BHUT NATH METE

THE ST ATE OF WEST BENGAL

February 8, 1974.

[V. R. KRISHNAlYER AND R. S. S•RKARIA, JJ.]

Mai:11teli!'1ce of 1'1ternal Security Act! 19?1-s. 3-Continuance of c111erze11cy no.t a 1usl1C1able issue-Order of dettntion rf bad because crhnlnal prosmllions fculed-lf Govenment should pass a speak111g ordtr-Con1m,, nication of facts cornerstone of right of representation-Poverty and illiteracy if relevant to s. 3.

The petitioner was detained under s.3 of the Maintenance of Internal Security Act, 1_971 on the ground that he broke open wagons and looted wheat and tea.

The reoort which was sent by the Police to the District Magistrate was forwarded to the Government and the Board. It contained information that the petitioner was -poor and illiterate, had associates in notorious wagonbrcakers and anti-!OC'ial clements, had developed the spirit of lawlessness and aptitude for antisocial activities and that many of the reported and unreported cases of recent and criminal activities existed to his credit besides the instances communicated to the detcnu.

It was contended that ( 1) there was np real emergency and yet the proclamation of emergency remained unrctracted with consequential peril to fundamental rights; (2) that sections 3(3) and 10 of the Maintenance of Internal

Seurity Act violated art. 22(5) of the Constitution; (3) that the order was n1ale fide because it was made after and on account of the discharge of the petitioner in the relative criminal cases; (4) that a seeaking order should be passed by the government or by the Advisory Board while apprcving or advising

continuance of detention and (5) that some irrelevant and uncommunicated ch:irges had influenced the authority, vitiating the Q,!'der of detention.

Allowing the petition,

HELD : ( 1) Academic exercise in constitutional law arc not for courts but jurists and it is not possible to hold that "the continuance of emcrgcnc}' was void.

It is outside the orbit of judicial control and wandering into the paral)Olitical sector. The argument is political, not a justiciable issue and the appeal should

b~ to the polls and not to the courts. [321 H]

Rex v. Govtr11or of Wormwood Scrubbs. Prison, [1920] 2 K.B. 305, Tlzt kill!! v. Halliday, [1917) A.C. 260, 270 and Ri11gka11 v. Goi•er11mtnt of Malaysia,

[1970] A.C. 379: 390; 391; referred to.

(2) There is no inconsistency with or erosion of the opportunity of making a representation against the order. The soul of art. 22 is the fair cance to be heard on all particulars relied on to condemn the detenu to preventive confinement.

But sec. 3(3) does not and cannot trap.scend this trammel and never states that particulars conveyed to governent and evenally t? the Board may

be behind the back of the detenu. Reading the provisions liberally and as owing allegiance to Art. 22(5), it is right to say that all particulars transmitted under s.3(3) beyond the groun~ of detentioQ must in no way detract from the effectiveness of the deter.n's right of representation about them. The guarantee of Art. 22(5) colours the con:; truction of s. 3.

[324 ~-C]

( 3) It is not correct to saY th"at the order of detention was bad because the criminal prosecutions have failed.

It is well-settled that even U!15uccessful judicial trial or proceeding would not operate as a bar to a detention order or render it niafa .fide.

(324 E-G]

Sub.-ati v. State of Wev Bengal, [19731 3 S.C.C. 2SO, M. S. K!ian v. C. C. l'.ozr. A.I.R. 1972 S.C. !670 and Ramesliwar Lnl v. State of B11tar,. [1968] 2 S.C.R. SOS;511, followed.

( 4) The~ is no substance in the argument that a speaking order should be passed by government or by the Advisory Board while approving or advising con_tinuance of detention. altough a brief exprCS!!ion of the principal reasons is desirable. The commurucatlon of grounds, the nght to make representation and the consideration thereof by the Advisory Board made up of men with judicial

experie~~· .te subject matter being the deprivation of freedom, clearly implies a qua51~1udic1al approach.

The bare bones of natural ~Usticc in this context 11eed not b~ clotht:d with the ample flesh of detai1ed hearing and elaborate reasoning.

A speaking order, like a regular judicial performance, is ni:ither necessary nor feasible.

A harmonious reconciliation between the claims of security. of the nation and the liberty of the citizen through tho process of effective representation before deprivation and fair consideration by the executive

and the Advisory Board are the necessary components of natural justice, no n1ore.

[326 F] ·

(5) The detention was illegal for denial of opportunity. to make effective representatio11. Sec. 3(3) read with Art. 22(5) stands contravened and the right to represent rendered barren. Particulars prejudicial to the detenu played over lhe judgment of the authorities but lh.! pethioner never kn.!W ot such injurious information, and could not answer back.

Communication of facts is the cornerstone of the right of representation and orders passed on uncommunicated n1aterials are unfair and illegal.

Poverty and illiteracy are irrelevant to s. 3.

The spirit of lawlessness and aptitude for antisocial activities are neither here nor there vis-avis s.3. Other reported and unreported instances, though relevant, are kept back from the petitioner. r328 B]

ORIGINAL JUR!5DICT!ON : Writ Petition No. 1456 of 1973.

Under .Article 32 of the Constitution for issue of a writ in tho nature of habeas corpus.

S. J. S. Fernandez, for the petitioner.

P. K. Chakr.iv.irty, for the respondent.

The Judgment of the Court was delivered by E

KRtSHNA IYER, J.-The petitioner, undergoing inhibitive incarceration in West Bengal, seeks this Court's writ to be liberated on grounds of substantive innocence and processual injustice.

Judicial vigilance is the price of liberty and freedom of the person is a founding faith of our Republic. So it behoves us to examine the legal circum

stances of the detention in the light of the constitutional constraints F under art. 22 and the procedural safeguards of the Act (the Maintenance of Internal Security Act, 1971).

A brief calendar bearing on the landmark events, giving the core facts relevant to the legality of the detention, is nec,, ssary right at the beginning. The order of the District Magistrate. Burdwan, which cast the petitioner into jail. recit<; d that hc; was 'satisfied' that w!th. a. view G to preventing the petitioner from atmg m ay manner prc1ud1~1l to the maintenance of supplies and services essential to te com1nun!tY the direction for detention under s. 3 of the Act was bemg made, impeccably adhering to the mantra of the law; The gro.unds which induced the authority's adsfaction were concom~; antly furn1scd as r_equ1.ed hy s. 6(1 ), read withs. 3(2), of the Act. You are bemg det1med. rus tho communication .... on the grounds that you have been acting m H a manner prejudicial to th' supplies and services essential to the c~ inuoity as evidenced by :he particulars given below :-" Three specific instances were set out of November 21, 1971, November 24. 1971 aml

n. N. ~!EH v. W£SI DENGAL (Krishna Iyer,/.) 317

January 13, 1972-all over seven months prior to the detention orderalleging that the petitioner and his associates (not named) broke open wagons and 'looted' wheat and tea.

There is also a statement that 'the said activity of yours thus attracts Sec. 3(1) (a) (iii) of the ... Act."

It is a trifle mystifying that the detention order is passed many months after the three crmlinal break-ins, and equally strange it is that the prisoner is arrested only on February 22, 1973, many months after the order of detention was passed, there being no justification of abscondence.

Long before the grounds of detention were served on the detcnu (February 22, 1973) the State Government had approved the District Magistrate's order which it did on September 2, 1972. Shortly

thereafter, the State Government placed the case of the detenu before the Advisory Board under s. 10 of the Act, although the actual deten tion was effected only in 1973. The affidavit-in-opposition by the Deputy Secretary to Government does not explain these time fags between the prejudicial acts and the preventive detention order; and between lhe order and the detention. The petitioner's averment in this context becomes disturbingly meaningful, for, according to him, the instances were false and when he was prosecuted in Court, the cases ended in his favour.

He has stated in his representation to the Advisory Board that "over the grounds No. 1, 2 and 3 Burdwan P. S. Case No. G.R.P.S. No. 10(11)71, 9(11)71, and 6(1)72 was started. The petitioner was arrested in connection with aforesaid case.

But as the charges are false, so no prima facie case was established against the petitioner was discharged by the learned S.D.J.M., Burdwan.

But soon as the petitioner was discharged from the case, the petitioner again arrested and arbitrarily detained under MIS Act."

We will consider these aspects in a little detail later.

Sullico it to say that the Advisory Board considered the representation of tl1e detenu and the material placed before it by the State, and concluded on April 28, 1973 that there was sufficient cause for the detention of the petitioner.

Thereafter, by order dated May" 7, 1973, the State Government continued the detention "until the expiration of twelve months from the date of his detention or until the expiry of D.l. Act, 1971, whichever is 1ater."

Both the State Government and the Advisory Board had before them, while deciding on the propriety of the detention, the criminal biography of the petitioner, and, indeed, counsel for the State fairly stated that the opinion and the advice were based upon the specific instances furnished to the petitioner in the grounds of detention. as well as on the dossier furnished by the Superintendent of Police, a copy of which has been produced in Court. It looks as if this is a routine procedure and there is a proforma for the history sheet. Column 7 thereof, apart from setting out the three instances communicated to the detenu also mentions certain relevant and injurious circumstances relating to the petitioner, which may be extracted here :

"The subject Bhut Nath Mete s/o L. Sambhu Nath Mete of Belari. P.S. Ausgram, Dist. Burdwan, was born in a poor 8-L954SupCl/74

family.

He got no education in his childhood.

He worked as a day labour.

He used to mix up with the notorious wagon breakers and anti-social elements.

This inspired in him the criminal propensities which shaped his future careet.

But to his association with the railway criminals and . antisocial elements he developed the spirit of lawlessness and acquired special aptitude for anti-social activities _and actg prejudicial to the n1aintcnance of supplies and services essn tial to the con1munity.

For fear of assault and manhandhn! none of the local people dare to say anything against him and his associates to the Police or to any authority as a result of which many cases remain unreported to the Police.

Besides many of the reported and unreported cases some of the instances of his recent anti-social and criminal activities which were prejudicial to the maintenance of the supplies and services essential to the community are m('.:ntioned below . ... " It is apparcnt,-and indeed it is not denied,-that the total impact of these materials on the District Magistrate, the State Government and the Advisory Board, resulted in the initial detention and subsequent continuation in incarceration.

We have now to sec what the grounds of challenge are and the sustainability thereof in the eye of the law and the Constitution.

Before getting to grips with the contentions we may indicate the constitutional dimensions of the freedom of which the judges are, in part, sentinels on the qui vive. Civil liberty, a constitutional guarantee, is a strange bed-fellow with detention without trial, a British bequest.

Begun from the days of the East India Company, our freedom lighters, including the Father of the Nation, have endured its repressive imppct and s.o when the sombre, colonial story came to a close, our founding fathers enshrined freedom of the person as a fundamental right.

But as realists they know that we became free amidst blood bath and chaos and the environs of belligerency.

The delicate balance between security and liberty had to be kept, conscious that, in the contemporary world, war is to peace near allied and 'this pertition do their bounds divide' and the defenses of a nation can be destroyed and the morale of its people broken not only by external aggression but also by internal disruption.

The sensitive underside of the nation can be wounded by those who break up public order, breach State security, blow up essen tial supplies and services; and so, as an unhappy necessity, preventive detention. apart from punitive prison term, was recognised and provided for.

Being committed to the rule of law, primary article of faith, the framers of the Constitution mistrusted uncanalised power in the Executive and wrote into the paramount law provisions regulating preventive detention and proclamations of emergencies.

After all, Lord Acton's dictum that absolute power corrupts absolutely was for them no new knowledge, and Lord Atkin 's great words in Li>'ersidge v.

Anderson('1) that amid the clash of arms the laws are not silent, that

(I) [1942] A. C. 205

D 8

they may be changed, but they speak same language in war and peace, reverberated in their ears.

Therefore, where freedom is in pent and justice is threatened the citizen shall receive the fullest protection from the Court within the four corners of art. 22, benignantly stretched, and the safeguards of the A.ct liberally interpreted-within legitimate limits.

The worth of the human person is a cherished value carefully watched over by the Court. Such is the judicial perspective in the application of art. 22 to the MISA, which it contains, controls and animates.

Indeed, this Court, by a series of creative pronouncements has built into vast powers vested in the Administration by the MISA and its predocessors legal bulwarks, breakraters and blinkers which have largely humanised the harsh authority over individual liberty otherwise exercisable arbitrarily byexecutive fiat.

In this case, we arc conccrneU \vith a limited canvass, for, in a sense, the court's control through rcview is peripheral. processual and yet crucial.

The area of judicial 'cmbudsmania' which obtrudes into our attention in the present case relates to the observance of natural justice to the partial but compclsory extent the law of the Constitution and the law under the Constitution, obligate.

There is a limited 'judicialisation' of administrative acts that art. 22 insists on, which is express, explicit and mandatory and admits of no exceptions.

Article 22(5) is principled and pragmatic, flexible but firm and enforces the right to be heard without over-loading the administrative process with judicial trappings. It reads :

''(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." -

The fundamental constitutional mandates are that the authority (a) shall communicate to the detainee 'the grounds on w/1ich the order bas been made'-nothing less than all the material grounds which operate to create that subjective satisfaction in the authority which spells su•- pension of the citizen's liberty-and (b) shall afford him the ear/its! opportunity of making a representation against the order-no avoidable delay, no shortfall in the material communicated shall disable the prisoner making an early, yet comprehensive say on every particular or fact which has influenced the detainer or other body to order, approve or advice the deprivation of an individual's freedom.

Such is the fairness and justice 'untouchably' entrenched in art. 22( 5) when administrative action preventively drowns a sacred human right in the name or public good and organised society.

The power and its limits co-exist in constitutional amity and the MJSA has effectuated this great policy ins. 3(1) and (3) read with ss. 5(1) 10 and ll(i) and (ii). Tho

humanist restraint so woven into the law against executive extravagance or indifference must be strictly applied since casual and careless and

uninformed disposal of other's freedom is to break faith with the constitutional tryst.

The admonition of Patanjali Sastri, C.J., is inspirational :

"Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be 1ealously watched and enforced by the Court. In this case, the petitioner has the right, under article 12(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him.

We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause ( 6) of article 22."( 1).

The strict construction of the statute setting tho court's face sternly against encroachment on individual liberty, keeping the delicate balance between social security and citizens' freedom, is perfectly warranted by this Court's observation in Kishori Mohan Bera v. State of West Bengal(') ;

"The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of th0 land and to trial by courts.

Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only.

There can, therefore, be no doubt that such a law has to be strictly construed. Equally, also, the power conferred by such a law has to be exercised with extreme care and scrupulously witliin the bounds laid down in such a law."

In a sense this approach is only an application of the insistnce of fairness when power is exercised to effect other's rights, particularly the most sensitive of all rights-personal freedom.

Natural justice is the index of fairness, although as Sachs, L.J., indicated in In re-Pargemon Press Ltd.(•) : "In the application of the concept of fair play there must be real flexibility so that very different situations may be met without producing procedures unsuitable to the object in liand". lu A. K. Krapak v. Union of India(') this Court qualified:

"The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duly of discharging their functions in a fair and just manner. The requirement of acting Judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously." After all, one conld never be too just or too fair when dealing with civil liberty.

(!) Dr. Ram Krishan Bhardwaj .v State of Delhi (1953] S. C.R. 708.

(2) A.!. R. 1972 S. C. 1749.

(3) [1971] I Ch. D. 368.

(4) A. I. R. 1970 SC 150,

With these background observations, the statutory 'musts' of the MISA may now be delineated.

We are concerned, as earlier stated, only with some aspects of the preventive detention jurisprudence, in the present case, and we confine ourselves to them.

The District Magistrate should be bona fide satisfiod about the prejudicial activities of the detainee. Absence of bonafides in this context does not mean proof of malice, for an order can be malafide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects enilmerated in s. 3 (I) of the Act. Viscount Haldane, L.C., in Shearer v. Shields(') drew the line neatly thus :

"Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular sys tern ot jurisprudence. A person who infiicts an injury upon another person in contravention of the law is not allowed. to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law.

He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignoraniJy, and in that sense innocently."

The attack on the order of detention has been delivered on the following grounds : (I) that the grounds are ambivalent, vague and void; (2) that the particulars suffer from insufficient communication thus crippling the constitutional right of representation; (3) that the detention is ma/a fide having been made with ulterior and extraneous purpose of making up for the discharge of the petitioner in the criminal cases; (4) that a few acts of theft, not proximate in time to the detention order after judicial proceedings had failed, have no rational relation to potential prejudicial activities to stanch which it professes to have been made; (5) that the materials impelling the detention order and supplied to tbe Government and the Board add substantially to tlie facts disclosed tq the detenu thus hitting him below the belt and denying him the plenary opportunity to answer the uncommunicated but damaging charges with a futuristic import; (6) that the MISA violates art. 22(5) and is unconstitutional; aI?J (7) that the detention has been arbitrary and may continue indefinitely if the Proclamation of Emergency becomes a constant fact of constitutional life and must therefore be regarded as unconstitutional.

The last two were urged in another habeas corpus application heard shortly before this one and arc dealt with in a way here also.

We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the para-political sector. It was argued that there was no ffal emergency and yet the Proclamation remained unretracted with consequential peril to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls and not to the courts. The traditional

(I) [1914] A. C. 808.

view, sanctified largely by some American decisions, that political questions fall outside the area of judicial review, is not a constitutional taboo but a pragmatic response of the court to the reality of its inadequacy to decide such issues and to the scheme of the constitution which has assigned to each branch of government in the larger sense a certain jurisdiction.

Of course, when a problem-which is essentially and basically constitutional-although dressed up as a political question,, is appropriately rais<>J before court, it is within the power of the judges to adjudicate. The rule is one of self-restraint and of subject-matter, practical sense and respect for other branches of government like the Legislature and the Executive. Even so, we see no force in the plea.

True, an emergency puts a broad, blanket blindfolding of the. seven liberties of art. 19 and its baseless prolongation may devalue democracy.

That is a political matter do hors our ken, for the validity of the proclamation turns on the subjective satisfaction of the President that a grave emergency, of the kind mentioned in Part XVIII, or its imminent danger, exists.

In Rex v. Govemor of Wornwood Scrubbs Prison(') the Earl of Reading observed, on a similar contention:

" ... even if it is material to consider whether the military emergency has come to an elld, it is not a matter which this Court can consider; whether the emergency continues to exist or not it is for the executive alone to determine ..... "

The argument of abuse of power was urged in England but repelled.

In The King v. Halliday(') Lord Dunnedin met it thus :

"That is true.

But the fault, if fault there be, lies in the fact that the British Constitution has entrusted to the two Houses of Parliament, subject to the assent of the Killg, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body.

The danger of abuse in theoretically present : practically, as things exist, it is in my opinion absent."

And Lord Wright in Liversidge v. Anderson(') added effect to the point in these words :

"The safeguard of British liberty is in the good SCllS• of the people and in the system of representative and responsible government which has evolved. If extraordinary powers are here given, they are given because the emergency is extraordinary and are limited to the period of the emergency." Of course, the British have no written constitution but the argument rcn1ains.

In the recent ruling of the Privy Council in Hinakan v. Government of Malaysia(<), the vires of a proclamation of emergency was put in issue as unconstitutional and a fraud on power. The Judicial Committee made short shrift of the submission in these words :

(I) [1920] 2 K. B. 305.

(.1) [1942] A. C. 206.

(2) [1917] A. C. 260, 270.

(4) [1970) A. C. 379; 390; 391.

A "Although an "emergency" to be within the article must

be not only grave but such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, epidemics and the collapse of civil government."

"'It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the constitutional situation which had occurred in Sarawak, or to inquire whether that situation could itself have been avoided by a different approach."

"These were essentially matters to be determined according to the judgment of the responsible Ministers in the lights of their knowledge and experience.

And although the Indonesian Confrontation had then ceased, it was open to the Federal Government, and indeed its duty, to consider the possible consequences of a period of unstable government in a State that, not so long before, had been facing the tensions of Confrontation and the subversive activities associated with it. That the appellant regarded the foderal Government's actions as aimed at himself is obvious and perhaps natural; but he has failed to satisfy the Board that the steps taken by the Government, including the proclamation and the impugned Act, were in fraudum legis or otherwise unauthorised by the relevant legislation."

Justiciability was left open is that case but the limits of judicial propriety were ciearly drawn. The U.S. Supreme Court has frowned on forensic examination of subjects of politics and policy which belong to the other branches of government although in Baker v. Carr(' )-a landmark ruling -and Gray v. Senders(2 ), constitutional questions with considerable political consequences were boldly handled. Even the Viet Nam. war came for judicial consideration. But this large and sensitive deba.te about t.he court's power hardly arises here because basically it is a matter least fit for adjudication by judicial methods and materials, and clearly the onus of establishing the effective end of emergency and absence of any grounds whatever for the subjective satisfaction of thePresident, heavy as it is, has hardly been discharged.

Academi.c exercises in constitutional law are not for courts but jurists and we decline to hold the continuance of emegency void.

Nor are we impressed with the argument thats. 3(3) ands. 10 violate art. 22(5) of the Constitution. The vice, according to counsel, is that the detaining authority forwards to Government not merely the grounds of detention but "such other particulars as in his opinion have

(I) 369 u. s. 186 (1962)

(Z) 372 U. S. 363 (1963)

a bearing on the matter"·-which matter may be beyond what is communicated to the detenu. If so, the effective opportunity to make representations against such extra material is absent and the right under art. 22(5) is stultified.

No doubt, the soul of art. 22 is the fair chance to be heard on all parti1lars relied on to condemn the detenu to preventive confinement.. B t s. 3(3) does not-eannot-transcend this trammel and never state that particulars conveyed to Government and eventually to the Board may be behind the back of the detenu.

Reading the provisions literally and as owing allegiance to art. 22(5), it is right to say that all particulars transmitted under s. 3(3) beyond the grounds of detention must, if they ha\le a bearing on the determination to detain, in no way detract from the effectiveness of the detenu 's right of representation about them.

The guarantee of art. 22 ( 5) colours the construction of s. 3. So viewed, there is no inconsistency with or erosion of the 'opportunity of making a representation against the order'.

Whether, in this case, any unconstitutional deficiency in communication of such material has occurred will be tested later.

Is there any substance in the grievance that order is ma/a fide, made after and on account of the discharge of the relative criminal cases ? The detention is not punitive but preventive and the District Magistrate's order recites to that effect.

In this case, the petitioner's representation mentions the cases challaned and the discharge of the accused by the court in regard to the very incidents pressed into service to found the detention order.

The long interval between the incidents and the orders lends probability to the petitioner's plea that there were cases which ended in his favour, particularly because no denial nor explanation is forthcoming on these aspects in the return.

The question is whether for the reason that criminal prosecutions have failed the detention order is bad.

We think not, and there is authority for it. jq Subrati v. State of West Bengal(') this Court rejected ari identical argument, the purposes of preventive detention being different from conviction and punishment and subjective satisfaction being enough in the former while proof beyond reasonable doubt being necessary in the latter. "The Act creates in the authorities concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general.

This jurisdiction is different from that of judicial trial in courts for offences and of judicial orders for prevention of offences.

Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order, or render it male fide.

The matter is also not res integra." In M. S. Khan v.

C. C. Bose(2 ) a similar view was expressed and now a host of decisions had made the legal position unchallengeable.

A note of caution, however, needs to be struck since absolute scrupulousness iS expected of authorities exercising this exceptional power.

This is not a power to put behind bars anyone you regard as dangerous or rowdyish or irrepressible or difficult of being got rid of by proof of guilt in court.

This is an instrument for protecting the community against specially

(t) [t973J J sec 2so.

(2) A. l. R. 1972 S. C. 1670.

B. N. METE v. WEST BENGAL (Krish'!a Iyer,/.) 325

injurious types of anti-social activity statutorily enunciated. If xtra

neous motives adulterate the use of power, the court must nullify 1t.

Observations in Rameshwar Lal v. Stale of Bihar(') serve as a warning:

"The appellant was tried for .the offence and acquitted as far back as February 1967. This ground discloses carelessness which is extremely disturbing.

That the detaining authority does not know that the appellant was tried and acquitted months before, and considers the pendency of the case against him as one of the grounds of detention shows that due. care and attention is not being paid to such serious matters as detention without trial. If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or not.

One can understand the use of the case lf the acquittal was technical but not when the case was held to be false."

After all, however well-meaning Government may be, detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse. To detain a person after a court has held the charge false is to expose oneself to the'Criticism of absence of due care and of rational material for subjective satisfaction. After all, the res ponsible officer, aware of the value of civil liborty even for undesirable persons, must make a credible prediction of the species of prejudicial activity in s. 3 ( ll before shutting up a person. It may perilously hover around illegality, if a single act of theft or threat, for which a prosecution was launched but failed, is seized upon after, say, a year or so, for detaining the accused out of pique. The potential executive tendency to shy at courts for prosecution of ordinary offences and to rely ene rously on the easier strategy of subjective satisfaction is a danger to the democratic way of life. The large number of habeas corpus petitions and the more or less stereotyped grounds of detention and inaction by way of prosecution, induce us to voice this deeper

concern. Moreover, a criminal should not get away with it as an unconvicted detenu if the rule of law is a live force.

The ritualistic recital of one or two thefts followed by incantatory statutory phrases in the order, unsupported even by the affidavit of th~ detaining authority may in some circumstances lead to an inference that the order is in fraudum legi~. In the pre<ent case such an argument has been made but we are not satisfied that there was foul exercise of power merely because the courts have discharged the accused or a competent affidavit has not been filed. True, we should have expected an 3ffidavit from the detaining authority but even that is felt too inconvenient and a Deouty Secretay who merely peruses the records and swears an affidavit in every case is the poor proxy. Why is

(I) [1968] 2 S. C.R. 505; 511.

an affidivit than needed at all? The fact of subjective satisfaction, solemnly reached considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre-emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit. The purpose is missed, goin!l by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of administration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit. The next best would then be the oath of one in the Secretariat who officially is cognisant of or has participated in th.e process of aoproval hy Govemn1-ent-not one who, long later, reads old files and gives its gist to the court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty.

In some cases, where a valid reasn for the District Magistrate's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary's affidavit. This should, however, b' the exception, not the rule. We may . refer in this context to the rulings in Raniit Dam/v. State of West Bengal, ('), J. N. Roy v. State of West Bengal,( 2 ) and Shaik Hanif and others v. State of West Bengal.(')

We need not proceed further with this aspct, in the ultimate view we take on this writ petition.

We are not oersuaded that a speaking order should be passed by Government or bv the Arlvisorv Board while approving er advising continuance of detention although a brief expression of the principal reasons is desirable.

The communication of grounds, the right to make reoresentation and the consideration thereof by the Advisory body made up of men with judicial experience the subject-matter being the deprivation of freedom, clearly implies a quasi-judicial approach.

Indeed, where citizen's rights are affected by an autho ritv. the auestion is not so mueh the mould into which the nature of the act should be fitted but the nature of the consequence which obligates impartiality, judicial evaluation and reasoned conclusion on facts. a' distinruished from oolicv formulation and zealous implementation regardless of two sides and weighing of evidence.

The bare bones of natural justice in this context need not be clothed with the amole flesh of dotailed hearing and elaborate reasoning. It must be self-evident from the order that the substance of the charge and the essential answer in the representation have been impartially couslden•d.

We do not think that a speaking order like a regular judicial performance is either necessary or feasible.

Article 22(5)

A.!. R. (1972) SC 1753.

(2) A. I. R. (1972) SC 2t43. (3) Writ Petition> Nos. 1679 etc; judment on Feburary 1, 1974.

also does not compel us to reach a different conolusioa.

Alter all, we must remember that a harmonious reconciliation between the claims of security o[ the nation and the liberty of the citizen through the process of effective representation before deprivtion and fair consideration by the Executive and the Advisory Board are the necessary components of p.a, tural justice.

Not mere. !n times of emergencv, security Of the State and essential supplies and ervices

of the co1nmunitv assume great importance and dcn1Dnd quicker action. .At the same time. we cannot underrate tho right of the citizen and cannot for, get the wotlds of Justice Jackso~1 in Knufl v.

S/111,11ghnassy : ( ')

"Security is like liberty in that many arc the crimes committed in its name. Tfie menace to the security o[ this countrv. be it j!feat as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures on .this pattern .... Ihe plan

that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome and the corrupt to play the role or informer ur1':1etected and uncorrected."

Whtt.t has to be underscored is the obligation to nlak~ a ftr communication of the J?rounds ::i.nd the particulars sufficint 'lo enable the detainee to explain his innocence.

Faceless infortncr.s flourish \vhere confrontation by cross-examination is absent, and orders \\'ith ihc inscrutable face of a sphinx arc not uncon1mon where subjective satisfaction is sufficient.

All the more reason why there should be a meaninµ:fullVco1nprehensivc furnishing of essential oarticulars so that the exe~Utive acncics may be rigorously held to the standards implkld by the courts in art. 22(5). Otherwise, in th" language of Justice Frankfurther. "he that take> the procedural sword shall perish with that sword." Administrative absolution is incongruous with our constitutional scheme.

If control of liberty in an emergency-Barbed-wire entanglements of freedom by the executivc--is neccssarv. control of control iq in son1c tnctisurc healthy hccause nower in the miniens of govcrnn1cnt can be 'of an cncroachin2 nature;.

Reference \Vas ffiade at the bar in ihis context to Allen's "Law an<l Orders", an'J Markose's "Judici"l Control of Adn1; nistrative Action·

In the petitioner's case the gravamen of his grievance is that some irrelevant and uncommunicated char.ees have influenced the autho , rity, vitiating the order. We would not view with unconcern viola~ tion on this score, if made out. It is common ground that the police have sent to the District Magistrate (who in turn has forwarded to the Government and the Board) a blistering bio-data.

It states that la) he is ooor and illiterate. (bl has associates in notorious wagon breakers and anti-sccial element. ( c) has d"vclopcd spirit of lnwlcssness and aptitude for anti-social activities. (d) many of the

(1) 338 u. s. 537.

328 SUPREl\.lE COURT REPORTS

[ 1974 J 3 S.C.R.

reported and unreported .c_ascs of recent anti-social and criminal activities exist to his credit besides the instances on1municatcd to the detenu. Fairly considered, this report has . been present to the minds of the authorities but withheld from the affected party. Poverty and illiteracy are outraJ(eouslv irrek:vant to s. 3. l'he spirit of lawlessness and aptitude for anti-social activities. are neither here nor there >'is-a-ris s. 3. 'Other repoz:ted and unreported' instances thou2h relovant are kept ba-"'k from the petitioner. If such be the case. s. 3 ( 3). read with art. 22 ( 5), stands contravened and the right to represent rendered barren. . And yet particulars prejudicial to the detenu played over the judgment of the authorities but the petitioner never knew of such injurious information, and could not answer back. This Court in many weighty pronouncements over two decades has strcssd::I that art. 22 ( 5) vests a real, not illusoi'}' right, that communication of facts is the corJ:i~Tstone of the right of representation and or<lrs based on uncommunicated materials arc unfair anc.I illegal.

 Before parting with tltis case/ we wish to express our disquiet that more theft even of coppe'r wire9 unless in association with other facts may "not give rise to an inference of proclivities of the type mentioned in s.3 (1). Some proximity in time between the acts and

the order. some indicatiOJ:!S of activities disrupting supplies am.I services to the community and more 'trendy' behaviour warranting preventive measures. must be available before the extreme step of detention without trial is clamped down.

A sober prognosis by the District j\1a2istra1e of. the detainee"S dangerous behaviour must be wellgrounded, even if impervious to judicial probe. We cannot dismiss as accidental that in this area of the Jaw. in two leading case~. t\VO judges, Bose. J ., and Bhagwatliy. J., have referred to the Bestill~

not that \ve exoress our approbation of its use.

Executive care ~nd Advisory Board's vigilancerue the hoodul sentinals checking on the misaoolication of the MISA. unwittingly to rob the people of the Republic of civil liberties.

We may emphasise that to minimise processual justice to mere communication and conseauent--representation is not to reduce that prescription _.to a rooe

0 of sand. and to make subjective satisfaction a sufficient pre-requisite to detention is not to reduce judicial review to a brutum fulmen.

We hold that the detention in this case is illegal for opportunity to make effective representation and direct petitioner be set free.

P. B. R.

denial of that the

- c

BHUT NATH METE

THE ST ATE OF WEST BENGAL

February 8, 1974

s. 3

s. 3

sections 3(3) and 10

art. 22(5)

art. 22

sec. 3(3)

Art. 22(5)

Art. 22(5)

s. 3

Sec. 3(3)

Art. 22(5)

s. 3

Article 32

S. J. S. Fernandez

P. K. Chakr.iv.irty

E

KRtSHNA IYER

art. 22

District Magistrate. Burdwan

s. 3

s. 6(1 )

Krishna Iyer,/.

Sec. 3(1)

February 22, 1973

September 2, 1972

s. 10

Burdwan

April 28, 1973

" 7, 1973

Bhut Nath Mete

Belari

Acton

Atkin

art. 22

art. 22

art. 22

Article 22(5)

art. 22( 5)

MJSA

ss. 5(1)

Patanjali Sastri

article 12(5)

article 22

Sachs

s. 3

Viscount Haldane

art. 22(5)

art. 19

England

Dunnedin

Parliament

Wright

Government of Malaysia

Sarawak

U.S. Supreme Court

art. 22(5)

s. 186

S. 363

art. 22(5)

art. 22

s. 3(3)

art. 22(5)

s. 3(3)

art. 22

s. 3

sec 2

Penal Code

s. 3

[1968] 2 S. C.R. 505

Article 22(5)

art. 22(5)

Frankfurther

s. 537

s. 3

s. 3

s. 3

art. 22

art. 22

Bose

Bhagwatliy

MISA


EDIGA ANAMMA

STATE OF ANDHRA PRADESH

February 11, 1974.

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Cri111i1wl Law-Practice and Pror:edure--Of]ence of 11111rdeJ--Circu111sta11c,•s justifying lesser sentence.

The appellant, a rustic young .woman, flogged out of her husband's house by her father-in-law, was living with her parents with her only child.

She committed a premeditated, cleverly planned murder of another young woman and her child became of rivalry between the appellant and the murdered woman for tb.e affections of an illicit lover.

The Sessions court awarded the death iiCDtence and the High Court confirmed.

C In appeal to this Court.

HELD: The death sentence must be dissolved and life sentence substituted.

(i) Modern penology regards crime and criminal as equally material when the right sentence has to be picked out although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of social and personal data of the culprit to the extent required in the verdict on sentence, However, in the Criminal Procedure Bill, 1973, Parliament has wisely written into the law a post conviction stage when the judges shall "hear the accused 011 the question of sentence and then pass settence on him according to law." r334 Cl

The unn1istakable shift in legislative en1phasis is that life imprisonn1ent for murder is the rule and capital sentence the exception to be resorted to for reasons to be stated.

The disturbed conscience of the state on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious partial abolition and the retreat from total retention.

[336 HJ

Code of Criminal Procedure Section 367(5) as amended by Act 26 of 1955; Criminal Procedure Bill, 1973, Sections 235, 238 and 354(3); lndian Penal Code (Amendment) Bill, 1972, SCction 122, referred to.

(ii) The case on hand has to be disposed of under the present Code and the Court has to fall back upon the method of judicial hunch in imposing or avoiding capital sentence aided by such circumstances as are present on the record introduced for the purpose of proving guilt. [334 DI

(iii) In the present case the criminal's social and personal factors, . her fen1inity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards awarding of life imprisonment. [339 B-Cl

Further, the Sessions Judge pronounced the death penalty on DeL"Cmber, 31, 1971 and the appeal is being heard in February 1974. This prolonged agony has ameliorative impact according to the rulings of this Court.

Piara Dusad/1 v. Efnoeror A.I.R. t 944 F.C.I.; N. Sreeramula v. State of Andhra Pradesl1, 1973 C.L.J. 1773; State of Bihar ''- Pasl1upati Si11glt, A.l.R.

I 973 S.C. 2699. referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67 of 1973.

H Appeal by Special Leave from the Judgment and Order dated the 24th March, 1972 of the Andhra Pradesh High Court in Criminal Appeal No. 12 of 1972 and Referred Trial No. I of 1972.

R. P. Kathuria, an1icus curiae for the appellant.

P. Ram Reddy and P. P. Rao for the respondent.

The Judgment of the Court was delivered bv

KRISHNA IYER, J.

In a rural region of Andhra Pradesh Frendian fury cl'. explosion of sex jealousy expressed itself in 2 gruesome murder of a young woman and her tender child by the accused, a young woman, with an only child en years old, all, because notwithstanding both being married, they had invested amorous affections in a middle-aged libertine, P.W. 16, conveniently a widower.

It is an admitted fact that the accused, although married, was keeping illicit relations with P.W. 16, a shepherd, but she discovered that lately her paramour was on flirting contacts with the deceased.

This knowledge angered her so much that she extinguished the life of her rival on November 4 .. 1971 in the afternoon in a jungle, manipulating her murderous venture so cleverly that for a time people thought that she was the murdered and searched for her body. Closer enquiry revealed that the victim was Ansuya and the other innocent one her baby less than two years old.

Shri Kathuria, appearing as an1icus curiae, has presented a pr.instakingly meticulous argument on behalf of the prisoner, who bas bocn condemned to death by the courts below. It is but meet that we '1pprcciate the industrious advocacy enthusiastically made by this young advocate.

By sundown on November 4, 1971 a cadaver was found in a field outside the village of Konapur, Medak District, Andhra Pradesh. The deceased was a damsel who was first mistaken to be the accused because her face had been burnt out of recognition and on her body was found clothing which belonged to the accused-a device resorted to, as later evidence discloses, by the accused to throw enquirers off the scent.

On November 8, 1971 the dead body of a baby, Nirmala. daughter of Ansuya, the deceased, was recovered from the sand bed of a stream near the field.

Investigations disclosed that Anamma, the accused, was the perpetrator of this fiendish crime. She was duly prosecuted, convicted and sentenced to death for the offence of murder and life imprisonment for secreting evidence of the crime, under s.201. I.P.C. An appeal by the accused and a referred trial under the Code resulted in a Bench of the High Court affirming the guilt and upholding the sentence.

A jail appeal has come before us, argued by Shri Kathuria as amicus curiae.

The people involved are more or less primitive rustics and sex inhibitions do not appear to have interdicted private philandering.

The prisoner bad been married to P. W. 7 of Ankenpally, three miles distant from Konapur where her parents. resided.

Carnal knowledge with p. W: 16 developed even when she was in her husband's house and she manifested her passion by stealing gold rings from the house of one Rachappa to make it over to P. W. 16 as a memento of her illicit love.

Indeed, this little stealing, induced by her improper

A relations with P. W. 16, was discovered. She suffered flagellation from her father-in-Jaw for this act, and her father, P. W. 2, removed her to his own house as a sequel.

The setting of Konapur did not stand in the way of her continued intimacy with P. W. 16, who responded

by shifting to this village himself.

II The deceased, Ansuya, was the wife of P. W. I 2 who was, as

ill-luck would have it, the neighbour of the accused's family. Opportunity tempted and Ansuya also established erotic contact with that lascivious, P.W. 16. The prisoner, in due course, came to know about the shifting of affections by her paramour who tried to bluff her in vain.

Fired by jealously the prisoner fixed her mind upon liquidating her rival.

On November 4, 1971 at about 3 p.m. the ill-starred Ansuya had left for the fields taking the baby with her.

The accused tempted and shadowed her, with some clothes from her house to be washed in the the village stream. P. W. I 5, P. W. 4 and P. W. 13 have given testimony which, if believed, will show that the accused end the deceased were seen together in the fatal field at about 5 p.m., the V'1Y the mother and child died.

It is said that the accused had removed a chisel from her house as she prooeeded to the field and used it to lethal purpose. The medical evidence shows that Ansuya and Nirmala were stabbed to death with a chisel identified by the accused's own father, P. W. 2, and the blacksmith who made it, P. W. 15.

Apparently overborne with uncontrollable hatred for the woman who hijacked her paramour's sexual affection, the accused bad planned to kiil with cunning. The manner of stabbing to death was bad enough; it was more brutal for her to have disfigured the face o! the victim which was found burnt.

With a view to mislead and thereby evade ca<y detection she removed from the deceased's body her clothes and clothed it with a langha belonging to herself. She removed the child's

't!otly, wrapped it in a piece of cloth brought by her and buried it beneath the river sand. Thereafter she made towards the house of P.W. 11, her uncle, told P.W. 16 what she had done and pressed him to elope with her. The sense of safety of P.W. 16 prevailed over his urge for sex relations with this girl and so he declined to follow her. The desparate woman left for her husband's village, while a search for her was being made by P. W. 2, her father.

The dead body in the field was found covered with the accused's clothing ond beguiled by this circumstance P. W. 2 reported to the police Patel, P.W. 5 (Ex. P 1) that his daughter had been murdered. perhaps by her father-in-law. Taken in by this report, the Patel informed the police and the Sub-Inspector, P. W. 26, proceeded to the scene of occurrence, held inquest and sent the body for postmortem examination. P. W. 22, the doctor, did the autopsy in the afternoon of November 5, 1971 and the body was brought back to Konapur by sundown.

The Inspector of Police took over the investigation, took into custody the clothes near the scene and questioned a number of persons in the village.

The tragic body was being made ready for cremation when the Patel of village Ankanpally,. P.W. 10,

moved down to the place with the accused, to the bewilderment of the people gathered.

Meanwhile, P. W. 12, the husband of Ansuya finding his wife and child missing, went in search of them in vain'.

The tidings came of the dead body and the revelation that it was not that of the accused, as originally suspected.

So apprehension turned on the dead body being that of Ansuya. They went to the place but it was night and the next morning, i.e., November 6, 1971, P. W. 12-· the husband-and P. W . 13-the mother-in-law-examined the corpse and to their shock discovered it to be the body of Ansuya.

A Panch nama, P-10, was prepared. P. W. 12 reported to the police officer, P.W. 27 (Ex.P-2) and investigations revived in the new direction.

P. W. 27 sent for the accused, who wanted to see her son, and they all met at the police station. P .W. 16 turned up at the police station, and breaking down perhaps under the stress of all that had happened, the accused said that she would confess.

Ex. P-7. the confession, was recorded which led to the discovery of the child's body, the bundle containing the burnt clothes and chisel, etc. (Ex. P-8). The langha of the accused was also recovered (Ex. P-9). Post-mortem was done over the body of the child, the accrised was arrested and eventually she was charged with offences under s. 302 ands. 201, I.P.C

Of course, there is .no direct evidence in the asc but the prosecu tion has placed a clinching wealth of circumstances and an extrajudicial confession to p. w. 16 to substantiate its version. It is trite law that Ex. P-7, the confession made while in police custody, is inadmissible except to the narrow extent salvaged by discoveries made in terms of s. 27 of the Evidence Act. We are left, therefore, with the confessional statement made to P. W. 16 orally. If it can be invested with veracity the guilt of the accused is virtually made out. But it is common-place law-and vehemently urged-that a retracted confession made orally to a near-villain like P. W. 16, who had reason to play for safety, was liab~ to be rejected without a second look at the statement.

The High Court-and the Sessions Court-have considered the many weaknesses relating to this confession.

Those defects have been pointed as deadly by counsel for the appellant. We are satisfied that the credence given to it by the courts below cannot be treated as strange or otherwise seriously erroneous.

Certainly he had no illfeeling for the accused and nothing palpably improbable has been made out fa the spontaneous unburdening of her bosom by the accused in

distre~, hastening to her paramour after the murder in the hope that she would now vanish with her lover, and telling him the murderuus truth.

Marginal mistrust generated by counsel's argument is inadequate to reject the testimony of P.W. 16. However, there are circumstances attaching to his whereabouts and the slight delay in his

statemer.t to the police and the dubiety of his character which permitted his openly wearing a stolen gold ring received from another man's wife. It is but fair, therefore, for the Court to search fo1 convincing orroboration. The precedents cited before us by counsel for the appellant take us no further than the need to ask for satisfactory reinforcement of a retracted confession. not too good to be treated 3< su!lidcnt in itself to fasten the guilt.

EDIGA ANAMMA v. A. P. STATE (Krishna Tyer, /,) 333

We are, therefore, thrown to the task of evaluating the circums.. lances and the extent to which they buttress up the sclfincriminatiou content in the confession.

Motive by itself is not much, particularly in the absence of direct evidence, but in the company of other factors it plays a probative role.

The discovery of the child's dead body and the clothes belonging to the accused, as well as the chisel of P. W. 2, the father, which was admittedly missing, are a clear pointer to the guilt, although by then1selves do not cover the entire distance from "may be" to "mu.st be" in the proof of guilt.

The noose of guilt is tightened by the testimony of P. Ws. 4, 13 and 15. P. W. 13, the mother-inl~)V of Ansuya, deposed that the deceased, her daughter-in-law, went out to fetch vegetables from the fields and the accused was seen following her with a bundle of clothes to wash them in the stream.

P, W. 15, an apparently disinterested inan, speaks of having seen the accused at Khallam at about 5 p.m. near where the deceased also was.

Although the trial court did not choose to believe him, the appellate court thought that it was not risky to rely on his testimony. P. W. 4 also swore to having seen the accused at Khallam at about sundown on the relevant date.

This shepherd also states that he saw the deceased collecting firewood near about there and heard the cries of a girl.

There has been a detailed discussion of the evidence of these witnesses by the High Court and notwithstanding the attempt elaborately made by Shri Kathuria, the evidence of these witnesses has not been fractured or rendered incredible.

The fact that the accused was seen last with the deceased in a place where and at a time when few others were around, the fact that the deceased's body was covered cleverly by the clothes of the accused-foolishly, as we now see by hind-sight-the discovery of telltale clothes off the baby's body, the lethal chisel, her blood-stained skiri concealed in the bush, all strongly probabilise the truth of the confession. In a well-considered judgment the learned Judges of the High Court have covered all the relevant evidence and reached the unhesitating conclusion that the accused had done to death Ansuya and Nirmala. Shri Kathuria's persistent effort to attack almost every part of the prosecution evidence testifies to his industry, which we appreciate, but hardly carries conviction. All the circumstances converge towards the focal point of guilt of the accused, her fatuous assumption that others would be deceived along a wrong trail has failed, and the impending cremation which would have blotted out a vital evidence was averted and truth has come out. We have hardly any doubt that the conviction deserves to be confirmed.

Counsel for the State correctly drew our attention to the great limitations on the exercise of the extraordiilary jurisdiction under art. 136 of the Constitution, particularly, when dealing with the con current findings of fact.

He is right in contending that We should dismiss arguments which nibble at the credibility of witnesses.

But finding the case hanging on a retracted extra-judicial confession from 9 L9;4 Sup Cf)74

a person who does not necessarily inspire great confidence, corroborJ.ted only by circumstantial evidence, we thought it proper to make a conscientious search to see if truth had been reached and n1iscarriage of justice averted.

We are satisfied, as already stated, that the accused's guilt, to the extent human instruments can apprehend, has been made out.

Guilt once established, the punitive dilemma begins. The choice between death penalty and life term-has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence bas to be picked out, although in our processual system there is neither comprehensi~· provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence.

However, in the Criminal Procedure Code, 1973, about to come into force, Parliament has wisely written into the law a post-<:onviction stage when the Judges shall "hear the accused on the question of sentence and then pass sentence on him according to law." (s. 235 & s. 248).

The case on hand has to be disposed of under the present Code and we have to fall back upon the method of. judicial hunch in imposing or avoiding capital sentence, aided by such circumstances as are present on the record introduced for the purpose of proving guilt.

We are aware that in Jagmohan Singh v. State of U.P.(1), there was an argument about the absence_ of procedure laid down by the law for determining whether the sentence of death or something less is appropriate in the case.

The Court viewed this criticism from the constitutional angle and observed :

"The Court is primarily concerned with all the facts and circumstances in so far as they are relevant to the crime and how it was committed and since at the end of the trial he is liable to be se_ntenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts.. Again he and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence.

In important cases like murder the court always gives a chance to the accused to addre'8 the court on the question of sentence."

...

"The sentence follows the conviction, and it is true that H no formal procedure for producing evidence with reference ---

(I) (1973} I S. C. C. 20.

10 the sentence is specifically provided. The reason is that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the court.'' ·

In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and •eeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined.

The prisoner is a young womaµ of 24 flogged out of her husban~'s house by the father-in-law, living with her parents with her only ch.ild, - sex-starved and single. The ethos of the rural area where the episode occurred does not appear. to have been too strict or inhibitive in matters of sex, for the deceased and the accused v.ere both married and still philandered out of wedlock with P. W. 16, a middle-aged widower who niade no bones about playing the freelance romancer simultaneously with them.

Therefore, the accused incautiously slipped down _into the sex net spread by P. W. 16, and while entangled and infatuated, discovered in the deceased a nascent rival.

With th., reckless passion of a jealous mistress she planned to liquidate her competitor and crudely performed the double murder, most foul.

Perhaps it may be a feable extenuation to remember that the accused is a young woman who attended routinely to tbe choreo of domestic drndgery and allowed her flesh to assert itself salaciously when invited by uncensured opportunity for lonely meetings with P. W. 16. It may also be worth mentioning that, apart from her youth and womanhood, she has a young boy to look after. What may perhaps be an extrinsic factor but recognised by the court as of humane significance in the sentencing context is the brooding horror of 'hanging' which has been haunting the prisoner in her condemned cell for over two years. The Sessfons Judge pronounced the death penalty on December 31, 1971, and we are now in February 1974.

This prolonged agony has ameliorative impact according to the rulings of this Court. The leading case in Piara Dusadh v.

Emperor(') was relied upon by this Court in N. Sreerarnula v.

State of Andhra Pradesh( 2 ). "The following passage from the Federal

C.Ourt decision is telling :

"In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has beides been awaiting the execution of this death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death." ·

m A. I. R. [1944] F. C. L

(2) (1974) c. L. J. 1775.

The decision in State of Bihar v. Pashupati Singh(') strikes a similar note. Although this consideration is vulnerable to the criticism made' by counsel for the State that as between two capital sentence cases that which is delayed in its ultimate disposal by the courts receives \he less terrible punishment while the other beard with quick despatch, for that very reason, fails to relieve the victim from condemnation to death.

In tjiis unclear situation it is unfortunate that there are no penological guidelines in the statute for preferring the lesser sentence, it being left to ad hoc forensic impressionism to decide for life or for death.

Even so, such sentencing material as we have been able to salvage from the guilt material in the paper book persuades us to award life imprison• ment to the prisoner and modify to that extent the death sentence imposed by the courts below.

It behoves us to indicate why we .have chosen this course. In the twilight of Jaw in this area, we have been influenced by the seminal trends present in the current sociological thinking and penal strategy in regard to murder. We have also given thought to the legal changes wrought into the penal code in free India. We confess to the impact made on us by legislative and judicial approaches made in other countries although we have warned ourselves against transplanting into our country concepts and experiences valid in the West

It cannot be en1phas.ised too often that crime and punishment are functionally related to the society in which they occur, and Indian conditions and stages of progress must dominate the exercise of judicial discretion in this case.

In India the subject of capital punishment has abortively como before Parliament earlier, although our social scientists have not made any sociological or statistical study in depth yet. On the statutory side there has been a significant change since India became free. Under s. 367(5} of the Criminal Procedure Code, as it stood before its amendment by Act 26 of 1955, the normal rule was to sentence to death a person convicted for murder and to impose the lesser sentence for reasons to be recorded in writing.

By amendment, this provision was deleted with the result that the court is now free to award either death sentence or life imprisonment, unlike formerly when death was the rule and life term the exception, for recorded reasons. In the new Criminal Procedure Code, 1973 a grat change has overtaken the law. Section 354 (3) reads :

"354(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, , the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."

The unmistakable shift in legislative emphasis is that life imprisona ment for murder is the rule. and capital sentence the exception to be

(1) A. I. R. 1973 S. C. 2699.

resorted to for reasons to be stated. In this context it may not be out of place to indicate-not that it is conclusive since it is now tentativethat under the Indian Penal Code (Amendment) Bill, 1972, s. 302 of the Penal Code has been substituted by a less harsh provision limiting death penalty to a few special cases (vide s. 122 of the new bill).

It is obvious that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat frohl total retention.

Jagmoha11 Singh(1) has adjudged capital sentence constitutional and whatever our view of the social invalidity of the death penalty, personal predilections must bow to the law as by this Court declared, adopting the noble words of Justice Stanley Mosk of California uttered in a death sentence case : "As a judge, I am bound to the law as I find it to be and not as I fervently wish it to bo". (The Yale Law Journal. Vol. 82, No. 6, P.l 138). Even so, when a wise discretion vests in the court, what arc the guidelines in this life and death choice? The humanism of our Constitution, echoing the concern of the Universal Declaration of Human Rights, is deeply concerned about the worth of the human person.

Ignoring the constitutional content of Anderson('), and Furman('), the humanist thrust of the judicial vote against cruel or unusual punishment cannot be lost on the Indian judiciary. The deterrence strategists argue that social defence is served only by its reten tion,-thanks to the strong association between murder and capital

punishmnt in the public imagination,-while the correctional therapists urge the reform of even murderers and not to extinguish them by execution. History hopefully reflects the march of civilization from terrorism to humanism and the geography of death penalty depicts retreat from country after country. The U.K. and the U.S.A. are notable instances.

Among the socialist nations it has been restricted to very aggravated forms of murder. The lex talionis principle of life for life survives in some States still, only to highlight that in punitive practice, as in other n1attcrs we do not live in 'one world' but do Jnove zigzag forward to the view that the uniquely deterrent effect of death penalty is, in part, challenged by jurists, commissions and statistics.

But as a counterweight we have what an outstanding justice of the Ontario appeal court said some years ago(') :

"The irrevocable character of the death penalty is a reason why all possible measures should be taken against injustice-not for its abolition. Nowad?ys, with the advent of armed criminals and the substantial increase in armed robberies, criminals of long standing if arrested, must expect long sentences.

However, if they run no risk of hanging, when found guilty of murder, they will kill policemen and witnesses with the prospect of a future no more unhappy, as one of them put it. than being fed, lodged, and clothed for the rest of their Jives."

(I) 119731 1 s. c. c: :o.

(3) 408 U S-218

(2) JOO California Reporter 152

(4) Capital Punishrnenl-Thorstn Sellin p, 83

The final position, as we see it, is neither with the absolute abolitionist nor with the Mosaic retributionist. Jt is relativist, and humanist, conditioned by the sense of justice and prevailing situation of the given society. In England, men once believed it to be just that a thief should lose his life (as some Arab Chieftains do to-day) but the British have gone abolitionist now without regrets. In contemporary India, the via media of legal deprivation of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and processual laws.

While deterrence through threat of death may still be a promising •trategy in some frightful areas of murderous crime, to espouse a monolithic theory of its deterrent efficacy is unscientific and so we think it right to shift the emphasis, to accept composite factors of penal strategy and not to put all the punitive eggs in the 'hanging' basket but hopefully to try the humane mix.

We assume that a better world is one without legal knifing of life, given propitious social changes. Even so, to sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socio-economic conditions and legislative judgment have a role.

Judicial activism can only be a signpost, a weather vane, no more. We think the penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or .hangmen's rope. 'Thou shalt not kill' is a slow commandment in law as in life, addressed to citizens as well as to States, in peace as in war.

We make this survey to justify our general pr<0ference wheres. 302 keeps two options open and the question is of great moment.

Let us crystallise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from 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 s. 302 read with s. 149, or again the accused has acted suddenly under another's instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the borrandous features of the crime and hapless, helpless state of the victim, and the like, steal the heart of the law for a sterner sentence. We cannot obviously feed into a judicial comput.er 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 retributiv-o ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.

Here, the criminal's social and personal factors are less harsh, her leminity and youth, her unbalanced sex and expulsion from the conjugal home and being the mother of a young boy-these individually inconclusive and cumulatively marginal facts and circumstances tend towards award of life imprisonment. We realise the speculative nature of. the correlation between crime and punishment in this case, as in many others, and conscious of fallibility dilute the death penalty. The larger thought that quick punishment, though only a life term, is more deterrent than leisurely judicial death award with liberal interposition of executive clemency, and that stricter checking on illicit weapons by the police deters better as social defense against murdetous violence than a distant death sentence, is not an extraneous component in a court verdict on form of punishment.

We have indicated enough to hold that, marginal vaccilation notwithstanding, the death sentence must be dissolved and life sentence substituted. To this extent the appeal is allowed, but otherwise the conviction is confirmed.

K.B.N.

Appeal allowed in part.

EDIGA ANAMMA

STATE OF ANDHRA PRADESH

February 11, 1974

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

Parliament

Code of Criminal Procedure

Section 367(5)

Sections 235, 238 and 354(3)

Penal Code

R. P. Kathuria

P. Ram Reddy

P. P. Rao

KRISHNA IYER

November 4 .. 1971

Ansuya

Kathuria

November 4, 1971

Konapur

Medak District

Andhra Pradesh

November 8, 1971

Nirmala

Anamma

I.P.C

Rachappa

Ansuya

Nirmala

Patel

Patel

November 5, 1971

Ankanpally

November 6, 1971

s. 302

I.P.C

s. 27

Khallam

Nirmala

art. 136

Criminal Procedure Code, 1973

s. 235

s. 248

December 31, 1971

India

Indian Penal Code

s. 302

Penal Code

s. 122

Jagmoha11 Singh(1

Stanley Mosk

California

Anderson

Furman

U.K.

U.S.A.

Capital Punishrnenl-Thorstn Sellin

England

s. 302

s. 149