Undue Influence means

Section 123 (2) gives the “undue influence” which could be exercised by a candidate or his agent during an election a much wider connotation than this expression has under the Indian Contract Act. “Undue influence”, as an election offence under the English law is explained as follows in Halsbury’s Laws of England, Third Edition, Vol. 14, pp. 223-224 (para 387):

“A person is guilty of undue influence, if he directly or indirectly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts, or threatens to inflict by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting.

“ A person is also guilty of undue influence if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting”.

It will be seen that the English law on the subject has the same object as the relevant provisions of Section 123 of our Act. But, the provisions of Section 123 (2), (3) and (3A) seem wider in scope and also contain specific mention of what may be construed as “undue influence” viewed in the background of our political history and the special conditions which have prevailed in this country[AIR 1975 SC 1788 ]

Sources of law

Article 1

1. The sources of the Spanish legal system are statutes, customs and general legal principles.

2. Any provisions which contradict another of higher rank shall be invalid.

3. Customs shall only apply in the absence of applicable statutes, provided that they are not contrary to morals or public policy, and that it is proven.

4. Legal uses which are not merely for the interpretation of a declaration of will shall be considered customs.

5. General legal principles shall apply in the absence of applicable statute or custom, without prejudice to the fact that they contribute to shape the legal system.

6. Legal rules contained in international treaties shall have no direct application in Spain until they have become part of the domestic legal system by full publication thereof in the Spanish Official State Gazette.

7. Case law shall complement the legal system by means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application of statutes, customs and general legal principles.

8. The Courts shall have the inexcusable duty to resolve in any event on the issues brought before them, abiding by system of sources set forth herein.

Article 2

1. Statutes shall enter into force twenty days after their full publication in the Official State Gazette, unless otherwise provided therein.

2. Statutes may only be repealed by subsequent statutes. Such repeal shall have the scope expressly provided therein, and shall always extend to any provisions of the new statute on the same matter which are incompatible with the prior statute. Mere abrogation of a statute shall not entail recovery of the force and effect of any provisions repealed thereby.

3. Statutes shall not have retroactive effect, unless otherwise provided therein.


Spanish Civil code

Notification interpretation of

Supreme Court in Commissioner of Central Excise, Surat-I v. Favourite Industries, 2012 (7) SCC 153, while considering exemption notification issued under Central Excise Tariff Act, 1985 laid down following in paragraph 35 to 40:-

“35. The notification requires to be interpreted in the light of the words employed by it and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous.

36. In Commr. of Customs v. Rupa & Co. Ltd., this Court has observed that the exemption notification has to be given strict interpretation by giving effect to the clear and unambiguous wordings used in the notification. This Court has held thus: (SCC pp. 41314, para 7)

“7. … However, if the interpretation given by the Board and the Ministry is clearly erroneous then this Court cannot endorse that view. An exemption notification has to be construed strictly but that does not mean that the object and purpose of the notification is to be lost sight of and the wording used therein ignored. Where the wording of the notification is clear and unambiguous, it has to be given effect to. Exemption cannot be denied by giving a construction not justified by the wording of the notification.”

(emphasis supplied)

37. In CCE v. Rukmani Pakkwell Traders, this Court has also held: (SCC p. 804, para 5)

“5. … It is settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a particular notification.”

(emphasis supplied)

38. In Kohinoor Elastics (P) Ltd. v. CCE this Court has held: (SCC p. 533, para 7)

“7. … When the wordings of the notifications are clear and unambiguous they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available.”

(emphasis supplied)

39. In Compack (P) Ltd. v. CCE, this Court has observed thus: (SCC p. 306, para 20)

“20. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders16 is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the respondents, would amount to addition of the words `only out of’ or `purely out of’ the base paper and cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to.”

(emphasis supplied)

40. In CCE v. Mahaan Dairies, this Court has held: (SCC p. 800, para 8) “8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE. We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside.”

(emphasis supplied)”


ESSAR STEEL INDIA LTD.  vs STATE OF GUJARAT [SC]

Circumstantial evidence

In a case where there is no direct witness to prove the prosecution case, conviction of the accused can be made on the basis of circumstantial evidence provided the chain of the circumstances is complete beyond all reasonable doubt. It was observed by this Court in the case of Prakash v. State of Karnataka, (2014) 12 SCC 133, as follows:

“51. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact.

“6. In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused. (Lakhjit Singh v. State of Punjab, 1994 Supp (1) 173)”

It has also been the observation of this Court in Musheer Khan v. State of M.P., (2010) 2 SCC 748, apropos the admissibility of evidence in a case solely based upon circumstantial evidence that

“55. Section 27 starts with the word `provided’.

Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay v. Kathi Kalu Oghad, [AIR 1961 SC 1808].

 The Privy Council in Pulukori Kottaya v. King Emperor, [1947 PC 67] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates.

 The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused.


STATE OF UTTAR PRADESH  Vs. SUNIL [SC]

To be a witness – means

7. After careful perusal of the evidence and material on record, we are of the considered opinion that the following question would play a crucial role in helping us reaching an upright decision:

Whether compelling an accused to provide his fingerprints or footprints etc. would come within the purview of Article 20(3) of the Constitution of India i.e. compelling an accused of an offence to be a “witness” against himself?

It would be relevant to quote Article 20(3) of the Constitution of India which reads as follows:

“Article 20: Protection in respect of conviction for offences.

(1) … … …

(2) … … …

(3) No person accused of any offence shall be compelled to be a witness against himself.”

8. The answer to the question above-mentioned lies in judicial pronouncements made by this Court commencing with celebrated case of State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein it was held:

“To be a witness’ may be equivalent to `furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body. `Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – thought they may have intended to protect an accused person from the hazards of self incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.”

9. We may quote another relevant observation made by this Court in the case of Kathi Kalu Oghad, (supra).

“When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a `personal testimony’. The giving of a `personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression `to be a witness.”


STATE OF UTTAR PRADESH  Vs. SUNIL [SC]

Moral turpitude

 Supreme Court in Pawan Kumar v. State of Haryana and another, (1996) 4 SCC 17 and paragraph 12 of the decision is relevant for present purposes. The said paragraph was as under:

“12. Moral turpitude” is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:

“… The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not;

(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.

(2) whether the motive which led to the act was a base one.

(3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.

Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude.”

Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirements of the policy decision above-quoted.”

9. The aforesaid decision shows that Section 294 IPC was not part of the list of offences appended to the instructions dated 26.03.1975 and as such it was held by this Court that the conviction of the appellant therein under Section 294 IPC would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances which led to his conviction, met the requirement of the policy decision.

10. In the aforesaid context, decision of the Division Bench of the High Court of Punjab and Haryana in State of Haryana and another v. Ram Chander, LPA No.95 of 2013 (O&M) decided on 18.02.2013 on which reliance was placed by the respondent, is also significant wherein same instructions dated 26.03.1975 were considered by the Division Bench and paragraphs 11 and 12 of the said decision were as under:

“11. Following principles can be culled out, as contained in the aforesaid instructions:-

(a) Those who are involved in moral turpitude should not be taken in government service.

(b) Those who are convicted of offences, which do not involve moral turpitude or those who are released under the Probation of Offenders Act, should not suffer any disability in respect of obtaining government service.

(c) With regard to those convicted of offence not involving moral turpitude, laying down uniform policy, is not possible and it is left to the appointing authority in each case to make detailed inquiry and satisfy himself fully that ex-convict has reformed himself after release from jail and nothing adverse about his conduct has come to notice after his conviction. Such an inquiry is to be made invariably through Police Department.

(d) What amounts to moral turpitude is also stated in para (iii) of the instructions.

(e) Discretion is given to the competent authority while taking decision in accordance with principle mentioned in these instructions.


STATE OF HARYANA  Vs. VED KAUR [SC]

Aggravating circumstances

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court held thus:

“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.”

40. In Bachan Singh case, (1980) 2 SCC 684, the Court referred to the decision in Furman v. Georgia, 33 L.Ed. 2d 346 = 408 US 238 (1972) and noted the suggestion given by the learned counsel about the aggravating and the mitigating circumstances. While discussing about the aggravating circumstances, the Court noted the aggravating circumstances suggested by the counsel which read as follows: (Bachan Singh case, (1980) 2 SCC 684, SCC p. 749, para 202)

“Aggravating circumstances.-A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

After reproducing the same, the Court opined: (SCC p. 749, para 203)

“203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”

41. Thereafter, the Court referred to the suggestions pertaining to mitigating circumstances: (Bachan Singh case, (1980) 2 SCC 684, – SCC p.750 para 206)

“Mitigating circumstances.-In the exercise of its discretion in the above cases, the court shall take into account the following circumstances.-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

After reproducing the above, the Court observed: (SCC p. 750, para 207)

“207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.

42. In the said case, the Court has also held thus: (Bachan Singh case, (1980) 2 SCC 684, SCC p. 751, para 209)

“209. … It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

43. In Machhi Singh and others v. State of Punjab, (1983) 3 SCC 470 a three-Judge Bench has explained the concept of rarest of the rare cases by stating that: (SCC p. 487, para 32)

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in `death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of `reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.”

44. Thereafter, after adverting to the aspects of the feeling of the community and its desire for self-preservation, the Court opined that the community may well withdraw the protection by sanctioning the death penalty. The Court in that regard ruled thus: (Machhi Singh case, (1983) 3 SCC 470, SCC p. 487, para 32)

“32. … But the community will not do so in every case. It may do so `in the rarest of rare cases’ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

It is apt to state here that in the said case, emphasis was laid on certain aspects, namely, manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of the victim of murder.

45. After so enumerating, the propositions that emerged out from Bachan Singh3 were culled out which are as follows: (Machhi Singh case, (1983) 3 SCC 470, SCC p. 489, para 38)

“38. … The following propositions emerge from Bachan Singh case, (1980) 2 SCC 684:

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

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

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

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

46. Thereafter, the three-Judge Bench opined that to apply the said guidelines, the following questions are required to be answered: (Machhi Singh case, (1983) 3 SCC 470, SCC p. 489, para 39)

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

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

In the said case, the Court upheld the extreme penalty of death in respect of three accused persons.”

5. In the light of the principles as stated above, the facts of the present matter were considered by this Court in the Judgment under review as under:-

“57. Keeping in view the aforesaid authorities, we shall proceed to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed. When the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation at the manner in which the brutal crime is committed. We are absolutely conscious that Judges while imposing sentence, should never be swayed away by any kind of individual philosophy and predilections. It should never have the flavour of Judge-centric attitude or perception. It has to satisfy the test laid down in various precedents relating to the rarest of the rare case. We are also required to pose two questions that have been stated in Machhi Singh case, (1983) 3 SCC 470.

In Ramnaresh and Others v. State of Chhattisgarh, (2012) 4 SCC 257 this Court considered the import of governing principles regarding death sentence and summed up that it is the cumulative effect of both the aggravating and mitigating circumstances that need to be taken into account. Paragraphs 76 to 81 of the decision are as under:-

“76. The law enunciated by this Court in its recent Judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh and thereafter, in Machhi Singh. The aforesaid Judgments, primarily dissect these principles into two different compartments-one being the “aggravating circumstances” while the other being the “mitigating circumstances”. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) Cr.P.C.

Aggravating circumstances

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances

(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.

77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.

Principles

(1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence.

(2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.

(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.


VASANTA SAMPAT DUPARE  Vs. STATE OF MAHARASHTRA [SC]

PAYABLE in Section 40(a)(ia) of Income Tax Act, 196 means

Income Tax Act, 1961 – Section 40(a)(ia)

The word ‘payable’ in Section 40(a)(ia) would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words, i.e. ‘payable’ and ‘paid’, denote different meanings. The Punjab & Haryana High Court, in P.M.S. Diesels & Ors., referred to above, rightly remarked that the word ‘payable’ is, in fact, an antonym of the word ‘paid’. At the same time, it took the view that it was not significant to the interpretation of Section 40(a)(ia). Discussing this aspect further, the Punjab & Haryana High Court first dealt with the contention of the assessee that Section 40(a)(ia) relates only to those assessees who follow the mercantile system and does not cover the cases where the assessees follow the cash system. Those contention was rejected in the following manner:

“19. There is nothing that persuades us to accept this submission. The purpose of the section is to ensure the recovery of tax. We see no indication in the section that this object was confined to the recovery of tax from a particular type of assessee or assessees following a particular accounting practice. As far as this provision is concerned, it appears to make no difference to the Government as to the accounting system followed by the assessees. The Government is interested in the recovery of taxes. If for some reason, the Government was interested in ensuring the recovery of taxes only from assessees following the mercantile system, we would have expected the provision to so stipulate clearly, if not expressly. It is not suggested that assessees following the cash system are not liable to deduct tax at source. It is not suggested that the provisions of Chapter XVII-B do not apply to assessees following the cash system. There is nothing in Chapter XVII-B either that suggests otherwise.

20. Our view is fortified by the Explanatory Note to Finance Bill (No. 2) of 2004. Sub-clause (ia) of clause (a) of Section 40 was introduced by the Finance Bill (No. 2) of 2004 with effect from 01.04.2005. The Explanatory Note to Finance Bill-2004 stated:-

“….. ….. ….. ….. ..

With a view to augment compliance of TDS provisions, it is proposed to extend the provisions of section 40(a)(i) to payments of interest, commission or brokerage, fees for professional services or fees for technical services to residents, and payments to a resident contractor or sub-contractor for carrying out any work (including supply of labour for carrying out any work), on which tax has not been deducted or after deduction, has not been paid before the expiry of the time prescribed under sub-section(1) of section 200 and in accordance with the other provisions of Chapter XVII-B. ……”

The same view was taken by a Division Bench of the Calcutta High Court in Commissioner of Income Tax v. Crescent Export Syndicate, (supra). It was held:-

“12.3. It is noticeable that Section 40(a) is applicable irrespective of the method of accounting followed by an assessee. Therefore, by using the term `payable’ legislature included the entire accrued liability. If assessee was following mercantile system of accounting, then the moment amount was credited to the account of payee on accrual of liability, TDS was required to be made but if assessee was following cash system of accounting, then on making payment TDS was to be made as the liability was discharged by making payment. The TDS provisions are applicable both in the situation of actual payment as well of the credit of the amount. It becomes very clear from the fact that the phrase, `on which tax is deductible at source under Chapter XVII-B’, was not there in the Bill but incorporated in the Act. This was not without any purpose.”


PALAM GAS SERVICE  Vs. COMMISSIONER OF INCOME TAX [SC]

Advocatetanmoy Judicial Dictionary

INDIAN LEGAL SYSTEM AND CIRCUMASTANCES

Judicial Dictionary

Judicial Dictionary

Judicial Dictionary

Judicial Dictionary

Judicial Dictionary

 

Place of public worship – means

‘place of public worship’ means a place, whether a temple or by any other name called, to whomsoever belonging which is dedicated to, or for the benefit of, or is used generally by, Hindus, Jains, Sikhs or Buddhists or any section or class thereof, for the performance of any religious service or for offering prayers therein; and includes all lands and subsidiary shrines appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped, or are used for bathing or for worship;

  • Bombay Hindu Places of Public Worship (Entry Authorization) Act (XXXI of 1956)

  • Bombay Harijan Temple Entry Act, 1947