Case ID: 4503

Judgment:
N: Criminal Appeal No. 221 of 1981. Appeal by Special Leave from the Judgment and Order dated 23.10.1979 of the Madras High Court in Criminal Appeal No. 759/79 (Referred Trial No. 9/79). A.T.M. Sampath and P.N. Ramalingam for the Appellant. A.V. Rangam for the Respondent. 272 The Judgment of the Court was delivered by	 CHANDRACHUD C. J. The appellant	 Muniappan	 was convicted by the learned Sessions Judge	 Dharmapuri under section 302 of the Penal Code and sentenced to death on the charge that he had committed the murder of his mother 's brother also called Muniappan and his son Chinnaswamy. The conviction for murder and the sentence of death having been confirmed by the High Court of Madras by a Judgment dated October 23	 1979	 this appeal has been filed by the accused by special leave. The leave is limited to the question of sentence. The judgments of the High Court and the Sessions Court	 in so far as the sentence is concerned	 leave much to be desired. In the first place	 the Sessions Court overlooked the provision	 contained in section 354(3) of the Code of Criminal Procedure	 1973	 which provides	 in so far as is relevant	 that when the conviction is for an offence punishable with death	 the judgment shall in the case of sentence of death state special reasons for such sentence. The learned Sessions Judge	 in a very brief paragraph consisting of two sentences	 has this to say on the question of sentence: "When the accused was asked on the question of sentence	 he did not say anything. The accused has committed terrific double murder and so no sympathy can be shown to him. " The judgment of the Sessions Judge is in Tamil but we understand from the learned counsel	 who appear in the case and both of whom understand Tamil well enough	 that the Tamil word "Bhayankaram" has been rightly translated as "terrific". We plead our inability to understand what is meant by a "terrific" murder because all murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence	 then every murder shall have to be visited with that sentence. In that event	 death sentence will become the rule	 not an exception and section 354(3) will become a dead letter. We are also not satisfied that the learned Sessions Judge made any serious effort to elicit from the accused what he wanted to say on the question of sentence. All that the learned Judge says is that "when the accused was asked on the question of sentence	 he did not say anything". The obligation to hear the accused on the question of sentence which is imposed by section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the 273 question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of section 235 (2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court	 while on the question of sentence	 is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. The Sessions Judge	 in the instant case	 complied with the form and letter of the obligation which Section 235(2) imposes	 forgetting the spirit and substance of that obligation. The High Court condemned the murders in terms equally strong by calling them "cold blooded" and thought that its duty to consider the propriety of the death sentence began and ended with that assertion. Its failure to see the failings of the Sessions Court in the matter of sentencing led to an unexamined confirmation of the death sentence. Coming to the judgement of the High Court itself	 there are certain features of it which need a close reflection. One of the questions before the High Court was as to the time when the double murder was committed because	 upon that circumstance depended the veracity of the eye witnesses. The doctor who performed the post mortem examination stated in his evidence that the deceased must have taken their food about four or five hours before their death. The case of the prosecution was that the murders were committed at about 9.00 p.m. P.W. 1	 who is the son of the deceased Muniappan	 stated in his evidence that the deceased had taken their food at 8.30 p.m. This was a very important aspect of the case to which the High Court should have applied its mind with care. Instead	 it took an extempore expedient by saying: "Both the deceased might have died a couple of hours after they substained the injuries at 9.00 p.m.". It is impossible to appreciate how	 after being shot in the chest and receiving the kind of injuries 274 which are described in the post mortem report	 the deceased could have survived for a couple of hours after they were shot. Yet another question which had an important bearing on the case was as to the delay caused in filing the F.I.R. The case of the prosecution is that P.W. 1 went to the Police Station promptly but the solitary police constable who was present there directed him to go to the village Munsif to have his complaint recorded. Now	 the record of the Police Station shows that a Sub Inspector of Police was also present at the Police Station which falsifies the evidence that only a police constable was present at the Police Station at the material time and	 therefore	 the F.I.R. could not be recorded. The High Court has dealt with this aspect of the matter thus: "In passing	 we may mention that this is a grave dereliction of duty on the part of the policeman who was in charge of the police station at that time and is a matter that ought to be enquired into by the higher authorities. We hope that suitable directions will be issued to subordinate officers in this district to prevent a recurrence of such lapses on the part of policemen when reports of cognizable offences are given. " The High Court added that the Inspector of Police was not on good terms with the Sub Inspector and	 therefore	 the former made a false entry that the latter was present at the police station	 which	 according to the High Court	 was a serious matter which required to be probed by the Senior Officers. We are not quite sure whether there is credible evidence on record to show any enmity between the Inspector and the Sub Inspector and whether the High Court merely relied on the statement made by counsel for the State that the relations between the two Police Officers were cordial. Whatever that may be	 we do not think that the High Court has explained satisfactorily why the F.I.R. was not recorded at the police station when P.W.1 went there. The ex parte strictures passed by the High Court are likely to involve the two Police Officers or at least one of them into grave consequences. They should have been given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct. There is one more aspect of the Judgment of the High Court	 which	 with great respect	 we are unable to appreciate. A question arose before the High Court as to whether a "muchilikka" bears the signature of the appellant. The High Court compared the 275 admitted signatures of the appellant with the disputed signature and came to the conclusion that the disputed signature was of the appellant himself. The High Court castigated the Public Prosecutor who conducted the prosecution in the Sessions Court by saying that he had not followed the cross examination of P.W.1 "with attention	 and not chosen to bring to the notice of P.W. 1 that the accused had signed the muchilikka	 exhibit P. 1. We do not know how the High Court came to know that the Public Prosecutor was not following the cross examination of the witness with attention	 but we can guess why the High Court made that observation. It added in parenthesis: "such lapses on the part of this Public Prosecutor have become frequent and have been commented upon by us	 and we hope that at least hereafter he will take some interest in the cases which he is conducting. " It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts. One should understand if the High Court were to make its guarded observation on the conduct of lawyers appearing before it. But how the learned Judges of the High Court had	 in their capacity as Judges of the High Court	 come to know that "such lapses on the part of this Public Prosecutor have become frequent. 	 we are unable to understand. These various matters make it unsafe to confirm the sentence of death imposed upon the appellant. The reasons given by the learned Sessions Judge for imposing the death sentence are not special reasons within the meaning of section 354(3) of the Criminal Procedure Code and we are not sure whether, if he were cognisant of his high responsibility under that provision, he would have necessarily imposed the death sentence. Accordingly, we set aside the sentence of death and sentence the appellant to imprisonment for life. N.V.K. Appeal allowed. 
2172	Appeal No. 822 of 1963 Appeal by special leave from the judgment and decree dated April, 7, 1961 of the Punjab High Court in Regular First Appeal No. 32 of 1957. Bishan Narain and B. P. Maheshwari, for the appellants Nos. 1 3 and 5 10. M. V. Goswami, for appellant No. 4. Bhawani Lal, E C. Agarwala, Ganpat Rai and P.C. Agarwala, for respondent Nos. 1(i) 1(vi). 864 The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the decree of the Punjab High Court in a suit brought by the plaintiffs respondents for pre emption. The appellants are vendees to the sale which was preempted. The facts found by the courts below are these. The property in suit consisted of agricultural land as well as some baras in village Jalalpur. Punnu Singh and Mansha Singh who were also parties to the suit as defendants sold the property in suit on January 15,1955 to the appellants. Thereafter consolidation proceedings took place in this village and came to an end before the present suit was filed on January 14, 1956. Of the vendees, six had no share in the village from before while four already had some share in the village. As a result of the consolidation proceedings, six of the vendees who had no share in the village from before were allotted other land in place of the land which they had purchased under the sale deed. The other four vendees who had some share in the village from before were allotted land in two blocks in lieu of the land they had in the village from before as well as the land which they had purchased by the sale deed in question. The plaintiffs respondents instituted the suit on the basis of their being collaterals and co sharers and wanted that they should be given out of the land allotted to the vendees in consolidation proceedings such land as they would be entitled to after pre emption of the sale in question. The suit was resisted by the appellants on a number of grounds. The main ground of defence with which we are concerned in the present appeal was whether the suit was maintainable with respect to the land which had been obtained by the vendees during consolidation proceedings in lieu of the land which was the subject matter of the sale deed. The trial court held in favour of the plaintiffs respondents and granted a decree for pre emption. On ,appeal to the High Court by the vendees, the High Court held on the basis of section 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act, No. 5 of 2007 Bk. (hereinafter referred to as the Act), that it was open to the pre emptor to follow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale deed. Further in the High Court another point was raised on behalf of four of the appellants who had land from before in the village and it was urged that in their case it was not possible to distinguish which land had been allotted to them in place of the land sold and therefore no pre emption decree should be granted. This argument was also rejected by the High Court, and the appeal was dismissed. The High Court having refused the certificate, the appellants applied and obtained ,special leave from this Court; and that is how the matter has come before us. 86 5 The main question that has been argued before us is that the suit is not maintainable as it is not open to the pre emptor to follow the land which might have been obtained by the vendees in lieu of the land actually sold to them. The answer to this question depends upon the interpretation of section 24 of the Act in the background of the law of pre emption. In Shri Audh Behari Singh vs Gajadhar Jaipuria,(1) this Court held that The correct legal position seems to be that the law of preemption imposes a limitation or disability upon the ownership of a property to the "extent that it restricts the owner 's unfettered right of sale and compels him to sell the property to his co sharer or neighbour as the case may be The crux of the whole thing is that the benefit as well as the burden of the right of preemption run with the land and can be enforced by or against the owner of the land for the time being although the right of the preemptor does not amount to an interest in the land itself The right of preemption is an incident of property and attaches to the land itself. . . . ." This Court had occasion to consider the matter again in Bishan Singh vs Khazan Singh(2) and pointed out that the right of preemption is not a right to the thing sold but a right to the offer of a thing about to be sold	 this being the primary or inherent right	 and that the preemptor has a secondary right or a remedial right to follow the thing sold. Reliance is placed on behalf of the appellants on this later decision and it is stressed that the preemptor 's remedial right is merely to follow the thing sold	 namely	 the very property which is the subject matter of the sale deed under preemption. The later decision on which reliance is placed does not in any manner affect the earlier decision where it was held that the right of preemption is an incident of property and attaches to the land. It is true	 as held in the later decision	 that ordinarily the right of the preemptor is to follow the property which is the subject matter of the sale deed. The question which	 however arises in the present case is whether s.24 of the Act makes any difference to this ordinary position of the law of preemption. That section reads as follows: "A land owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidati on as he had in his original holding or tenancy as the case may be." Clearly the effect of this provision is to give to the land owner or a tenant at will the same right in the land which he acquires under the scheme of consolidation in lieu of that land which he had before the consolidation proceedings. He cannot get more (1) [1955]1 S.C.R 70	 (2) ; 866 rights than he had before nor can be get any less rights. It is urged that section only preserves the rights and has nothing to do with obligations to which the land may be subject. We are of opinion that this is not so. When the section lays down that the land owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy	 it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example	 if the land owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely	 that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings. Therefore when section 24 speaks of the landowner or the tanant at will having the same right in the land allotted as he had in the original holding or tenancy	 it brings in all the rights and obligations which were attached to his ownership or tenancy of the land originally held. It is in this background that the nature of the right of preemption as held in Audh Behari Singh 's case (1) assumes importance. In that case it was held that the law of pre emption imposes a limitation or disability upon the ownership of a property and that the benefit as well as the burden of the right of preemption run with the land. Therefore if the original holding of the landowner was subject to the disability of preemption the land allotted in lieu thereof will be equally subject to the same disability. This will however always be subject to the law of pre emption itself	 and to the well settled principle of pre emption	 namely	 that the preemptor must have a right of preemption at the date of the sale	 at the date of the suit and finally at the date of the decree. Section 24 when it says that the landowner or the tenant at will shall have the same right in the land allotted to him as he a in his original holding or tenancy	 clearly preserves the obligation that may be on the land in the nature of a disability. The consequence therefore is that the ordinary law of preemption under which the preemptor has the right to follow the land which is the subject matter of the sale deed becomes expanded and the land allotted to the land owner or tenant at will in lieu of the land which may have been subject to preemption also becomes subject to preemption in the same way as the original holding or tenancy. So it follows that if the land allotted in lieu of the original holding or tenancy is preemptible under the law of pre emption and the right of preemption still exists on the three dates to which we have (1)[1955] 1 section C.R	 70. 867 already referred	 the pre emptor would by virtue of s.24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject matter of sale. We are therefore of the opinion that the construction of section 24 by the High Court is correct and the plaintiffs respondents have a right by virtue of section 24 of the Act to preempt the land which was allotted to the appellants in lieu of the land which was the subject matter of the sale deed. It is however urged that section 25 of the Act specifically provides for rights with respect to a lease	 mortgage or other encumbrance to attach to the land allotted in place of the original holdings	 and that shows that no other rights were intended to survive. We are of opinion that there is no force in this argument. It was necessary to enact section 25 when dealing with leases	 mortgages and encumbrances for without such a specific provision	 a lease	 mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land. This however is very different from an incident of ownership of land e.g. liability to preemption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by section 24. The special provisions	 therefore in section 25 do not negative the inference that obligations which attach to the right of ownership of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedings. This brings us to the subsidiary contention which was raised in the High Court	 namely	 that four of the vendees were allotted land in lieu both of what they owned from before and what they got under the sale deed in question. The High Court has held and we think rightly that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject matter of the sale deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not therefore be difficult to find out how much land was allotted Io these four vendees in place of the land which they got by the sale deed. Lastly it is urged that the form of the decree is incorrect. This submission is made on the basis of the following sentences in the judgment of the trial court: "It does not mean that the land is not distinguishable. It can be considered during execution at the time of delivering the possession of the land. " We have not permitted learned counsel to raise this point for the first time before us	 as it was not raised in the High Court. We therefore reject this contention. The appeal fails and is hereby dismissed. Costs as per order dated 8 9 65. Appeal dismissed.

Summary:
The Code of Criminal Procedure	 1973 by section 354(3) provides that when the conviction is for an offence punishable with death	 the judgment shall in the case of sentence of death state 'special reasons ' for such sentence. The appellant was charged under section 302 of the Penal Code for having committed the murder of his maternal uncle and his son. The Sessions Judge convicted the appellant for murder and being of the opinion that it was "a terrific double murder" sentenced the appellant to death	 The High Court condemned the murders as "cold blooded" and confirmed the conviction and sentence. Allowing the appeal to this Court	 limited to the question of sentence. ^ HELD: 1. The sentence of death imposed on the appellant is set aside and he is sentenced to imprisonment for life. [275 F] 2. The reasons given by the Sessions Judge for imposing the death sentence are not 'special reasons ' within the meaning of section 354(3) of the Criminal Procedure Code. It is not certain if he were cognizant of his high responsibility under that provision	 that he would have imposed the death sentence. [275 E] 3. It is not understood what is meant by "a terrific murder" as suggested by the Sessions Judge. All murders are terrific and if the fact of the murder being 271 terrific is an adequate reason for imposing the death sentence then every murder shall have to be visited with that sentence. Death sentence will then become the rule	 not an exception and section 354(3) would become a dead letter. [272 F G] 4(i). On the question of sentence it is not merely the accused but the whole society which has a stake. [273 B] (ii) After the conviction is recorded	 the occasion to apply the provisions of section 235(2) of the Criminal Procedure Code arises. The obligation under this section to hear the accused on the question of sentence is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court scene and approach the question of sentence from a broad sociological point of view. Questions which the Judge can put to the accused under section 235(2) and the answers which the accused makes are beyond the narrow constraints of the Evidence Act. The Court	 while on the question of sentence	 is in an altogether different domain in which facts and factors of an entirely different order operate. [273 B; 272 H 273 A; 273 C] In the instant case	 the Sessions Judge complied with the form and letter of the obligation which section 235(2) imposes	 forgetting the spirit and substance of that obligation. [273 D] 5. It is not possible to appreciate how	 after being shot in the chest and receiving the injuries described in the post mortem report	 the deceased could have survived for a couple of hours thereafter. There is also no explanation as to why the F.I.R. was not recorded at the Police Station when P.W. 1 went there. It is therefore unsafe to confirm the sentence of death imposed upon the appellant. [273 H. E] 6. It is not the normal function of the High Court to pass judgment on the conduct of lawyers who appear before the lower courts. [275 C] 7. The High Court should have given an opportunity to the two police officers to explain their conduct before making criticism on it. [274 G]