judgement:
Appeal No. 235 of 1954.
On Appeal by Special Leave from the Judgment and Order dated the 26th day of February 1953 of the Bombay High Court in Appeal No. 120 of 1952 arising out of the Order dated the II the day of September, 1952 of the said High Court in its Ordinary Original Jurisdiction in Misc.
Application No. 216 of 1952.
M.C. Setalvad, Attorney General of India (B. Sen and R. H. Dhebar, with him) for the appellant.
Sri Narain Andley, J. B. Dadachanji and Rajinder Narain, for the respondent.
20 1956.
January 17.
The Judgment of the Court was delivered by IMAMJ.
By an order dated 12th May 1952, hereinafter referred to as the impugned order the Government of the State of Bombay requisitioned under section 5 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), hereinafter referred to as the Requisition Act, the premises specified therein.
The impugned order, so far as it is relevant to the present appeal, stated, "Now, therefore, in exercise of the powers conferred by sub section (1) of section 5 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) the Government of Bombay is pleased to requisition the said part of the building for a public purpose, namely, for housing an Officer of the State Road Transport Corporation which is a public utility service".
The respondent filed a writ application under Article 226 of the Constitution in the Bombay High Court and the application was beard by Tendolkar, J. who set aside the impugned order.
Against his decision the appellant appealed and a Division Bench of the said Court affirmed the decision of Tendolkar, J.
The present appeal is by special leave against the decision of the High Court.
The principal ground upon which the impugned order was set aside was that the requisition was not for a public purpose and therefore could not have been validly made under section 5 of the Requisition Act.
On behalf of the appellant, the Attorney General has urged that in the circumstances of the present case, the requisition was for a public purpose and the impugned order had been wrongly set aside by the High Court.
In support of his submission he relied upon certain provisions of the (LXIV of 1950), hereinafter referred to as the Act, the decision of the Privy Council in the case of Hamabai Framjee Petit vs Secretary of State for India in Council(1) and the decisions of this Court in (1) [1914] L.R. 42 I.A. 44.
21 The State of Bombay vs Bhanji Munji and Another(1) and The State of Bombay vs Ali Gulshan (Civil Appeal No. 229 of 1953) decided on the 4th of October 1955(2).
On the other hand, Mr. Andley, on behalf of the respondent, contended that to requisition the premises to house an employee of the State Road Transport Corporation, hereinafter referred to as the Corporation, could not be regarded as a public purpose because that was a matter in which the general interest of the community was not directly and vitally concerned.
He urged that although their Lordships of the Privy Council rightly approved the observations of Batchelor, J. concerning the expression 'public purpose ', they erred in their decision in Hamabai 's case.
In any event, Hamabai 's case could be distinguished as in that case there was a scheme for constructing houses for Government servants generally and not procuring residential accommodation for one particular individual.
The validity of the impugned order was also questioned by him on the ground that nothing had been established to prove that by housing an officer of the Corporation in the requisitioned premises the needs or the purposes of the Corporation would be served or that it would contribute to the efficiency of the officer concerned.
Before Tendolkar, J. two points bad been raised (1) that no enquiry, as required by section 5 of the Requisition Act, was held and (2) that the impugned order was invalid as the requisition was not for a public purpose.
The former question was decided against the respondent while the latter was decided in his favour.
In appeal, the first point does not appear to have been put forward as there is no reference to it in the judgments of the learned Judges of the Division Bench.
In this Court the only point argued was as to whether the requisition was for a public purpose or not.
Before proceeding to consider that question it is necessary to make some reference to the purpose for which the Corporation is established, its compo.
sition, the extent of control exercised by the State Government over it and its activities.
(1) (2) ; 22 It was not disputed before us that the Corporation is a public utility concern and is governed by the provisions of the Act.
The purpose for which the Corporation was created may be gathered from the provisions of section 3 of the Act which enables a State Government to establish a Road Transport Corporation having regard to the advantages offered to the public, trade and industry by the development of road transport, the desirability of coordinating any form of road transport with any other form of transport and the desirability of extending and improving the facilities for road transport in any area and of providing an efficient and economical system of road transport service.
The Corporation consists of a Chairman and members appointed by the State Government who are removable by that authority.
Where capital is subscribed by the issue of shares under section 23 of the Act provision is made for the representation of the share holders in the Corporation and the manner in which they are to be elected in accordance with rules to be framed under the Act.
Its Chief Executive Officer or General Manager and its Chief Accounts Officer are to be appointed by the State Government.
The other officers and servants are to be appointed by the Corporation but the conditions of appointment and service and the scales of pay shall be determined by regulations made under the Act subject to the provisions of section 34, which authorises the State Government to issue directions and general instructions to the Corporation and these instructions may include directions relating to the recruitment and conditions of service.
The Corporation is under the effective control of the State Government.
In addition to what has already been mentioned when referring to the composition of the Corporation, the capital of the Corporation may be provided by the Central and State Governments in such proportion as is agreed between them.
When no such capital is provided, the Corporation may raise capital, as is authorised by the State Government, by issue of shares.
These shares are guaran 23 teed by that Government.
The budget of the Corporation has to be submitted to the State Government for approval and its accounts are to be audited by an auditor appointed by that Government.
The balance of the net profits, after providing for various matters mentioned in section 30 of the Act, is to be made over to the State Government for the purpose of road development.
The Corporation can be superseded by the State Government or that Government may, after an enquiry under section 36, authorize a person by notification in the official Gazette to take over the Corporation and administer its affairs during the period the notification is in force.
The activities of the Corporation are manifold in pursuit of which there is a statutory duty to so exercise its powers as to provide, secure or promote the provision of an efficient, adequate, economical and properly coordinated system of road transport in the State or part of it and in any extended area (vide section 18 of the Act).
The powers of the Corporation are stated in section 19 of the Act.
These powers, although not exhaustive, cover a wide field.
Particular reference need be made only to some of them.
Section 19(1) provides: "Subject to the provisions of this Act, a Corporation shall have power: (a). . . . (b). . . . (c)to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities".
Section 19(2) excluding the explanation to clause (a) and some clauses with which we are not immediately concerned, states, "Subject to the provisions of this Act, the powers conferred by subsection (1) shall include power: (a) to manufacture, purchase, maintain and repair rolling stock, vehicles, appliances, plant, equipment or any other thing required for the purpose of any of the activities of the Corporation referred to in sub section (1).
24 (b) to acquire and hold such property, both movable and immovable, as the Corporation may deem necessary for the purpose of any of the said activities and to lease, sell or otherwise transfer any property held by it.
(d) to purchase by agreement or to take on lease or under any form of tenancy any land and to erect thereon such buildings as may be necessary for the purpose of carrying on its undertaking.
" The provisions of the Act read as a whole lead us to the conclusion that if the premises specified in the impugned order had been requisitioned for the Corporation, the requisition would have been for a public purpose.
Indeed the learned Judges of the High Court were of this opinion and Mr. Andley did not contend to the contrary.
According to him, in this case., the requisition was not for the Corporation but for an employee of the Corporation and for his convenience which could not be a public purpose.
The expression 'public purpose ' has been considered in many cases and it is unnecessary to refer to them except the three cases cited by the Attorney General.
In Hamabai 's case(1) the observation of Batchelor, J. to the effect "General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purposes ' in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned" received the approval of the Privy Council.
Their Lordships, however, rejected the contention that there cannot be a 'public purpose ' in taking land if that land when taken is no it in some way or other made available to the public at large.
This contention had been raised because the Government had resumed lands, which had been the subject of a lease and a sana , the terms of which permitted the Government to resume the lands for any public purpose, with a view to erect (1) [1914] L.R. 42 I.A. 44.
25 thereon dwelling houses for the use of Government officials as their private residence on adequate rent.
The concluding portion of the judgment of the Privy Council is important and needs to be quoted.
It stated, "But here, so far from holding them to be wrong, the whole of the learned judges, who are thorough conversant with the conditions of Indian life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants.
From such a conclusion their Lordships would be slow to differ, and upon its own statement it commends itself to their judgment".
In Bhanji Munji 's case(1) the requisition was for housing a person having no housing accommodation.
After considering the affidavits, the facts and the circumstances of the case, Bose, J .
observed "The Constitution authorizes requisition for a public purpose.
The purpose here is finding accommodation for the homeless.
If, therefore, a vacancy is allotted to a person who is in fact homeless, the purpose is fulfilled".
In Ali Gulshan 's case(2) the requisition was for the purpose of housing a member of the staff of a foreign Consulate.
This Court held that the requisition was for a State purpose, which it is needless to say must be regarded as a public purpose.
An examination of these and other cases leads us to the conclusion that it is impossible to precisely define the expression 'public purpose '.
In each case all the facts and circumstances will require to be closely examined in order to determine whether a 'public purpose ' has been established Prima facie the Government is the best judge as to whether 'public purpose ' is served by issuing a requisition order, but it is not the sole judge.
The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a 'Public purpose '.
The cases of Hamabai, Bbanji Munji and Ali Gulshan are merely illustrative.
In each of them primarily the person directly and vitally concerned would be the person to whom the residential accommodation would be (1) [1955] 1 S.C.R. 777.
(2) ; , 4 26 allotted with which prima facie the general interest of the community would not be directly concerned at all.
We must regard Hamabai 's case as a decision to the ,effect that the general interest of the community was directly and vitallyconcerned with the efficiency of the Government servants because it would be to its benefit to have such servants and, therefore, providing living accommodation for them was a public purpose.
The decision in Bhan Munji 's case must be read as one in which the general interest of the community was directly and vitally concerned with pre vention of lawlessness and disease and to house the homeless in order to avoid such a contingency was a public purpose.
In Ali Gulshan 's case a State purpose was served because the State Government was interested in its own trade or commerce and in the efficient discharge of his duties by a foreign Consul who would be concerned with such trade or commerce.
In the present case it is possible to construe the impugned order as a requisition on behalf of the Corporation as it does not name any individual for whom the requisition is being made.
In other words the requisitioned premises were at the disposal of the Corporation to house one of its officers to be named later on.
Apart from that, there is a statutory power in the Corporation under section 19 (1) (c) of the Act to provide living accommodation for its employees and under section 14 the Corporation appoints such number of its officers and servants as it considers necessary for the efficient performance of its functions.
It may be assumed, therefore, that the Corporation appoints only such officers as are needed for the efficient discharge of its functions and that the State Government was requested to requisition some premises as living accommodation for one of them whose posting at Bombay was necessary.
Indeed the affidavit of Mr. Nadkarni, Accommodation Officer of the Government of Bombay, states that the official of the Corporation has to perform his duties in Bombay.
Having regard to the provisions of section 19 (2) (a) and (b) of the Act, the power in the Corporation 27 to provide living accommodation for its employees must be regarded, as one of its statutory activities undersection 19(1).
Theword 'acquire ' may include the power to purchase by agreement but is wide enough to enable the Corporation to request the State Government to acquire property under the Land Acquisition Act (I of ] 894) in order to provide living accommodation for its employees.
The activities of the Corporation under section 19 (1) are so interlinked with its successful functioning as a Road Transport Corporation that requisitioning or acquisition of property to advance and ensure those activities must be regarded as for a public purpose.
It would not be sufficient to merely establish the Corporation.
It has to have an adequate and efficient staff, living accommodation forwhom would be an absolute need of the Corporation.
Its officers have to be efficient in the discharge oftheir duties, for upon them depends the successful working of the road transport system upon which the public must rely and thus it would be directly and vitally concerned with the efficiency of 'the employees of the Corporation.
It was suggested that a line must be drawn somewhere, otherwise there was no guarantee to what lengths the powers of requisition might be exercised by the Government.
It is sufficient to say that each case would have to be decided upon the facts and the circumstances ap pearing therein.
Here the Corporation is a public utility concern and the general interest of the community is directly and vitally concerned with its activities and its undertaking.
A breakdown in the Organisation of the Corporation, leading to dislocation of the road transport system would create a chaotic condition to the detriment of the interest of the community.
Providing living accommodation for its employees is a statutory activity of the Corporation and it is essential for it to provide such accommodation in order to ensure an efficient working of the road transport system and it must, therefore, be held that the impugned order was validly passed under the Requisition Act.
In the result the appeal is allowed and the decision 28 of the High Court is set aside.
Costs in the appeal in this Court shall be paid by the appellant to the respondent as directed by the order granting Special Leave.
Each party, however, will bear his own costs in the High Court.

summary:
In exercise of the powers conferred by sub section (1) of section 5 of the Bombay Land Requisition Act, 1948 the Government of Bombay requisitioned by an order dated 12th May 1952, the premises specified therein, for a public purpose, namely, for bousiing an officer of the State Road Transport Corporation which is a public utility service.
On a writ application under article 226 of the Constitution filed by the respondent the requisition order was set aside by the Bombay High Court on the ground that the requisition was not for a public purpose and therefore could not have been made under section 5 of the Requisition Act.
On appeal by special leave to the Supreme Court.
19 Held (1) that in the circumstances of the present case the requisition was for a public purpose and the impugned order had been wrongly set aside by the High Court; (2) the phrase 'Public purpose ' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned.
It is impossible to define precisely the expression 'public purpose '.
In each case all the facts and circumstances will require to be closely examined to determine whether a public purpose has been established; (3) the Corporation has power to provide for its employees suitable conditions of service including. . . living accommodation, places for rest and recreation and other amenities vide section 19(1) (c) of the Road Transport Corporation Act, 1950; (4) the provisions of the Road Transport Corporation Act read as a whole lead to the conclusion that if the premises specified in the impugned order had been requisitioned for the Corporation, the requisition would have been for a public purpose; (5)in the present case the Corporation is a public utility concern and the general interest of the public is directly and vitally concerned with its activities and undertaking.
Providing living accommodation for its employees is a statutory activity of the Corporation and it is essential for it to provide such accommodation in order to ensure efficient working of the road transport system and therefore the impugned order was validly passed under the Requisition Act.
Hamabai Framjee.
Petit vs Secretary of State for India in Council ([1914] L.R. 42 I.A. 44), The State of Bombay vs Bhonji Munji and Another ([1955] 1 S.C.R. 777) and The State of Bombay vs Ali Gulshan ([1955] 2 S.C.R. 867), referred to.


judgement:
: Criminal Appeal No. 70 of 1979.
Appeal by Special Leave from the Judgment and order dated 1 2 1978 of the Calcutta High Court in Criminal Appeal No. 273 of 1976 and death Reference No. 4/76.
H. C. Mittal (Amicus Curiae) for the Appellant.
G. section Chatterjee for the Respondent.
The following Judgments were delivered: CHINNAPPA REDDY, J. "The murderer has killed.
It is wrong to kill.
Let us kill the murderer".
That was how a Mr. Bonsall of Manchester (quoted by Arthur Koestler in his 'Drinkers of Infinity '), in a letter to the Press, neatly summed up the paradox and the pathology of the Death Penalty.
The unsoundness of the rationale of the demand of death for murder has been discussed and exposed by my brother Krishna Iyer, J., in a recent pronouncement in Rajendra Prasad vs State of Uttar Pradesh(1).
I would like to add an appendix to what has been said there.
The dilemma of the Judge in every murder case, "Death or life imprisonment for the murderer ?" is the question with which we are faced in this appeal.
The very nature of the penalty of death appears to make it imperative that at every suitable opportunity life imprisonment should be preferred to the death penalty.
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.
It is unique in its total irrevocability.
It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice.
And, it is unique finally in its absolute renunciation of all that is embodied in our concept of humanity" (per Stewart J., in Furman vs Georgia) (2).
"Death is irrevocable, life imprisonment is not.
Death, of course, makes rehabilitation impossible, life imprisonment does not" (per Marshall, J., in Furman vs Georgia).
Theories of punishment, there are many reformative, preventive, retributive, denunciatory and deterrent.
Let us examine which cap fits capital punishment.
The reformative theory is irrelevant where 360 death is the punishment since life and not death can reform.
The preventive theory is unimportant where the choice is between death and life imprisonment as in India.
The retributive theory is incongruous in an era of enlightenment.
It is inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the persons punished.
It is, however, necessary to clear a common misunderstanding that the retributive theory justifies the death penalty.
According to the retributivist society has the right and the duty to vindicate the wrong done to it and it must impose a punishment which fits the crime.
It does not mean returning of evil for evil but the righting of a wrong.
It implies the imposition of a just but no more than a just penalty and automatically rules out excessive punishment and, therefore, capital punishment.
According to a modern exponent of the retributive theory of justice "capital punishment. . is with out foundation in a theory of just punishment.
Indeed one could go further and assert that capital punishment is antithetical to the purposes and principles of punitive sanctions in the law.
Requital, when properly understood in terms of a concept of just law, undoubtedly does have a legitimate role in punishment.
However, neither requital nor punishment in general is a returning of evil for evil, and, therefore, I see no support for the demand that a murder (or an act of treason, or some other serious offence) be paid for with a life".
The Biblical injunction 'an eye for an eye and a tooth for a tooth ' is often quoted as if it was a command to do retributive justice.
It was not.
Jewish history shows that it was meant to be merciful and set limits to harsh punishments which were imposed earlier including the death penalty for blasphamy, Sabbath breaking, adultery, false prophecy, cursing, striking a parent etc.
And, as one abolitionist reminds us, who, one may ask, remembers the voice of the other Jew: "Whoever shall smite on thy right cheek, turn to him the other also ?".
The denunciatory theory of punishment is only a different shade of the retributive theory but from a sternly moral plain.
Lord Denning advanced the view before the Royal Commission on Capital Punishment: "The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.
It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else.
The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime, and from this point of view there are some murders which in the present state of opinion demand the most emphatic denunciation of all, namely the 361 death penalty" . "The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not".
The implication of this statement is that the death penalty is necessary not because the preservation of society requires it but because society demands it.
Despite the high moral tone and phrase, the denunciatory theory, as propounded, is nothing but an echo of the retributive theory as explained by Stephen who had said earlier: "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite".
The denunciatory theory is as inadequate as the retributive theory since it does not justify punishment by its results.
As Prof. Hart points out the idea that we may punish offenders not to prevent harm or suffering or even the reptition of the offence but simply as a means of emphatically expressing our condemnation, is uncomfortably close to human sacrifice as an expression of righteousness.
And, the question remains: "Why should denunciation take the form of punishment".
The deterrent theory may now be considered.
It is important to notice here that the question is not whether the penalty of death has deterrent effect on potential murderers but whether it deters more effectively than other penalties say, a sentence of imprisonment for a long term ? Is Capital Punishment the most desirable and the most effective instrument for protecting the community from violent crime ? What is the evidence that it has a uniquely deterrent force compared with the alternative of protracted imprisonment ? If the death penalty really and appreciably decreases murder, if there is equally no effective substitute and if its incidents are not injurious to society, we may well support the death penalty.
But all studies made on the subject, as I will presently point out, appear to have led to the conclusion that the death penalty is inconsequential as a deterrent.
Sir James Fitz James Stephen, a great Victorian Judge and a vigorous exponent of the deterrent theory said in his Essay on Capital Punishment: "No other punishment of death.
This is one of those committing crimes as the punishment of death.
This is one of those propositions which it is difficult to prove simply because they are in themselves more obvious than any proof can make them.
It is possible to display ingenuity in arguing against it, but that is all.
The whole experience of mankind is in the other direction.
The threat of instant death is the one to which resort has always been made when there was an absolute necessity of producing some results.
No one goes to certain inevitable death except by compulsion.
Put the 362 matter the other way, was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer of a commutation of a sentence for a severest secondary punishment? Surely not.
Why is this? It can only be because 'all that a man has will be given for his life".
In any secondary punishment however terrible, there is hope; but death is death; its terrors cannot be described more forcibly".
Stephen 's statement was admittedly a dogmatic assertion since he himself stated that it was a proposition difficult to prove though according to him, self evident.
The great fallacy in the argument of Stephen has been pointed out by several criminologists.
Stephen makes no distinction between a threat of certain and imminent punishment which faces the convicted murderer and the threat of a different problamatic punishment which may or may not influence a potential murderer.
Murder may be unpremeditated, under the stress of some disturbing emotion or it may be premeditated after planning and deliberation.
Where the murder is premeditated any thought of possibility of punishment is blurred by emotion and the penalty of death can no more deter than any other penalty.
Where murder is premeditated the offender disregards the risk of punishment because he thinks there is no chance of detection.
What weighs with him is the uncertainty of detection and consequent punishment rather than the nature of the punishment.
The Advisory Council on the Treatment of Offenders appointed by the Government of Great Britain stated in their report in 1960 "We were impressed by the argument that the greatest deterrent to crime is not the fear of punishment, but the certainty of detection".
Prof. Hart countered Stephen 's argument with these observations: 'This (Stephen 's) estimate of the paramount place in human motivation of the fear of death reads impressively but surely contains a suggestio falsi and once this is detected its congency as an argument in favour of the death penalty for murder vanishes for there is really no parallel between the situation of a convicted murderer over the alternative of life imprisonment in the shadow of the gallows and the situation of the murderer contemplating his crime.
The certainty of death is one thing, perhaps for normal people nothing can be compared with it.
But the existence of the death penalty does not mean for the murderer certainty of death now.
It means not very high probability of death in the future.
And, futurity and uncertainty, the hope of an escape, rational or irrational fastly diminishes the difference between death and imprisonment as deterrent, and may diminish to vanishing point.
The way in which the convicted 363 murderer may view the immediate prospect of the gallows after he has been caught must be a poor guide to the effect of this prospect upon him when he is contemplating committing his crime".
A hundred and fifty years ago a study was made by the Joint Select Committee appointed by the General Assembly of Connecticut and they reported "Your Committee do not hesitate to express their firm belief that a well devised system of imprisonment, one which should render the punishment certain and perpetual would be far more effectual to restrain from crime than punishment of death".
One of the most comprehensive enquiries ever undertaken on the subject was that made by the Royal Commission on Capital Punishment.
The Commission visited several countries of Europe and the United States, addressed questionnaires to many other countries in search of information and examined celebrated experts and jurists.
The Commission 's conclusions are of significance.
They said: "There is no clear evidence in any of the figures we have examined that the abolition of Capital Punishment has led to an increase in the homicide rate, or that its reintroduction to a fall. prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment and there is some evidence (though no convincing statistical evidence) that this is in fact so.
But its effect does not operate universally or uniformly and there are many offenders on whom it is limited and may often be negligible.
It is accordingly important to view this question in just perspective and not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty".
Prof. Thorsten Sellin who made a serious and through study of the entire subject in the United States on behalf of the American Law Institute stated his conclusion: "Any one who carefully examines the above data is bound to arrive at the conclusion that the death penalty, as we use it, exercises no influence on the extent or fluctuating rate of capital crime.
It has failed as a deterrent".
In 1962 statistics were compiled and a report was prepared at the instance of the United Nations Economic and Social Council on the question of Capital Punishment, the laws and practices relating thereto and the effects of capital punishment and the abolition thereof on the rate of criminality.
According to the report all the information available appeared to confirm that neither total abolition of the death penalty nor its partial abolition in regard to certain crimes only had 364 been followed by any notable rise in the incidence of crime which was previously punishable with death.
Late Prime Minister Bhandarnaike of Sri Lanka suspended the death penalty in 1956.
A Commission of Inquiry on Capital Punishment was appointed and it reported "If the experience of the many countries which have suspended or abolished capital punishment is taken into account there is in our view, cogent evidence of the unlikelihood of this 'hidden protection '.
It is, therefore, our view that the statistics of homicide in Ceylon when related to the social changes since the suspension of the death penalty in Ceylon and when related to the experience of other countries tend to disprove the assumption of the uniquely deterrent effect of the death penalty, and that in deciding on the question of reintroduction or abolition of the capital punishment reintroduction cannot be justified on the argument that it is a more effective deterrent to potential killers than the alternative of protracted imprisonment".
It is a tragic irony that Prime Minister Bhandarnaike who suspended the Capital Punishment in Ceylon was murdered by a fanatic and in the panic that ensued death penalty was reintroduced in Ceylon.
In the United States of America several studies have been made but 'the results simply have been inconclusive '.
The majority Judges of the United States Supreme Court who upheld the constitutionality of the death penalty in the State of Georgia in Gregg vs Georgia(1) were compelled to observe "Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence supporting or refuting this view".
In the same case the minority Judges Brennan, J., and Marshall, J., were convinced that 'capital punishment was not necessary as a deterrent to crime in our society '.
In India no systematic study of the problem whether the death penalty is a greater deterrent to murder than the penalty of life imprisonment has yet been undertaken.
A few years ago I made a little research into the matter and studied the statistics relating to capital crime in several districts of Andhra Pradesh from 1935 to 1970.(2) The pattern was most eratic but it can be boldly asserted that the figures do not justify a conclusion that the death penalty has been a deterrent, but, then, the figures do not also lead inevitably to the conclusion that the death penalty has not been deterrent.
One of the complicating factors is the discretion given to Judges to inflict 365 death penalty or imprisonment for life (about which more later) which destroys the utility of any study based on statistics.
The most reasonable conclusion is that there is no positive indication that the death penalty has been deterrent.
In other words, the efficacy of the death penalty as a deterrent is unproven.
"The death penalty, rather than deterring murder, actually deters the proper administration of criminal justice".(1) There is the absolute finality and irrevocability of the death penalty.
Human justice can never be infallible.
The most conscientious judge is no proof against sad mistakes.
Every criminal lawyer of experience will admit that cases are not unknown where innocent persons have been hanged in India and elsewhere.
And, it is not the only way the death penalty strikes at the administration of criminal justice.
Some Judges and Juries have an abhorrence of the death penalty that they would rather find a guilty person not guilty than send even a guilty person to the gallows.
The refusal of Juries to convict persons of murder because of the death penalty is a well known phenomenon throughout the world.
A perusal of some of the judgments of the Superior Courts in India dealing with cases where Trial Courts have imposed sentences of death reveals the same reluctance to convict because the result would otherwise be to confirm the sentence of death.
Thus a guilty person is prevented from conviction by a possibility that a death penalty may otherwise be the result.
That is not all.
There is yet a more 'grievous injury ' which the death penalty inflicts on the administration of Criminal Justice.
It rejects reformation and rehabilitation of offenders as among the most important objectives of Criminal Justice, though the conscience of the World Community speaking through the voices of the Legislature of several countries of the world has accepted reformation and rehabilitation as among the basic purposes of Criminal Justice.
Death penalty is the brooding giant in the path of reform and treatment of Crime and Criminals, "inevitably sabotaging any social or institutional programme to reformation '.
It is the 'fifth column ' in the administration of criminal justice.
There is also the compelling class complexion of the death penalty.
A tragic by product of social and economic deprivation is that the "have nots" in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens.
So, the burden of capital punishment falls more frequently upon the ignorant, the impoverished and the underpriviledged.
In the words of Marshall, J., "Their impotence leaves them 366 victims of a sanction that the welthier, better represented, just as guilty person can escape.
So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo because change would draw attention to the problem and concern might develop.
Ignorance is perpetuated and apathy soon becomes its mate and we have today 's situation".
As a matter of historical interest it may be mentioned here that when in 1956, in Great Britain, the House of Commons adopted a resolution "That this House believes that the death penalty for murder no longer accords with the needs or the true interests of a civilised society, and calls on Her Majesty 's Government to introduce forthwith legislation for its abolition or for its suspension for an experimental period", and the death penalty Abolition Bill was introduced, 'from the hills and forests of darkest Britain they came: the halt, the lame, the deaf, the obscrue, the senile and the forgotten the hereditary peers of England, united in their determination to use their medieval powers to retain a medieval institution",(1) and the bill was torpedoed by the House of Lords.
Capital Punishment was however abolished in Great Britain in 1966.
There is finally the question whether the death penalty conforms to the current standards of 'decency '.
Can there be any higher basic human right than the right to life and can anything be more offensive to human dignity than a violation of that right by the infliction of the death penalty.
Brennan, J., observed in Furman vs Georgia(2) "In comparison to all other punishments today. the deliberate extinguishment of human life by the State is uniquely degrading to human dignity. death for whatever crime and under all circumstances is truly an awesome punishment.
The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person 's humanity. as executed person has indeed lost the right to have rights".
Senor Tejera of Uruguay in the debate in the United Nations said "A death penalty is an anachronism in the twentieth Century and it is significant that no one in the committee has defended it.
It is the duty of the United Nations to promote progress and to protect man from the prejudices and barbarity surviving from the past".
In a large number of countries in the world where the murder rate is higher than in India, the death penalty has been abolished.
In most Latin American countries, in Argentina, Brazil, Columbia, Costa 367 Rica, Ecuador, Maxico, Panama, Peru and Uruguas, Venezuala, in European countries, in Austria, Belgium, Denmark, Germany, Italy, Netherlands, Norway, Sweden, and Switzerland, in Iceland, in Israel, in many Australian States and in many of the States in the United States of America, death sentence has been abolished.
It is in the light of the right to life as a basic concept of human dignity, in the context of the unproven efficacy of the death penalty as a deterrent and in the background of modern theories of criminology based upon progress in the fields of science, medicine, psychiatry and sociology and in the setting of the march of the movement for abolition of Capital Punishment, that Judges in India are required to decide which sentence to impose in a case of murder, death or imprisonment for life? Judges in India have the discretion to impose or not to impose the death penalty.
It is one of the great burdens which Judges in this country have to carry.
In the past, the reasons which weighed in the matter of awarding or not awarding the sentence of death varied widely and there was certainly room for complaint that there was an unequal application of the law in the matter of imposition of the sentence of death.
The varying outlook on the part of Judges was well brought out a few years ago by two decisions of the Andhra Pradesh High Court.
In the first case, while confirming the conviction of certain "Naxalites" for murder, the judges set aside the sentence of death and awarded life imprisonment instead.
That the murder was not for any personal motive but was in pursuit of some mistaken ideology was the reason which weighed with the judges for substituting the sentence of life imprisonment for the sentence of death.
Within a few months this view was subjected to severe criticism by two other Judges, who, in the second case confirmed the sentence of death.
Realising that discretion, even judicial, must proceed along perceptive lines, but, conscious, all the same, that such discretion cannot be reduced to formulae or put into pigeon holes, this Court has been at great pains eversince Ediga Annamma to point the path along which to proceed.
In the latest pronouncement of this Court in Rajendra Prasad vs State of Uttar Pradesh (supra) several relevant principles have been enunciated to guide the exercise of discretion in making the choice between the penalties of death and life imprisonment.
I express my agreement with the elucidation of the principles in Rajendra Prasad vs State of Uttar Pradesh.
(supra).
Section 302 Indian Penal Code prescribes death or life imprisonment as the penalty for murder.
While so, the Code of Criminal Procedure instructs the Court as to its application.
The changes which 368 the Code has undergone in the last 25 years clearly indicate that Parliament is taking note of contemporary criminological thought and movement.
Prior to 1955, Section 367(5) of the Code of Criminal Procedure 1898 insisted upon the Court stating its reasons if the sentence of death was not imposed in a case of murder.
The result was that it was thought that in the absence of extenuating circumstances, which were to be stated by the Court, the ordinary penalty for murder was death.
In 1955, sub section (5) of Section 367 was deleted and the deletion was interpreted, at any rate by some Courts, to mean that the sentence of life imprisonment was the normal sentence for murder and the sentence of death could be imposed only if there were aggravating circumstances.
In the Code of Criminal Procedure of 1973, there is a further swing towards life imprisonment.
Section 354(3) of the new Code now provides: "When the conviction is for an offence punishable with death or, in the alternative 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." So, the discretion to impose the sentence of death or life imprisonment is not so wide, after all.
Section 354(3) has narrowed the discretion Death Sentence is ordinarily ruled out and can only be imposed for 'Special reasons ', Judges are left with the task of discovering 'Special reasons '.
Let us first examine if the Code of Criminal Procedure gives any clue leading to the discovery of 'Special reasons '.
Apart from Section 354(3) there is another provision in the Code which also uses the significant expression 'special reasons '.
It is Section 361.
Section 360 of the 1973 code re enacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty one years of age or any women who is convicted of an offence not punishable with death or imprisonment of life, if no previous offence is proved against the offender, and if it appears to the Court, having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition.
If the Court refrains from dealing 369 with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons ' for not doing so.
Section 361 thus casts a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and, to state "special reasons" if it does not do so.
In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed.
This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal Justice in our country.
Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminilogy.
We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.
Special reasons must have some relation to these factors.
Criminal justice is not a computer machine.
It deals with complex human problems and diverse human beings.
It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget.
Like the rest of us they too are the creatures of circumstance.
Heredity, environment, home neighborhood, upbringing, school, friends, associates, even casual acquaintenances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities resulting thereform, the success and failure of one 's undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra ordinary incidents of life contribute to a person 's personality and influence his conduct.
Differently shaped and differently circumstanced individuals react differently in given situations.
A Judge has to balance the personality of the offender with the circumstance the situations and the reactions and choose the appropriate 370 sentence to be imposed.
A judge must try to answer a myried questions such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime ? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife ? Was it due to sexual jealousy ? Was the murder committed under some stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status? What is the level of his education or intelligence? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform ? Well, may one exclaim with Prof. Vrij "What audacity is involved in these three tasks: to interpret life, explain an act, predict the latest inclination of a human mind." 'Special reasons ', we may, therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of Criminology and connected sciences.
Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc.
I will not attempt to catalogue and 'Special reasons '.
I have said enough and perhaps more than what I intended, to indicate what according to me should be the approach to the question.
Whatever I have said is but to supplement what my brother Krishna Iyer has already said in Rajendra Prasad vs State of U.P.(1) Coming to the case before us, our brothers Jaswant Singh and Kailasam, JJ.
, ordered 'notice confined to the question of sentence only. ' At the last hearing we granted special leave to appeal on the question of sentence.
The appellant was convicted by the learned Additional Sessions Judge, Alipore, for the murder of his son and sentenced to death.
The High Court of Calcutta confirmed the conviction and sentence.
The reason given by the learned Sessions Judge for giving the sentence of death was that the murder was 'cruel and 371 brutal ' and that the facts show the 'grim determination ' of the accused to kill the deceased.
The Sessions Judge made no reference to the motive of the accused for the commission of the murder.
The High Court while confirming the sentence observed that the accused had previously murdered his wife, suspecting her infidelity and suspecting that the deceased in the present case was not his own son, that the sentence of imrisonment imposed on him for the murder of his wife had no sobering affect and that he had murdered his own son without any mercy or remorse and that he, therefore, deserved no mercy.
We do not think that either the Sessions Judge or the High Court made the right approach to the question.
The Sessions Judge was wrong in imposing the sentence of death without even a reference to the reason why the appellant committed the murder.
The observation of the High Court that the appellant deserved no mercy because he showed no mercy smacks very much of punishment by way of retribution.
We have examined the facts of the case.
We find some vague evidence to the effect that the appellant suspected that the deceased was not his own son and that he used to get angry with the deceased for not obeying him.
There is also vague evidence that he had killed the mother of the deceased and had suffered sentence of imprisonment for that offence.
From the vague evidence that is available we gather that the appellant was a moody person who had for years been brooding over the suspected infidelity of his wife and the injustice of having a son foisted on him.
We do not think that the mere use of adjectives like 'cruel and brutal ' supplies the special reasons contemplated by Section 354(3) Criminal Procedure Code.
In the light of the principles enunciated in Rajendra Prasad vs State of U.P.,(1) and in the light of what we have said earlier, we do not think that there are any 'special reasons ' justifying the imposition of the death penalty.
We accordingly allow the appeal as regards sentence, set aside the sentence of death and impose in its place the sentence of life imprisonment.
KRISHNA IYER, J.
I have had the advantage of reading the Judgment of my learned brother, Shri Justice Chinnappa Reddy.
I wholly agree with his reasoning and conclusion.
Indeed, the ratio of Rajendra Prasad etc.
vs State of Uttar Pradesh etc.(1), if applied to the present case, as it must be, leads to the conclusion that death sentence cannot be awarded in the circumstances of the present case.
Counsel for the State, if I recollect aright, did state that in view of the criteria laid 372 down in Rajendra Prasad 's case the State did not propose to file any written submissions against commutation to life imprisonment.
I concur with my learned brother and direct that the appeal, confined to sentence, be allowed and the alternative of life imprisonment imposed.

dataset_name: IN-Abs

summary:
The appellant was convicted by the Additional Session 's Judge Alipore for the murder of his son and sentenced to death.
The reason given by the Sessions Judge was that the murder was "cruel and brutal" and that the facts showed the "grim determination" of the accused to kill the deceased.
The Sessions Judge made no reference to the motive of the accused for the commission of the murder.
The High Court while confirming the conviction and sentence observed that the accused had previously murdered his wife, suspecting her infidelity that the sentence of imprisonment imposed on him for the murder of his wife had no sobering effect, that he suspected that the deceased in the present case was not his own son and so he murdered him without any mercy or remorse, and that he, therefore deserved no mercy.
Allowing the appeal by special leave limited to the question of sentence, the Court ^ HELD: 1.
There were no "special reasons" justifying the imposition of the death penalty.
[371 F] (a) The Sessions Judge was wrong in imposing the sentence of death without even a reference to the reason why the appellant committed the murder.
[371 C] (b) The observation of the High Court that the appellant deserved no mercy because he showed no mercy smacks very much of punishment by way of retribution.
[371 C] (c) From the evidence, it is clear that the appellant was a moody person who had for years been brooding over the suspected infidelity of his wife and the injury of having a son foisted on him.
The mere use of adjectives like "cruel and brutal" does not supply the special reasons contemplated by section 354(3) of the Criminal Procedure Code, 1973.
[371D E] Rajendra Prasad vs State of Uttar Pradesh, ; , applied.
"Special reasons" are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences.
Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative 356 policy of reformation of the offender and to the advances made in the methods of treatment etc.
Section 354(3) of the 1973 Code has narrowed the discretion of sentence for murder.
Death sentence is ordinarily ruled out and can only be imposed for "Special reasons".
Judges are left with the task of discovering "special reasons".
[368 D E, 370E F] (a) Apart from Section 354(3), there is another provision in the Code which also uses the significant expression "Special reasons".
It is Section 361, Section 360 of the 1973 Code re enacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition.
If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done, so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the "Special reasons" for not doing so.
Section 361 thus casts a duty upon the Court to apply the provisions of Section wherever it is possible to do so and, to state "special reasons" if it does not do so.
[368F H, 369A B] (b) In the context of Section 360, the "Special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offenders, after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed.
This is some indication by the legislature that reformation and rehabilitation of offenders, and not mere deterrence are now among the foremost objects of the administration of criminal justice in our country.
Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology.
Therefore, the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.
Special reasons must have some relation to these factors.
[369B E] 3.
Criminal justice is not a computer machine.
It deals with complex human problems and diverse human beings.
It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think learn and forget.
Like the rest of us they too are the creatures of circumstances.
Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintences, the books that one reads, newspapers, radio and TV, the economics of the household, the oppor 357 tunities provided by circumstances and the calamatics resulting therefrom the success and failure of one 's undertakings the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra ordinary incidents of life contribute to a person 's personality and influence his conduct.
Differently shaped and differently circumstanced individuals react differently in given situations.
A judge has to balance the personality of the offender with the circumstances the situations and the reactions and choose the appropriate sentence to be imposed.
A judge must try to answer a myriad question such as was the offence committed without premeditation or was it after due deliberation ? What was the motive for the crime ? Was it for gain ? Was it the outcome of a village feud ? Was it the result of a petty drunken, street brawl, or a domestic bickering between a helpless husband and a helpless wife ? Was it due to sexual jealousy ? Was the murder committed under some, stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of society, or on the other hand, do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or is he a person who is patently amenable to reform ? [369 E H, 370 A C] (a) Judges in India have the discretion to impose or not to impose the death penalty.
It is one of the great burdens which judges in this country have to carry.
In the past, the reasons which weighed in the matter of awarding or not awarding the sentence of death varied widely and there was certainly room for complaint that there was unequal application of the law in the matter of imposition of the sentence of death.
[367C D] (b) There cannot be any higher basic human right than the right to life and there can not be anything more offensive to human dignity than a violation of that right by the infliction of the death penalty.
It is in the light of the right to life as a basic concept of human dignity, in the context of the unproven efficacy of the death penalty as a deterrent and in the background of modern theories of criminology based upon progress in the fields of science, medicine, psychiatry and sociology and in the setting of the march of the movement for abolition of Capital Punishment, that Judges in India are required to decide which sentence to impose in a case of murder, death or imprisonment for life? [366D, 367B C] Furman vs Georgia, 33 Lawyers Edn.
2nd Series 346 referred to.
(c) Realising that discretion, even judicial, must proceed along perceptive lines, but, conscious, all the same that such discretion cannot be reduced to formulate or put into pigeon holes, this Court has been at great pain ever since Ediga Annamma to point out the path along which to proceed.
In the latest pronouncement of this Court in Rajendra Prasad vs State of Uttar Pradesh, several relevant principles have been enunciated to guide the exercise of discretion in making the choice between the penalties of death and life imprisonment.
[367F G] Ediga Annamma vs State of A.P. , Rajendra Prasad vs State of U.P. ; referred to.
358 4.
Among the several theories of punishment the reformative theory is irrelevant where death is the punishment since life and not death can reform; the preventive theory is unimportant where the choice is between death and life imprisonment as in India; the retributive theory is incongruous in an era of enlightenment and inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the person punished.
Equally, the denunciatory theory is as inadequate as the retributive theory since it does not justify punishment by its results.
[359H, 360A B, 361B] 5.
(a) The very nature of the penalty of death makes it imperative that at every suitable opportunity life imprisonment should be preferred to the death penalty.
[359E] Furman vs Georgia, ; Edn. 346; relied on.
(b) All studies made on the subject whether capital punishment is the most desirable and most effective instrument for protecting the community from violent crime than other penalties say, a sentence of imprisonment for long terms, have led to the conclusion that the death penalty is inconsequential as a deterrent.
[361 F] (c) There is no positive indication that the death penalty has been deterrent.
In other words, the efficacy of the death penalty as a deterrent is unproven.
[365A] 6.
The death penalty, rather than deterring murder, actually deters the proper administration of criminal justice.
[365 A B] (a) There is the absolute finality and irrevocability of the death penalty.
Human justice can never be infallible.
The most conscientious judge is no proof against any mistakes.
Cases are unknown where innocent persons have been hanged in India and elsewhere.
[365B C] (b) Some Judges and Jurists have an abhorrence of the death penalty that they would rather find a guilty person not guilty than send even a guilty person to the gallows.
The refusal of juries to convict persons of murder because of the death penalty is a well known phenomenon throughout the world.
A perusal of some of the judgments of the Superior Courts in India dealing with cases where Trial Courts have imposed sentence of death reveals the same reluctance to convict because the result would otherwise be to confirm the sentence of death.
Thus a guilty person is prevented from conviction by a possibility that a death penalty may otherwise be the result.
[365C D] (c) Yet a more 'grievious injury ' which the death penalty inflicts on the administration of Criminal Justice is that it rejects reformation and rehabilitation of offenders as among the most important objectives of Criminal Justice, though the conscience of the World Community speaking through the voices of the Legislature of several countries of the world has accepted reformation and rehabilitation as among the basic purposes of Criminal Justice.
Death penalty is the brooding giant in the part of reform and treatment of Crime and Criminals, 'inequitably sabotaging any social or institutional programme to reformation '.
It is the 'fifth column ' in the administration of criminal justice.
[365E G] (d) There is also the compelling class complexion of the death penalty.
A tragic by product of social and economic deprivation is that the 'have nots ' 359 in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens.
So, the burden of capital punishment falls more frequently upon the ignorant, the improverished and the underprivilege.
[365 G H]


judgement:
N: Criminal Appeal No. 154 of 1972.
From the Judgment and Order dated 12 11 1971 of the Allahabad High Court in Criminal Revision No. 865 of 1970.
Shiv Pujan Singh for the Appellant.
D.P. Uniyal and M. V. Goswai for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY J.
Jorma who was convicted by the learned Sessions Judge, Dehradun under Section 302 Indian Penal Code and 449 sentenced to suffer imprisonment for life, was directed by the High Court of Allahabad to be released on bail on furnishing bail to the satisfaction of the District Magistrate, Dehradun.
The District Magistrate (Judicial) Dehradun ordered Jorma to execute a personal bond in a sum of Rs. 5,000/ and to furnish two sureties in a sum of Rs. 10,000/ each.
Ram Lal the present appellant was one of the persons who executed a surety bond.
Another, Abdul Jabbar, also executed a surety bond.
By some oversight no personal bond was taken from Jorma nor was his signature taken on the reverse of the bonds executed by the two sureties as appeared to have been usually done.
Jorma jumped bail and the sureties were unable to produce him when required to do so.
The District Magistrate, Dehradun, therefore, forfeited the surety bonds and issued a warrant of attachment against the sureties under Section 514 of the Code of Criminal Procedure, 1898.
The appellant preferred an appeal to the High Court of Allahabad against the order of forfeiture.
Before the High Court it was submitted that the surety bond executed by the appellant could not be forfeite when no personal bond had been taken from the accused who had been released on bail.
The High Court over ruled the submission of the appellant and confirmed the order of forfeiture.
The appellant has filed this appeal on a certificate granted by the High Court under Article 134(1)(c) of the Constitution.
Shri Shiv Pujan Singh, learned Counsel for the appellant submitted that the question of forfeiting the surety bond for the failure of the accused to appear would arise only if the accused himself had executed a personal bond for his appearance.
He submitted that someone must be primarily bound before the surety could be bound and his bond forfeited.
He invited our attention to Section 499 of the Code of Criminal Procedure, 1898, and form No. 42 of the forms in Schedule V.
He relied on the decisions in Brahma Nand Misra vs Emperor, (1), and Sailash Chandra Chakraborty vs The State(2).
A reference was also to Bakaru Singh vs State of U.P. (3) On the other hand the learned Counsel for the State urged that the bond to be executed by the surety was independent of the bond to be executed by the accused and there was no impediment in the way of the forfeiture of the surety bond even in the absence of a personal bond executed by the accused.
He relied upon the decisions in Abdul Aziz & Anr.
vs Emperor(4), and Mewa Ram & Anr.
vs State (5).
450 Section 499(1) of the Code of Criminal Procedure Code 1898 was in the following terms: "Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such persons shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be".
Now, this provision contemplated the execution of a bond by the accused, and by the sureties.
The provision did not imply that a single bond was to be executed by the accused and the sureties, as it were, to be signed by the accused and counter signed by the sureties.
Form No. 42 of Schedule V, Code of Criminal Procedure, 1898, was as follows: "XLII bond and bail bond on a preliminary Inquiry before a Magistrate.
(See Sections 496 and 499) I, (name), of (place), being brought before the Magistrate of (as the case may be charged with the offence of, and required to give security for my attendance, in his Court and at the Court of Session, if required, do bind myself to attend at the Court of the said Magistrate on every day of the preliminary inquiry into the said charge, and, should the case be sent for trial by the Court of Session, to be, and appear, before the said Court when called upon to answer the charge against me; and, in case of my making default, herein, I bind myself to forfeit to Government the sum of rupees Dated this day of 19 (Signature) I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the said (name) that he shall attend at the Court of on every day of the preliminary inquiry into the offence charged against him, and, should the case be sent for trial by the Court of Session, that he shall be, and appear, before the said Court to answer the charge against him, and, in case of his 451 making default therein, I bind myself (or we bind ourselves) to forfeit to Government the sum of rupees Dated this day of 19 (Signature)" The undertaking to be given by the accused as may be seen from form No. 42 of Schedule V was to attend the Court on every day of hearing and to appear before the Court whenever called upon.
The undertaking to be given by the surety was to secure the attendance of the accused on every day of hearing and his appearance before the Court whenever called upon.
The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused.
The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon, even if both the undertakings happened to be executed in the same document for the sake of convenience.
Each undertaking being distinct could be separately enforced.
It is true that before a person is released on bail he must execute a personal bond and, where necessary, sureties must also execute bonds.
There can be no question of an accused being released on bail without his executing a personal bond.
But it does not follow therefrom that if a person is released by mistake without his executing a personal bond the sureties are absolved from securing his attendance and appearance before the Court.
The responsibility of the surety arises from the execution of the surety bond by him and is not contingent upon execution of a personal bond by the accused.
Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused.
The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties.
The Calcutta High Court in Sailash Chandra Chakraborty vs The State (supra) and single Judge of the Allahabad High Court in Brahma Nand Misra vs Emperor, (supra) proceeded on the assumption that the bond executed by the accused and the sureties was single and indivisible and if the accused did not join in the execution of the bond, the bonds executed by the sureties alone were invalid.
We do not find any warrant for this assumption in Section 499 of the Criminal Procedure Code of 1898.
We are afraid that there has been some confusion of thought by the importation of the ideas of 'debt ' and 'surety ' from the civil law.
As pointed out in Abdul Aziz & Anr.
vs Emperor(supra) under Section 499 Criminal Procedure Code, the surety did not guarantee the payment of any sum of money by the person accused 452 who was released on bail but guaranteed the attendance of that person and so the fact that the person released on bail himself did not sign the bond for his attendance did not make the bond executed by the surety an invalid one.
In Mewa Ram & Anr.
vs State (supra) the difference between a surety under the Code of Criminal Procedure and a surety under the Civil Law was pointed out and the view taken in Abdul Aziz & Anr.
vs Emperor (supra) was reiterated.
We agree with the view expressed in Abdul Aziz & Anr.
vs Emperor, and Mewa Ram & Anr.
vs State (supra).
In Bakaru Singh vs State of U.P., (supra) the question presently under consideration did not arise.
The question which was considered in that case was whether it was necessary that the personal bond of the accused should be executed on the other side of the bond executed by the surety on the same paper.
It was held that it was not necessary.
And, it was pointed out that the mere fact that form No. 42, Schedule V Criminal Procedure Code, printed the contents of the two bonds, one to be executed by the accused and the other by the surety together, did not mean that both the bonds should be on the same sheet of paper.
To the extent that it goes the decision helps the State and not the appellant.
For the reasons stated above, the appeal is dismissed.
N.V.K. Appeal dismissed.

summary:
Dismissing the appeal, ^ HELD: Section 499(1) of the Cr.
P.C., which contemplated the execution of a bond by the accused and by the sureties, did not imply that a single bond was to be executed by both the accused and the sureties, signed by the accused and counter signed by the sureties.
An undertaking of the surety in Form 42, Schedule V to secure the attendance of the accused was quite independent of the undertaking given by the accused to appear before the court whenever called upon, even if both the undertakings of the surety and the accused happened to be executed in the same document for the sake of convenience.
Each under taking being distinct can be separately enforced.
[450 C, 451 B D] The fact that an accused would not be released on bail without his executing a personal bond does not mean that if a person is released by mistake without his executing a personal bond, the sureties are absolved from securing the attendance of the accused and his appearance before the court.
The sureties ' responsibility arises from the exeeution of the surety bond and is not contingent upon execution of a personal bond by the accused.
Nor is the liability to forfeiture of the bond executed by the surety contingent upon the execution and the liability to forfeiture of the personal bond executed by the accused.
The forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties.
[451 E F] Abdul Aziz & Anr.
vs Emperor, AIR 1946 All. 116; Mewa Ram & Anr.
vs State, AIR 1953 All. 481; approved.
Bakaru Singh vs State of U.P., ; ; distinguished.
Brahma Nand Misra vs Emperor, AIR 1939 All. 682; Sailesh Chandra Chakraborty vs The State, AIR 1963 Cal.
309; over ruled.


judgement:
Civil Appeal No. 2281 of 1969 Appeal by Special Leave from the Judgment and Order dated 6th December, 1965 of the Allahabad High Court in Special Appeal No. 978/62.
Shiv Pujan Singh and M. V. Goswami for the Appellant.
B. P. Maheshwari and Suresh Sethi for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by the State of U.P. by special leave granted by this Court against the judgment and order of the High Court at Allahabad in Special Appeal No. 978 of 1962.
Two companies, the Raza Sugar Co. Ltd. and the Buland Sugar Co. Ltd., were incorporated under the Rampur State Companies Act, 1932.
Messrs. Govan Brothers (Rampur) Ltd. were the common managing agents of the two companies.
On 10th May, 1933 the Raza Ltd. and on 11th December, 1934, the Buland Ltd. entered into agreements with the erstwhile State of Rampur.
The agreements provided that the Rampur State should grant to the companies leases of the agricultural land with adequate irrigation facilities suitable for cultivation of sugar cane.
The companies were required to pay fair and equitable land revenue which was to be agreed upon by the com 421 panies and the Rampur State.
On 5th May, 1935, a partnership deed was a executed by the Raza Ltd. and the Buland Ltd. constituting a partnership firm of the two companies in equal shares known as the Agricultural Company, Rampur.
In the year 1939 the Rampur State leased 2,000 acres of land and in the year 1946 another 2,000 acres of land to the Agricultural Company, Rampur.
In 1949 the State of Rampur acceded to the Union of India and was merged with the State of Uttar Pradesh with effect from Ist December, 1949.
The Rampur State had agreed to exempt the Raza Ltd. and the Buland Ltd. from all taxes for a period of 15 years from the date of commencement of their business.
The U.P. Agricultural Income Tax Act was applied to the areas which formed part of the erstwhile State of Rampur on Ist July, 1950.
The Assessing Authority issued notices under section 16(4) of the U.P. Agricultural Income Tax Act to the Raza Ltd. and the Buland Ltd. for furnishing returns of their agricultural incomes for the years 1357 F to 1361 F. It may be noted that the notice was not issued to the Agricultural Company, Rampur.
The Raza Ltd. and the Buland Ltd. submitted their returns.
The Assessing Authority assessed the two companies to agricultural income tax for the years concerned.
The companies preferred an appeal against the assessment to the Commissioner, Rohikhand Division, and also filed writ petition No. 2385 of 1959 in the High Court of Allahabad challenging the assessment orders.
On 17th April, 1961 the writ petition was allowed and the order of assessment was quashed with a direction that fresh assessments may be made.
The Commissioner also directed the Assessing Authority to make fresh assessments in the light of the observations made by the High Court in its judgment dated 17th April, 1961, allowing the writ petition No. 2385 of 1959.
When the Assessing Authority started fresh hearing in pursuance of the order of the High Court an objection was raised with regard to the assessability of the two companies on the ground that no notice had been sent to the Agricultural Company, Rampur.
The Assessing Authority negatived the plea and assessed the Raza Ltd. and the Buland Ltd. for the years 1357 F to 1361 F and also for the years 1362 F to 1363 F. Against the order of the Assessing Authority the two companies which in the meantime became amalgamated as the Raza Buland Sugar Co. Ltd., Rampur, filed a writ petition No. 1982 of 1962 in the High Court of Judicature at Allahabad and prayed for the quashing of the assessment order dated 29th June, 1962, made by the Assessing Authority against the Raza Ltd. and the Buland Ltd. for the assessment years 1357 F to 1363 F. 422 The writ petition was heard by a single Judge of the High Court who by his order dated 4th October, 1962 allowed the writ petition on the ground that the Assessing Authority committed an error of law in assessing the two partners of the Agricultural Company, Rampur, and not assessing the firm as such.
Aggrieved by the order the State filed Special Appeal No. 978 of 1962 before the Division Bench of the High Court at Allahabad.
The Division Bench of the High Court by its order dated 6th December, 1965, dismissed the Special Appeal.
An application for leave to appeal to the Supreme Court was dismissed by the High Court.
The appellants then preferred Special Leave Petition No. 1724 of 1969 to this Court and on the leave being granted this appeal is now before us.
The main contention that has been raised before us by the appellants is that there being no express prohibition under the U.P. Agricultural Income Tax Act an assessment can be validly and legally made on the individual partners, in the present case the two companies, without proceeding against the firm.
It was pleaded that the tax could be assessed either on the partnership firm or on the partners invididually and that the view of the High Court that the tax can only be recovered from the firm is erroneous.
The facts of the case disclose that on receipt of a notice by the Assessing Authority under section 16(4) of the U.P. Agricultural Income Tax Act, the two companies Raza Ltd. and the Buland Ltd. submitted their returns relating to the income of the two companies.
In the return it was stated that the income was half of the income received from the partnership firm, the Agricultural Company, Rampur.
The assessment was made on the basis of the returns.
The assessment was questioned before the Commissioner and in the writ petition before the High Court of Allahabad on the ground that the lands were neither assessed to land revenue in the United Provinces nor were they subject to local rate or cess assessed and collected by an officer of the Provincial Government.
This contention was accepted by the High Court which directed the Assessing Authority to determine the question whether the lands were assessed to land revenue, in the United Provinces or they were subject to local rate or cess assessed and collected by an officer as required under section 2(a) of the U.P. Agricultural Income Tax Act, 1948.
After remand the Assessing Authority found that the lands from which the income accrued satisfied the requirements of the section.
For the first time before the Assessing Authority the point was raised that as no notice was issued to the partnership firm, the partners i.e. two companies cannot be proceeded with for assessment of the tax.
When this plea was rejected by the 423 Assessing Authority the matter was taken up before the High Court, first before a single Judge and then before the Division Bench, which accepted the contention of the two companies and held that in the absence of notice to the partnership firm proceedings cannot be taken against the two companies for assessment of the tax.
The relevant provisions under the United Provinces Agricultural Income Tax Act, 1948, may be noticed.
Section 2(5) defines "Assessee" as meaning a person by whom agricultural income tax is payable.
"Company" is defined under section 2(8) as meaning a company as defined in the Indian Income tax Act, 1922.
The Indian Income tax Act, 1922, section 2(5A) defines a company as follows: "(5A) "company" means (i) any Indian company, or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act;" "Firm" is defined in section 2(9) as having the same meaning assigned to it in the .
Section 4 of the , states that "Persons who have entered into partnership with one another are called individually 'partners ' and collectively a firm and the name under which their business is carried on is called the 'firm name '".
"Person" is defied in section 2(11) as meaning an individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator or executor or in any capacity recognized by law, and includes an undivided Hindu family, firm or company but does not include a local authority.
It may be noted that by the definition the word "person" means an individual and includes a firm or a company.
The liability of the person whether he be an individual, partner or the company for the agricultural income tax is therefore beyond question.
The only point that is raised in this case is as to when there is a registered firm of which the two companies were partners the assessment proceedings cannot be taken against the two partners, namely the two companies, without proceeding against the 424 firm.
In support of this contention section 18 of the U.P. Agricultural Income Tax Act was strongly relied on.
Section 18 confers the power to assess individual members of certain firms, associations and companies.
Sub section (1) of section 18 enables the Assistant Collector with the previous approval of the Collector of the disrict concerned to pass order under the circumstances stated in the sub Sec.
that the sum payable as agricultural income tax by the firm or association shall not be determined, and thereupon the share of each member in the agricultural income of the firm or association shall be included in his total agricultural income for the purpose of his assessment thereon.
Section 18(2) states that under certain circumstances the Collector may, with the previous approval of the Commissioner of the area concerned, pass an order that the sum payable as agricultural income tax by the company shall not be determined and thereupon the proportionate share of each member in the agricultural income of the company, whether such agricultural income has been distributed to the members or not, shall be included in the total agricultural income of such member for the purpose of his assessment thereon.
The submission of the learned counsel for the respondent which was accepted by the High Court was that if the Agricultural Income tax authorities wanted to proceed against the individual members of the firm they ought to have taken proceedings under section 18(1) and in the absence of such proceedings the partners, in this case the two companies, could not have been proceeded with.
The argument thus presented though looks attractive does not stand scrutiny.
There is nothing in the provisions of the Act prohibiting the Assessing Authority from proceeding against the individuals forming the partnership.
Section 18 enables the authorities while proceeding with the assessment of a firm or a company not to determine the tax payable by the firm or the company but proceed to determine the agricultural income of each member of the fir.
The provisions do not apply to a case where the returns are submitted by the partners, as in this case, and the assessment made on that basis.
The section would undoubtedly be applicable if assessment proceeding against the firm is stopped and the share of the individual is to be determined under the provisions of section 18.
Our attention was not drawn to any provision in the Act which would bar the income tax authorities from proceeding against the individual partners on the returns submitted by the partners as such.
Under the Indian Income tax Act it has been held that where a firm has not made a return and has not offered its income for assessment, the Department may assess a partner directly in respect of his share of the firm 's income without resorting to the machinery provided under the Act and without making an assessment on the firm, (CIT vs Murlidhar Jhawar & Purna Ginning 425 & Pressing Factory(1).
It has been further held that once the Department has exercised its option and assessed the partners individually it cannot thereafter assess the same income in the hands of the firm as an unregistered firm.
It is not necessary for us to refer to the distinction that is maintained under the Income tax Act between a registered and unregistered firm for no such distinction is maintained under the U.P. Agricultural Income Tax Act.
The only prohibition is against double taxation.
In this case no assessment proceedings have been taken against the firm much less any tax imposed on it.
The principle that is applicable in tax statutes is that the income is subject to tax in the hands of the same person only once.
Thus, if an association or a firm is taxed in respect of its income the same income cannot be charged again in the hands of the members individually and vice versa.
The trust income cannot be taxed in the hands of the settlor and also in the hands of the trustee or beneficiary or in the hands of both the trustee as well as the beneficiary.
These principles are, of course, subject to any special provision enabling double taxation in the statute.
In the circumstances, we are unable to share the view of the High Court that without proceeding against the firm the Assessing Authority was in error in proceeding against the two partners of the firm on the basis of the returns submitted by them.
There is yet another objection to the upholding of the plea of the respondents.
Apart from submitting the returns their only plea in the earlier writ petition before the High Court was that the lands did not satisfy the requirements of the provisions of the U.P. Agricultural Income Tax Act in that they were not assessed to land revenue in the United Provinces nor were they subject to local rate or cess.
This plea was accepted but the High Court remanded it for the determination of the question whether the land was assessed to land revenue or was subject to local rate or cess.
The plea that the assessment proceedings ought to have been taken against the firm was not taken.
This plea cannot be allowed to be taken in proceedings after remand.
The objection was taken only before the Assessing Authority after remand.
It is true that in the proceedings before the Assessing Authority the assessment relating to two Fasli years 1362 and 1363 which did not form part of the proceedings before the High Court was also taken up.
But here again the returns were submitted by the two companies on the basis of their respective income.
In the circumstances, it cannot be said that the tax authorities were in error in assessing a tax on the returns submitted by the two companies.
The plea, therefore, that the 426 assessment on the two companies, in the absence of proceedings against the firm of which the companies were partners, is not legal cannot be upheld.
The second contention that was raised before us was that it has not been established that the lands were either assessed to land revenue in the United Provinces or were subject to local rate or cess assessed and collected by an officer of the Provincial Government.
As the Single Judge of the High Court and the Division Bench of the High Court accepted the plea of the assessees that the assessment proceedings against them could not be sustained because of the failure of the authorities to take proceedings against the firm, they considered it unnecessary to go into this question.
It is unfortunate that this aspect of the matter was not considered either by the Single Judge or by the Division Bench of the High Court.
We do not think it desirable to remit the case to the High Court for the determination of this question as the matter has been long pending.
This plea has been elaborately considered by the Assessing Authority which has pointed out that agreements with the Raza Sugar Co. Ltd. and the Buland Sugar Co. Ltd. show that it was stipulated that the Rampur State shall from time to time grant to the Company lease of agricultural land.
It was further provided that such fair equitable land revenue as may be agreed between the Rampur State and the Company shall be payable in respect of such land and shall be subject to revision by agreement every 15 years.
The lease also provided that fair and equitable water rates and cesses shall be payable in respect of the land.
In section 4(7) of the U.P. Land Revenue Act it is mentioned that the word "Mal Guzari" will be applicable where it has been duly assessed or has been determined by means of an auction or by any other means.
On a consideration of all the relevant facts the Assessing Authority came to the conclusion that the agreement in favour of the companies provided for payment of land revenue and the word "rent" used in the leases has to be considered in relation to the original agreements and as such it is seen that the agreement provided for payment of land revenue.
The learned counsel appearing for the respondents was unable to challenge the correctness of the finding of the Assessing Authority.
On a consideration of all the facts that were placed before the Assessing Authority, we do not see any reason for not accepting the conclusion arrived at by the Authority.
This issue also we find against the assessee.
In the result we hold that the High Court was in error in coming to the conclusion that the assessment proceedings against the respon 427 dent were unsustainable.
We set aside the judgment and order of the High Court and restore the order of the Assessing Authority.
N.V.K. Appeal allowed.

summary:
Two joint stock companies entered into agreements with a former Princely State for the grant of agricultural land on payment of fair and equitable land revenue.
Later the two companies formed into a partnership firm.
On the merger of the State with the Union of India, the Assessing Authority under the U.P. Agricultural Income tax Act issued notices to the two companies to submit their returns of agricultural income, which the companies did.
In writ petitions filed by the companies challenging the assessment orders, the High Court accepted the contention that since the lands were neither assessed to land revenue nor were they assessed to any local rate or cess as required by section 2(a) of the Act, they were not assessable to agricultural income tax and remanded the cases to the Assessing Authority for determination of this question.
Before the Assessing Authority, on remand the companies raised for the first time the contention that since no notice had been issued to the firm of which they were partners, the assessment was invalid.
The Assessing Authority rejected this contention.
He also held that the lands satisfied the requirements of s.2(a).
In writ petitions filed by the two companies a single Judge of the High Court upheld the contention that the Assessing Authority committed an error of law in assessing the two partners without assessing the firm.
This view was affirmed by a Division Bench on appeal.
On further appeal to this Court it was contended that in the absence of a prohibition in the Act, the two companies could be validly assessed to tax without assessing the firm.
Allowing the appeal, ^ HELD: 1.
The Assessing Authority was not in error in assessing tax on the returns submitted by the two companies and therefore the argument that assessment of the companies, without assessing the firm, was not legal, is without substance.
[425 H 426 A] 2. "Person" defined in the section means an individual and includes a firm or a company.
[423 G] 3.
There is nothing in the Act prohibiting the Assessing Authority from proceeding against individuals forming a partnership.
Section 18 enables the authorities, while proceeding with assessment of a firm or a company, not to 420 determine the tax payable by the firm or the company but to proceed to determine the agricultural income of each member of the firm.
The provisions do not apply to a case where the returns were submitted by the partners and the assessment made on that basis.
The section would be applicable if assessment proceedings against a firm are stopped and the share of the individual is to be determined under the provisions of section 18.
[424 F] 4.
The well established position under the Income Tax Act (Central Act) with regard to assessment of firms is that where a firm has not made a return it is open to the department to assess a partner directly in respect of his share of the firm 's income without resorting to the machinery provided under the Act and without making an assessment on the firm, the only prohibition being against double taxation.
[424 H] C.I.T. vs Murlidhar Jhawar & Purna Ginning & Pressing Factory, SC; referred to.
Secondly, the plea that assessment proceedings ought to have been taken against the firm, was not taken by them in the first instance either before the Assessing Authority or before the High Court.
This plea cannot be allowed to be taken at a later stage.
The assessees submitted their returns on the basis of their respective incomes.
[425 F 426 A] 6.
The Assessing Authority has correctly come to the conclusion that the agreement between the parties provided for payment of land revenue.
[426 F G]