. ,

BHAGABANDAS AGARWALLA A

BHAGW AND AS KANU & ORS.

February 25, 1977

[P. N. BHAQWATI AND S. MURTAZA FAZAL ALI, JJ.] B Transfer of P1operty Act, S. 106, Notice to quit, whether should be construed in ai hyper-critical manner.

The appellant filed a suit for evicting his tenant Bhagwandas Kanu etc. after giving them a notice to quit. The Trial Court dismissed the suit but on appeai, the First Appellate Court passed a decree for eviction against the respondents.

In second appeal before the High Court, the respondents assailed the. validity of the notice to quit, on. the ground that it did not conform with the requirements C of 5', 106 of the Trahsfer of Property Act. The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the month of the tenancy, and was i:q.valid.

Allowing the appeal by special leave, the Court,

HELD : A notice to quit must be consVUed ut res n1agis valeat quani pereat.

It must not be read in a hyper.critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be D construed in a common sense way. The notice to qui required the respondents to vacate "within the month of October 1962", otherwise they would be treated as trespassers from 1st November, 1962.

This makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any -earlier point of time during the currency of that month.

[76 D, F, 77E]

Sidebothan1 v. Holland (1895) 1 Q.B. 378; Harihar Banerji v. Ramsashi Roy 45 I.A. 222, applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2080 of 1968.

Appeal by Special Leave from the Judgment and Order dated 11-4-68 of the Assam and Nagafand High Court in Second Appeal No. 98/65.

G. L. Sanghi and K. J. John for the Appellant.

S. K. Nandy and G. S. Chatterjee for the Respondent.

The Judgment of the Court was delivered by

BHAGWATI, J., This appeal by special leave raises a short question relating to the validity of a notice to quit given by the appellant terminating the tenancy of the respondents.

The appellant, as landlord, filed a suit for eviction against the respondents as tenants, after giving ' a notice to quit dated 25th September, 1962.

The Trial Court dismissed the suit but on appeal, the First Appellate Court reversed the judgment of the Tritt! Court and passed a decree of eviction against the respondents.

The respondents preferred a second appeal to the High Court and the only question debated before the High Court was in regard to the validity of the notice to quit. There were two grounds on which the notice to quit was assailed as invalid. The first is immaterial since the decision of the High Court negativing it has not been challenged before us on behalf of the respondents.

The second was

SUPREME COURT REPORTS ll 9771 3 s.c.R.

that the notice to quit was invalid as it was not in conformity with the requirements of section 106 of the Transfer of Property Act. That section says that in the absence of a contract or local law or usage to the contrary, a lease from month to month shall be terminable, "on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy". The argument of the respondents before the High Court was that the notice to quit did not expire with the end of the month of the tenancy and was hence invalid. This argument found favour. with the High Court and it held that the notice to quit was not clear and unambigtious and was "open to doubt as to the date of determination of the tenancy" and did not terminate the tenancy on the expiration of the month of the tenancy and was, therefore, invalid and in this view it dismissed the suit of the appellant. The appellant thereupon preferred the present appeal with special leave obtained from this Court. , ·

The only question which arises for determination in this appeal is whether the notice to quit given by the appellant to the respondents was invalid as not being in conformity with the requirements of section 106 of the Transfer of Property Act. The notice to quit, so far as material, was in the following terms :

"You arc hereby informed by this notice that you wHI vacate the said house for our possession within the month of October 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house." The tenancy was admittedly a monthly tenancy and hence the notice to quit could not be _said to be valid under section 106 of the Transfer of Property Act unless it expired with the end of the month of the tenancy. The view taken by the High Court was that since by the notice to quit the appellant called upon the respondents to vacate the premises "within the month of October 1962" and not on the expiration of that month, the notice to quit was not in accordance with law and did not operate to determine the tenancy of the respondents. The question is whether this view taken by the High Court can be sustained.

Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Side- botham v. Holland('), "ought not to turn on the splitting of a straw".

It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a commonsense way.

See Harihar Banerji v.

Ramsashi Roy('). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation.

It is indisputable that under section 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy, or in other words, it must terminate the tenancy with effect

(1) [18951 I Q.B. 378.

(2) 45 I.A. 222.

-- .,._

• '

BHAGABANDAS AGARWALLA v. BHAGWANDAS KANU (Bhagwati, !.) 77

from the expiration of the month of the tenancy. If it terminates the tenancy with effect from an earlier date, it would be clearly invalid.

Now, here the notice to quit required the respondents to vacate the premises "within the month of October 1962" and intimated to them that otherwise they would be "treated as trespassers from !st November"

in respect of the premises. The question is : what is the meaning and effect of the words "within the month of October 1962" in the context in which they are used in the notice to quit? Do these words mean that the tenancy of the respondents was sought to be terminated at a date earlier than the expiration of the month of October 1962 and they were required to vacate the premises before such expiration ? We do not think so. When the notice to quit required the respondents to vacate "within the month of October 1962", what it meant was that the respondents could vacate at any time within the month of October 1962 but not later than the expiration of that month. The last moment up to which \he respondents could, according to the notice to quit, lawfully continue to remain in possession of the premises was the mid-night of 31st Octob€r, 1962. We fail to see any difference between a notice asking a tenant to vacate "within the month of October 1962" and a notice requiring a tenant to vacate latest by the mid-night of 31st October, 1962, because in both cases, the tenant would be entitled to occupy the premises up to the expiration of 31st October, 1962 but not beyond it. This position would seem to follow logically and incontestably, as a matter of plain natural construction, from the use of the words "within the month of October 1962" without any thing more, but here it is placed beyo_nd doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st November, 1962. This makes the intention of the afithors of the notice clear that they are terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. If the respondents do not vacate the premises within the month of October 1962, they would be treated as trespassers from 1st November, 1962 and not from any earlier date, clearly implying that they would lawfully continue as tenants up to the expiration of the month of October 1962.

The tenancy was, therefore, sought to he determined on the expiration of the month of October 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by section I 06 of the Transfer of Property Act. It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the mid-night of 31st October, 1962.

We accordingly allow the appeal, set aside the order of the High Court and restore the decree for eviction passed against the respondents.

Since the respondents have been in possession of the premises for a Jong time, it is but fair that they should have some reasonable time to vacate the premises. Hence we direct that the decree for eviction shall not be executable against the respondents up to 31st October, 1977 on condition that the respondents continue to pay to the appellant regularly from month to month an amount equivalent to the monthly rent as and by way of compensation for use and occnpation of the permises. There will be no order as to costs throughout.

M.R.

Appeal allowed.

BHAGABANDAS AGARWALLA

A

BHAGW AND AS KANU & ORS

February 25, 1977

S. MURTAZA FAZAL ALI, JJ.

S. 106

CIVIL APPELLATE JURISDICTION

G. L. Sanghi

K. J. John

S. K. Nandy

G. S. Chatterjee

BHAGWATI

Tritt! Court

section 106

Transfer of Property Act

section 106

Transfer of Property Act

section 106

Transfer of Property Act

Lindley

section 106

Transfer of Property Act

1st November, 1962

Transfer of Property Act

31st October, 1962

31st October, 1977


FIRM PANJUMAL DAULATRAM v.

SAKHI GOPAL

May 3, 1977

[V, R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J

Mudhya Pradesh Accommodation Control Act, 1961 S. 12(l)(e) & (f)-

' Scope of-Bona fide requiren1ent-Requireme11t of the land-lord of ai:C01111not1ation of both residential and 11011-residential part of the building, if proved entitled eviction of the tenant.

Under sub clauses (e) and (f) of S. 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, a landlord can evict a tenant, if the residential and the non-residential accommodation respectively let out to the latter is C required bona fide by him for occupation as a residence and for the purpose of continuing or starting his business.

Accommodation unP.er the Act _means any building or part of a building, whether residential or non-residentiul.

The appellanttenant was inducted in by the respondent in 1955 for the dual purposes of residential and nonresidential purpose of running a cloth shop.

fhe landlord, bona fide required the building for his residence and also for starting bis business of running a Chemist shop. The Eviction Suit filed by him was dismissed by the trial court, but the appellant and the High Court D, granted him the eviction decree.

Discussing the appeal by special leave, the Court.

HELD : The residential portion as well as a nonresidential portion are parts of the building and each is an accommodation by definition.

The land lord is entitled to eviction of the "accommodation" if he makes out a bona fide residential and nonresidential requirement of the portions.

In the instant case the contract was integral but had dual purpose. The landlord has put i' forward dual requirements which neatly fit into S. 12 (I) (e) and (f) of the J\iadhya Pradesh Accommodation Control Act, 1961. The findings of th~ -t. ;:;, ppellate Court regarding the bona fide requirement of the landlord, not having been challenged in the High Court and in this Court in the memorandum of Appeal, the consequence viz. eviction is inevitable. [769 EG]

S. Sanyal v. Gianchand (1968] I S.C.R. 536, distinguished.

lThe Court, however granted time to the appellants for vacating the build F ing till 1-1-1978, in terms of equity].

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 991/76.

(Appeal by Special Leave from the Judgment and Order dated the 21.1.1976 of the Madhya Pradesh High Court in Second Appeal No. 415 of 1971)

S. Choudhury, D. N. Mishra, 0. C. Mathur and Shri Narain for the appellant.

G. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent.

The Judgment of the Court was delivered by

KRISHNA IYER, J. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non-residential

purposes resulted in dismissal by the! trial Judge.

But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction.

The tenant challenged the appellate decree before the' High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.

A short point has been raised which deserves only a short answer.

Since we agree with the Hi~ Court which in tum has agreed with the first appellate court, , our judgment can afford to be brief,

A statement of necessary facts may now be given.

The landlord had let out the premises, which is a storeyed building, to be tenant as per Ex. P-1 of 1955.

The significant clause irt the lease deed runs thus :

"1 xxx

2. I take your house for "my own use i.e. for opening a cloth shop and for residential purposes and I will net sublet your house to anybody.

xxx xxx xxx xxx."

The tenant has thus put the building to business and residential purposes.

The landlord, who is an M. Sc., claimed the building back on the scorn that he wanted to run a medical store on the ground floor---a non-residential purpose---and sta:ron the first floor with his wife-a residential purpose.

Thus the acommodation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above.

The final court of fact has held that the landlord needs the building for his chemist's shop and for his residential use.

The High Court in Second Appeal has upheld this finding and added that

"the finding as to his bonafide requirement was rightly not challenged before me ...... ' The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing."

This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned, in the memorandum of appeal to this Court.

It must therefore be taken that the bonafide need of the landlord is validly made out.

The short point that survives is as to whether the composite purposes of the lease would put it out of the ground, set out for eviction under s. 2 of the Madhya Pradesh Accommodation Control Act, 1961.

The said Act defines 'accommodation' thus :

H " 'accommodation' means any building or part of a building, whether residential or non-residential and includes,-- xx xxx xxx."

FIRM PANJUMAL v. SAKHI GOPAL (Krishna Iyer, J.) 769

It follows that an accommodation can be residential, non-residential A or both. S. 12 bars an actiun of eviction of a tenant from any accommodation except on one or more of the grounds set out therein.

S. 12(l)(e) and (f), bearing on the present case, may be appropriately ! extracted here :

, •• "'

"12. Restriction on eviction of ten en ts (1)

(a) to (d) B x x x x x

( e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in the occupation in the city or town concerned;

(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose

'of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner there. of or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned; . xxx xxx xxx."

The residential portion is a part of the building and is an accommodation by definition.

The non-residential portion is also a part of the building and is an accommodation by definition.

The lease has been given for residential as well as non-residential purposes.

The landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement.

Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement.

We havel already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non-residential require. ments.

Therefore, nothing more can be done in defence of the tenant in the light of the present law.

Counsel contended that in a decision of this Court, viz, S. Sanyal

v. Gian Chand,('). it has been held that it is not permissible for the court to split up a contract in an eviction proceeding.

We agree.

There is no question of splitting up of the contract in the present case, as is abundantly plain from what we have stated.

The contract was integral but had dual purposes.

The landlord has put forward dual requirements which neatly fit into s. 12(1 )(e) and (f). The consequence is inevitable that the eviction order has to be upheld.

--olr1~9~6Bl ~1 =s.=c~.R-. si~6-.

It i~ seen; that the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years.

It is therefore but fair that the tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation.

In our towns where scarcity .of accommodation i~ the rule it is not that easy to secure alternative premises. Taking: due note of this reality, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978.

Parties will bear their respective costs.

S.R.

Appeal dismissed. •

~ .

>. 41

" (

FIRM PANJUMAL DAULATRAM

SAKHI GOPAL

May 3, 1977

R. KRISHNA IYER

R. S. SARKARIA

JASWANT SINGH, JJ

S. 12(l)(e)

S. 12(1)

S. 12

Pradesh Accommodation Control Act, 1961

S. Choudhury

D. N. Mishra

0. C. Mathur

Narain

G. L. Sanghi

V. K. Sanghi

R. K. Sanghi

S. S. Khanduja

KRISHNA IYER

s. 2

S. 12

S. 12(l)(e)

s. 12(1 )(e)

1st January, 1978


JOSEPH PETER

STAIB OF GOA, DAMAN AND DIU

May 4, 1977

[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.J

C'rirninal Procedure Code, .1973. (Act II of 1974), Section 354(3)-Discretionary power to choose fretween capital sentence and life tenn is a limited one-Leaie should. be. refused when it is difficult to fault the court which has lXercised such a po_wer under Art. 136 of the Constitution.

Crifninal Procedure Code, 1898, Section 377-Scope of .

. .Goa, Daman and Diu (Judicial Commissioner's Court) Regulation. 1963-Regulation 8(1) does 1wt bar the referred jurisdiction of the Judicial C Com1nissioner's Court. - -

Sentence-Extenuating circumstances--Circumstance that the accused is a young man or that the sentence of death has been haunting him for long alone cannot entitle him for judicial cle1ne11cy. -

The petitioner was convicted for the offence of murder under s. 302, I.P.C. and sentenced to death by the Trial Court. The Judicial Commissioner, Goa confirmed the death sentence in the referred trial under s. 374 of the 1898 Code of Criminal Procedure.

Dismissing the special leave petition to appeal, the Court.

RELD ·:- ( 1) Discretion to choose between the capital sentence and life term under s. 354(3) of the 1973 Code of Criminal Procedure is limited. -Jf the offence ha&-- been perpetrated with attendant aggravating circumstances, if the pefpetrator disclOses an eXtremely depraved state of mind and diabolical E trickery in committing. the homicide; accompanied by brutal dealing with the cadaver, infliction of death Penalty 'cannot be avoided. Special leave under Art. 136 of the Constitution cannot be granted when it is difficult to fault the court on any ground, statutory ~-precedental. {772 G-H, 773 A]

Ediga Annamma, .AIR 1974 SC. 799, referred to.

(2) Section 377 of 1g9g Code ot Criminal Procedure apPlies only to situations where the court at the lime of the confirmation of the death sentence F consists of two or "more Judges.. Section 4(1)(i:). of the -Code of Criminal Procedure, in relation to a Unfon Tetritory, y brings within the definition of "High Court'', the highest coilrt of c.riminal -appeal for that area, namely, the Judicial Commissioner's Court.

If, at the time the case for confirmation of death sentence is being heard, the Judicial commissioner's Court consists of more than one Judge, at least two Judges must attest the confirmation. So long as one Judicial Commissioner alone functions in the Court, section 377 \:i;'as not attracted. In the present case there is nothing illegal in a single (i.e.

G. the only) Judicial Com.missioner deciding the reference. [773 D-FJ

(3) Referral jurisdiction under s. 377 is akin to appeal and revision.

Regulation 8 ( 1) of the Goa, Daman and Diu (Judicial Commissioner's Court) Reglllation 1963 does not disentitle the Judicial Commissioner from exercising pov, rer _ u/s. 377, Cr.P.C. In the instant case, th<! Judicial Commissioner's confirrria!in of death sen!ence is not without jurisdiction. [774 C-D]

(4) -Judici:al clemency cannot attenuate the sentence .of death on the sole 1:1 circumstance that the accused was. a. young man and the sentence of death been hauruing him fo~ .long withop.t pther supple_ment fctors or n th~ face of surrounding beastly Clfcumstarices of the crone.

Possibly, Pes1dential power wider but judicial powecis :erriba"ked. (774 E; F]

I0-7Q7SCI/77

A' CRIMINAL APPELLATE JURISDICTION : Special Leave Petitiqn (Criminal) No. 216/1977.

(From the Judgment and Order dated 28-9-1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl. Appeal No. \ 17 /72).

S. J. S. Fernadez, amicus curiae, for the petitioner.

The Order of the Court was delivered by

KRISHNA IYER, J.-A death sentence, with all its dreadful scenario of swinging desper,.tely out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to this macabre stroke of the executioner's rope.

Even so, judges must enforce the Jaws, whatever they be, and decide according to the best of their lights, but the Jaws, are not always just and the lights are not always luminous.

Nor, again, are judicial methods always adequate to secure justice.

We are bound by the Penal Code and the Criminal Procedure Code, by the very oath of our office.

Section 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term.

It is true that in the present Code, the unmistakable shift in legislative, emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons . to be stated (Edige Annamma, 1974 SC 799, AIR).

Even so, the discretion is limited and courts can never afford to forget Benjamin Cardozo's wise gnidance :

"The judge, even when he is free, is still not wholly free.

He is not to innovate at pleasure.

He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.

He is not to yield to spasmodic sentiment, to vague and unregnlated benevolence.

He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.

Wide enough in all conscience is the field of discretion that remains."

(Cardozo : The Nature of the Judicial Process : Wale University Press ( 1921)).

We have heard counsel on the merits and perused the paper book with some care and see no ground to disturb the conviction.

The question of 'sentence' projects sharply before us and what we, have stated above turns our focus on circumstances justifying the graver sentence.

The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence.

The gnidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the Jaw, avoiding infliction of the death penalty.

When discretion has been exercised by the. trial Court and it is difficult to fault that

JOSEPH PETER v. GOA (Krishna Iyer, J.) 773

court on any ground, statutory or precedential, an appellate review and A even referral action become too narrow to demolish the discretionary exercise of power by the inferior court.

So viewed, it is clear that the learnd Judicial Commissioner has acted rightly in affirming the death sentence.

We are unable to grant 'leave on this score either.

Counsel for the petitioner has urged that the affirmation by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death B sentence is illegal.

According to him s. 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads :

"377.

In every case so submitted the confirmation ol the sentence, or any new sentence or order passed by fhe High Court, shall, when such Court consists of two or more C Judges, be made, passed and signed by at least two of them."

This section means, as we understand it, thai when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them.

This provision obviously applies only to situations where ihe court, at the time D of the confirmation oi; the death sentence, consists of two or more judges.

It is true that s. 4(1) (i) in relation to a Union Territory brings within the definition of the 'High Court' the highest court of criminal appeal for that area viz., the Judicial Commissioner's court.

It therefore follows that if, at the time ihe case for confirmation of the death senfence is being heard, the Judicial Corumissioner's court consists of more than one judge, at E least two judges must attest the confirmation.

In the present case it is common ground that when the case was heard and judgment pronounced there was only one Judicial Commissioner, although the sanctioned strengtl1 was two.

So long as one Judicial Commissioner alone functioned in the court, s. 377 was not attracted. The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial C0U1U1issioner deciding the reference.

We are aware that the insistence of the Code on two judges hearing the matter of such gravity as a deaili sentence invol~ is because of the law's grave concern that human life shall not be judicially depnved unless at least two minds at almost the highest level are applied.

Even so, exceptional siiuations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened.

We cannot fault the judgment on G this ground either.

Counsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law whi'ch prevails against the general.

On that footing he argues tbat under Regulation 8 (1) the Court of the Judicial Commissioner shall have only H such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao.

According to him, the said Tribunal did not have the powers of. confirmation of death sentence, and,

therefore, the judicial Commissioner cannot exercise such power.

He also argues that under the said provision the Judicial Commissioner is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powrs under section 377 of the old Criminal Procedure Code.

We see 'no force in these twin submissions.

A Code is complete and that marks the. distinction between a Code and an ordinary enactment.

The Criminal Procedure Code, by that canon, is self-contained andl complete. It defines a High Court which takes in a Judicial Commissioner's Court. (Section 4(1)(i).

We need not and indeed may not travel beyond the Code into the territory of the Regulation.

Even otherwise, there is nothing in Regulation 8(1) which helps the petitioner. It provides that the Judicial Commissioner shall be the highest criminal Court, 'Appeal and Revision' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level.

Referral jurisdiction, under section 3 77, is skin to appeal and revision and we think that Regulation 8(1) does not dientitle the Judicial Commissioner

from exercising power under section 3 77 of the Code : nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did, not have the power to confirm death sentences, and, therefore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power.

Regulation 8 (1) does not limit the jurisdiction of the Judicial Commissioner in the sense counsel wants us to accept.

We therefore hold that the Judicial Commissioner's confirmation of the death sentence is not without jnrisdiction.

Undeterred by the fact that the murder is grnesome counsel has pleaded that at least on the question of sentence leave should be granted because his client is a young man and the sentence of death has been haunting him agonisingly for around six years. May be that such a long spell of torment ; may be one circumstance in giving the lesser sentence.

Even so, we have to be guided by the rulings of thisCourt which have not gone to the extent of holding that based on this"Circumstance alone, without other supplementing {actors or in the face ofi surrounding beastly circumstances of the crime, judicial clemency can attenuate the sentence-. Possibly, Presidential power is wider but judicial power is embanked.

We refuse special leave and dismiss the petition.

Petition dismissed:

JOSEPH PETER

STAIB OF GOA, DAMAN AND DIU

May 4, 1977

V. R. KRISHNA IYER

JASWANT SINGH, JJ

Section 354(3)

Art. 136

Crifninal Procedure Code, 1898

Section 377

s. 302

I.P.C

s. 374

Code of Criminal Procedure

s. 354(3)

Code of Criminal Procedure

Art. 136

Ediga Annamma

Section 377

Section 4(1)(i:)

Code of Criminal Procedure

section 377

s. 377

Diu

s. 377

Cr.P.C

S. J. S. Fernadez

KRISHNA IYER

Section 354(3)

Benjamin Cardozo

Goa

Diu

Daman

s. 377

s. 4(1)

s. 377

section 377

Criminal Procedure Code

Section 4(1)(i)

section 3

section 3

Tribunal de Relacao