5 : In the negative.

Issue: No. 6 : In the affirmative.

(26) The result therefore is that this suit is dismissed with costs.

(27) Suit dismissed.


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.