ORDER <NAME> (J), Member

1. <ORG> (appellants in Appeal No 534/96) are aggrieved by confiscation, by the Commissioner of <ORG>, of a consignment of 'Video Magnetic Tapes in Hubs' covered by Shipping Bill No. 426772 dated 8.4.94 (with option for redemption on payment of a fine of Rs. 50,000/-). They are also aggrieved by imposition of personal penalty of Rs. 1 lakh by the Commissioner. <NAME>, partner of <ORG>, is the appellant in Appeal No. C/535/96 wherein he challenges the personal penalty of Rs. 50,000/- imposed on him by the Commissioner of <ORG>.

2. The relevant facts of the case are that <ORG> <ORG> had imported 'Video Magnetic Tapes in pancakes' in terms of Advance Licence No. 0302672 dated 12.2.92 under the <ORG> Scheme (<ORG> Book No. 058442 dated 7.4.92) and cleared the goods free of duty under Bill of Entry No 8535 dated 25.2.94 for the purpose of manufacture of Video Magnetic Tapes in hubs, which were to be exported in discharge of export obligation under the said Scheme; that, in discharge of the export obligation, they presented a consignment of what was declared as "Video Magnetic Tapes in hubs" for export under Shipping Bill No 426772 dated 8.4.94; that these goods were detained and examined, whereupon it appeared to <ORG> authorities that the consignment contained old used and junk video magnetic tapes in hubs of no commercial value and which did not appear to have been made out of the imported raw material (Video Magnetic Tapes in Pancakes); that <ORG> Agent of <ORG> <ORG> stated to the SIIB of <ORG> (who investigated the case) that they had filed the Shipping Bill at the instance of <NAME>, partner of the exporting firm; that <NAME>, in his statements dated 25.4.94 and 8.11.94 under Section 108 of the <ORG> Act, admitted that the goods covered by the above Shipping Bill had been purchased by him from various suppliers of old and used hubs and tapes; that <NAME> further admitted that he had sold off a part of the raw materials imported by his firm in October, 1993 and had thereby earned a profit of Rs. 180/- to Rs. 190/- per pancake; that <NAME> further admitted that neither his exporting firm nor his supporting manufacturers viz. <ORG> Dipen Textiles Private Ltd, Palghar, Thane had carried out any manufacturing activity and that the junk tapes alongwith hubs were only purchased by him; that the Central Excise officers who searched the premises of <ORG> Dipen Textiles Pvt Ltd recovered 63 packages each containing 320 Video Magnetic Tapes in hubs valued at Rs. 9,37,728/- and detained the same; that Shri <NAME> admitted that the said quantity of Video Magnetic Tapes in hubs had been manufactured by <ORG> Dipen Textiles at Palghar in May 1994 out of the imported Video Magnetic Tapes in Pancakes; that it appeared to the Department that <ORG> <ORG> had removed the raw material from their premises to the premises of <ORG> Dipen Textiles Pvt Ltd; that Central Excise officers seized the above 63 packages (each containing 320 Video Magnetic Tapes in hubs) under panchnama dated 10.10.94 under Section 110 of the <ORG> Act; that the DGFT authorities by letter dated 17.10.94 informed the <ORG> that the Advance Licence and the <ORG> book of <ORG> <ORG> had been cancelled; that, on account of the cancellation of Advance Licence and <ORG> book, the <ORG> authorities considered the import of the raw material cleared free of duty under three Bills of Entry dated 22.2.93, 8.10.93 and 25.2.94 to be unauthorized as the same were covered by the Negative List of import items under the relevant Exim Policy; that it appeared to the <ORG> authorities that <ORG> <ORG> had deliberately misdeclared the goods covered by Shipping Bill No 426772 dated 8.4.94 to make it appear that the said goods had been manufactured out of raw material (Video Magnetic Tapes in pancakes) cleared under Bill of Entry No 8535 dated 25.2.94; that the said authorities held the view that the misdeclared goods were liable to confiscation under Section 113(d) and (i) of the <ORG> Act read with Section 3(3) of the Export Trade (Control) Order, 1998; that <ORG> <ORG> and Shri <NAME> had rendered themselves liable to penalty under Section 114(i) of the Act.; that, consequent upon cancellation of the Advance Licence and <ORG> book, the imported Video Magnetic Tapes in pancakes, which were cleared without payment of <ORG> duty, became chargeable to duty to the extent of over Rs. 21 lakhs; that <ORG> <ORG> and Shri <NAME> were also liable for penalty under Section 112 of the Act; that their CHA, <ORG> P.N. Shipping Agency, having aided and abetted the attempted fraudulent export of second hand goods by <ORG> <ORG>, had rendered themselves liable to penalty under Section 114(i) of the Act; and that a show-cause notice was issued to <ORG> <ORG>, <ORG> Dipen Textiles Pvt Ltd and Shri <NAME> proposing to:-

i) confiscate the goods covered by Shipping Bill No 426772 dated 8.4.94 under Section 113(d) of the Customs Act read with Section 3(3) of the Export Trade (Control) Order, 1998;

ii) confiscate the Video Magnetic Tapes on Pancakes converted into Video Magnetic Tapes in Hubs at Palghar under Section 111(d) and (o) read with Section 120(1) of the Customs Act;

iii) impose personal penalties under Sections 114(i) and 112(a) of the Act on the noticees;

iv) recover duty of customs on the Video Magnetic Tapes on pancakes cleared under all the three Bills of Entry.

The <ORG> was also called upon to show cause why personal penalty should not be imposed on them under Section 114(i) of the Customs Act.

3. The Commissioner of <ORG>, after considering the written submissions submitted by the noticees in reply to the show-cause notice and after hearing their Counsel, passed the impugned order dated 27.6.96. As regards the raw material, the order held it not liable to confiscation and dropped the demand of duty. The order also held <ORG> and <ORG> <ORG> (CHA) not liable to be penalized. However, confiscation was ordered of the 63 packages containing 20160 Video Magnetic Tapes in hubs covered by Shipping Bill No 426772 dated 8.4.94 under Section 113(d) and (i) of the <ORG> Act with option under Section 125 of the Act for redemption of the goods on payment of a fine of Rs. 50,000/-. Moreover, personal penalties of Rs. 1 lakh and Rs. 50,000/- were also imposed on <ORG> <ORG> and <NAME> respectively under Section 114(i) of the <ORG> Act. Hence these appeals of <ORG> <ORG> and <NAME>.

4. We have heard both the sides. The learned Counsel for the appellants submitted that Video Magnetic Tapes in hubs confiscated by the Commissioner were freely exportable as they were not mentioned in the Negative List of Exports in Chapter XVI of the Export Import Policy 1992-97. Section 113(d) and (i) of the Customs Act were not applicable to such a case where the goods were not dutiable. Clause 3(3) of the Export (Control) Order, 1988 was also not applicable to the goods which did not figure in Schedule I or Schedule III of the Export (Control) Order and were not governed by the Licensing Policy contained in the relevant Exim Policy. The goods, therefore, were not liable to be confiscated under Section 113(d) and (i) of the Customs Act . In this connection, the learned Counsel relied on the decisions of this <ORG> in the cases of <CITATION> [2001 (136) ELT 1398] and <CITATION> [2001 (137) ELT 1010]. The Counsel argued that where there was no prohibition for exporting the goods, the goods were not liable to confiscation under Section 113(d) of the Customs Act. He relied on the <ORG>'s decision in <CITATION> [1996 (83) ELT 302], which was upheld by <ORG> [2000 (115) ELT A-219]. It was further submitted that, as the goods which were declared as Video Magnetic Tapes in hubs were found to be so on visual examination, there was no misdeclaration on the part of the appellants, nor had they any intention to misdeclare the goods. The confiscation of the goods and imposition of penalty on the appellants were, therefore, not sustainable. It was not possible to ascertain by mere visual examination whether the goods were old and used. Neither any test report nor any expert opinion was relied upon to establish that the goods were old and used. The panch witnesses were only ordinary laymen with no technical knowledge or expertise to certify the nature of the goods. It was not correct on the part of the Commissioner to rely on the statements of panch witnesses as to the nature of the goods without giving the appellants an opportunity of cross-examining them. The Counsel added that the repeated requests made by the appellants for cross-examination of the panchas were only ignored by the Commissioner. The Department failed to discharge their burden of proving that the goods were old and used. The Counsel further submitted that the Commissioner had heavily relied on the confessional statements of <NAME> dated 25.4.94 and 8.11.94 which, according to the appellants, had been recorded under duress, coercion and threat. Though the statements were retracted subsequently, the retraction was ignored by the Commissioner.

5. The DR vehemently defended the order of the Commissioner by submitting that the appellants had confessed their guilt in unequivocal terms in their statements dated 25.4.94 and 8.11.94 and these statements were never retracted by them. In view of the admission, by the appellants, of their offence alleged in the show-cause notice, any further evidence was not required to prove the offence. The DR relied on the decision of <ORG> in <CITATION> [1997 (90) ELT 31(Cal.)] and submitted that the appellants had, by declaring the high FOB value of Rs. 10,14,949/-for the old/used Video Magnetic Tapes in hubs of no commercial value, had indulged in redeclaration of value (overinvoicing) which amounted to violation of Section 11 of the Customs Act, attracting the provisions of Section 113 of the Act. The DR pointed out that the decision of <ORG> had been followed by the <ORG> in the case of <CITATION> [2002 (141) ELT 282]. He concluded by submitting that there was nothing wrong with the confiscation of the goods or with the imposition of penalties on the appellants.

6. In his rejoinder, the learned Counsel for the appellants argued that the judgment of <ORG> was not applicable to the instant case. According to him, the said judgment had been rendered by the consent of parties. <ORG> had not examined the confiscability of any goods under Section 113(d) or (i) of the Customs Act . The observations contained in para 20 of <ORG> judgment were in the nature of obiter dicta and did not provide any binding ratio. It was further argued that the view expressed by <ORG> in para 20 of its judgment was contrary to the law laid down by <ORG> in <CITATION> [AIR 1970 SC 1597] which was followed by this <ORG> in the case of <ORG> v. Commissionersf [Order No. C-1/3977-84/WZB/2000 dated 4.11.2000 in Appeal Nos. C/363-364/2000 Bom].

7. We have carefully examined the submissions. Admittedly, the Video Magnetic Tapes in hubs covered by Shipping Bill No 426772 dated 8.4.94 had been presented by the appellants through their <ORG> for export under the DEEC Scheme towards discharge of export obligation (under Notification No. 159/90-Cus dated 30.3.1990 under the said Scheme) vis-a-vis raw material (Video Magnetic Tapes in pancakes) which they had cleared earlier without payment of <ORG> duty on the strength of Advance Licence No. 0302672 and DEEC Book No. 058442. The said goods covered by the Shipping Bill for export were described as Video Magnetic Tapes in hubs. Visual examination of the goods showed that they were old and used ones. <NAME>, partner of the firm viz. <ORG> Dipen Enterprises, in his statements dated 25.4.94 and 8.11.94, admitted that the goods had been purchased from various suppliers of old and used hubs and tapes. He also admitted that, under the DEEC Scheme, they should have exported new product. He further admitted that he had disposed of a part of the raw material imported earlier in the month of October, 1993, for monetary consideration and had thereby made an estimated profit of Rs. 180/-to Rs. 190/- per pancake. He also produced records showing sale of 879 pancakes at the rate of Rs. 660/-per pancake making net income of over Rs. 5.8 lakhs. He admitted that such unauthorized disposal of the raw material imported under the DEEC Scheme was illegal. Regarding the nature of the export goods, he stated that he was not aware as to whether they were in serviceable condition. He stated that neither the exporting firm nor their supporting manufacturers (<ORG> Dipen Textiles) had carried out any manufacturing activity in their respective premises in relation to the said goods. <NAME> admitted his guilt and prayed for a lenient view. These statements of <NAME> have been claimed to have been retracted by him. It was claimed that the statements dated 25.4.94 and 8.11.94 were retracted on 26.4.94 and 9.11.94 respectively and that the 'retracting letters' were sent to the investigators (<ORG>, New Custom House, Bombay) under certificate of posting. The impugned order says that there was nothing on record to show that the appellants had retracted the statements dated 25.4.94 and 8.11.94. We have also found no evidence of any 'retracting letter' having been received by the departmental investigators. None of the officers in the investigating team (<ORG>) was examined by the appellants to prove their point. We are also at a loss to understand as to why the appellants did not resort to an effective mode of dispatch which was acknowledgeable by the addressee. Annexure 'J' to the memorandum of appeal is a 'certificate of posting' bearing the postal date-seal on which the date is not legible. It has been claimed by the appellants that this document is evidence of their retracting letter dated 26.4.94 having been sent to the <ORG>. Annexure 'L' to the memorandum of appeal is another 'certificate of posting' which also carries a postal seal on which the date is not legible. It has been claimed that this document proves dispatch of the appellants' retracting letter dated 9.11.94 to the <ORG>. By no stretch of imagination can a certificate of posting issued by postal authorities to the sender be considered as evidence of receipt of the postal article by the addressee. Therefore, in this case, there is no sustainable evidence of any retraction of the statements dated 25.4.94 and 8.11.94. The statements have been rightly relied upon by the adjudicating authority. <NAME> clearly admitted that the export goods covered by the shipping bill had not been manufactured by <ORG> Dipen Enterprises or even by their supporting manufacturers <ORG> Dipen Textiles Pvt Ltd and that the goods had been purchased from the local market. He never claimed that the goods were new and unused. On the other hand, he conceded that he did not know as to whether the goods were in serviceable condition. He even went to the extent of admitting that the suppliers of the goods had told him that the goods were old and used ones. Therefore, the fact that the Video Magnetic Tapes in hubs seized by the departmental officers had not been manufactured out of the raw material imported duty-free under the DEEC Scheme and were old/used second hand goods procured from the local market stands proved. The appellants were admittedly aware of the legal requirement that the export goods under the DEEC Scheme should be new and not old and used ones. The Shipping Bill described the goods as Video Magnetic Tapes in hubs only. The FOB value (Rs. 10,14,949/-) of the old goods declared in the Shipping Bill was undisputedly that of new goods. The appellants have never had a case that old/used video magnetic tapes in hubs had any appreciable commercial value. For all these reasons, the case of the <ORG> that the appellants had misdeclared and overvalued the goods has to be sustained.

8. It has been held by <ORG> in the case of <NAME> (supra) that misdeclaration of value of goods by exporter amounts to violation of prohibition deemed to have been imposed under Section 11 of the Customs Act attracting the provisions of Section 113 of the Act. This view of <ORG> is contained in para 20 of its judgment, which reads as under:-

"Similarly, under the Foreign Trade (Regulation) Rules, 1993 which have been framed under the Foreign Trade (Development and Regulation) Act , 1992 Rule 2(i) provides that 'value' would have the same meaning as was assigned to it in Section 2(41) of the act. Thus the procedure for determination of value under Section 14 of the act is brought in for the purposes of the 1993 Rules. Rule 11 of the 1993 Rules clearly states that the value of the goods must be stated whether the goods are liable to duty or not and such statement must be certified as being correct. If therefore an incorrect declaration is made this would be a violation of Rule 11 of the 1993 Rules. If an incorrect declaration of the value is made this would violate Section 11 of the 1992 Act which forbids the export or import of goods in violation of the Rues. This in turn would attract the provisions of Sections 111 and 13 of the Act as goods imported or exported contrary to law and give <ORG> the power to investigate the correct value of the gods in question and for that purpose utilize the method prescribed under Section 14(1) ."

The above ruling of <ORG> has been followed by this <ORG> in the case of <NAME> (supra). It was pointed out by the Counsel that <ORG>'s ruling was not followed by the <ORG> in the case of <CITATION> [2001 (137) ELT 916]. It was not followed in the case of <ORG> (supra) either. We find that, in both the cases, the Bench relied on the <ORG>'s Larger Bench decision in <CITATION> [2000 (121) ELT 754]. But the view taken by the 3-Member larger bench in <ORG> has been overruled by a larger bench of Five Members of the <ORG> in the case of <CITATION> [2001 (127) ELT 81]. The latter larger Bench relied on <ORG> judgment in <NAME> case and also distinguished <ORG> decision in <CITATION> [2000 (115) ELT A-219]. In the result, it is the decision of <ORG> that should be followed in the instant case. On a reading of the apex court's judgment in <ORG> (supra) relied on by the learned counsel, we are unable to accept his argument that <ORG> decision is hit by the said judgment of the apex court. In the result, we hold that the appellants had contravened Section 11 of the Customs Act (thereby attracting the penal provisions of Section 113 of the Act) by overvaluing the export goods in the Shipping Bill with an oblique purpose. The Commissioner has rightly invoked the provisions of Section 113 to confiscate the goods. In the facts and circumstances of the case, we do not find any reason to interfere with the quantum of redemption fine imposed by him under Section 125 in lieu of confiscation. Further, a personal penalty under Section 114 (i) of the Customs Act would be liable to be imposed on <ORG> as they had rendered the goods liable to confiscation under Section 113 of the Act. The penalty of Rs. 1 lakh imposed on <ORG> by the Commissioner, however, appears to be on the higher side in the facts and circumstances of the case. We reduce it to Rs. 50,000/-.

9. <NAME> is a partner of the exporting firm, <ORG>. A separate penalty has been imposed on him by the Commissioner under the same provision of law. According to settled law, identical penalties on the firm and its partner on the same ground are unwarranted. Therefore, we set aside the penalty imposed on <NAME>.

10. In the result, Appeal No. C/534/96 is dismissed, but with a reduction of the quantum of penalty on the appellant to Rs. 50,000/-. Appeal No. C/535/96 is allowed.


JUDGMENT <NAME>, C.<NAME> and <NAME>, <NAME>

1. This is an execution appeal. It appears that a decree was obtained by minors on the 22nd of May, 1901. There were several applications for execution leading up to one on the 6th of February, 1912, which was dismissed on the 3rd of December, 1912. The present application for execution was made on the 27th of May, 1913. It thus appears that the last application for execution was more than 12 years from the date of the decree. The judgement-debtors resisted execution relying - on Section 48 of the Code of Civil Procedure. This section provides that "where an application to execute a decree, not being a decree granting an injunction has been made, no order for the execution, of the same decree shall be made upon any fresh application presented after the expiration of 12 years" from the various dates specified in the section. It is admitted that had the decree-holders been parsons of full age the present application would be clearly barred. It is, however, contended that being minors they are still entitled to execute the decree. The first court-allowed the objection of the judgement-debtors. The lower appellate court reversed the order of the court of first instance. The learned Judge of this Court reversed the order of the lower appellate court and restored the order of the court of first instance.

2. Section 6 of the Indian Limitation Act, No. IX of 1908, provides as follows : "Where a person entitled to institute a suit, or make an application for the execution of a decree, is at the time from which the period of limitation is to be reckoned, a minor or insane or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule." It is admitted that the provisions of this section do not help the present decree-holders. It might have given them a right to execute their decree notwithstanding the expiration of the three years limit laid down in Article 182 of the schedule I, but it does not give them any exemption from the provisions of Section 48 of the Code of Civil Procedure. In the case of <NAME> v. <NAME> (1891) I.L.R. 16 Bom. 536 <NAME>, <NAME>, held in a case similar to the present that Section 7 of the former Limitation Act (which corresponds to Section 6 of the present Limitation Act ), only applied to cases dealt with by the statute itself.

3. He, however, goes on to say : "The question referred to us must be decided by the general principles of law as to the disability of minors, to which the provisions of the Code of Civil Procedure must, in the absence of anything to the contrary, be deemed to be subject. The general principle is that time does not run against a minor; and the circumstance that he has been represented by a guardian does not affect the question." If we were. to accept this statement of the law it would mean that a minor party to a suit through his guardian, whether as plaintiff or as defendant, is not bound to take any of the steps provided by the Code of Civil Procedure within the periods therein limited. For example it would be open to a minor judgement-debtor to reopen by way of appeal a question which had been finally decided years before. Just in the same way if a suit had been decided against a minor he might delay presenting his appeal for many years. The learned Judge of this Court has referred to the Judgment of Sir <NAME> in <NAME> v. Mohan Lal Punj. Rec., 1894 C.J. 489, and also to the decision <CITATION> (1912) I.L.R. 37 Mad. 186. In our opinion the Judgment of the learned Judge of this Court was correct and ought to be affirmed. We dismiss the appeal with costs.


JUDGMENT

1. This appeal is directed against an order of an additional District Judge of Muzaffarpur who dismissed an appeal preferred by the judgment-debtor against the order of the Subordinate Judge dismissing his application under Section 77 of the Civil Procedure Code. The respondent filed a suit against the appellant and other members of his family to recover a certain amount on the basis of a promissory note executed by the judgment debtor appellant. The suit was dismissed for default on 3-9-57. An application for restoration of the suit was filed by the plaintiff respondent under Order 9, Rule 9 of the Code of Civil Procedure. In pursuance of a compromise petition filed by the parties, a consent order was passed on 17-9-57 restoring the suit and decreeing the suit for Rs. 7586 and odd against two of the defendants, namely, defendants 3 and 4. Defendant No. 3 was the appellant and his son was defendant No. 4. The execution proceeding, out of which this appeal arises, was started by the respondent decree-holder against judgment debtor No. 1, that is, defendant' No. 3 who is the appellant, only, with a prayer for realisation of the decretal dues by arrest and detention in the civil prison. After the service of notice under Order 21, rule 22 of the Code, the appellant filed the aforesaid application under Section 47 asserting that the decree-holder's dues could not be realised from him by arrest and detention in civil prison as the conditions laid down in the proviso to Section 51 of the Code were not fulfilled. The decree-holder respondent examined himself in support of his contention that the appellant did not pay the decretal dues in spite of the fact that he had means to pay the same since the passing of the decree, while the appellant examined himself in support of his application under Section 47 of the Code, the other two witnesses being formal. Both the courts below accepted the case of the decree-holder and consequently the application under Section 47 was dismissed.

2. Mr. <NAME>, appearing on behalf of the judgment-debtor appellant drew our attention to Rules 37 and 40 of Order 21 read with Section 51 of the Civil Procedure Code. The object of these provisions is to afford protection to honest debtors who are incapable of paying their dues for reasons beyond their control and who have not committed any act of bad faith. The test is whether the debtor is unwilling to pay in spite of his means to pay. The circumstances which justify an order for arrest are contained in Section 51 of the Code, which provides for the different modes of execution of a decree and lays down that, where the decree is for the payment of money, execution by detention in prison shall not be ordered, unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court for reasons recorded in writing is satisfied.

"(a) that the judgment-debtor, with the object or effect of obstructing or delaying with the execution of the Decree.

(i) is likely to abscond or leave the local limits of the jurisdiction of the <ORG>, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same or,

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account".

Clause (c) does not apply to the instant case nor Sub-clause (i) of Clause (a). It is, therefore, to be seen whether the judgment-debtor, with the object of obstructing or delaying execution of the decree has, since the passing of the decree, dishonestly transferred, concealed or removed any part of the property or committed any act of bad faith, or having had means to pay the decree has refused or neglected to pay the same. In the instant case, having gone through the evidence of the two witnesses examined on behalf of each party, we do not find any of the circumstances mentioned in any of these clauses. The decree-holder stated that the judgment-debtor was still joint with his brothers and father and they had 30 bighas of land inclusive of <NAME> and recently purchased lands; but no document was filed support of the same. In cross-examination the decree-holder expressed his ignorance as to when the recently purchased land had been acquired. He did not see the sale deeds under which the land was said to have been purchased by the judgment-debtor and others of his family, nor had he seen any of the sale deeds, nor was he present at the time of the execution or registration of any of the sale deeds. He could not say the boundaries of any land belonging to the judgment-debtor and other members of his family He had not even filed any petition for taking copy of the survey proceedings He did not even make any enquiry from the landlord's office or seen any paper relating to the land of the judgment-debtor and other members of his family. On the other hand, the appellant-judgment debtor said that he was separate from his father and other members of his family since 15 or 16 years and that in his share he had got only 16 kathas of land He denied having any property in the name of his wife and said that he did not conceal any property The learned Addl. District Judge relied on certain statements in his deposition and reproduced the same in his judgment which reads thus :-

"No land of mine has been recorded in the recent survey going on in the village. I do not know in whose name that 16 kathas of land has been recorded in the current survey operation. I do not know if lands are recorded in khata No. 220 in my name under touzi No. 13564. I do not know if lands in extensive area have been recorded under khata 404 of Touzi No. 13569 in the current survey. I do not know if lands are recorded in the names of my brothers. I do not know what area of lands are owned and possessed by my father. I do not remember the calendar year and month when I had separated from my father and brother. I do not know how much land went to my father and brother on partition. I do not know what rental is payable for my land".

The learned Judge then observed that one could not help getting the impression that the appellant, by pretending ignorance, has tried deliberately to suppress the facts and his assets from the <ORG> and that the proviso to Section 51 CPC was not enacted to give protection to such a judgment debtor. This inference is not justified, because the onus to bring a case within one or more clauses of the proviso to Section 51 C.P.C. is on the decree-holder who wants the judgment-debtor to be arrested and detained in civil prison. The learned Judge relied on an observation in the case of <CITATION> ., AIR 1955 Mad 409, which reads as follows:--

"In my view it is perfectly open to a court to apply a judicial corrective to the extreme lengths to which the onus which Act 9 of 1935 casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing court on all the material placed before it to come to an inference as regards the statutory findings required by provisos (a) (2) and (b) of Section 51. Civil P. C. It is also no doubt true that the onus rests on the creditor to prove the debtor's ability to pay, and mere disbelief of the latter's statement that he had no means to pay is not sufficient. Where, however, there is sufficient material shown to warrant an inference, as in the present case, that the judgment debtor has actually been in the possession of substantial assets a few months prior to suit, an inference is perfectly justifiable that he has since the institution of the suit dishonestly concealed them and, furthermore, that he has since the date of the decree means to pay a substantial portion of it from assets he is concealing from the <ORG>."

Act 9 of 1935 referred to in this quotation appears to be a printing error for Act 21 of 1936. Learned Counsel for the appellant, however, contended, on the observation of their Lordships, that it is open to apply a judicial corrective to the extreme length to which the onus is cast on the decree-holder. In our opinion, the court has to interpret the law as it is and it cannot minimise the rigor of the onus. It is, of course, true that the court has to consider all the materials placed before it, in order to decide whether the onus has been discharged by the decree holder. In the Madras case, referred to above, there were sufficient materials which justified the inference that the decree-holder had discharged that onus and the judgment-debtor was liable to be arrested and detained in civil prison. In the instant case, however, there is no material at all on the basis of which it can be said that the decree-holder has discharged the onus. Though he was in a position to produce documents and witnesses in support of the general statement that the judgment-debtor and the other members of his family were still joint and that they had 30 bighas of land, he did not choose to produce the same. This general statement of his was rebutted by the evidence of the judgment-debtor. From the fact that by the compromise the plaintiff, who is now the decree-holder, agreed to forgo his claim against all the members of the family of the judgment-debtor except himself and his son, because they had taken the plea in the suit that the judgment-debtor and his son had separated from the other members long before, the reasonable inference is that the alleged separation had taken place some time before the compromise, even though it, might not have taken place 15 or 16 years back, as stated by the judgment-debtor in his evidence in the instant case. Further, the mere fact, that the judgment-debtor had not produced his khatians or any document is not sufficient to draw the inference that he had been concealing any property, particularly when he definitely stated in his examination in chief that he had not concealed any property.

So far as the question of onus is concerned, it is enough to refer to a Bench decision of <ORG>, in the case of <CITATION> 1955 All 402, wherein it was held that, whether the judgment debtor files any written objection or not after the service of notice on him, it is for the decree-holder to lead his evidence in the presence of the judgment debtor in support of his application and should have reference to the grounds which, according to the decree-holder, would justify the arrest of the judgment-debtor and and it will be only when the decree-holder has led prima facie evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison. Substantially, the same view was taken by Mr. Justice <NAME> in the case of <NAME> v. Municipal Commissioner. Muzaffarpur Municipality, 1964 BLJR 617 His Lordship held that it would not be a sufficient compliance with Section 51, if the decree-holder merely says vaguely that the judgment-debtor has movable and immovable properties from which he can pay the decretal amount.

3. From a persual of the judgment of the courts below, it is manifest that the finding that the decree-holder had been able to bring the case within the relevant clauses of the proviso to Section 51 of the Code of Civil Procedure is based on no evidence, and, therefore, we are entitled to take a different view in this case. In view of the foregoing discussions, we hold that there is absolutely no material on the record in the instant case to justify the arrest and detention of the judgment debtor appellant in civil prison.

4. The next question is whether the judgment-debtor had, by virtue of the contents of the compromise petition, waived the privilege conferred on him by the proviso to Section 51 of the Civil Procedure Code. The learned Judge has referred to Clause (d) of the compromice petition in which it was stated that on the failure of any of the instalments on the due date the entire remaining decretal amount would become payable at once and would be realisable from "the person and properties of defendants Nos. 3 and 4". It was argued by Mr. <NAME> on behalf of the appellant that the portion of Clause (d) of the compromise petition stated above does not mean that defendants 3 and 4 of the suit meant to forego this privilege. What they really meant was that in case of default, the decree-holder would be entitled to realise the dues from their person and properties in accordance with law. It may be mentioned here that defendant No. 4 is a minor son of defendant No. 3 who is the appellant in this court. Mr. <NAME>, on the other hand, contended that in Clause (d) of the compromise the appellant did forgo his privilege; but we are unable to agree with him and we accept the contention of Mr. <NAME>.

5. In the alternative, Mr. <NAME> submitted that the privilege conferred by the proviso to Section 51 of the Code of Civil Procedure on the judgment debtor cannot be waived at all. It is well settled that every one has the right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with, without Infringing any public right or public policy: See Maxwell on Interpretation of Statutes, Eleventh Edition, page 376. In the case of <CITATION> , AIR 1959 SC 149, it was held that, where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, It can be waived, provided such waiver is not forbidden by law and does not contravene public policy or public morale. It is apparent that waiver of the privilege conferred by the proviso to Section 51 of the Code does infringe the public policy, because by inserting this privilege for the judgment-

debtor in Section 51 of the Act of 1908, the <ORG> was guided by public policy, namely, that a debtor should not be put in the prison, when he is unable to pay his debt for reasons beyond his control.

Mr. <NAME>, however, submitted that some of the privileges conferred on the judgment-debtor by Section 60 of the Civil Procedure Code could be waived and, therefore, the privilege conferred by the proviso to Section 51 of the Code should also be waived. He has, like the court below, relied on four decisions, namely, <CITATION> , AIR 1950 Mad 284, <NAME> v. <NAME>, AIR 1927 Pat 233, <CITATION> , 24 Cal WN 575 = (AIR 1920 Cal 424) and <CITATION> , AIR 1946 All 432. In the Madras case, which was in respect of the Madras Buildings (Lease, Rent and Control) Act , 1946, there was a document of lease which expressly provided that, if the rent remained unpaid for two tenancy months after it became payable, the landlord would be entitled to re-entry upon the demised premises. Section 7(2)(i) of the Act, however, provided that the landlord may be entitled to apply for eviction even when there was default, in payment of a month's rent. The question raised was whether in a document of lease the landlord could make a contract for forgoing his privilege of going to court for eviction of the tenant on the letter's default in making the payment of a month's rent. It was held by their Lordships that such a contract was quite valid, as the privilege given to the landlord by section 7 of the Act could be waived, if such a waiver would not infringe any public right or public policy. It is obvious that the provision regarding the eviction on default of the payment of the rent for a month does not involve public policy.

The other three decisions deal with the waiver by the judgment-debtor in respect of his privilege under Section 60(1)(c) that his house could not be attached in execution of a money decree; and it was held by their Lordships that such a waiver was permissible. In the Calcutta case there were other properties also besides the house, but they were also not attachable in law. Sub-section (1) of Section 60 contains a list of properties which are liable to attachment and sale in execution of a decree and then there is a proviso to the effect that, in spite of the contents of that list, some properties shall not be liable to such attachment or sale. According to Clause (c) of the proviso, houses and other buildings belonging to an agriculturist and occupied by him cannot be attached. It is, therefore, apparent that it is for the judgment debtor to claim this privilege by proving that he is an agriculturist and occupies the house. It is, therefore, clear that the judgment-debtor can forgo such a claim. On the other hand, the proviso to Section 51 enjoins on the court itself not to order arrest and detention of the judgment debtor in prison unless the court, for reasons recorded in writing, is satisfied that the materials on the record of the case come within any of the clauses of the proviso. In other words, it is a mandate to the court by the <ORG> as a matter of public policy with a view to implement its object by protecting debtors who cannot pay their debts for reasons beyond their control. Irrespective of the fact whether the judgment debtor appears or not, the court has to satisfy itself, before issuing any warrant of arrest against the judgment debtor, whether the materials on the record bring the case within any of the clauses of the proviso to Section 51 of the Code." Proviso to Section 60 of the Code, however, shows that it is for the judgment debtor to place materials before the court to bring his case within the relevant clauses. The distinction between the two therefore, is obvious.

In this connection, Section 3 of the Limitation Act may be seen. This section lays down that, subject to the provisions contained in Sections 4 to 25 , every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Here too the <ORG> has given a mandate to the court to dismiss suits, appeals or applications filed after the prescribed period of limitation even though the other party does not take up the plea of limitation. It is by now well settled that the court must dismiss a suit as barred by limitation even though the defendant does not raise such a plea or press the same. In view of the foregoing discussions, we are unable to agree with the learned Additional District Judge and hold that the judgment-debtor could not waive the privilege conferred on him by Section 51 of the Code of Civil Procedure.

6. In the result, the appeal is allowed and the orders of the courts below are set aside. In the circumstances of the case, the parties will bear their own costs through out.


CASE NO.: Appeal (crl.) 1302 of 2006 PETITIONER: <NAME> @ Mubarik Hussain Appellant RESPONDENT: State of Rajasthan Respondent DATE OF JUDGMENT: 12/12/2006 BENCH: Dr. <NAME> & S.H. KAPADIA JUDGMENT:

J U D G M E N T (Arising out of SLP (Crl.) No. 4765 of 2006) Dr. ARIJIT PASAYAT, J Leave granted.

Challenge in this appeal is to the judgment rendered by <ORG> of <ORG> at Jodhpur confirming the death sentence awarded to the appellant for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ' IPC '). <ORG> had imposed a death sentence and, therefore, made a reference for confirmation of death sentence by <ORG> in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code').

Appellant also filed an appeal and both the case under reference and the appeal were taken up together and disposed of by a common judgment.

According to the prosecution accused killed his wife- <NAME>, three daughters namely, <NAME>, <NAME> and <NAME> @ Munni aged 9 years, 6 years and 4 years respectively and son <NAME> aged 2 = years. The Additional Sessions Judge (Fast Track), <NAME> had found the charge for commission of offence under Section 302  to have been proved and imposed the death sentence.

Prosecution version in a nutshell is as follows: On 10.12.2005 at about 6 A.M. <NAME> (PW-1) submitted a written report at <ORG>, <NAME> stating inter alia that In the evening of 9.12.2005 the appellant <NAME> gave beating to his wife and children. But they were rescued on his intervention. He described <NAME> as a person of notorious character. It was further averred that in the morning at about 5 a.m. his brother appellant <NAME> came out of the house shouting and making declaration that he has killed all the five bastards by strangulation one by one. He killed his wife <NAME>, daughters <NAME>, <NAME>, <NAME> @ Munni and son <NAME>. The dead bodies were found placed on the mattresses tying the thumbs of each leg of the dead bodies by thread. On this information police registered a case for offence punishable under Section 302 I.P.C. and proceeded with investigation. All the dead bodies were sent for postmortem. <ORG> consisting of three doctors conducted the postmortem of all the five dead bodies. The appellant was arrested. After usual investigation police laid charge-sheet against the appellant for offence punishable under Section 302 I.P.C. On being committed the appellant was tried of the charge of offence punishable under Section 302 I.P.C. by the court of Additional Sessions Judge (Fast Track), <NAME>. The trial court on consideration of the evidence led by the prosecution found the appellant guilty of offence under Section 302 I.P.C.

<ORG> relied upon the following circumstances to find the accused guilty.

(1) Extra judicial confession made by the appellant before <NAME> (PW-1), <NAME> (PW-2), <NAME> (PW-3) and <NAME> (PW-4).

(2) The presence of the appellant in the house wherein the alleged incident took place. (3) Recovery of ear ring of the wife from the possession of the appellant.

At the time of hearing the reference and the appeal the primary stand taken by the accused appellant was that the extra judicial confession relied upon by the prosecution is not correct. It was submitted that the alleged confession publicly standing on a platform is highly improbable. <ORG> found that the evidence of <NAME> (PW-1) and <NAME> (PW-

2) was cogent and credible. PW-1 was a neighbour and PW-2 is the brother of the accused-appellant. There is no reason as to why they would falsely implicate the accused-appellant by making an untruthful statement. Added to that, evidence of PW-1 about the behaviour of the appellant was relevant. The third circumstance was the recovery of ornament from the possession of the appellant. The circumstances highlighted by the prosecution according to <ORG> presented a complete chain of circumstances. Though it was submitted by the accused-appellant that even if the prosecution case was accepted in its totality, there was no special reason to impose the death sentence. <ORG> considered this plea in the background of what has been stated by this Court in <CITATION> (1983 (3) SCC 470) and <CITATION> (1980 (2) SCC 684). Reference was also made to the decision in <CITATION> (2003 (8) SCC 224). <ORG> was of the view that the appellant had acted in a most cruel and diabolic manner. He deliberately planned and meticulously executed the same. There was not even any remorse for such gruesome acts. On the contrary, he was satisfied with what he had done. He made a declaration of his act of abusing his wife and children. Accordingly, the death sentence was confirmed.

The stand taken by the accused-appellant before <ORG> was re-iterated in this appeal. Additionally, it was stated that the accused was in a state of drunkenness and did not know the consequences of what he did and, therefore, death sentence should not have been awarded.

On the contrary, learned counsel for the <ORG> submitted that the cruel and diabolic acts of the accused show that he does not deserve any leniency so far as the sentence is concerned. Drunkenness cannot be an excuse for such cruel and inhuman acts.

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. ( <CITATION> (AIR 1977 SC 1063); <CITATION> (AIR 1956 SC 316); <CITATION> (AIR 1983 SC 446); <CITATION> and Ors. (AIR 1985 SC 1224); <CITATION> (AIR 1987 SC 350); <CITATION> . (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. <CITATION> (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in <CITATION> . , wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

<CITATION> . (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

<CITATION> , (AIR 1992 SC

840), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir <NAME> in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by <ORG> as far back as in 1952.

In <NAME> and <NAME> of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

A reference may be made to a later decision in <CITATION> , (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The only other thing which needs consideration is whether death sentence as awarded by trial Court is proper.

Section 302  prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that <ORG> is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code , there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3) . There is another provision in the Code which also uses the significant expression "special reason". It is Section 361 . Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360 . Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360 , the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors, Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) of the old Code, by the Criminal Procedure Code  (Amendment) Act , 1955  which came into force on 1.1.1956, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code by Act 26 of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the court. The court must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC . This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence "special reasons" are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in the Code that the judicial decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

This Court in <CITATION> . (1974 (4) SCC 443) has observed : (SCC pp. 453-54, para 26) "26. Let us crystallize the positive indicators against death sentence under Indian law currently. Where the murderer is too young or too old, the clemency or penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 , read with Section 149 , or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out of life."

In <NAME> case (supra) it has been observed that: (<ORG> p. 751, para 209) "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; and (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is <NAME> case (supra).

In <NAME> (supra) and <NAME> (supra) cases the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

In <NAME> case (supra) it was observed: (SCC p. 489, para 39) The following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

The following guidelines which emerge from <NAME> case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (SCC p. 489, para 38):-

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

Section 85  deals with act of a person incapable of judgment by reason of intoxication caused against his will. As the heading of the provision itself shows, intoxication must have been against his will and/or the thing which he intoxicated was administered to him without his knowledge. There is no specific plea taken in the present case about intoxicant having administered without appellant's knowledge. The expression "without his knowledge" simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant. The defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. Basically, three propositions as regards the scope and ambit of Section 85  are as follows:

(i) The insanity whether produced by drunkenness or otherwise is a defence to the crime charged;

(ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and

(iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

In the instant case, the plea of drunkenness can never be an excuse for the brutal, diabolic acts of the accused. <ORG> and <ORG> have rightly treated the case to be one falling in rarest of rare category thereby attracting the death sentence.

The brutal acts done by the accused-appellant are diabolic in conception and cruel in execution. The acts were not only brutal but also inhuman with no remorse for the same. Merely because he claims to be a drunk at the relevant point of time, that does not in any way get diluted not because of what is provided in Section 85  but because one after another five lives were taken and that too of four young children. This case squarely falls under the rarest of rare category to warrant death sentence.

The appeal deserves dismissal which we direct.


ORDER

1. Two learned Judges of this Court in CST v. <NAME>, held that Explanation II to <CITATION> of the UP. Sales Tax Act, 1948 could not be given retrospective effect. The attention of the Bench was not drawn to the earlier judgment of a Bench of four learned Judges of this Court in <CITATION> ., where this provision was held to be retrospective. For the purposes of these appeals, it is relevant to consider whether or not the said Explanation has retrospective effect. It is appropriate, in the circumstances, that the appeals should be heard by a Bench of five learned Judges. The papers shall be placed before the Hon'ble the Chief Justice for appropriate directions.


CASE NO.: Appeal (civil) 12845 of 1996 PETITIONER: <ORG>. Vs. RESPONDENT: <ORG> & ORS. DATE OF JUDGMENT: 21/02/2001 BENCH: S. Rajendra Babu & <NAME>. JUDGMENT:

J U D G M E N TL...I...T.......T.......T.......T.......T.......T.......T..J RAJENDRA BABU, J. :

The first respondent, which is <ORG>, filed a complaint against the appellant for unfair labour practices under Section 28 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (for short the Act) under Item 1(a) by way of victimisation; (b) not in good faith, but in the colourable exercise of the employers right; (d) for patently false reasons; and (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste of Scheduled IV of the Act. Before <ORG> at Bombay it was claimed by the respondent herein that the statutory duty of the appellant is not only to keep the factory premises clean, hygienic and dust free but also the surroundings thereof in terms of Schedule M of Drugs & Cosmetics Act , 1940 and the employees engaged for such process are, therefore, employees of the company itself; that, in fact, the appellant had been directly employing the workmen to attend such work and the appellant used to appoint such persons on casual or temporary basis and terminate their services from time to time with a view to depriving them of the permanent status and wages and other benefits as applicable to permanent workmen of the appellant; that this situation continued till the year 1990-91 when such casual or temporary workmen engaged in cleaning process joined the respondent-Union in order to protect their rights for permanency in the appellant-company; that since about 1991 the appellant has been engaging persons but on paper they are shown as contract workmen working for contractor, respondent No. 2 herein; that the second respondent is only a name lender whereas the appellant is the real employer of the workmen; that the appellant through the second respondent terminated the services of such workmen employed through second respondent the moment the persons completed 11 months of services thereby depriving them of the status of permanent workmen; that the entire effort being made to avoid giving permanency to the workmen concerned with sanitation, sweeping and in keeping the factory premises and surrounding thereof in a hygienic condition. It is further alleged that there are about 30 such workmen who were engaged in such activities; that in keeping with the past practice, the respondent had reasons to apprehend that the moment any of the workmen completes 11 months of service, the services of such employee would be terminated. It is submitted on behalf of the respondent that the recruitment of such workmen is done by the appellant and upon selection such workmen are sent to appellants doctor for medical check up. However, they are not given any appointment letters but are given attendance cards by the second respondent only to show that they are the employees of the second respondent and not that of the appellant. They claimed that they are the workmen working under the direct supervision, control and direction of the officers of the appellant who assign work to them and they are granted leave by the officers of the appellant and are also paid by the appellant; that the company is the real employer apart from being the employees because of statutory obligation of the company to employ such workmen; that, however, the appellant denied the relationship of employer-employee from various stages; that such denial of relationship is only to deprive the workmen of permanency in the company and payment of wages as are applicable to the permanent workmen of the company; that the company has denied this relationship as employer and thus this cause of action has arisen in this complaint; that the appellant has engaged in unfair labour practices in terms of Act and it be directed to cease and desist from continuing to do so.

The appellant, apart from denying that it is guilty of unfair labour practices under Items 1(a), (b), (d) and (f) of Scheduled IV of the Act, contended that the persons listed in Exhibit A and referred to in the complaint are not the employees of the company nor are they employed ostensibly through the second respondent. The appellant categorically denied that they are the employees of the company and there has never been any employer-employee relationship between them and, therefore, the question of terminating the services of the employees employed by the second respondent would not arise. The appellant contended that since it is engaged in the manufacture of pharmaceutical products for which a high degree of cleanliness and hygiene is required to be maintained and, therefore, it is necessary for the company to seek the services of the specialised agencies and this practice has been in vogue for several years and in the last eight year such services have been obtained from three different agency and they are (i) <ORG>, (ii) <ORG> and (iii) <ORG>. The second respondent had been engaged as an agency for rendering house- keeping and hygiene services and the terms of the engagement were set out in a letter dated 28.2.1992. Pursuant to such rendering of services the second respondent had engaged services of the persons named in Exhibit A. The appellant contended that the named persons in the Exhibit A to the complaint are those who have joined the second respondent only during the last 3 to 8 months. The appellant denied that it interviewed and selected the persons to be employed by the second respondent, but it was expected that persons employed by the second respondent were subjected to periodical medical examination in order to comply with the statutory requirements for maintaining proper hygiene integrity of the manufacturing processes of the company. It is also denied by the appellant that the workmen are working under the direct control and supervision of the officers of the company and there is any employer-employee relationship between them. It was submitted that the second respondent pays wages to those employees in accordance with or more than the minimum wages. It is also contended that the appellant has obtained registration as required under the earlier Act and the copy of which was produced in the proceedings. The second respondent supported the contentions made by the appellant.

<ORG> on the basis of these pleadings framed the following issues: ISSUES@@ JJJJJJ

1. Does the complainant prove that the company indulged in unfair labour practices as alleged ?

2. ---------deleted---------

3. Does he prove that he is entitled the relief as prayed for?

4. What order ?

ADDITIONAL ISSUES 3A. Whether the complaint is maintainable? 3B. Whether the complainant prove that the names in Annexure A are the workmen of the Respondent No.1? 3C. Whether this <ORG> has jurisdiction to entertain the complaint?

<ORG>, after elaborate consideration of the pleadings and evidence on record, came to the following@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ conclusion:@@ JJJJJJJJJJJ It can be seen from the evidence on record and the documents filed by the parties that different contractors engaged by the first respondent company and these workmen had never worked in the first respondent company but they had worked through second respondent. Hence, the arrangement between the respondent No. 1 & 2 can be said to be legal and bonafide. The second respondent has also obtained licence No. 2796 under the provisions of Contract Labour (Regulation & Abolition) Act, 1971 which is at Exh.C-14 at page 5. The respondent No. 2 has its own separate and independent establishment which has been registered under the provisions of Bombay Shops and Establishment Act , 1948. It is also independently and separately registered under the provisions of Employees Provident Fund and Miscellaneous Provisions Act . These documents are produced At Sr.No.10 of Exh.C-14. From these documents, it is crystal clear that it is a separate entity and there is a contract between the first respondent and second respondent in respect of sweeping and cleaning in the company premises.

After further examination, it was held that the arrangement between the appellant and the second respondent can only be termed as legal and bona fide and hence the matter of abolition of contract labour in the process of house-keeping and maintenance of the premises of the factory can be agitated only under the provisions of Contract Labour (Regulation and Abolition) Act, 1970. Therefore, <ORG> dismissed the complaint filed by the first respondent-Union. When the matter was carried by revision under the Act <ORG> dismissed the revision application by reiterating the views of <ORG>.

In the writ petition <ORG> of <ORG> took a different view of the matter and allowed the complaint. Before <ORG> several decisions were referred to including the decision of this Court in <CITATION> ., 1995 Supp. (1) SCC 175. In that case the complaint of the <ORG> was that 21 workmen who were working in one of the canteens of the respondent-company were not given the service conditions as were available to the other workmen of the company and there was also a threat of termination of their services. This Court proceeded to consider the case on the basis that their complaint was that the workmen were the employees of the company and, therefore, the breach committed and the threats of retrenchment were cognizable by <ORG> or <ORG> under the Act. Even in the complaint no case was made out that the workmen had ever been accepted by the company as its employees. On the other hand, the complaint proceeded on the basis as if the workmen were a part of the work force of the company. This Court noticed that the workmen were never recognised by the company as its workmen and it was the consistent contention of the company that they were not its employees. In those circumstances, <ORG> having dismissed the complaint and <ORG> having upheld the same, this Court stated that it was not established that the workmen in question were the workmen of the company and in those circumstances, no complaint could lie under the Act as was held by the two courts. In that case it was the admitted position that the workmen were employed by a contractor, who was given a contract to run the canteen in question. Thereafter, <ORG> adverted to the decision of this Court in <CITATION> ., 1995 (5) SCC 27, wherein it was noticed that the first question to be decided would be whether an industrial dispute could be raised for abolition of the contract labour system in view of the provisions of the Act and, if so, who can do so. <ORG> was of the view that the decision in <CITATION> . (supra) would make it clear that such a question can be gone into and that the observations would not mean that the workmen had to establish by some other proceedings before the complaint is filed or that if the complaint is filed, the moment the employer repudiates or denies the relationship of employer and employees the court will not have any jurisdiction. The observation of this Court that it is open to the workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do so has to be understood in the light of the observations of this Court made earlier. <ORG> further held that the judgment in <CITATION> . (supra) was confined to the facts of that case. On that basis <ORG> proceeded to further consider the matter and reversed the findings recorded by the two courts and gave a finding that the workmen in question are the workmen of the appellant-company.

In this Court it was submitted that <ORG> had proceeded entirely on wrong lines. <CITATION> (supra) the question raised was whether the workers whose services were engaged by the contractors but who were working in the thermal power station of <ORG> at Ukai can legally claim to be the employees of <ORG>. The industrial tribunal had adjudicated the matter and held that the workmen concerned in the reference could not be the workmen of the contractors and, therefore, all the workmen employed by the contractor should be deemed to be the workmen of the <ORG>. The industrial tribunal also gave consequential directions to the <ORG> for payment of wages, etc. The award of the industrial tribunal was upheld by <ORG> in appeal. The contention put forth before this Court was that after coming into force of the Act it is only the appropriate Government, which can abolish the contact labour system after consulting the Central <ORG> or the State <ORG>, as the case may be, and no other authority including the industrial tribunal has jurisdiction either to entertain such dispute or to direct abolition of the contract labour system and neither the appropriate Government nor the industrial tribunal has the power to direct that the workmen of the erstwhile contractor should be deemed to be the workmen of the <ORG>. <ORG> or the industrial tribunal, as the case may be, can only direct the abolition of the contract labour system as per the provisions of the Act but it does not permit either of them to declare the erstwhile workmen of the contract to be the employees of the principal employer. As to what would happen to an employee engaged by the contractor if contract employment is abolished is another moot question yet to be decided by this Court. But that is not a point on which we are called upon to decide in this matter.

contract covered by But one thing is clear - if the employees are working under a the Contract Labour (Regulation & Abolition) Act then it is clear that the labour court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate Government to abolish the same. If the case put forth by the workmen is that they have been directly employed by the appellant- company but the contract itself is a camouflage and, therefore, needs to be adjudicated is a matter which can be gone into by appropriate industrial tribunal or labour court. Such question cannot be examined by the labour court or the industrial court constituted under the Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employer-employee relationship between the parties, the question of unfair practice cannot be inquired into at all. The respondent union came to <ORG> with a complaint that the workmen are engaged by the appellant through the contractor and though that is ostensible relationship the true relationship is one of master and servant between the appellant and the workmen in question. By this process, workmen repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contract with one and establishment of a legal relationship with another can be done only in a regular industrial tribunal/court under the I.D.Act.

<NAME>, the learned senior Advocate appearing for the respondent, submitted that under Section 32 of the Act the labour court has the power to decide all matters arising out of any application or complaint referred to it for the decision under any of the provisions of the Act. Section 32 would not enlarge the jurisdiction of the court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the industrial tribunal or the labour court has no jurisdiction to deal with a particular aspect of the matter, Section 32 does not give such power to it. In the cases at hand before us, whether a workmen can be stated to be the workman of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workman in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act. In cases of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned elaborate consideration of the question as to relationship of employer-employee cannot be gone into. If at any time the employee concerned was indisputably an employee of the establishment and subsequently it is so disputed, such a question is an incidental question arising under Section 32 of the Act. Even the case pleaded by the respondent-Union itself is that the appellant establishment had never recognised the workmen mentioned in Exhibit A as its employees and throughout treated these persons as the employees of the second respondent. If that dispute existed throughout, we think, the labour court or the industrial court under the Act is not the appropriate court to decide such question, as held by this Court in <CITATION> . (supra), which view was reiterated by us in <CITATION> ., 2001 (1) SCALE 82.

However, <NAME> very strenuously contended, by adverting to the scope of the Payment of Wages Act , 1936 and the scope of Section 32C(2) of the Industrial Disputes Act, that these questions can be gone into by the courts and, in this context, he relied upon the decision of <ORG> in <CITATION> , <CITATION> , 59 BLR 892. In determining whether the wages had been appropriately paid or not, the authority under the Payment of Wages Act was held to have jurisdiction to decide the incidental question of whether the applicant was in the employment of the railway administration during the relevant period. It means that at one time or the other the concerned employee was indisputably in employment and later on he was found to be not so employed and in those circumstances, the court stated that it was an incidental question to be considered.

<ORG> v. Next decision relied upon by <NAME> is <ORG>, 1964 (3) SCR 140, to contend that even in cases arising under Section 33C(2) of the Industrial Disputes Act the scope, though very limited, certain incidental questions can be gone into like a claim for special allowance for operating adding machine which may not be based on the Sastry Award made under the provisions of Chapter V-A. The learned counsel pointed out that in the event we were to hold that it is only in clear cases or undisputed cases the labour court or the industrial tribunal under the Act can examine the complaints made thereunder, the whole provision would be rendered otiose and in each of those cases provisions of the Bombay Industrial Relations Act, 1946 or the Industrial Disputes Act will have to be invoked. We are afraid that this argument cannot be sustained for the fact that even in respect of claims arising under Section 33C(2) appropriate dispute can be raised in terms of Section 10 of the Industrial Disputes Act and that has not been the position in the present case. Nor can we say that even in cases where employer-employee relationship is undisputed or indisputably referring to the history of relationship between the parties, dispute can be settled and not in a case of the present nature where it is clear that the workmen are working under a contract. But it is only a veil and that will have to be lifted to establish the relationship between the parties. That exercise, we are afraid, can also be done by the industrial tribunal under the Bombay Industrial Relations Act, 1946 or under the Industrial Disputes Act . Therefore, we are afraid that the contention advanced very ably by <NAME> on behalf of the respondents cannot be accepted. Therefore, we hold that <ORG> went far beyond the scope of the provisions of the Act and did not correctly understand the decisions of this Court in <CITATION> (supra) and <CITATION> . (supra). The correct interpretation of these decisions will lead to the result, which we have stated in the course of this order In the view we have taken on the question of jurisdiction of <ORG> under the Act, the decision given by <ORG> on other questions need not be considered.

In the circumstances, we allow this appeal, set aside the order of <ORG> and restore that of the industrial court affirming the order of the labour court. No costs.

[ <NAME> ] [S.N. Phukan]@@ JJJJJJJJJJJJJ FEBRUARY 21, 2001.