2019 Supreme(P&H) 277

IN THE HIGH COURT OF PUNJAB AND HARYANA
A.B. Chaudhari, Surinder Gupta, JJ.
State of Haryana - Appellant
Vs.
Padam @ Parmod & Others - Respondents
Murder Reference Case No. 2 of 2016, Criminal Appeal (D) No. 90 of 2016, 91 of 2016, 99 of 2016, 107 of 2016, 108 of 2016, 187 of 2016
Decided On : 19-03-2019

Confession before Police--The expression `Magistrate` appearing in Section 26 of the Evidence Act includes `Executive Magistrate` and not only the `Judicial Magistrate`--Therefore, the confession made in the immediate presence of Executive Magistrate while accused is in police custody, held to be admissible in evidence
Rape--Compensation--Mentally ill girl was gang raped and brutally murdered--In addition to death sentence directions issued that a sum of Rs.50 lakhs be recovered from appellants/accused by attaching/selling their respective immovable properties

Headnote:(A) Evidence Act, 1872, S.26--Confession before Police--The expression `Magistrate` appearing in Section 26 of the Evidence Act includes `Executive Magistrate` and not only the `Judicial Magistrate`--Therefore, the confession contemplated by S.26 of Evidence Act made in the immediate presence of Executive Magistrate while accused is in police custody, held to be admissible in evidence--Contention that word `Magistrate` would mean only `Judicial Magistrate` not accepted.

       sub-Section (4) of Section 3 of the Criminal Procedure Code 1973 opens with words `where, under any law, other than this Code`, obviously refers to the Evidence Act. Thereafter clause (a) of sub-Section (4) of Section 3 of Criminal Procedure Code, 1973 in clear terms speaks about the function to be performed by the Judicial Magistrate. Thus as per Clause (a) the Executive Magistrate is neither involved at the stage of Section 26 of the Evidence Act in the matter of appreciation or sifting of evidence or formulation of any decision nor would expose any person to any punishment or penalty or detention in custody and also with no effect of sending such person for trial in Court. To repeat, under the scheme of the Code of 1973 sending for trial in the Court is the job of the committal Court or punishing any person or detaining in the custody is the function of a Judicial Magistrate and not of the Executive Magistrate. Therefore, it is Clause (b) of sub-Section (4) of Section 3, which would be relevant in respect of Executive Magistrate. The list stated in that clause is illustrative which would mean that recording of statement of the accused under Section 26 of the Evidence Act in his immediate presence would also fall in the Clause (b). The function to take any decision, whether to withdraw for a prosecution or sanction a prosecution, is always subject to the decision by the judicial courts. We, therefore, find that the Parliament has, in clear terms, inserted sub-Section (4) defining function of `Magistrate` in Clause (b). The function to be performed by a `Magistrate` (Executive Magistrate) as per Section 26 of the Evidence Act would not be of the nature specified in Clause (a) but would be as specified in Clause (b). Had there been any intention to confer the power only on the Judicial Magistrate, the Parliament would not have forgotten to insert the word `Judicial` before the word `Magistrate` in Section 26 Evidence Act. It is in the light of the above discussion, therefore, we are of the opinion that the reasons given by the referral Court as quoted earlier in paras 15 to 18, are in consonance with the scheme of the Criminal Procedure Code and the Evidence Act and therefore, we come to the conclusion that the expression `Magistrate` (in Section 26 of the Evidence Act includes) `Executive Magistrate` and not only the `Judicial Magistrate`. (Para 40)

       (B) Indian Penal Code, 1860, S.302 and S.376--Murder--Rape--Death Penalty--Dead Body of deceased lady who was suffering from mental illness with multiple severe injuries was found in the open field--Her body was partly eaten by stray dogs--Circumstantial evidence against each accused is quite conclusive--In addition, the findings recorded by the medical board which conducted post mortem of the dead body in minute details clearly corroborate the confessions of all the accused persons recorded in the immediate presence of the Executive Magistrate--Prosecution proved case beyond reasonable doubt--Keeping in view the brutality and cruelty which offence was committed; offence held to be rarest of rare case--Death Sentence confirmed. (Para 47)

       A mentally ill woman, who came out of her sister`s house situated on the outskirts of the town Rohtak, started walking towards unpopulated open area, was ensnared and waylaid by these appellants/accused by forcibly making her sit on their motorcycle. She was taken to two places where she was raped by all the appellants/accused one by one. The appellants/accused had consumed alcohol. They changed the spot due to fear as a police jeep had passed. They pushed her down in the field and started hitting her with the bricks. Rajesh @ Ghochru again raped her and she was again hit with bricks. She was still alive. What must be the excruciating pain to almost half dead young woman! Then the `animalism`, torment, highest order of cruelty rather "tsunami" of cruelty made thereafter is bound to petrify one and all. Rajesh @ Ghochru placed a cement sheet on her anus and thrust it inside by hitting it inside with brick. She shrieked for the last time and breathed her last. Now we ask the question to ourselves; what else is required to hold this case to be the rarest of rare! (Para 50)

       (C) Indian Penal Code, 1860, S.302 and S.376--Murder--Death Penalty--Enhancement of Fine--Rape--Held; that despite stern penal laws in places, deterrence in the matter of sentences including the death sentence is not satisfactory--Directions issued that a sum of Rs.50 lakhs be recovered within 2 months from appellants/accused (jointly or severally) by attaching/selling their respective immovable properties like plot, house, agricultural lid etc.--Out of 50 lakhs, Rs.25 lakhs to be given to sister of deceased and Rs.25 lakhs to State Government. (Para 54)

       (D) Interpretation of Statutes--Intention of Parliament--If there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent. That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. (Para 36)

       (E) Interpretation of Statutes--Intention of Parliament--The duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of the law-maker and only what is discernible is that of the court. (Para 36)