<NAME>, J.

1. The facts of this case are as follows : In this case one <NAME> had obtained a decree against defendants 1 and 2 in S.C.S. N0.296 of 1915. In execution of that decree (E. P. No. 959 of 1915) the decree-holder attached the suit property. The order to attach was made on nth August, 1915 and the attachment was actually made on 6th September, 1915. The sale was posted to 8th January, 1916. On 6th January, 1916 the present 3rd defendant filed a claim petition. On 8th January, 1916, the sale was adjourned to 15th January, 1916, in order to enable the <ORG> to enquire into the claim. But the claim petition was actually disallowed only on 17th January, 1916. The order disallowing the claim petition runs as follows : " In these two cases rival claimants have preferred claims to the property in dispute. The judgment-debtors are minors and two persons purporting to be their guardians have sold in one case the whole property and in another half the property to the two purchasers respectively who are adjacent land owners. The contest is practically between the two claimants and a suit is inevitable. On the grounds that the claims have been preferred too late and the delay is not satisfactorily explained, I disallowed the claim." Seeing that the attachment was made on the 6th September, 1915 and the claim petition was filed on 6th January, 1916 it is difficult to believe that there was such a serious delay in the case as to justify a dismissal without enquiry. It is doubtful that the District Munsif really meant to dismiss the claim petition on the ground of delay in view of his remark " The contest is practically between two rival claimants and a suit is inevitable." He seemed to think that whatever his order was, a regular suit was so certain that to enquire into the merits at that stage would be a waste of time and it was desirable to avoid waste of time at that stage. It is, therefore, difficult to construe the District Munsif's judgment as one dismissing the petition on the ground of delay in spite of the express statement to that effect. If the judgment of the District Munsif cannot be regarded as one disposing of the claim petition on the ground of delay, then the <ORG> decision in <CITATION> (1918) ILR 41 M 985 : 35 MLJ 335 (FB) does not apply; and the issue which raises the question of title will have to be gone into. But I do not wish to rest my judgment in this case solely on this ground in view of the ambiguous nature of the District Munsif's order. Mr. <NAME> has contended that E. P. No. 959 of 1915 was dismissed and with its dismissal the attachment has ceased to exist under Rule 57 of Order 21, Civil Procedure Code. The E. P. No. 959 of 1915 with all orders thereon up to 1st February has now been exhibited in Second Appeal as Ex. A. E. P. No. 196 of 1916 is exhibited as Ex. B. What happened was that on 17th January, 1916, after the claim petition was disallowed the decree-holder requested the <ORG> to stop the sale. At any rate that is the note made on the execution petition. Mr. <NAME> who appears for the respondent now suggests that that was not the result of the unwillingness on the part of the decree-holder to proceed with the sale but it was at the suggestion of the District Munsif that he stated he would file another petition and was willing to withdraw the same. He relies on E. P. No. 196 of 1916 which was filed on the 31st January, 1916, and on which an order was made directing notice for fresh proclamation. This was ordered on 21st February, 1916. In that petition, the petitioner stated that the <ORG> suggested that another petition may be filed on 1st February. No doubt the facts are somewhat suspicious and support Mr. <NAME>ar's suggestion. But the first petition was not very old at the time and there does not seem to be any particular reason why the District Munsif should be anxious to have it taken out of the file for statistical purposes being only five months old and suggest to the party to file another petition. If the District Munsif did so for such purposes no doubt it is improper. The decree-holder seemed to be willing to oblige the District Munsif. Anyhow he was willing that the fact should appear as if he was not prepared to proceed with the E. P. No. 959 of 1915 on 17th January, 1916. The final order in E. P. No, 959 of 1915 on the 1st February was that the petition was dismissed. Whatever the effect of that order was between the decree-holder and the judgment-debtor, persons who are not parties to the execution proceedings and who do not know all that passed between the <ORG> and the decree-holder are entitled to rely on the fact that the petition was dismissed on account of the unwillingness of the decree-holder to proceed with E. P. No. 959 of 1915. The result of this was that the attachment ceased to exist under Order 21, Rule 57. Though a fresh order on E. P. No. 196 of 1916 was taken without a fresh attachment and is final and binding between the decree-holder and the judgment-debtor and cannot be questioned on account of want of attachment, the present 3rd defendant is entitled to rely on the result of the dismissal of the earlier petition and say that the attachment has ceased to exist so far as he is concerned.

2. If the attachment has ceased to exist the next question that arises is whether the order on the claim petition, dated 17th January, compels the 3rd defendant to set it aside within one year and precludes him from raising his title in the absence of his suit within one year. On this question it is convenient if I make an extract from my judgment in A.S. No. 36 of 1920 referring this identical point to the Full Bench.

3. The appellant next contends that the order of 8th August, 1916, has not got to be set aside because the attachment to get rid of which, the claim petition was filed, had ceased to exist.

4. I will first observe that the effect of an order on a claim petition may be different according as the judgment-debtor is or is not a party to the inquiry. It was pointed out in <CITATION> (1902) ILR 25 M 721 : 12 MLJ 411 that the judgment-debtor may not be a party to the inquiry on the claim petition and in such a case the order though in favour of the claimant and opposed to the judgment-debtor's rights need not be conclusive against the judgment-debtor if no suit is filed by him within one year to set it aside. Conversely, if adverse to the claimant and in' favour of the judgment-debtor it need not be set aside by the claimant to the full extent it may sound in favour of the judgment-debtor and has to be set aside only so far as the order is in favour of the decree-holder concerned. If the judgment-debtor is a party, then the order on the claim petition decides not only questions between the claimant and the decree-holder, but also questions between the claimant and the judgment-debtor, the latter being in general much broader in scope than the former. To put it in other words : as soon as a claim petition is filed, there are three possible parties to the inquiry--the claimant, the decree-holder and the judgment-debtor and we may have two classes of cases : (1) Cases in which all three are parties. In such a case an order against the claimant will be wider in scope and has effects reaching much farther than in the second class. (2) Cases in which the claimant and the decree-holder are the only parties. In this case the order is narrower in scope and its consequences are not so far-reaching as in class (1).

5. An example will make my meaning clear. A obtains a decree against <ORG> for Rs. 200 and attaches a house worth Rs. 3,500. <ORG> claims ownership of the house and objects to the attachment. If A, <ORG> and <ORG> are parties to the inquiry and the claim petition is dismissed, it is obvious that the effect of the order is to hold that <ORG> is not the owner of the house and <ORG> is the owner, the order in favour of <ORG> operating to help A and other creditors of <ORG>. A regular suit by <ORG> in such a case to set aside the order to the fullest extent has to be valued at Rs. 3,500 and has to be filed in a <ORG>ourt competent to try that suit.

6. But if only A and <ORG> are parties to the inquiry, the effect of the dismissal of <ORG>'s petition is simply to hold that A has got a right to pursue the attachment and <ORG> has not got a right to object to the attachment. It is not to decide that <ORG> is not the owner of the property and that B is. A regular suit to set aside the order should be valued at Rs. 200 and not at Rs. 3,500 and may be filed in the District Munsif's <ORG>ourt. It may be that the reason of the order is that <ORG> is not the owner and it may be that, in the regular suit that follows, the issue that may be framed relates to the title of <ORG> (especially so if B is a party to the suit). These remarks follow from <NAME> v. Somasundaram <ORG>hettiar (1907) ILR 30 M 335 : 17 MLJ 95 ( <<ORG>ITATION> (1910) ILR 34 M 533 and <<ORG>ITATION> (1919) 37 MLJ 547. I will refer to these cases later on again, but at present I have made these general remarks as it is useful to remember the distinction in the discussion of cases.

7. The earliest case on the point raised before us is <CITATION> (1882) ILR 8 C 379. At page 281, Tottenham, J. says : " The finding of the <ORG> in the execution department that the sale was invalid only meant that the sale was invalid as against the judgment-creditor, and as against any purchaser who might purchase at a sale held in execution following that attachment. " In view of the latter clause, I do not see what meaning can be obtained by laying special emphasis on the words " against the judgment-creditor. " It may be that the reason of the order on the claim petition in that case was that the sale was made during attachment (see Section 64 of the present Code) but I do not see what argument can be derived from this fact unless the order on the claim petition which held that " the sale was invalid " expressly limited the operation of the order to claim petitions objecting to the particular attachment and saved other claim petitions to other possible attachments. The fact remains that the claim was dismissed with a general opinion that the sale was invalid without any limitation on the effect of the opinion.

8. The next case is Ibrahimbai v. <NAME> (1888) ILR 13 B 72. Bird-wood, J. said : "The second attachment was a new and distinct act giving a new cause of action on which the plaintiff is entitled to a fresh enquiry and decision." This was followed in <NAME> v. Bai <NAME> (1893) ILR 18 B 241 in which Sargent, C. J. says "when that attachment was removed by the judgment-creditor's own act on 20th November, 1888, there was no longer an attachment or any other proceedings, etc." <CITATION> (1903) ILR 31 C 228 their Lordships say at page 231 : "The object of the claim preferred by the plaintiff under Section 278, Civil Procedure Code, was to obtain the removal of the attachment, and when that attachment had been removed after payment of the decretal amount there was no longer an attachment or any proceeding in execution on which the order could operate to the prejudice of the plaintiff, and therefore there was no necessity to hiring a suit to set aside the order We are unable to accept the view suggested on behalf of the appellants that, in spite of the withdrawal of the attachment, the dismissal of the claim under Section 281, Civil Procedure Code, could, by virtue of the provisions of Section 283, Civil Procedure Code, have the effect of finally determining the question of title between the parties. "

9. The next case is <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136. It does not appear clearly from the facts whether the judgment-debtor was a party to the claim proceedings though, on the whole, it looks as he was not. The order on the claim petition was held conclusive against the claimant as between and a subsequent vendor from the judgment-debtor. I am indebted to my learned brother (<NAME>, J.) for the suggestion that this case can be justified on the ground that the subsequent vendor paid off the amount of the decree in execution of which the claim was preferred and may therefore be regarded as having been subrogated to the rights of the execution-creditor. This was not the actual ground of the judgment which seems to proceed on a too literal reading of Section 283. The learned Judges distinguish the cases in <CITATION> (1882) ILR 8 C 279 Ibrahimbai v. <NAME> (1888) I LR 13 B 72, <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1963) ILR 31 C 228 on the ground that in all these cases, the raising of the first attachment was within a year of the order on the claim proceedings. I find it difficult to follow this ground of distinction. In the first place, if it is conceded that the order becomes useless and inoperative when the attachment ceased within one year of the order, this is a concession not allowed by the literal reading of the section. Secondly, if the operativeness of an order on a claim petition is to be regarded as conditional on the continuance of the attachment, it is difficult to see why the cession of the attachment within one year should destroy the operativeness and the cessation of it beyond one year should have just the opposite effect merely because a suit to set aside could not be brought more than one year after the date of the order. It seems to me a novel legal conception. Thirdly, the fact that the decrees were paid off within one year seems to be an accident. Not one of the eight Judges laid any emphasis on the fact. The only difference I can see between the two cases (the raising of the attachment within one year and its raising beyond one year) is that in the former case, the unsuccessful claimant who waits incurs no risk as he knows for certain within one year that the attachment in execution of it has ceased to exist and in the latter he takes a risk by not suing as he cannot be certain that the attachment will be raised. But I do not see why when the event, on which he takes his chance, viz., the cessation of the attachment by the payment of the decree or for other reason, happens, he should not take advantage of it simply because he took risks in so waiting. This distinction has not been approved by <NAME>, J., in <CITATION> (1919) 37 MLJ 547 and the decision in <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 must be regarded as unsound except on the ground that the judgment-debtor must be regarded as a party to the order on the claim proceedings. This is how it was treated in all cases in which it was cited with reference to this point in Krishnaswami Naidu v. Somasundaram Chettiar (1907) ILR 30 M 335 : 17 MLJ 95 ( <CITATION> (1914) 26 MLJ 499. In my opinion, after these cases, it is futile to rely on <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 as an authority of any value.

10. Another distinction has been suggested by the respondents in respect of the cases in <CITATION> (1882) ILR 8 C 279, Ibrahimbai v. <NAME> (1888) ILR 13 B 72, <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1903) ILR 31 C 228. It is said that the question of the collusiveness of the order arose in a proceeding unconnected with the decree in the execution of which the claim was preferred. <CITATION> (1882) ILR 8 C 279 and Ibrahimbai v. <NAME> (1888) ILR 13 B 72 the point arose in connection with the execution of a second decree though in <CITATION> (1882) ILR 8 C 279 it was a second decree based on the same right as the first. In <NAME> v. Bai Divali (1893) ILR 18 B 241 and <CITATION> (1903) ILR 31 C 228, the question arose in later suits unconnected with the decree though in the former the party opposed to the unsuccessful claimant was the successful decree-holder claiming in some other right. The contention amounts to this, viz., the order is conclusive against the claimant in so far as he seeks to resist the particular decree though the attachments may be different but not conclusive as against different decrees though of the same decree-holder and a fortiori of different decree-holders. The distinction no doubt helps the respondents in the present case but is opposed to the decision in <NAME> v. <NAME> (1917) MWN 851. Incidentally I may observe this distinction concedes that the decisions in <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 and in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7 are erroneous and that the language of Order 21, Rule 63 should not be taken too literally. 1 think the distinction in so far as it seeks to apply the conclusiveness of an order to different attachments in execution of the same decree is opposed to the principle of Krishnaswami Naidu v. <NAME> (1907) ILR 30 M 335 : 17 MLJ 95 (FB) the reasoning in which equally applies to a case where there is a decree for costs to the extent of Rs. 200 and for mesne profits of the value of Rs. 3,500 and the first attachment was for costs only and the latter attachment is for the mesne profits. I also observe that the emphasis in all the four cases is on the non-identity of the attachments and not of the decree as the words underlined by me in the quotations from those judgments show.

11. If the language of Order 21, Rule 63 is read literally it may apply not only-

(a) to claimants resisting rights worked out in pursuance of the attachment to which the claim is made (in my opinion the operation of the rule ought to be confined to this class) but also to

(b) (1) between the claimant and other attachments under the same decree;

(2) between the claimant and attachments under other decrees of the same decree-holder;

(3) between the claimant and the decree-holder, whatever the right be on which he relies;

(4) between the claimant and all other decree-holders of the same judgment-debtor and all other persons claiming rights against the same judgment-debtor such as mere creditors who have not obtained decrees;

(5) between the claimant and judgment-debtor (including his assignees);

(6) between the claimant and all persons, (even if unconnected with the judgment-debtor) interest in denying the title of the claimant.[ <CITATION> (1919) 37 MLJ 547 at 549].

12. To allow the extension of the section so as to apply to class (6) is to create a species of orders in rem which are unknown except in Probate and Matrimonial proceedings. Even the doctrine of res judicata does, not apply so as to bar a person A from urging his right against C by reason of a former adjudication (adverse to A) between A and B. [Justice <NAME> points out in Sri Rajah Kakarlapudi Suryanara-yarinraju Garu v. Chellamkuri Chellamma (1870) 5 MHCR 176 that such a plea is allowed in Continental jurisprudence].

13. To allow the extension to class (5) is to ignore the distinction between the cases where a judgment-debtor is a party and where he is not which I pointed out at the beginning of the judgment. ,

14. To allow the extension to class (4) is to imagine that mere simple creditors and money decree-holders have got some interest in the property of their debtors and judgment-debtors though there is no charge on the property and not even attachment of it.

15. To allow the extension to classes (2) and (3) is to imagine that a person A, by merely obtaining a decree against B and attaching B's property under it has got a right to predicate that B is the owner of the property and not C for the purpose of all possible decrees he may obtain against B and all other purposes in respect of which he may come into conflict with C--a right unknown to law.

16. To allow the extension to class (1) is inconsistent with <NAME> v. <NAME> (1907) ILR 30 M 335 : 17 MLJ 95 (FB) and ignores the possibility of a decree being paid up by the judgment-debtor, or of an attachment being raised.

17. My view is supported by the two Bombay decisions and the two Calcutta decisions I have already mentioned by <CITATION> (1914) 26 MLJ 499 (though the point was not necessary for the decision) by Gollampalli Subbayya v. <NAME> (1917) MWN 851 (a very strong case on the facts) and by <CITATION> (1920) ILR 45 B 561. <CITATION> (1905) ILR 29 M 225 : 16 MLJ 136 the only decision in favour of the appellants is <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7. I have already commented on this in <CITATION> (1921) 41 MLJ 198 and one of the decisions I have referred to in this judgment except Gollampalli Subbayya v. <NAME> (1917) MWN 851 has been cited in it. It was based on a decision in <CITATION> 27 IC 800 in which the only question decided was whether the suit abated by reason of the satisfaction of the decree. The Code provides for no abatement except on death. Their Lordships held that the suit did not abate. I do not think it is permissible to infer from this that the order on the claim inquiry continues operative after the cessation of the attachment in a case where no suit was filed. I think the filing of the suit makes all the difference. The decisions in <CITATION> (1916) 31 MLJ 247, <CITATION> (1919) 37 MLJ 159 and <CITATION> (1919) 38 MLJ 397 do not help us as they are plain examples of the application of Order 21, Rule 63 without the complications of the Cessation of the first attachment. I think the decisions in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7 and Gollampalli Subbayya v. <NAME> (1917) MWN 851 are irreconcilable. Some reliance has been placed on the language of Section 64 of the Code. When we remember that Section 64 and Order 21, Rules 58--62 used to be in the same chapter of the former Codes, Section 64 supports my view and shows that the object of the <ORG> in providing against obstacles and objections to an attachment is the protection of rights created in pursuance of the attachment only."

18. The view I there took was that an order on a claim petition is final against the claimant in so far as the rights worked out in pursuance of the particular attachment are concerned. The only thing that I would now add in addition to the reasons given there is that Order 21, Rule 58 runs : "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, etc. " The language of the rule, especially the words " such attachment " I think, supports my reasoning in the passage quoted above. Seeing that there are a number of decisions of <ORG> taking this view, namely, <CITATION> (1914) 26 MLJ 499, Gollampalli Subbayya v. <NAME> (1917) MWN 851 and <CITATION> (1910) ILR 34 M 533 inasmuch as my learned brother agrees with my view, I do not think it is necessary to refer this case to <ORG> solely on account of the decision in <CITATION> (1920) ILR 44 M 268 : 40 MLJ 7. The second appeal will, therefore, be allowed and the suit remanded for fresh disposal as regards 3rd defendant. The appellant will have a refund of the <ORG>-fees paid in this <ORG> and in the Lower Appellate <ORG>. Costs in the first appeal and second appeal will be paid by the appellant as he has not raised the point about the cesser of attachment by filing the two execution petitions which have not been exhibited. Costs in the <ORG> of first instance to abide the result.

<NAME>, J.

19. I agree and have nothing to add.


PETITIONER: C.N. RUDRAMURTHY Vs. RESPONDENT: K. BARKATHULLA KHAN & OTHERS DATE OF JUDGMENT: 08/10/1998 BENCH: CJI, G.B. PATTANAIK, <NAME>. ACT: HEADNOTE: JUDGMENT:

J U D G M E N T <NAME>, J.

The appellant filed a suit against <NAME>, the original tenant in occupation of a premises bearing No. 199 and 200 situated at Brigade Road in Bangalore city for recovery of possession thereof on the ground that he had defaulted in payment of rent and had sublet the same contrary to law. The original tenant set up the defence that he had not sublet the suit premises or any portion thereof, but had only entered into an agreement to run business on his behalf and he was not liable to be evicted. The original tenant died on 8.1.1983 and his legal representatives were brought on record. They filed a written statement on 1.8.1984 contending that their father had parted with possession of the suit premises to respondent No.1 and no decree could be passed against them. Respondent No.1 was impleaded as a defendant on an application made by him. He contended that he had become a partner with <NAME> with the consent of the appellants and partnership stood dissolved as on 10.12.1982 and thus he was a tenant under the appellant directly. His tenancy had not been terminated and, therefore, there was no cause for suit. By a decree made on 31.3.1993, <ORG> directed the eviction of the first respondent. Respondent No.1 preferred an appeal against the said decree in <ORG>. This appeal is against that order made by <ORG>. This appeal is against that order made by <ORG> of Karnataka in that appeal filed by respondent No.1 In <ORG> three principal points were formulated for consideration :-

(1) Whether the first respondent is a tenant? If not, what is his status?

(2) Whether the suit is maintainable for ejection of the first respondent?

(3) Whether the first respondent is entitled for mesne profits under Order XX Rule 10 of the C.P.C.? The first two points raised for consideration turned on the question whether the first respondent is a tenant or not? If he is a tenant, it was stated that the matter has necessarily to go before <ORG> for eviction under Section 21 of the Karnataka Rent Control Act (hereinafter referred to as "the Act"). However, he is liable for eviction by virtue of a decree in the suit. The <ORG> below to pay rents or difficulty in answering the third point raised for consideration. What is really in issue before us are the first two points.

<ORG> held that there is no acceptable evidence to declare the first respondent as a tenant and thereby affirmed the conclusion reached by the trial court. After examining the scope of Section 23 of the Karnatak Rent Act which forbids creation of sub-lease or assignment or transfer either whole or any part of the demised premises, the learned Judge was of the view that the original tenant allowed others to carry on the business in his name as he was unable to carry on the business by himself due to old age initially by inducting the first respondent as a partner of the firm and then in his own capacity as a owner of the business concern which was not an unknown mode of transfer of tenancy and, therefore, the first defendant was not a trespasser. He, however, noticed that the first respondent was not inducted with the consent of the landlord and therefore his possession becomes unlawful and he is liable to be evicted under the provisions of Section 21(1)(f) of the Karnataka Rent Control Act and no other conclusion was possible in this regard. In view of that finding he held that <ORG> has no jurisdiction to pass an order of eviction as there is a specific provision ousting the jurisdiction of <ORG> to entertain any suit for eviction of a tenanted premises. On that basis, he allowed the appeal and set aside the decree dame by the trial court and directed the parties to work out their remedies in <ORG>.

In this background a contention was raised on behalf of the appellant that Section 31 of the Karnataka Rent Control Act enabled the filing of the suit as the rent in respect of the same was above Rs.500/- per month. <ORG> held that Section 31 of the Karnataka Rent Control Act had been declared invalid in <NAME> vs. State of Karnataka ILR 1986 Kar 2480. The view expressed by this Court in Civil Appeal No.13754 of 1996 entitled <CITATION> was also brought to the notice of <ORG> which reads as follows :- "In view of the decision of this Court in <NAME> and others versus Union of India 1995 (1) S.C.C. 104, this appeal would merit acceptance and accordingly we accept the same, set aside the impugned orders of <ORG> and restore that of <ORG> with regard to possession of the property in dispute as well as entitlement of the appellant to contractual rent up till the date of vacating for which item is being allotted hereby to the respondents."

While considering the question whether the decision of this Court in <NAME> case had impliedly overruled the decision of <ORG> in <NAME> case, <ORG> held that the decision laid down in <CITATION> reported in , should be followed and the decision in <NAME> case had no application.

In <NAME> case (supra) this Court was concerned with a provision under the Delhi Rent Control Act and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In <NAME> case <ORG> had proceeded to rely upon <NAME> case; when the matter was brought to this Court though no specific reference was made to <NAME> case, this Court stated that the law laid down in <NAME> case would be applicable, it was not open to <ORG> to state that it would prefer to follow the decision in <NAME> case. Indeed it is a matter of judicial discipline that required that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to <ORG> to consider the effect of the decisions in <NAME> case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in <NAME> case. The clear pronouncement made by this Court in <NAME> case was that <NAME> case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, <ORG>'s decision was upset in another matter where <ORG> had followed the <NAME> case. In effect, <NAME> case stood impliedly overruled. Thus, it was not at all open to <ORG> to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that the <NAME>'s case was applicable to the provisions of Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by <ORG> to the parties to work out their remedies under the Rent Control Act is not at all correct.

Ho<ORG>ver, learne<ORG> counsel for the respon<ORG>ents submitte<ORG> that there has been no <ORG>ecision of this <ORG> <ORG>irectly stating that the law <ORG>eclare<ORG> by <ORG> in <NAME> case was not correct an<ORG>, therefore, the view taken in <NAME> case may be examine<ORG> by us an<ORG> <ORG> may either uphol<ORG> the view expresse<ORG> therein or take another view though such a course was not open to <ORG>. We <ORG>o not think such an exercise is necessary when this <ORG> applie<ORG> its min<ORG> to the facts of the case, the law <ORG>eclare<ORG> by this <ORG> in <NAME>'s case an<ORG> applie<ORG> the same with reference to the provisions of the Karnataka Rent Control Act. If there has to be any change in the policy, it is certainly open to the <ORG> to interce<ORG>e it an<ORG> make appropriate law in that regar<ORG>. Therefore, this argument a<ORG>vance<ORG> on behalf of the learne<ORG> counsel for the contesting respon<ORG>ent <ORG>oes not appeal to us. yet another argument was presse<ORG> upon us to the effect that when a provision of law in an enactment has been <ORG>eclare<ORG> to be invali<ORG> an<ORG> when <ORG> <ORG>eclares the law with reference to another enactment of similar nature, it woul<ORG> not be open to <ORG> to say that the <ORG>ecision of this <ORG> shoul<ORG> be taken to have been overrule<ORG> or upset the <ORG>ecisions ren<ORG>ere<ORG> by <ORG> <ORG>eclaring the law to be invali<ORG>. This principle has no application in the present case at all because this <ORG> itself consi<ORG>ere<ORG> the effect of <NAME> case with reference to the provisions of the Karnataka Rent Control Act an<ORG> applie<ORG> the same thereto an<ORG> thereafter <ORG>eclare<ORG> what the law shoul<ORG> be. Though this <ORG> <ORG>i<ORG> not specifically referre<ORG> to the <ORG>ecision in <NAME> case, it is nee<ORG>less to say that the same stoo<ORG> overrule<ORG> because the law <ORG>eclare<ORG> by this <ORG> was contrary to what was state<ORG> in <NAME> case. Therefore that argument also is not soun<ORG> an<ORG> nee<ORG>s to be rejecte<ORG>. It is submitte<ORG> that if <ORG> take the view that Section 31 of the Karnataka Rent Act is vali<ORG> in view of <NAME>'s case, then the enactment will keep out of its purview large number of premises inasmuch as the rent payable in respect of commercial premises in Bangalore will certainly be more than Rs. 500/- per month. We have given our careful consi<ORG>eration to this aspect of the matter. Relying upon the <ORG>ecisions in <CITATION> 1998 (2) SCC 1, <CITATION> 1986(3) SCC 385, <CITATION> . 1984(1) SCC 222, <CITATION> . 1990(1) SCC 109, <CITATION> 1988 (1) SCC 366, it was submitte<ORG> that with passage of time an<ORG> change of circumstances the continue<ORG> operation of an Act which was vali<ORG> <ORG>re enacte<ORG> may become invali<ORG> as being arbitrary an<ORG> unreasonable. Though Karnataka Rent Control Act was enacte<ORG> in the year 1961 an<ORG> was to lapse by the en<ORG> of 10 years time, it has been exten<ORG>e<ORG> from time to time in the same form in which it was enacte<ORG> originally or with some mo<ORG>ification wherever it was necessary. We cannot imagine that the <ORG> was not aware or conscious of the fact as to the rents prevalent in the city of Bangalore or in other parts of the State in respect of non-resi<ORG>ential premises. Perhaps, the <ORG> thought it was necessary to give protection of the Act to only very poor tenants who pay rent less than Rs.500/- per month consi<ORG>ering the fact that tenants in other premises are economically of superior class an<ORG> can withstan<ORG> the maneuvers of a lan<ORG>lor<ORG> ho<ORG>ver po<ORG>rful he may be. If that was the policy of the law, <ORG> <ORG>o not think as state<ORG> in <NAME> case, it was open to the <ORG> to have <ORG>eclare<ORG> the same to be invali<ORG>. In the result, <ORG> are of the view that the <ORG>ecree passe<ORG> by the trial court is to be restore<ORG> by setting asi<ORG>e the or<ORG>er ma<ORG>e by <ORG> an<ORG> <ORG> or<ORG>er accor<ORG>ingly. The appeal, therefore, stan<ORG>s allo<ORG><ORG>. Ho<ORG>ver, consi<ORG>ering all aspects of the matter, <ORG> are of the opinion that the first respon<ORG>ent be given some reasonable time to vacate the premises an<ORG> which in this case <ORG><ORG> consi<ORG>er will be a perio<ORG> upto 30th of June, 1999 subject to the filing of usual un<ORG>ertaking within four <ORG>eks from to<ORG>ay. In the event such an un<ORG>ertaking is not file<ORG> before this <ORG>, it woul<ORG> be open to the appellant to seek for imme<ORG>iate eviction in a<ORG><ORG>ition to the con<ORG>ition that he shall vacate the premises an<ORG> <ORG>eliver the same on or before 30th of June, 1999.

CIVIL APPEAL NO. 5040 OF 1998 ARISING OF SPECIAL LEAVE PETITION (CIVIL) NO. 4557 OF 1998.

In view of the decision rendered by us in Civil Appeal arising out of Special Leave Petition (C) No. 6836 of 1996, the view taken by <ORG> has got to be upheld and this appeal deserves to be dismissed. However, the appellant is granted time to vacate the premises on or before 30th of June, 1999 upon his furnishing the usual undertaking in this Court within four weeks from today.


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.