judgement:
No. 1810 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 1.3.1971 of the Orissa High Court in O.J.C. No. 1597 of 1968) AND C.A. No. 1170 of 1972 (Appeal by Special Leave from the Judgment and Order dated 8.3.1971 of the Orissa High Court in O.J.C. No. 316 of 1970) AND Civil Appeal No. 1981 of 1972 (Appeal by Special Leave from the Judgment and Order dated 28.3 .1971 of the Orissa High Court in O.J.C. No. 1885 of 1968) AND Civil Appeal No. 1982 of 1972.
(Appeal by Special Leave from the Judgment and Order dated 28.6.1971 of the Orissa High Court in O.J.C. No. 153 of 1971) AND Civil Appeal No. 1603 & 1604 of 1972 716 (Appeal by Special Leave from the Judgment and Order dated 2.3.1971 of the Orissa High Court in O.J.C. Nos. 202 and 203 of 1969.) A.K. Sen, Bishamber Lal Khanna and Bishamber Lal for the appellants in CA No. 1810/71.
A.K. Sen, (CA No. 40/72) H.R. Gokhale (CAs 1603 1604) Gobind Das (CAs 1170, 198, 1982, SLPs and for the interven ers) Bijoy Mohenty, Mrs. Sunanda Bhandare, M.S. Narsimhan, A. K. Mathur, A.K. Sharma and Miss Malini Poduval for the appellants in CA Nos.
1170, 1981 1982, 1603 1604 of 1972 and CA No. 40/72 and in the SLPs Nos. 305 310/72 and for the Interveners.
G. Rath, Adv.
During the pendency of the writ petitions filed by the appellants in the Orissa High Court, the Orissa Legislature passed the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Validation Act, 18 of 1962, validating the Act of 1959.
The High Court accepted the appellants ' contention that the Act of 1959 was unconstitutional but it dismissed the Writ petitions on the ground that the appellants were not entitled to any relief as they had not challenged the Act of 1962 which had validated the Act of 1959.
After the decision of the High Court.
respondent No. 2, the Tax Officer, assessed tax in varying amounts for different quarters on the goods carried by the appellants by road.
The appellants then filed fresh writ petitions under article 226 of the Constitution challeng ing the Act of 1962.
Those petitions were dismissed by the High Court but in appeal, the judgment of the High Court was set aside by this Court on August 10, 1967.
It was held by this Court that the Validating Act of 1962 did not cure the defect from which the Act of 1959 suffered and therefore, respondents were not entitled to recover any tax from the appellants under the aforesaid Acts.
On March 25, 1968 the Orissa Legislature, having ob tained the previous sanction of the President to the moving of the Bill. passed the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Act, 8 of ' 1968, imposing the same levy which it had unsuccessfully attempted to levy under the Act of 1959 and to validate under the Act of 1962.
Some of the appellants from whom the State Government had recovered taxes after the Act of 1962 was upheld by the High Court asked for refund thereof after that Act was declared unconstitutional by this Court.
The refund having been refused by the Governments, the appellants filed writ peti tions in the High Court 717 challenging the validity of the 1968 Act.
The dismissal of those writ petitions has given rise to these appeals by special leave.
There is no substance in any of the contentions raised on behalf of the appellants regarding the constitutionality of the Act of 1968.
The bill which matured into the impugned Act was introduced by the Orissa Legislature after obtaining the previous sanction of the President under the Proviso to article 304 of the Constitution.
As shown by the Preamble, the Act was passed in order to provide for the level of tax on certain goods carried by roads or inland waterways in the State of Orissa and to validate certain taxes imposed on such goods.
By section 1 (3), the Act was to be deemed to have come into force on April 27, 1959 being the date on which the Act of 1959 had come into force.
Section 3 of the Act which contains the charging provision provides that there shall be levied a tax on goods of the description mentioned in the section and carried by means specified therein.
Section 27 of the Act provides in so far as material that notwithstanding the expiry of the Act of 1959 and notwith standing anything contained in any judgment, decree or order of any Court, all assessments made, all taxes imposed or realised, any liability incurred or any action taken under the Act of 1959 shall be deemed to have been validly made, imposed, realised, incurred or taken under the corresponding provisions of the Act of 1968.
These provisions of the Act of 1968 show that what the State legislature did thereby was to enact, with retrospective effect, a fresh piece of taxing statute after complying with the constitutional mandate contained in the proviso to article 304 that no Bill for the purposes of clause (b) of the Article shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
The reliance of the appellants on the judgment of this Court in Jawaharmal vs State of Rajasthan(1) is wholly misconceived.
In that case, section 4 of the impugned Act of 1964 in truth and substance provided that the failure to comply with the constitutional mandate of Presidential sanction shall no.t invalidate the Finance Acts of 1961 and 1962.
It was held by this Court that it was not competent to the legislature to pass an Act providing that an earlier Act shall be deemed to be valid even though it did not company with the requirements of the Constitution.
In the instant case, the State Legislature passed an independent enactment in 1968 after complying with the constitutional requirement but it gave to that enactment retrospetive effect from the date that the 1959 Act had come into force and it created a legal fiction, which was permissible for it to do, that all actions taken under the Act of 1959 shall be deemed to have been taken under the Act or 1968.
Mr. Gobind Das, appearing on behalf of some of the appellants, raised points commonly associated with high constitutional concepts, but lacking in substance.
He urged that the Act of 1968 is a piece of colourable legislation, that it constitutes a flagrant encroachment on (1) ; 718 the functions of the judiciary and that since the Act has no operation in futuro and operates only on the dead past, it is void as lacking in legislative competence.
Learned counsel also employed the not unfamiliar phrase that the Act is a fraud on the Constitution.
Happily all ' of these attacks, in so far as they at all require an answer,"can be met effectively in a brief compass.
In Khyerbari Tea Co. Ltd. vs State of Assam(1), it was held by this Court that article 304(b) of the Constitution does not require that laws passed under it must always be prospective.
Nor was it correct to say that once the State Legislature passes an Act without recourse to that Article and that Act is struck down, the Legislature cannot re enact, that Act under that article and give it retrospective effect.
The Court fur ther held in Khyerbari (supra) that the mere fact that a validating taking statute has.
retrospective operation does not change the character of the tax ' nor can it justify the Act being branded as a colourable piece of legislation in any sense.
We may only add that since it is well settled that the power to legislate carries with it the power to legislate retrospectively as much as prospectively, the circumstance that an enactment operates entirely in the past and has no prospective life cannot effect the competence of the legislature to pass the enactment, if it fails within the list on which that competence can operate.
As regards the power to pass a validating Act, that power is essen tially subsidiary to the legislative competence to pass a law under an appropriate: entry of the relevant list.
Thus the impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Constitution.
As regards the alleged encroachment by the legislature on fields judicial, the argument overlooks that the Act of 1968 does not, like the Act under consideration in Jawahar mal(2), declare that an invalid Act shall be deemed to be valid.
It cures the constitutional vice from which the Act of 1959 suffered by obtaining the requisite sanction of the President and thus armed, it imposes a new tax, though with retrospective effect.
Imposition of taxes or valida tion of action taken under void laws is not the function of the judiciary and therefore, by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary.
Courts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjur ing up trespasses for invalidating laws.
There is a large volume of authority showing that if the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirements, the legislature has the ' competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary.
The validity of a validating taxing law depends upon whether the legislature possesses the compe tence over the subject matter of the law, whether ' in making the validation it has removed the defect from which the earlier enactment suffered and whether it has made due and adequate provision in the validating law for a valid imposi tion of the tax; ( See, for example Prithvi Cotton Mills vs Broach Borough Municipality(3) (1) ; (2) ; (3) [1970]1 S.C.R. 388. 719 Tirath Ram Rajindra Nath vs State of U.P.(1); Government of Andhra Pradesh vs Hindustan Machine Tools Ltd.(2).
The passage from Cooley 's ConstitutiOnal Limitations ' (Ed. 1927, Vol.
I, p. 183) that a legislative act is a "pre determination of what the law shall be for the regulation of all future cases falling under its provisions" does not bear upon the power of the legislature to pass laws which are exclusively retrospective.
Mr. Gobind Das 's reliance on that passage cannot therefore further his contention.
Mr. Gokhale, who appears on behalf of some of the appel lants, attempted to challenge the Act of 1968 on the ground of unreasonableness but he did not pursue that argument.
But he made another point which requires some attention.
The appellants or some of them, did not challenge the orders of assessment passed against them as the Acts of 1959 and 1962 were held unconstitutional.
Counsel 's apprehen sion is that any appeal filed hereafter for challenging the assesSment made under the earlier Acts would be barred by limitation and the appellants would be deprived of their statutory right to question the correctness of the assess ment.
This apprehension is unfounded because the 2nd proviso tO section 12 of the Act of 1968 empowers the appropriate authority to admit an appeal after the period of limitation is over if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the said period.
Sub section (3) confers on the Commissioner the power of revision and sub section (4) of section 12 confers the power of review subject to the rules made under the Act.
We have no doubt that if any appeal challenging.
an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limitation for the reason that the Acts of 1959 and 1962 were held to be unconstitutional, the delay in filing the appeal would be condoned.
We are equally confident that if any appeal filed for challenging an order of assessment was withdrawn or not pursued for the reason that the two Acts were held unconstitutional, the authority concerned would pass appropriate orders reviving the appeal.
We are happy to note the assurance of the learned Advocate General of the State of Orissa that the State will not oppose in such cases the condonation of delay or the revival of appeals.
For these reasons we dismiss the appeals but there will be no order as to costs.
The Special Leave Petitions which were kept pending to await the decision of these appeals are hereby dismissed.
We may take this opportunity to dwell upon the incon venience resulting from the enactment of article 144A which was introduced by the 42nd Amendment to the Constitution.
That article reads thus: "Special provisions as to disposal of ques tions relating to Constitutional validity of laws.
(1) [1975] Supp S.C.R. 394.
720 "144A (1) The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the Constitu tional validity of any central law or State law shall be seven.
(2) A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid."" The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr. Gokhale who appear for the appel lants could say nothing in support of their contentions beyond barely stating them.
Were it not for the valiant, though vain, attempt of Mr. Gobind Das to pursue his points, the appeals would have taken lesser time to dispose of than for a Court of seven to assemble.
Article 13(3)(a) of the Constitution defines "law" to include any Ordinance, Order, bye law, rule, regulation, notification etc.
having the force of law with the result that seven judges of this Court may have to sit for determining any and every question is to the constitutional validity of even orders and notifica tions issued by the Government, which have the force of law.
A Court which has large arrears to contend with has now to undertake an unnecessary burden by seven of its members assembling to decide all sorts of constitutional questions, no matter what their weight or worth.
It is hoped that article 144A will engage he prompt attention of the Parliament so that it may, be general consensus, be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case.
S.R. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The Orissa Taxation (On goods carried by Roads or Inland Waterways) Act 7 of 1959 and the Orissa Taxation (On Goods carried by Road or Inland Waterways) Validation Act 18 of 1962 were struck down by this Court on 10 8 1967 as invalid and it was held that the respondents were not entitled to recover any tax from the appellants under the aforesaid Acts.
On March 26, 1968, the Orissa Taxation (On Goods carried by Roads or Inland Waterways) Act 8 of 1968 was passed after obtaining the previous sanction of the Presi dent under article 304 of the Constitution to the moving of the Bill, imposing the same levy which it had unsuccessfully at tempted to levy under the Actor 1959 and to validate under the Act Of 1962.
By section 1(3) of the 1968 Act, the Act was to be deemed to have come into force on April 27, 1959 being the date on which the Act of 1959 had come into force.
Section 27 of the Act provides that notwithstanding the expiry of the Act of 1959 and notwithstanding anything contained in any judgment decree or order of any court, all assessments made; all taxes imposed or realised any liabili ty incurred or any action taken under the, Act of 1959 shall be deemed 10 have been validly made, imposed, incurred or taken under the corresponding provisions of the Act 1968.
The claims of some of the appellants who had asked for refund of the tax collected under the Act of 1962 which was held unconstitutional, having been refused by the Govern ment, they filed writ petitions in the Orissa High Court challenging the validity of the 1968 Act.
The High Court dismissed the writ petitions.
In appeal to this Court by special leave, the Court, HELD: (1) The impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Consti tution.
Since it is well established that the power to legislate carries with it the power to legislate retrospec tively as much as prospectively, the circumstance that an enactment operates entirely in the past and has no prospec tive life cannot affect the competence of the Legislature to pass the enactment if it falls within the list on which that competence can operate.
As regards the power to pass a validating Act, that power is essentially subsidiary to the legislative competence to pass a law under an appropriate entry of the relevant list.
[718 B E] Khyerbari Tea Co. Ltd. vs State of Assam [1964] 5 S.C.R. 975, applied.
(2) In the instant case, the State Legislature passed an independent enactment in 1968 after complying with the constitutional requirements.
but it gave to that enactment retrospective effect from the date that the 1959 Act had come into force and it created a legal fiction which was permissible for it do, that all actions taken under the Act of '1959 shall be deemed to have been taken under the Act of 1968.
[717 FG] Jawaharmal vs State of Rajasthan ; , not applicable.
(3) If the vice from which an enactment suffers is cured by due compliance with the legal or constitutional require ment, the Legislature has 715 competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary.
The validity of a validating taxing law depends upon whether the legislature possesses the competence over the subject matter of the law; whether in making the valida tion it has removed the defect from which the earlier enact ment suffered and whether it has made due and adequate provision in the validating law for a valid imposition of the tax.
[718 G H] Prithvi Cotton Mills vs Broach Borough Municipality ; Tirath Ram Rajindra Nath vs State of U.P.A.I.R. and Government of Andhra Pradesh vs Hindustan Machine Tools Ltd. (1975) Supp.
SCR 394 referred to.
(4) If any appeal challenging an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limita tion for the reason that the Acts of 1959 and 1962 were held to be unconstitutional, the delay in filing.
the appeal can be condoned under the second proviso to section 12 of the Act of 1968.
If any appeal filed for challenging the order of assessment was withdrawn or not pursued for the reason that the two Acts were held unconstitutional, the authority concerned can pass appropriate orders reviving the appeal.[719 D F] Observation: It is hoped that article 144A. introduced by the 42nd Amendment will engage the prompt attention of the Parliament so that it may, by so that it may, by general con sensus, be so amended as to general consensus, be so amended as to leave to the court itself the duty to decide how large a Bench should decide any particular case.
A court which has large arrears to contend with has now to undertake an unnecessary burden by 7 of its members assembling to decide all sorts of constitutional questions, no matter what their weight or worth.
Since article 13(3) (a) of the Constitution defines "law" to include any Ordinance, Order, bye law, rule, regu lation.
notification etc.
having the force of law, seven Judges of this Court may have to sit for determining any and every question as to the constitutional validity of even orders and notifications issued by the Government, which have the force of law.
This will inevitably cause great inconvenience and undue delay in disposal of cases.
[720 C D]


judgement:
ivil Appeal No. 1134 of 1973.
(From the judgment and Order dated 14 7 1972 of the Cal cutta High Court in Appeal from Original Order No. 253 of 1969).
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 319 of 1974.
(Appeal by special leave petition from the judgment and order dated 4 10 1973 of the Delhi High Court in Criminal Revision No.264 of 1973).
CRIMINAL APPEAL No. 358 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 30 7 1976 of the Special Judge Delhi in criminal C.C. No. 16 of 1975).
V.P. Ratnan, D.N. Mukherjee and G.S. Chatterjee, for the appellant in C.A. No. 1134/73.
760 Niren De and N.C. Talukdar, B.M. Bagaria, Dilip Sinha and D.P. Mukherjee, for respondent No. 1, in CA 1134/73.
R.N. Sachthey, for the respondent No. 3 in CA No. 1134/73.
Praveen Kumar, for the appellant in Crl.
A. No. 319/74.
R.N. Sachthey, for respondent No. 1 in Crl.
A. No. 319/74.
R.H. Dhebar and B.V. Desai for the appellant in Crl.
A. No. 358 of 1976.
V.P. Raman and R.N. Sachthey, for the respondents in Crl.
A. No. 385/76.
The Judgment of the Court was delivered by GOSWAMI, J.
In these appeals a common question of law arises for consideration.
We will therefore refer to the facts as appearing in Civil Appeal No. 1134 of 1973 to decide the issue and our decision will govern these appeals.
We are informed that the sole appellant in Criminal Appeal No. 319 of 1974 died.
The said appeal, therefore, abates and is dismissed.
Civil Appeal No. 1/34 of 1973 is directed against the judgment the Division Bench of the Calcutta High Court whereby the earlier judgment of the single Judge was re versed.
The facts so far as material may be briefly stated: On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investi gation, Sub Division, Calcuta, against R.C. Bhattacharjee who was an ex Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman.
It was alleged that R.C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from a fictitious nominee of the.
said respondent for supply of certain stores to the military authorities at a price ex ceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India.
It was further alleged that the said Bhattacharjee along with the respondent had committed of fence of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage which amounted to an offence under section 5(2) of the Prevention of Corruption Act, 1947.
Accused Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any form of military service.
A case under the Prevention of Corruption Act, 1947 (hereinafter, briefly the Act) can be tried only by a spe cial court constituted under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949) (briefly the Bengal Act).
By a notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth 761 Additional Special Court in Calcutta under sub section (2) of Section 4 of the Bengal Act.
When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that (1 ) at the point of time when the case was distributed to the Special Court the co accused, ex Major Bhattacharjee, had ceased to be a public servant and as such the Bengal Act had no application and the said Court had no jurisdiction to entertain the case; (2) a public officer having ceased to be such an officer at the date of allotment of the case the order of allotment by the State Government was without jurisdiction and void; and (3) the Special Court.
had no jurisdiction to try cases in which two private persons were involved and the allotment of the case to the Special Court was thus illegal.
A point regarding absence of sanction was also taken up but was not pressed before us in view of the decision of this Court in S.A. Venkataraman vs The State(1).
The single Judge of the High Court dismissed the writ application but the Division Bench by two concurring judg ments set aside the said judgment and order of the single Judge.
That is how this matter has come before us on cer tificate under Article 133(1) (c) of the Constitution.
P.B. Mukherjee, J. held " . the only solution is to hold that these two acts, namely, the Special Courts Act and the Prevention of Corruption Act do not apply to a public servant who had ceased to be a public servant on the date the court takes cognisance.
This solution seems all the more proper because it seems to steer clear of Article 14 of the Constitution . ".
The learned Judge further observed "Therefore a person who has ceased to be in office, that is, who has ceased to be a public servant, does not come within the ambit of the expression 'public servant ' and conse quently is not governed by the Prevention of Corruption Act and, as such, cannot commit an offence under section 5(2) of the said Act".
The learned Judge again observed "It will appear that though Major Bhat tacharjee had ceased to be a public servant, the state Government by distributing the present case to the Special Court violated the (1) 762 principle of equal protection clause by deny ing the advantages associated with the office of a public servant but imposing on him the disadvantages and/or disabilities associated with the office of a public servant.
Hence the Act is not discriminatory but the action, allotment and distribution of this case to the Special Court of the State Government is discriminatory.
Therefore it is to be struck down and the order of the distribution quashed".
The learned Judge also observed " . but a public servant who has ceased to be a public servant, can neither be prosecuted in respect of any scheduled offence nor of an offence under section 5(2) of the Prevention of Corruption Act and as such, the trial of such a person cannot be in accordance with the provisions of those two statutes".
* * *.
* " . so far as the appellant Manmal Bhutoria is concerned, he never being 'a public servant ' is dearly not triable by the Special Court under the Prevention of Corrup tion Act and West Bengal Criminal Law Amend ment (Special Courts) Act, 1949 and suffer all the handicaps of being presumed to be guilty".
B.C. Mitra, J. in his concurring judgment observed as follows : "On a careful consideration of the various clauses under section 21 of the Penal Code, I have no doubt that a person who was previously a public servant, but who has ceased t0 be such, do not come within the ambit of that section.
Both section 5(1) and section 5(2) deal with public servants only.
There is no provision in this Act whereby a person who was previously a public servant, but has ceased to be a public servant at the relevant time, can be charged with an offence under section 5(1)(d) or section 5(2) of the Prevention Act".
Before we proceed further we may immedi ately set out what this Court has held in venkataraman 's case (supra) since what was held therein has largely influenced the deci sion of the Division Bench.
At page 1044 of the report in that decision this Court ob served as follows : "These provisions of the Act (namely Act 2 of 1947) indicate that it was the intention of the legislature to treat more severely than hitherto corruption on the part of a public servant and not to condone it in any manner whatsoever.
If section 6 had not found a place in the Act it is clear that cognizance of an offence under section 161,164 or section 165 of the Indian Penal Code or under section 5(2) of the Act committed by a 763 public servant could be taken by a court even if he had ceased to be a public servant.
The mere fact that he had ceased to be a public servant after the commission of the offence would not absolve him from his crime.
Section 6 certainly does prohibit the taking of cogni zance of his offence, without a previous sanction, while he is still a public servant but does that prohibition continue after he has ceased to be a public servant" ? Again at page 1048/1049 this Court observed as follows : "In our opinion, in giving effect to the ordinary meaning of the words used in section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of section 6 can apply.
In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public serv ants.
Accordingly, the provisions of section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority".
A similar view was affirmed by the Court in C.R. Bansi vs State of Maharashtra.(1) This Court held therein as follows : "The policy underlying section 6, and similar sections, is that there should not be unneces sary harassment of public servants.
But if a person ceased to be a public servant the question of harassment does not arise.
The fact that an appeal is pending does not make him a public servant.
The appellant ceased to be a public servant when the order of dismiss al was passed.
There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under section 6 of the Act".
Accepting the position that sanction under section 6 of the Act is not necessary if the public servant ceased to be a public servant on the date the court takes cognizance of the offence, the High Court arrived at the conclusion that there would be discrimination between one class of public servants and another similarly situated when those in office will be protected from harassment on account of the require ment of sanction for prosecution whereas the public servants after they ceased to be in office will be prosecuted and harassed in absence of the requirement of the sanction.
It is in that view of the matter the High Court has held that the Special Court has no jurisdiction to try a public serv ant who has ceased to be a public servant on the date the Court was required to take cognizance of the offence, since, according to the High Court, "it cannot be said that in certain respects he (1) ; 764 is a public servant for the offences under the Prevention of Corruption Act and for certain other respects, he is not a public servant".
It is in taking this view that P.B. Mukher jee, J. observed that "this solution seems all, the more proper because it seems to steer clear of Article 14 of the Constitution".
The High Court, however, did not strike down the Act or any provisions of the Act as unconstitutional.
It has only held the order of allotment of the case to the Special Court as illegal as the case of a public servant who has ceased to be a public servant cannot be allotted to the Special Court since, according to the High Court, to hold otherwise would be violative of Article 14 of the Constitu tion.
It is in the background of such a conclusion that Mr. Niren De, counsel for the respondent, submits that tiffs appeal involves the determination of a question as to the constitutional validity, on the basis of Article 14 of the Constitution, of the provisions of the Bengal Act, particu larly the proviso to section 4(1) of that Act.
He further submits that a person who ceased to be a public servant cannot be treated differently from a person who is a public servant in office for the purpose of the Bengal Act.
He, therefore, submits that in view of Article 144(A), as in serted by the 42nd Amendment, this appeal should be heard by a minimum number of seven Judges of this Court and we should therefore, refer the same to a larger Bench.
This submission is supported by Mr. Dhebar who is appearing in.
an identical matter in Criminal Appeal No. 358 of 1976 and he has submit ted an application to urge additional grounds on the basis of Article 14 of the Constitution.
There is some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point.
In view of the decision in Venkataraman 's case (supra) there is no warrant for including in one category public servants in office and public servants who have ceased to be so.
These two classes of public servants are not similarly situated as has been cleared out in Bansi 's case (supra).
The plea of applicability of Article 14 on the basis of the judgment in Venkataraman 's case (supra) is, therefore, wholly misconceived.
It cannot be argued that the, decision in Venkataraman 's case (supra) is violative of Article 14 of the Constitution.
That decision only says that section 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the court he ceases to be so.
Because a particular section is not applicable to a public servant after he has ceased to be in office, the question of the Act being violative.
of Article 14 of the Constitution will not arise.
This Court has clearly placed a public servant, who has ceased to be in office, in a sepa rate category and that classification has held the field all these years without demur.
There is, therefore, no sub stance in the contention that this appeal should be referred to a larger Bench.
Under section 4(1) of the Bengal Act, the scheduled offences which include an offence under section 5 (2) of the Act as also conspiracy to commit that offence shall be triable by Special Courts only.
No other court can, there fore, try these offences.
The provisions of the Bengal Act are clearly different from those of the West Bengal 765 Special Courts Act which were the subject matter in The State of West Bengal vs Anwar Ali Sarkar(1) Proviso to section 4(1) of the Bengal Act is in the following terms: " 'Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial".
By this proviso the Special Court, when trying a scheduled offence finds that some other offence has also been commit ted and the trial of the same in one trial is permissible under the Code of Criminal Procedure, may try such a charge.
It is difficult to imagine how such a proviso can at all attract Article 14 of the Constitution.
On merits it is submitted 'by Mr. De that the respondent is a complete outsider and is not a public servant at all.
The Bengal Act is not applicable to him.
It is submitted that the Bengal Act provides for reference to the SpeCial Court only offences mentioned in the Schedule to that Act and all the offences mentioned in the Schedule, according to him, are those which may be committed by a public servant.
He draws our attention to the definition of public servant under section 21 o{ the Indian Penal Code which definition is applicable under section 2 of the Act.
He submits that the public servant in 'view of the definition means a public servant in office and not one who has ceased to be in of fice.
It is true that section 21 IPC enumerates various classes of public servants who are or who happen to be in office.
That is, however, not the true test in determining the present controversy.
The crucial date [c: ' the.
purpose of attract ing the provisions of the Act as well as those of the Bengal Act is whether the offence has been committed by a public servant within the definition of section 21.
The date for determining the offence is the date of the commission of the offence when the person arraigned must be a public servant.
Section 6 of the Act provides that no court shall take cognizance.
of an offence specified in that section alleged to have been committed by a public servant except with the previous sanction.
The section itself makes a clear dis tinction between cognizance of an offence and alleged commission of an offence.
Sanction refers to the date when after submission of a report or a complaint the court takes cognizance of the offence.
That date is necessarily subsequent to the date of commission of the offence and sometimes far remote from that date.
Retirement, resigna tion, dismissal or removal of a public servant would not wipe out the offence which he had committed while in serv ice.
Under section 6(1) of the Act, as in the, case of section 190(1) Cr.
P.C. the court takes cognizance of an offence.
and not an offender (see Raghubans Dubey vs State of Bihar(e).
The crucial date, therefore, for taking cogni zance in this case is the date when the case was received by the Special Court on being allotted by the State Government under section 4(2) of the Bengal Act.
(1) ; (2) ; , 428.
766 Mr. De submits that section 10 of the Bengal Act pro vides that the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act.
He, there fore, submits that section 6 of the Act must apply and since this Court has held that that section does not apply and section 6 is also not applicable in the case of the respondent, being not a public servant, the Special Court has no jurisdiction to try the offence.
We are clearly of opinion that section 10 of the Bengal Act will apply when the provisions of that section are clearly attracted.
Section 6 is interpreted by this Court not to apply to a public servant who has ceased to be in office.
That would not affect the interpretation of section 10 of the Bengal Act.
There is no merit in the submission that because of section 10 the Special Court cannot be said to have juris diction to try the offence.
in, this case.
Mr. De further submits that since the respondent is not a public, servant he is outside the provisions of the Bengal Act, as well as the Prevention of Corruption Act.
This argument is entirely misconceived.
Even under the Preven tion of Corruption Act, an outsider can be prosecuted under section 5(3) of the Act when a person habitually commits an offence punishable under section 165A of the Indian Penal Code.
Section 165A provides that "whoever, abets any of fence punishable under section 161 or section 165, whether or not that offence is committed in consequence of the abetment, shall be punished . ".
This section is clear ly applicable to an outsider who may abet a public servant.
Item 8 of the Schedule to the Bengal Act mentions any con spiracy to commit or any attempt to commit or any abetment of any of the offences specified '.
in items 1, 2, 3 and 7.
It is, therefore, clear that under item 8 of the Schedule an outsider can be tried along with a public servant if the former abets or commits an offence of conspiracy to commit an offence under section 5 of the Prevention of Corruption Act which is mentioned in item 7 to the Schedule.
There is, therefore, no merit in the submission that the Special Court cannot try the offence under section 5(2) of the Act read with section 120B IPC against the respondent.
All the submissions of counsel for the respondent fail.
The judgment and order of the Division.
Bench are set aside.
The appeal is allowed but there will be no order as to costs.
In Criminal Appeal No. 358 of 1976 the appellant was charged under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act.
At the time of commission of the offence he was admittedly a public servant.
He, howev er, ceased to be a public servant on October 30, 1974, when the chargesheet against him was put up before the Special Judge.
The offences are triable only by the Special Judge under the provisions of the Criminal Law Amendment Act 1952 (Act XI, VI of 1952).
For the reasons given above in con nection with Civil Appeal No. 1134 of 1973, the trial before the Special Judge cannot be questioned as illegal.
The appeal fails and is dismissed.
P.B.R. Appeal dis missed.

summary/full:
In May 1967 a case was lodged against the respondent and a Major of the Indian Army who was retired in 1966, alleging that the Major, along with the respondent, had committed offences of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant, under section 5(2) of the Prevention of Corruption Act, 1947.
When the case, which was allotted to the Fourth Additional Special Court under section 4(.2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, came up for hearing the respondent filed a writ petition challenging its jurisdiction to try the case.
The order of allotment to the Special Court was held illegal by the High Court on the ground that the Special Court had no jurisdiction to try a person who had ceased to be a public servant on the date the Court was required to take cognisance of the offence since it could not be said that in certain respects he was a public servant and in certain others he was not.
It was contended on behalf of the respondent that (1) since the case involved interpretation of article 14 of the Constitu tion it should be referred to a larger Bench in view of Art 144(A) of the Constitution; (2) in view of the definition of public servant contained in section 21 IPC, a public servant is one who is in office and not one who has ceased to be in office; (3) in view of section 10 of the Bengal Act the Special Court had no jurisdiction to try the offence; and (4) the respondent, not being a public servant, is outside the provisions of the Bengal Act and the Prevention of Corrup tion Act.
Allowing the appeal.
HELD: (1) There is no substance in the contention that the appeal should be referred to a larger Bench.
The plea of applicability of article 14 on the basis of the judgment in S.A. Venkataraman vs The State is wholly misconceived.
[764 G] (a) In view of the decision in Venkataraman 's case there is no warrant for including in one category public servants in office and public servants who have ceased to be so.
These two classes of public servants are not similarly situated as has been clearly pointed out in C.R. Bansi vs State of Maharashtra [19711 3 S.C.R. 236.
[764 E] (b) It cannot be argued that the decision in Venkatara man 's case is violative of article 14 of the Constitution.
That decision only says that section 6 of the Act is not applica ble to a public servant if at the time of taking cognizance by the Court he ceases to be so.
Because a particular section is not applicable to a public servant after he has ceased to be in office, the question of the Act being violative of article 14 will not arise.
This Court has clearly placed a public servant, who has ceased to be in office, in a separate category and the classification has held the field all these years without demur.
[764 F G] (c) The proviso to section 4(1) of the Bengal Act cannot attract article 14.
By this proviso the Special Court, when trying a schedule offence finds that some other offence has also been committed, and the trial of the same in one trial is permissible under the Cr.
P.C., it may try such a charge.
Under section 4(1) of the Bengal Act a scheduled offence which includes an offence under section 5(2) of 759 the Prevention of Corruption Act as also conspiracy to commit that offence shall be triable by Special Courts only.
No other court can try those offences.
[764 H, 765 B C] The State of West Bengal vs Anwar Ali Sarkar [1952] S.C.R. 284 held inapplicable.
(2) Section 21 IPC does not afford a true test in deter mining the present controversy.
The crucial date for the purpose of attracting the provisions of the Act as well as those of the Bengal Act is whether the offence had been committed by a public servant within the definition of section 21 IPC.
The date for determining the offence is the date of the commission of the offence when the person arraigned must be a public servant.
Section 6 makes a clear distinction between cognizance of an offence and alleged commission of an offence.
The date of sanction is necessarily subse quent to the date of commission of the offence and some times far remote from that date.
Retirement, resignation, dismissal or removal of a public servant would not wipe out the offence which he had committed while in service.
Under section 6(1), as in the case of section 190(1) Cr.
P.C., the Court takes cognizance of an offence and not an offender.
[765 E G] Raghuban Dubey vs State of Bihar ; referred to.
(3) Section 10 of the Bengal Act which provides that the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act are clearly attracted.
Section 6 is interpreted by this Court not to apply to a public servant who has ceased to be in office.
That would not affect the interpretation of section 10 of the Bengal Act.
[766 A B] (4) There is no merit in the submission that the special Court cannot try the offence under section 5(2) of the Act read with section 120B IPC against the respondent.
Even under the Prevention of Corruption Act, an outsider can be prosecuted under section 5(3) of the Act when a person habitually commits an offence punishable under section 165A, IPC.
Section 165A which provides that "whoever abets an offence punishable under section 161 or section 165, whether or not that offence is committed in consequence of the abetment, shall punished . is clearly "applicable to an outsider who may abet a public servant.
Item 8 of the Schedule to the Bengal Act mentions any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1, 2. 3 and 7.
It is clear that under item 8 of the Schedule an outsider can be tried alongwith a public servant if the former abets or commits an offence of conspiracy to commit an offence under section 5 of the Prevention of Corruption Act which is mentioned in item 7 to the Sched ule.
[766 C E]


judgement:
Appeal No. 2003/71 (From the Judgment and Order dated 5 12 1969 of the Madras High Court in Tax Case No. 40 of 1965) S.T. Desai, P.L. Juneja and R.N. Sachthey, for the appellant.
G. Venkatarama Sastry, K.R. Ramamani and J. Ramamurthi for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate is directed against a Full Bench judgment of the Madras High Court dated December 5, 1969 Alladi Kuppuswami vs Controller of Estate Duty, Madras(1) by which the reference made to the High Court by the Central Board of Revenue was answered in favour of the accountable person and against the Revenue.
The case involves an interesting and important question of law in respect of ambit and scope of sections 7(1) & (2) as also 39 of the (1) 7 707SCI/77 724 Estate Duty Act, 1953 hereinafter referred to as 'the Act '.
In order to decide the question of law arising in the ap peal, it may be necessary to set out briefly the facts of the case.
Sri Alladi Krishnaswami Iyer died some time.before the passing of the , but during his life time he had settled certain properties absolutely on his wife Smt.
Alladi Venkatakshmamma to be referred in short as 'Smt.
Alladi ' and he had also declared certain other properties to from part of the joint family properties.
Sri Alladi Krishnaswami Iyer hereafter to be referred to as "Shri Alladi" was a member of the Hindu coparcenary consisting of himself, his wife and three sons.
In the instant case we are only concerned with the joint family properties left by Shri Alladi.
Alladi died on January 5, 1956 a few months before the passing of the and the Assistant Controller of Estate Duty valued her estate at a total amount ot Rs. 7,25,527 including a sum of Rs. 2,02,271 being the value of her the share in the joint family properties.
The dispute in the present case centres round the inclusion of the aforesaid sum of Rs 2,02,271/ .
The Revenue assessed the estate duty on the footing that as Smt.
Alladi was a member of the Hindu coparcenary her interest in the joint family proper ties passed on her death to the other three sons and the value of this interest being 1/4th the heirs would be liable to pay estate duty on the value of the 1/4th share assessed at Rs. 2,02,271/ .
The accountable persons raised several contentions before the Revenue including the question as to whether or not the Act would apply to agricultural lands as also whether interest on certain fixed deposits in Govern ment securities would be assessable under the Act.
It appears, however, that before the High Court the respondent pressed only the question relating to the inclusion of the value of 1/4th share of Smt.
Alladi valued at Rs. 2,02,271/ .
The respondent filed an appeal before the Board and contended that as Smt.
Alladi died as a Hindu widow she possessed no coparcenary interest which could pass on her death: her interest merged without any benefit accruing or arising to the coparceners and hence section 7 sub section
(1) had no application.
The plea taken by the respondent did not find favour with the Central Board of Revenue which upheld the order of the Assistant Controller of Estate Duty.
Thereupon the respondent moved the Board of Revenue to make a reference to the High Court of Madras for decision of the questions of law involved in the case.
The Board ac cordingly referred the following questions to the High Court: "1.
Whether, on the facts and in the circumstances of the case, one fourth share of the deceased in the joint family properties, to which she was entitled under section 3 of the Hindu Women 's Rights to Property Act, 1937, was correctly included in her estate as property deemed to pass on her death under section 7 of the ? 2.
Whether the , in so far as it seeks to levy duty on agricultur al lands, is ultra vires of the legislative powers of the Union Legislature ? 725 3.
Whether, on the facts and in the circumstances of the case, the accrued inter est on fixed deposits and Government securi ties up to the date of death of the deceased was correctly included in her estate under section 34(2) of the ? Although three questions had been referred to the High Court by the Board at the hearing of the appeal the respondent gave up questions Nos. 2 and 3 and confined his arguments only to question No. 1 which falls for determination in this case.
The High Court, relying mainly on the decisions of the Privy Council in Attorney General of Ceylon vs Arunacha lam Chettiar;(1) and Gartside vs Inland Revenue ' Commission ers(2) came to the conclusion that the interest of Smt.
Alladi was not a coparcenary interest which could have passed under section 7 (1) of the Act and as the said interest was incapable of valuation was not exigible to estate duty.
Thereafter the appellant applied to the High Court for granting a certificate of fitness for leave.
to appeal to this Court and the same having been granted the appeal has now been placed before us for hearing.
The respondent reiterated his contentions before us and submitted that section 7(1) of the Act had no application to the facts of the present case, and therefore, the share of Smt.
Alladi was not exigible to estate duty.
The appellant, however, submitted that a Hindu widow had a coparcenary interest in the joint family properties which could be valued on the basis of the factors enumerated in section 39 of the Act, the High Court was in error in holding that the interest of Smt.
Alladi was not capable of any valuation.
The appellant, therefore, submitted that the High Court had not correctly appreciated the legal nature and character of the interest of the Hindu widow conferred on her by virtue of the Hindu Women 's Rights to Property Act, 1937.
In our opinion the answer to the problem would naturally lie in a correct interpretation of ss 7(1) & (2) of the Act as also on a true construction of section 3(2) of the Hindu Women 's Rights to Property Act, 1937 as amended by Act 11 of 1938.
It is true that while this Court has had occasions to interpret the provisions of the Hindu Women 's Rights to Property Act, 1937 hereafter referred to as the Act of 1937 ' on several occasions, yet the exact point which arises in this case has not yet been determined by this Court.
In order to understand the implications Of the arguments advanced by counsel for the parties.
before us, it may be necessary to extract the relevant provisions of the Act as also of the Act of 1937.
Section 7 sub sections
(1) & (2) of the Act run thus: "7.
Interests ceasing on death, (1) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceased 's death to the extent to which a benefit accrues I.T.R. (E.D.) 20 (2) (1968) A.C5.53 70 I.T.R. 663 (II. L.) 726 or arises by the cesser of such interest, including, in particular, a coparcenary inter est in the joint family property of a Hindu family governed by the Mitakshara, Marumakkat tayam or Aliyasantana law.
(2) If a member of a Hindu coparcenary governed by the Mitakshara school of law dies, then the provisions of sub section (1) shall apply with respect to the interest of the deceased in the coparcenary property only : (a) if the deceased had completed his eighteenth year at the time of his death, or (b) where he had not completed his eighteenth year at the time of his death,.
if his father or other male as cendant in the male line was not a coparcener of the same family at the time of his death.
" It would be seen that section 7(1) consist of two parts the first part refers to the interest of the deceased which ceases on his death and according to this part two condi tions are necessary before there is a passing of the inter est (1) that there must be a cesser of the interest by virtue of the death of the deceased; and (2) that as a result of such cesser a benefit accrues or arises.
The second part of sub section
(1) contains an inclusive category which brings within the fold of sub section
(1) a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayarn or Aliyasantana law.
In the instant case, we are mainly concerned with the Mitakshara law.
We might dispose of a short argument ad vanced by Mr. S.T. Desai in support of the appeal on this question.
It was submitted that the words "governed by the Matakshara, Marumakkattayam or Aliyasan ana law" clearly show that the coparcenary interest has been used in a wide sense and cannot be restricted to the strict coparcenary interest known to the Mitakshara law alone In the view which we take in this case, however, it is not at all neces sary to go into this point.
The main question for determi nation is as to whether the interest acquired by a Hindu widow under the Act of 1937 can be said to be a coparcenary interest in the legal sense of the term.
Once a Hindu widow is held to have a coparcenary interest, then there would be no difficulty in treating her as a member of the Hindu coparcenary, in which case her interest could be easily valued according to the relevant provision of section 39 of the Act which runs thus: "39.
(1) The value of the benefit accruing or arising from the cesser of a coparcenary interest in any joint family property governed by the.
Mitakshara school of a Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there been a partition immediately before his death.
" In order to understand the content and charac ter of the interest which a Hindu widow gets by virtue of the statutory provisions con tained in 727 the Act of 1937 there can be no doubt that prior to the passing of the Act of 1937 a Hindu woman had no right or interest at all in a Hindu coparcenary.
She was neither a copar cener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance.
She also had no right to demand partition of the coparcenary property after the death of her husband.
The Act of 1937 introduced broad and important changes by bettering the rights of a Hindu widow and conferring on her the same interest as pos sessed by her husband.
Sub sections (2) and (3) of section 3 of the Act of 1937 run thus: "(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub section (3), have in the property the same interest as he himself had." "(3)Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman 's estate, provided however that she shall have the same right of claiming parti tion as a male owner.
The words "the same interest as he himself had" in sub section (2) of section 3 of the Act of 1937 clearly indicate that the statute gave effect to the well settled doctrine of Hindu Shastric Law that the persons of the.
husband after his death continues through his wife who is the surviving half of the husband and the husband continues to live through the widow so long as the widow is alive.
It was this concept of the Hindu Law which was sought to be recognised and given effect to by the Act of 1937.
In these circumstances, therefore, when ' the Legislature used the expression "the same interest as he himself had" it would include all the bundle of rights possessed by the husband which would de volve on the wife and if there were to be any limitations on those rights they were spelt out by subs.
(3) itself, name ly, that while the Hindu widow would have the same right and interest as her husband, her interest would only be the limited interest known as a Hindu Woman 's estate.
Sub section (2) of section 3 of the Act of 1937 further conferred on the widow the right to demand partition and on partition she was entitled to get the same share as her husband.
Thus the position appears to be that a Hindu widow was introduced for the first time into the Hindu coparcenary having the same rights as her husband and became as it were a member of the Hindu coparcenary with two qualifications, viz., (1) that she had only a limited interest; and (2)that she could not be a coparcener because having regard to the nature of her entry into the family after marriage with her husband there was no question of her getting interest in the Hindu copar cenary by birth which is one of the most important incidents of a Hindu coparcenary.
All the other rights of a coparcener were duly conferred on her by the Act of 1937.
Dwelling on the content and import of the nature of the interest of a Hindu widow this Court pointed out in Jaisri Sahu vs Rajdewan 728 Dubey & Others(1) that on the death of her husband the properties vested in the widow and she fully represented the estate.
In this connection, this Court made the following observations: "When a widow succeeds as heir to her hus band, the ownership in the properties, both legal and beneficial, vests in her.
She fully represents the estate, the interest of the reversioners therein being only spes succession 'section The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one.
It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversion ers but is an incident of the estate as known to Hindu law.
" Similarly in a later case in Potti Lakshmi Perumallu vs Potti Krishnavenamma(2) this Court reiterated that a Hindu widow was the surviving half of her husband and so long as she was alive the husband continued to live in her.
This 'Court observed as follows: "The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim parti tion of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right.
That is to say, according to these decisions her interest is a fluctuating one and is liable to increase or decrease according as there are accretions to or dimi nutions of the property.
In our opinion these decisions lay down the law correctly.
" It may be pertinent to note that in the aforesaid case the Court was considering the nature of the interest which a widow derived by virtue of the statutory substitution con tained in s.3(2) of the Act of 1937.
It was also pointed out that like other coparceners of a Hindu coparcenary the interest of a widow until separated by a partition continued a fluctuating one which was liable to increase case or decrease with the deaths or additions in the family.
In Satrughan Isser vs Smt.
Subujpari & Others(3) this Court pointed out that the interest conferred on a Hindu widow arose by statutory substitution and the Act of 1937 introduced changes which were go far alien to the structure of a Hindu coparcenary.
In this connection the Court observed as follows: "The Act in inventing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the (1) , 564 565.
(2) ; , 33.
(3) ; 729 structure of a coparcenary.
The interest of a widow arises not by inheritance nor by survi vorship, but by statutory substitution: A Hindu coparcenary under the Mitakshara school consists of males alone: it includes only those members who acquire by birth or adoption interest in the coparcenary property.
The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners.
While it remains joint, no individual member can predicate of the undi vided property that he has a definite share therein.
The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners: it is only on partition that the coparcener can claim that he has become entitled to a definite share.
The two principal incidents of coparcenary property are: that the interest of coparceners devolves by survivorship and not by inheri tance; and that the mate issue of a coparcener acquires an interest in the coparcenary property by birth, not as representing his father but in his own independent right ac quired by birth." As pointed out above the essence of coparce nary property is the unity of ownership which is vested in the whole body of coparceners and the two principal incidents of coparcenary property are that the interest of coparceners devolves by survivorship and not by inheri tance and that the male issue of a coparcener acquires an interest in the coparcenary property by birth and not as representing his father.
Alter having described the incidents of a Hindu coparcenary, the Court proceeded to observe as follows: "By the Act (Act of 1937) certain anti thetical concepts are sought to be reconciled.
A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary.
She is thereby introduced into the coparcenary, and between the surviv ing coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession.
But the widow does not on that account become a copar cener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other copareeners.
Because of statutory substitu tion of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures.
* * * She has still power to make her interest definite by making a demand for partition, as a male owner may.
If the widow 730 after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property.
" Again this Court did not approve of the as sumption made by some Courts that the fight vested in the widow was liable to revert to the coparcenary, even where, on demand for partition it became separated from the copar cenary property, and in this connection this court observed as follows: "The assumption that though the right vested in the widow by the Act is a right of property which may on demand for partition become separated from the coparcenary property it is still liable to revert to the coparce nary on the determination of the widow 's estate, does not give full effect to the statutory conferment upon the widow of the same right of claiming partition as a mate owner".
Finally this Court approved of certain obser vations made by the Madras High Court in Parappagari Parappa alias Hammanthappa and Another vs Parappagari Nagamma and others(1) where Subba Rao J.as he then was, made the following observations: "She could ask for partition and sepa rate possession of her husband 's share.
In case she asked for partition, her husband 's interest 'should be worked out having regard to the circumstances obtaining in the family on the date of partition.
If she divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property.
If there was no severance, it would devolve by survivorship to the other members of the joint Hindu family :" It is, therefore, manifest from the aforesaid deci sion that if the widow had not chosen to exercise her right of partition, there is no severance of the Hindu coparcenary and on her death the interest of the widow merges in the coparcenary property or lapses to the other coparceners.
As already indicated above, this Court in Satrughan vs Smt.
Sabujpari & others (supra) had taken the same view and had con firmed the Division Bench decision of the Patna High Court in Smt.
Sabujpari and another vs Satrughan Isser and others(2), where the Patna High Court after considering the entire law on the subject, observed thus: "After having considered the various authorities and the various aspects of the case, my conclusions are that, under the Provisions of the Act a widow of a deceased coparcener is placed in same position as the deceased coparcener was, for the reason of the fiction that half the body of the deceased husband survived in the widow; that, like her husband, the widow also is entitled to effect severance of the joint status (2) A.I.R. 1958 Pat. 405, 410. 731 of the family by an unequivocal expression of intention separate;* * * that in case the widow does not exercise her right of partition and dies without expressing any intention to separate, the interest of the husband, which she enjoyed, goes by survivor ship to the other members of the joint family.
" We find ourselves in complete agreement with the observations made by the Patna High Court to which one, of us (Untwalia, J., as he then was) was a party.
The view taken by the Patna High Court in the aforesaid case was later on approved by a Full Bench of the Patna High Court in Mst.
Khatrani Kuer vs Smt.
Tapeshwari Kuer(1).
In State Bank of India vs Ghamandi Ram (dead) through Shri Gurbux Rai(2), this Court, while dealing with the incidents of Hindu coparcenary, observed as follows: "According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi corporate capa city.
* * * The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that no alienation of the property.
any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership ex tending over the entire property, conjointly with the rest; fourthly, that as a result of such co ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the Coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.
A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son be comes a coparcener with his adoptive father as regards the ancestral properties of the lat ter." Thus analysing the ratio of a aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third genera tion acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got.
ownership extending over the entire property con jointly with the.
rest and so long as no partition takes place, it is difficult for any copercener to predicate the share which he might receive; (4) that as a result of such co ownership the possession and enjoyment of the property iS common; (5) that there can be no alienation of the property without (1) A.I.R. 1964 Pat 261.
[19691 3 S.C.R, 681,686.
732 the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.
Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting condition No. (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary.
In other words, after her husband 's death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoy ment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest 'in the property which may be increased or decreased by deaths or additions in the family.
It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death.
Thus, short of the first condition, she possess es all the necessary indicia of a coparcenary interest.
The fact that before the Act of 1956, she had the characteristic of a widow estate in her interest in the property does not detract any the less from this position.
It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of a coparcenary by virtue of the rights conferred on her under the Act of 1937.
There is yet another important aspect of the matter which has to be considered.
At the time when the was passed in 1953, the Legislature was fully aware of the statutory interest conferred on a widow by virtue of the Act of 1937 and the incidents thereof.
In these circum stances it is not reasonable to infer that the Legislature could have intended that though a Hindu widow has got the Same interest as her husband in the Hindu coparcenary and has also the right to demand partition and her interest which is a fluctuating.
one would lapse to the other copar ceners in case of her death without seeking partition in the same manner as that of other coparceners, yet it should be exempt from estate duty.
The sheet anchor of the argument of the respondent was the Privy Council decision in Arunachalam Chettiar 's case (supra).
In the first place, the facts of that case are clearly distinguishable from the facts of the present case.
In that case, the Hindu undivided family consisted of father, son and some female members.
According to the Privy Council, the females were merely entitled to maintenance.
The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937.
Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part of sub section
(1) and sub section
(2) of section 7 nor any provision similar to section 39 of the Act.
In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiar 's case 733 (supra) can be called in aid to support the contention of the respondent.
In the instant case, once it is held, as it must be, that Smt.
Alladi was a member of the Hindu coparce nary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary.
It was also clearly capable of valuation, unlike the posi tion in Arunachalam Chettiar 's case where the Privy Council was construing a provision similar to section 40 of the Act, which, in our opinion, has no application in the present case, it being covered by section 39 of the Act.
A fortiori the same observations apply to the case of Gertside vs Inland Revenue Commissioners (supra).
That case has no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contem plated under the English Acts.
For these reasons, there fore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the present appeal, and the High Court was in error in basing its deci sion on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the Act.
Finally, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the copercenary and she could not be treated either as a coparcener or a me, tuber of the copercenary or to possess any kind of coparcenary interest.
While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcen er, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shas tric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener 's interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property.
Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by section 3(3) of the Act of 1937, namely, that her interest would be the limited interest of a Hindu widow.
The conclu sion is therefore inescapable that Smt.
Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sub section
(1) of section 7 and under section 39 the value of the benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her, had there been a partition immediately before her death.
The last plank of the argument of the respondent was that the being a fiscal statute should be construed strictly so as to give every benefit of doubt to the subject.
There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is 734 taxable, it is not for the Court to strain and stress the language of the section so as to enable the tax payer to escape the tax.
In the view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effect.
Summarising, therefore, the position that emerges is as follows: By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as con templated by section 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by section 7(2) of the Act.
On the death of Smt.
Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the coper cenary property and by reason of the inclusive part of sub section (1 ) of section 7, it must be taken to have passed on her death and was hence exigible to estate duty.
Since Smt Alladi was a member of the copercenary, this interest of her 's which passed on her death was liable to be valued in accordance with the method provided by section 39 of the Act.
The interpretation of section 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of section 7 (1 ) latter part and sub section
(2) of section 7 of the Act which attracts section 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of section 40 of the Act in this case.
The result is that the appeal is allowed, the judgment of the High Court is set aside and the question referred to the High Court is answered in the affirmative.
There will be no order as to costs.
S.R. Appeal allowed.

summary/full:
Shri Alladi was a member of the Hindu coparcenary con sisting of himself his wife (Smt.
Alladi) and three sons.
Shri Alladi who died before the came into force, during his life time had settled certain proper ties absolutely on his wife and had also declared certain other properties to form part of the joint family proper ties.
Alladi died on January 5, 1956, a few months before the passing of the .
The Assistant Controller of Estate Duty valued her estate at a total amount of Rs. 7,25,527/ including a sum of Rs. 2,02,271/ being the value of her 1/4th share in the joint family properties, on the footing that as Smt.
Alladi was a member of the Hindu coparcenary, her interest in the joint family properties.
passed on her death to the other three sons and the value Of this interest being 1/4th, the heirs would be liable to pay estate duty on the value of the 1/4th, share.
The respondent filed an appeal before the Central Board of Revenue and contended that as Smt.
Alladi died as a Hindu widow she possessed no coparcenary interest which could pass on her death; her interest merged without any benefit accruing or arising to the coparceners and hence section 7 subsection (1) had no application.
This plea did not find favour with the Board.
which upheld the order of the Assistant Controller of Estate Duty as correct.
The Board further held that the Hindu widow 'section estate created by section 3(2) of the Hindu Widows Rights to Property Act, 1937, was an interest in property which ceased on the death of the widow attracting estate duty.
Thereupon, the respondent moved the Board to make reference to the High Court of Madras for decision of the questions of law involved in the case.
The Board referred three questions to the High Court under section 64(1) of the Act, but at the time of the hearing of the reference, the respondent confined his arguments only to the following issue, namely "Whether on the facts and in the circumstances of the case 1/4th share of the deceased in the joint family properties to which she was entitled under section 3 of the Hindu Womens Rights to Property Act, 1937, was correctly included in her estate as property deemed to pass on her death under section 7 of the ." The High Court relying on the decisions of the Privy Council in Attorney General of Ceylon vs Arunachalam Chettiar and Gartside vs Inland Revenue Commissioners ; held that the interest of Smt.
Alladi was not a coparcenary interest which could have passed under section 7(1) of the Act and as the said interest was incapable of valuation, it was not exigible to estate duty and thus held against the Revenue and in favour of the accountable person.
Allowing the appeal by certificate, the Court, HELD: (1) By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possess a coparcenary interest as contemplated by section 7(1) of the Act and she is also a member of the Hindu coparcenary as envisaged by section 7(2) of the Act.
[734 B] 722 (2) Prior to the passing of the Act of 1937 a Hindu Woman had no right interest at all in a Hindu coparcenary.
The Act of 1937 bettered the rights a Hindu widow and conferred on her by section 3 the same interest as possessed her husband.
[727 A] (3) The words "the same interest as he himself had" in sub section (2) of section 3 of the Act of 1937 clearly indicate that the statute gave effect to the well settled doctrine of Hindu shastric law that the persons of the husband after his death continues through his wife who is a surviving half and the husband continues to live through the widow so long as the widow is alive.
When the Legislature used the expres sion ' "the same interest as he himself had", it would in clude all the rights possessed by the husband which could devolve on the wife.
Thus, a Hindu widow was introduced for the first time into the Hindu coparcenary having the same rights as her husband and became as it were a member of the Hindu coparcenary with two qualifications, namely, (i) she had only a limited interest and (ii) that she could not be a coparcener because having regard to the nature of her entry into the family after marriage with her husband, there was no question of her getting interest in the Hindu copar cenary by birth which is one of the most important incidents of a Hindu coparcenary.
[727 D E] (4) The essence of coparcenary property is the unity of ownership which is vested in the whole body of coparceners and the two principal incidents of coparcenary are that the interest of coparceners devolve by survivorship and not by inheritance and that the male issue of a coparcenary ac quires an interest in the coparcenary property by birth and not as representing his father.
[729 D E] (5) A Hindu coparcenary has six essential characteris tics, namely, (i) that the lineal male descendants upto the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (ii) that the members of the coparcenary have the right to work out their rights by demanding partition; (iii) that until parti tion, each member has got ownership extending over the entire property jointly with the rest and so long as no partition takes place it is difficult for any coparcener to predicate the share which he might receive; (iv) that as a result of such co ownership the possession and enjoyment of the property is common; (v) that there can be no alienation of the property without the concurrence of the other copar ceners unless it be for legal necessity and (vi) that the interest of a deceased member lapses on his death and merges in the coparcenary property.
Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, it will be seen, that short of the first condition she possesses all the necessary indicia of a coparcenary interest.
The fact that before the Act of 1956 she had the characteristic of a widow estate in her interest in the property does not detract any the less from this position.
Therefore, though a Hindu widow cannot be a coparcener she has conarcenary interest and is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937.
[731 F H, 732 A B D] State Bank of India vs Ghamandi Ram (dead) through Shri Gurbax Rai 686 applied.
(6) If the widow has not chosen to exercise her right of partition, there no severenee of the Hindu coparcenary and on her death the interest of the widow merges in the copar cenary property or lapses to the other coparceners.
Parappagari Parappa alias Harmmanthappa and Anr.
vs Parappagari Nagaman and Ors.
ILR 1954 Madras 183; S.T. Sabujpari and Anr.
vs Satrughan Isser and Ors.
AIR 1958 Patna 405, 410 and Mst.
Khatrant Kuer vs Smt.
Tapeskwari Kuer AIR 1964 Pat 261, approved.
(7) It was not the intent of the legislature which was folly aware of the statutory interest conferred on a Hindu widow by virtue of the Act of 1937 and the incidents thereof that though a Hindu widow has got the same interest as her husband in the Hindu coparcenary and has also the right to demand 723 partition and her interest is a fluctuating one would lapse to the other coparceners in case of her death without seek ing partition in the same manner as that of other coparcen ers, yet it should be exempt from estate duty.
In the instant case, Smt.
Alladi was a member of the Hindu coparce nary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary.
It was clearly capable of valuation, it being covered by section 39 of the Act.
The High Court was in error in basing its decision on the Arunachalam Chettiar 's case and also in Gartside 's case ignoring the decisions of this Court and also the peculiar and special provisions of the Act.
A C] Attorney General of Ceylon vs Arunchalam Chettiar 34 ITR (E.D.) 20 and Gattside vs Inland Revenue Commissioners ; ITR 663 (H.L.) held inapplicable.
(8) It is wrong to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property.
Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by section 3(3) of the Act of 1937, namely, that her interest would be limited interest, of a Hindu widow.
In the instant case, Smt.
Alladi possessed a coparcenary interest which lapsed on her death and merged into the coparcenary and was clearly covered by the inclusive part of sub section
(1) of section 7 and under section 39, the value of the benefit accruing or arising from the cesser of the coparcenary interest was to be deter mined by taking the principal value of the share and the joint family property which would have been allotted to her had there been partition immediately before her death.
The present case squarely falls within the ambit of section 7(1) latter part and sub section
(2) of section 7 of the Act which at tracts section 39.
By reason of the inclusive part of sub a.
(1) of section 7 it must be taken to have passed on her death and was hence exigible to estate duty.
[733 D G] (9) When the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the court to strain and stress the language of the section so as to enable the tax payer to escape the tax.
The legislative intent reflected in the Act of 1937 and , must be given full effect to.
[733 H, 734 A]


judgement:
N: Special Leave Peti tion (Criminal) No. 216/1977.
(From the Judgment and Order dated 28 9 1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl.
Appeal No. 17/72).
S.J.S. Fernandez, amicus curiae, for the petitioner.
The Order of the Court was delivered by KRISHNA IYER, J. A death sentence, with all its dreadful scenario swinging desperately out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu tioner 's rope.
Even so, judges must enforce the laws, whatever they be, and decide according to the best of their lights, but the laws, are not always just and the lights are not always luminous.
Nor, again, are judicial methods always adequate to secure justice.
We are bound by the Penal Code and the Criminal Procedure Code, by the, very oath of our office.
Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term.
It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Edige Annamma, , AIR).
Even so, the discretion is limited and courts can never afford to forget Benjamin ' Cardozo 's wise guidance: "The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure.
He is not a knight errant roam ing at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by sys tem, and subordinated to the primordial necessity of order in the social life.
Wide enough in all conscience is the field of dis cretion that remains." (Cardoze: The Nature of the Judicial Proc ess: Wale University Press ( 1921 ) ).
We have heard counsel on the merits and.perused the paper book with some care and see no ground to disturb the conviction.
The question of 'sentence ' projects sharply before us and what we.
have stated above turns our focus on cicumstances justifying the graver sentence.
The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence.
The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty.
When discretion has been exercised by the trial Court and it is difficult to fault that 773 court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demol ish the discretionary exercise of power by the inferior court.
So viewed, it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence.
We are unable to, grant leave on, this score either.
Counsel for the petitioner has urged that the affirma tion by the Judicial Commissioner 's court of Goa, Diu and Daman, of the Death sentence is illegal.
According to.
him section 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner.
The said section reads: "377.
In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them." This section means, as we understand it, that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them.
This provision obviously applies only to situations where the court, at the time of the confirmation of the death sentence.
, consists of two or more judges.
It is true that section 4 (1) (i) in relation to a Union Territory brings within the definition of the 'High Court ' the highest court of criminal appeal for that area viz. the Judicial Commissioner 's court.
It therefore follows that if, at the time the case for confirmation of the death sentence is being heard, the Judicial Commission er 's court consists of more than one judge, at least two judges must attest the confirmation.
In the present case it is common ground that when the case was heard and judg ment pronounced there was.
only one Judicial Commissioner, although the sanctioned strength was two.
So long as one Judicial Commissioner alone functioned in the court, section 377 was not attracted.
The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial Commissioner deciding the refer ence.
We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a death sentence involves is because of the law 's grave concern that human life shall not be judicially deprived unless at least two minds at almost the highest level are.
applied.
Even so, exceptional situations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened.
We cannot fault the judgment on this ground either.
Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law which prevails against the general.
On that footing he argues that under Regulation, 8 (1) the Court of the Judicial Commissioner shall have only such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao.
According to him, the said Tribunal did not have the powers of confirmation of death sentence, and, 774 therefore, the judicial Commissioner cannot exercise such power.
He also argues that under the said provision the Judicial Commissioner ' is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powers under section 377 of the old Crimi nal Procedure Code.
We see no force in these twin submis sions.
A Code is complete and that marks the distinction between a Code and an ordinary enactment.
The Criminal Procedure Code, by that canon, is serf contained and com plete.
It defines a High Court which takes in a Judicial Commissioner 's Court.
(Section 4(1)(i).
We need not and indeed may not travel beyond the Code into the territory of the Regulation.
Even otherwise, there is nothing in Regulation 8 ( 1 ) which helps the petitioner.
It pro vides that the Judicial Commissioner shall be the highest criminal 'Court, Appeal and Revision ' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level.
Referral jurisdiction, under section 377, is skin to appeal and revision and we think that Regulation 8(1) does not disentitle the Judicial Commissioner from exercising power under section 377 of the Code: nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did not have the power to confirm death sentences, and, there fore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power.
Regulation 8(1) does not limit the jurisdiction of the.
Judicial Commission er in the sense counsel wants us to accept.
We therefore hold that the Judicial Commissioner 's confirmation of the death sentence is not without jurisdiction.
Undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis ingly for around six years.
May be that such a long spell of torment may be one circumstance in giving the lesser sen tence.
Even s0, we have to be guided by the rulings of this Court which have not gone to the extent of holding that based on this circumstance alone, without other supplement ing factors or in the face of surrounding beastly circum stances of the crime, judicial clemency can attenuate the sentence.
Possibly, Presidential power is wider but judicial power is embanked.
We refuse special leave and dismiss the petition.
Petition dismissed.

summary/full:
The petitioner was convicted for the offence of murder under section 302, I.P.C. and sentenced to death by the Trial Court.
The Judicial Commissioner, Goa confirmed the death sentence in the referred trial under section 374 of the 1898 Code of Criminal Procedure.
Dismissing the special leave petition to appeal, the Court.
HELD: (1) Discretion to choose between the capital sentence and life term under section 354(3) of the 1973 Code of Criminal Procedure is limited.
If the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diaboli cal trickery in committing the homicide, accompanied by brutal dealing with the cadaver, infliction of death penalty cannot be avoided.
Special leave under article 136.
of the Constitution cannot be granted when it is difficult to fault the court on any ground, statutory or precedential.
[772 G H, 773 A] Ediga Annamma; , , referred to.
(2) Section 377 of 1898 Code of Criminal Procedure applies only to situations where the court at the time of the con firmation of the death sentence consists of two or more Judges.
Section 4(1)(i) of the Code of Criminal proce dure, in relation to a Union Territory, brings within the definition of "High Court", the highest court of criminal appeal for that area, namely, the Judicial Commissioner 's Court.
If, at the time the case for confirmation of death sentence is being heard, the Judicial Commissioner 's Court consists of more than one Judge, at least two Judges must attest the confirmation.
So long as one Judicial Commis sioner alone functions in the Court, section 377 was not attracted.
In the present case there is nothing illegal in a single (i.e.the only) Judicial Commissioner deciding the reference.
[773 D F] (3) Referral jurisdiction under section 377 is akin to appeal and revision.
Regulation 8(1) of the Goa, Daman and Diu (Judicial Commissioner 's Court) Regulation 1963 does not disentitle the Judicial Commissioner from exercising power section 377, Cr.
In the instant case, the Judicial Commis sioner 's confirmation of death sentence is not without jurisdiction.
[774 C D] (4) Judicial clemency cannot attenuate the sentence of death on the sole circumstance that the accused was a young man and the sentence of death been haunting him for long without other supplement factors or in the face of surround ing beastly circumstances of the crime.
Possibly, Presiden tial power wider but judicial power is embanked.
[774 E F] 10 707SCI/77 772