Certain directions are also given to the Law Commission which are as follows: a) Since the Law Commission itself is seized with the problem and is making investigation having regard to its terms of reference specially clause `H', thereof, this Court requests the Law Commission, which is headed by a distinguished retired judge of this Court, to undertake an enquiry and submit its recommendation in relation to the following matters:- I. Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional courts and other allied matters (including a rational and scientific definition of "arrears" and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised; and II. Specific recommendations whenever considered necessary on the above aspects in relation to each State be made as a product of consultative 4

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.254-262 OF 2012 (@ SLP(Crl.) Nos. 1581-1598/2009) Imtiyaz Ahmad .....Appellant(s) - Versus - State of Uttar Pradesh & Ors. ....Respondent(s) O R D E R GANGULY, J. Leave granted. 1. Heard learned counsel for the parties, including the learned Amicus Curiae. 2. In these appeals, this Court is concerned with a case where orders were passed by the High Court on several dates after the registration of FIR and on 1 stay order being granted, investigation, and framing of charges or trial thereafter in the matter remained pending in the High Court for a long period of time. The stay order dated 9.4.03 and several orders dated 29.4.03, 30.4.03, 10.10.03, 7.5.04, 26.5.05, 19.9.06, 27.9.06, 6.10.06 & 18.12.08 of the High Court passed thereafter have been impugned in these appeals. 3. The questions which crop up in this case are of serious magnitude and transcend the immediate facts in the appeal and are of great national importance. 4. These appeals are directed against a batch of interlocutory orders passed by a learned Single Judge of Allahabad High Court in Criminal Writ Petition No. 1786/2003 pending before the learned Judge. 2 5. It appears that by order dated 9.4.2003, the learned Single Judge admitted the writ petition filed by respondent Nos. 2 and 3 herein and also stayed the order dated 7.12.2002 passed by the Additional Chief Judicial Magistrate, Gautam Budh Nagar whereby direction had been given for registration of case against the said respondents. Thereafter, the matter has been listed on various days before the High Court but the matter was getting adjourned. As on the date of filing of the SLP, the writ petition had been kept pending for six years. 6. The SLP came up for hearing before this Court on 8.1.2010. This Court was very greatly concerned about the manner in which criminal investigation and trial have been stayed by the High court and also being aware of the fact that similar cases are happening in several High Courts in India wanted a serious consideration of the issues and appointed Mr. Gopal Subramanium, Senior Advocate 3 (at that time Solicitor General of India) to assist the Court as Amicus Curiae. 7. The Court also issued a direction dated 8.1.2010 to the Registrars General/Registrars of all the High Courts in the country to furnish a report containing statistics of cases pending in the respective High Courts in which the proceedings have been stayed at the stage of registration of FIR, investigation, framing of charges and/or trial in exercise of power under Article 226 of the Constitution or Sections 482 and/or 397 of the Code of Criminal Procedure. The report was to deal with the following types of cases: a) murder, b) rape, c) kidnapping, and d) dacoity. 8. In response to the above direction, most of the High Courts submitted their reports. Two High 4 Courts, Sikkim and Himachal Pradesh, reported that they do not have any such pending criminal cases of the types mentioned above. The reports submitted by different High Courts disclosed that altogether there were large number of such cases pending. Such pendency of cases was analyzed by the Amicus Curiae with the valuable assistance of Dr. Pronab Sen, Secretary and Dr. G.C. Manna, Deputy Director in the Ministry of Statistics and Programme Implementation. 9. The important findings arrived at after the analysis of the data are as under: a) Out of the four categories of cases, murder cases were found to be the most common type, accounting for 45% of all the cases. b) About one-fourth of all the cases pending are for 2 to 4 years from the date of stay order. 5 Nearly 8% of the cases are, however, pending for 6 years or more. c) In most of the cases in different High Courts, the duration for which the case is pending varies from 1 to 4 years. It is seen that 34 out of 201 cases in Patna High Court and 33 out of 653 cases in Allahabad High Court are pending for 8 years or more. 10. About total pendency, in the report dated 12.4.10 filed by the Amicus, the following position emerges. Table 1 below shows the total number of cases pending in each High Court and the percentage share of the total pendency. TABLE 1: TOTAL PENDENCY High Court Number of criminal cases by type % share of High Court in total number of cases Murder Rape Kidnapping Dacoity All (1) (2) (3) (4) (5) (6) (7) 6 Allahabad 144 100 341 68 653 28.6 Andhra Pradesh 46 8 2 4 60 2.6 Bihar 92 36 42 31 201 8.8 Bombay 14 5 4 6 29 1.3 Chhattisgarh 4 0 0 1 5 0.2 Delhi 4 5 2 0 11 0.5 Gauhati 6 5 2 8 21 0.9 Gujarat 56 9 34 16 115 5.0 J & K 4 4 6 0 14 0.6 Jharkhand 18 11 12 0 41 1.8 Karnataka 11 4 4 3 22 1.0 Kerala 12 2 5 1 20 0.9 Kolkata 431 209 21 48 709 31.1 Madhya Pradesh 10 14 1 5 30 1.3 Madras 0 1 2 0 3 0.1 Orissa 111 40 26 10 187 8.2 Punjab & Haryana 17 9 5 1 32 1.4 Rajasthan 23 11 17 5 56 2.5 Uttarakhand 18 19 24 10 71 3.1 All 1021 492 550 217 2280 100 11. It may be seen that the Hon'ble Calcutta High Court has the highest percentage share (31.1%) in total number of cases. It is followed by the Hon'ble High Courts of Allahabad (28.6%), Patna 7 (8.8%) and Orissa (8.2%). Thus, these four High Courts taken together account for 76.9% of all the pendency. 12. Table 2 gives the distribution of all cases and the period for which the cases are pending in each High Court. TABLE 2: DURATION OF PENDENCY High Court Duration for which pending Nil <6m 6m-1y 1-2y 2-4y 4-6y 6-8y >8y All (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Allahabad 1 38 126 190 158 90 17 33 653 Andhra Pradesh 0 16 16 17 11 0 0 0 60 Bihar 70 14 11 33 27 8 4 34 201 Bombay 0 1 6 8 6 3 2 3 29 Chhattisgarh 0 1 0 0 0 1 2 1 5 Delhi 0 1 2 4 0 3 1 0 11 Gauhati 0 3 5 4 3 0 6 0 21 Gujarat 0 8 6 34 46 20 1 0 115 J & K 0 5 2 3 4 0 0 0 14 Jharkhand 0 7 4 2 9 3 9 7 41 Karnataka 9 4 3 5 0 1 0 0 22 Kerala 0 1 0 1 5 13 0 0 20 Kolkata 7 40 104 135 209 176 38 0 709 8 Madhya Pradesh 0 2 6 2 12 6 1 1 30 Madras 0 1 0 1 1 0 0 0 3 Orissa 0 9 37 52 60 18 4 7 187 Punjab & 0 10 9 4 6 1 1 1 32 Haryana Rajasthan 0 8 8 11 22 6 0 1 56 Uttarakhand 0 7 10 9 21 20 3 1 71 All 87 176 355 515 600 369 89 89 2280 13. The category wise distribution is as follows: TABLE 3: CATEGORYWISE DISTRIBUTION Type of Case Duration for which pending (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Nil <6m 6m-1y 1-2y 2-4y 4-6y 6-8y >8y All Murder 25 65 132 182 309 211 43 54 1021 Rape 25 46 83 111 127 68 21 11 492 Kidnapping 16 51 120 156 116 67 12 12 550 Dacoity 21 14 20 66 48 23 13 12 217 All 87 176 355 515 600 369 89 89 2280 14. It is clear from the above that out of the four categories, murder cases account for nearly 45% of the total pendency. This share increases if only the oldest pending cases are considered. Out of 9 the 178 cases pending for 6 years or more, 97 are murder cases - i.e. a share of almost 55%. 15. In that report indications were also given about the frequency of listing of cases by different High Courts. 16. On the hypothesis that if a case is listed frequently, it indicated that the matter was being actively considered by the High court, data was also called for on the number of times the case was listed after the grant of the stay order. 17. The following table gives the average number of times a matter was listed for hearing after the grant of stay order. High Court Total number of cases Average number of times the matter was listed per case Allahabad 653 4.0 1 Andhra Pradesh 60 3.4 Bihar 201 21.7 Bombay 29 5.1 Chhattisgarh 5 4.3 Delhi 11 12.2 Gauhati 21 17.0 Gujarat 115 13.4 J & K 14 7.7 Jharkhand 41 3.5 Karnataka 22 5.0 Kerala 20 11.4 Kolkata 709 N/A Madhya Pradesh 30 3.0 Madras 3 2.3 Orissa 187 5.8 Punjab & Haryana 32 8.8 Rajasthan 56 7.9 Uttarakhand 71 3.1 All 2280 6.1 18. However, the above analysis was not pursued any further, since there was no way of ascertaining which of the hearings were effective and which were non-effective. Hence, it could be misleading to draw any conclusions from this data. 1 19. On the basis of the aforesaid data it is clear that problems which the administration of justice faces today is of serious dimensions. Pendency is merely a localized problem, in the sense that it affects some High Courts far more than others. As seen above, just four High Courts in this country amount for 76.9% of the pendency. This may well be because of various social, political and economic factors, which are beyond the scope of the current enquiry by this Court. 20. It is a matter of serious concern that 41% of the cases have been pending for 2-4 years, and 8% (approximately 1 out of every 12 cases) have been pending for more than six years. 21. After considering the first report by the Amicus, this Court passed the following order on 3.5.2010:- 1 "The suggestions given by the Solicitor General have been considered. But before passing any order, we deem it proper to request learned counsel representing Allahabad High Court to place before the Court total number of cases in which power under Article 226 of the Constitution of India or Section 482 of the Code of Criminal Procedure has been exercised and the proceedings of the criminal case have been stayed at the stage of investigation or trial." 22. Pursuant to the above order, the Allahabad High Court furnished information of a total of 10,541 cases where power under Article 226 of the Constitution of India or Section 482 of the Code of Criminal Procedure has been exercised and the proceedings of the criminal case have been stayed at the stage of investigation or trial. Pursuant to a request of the Amicus Curiae, the Allahabad High Court also furnished the above data in electronic form. 23. The data was then analyzed by the Amicus Curiae with the help of Dr. T.C.A. Anant (the current Secretary) and Dr. G.C. Manna, Deputy Director 1 General in the Ministry of Statistics and Programme Implementation. Then a second report was prepared and placed for the consideration of this Court. 24. Important findings from the second report are:- "Out of the data for 10,541 cases received, data for 10,527 cases could be meaningfully analysed (as the rest had some missing elements). The important findings in respect of these are: (a) As high as 9% of the cases have completed-more than twenty years since the date of stay order. (b) Roughly 21 % of the cases have completed more than ten years. 1 (c) Average pendency per case (counted from the date of stay order till July 26, 2010) works out to be around 7.4 years. (d) Charge-sheet was found to be the most prominent stage where the cases were stayed with almost 32% of the cases falling under this category. The next two prominent stages are found to be "appearance" and "summons", with each comprising 19% of the total number of cases. (If "appearance" and "summons" are considered interchangeable, then they would collectively account for the maximum of stay orders." 25. Table below gives the duration for which cases have been pending since the date of the stay order: No. of years Number of cases Percentage of cases passed 1 0 763 7.2 1 1250 11.9 2 1272 12.1 3 1024 9.7 4-5 2003 19.0 6-7 1125 10.7 8-10 920 8.7 11-15 577 5.5 16-20 648 6.2 21-25 631 6.0 More than 25 314 3.0 All 10527 100.0 26. A perusal of that information reveals that shockingly thirty-two cases have been pending for thirty years or more. 27. The data was also analyzed to ascertain the stage of the proceedings at which stay order was granted. Table below may be seen:- Stage at which Number of cases Percentage of cases proceeding stayed 1 Chargesheet 3365 32.0 Appearance 2016 19.2 Summons 1951 18.5 "Further 563 5.3 proceedings stayed" Before charge 380 3.6 Trial 330 3.1 Evidence 323 3.1 Complaints 315 3.0 Cognizance 245 2.3 Disposal 237 2.3 Issue of notice 178 1.7 Others 624 5.9 All 10527 100.0 28. As stated in the First Report and Second Report, the fact-finding exercise directed by this court has revealed a problem of serious concern. It is respectfully submitted that it is simply unacceptable for a case to remain pending for three decades under any circumstances, and more so when the pendency is a consequence of the stay proceedings granted by the High Court. 1 29. Thereafter, vide Order dated 26.08.2010, this Court was of the view that the existing infrastructure in the High Court's and District Court's must be improved and had directed that a comprehensive exercise should be undertaken to prepare the system in which all the cases instituted in the Court are listed for hearing without undue delay and some arrangement be made for monitoring of the listing and disposal of the cases. As a pilot project, the system is to be first implemented in the Allahabad High Court. 30. Thereafter, meetings were held between the officers of NIC, the Ministry of Statistics, the Allahabad High Court and the Amicus Curiae and efforts were made to develop the comprehensive system that the Court has directed. Another Report was filed by the Amicus Curiae setting out the steps taken by the Allahabad High Court, the Central Government and also certain suggestions 1 given by Dr. G.C. Manna, Director General, Ministry of Statistics, who had been requested to visit the High Court to interact with the officials there to see how a better system of listing and tracking cases could be developed. 31. Thereafter, vide Orders dated 14.07.2011 and 17.08.2011, this Court again called for status reports from all the High Courts as to what steps had been taken specifically in the context of this case, in order to expeditiously dispose of matters where proceedings are stayed at the stage of registration of FIR, investigation, framing of charges or trial. Status reports were furnished by some of the High Courts and reports from other High Courts were awaited. 32. Then, vide Order dated 29.09.2011, this Court observed that considering the larger issues which are involved in this case which virtually have a direct impact on administration of justice, it was 1 fit and proper to implead the Central Government in this proceeding. 33. It is submitted that the issues being considered in this case have far reaching implications for maintaining of rule of law. Where investigation/trial is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation/trial may not be very fruitful for the simple reason, that evidence may no longer be available. Witnesses may not be able to recall the events properly, and some may have moved away or even died. Even the parties to the litigation may not survive. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises 2 people to look for short-cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law. 34. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and inequitable (See United Nations Development Programme, Access to Justice - Practice Note (2004)]. 35. The present case discloses the need to reiterate that 'Access to Justice' is vital for the Rule of Law, which by implication includes the right of 2 access to an Independent Judiciary. It is submitted that the stay of investigation or trial for significant periods of time runs counter to the principle of Rule of Law, wherein the rights and aspirations of citizens are intertwined with expeditious conclusion of matters. It is further submitted that delay in conclusion of criminal matters signifies a restriction on the right of access to justice itself, thus amounting to a violation of the citizens' rights under the Constitution, in particular under Article 21. 36. In a very important address to the Virginia Bar Association in 1908, William H. Taft observed that one reason for delay in the lower courts is the disposition of judges to wait an undue length of time in the writing of their opinions or judgments. [See William H. Taft, The Delays of the Law, Yale Law Journal. Vo1.18. No.1 (Nov., 1908), pp.28-39)]. The Judge should deliver the judgment immediately upon the close of the argument. It is 2 almost of as much importance that the court of first instance should decide promptly as that it should decide right. It should be noted that everything which tends to prolong or delay litigation between individuals, or between individuals and State or Corporation, is a great advantage for that litigant who has the longer purse. The man whose rights are involved in the decision of the legal proceeding is much prejudiced in a fight through the courts, if his opponent is able, by reason of his means, to prolong the litigation and keep him for years out of what really belongs to him. 37. Dispatch in the decision making process by Court is one of the great expectations of the common man from the judiciary. A sense of confidence in the Courts is essential to maintain a fabric of order and liberty for a free people. Delay in disposal of cases would destroy that confidence and do incalculable damage to the society; that people 2 would come to believe that inefficiency and delay will drain even a just judgment of its value; that people who had long been exploited in the small transactions of daily life come to believe that courts cannot vindicate their legal rights against fraud and overreaching; that people would come to believe that the law - in the larger sense cannot fulfil its primary function to protect them and their families in their homes, at their work place and on the public streets. [See Belekar Memorial Lecture Series, organized by High Court Bar Association, Nagpur. Lecture delivered on August 31, 2002] 38. Merely widening the access to justice is not enough to secure redress to the weaker sections of the community. Post Independence, it was evident that litigation in India was getting costlier and there was agonizing delay in the process. After the adoption of the Constitution and creation of a Welfare State, the urgency of some structural 2 changes in the justice delivery system was obviously a major requirement. In the 14th Report of the Law Commission under the Chairmanship of the first Attorney General for India, Shri M.C. Setalvad, it was observed as under:- "In so far as a person is unable to obtain access to a court of law for having his wrongs redressed.... Justice becomes unequal and laws which are meant for his protection fail in their purpose." 39. In a very important discourse Roscoe Pound argued that by responding to the doctrine of social justice, the concept of justice has advanced through various stages. [See Roscoe Pound, Social Justice and Legal Justice (Address delivered to the Allegheny County Bar Association, April 5, 1912]. At the first stage justice was equated with dispute settlement. At the second stage justice was equated with maintenance of harmony and order. In the third stage, justice was equated with individual freedom. Pound argued that a fourth stage had developed in society, but had not 2 yet been fully reflected in the courts, and that was what Pound called 'social justice'. That is the ideal form of justice where the needs of the people are satisfied, apart from ensuring that they have freedom. 40. Despite complicated social realities, it is submitted that Rule of Law, independence of the judiciary and access to justice are conceptually interwoven. All the three bring to bear upon the quality of aspirations which are guaranteed under our Constitution. In order to fulfil the aspiration, it is important that the system must be a successful legal and judicial system. This would involve improvement of better techniques to manage courts more efficiently, cutting down costs and duration of proceedings and to ensure that there is no corruption in the judiciary and the establishment of the judiciary and would also require regular judicial training and updating. 2 41. The memorable words of Lord Devlin (as quoted by D.M. Dharmadhikari, J.) are pertinent to note: "... The prestige of the judiciary and their reputation for stark impartiality is not at the disposal of any government; it is an asset that belongs to the whole nation ... " [See Justice D.M. Dharmadhikari, Nature of Judicial Process, (2002) 6 SCC (Jour) 1. 42. Under the principle of the Rule of Law, adequate protection of the law must be given to all persons and to give meaning to it, there must exist an unimpeded right of access to justice. In the 'Words of Lord Bingham: "It would seem to be an obvious implication of the principle that everyone is bound by and entitled to the protection of law that people should be able, in the last resort, to go to court to have their civil rights and claims determined. An unenforceable right or claim is a thing of little value to anyone." [See Tom Bingham, The Rule of Law, p. 85] 43. The right of access to justice has been recognised as one of the fundamental and basic human rights in various international covenants and charters. 2 [See Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR)] 44. The right of access to justice is also recognised under Article 67 of the Statute of the International Criminal Court (Rome Statute). 45. In the context of the European Union, Article 47 of the European Charter on Fundamental Rights provides for the right to an effective remedy and to fair trial. With respect to the Council of Europe, the European Convention on Human Rights and Fundamental Freedoms, Article 6 significantly protects this right to access justice. 46. The European Court of Human Rights has held that a broader interpretation must be given to Article 6(1) of the ECHR laying emphasis on 'right to a fair administration of justice' in the case of Delcourt v. Belgium. 2 "...In a democratic society within the meaning of the Convention, the right to a fair administration of justice hold such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision." [See [1970] ECHR 1.] 47. Article 8 of the Universal Declaration of Human Rights provides that: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." 48. Article 16 of the Principles of Freedom from Arbitrary Arrest and Detention provides that: "To ensure that no person shall be denied the possibility of obtaining provisional release on account of lack of means, other forms of provisional release than upon financial security shall be provided." 49. The principle of 'Access to Justice or Courts' is recognized as a right in South Africa's Constitution as well: "Access to Courts. 34. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where 2 appropriate, another independent and impartial tribunal or forum." 50. The learned Amicus urged that having regard to the paramount importance of the right to access, the Court which he argues is a basic fundamental right specially the Central Government and the State Governments have a duty to ensure speedy disposal of cases for proper maintenance of rule of law and for sustaining peoples' faith in the judicial system. He further argued that with the present infrastructure it is not possible for Courts, whether it is District Courts or the State High Courts or this Court to effectively dispose of cases by just and fair orders within a reasonable timeframe. The learned Amicus also urged that the problem is huge and the considerations are momentous. To understand the magnitude of the problem, the Government must appoint a permanent commission to make continuous recommendation on measures which are necessary to streamline the existing justice delivery system. In support of 3 his submission, he referred to the Report of Lord Woolf submitted to Lord Chancellor in England: "...It will not only assist in streamlining and improving our existing systems and process; it is also likely, in due course, itself to be a catalyst for radical change as well..." [Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Woolf's Report), 1996, Chapter 21, para 1] 51. The learned Amicus submitted that this huge pendency of cases operates as a burden on the mindset of a Judge. He submitted rightly that the inner charter of the judge is constantly under a pressure to somehow decide the case and the quality of justice suffers. Therefore, according to him, it is the constitutional duty of both the Central Government and the State Government to provide adequate infrastructure to the judiciary and only an independent commission which functions on a permanent basis can assess the necessity of the required infrastructure and make recommendations to the Government for providing 3 necessary steps which the Government should take to make the Constitutional promise of justice a reality. The learned Amicus developed his argument by referring to various decisions of this Court and also various provisions of the Constitution. He further submitted that the plea of the Government that in view of financial crunch it cannot provide the necessary infrastructure cannot be countenanced by this Court and in support of the said submission he referred to the decision of this Court in the case of R. Ramachandra Rav v. State of Karnataka, reported in (2002) 4 SCC 578. The relevant observations made in the said judgment are as follows:- "...The law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty or administrative inability..." 52. As the Central Government has been impleaded in this proceeding it was represented by Mr. Harin P. Raval, the learned ASG. 3 53. The learned ASG very fairly submitted that the questions debated in this case, by and large, are not adversarial. The learned ASG submitted that the Government also accepts that right of access to Court is a fundamental and constitutional right. The learned ASG also accepted that if right to access justice is denied to the citizens then most of the rights given under the Constitution virtually become a rope of sand. The learned ASG submitted that the Government is aware of the importance of these rights and are taking several steps to make these rights vibrant. In the counter affidavit, which has been filed by the Under Secretary, Ministry of Law and Justice dated 9.1.2012 several steps which have been taken by the Government to ensure speedy justice and to reduce delay are as follows:- I. Appointment of Court Managers in High Courts and Sub-ordinate Courts. II. Vision Statement and Action Plan adopted by the National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays. 3 III. To prepare National Arrear Grid IV. National Mission for Justice Delivery and Legal Reforms. V. National and State Legal Service Authorities constituted under Legal Service Authorities Act, 1987. VI. National Court Management System (as proposed by Hon'ble Chief Justice of India). 54. The learned ASG referred to the agenda notes and the minutes of the meeting of the Advisory Council of the National Commission for Justice Delivery and Legal Reforms. He submitted that the National Mission spanning from 2011 to 2016 would focus on two major goals envisaged in the Vision document, namely, (i) increasing access by reducing delays and arrears in the system, and (ii) enhancing accountability through structural changes and by setting performance standards and capacities. 55. It was also pointed out that the tentative action plan covers five strategic initiatives and one of them is improving infrastructure of the District 3 and Subordinate Courts and creation of special and additional courts like morning and evening courts etc. He referred to various pages of the Meeting of the Advisory Council of the National Mission held on 18.10.2011 in Vigyan Bhawan, New Delhi to show that the Government is aware of the problem and is seeking to address the same. However, in the course of his arguments the learned ASG took the leave of this Court and filed another affidavit dated 18.1.2012 by Dr. S.S. Chahar, Joint Secretary and Legal Advisor, Ministry of Law and Justice. 56. By filing the said affidavit the learned ASG wanted to urge before this Court that even though the Government is aware of the urgency of the problem and the immediate necessity of addressing it, Government is not willing to accept the suggestion of the learned Amicus for setting-up of a permanent commission for the purposes suggested by the learned Amicus. 3 57. The learned ASG on the other hand submitted in view of the stand taken by the Central Government in its affidavit dated 18.1.2012 that the existing terms of reference of the 19th Law Commission are wide enough to include within its ambit the question of setting up additional courts for the purpose of tackling the arrears so that access to justice is ensured. In this connection, he referred to the terms of reference of the 19th Law Commission. The said terms of reference are as follows:- "A. Review/Repeal of obsolete laws: i. To identify laws which are no longer needed or relevant and can be immediately repealed. ii. To identify laws which are in harmony with the existing climate of economic liberalization which need no change. iii. To identify laws which require changes or amendments and to make suggestions for their amendment. iv. To consider in a wider perspective the suggestions for revision/amendment given by Expert Groups in various Ministries/Departments 3 with a view to coordinating and harmonizing them. v. To consider references made to it by Ministries/Departments in respect of legislation having bearing on the working of more than one Ministry/Department. vi. To suggest suitable measures for quick redressal of citizens grievances, in the field of law. B. Law and Poverty i. To examine the Law which affect the poor and carry out post-audit for socio-economic legislation. ii. To take all such measures as may be necessary to harness law and the legal process in the service of the poor. C. To keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands of the times and in particular to secure: - i. Elimination of delays, speedy clearance of arrears and reduction in costs so as to secure quick and economical disposal of cases without affecting the cardinal principle that decisions should be just and fair. ii. Simplification of procedure to reduce and eliminate technicalities and devices for delay so that it operates not as an end in itself but as a means of achieving justice. iii. Improvement of standards of all concerned with the administration of justice. D. To examine the existing laws in the light of Directive Principles of State Policy and to 3 suggest ways of improvement and reform and also to suggest such legislation as might be necessary to implement the Directive Principles and to attain the objective set out in the Preamble to the Constitution. E. To examine the existing laws with a view to promoting gender equality and suggesting amendments thereto. F. To revise the Central Acts of General Importance so as to simplify them and to remove anomalies, ambiguities and inequities. G. To recommend to the Government measure for bringing the statute book up-to-date by repealing obsolete laws and enactments or parts thereof which have outlived their utility. H. To consider and to convey to the Government its views on any subject relating to law and judicial administration that may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). I. To consider the requests for providing research to any foreign countries as may be referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs). J. To examine the impact of globalization on food security, unemployment and recommend measures for the protection of the interests of the marginalized. The Commission shall devote, its time bound attention to all issues relating to item (A) of the terms of reference as indicated above, viz., review/repeal of obsolete laws and shall make its recommendations to Government for 3 repeal of obsolete laws and for appropriate amendments in others as may be found necessary ON TOP PRIORITY basis. The Commission shall submit its reports in Hindi and English with sufficient number of copies for being placed on Tables of both houses of Parliament. The Law Commission shall also make its reports available through website or otherwise as soon as reports are submitted to the Government. Various Law Commissions have given about 234 Reports so far. Many of them are made available on the website of Law Commission. Since many of the Reports are voluminous it will be difficult for researchers to read entire Report online. To facilitate the researchers to choose the topics of their area and to create awareness amongst Judges, Lawyers, Law Teachers and Students on the various recommendations of the Law Commission, a brief summary of all the Reports of the Law Commission shall be made available by the Law Commission, online." 58. The learned ASG submitted that in view of Clause `H' of the terms of reference of the 19th Law Commission, the present Law Commission can go into the question of making a proper research and a scientific and empirical study to assess the requirement of setting up additional courts and making available additional infrastructures for 3 ensuring free access to court and speedier disposal of cases. The learned ASG submitted that the pendency of cases cannot be tackled by only setting up additional courts. Various other factors are also involved including the cooperation of the members of the Bar, the quality of legal education, policy of legislation, recruitment of quality manpower and such other issues which the Law Commission should urgently address and make recommendations on. 59. The learned ASG also submitted that having regard to the provision of Article 235 of the Constitution the control over district and subordinate courts rests with the respective High Courts in each State. In assessing the requirement of setting up of additional courts and creating additional benches, the opinion of the High Court and the State Government have to be ascertained including the question of budget allocation to each State Government. The learned ASG also 4 submitted that since the Government is keenly interested to address these problems it is open to any suggestion. It was submitted that any direction from this Court will help the Government and the Law Commission to tackle this problem in a very effective way. 60. The Court, upon a detailed and very anxious consideration of the aforesaid issues and specially huge pendency of arrears in different High Courts and considering the stand of the Central Government in its affidavit dated 18.1.2012 is giving the following directions. I. Certain directions are given to the High Courts for better maintenance of the Rule of Law and better administration of justice: While analyzing the data in aggregated form, this Court cannot overlook the most important factor in the administration of justice. The authority of the High Court to 4 order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that: (i) such an extraordinary power has to be exercised with due caution and circumspection. (ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial. 4 (iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued. 61. It is true that this Court has no power of superintendence over High Court as the High Court has over District Courts under Article 227 of the Constitution. Like this Court, High Court is equally a Superior Court of Record with plenary jurisdiction. Under our Constitution High Court is not a Court subordinate to this Court. This Court, however, enjoys appellate powers over High Court as also some other incidental powers. But as the last court and in exercise of this Court's power to do complete justice which includes within it the power to improve the administration of justice in public interest, this Court gives the aforesaid guidelines for sustaining common man's faith in the rule of law and the justice delivery system, both being inextricably linked. 4 II. Certain directions are also given to the Law Commission which are as follows: a) Since the Law Commission itself is seized with the problem and is making investigation having regard to its terms of reference specially clause `H', thereof, this Court requests the Law Commission, which is headed by a distinguished retired judge of this Court, to undertake an enquiry and submit its recommendation in relation to the following matters:- I. Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional courts and other allied matters (including a rational and scientific definition of "arrears" and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised; and II. Specific recommendations whenever considered necessary on the above aspects in relation to each State be made as a product of consultative 4 processes involving the High Courts and other stake holders, including the Bar. b) In doing so, the Commission may take such assistance from the Central Government and the State Governments as it thinks fit and proper. c) Accordingly, it is directed that on the Commission's request for assistance both the Central Government and the State Governments shall render all possible assistance to the Commission to enable it to discharge its functions, as directed by this Court in its order. The Commission shall at the discretion of its Chairman be free to co-opt purposes of the enquiry to be undertaken by it. Such legal & technical, experts as may be considered necessary by it for an effective and early completion of the assignment hereby made. d) The Commission is requested to submit its report within six months from the date of this order. 4 e) Such recommendations be sent to the Registrar General of this Court in sealed covers. 62. The matter may appear before the appropriate Bench after being nominated by the Hon'ble the Chief Justice on the 7th August, 2012 for further consideration by this Court of the recommendations by the Law Commission and if necessary for further directions to be passed in these appeals. ......................J. (ASOK KUMAR GANGULY) .......................J. New Delhi (T.S. THAKUR) February 1, 2012 4

"Restorative and Reparative Theories These are not theories of punishment, rather, their argument is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centred, although in some versions they encompass the notion of reparation to the community for the effective crime. They envisage less resort to custody, with onerous community based sanctions requiring offenders to work in order to compensation victims and also contemplating support and counselling for offenders to regenerate them into the community. Such theories therefore tend to act on a behavioural premises similar to rehabilitation, but their political premises is that compensation for victims should be recognised as more important than notions of just punishment on behalf of the State" 27. The provision for payment of compensation has been in existence for a considerable period of time on the statute book in this country. Even so, criminal courts have not, it appears, taken significant note of the said provision or exercised the power vested in them thereunder. The Law Commission in its 42nd Report at para 3.17 refers to this regrettable omission in the following words: 25

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1108 OF 2002 Roy Fernandes ...Appellant Versus State of Goa and Ors. ...Respondents J U D G M E N T T.S. THAKUR, J. 1. This appeal by special leave arises out of an order dated 22nd July 2002 passed by the High Court of Bombay at Goa whereby the appeal filed by the appellant has been dismissed and the conviction and sentence awarded to him by the trial Court for offences punishable under Sections 143, 148, 323, 325 and 302 read with Section 149 IPC upheld. 1 2. Felix Felicio Monteiro aged about 60 years at the time of the incident was the President of a Chapel at Bastora in Goa. The Chapel it appears is situated next to the house of one Rosalina Monteiro. The chapel and the house owned by Rosalina are accessible from the main road by a path about 20-25 meters in length. A dispute regarding the said path and resultant litigation was it appears at the bottom of the incident that culminated in the sad and untimely demise of Felix Felicio Monteiro. 3. On 11th May, 1997 the deceased Shri Monteiro, his wife PW1 Sebastiana Monteiro, PW4 Julie Monteiro, her husband PW6 Salish Monteiro besides a few others went to the Chapel equipped with the necessary tools and implements in order to put up a fence around the property. The prosecution story is that while pits for fixing cement poles required for the fencing were being dug in front of the house of Rosalina Monteiro, her daughter named Antonetta raised an objection and used harsh words against those engaged in digging the pits work. A few minutes later a Maruti Van arrived on the spot carrying "5 persons including the appellant herein", who went to Salish PW6, - 2 and gave him a fist blow on the face and he started bleeding. He then gave a blow on the face of the deceased Felix Felicio Monteiro and threw him on the ground. While the deceased was being helped by his companions to stand up and move towards the road, Anthony D'Souza one of the accused persons took out a knife and gave a stab on the left thigh of the deceased which unfortunately cut one of his arteries that led to profuse bleeding. The result was that the injured breathed his last even before he could be helped by John, his neighbour to rush him to the hospital. At the hospital, he was declared brought dead. The hospital all the same informed the Mapusa Police Station. P.I. Subhash Goltekar-PW22 from the police station recorded the statement of PW1-Sebastiana Monteiro in which she named the appellant. The police completed the investigation which included recovery of the weapon of offence pursuant to the disclosure made by accused No.2, Anthony D'Souza and lodged a chargesheet against the accused persons for offences punishable under Sections 143, 147, 148, 201, 302 and 323 read with Section 149 3 IPC. The Additional Sessions Judge to whom the case was - eventually committed charged the accused persons including the appellant herein with the commission of offences punishable under Sections 143, 148, 302 read with Section 149 IPC and Sections 323 and 326 read with Section 149 IPC and Section 201 read with Section 149 IPC. At the trial the prosecution examined as many as 22 witnesses to prove its case against the accused persons. The accused persons did not lead any evidence in defence. 4. The Trial Court eventually found all the five accused guilty of offences punishable under Sections 143, 148, 323, 325 and 302 read with Section 149 IPC and sentenced each one of them to undergo one month's RI under Section 323 and two months' RI for the offence punishable under Section 143, three months' RI under Section 148 and one year RI and a fine of Rs.1000/- each under Section 325 besides imprisonment for life and a fine of Rs.2,000/- for offence punishable under Section 302 of the IPC. 4 5. Aggrieved by the judgment and order of the Trial Court the accused persons preferred Criminal Appeal Nos. 69/2000 and 77/2000 before the High Court of Bombay at - Goa. By the impugned judgment in this appeal the High Court upheld the conviction and sentence awarded to the appellant, Roy Fernandes and Anthony D'Souza while setting aside the conviction and sentence awarded to the remaining three accused persons giving them the benefit of doubt. It is noteworthy that against the judgment of the High Court Anthony D'Souza who had actually stabbed the deceased, preferred a special leave petition which was dismissed by this Court by order dated 15th April, 2011. To that extent the matter stands concluded. The present appeal is, in that view, limited to the question whether the conviction and sentence awarded to the appellant Roy Fernandes for the offences with which he stood charged, is in the facts and circumstances of the case, legally sustainable. 6. We have heard learned counsel of the parties at considerable length. It is common ground that the incident 5 in question had taken place on account of a sudden dispute arising out of the proposed fencing of the Chapel property which act was apparently seen by Rosalina Monteiro as an obstruction to the use of the passage/pathway by her for - the beneficial use of the property. There is evidence on record to suggest that the pending litigation between the villagers on the one hand and Rosalina on the other hand embittered the relationship between the parties including that with the deceased. Putting up of fence around the Chapel property thus provided a flash point leading to the unfortunate incident in which a valuable life was lost for no worthwhile reason. From the deposition of PW1 Sebastiana Monteiro, it is further clear that after the exchange of hot words between the deceased and his companions on the one hand and Antonetta, daughter of Rosalina on the other, the latter had made a call to the appellant who had no connection with the property in question or the dispute except that he was engaged to get married to Antonetta. As to what transpired over the telephone between the appellant and Rosalina is not known. Ms. Subhashini, learned counsel for the State of Goa fairly conceded that 6 PW1 Sebastiana Monteiro was not a witness to the telephonic conversation between the two. Looking to the sequence of events that unfolded on the fateful day what appears to have happened is that on receiving a telephonic - call from Rosalina, the appellant rushed to the spot alongwith four others to intervene and possibly prevent the putting up of the fence by the deceased and his companions, on account of the pending dispute between the two groups. It is, therefore, reasonable to hold that when the appellant received a telephonic call from Rosalina possibly asking for help to prevent the putting up of the fence, the appellant and his companions rushed to the spot to do so. In the absence of any evidence leave alone credible evidence it is not possible for us to hold that the accused persons had come to the place of occurrence with the common object of killing the deceased Felix Felicio Monteiro. 7. That, however, is not the end of the matter. The next and perhaps an equally important question would be whether the appellant and his companions at all constituted 7 an unlawful assembly and if they did whether murder of the deceased Felix Felicio Monteiro by Anthony D'Souza who was one of the members of the unlawful assembly would in the facts and circumstances of the case attract the - provisions of Section 149 so as to make the appellant herein also responsible for the act. 8. Mr. Luthra made a feeble attempt to argue that the acquittal of the other three accused persons should be sufficient to negative the theory of there being an unlawful assembly of which the appellant was a member. He did not, however, pursue that argument for long and, in our opinion, rightly so because the legal position is fairly well- settled by the decision of this Court in Khem Karan & Ors. Vs. The State of U.P. & Anr. [1974 (4) SCC 603] where this Court observed: "6. xxxxxxxxx the fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under Section 149 read with the substantive offence if - as in this case the court has taken care to find - there are other persons who might not have been identified or convicted but were party to the crime and together constituted the statutory number." 8 9. To the same effect is the decision of this Court in Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596] where this Court observed: "10. xxxxxxxxx If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite natural and logical to infer - or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding based on good evidence and sound reasoning that the participants were five or more in number." 10. Acquittal of three of the five accused persons comprising the unlawful assembly does not in the light of the settled legal position make any material difference. So long as there were four other persons with the appellant who had the common object of committing an offence the assembly would be unlawful in nature acquittal of some of those who were members of the unlawful assembly by reason of the benefit of doubt given to them notwithstanding. 9 11. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC. Section 149 IPC reads: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - If an offence is committed by any member of - an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 12. A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly `knew that the same is likely to be committed in prosecution of the common object of the assembly'. As noticed above, the commission of the offence of murder of 10 Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 of the - IPC, which may to the extent the same is relevant for the present be extracted at this stage: "Section 141 : Unlawful Assembly: An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-- First.-- xxxxxxxxxxxxxxxxxxxxxxxx Second.- xxxxxxxxxxxxxxxxxxxxxxxx "Third-To commit any mischief or criminal trespass, or other offence;" 13. From the evidence on record, we are inclined to hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased 11 by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point. 14. What then remains to be considered is whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up - the fence. The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji and Ors. Vs. State of U.P. [1989 (1) SCC 437] in the following words: "8.xxxxxxxxxxxxxxxxxxxxxx Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case." 12 15. The Court elaborated the above proposition in Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596] as : "11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of June 7, 1967, shows pre-planning. Some of the assailants had sharp- edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre- concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34 IPC also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon - proof of facts, beyond reasonable doubt, which makes such a principle applicable. (See: Yeshwant v. State of Maharashtra; and Sukh Ram v. State of U.P.). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible, or invariable rule applicable for arriving at what is really an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated." 16. Coming then to the facts of the present case, the first and foremost of the notable circumstances is that the appellant was totally unarmed for even according to the 13 prosecution witnesses he had pushed, slapped and boxed those on the spot using his bare hands. The second and equally notable circumstance is that neither the cycle chain nor the belt allegedly carried by two other members of the unlawful assembly was put to use by them. Mr. Luthra argued that the prosecution had failed to prove that the assembly was armed with a chain and a belt for the seizure witnesses had not supported the recovery of the said articles from the accused. Even if we were to accept the prosecution case that the two of the members of the unlawful assembly were armed as alleged, the non-use of - the same is a relevant circumstance. It is common ground that no injuries were caused by use of those weapons on the person of the deceased or any one of them was carrying a knife. The prosecution case, therefore, boils down to the appellant and his four companions arriving at the spot, one of them giving a knife blow to the deceased in his thigh which cut his femoral artery and caused death. The question is whether the sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of the unlawful assembly 14 namely preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly. Our answer is in the negative. 17. This Court has in a long line of decisions examined the scope of Section 149 of the Indian Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149 of the IPC. - 18. In Chikkarange Gowda & Ors. Vs. State of Mysore [AIR 1956 SC 731] this Court was dealing with a case where the common object of the unlawful assembly simply was to chastise the deceased. The deceased was, however, killed by a fatal injury caused by certain member of the unlawful assembly. The court below convicted the other member of the unlawful assembly under Section 302 read with Section 149 IPC. Reversing the conviction, this Court held: 15 "9. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149 Indian Penal Code was not justified in law." - 19. In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai Vs. Emperor [AIR 1946 Pat 242]: "Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for 16 the offence committed during the occurrence does not arise". 20. This Court then reiterated the legal position as under: "The question is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 IPC. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, much less that they would be used in order to cause death." 21. In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572] this Court was dealing with a case where five persons - armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible 17 possession at any cost. Section 149 of IPC was, therefore, attracted and the conviction of the members of the assembly for murder legally justified. This Court analysed Section 149 in the following words: "6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the - offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly 18 clearly point to such knowledge on the part of them all." 22. In Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR 1960 SC 725], this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar - Behera and Others Vs. State of Orissa [2002 (8) SCC 381] and Bishna Alias Bhiswadeb Mahato and Others Vs. State of West Bengal [2005 (12) SCC 657] similarly explain and reiterate the legal position on the subject. 19 23. In the case at hand, there is, in our opinion, no evidence to show that the appellant knew that in prosecution of the common object of preventing the putting up of the fence around the chapel the members of the assembly or any one of them was likely to commit the murder of the deceased. There is indeed no evidence to even show that the appellant knew that Anthony D'Souza was carrying a knife with him, which he could use. The evidence on the contrary is that after stabbing the deceased Anthony D'Souza had put the knife back in the cover from where he had drawn it. The conduct of the members of the assembly especially the appellant also does not suggest that they intended to go beyond preventing the laying of the fence, leave alone committing a heinous offence of murder of a person who had fallen to the ground - with a simple blow and who was being escorted away from the spot by his companions. We have, therefore, no hesitation in holding that the Courts below fell in error in convicting the appellant for murder with the aid of Section 149 of the IPC. 20 24. Having said that, we have no manner of doubt that the conviction of the appellant for offences punishable under Sections 143, 148, 323 and 325 read with Section 149 of the IPC is perfectly justified. The evidence on record clearly makes out a case against the appellant under those provisions and the Courts below have rightly found him guilty on those counts. In fairness to Mr. Luthra, we must mention that even he did not assail the conviction of the appellant under those provisions. What was argued by the learned counsel is that this Court could reduce the sentence to the period already undergone by the appellant having regard to the fact that the incident in question had taken place nearly 15 years back and the appellant had not only suffered the trauma of a prolonged trial and uncertainty but his life had also suffered a setback, in as much Antonetta had divorced him. Mr. Luthra submitted that the appellant - was a first offender and being a middle aged man, could be spared the ignominy and hardship of a jail term at this stage of his life when he was ready to abide by any 21 directions of this Court regarding compensation to the victims of the incident. Support for his submissions was drawn by Mr. Luthra from the decisions of this Court in Hansa Vs. State of Punjab [1977 (3) SCC 575] and Hari Singh Vs. Sukhbir Singh & Others [1988 (4) SCC 551]. In Hansa's case (supra), the accused had been convicted for an offence under Section 325 and sentenced to undergo one year rigorous imprisonment. The High Court had, however, given the accused the benefit of probation of offenders Act, and let him off on his giving a bond for good conduct for a year. This Court held that the power vested in the Court had been correctly exercised. Even in Hari Singh's case (supra), the court granted a similar benefit to a convict under Section 325 who had been sentenced to undergo two years rigorous imprisonment. The Court in addition invoked its power under Section 357 of the Cr.P.C. to award compensation to the victim, and determined the amount payable having regard to the nature of the injury - inflicted and the paying capacity of the appellant. This Court said: 22 "10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default." 25. Section 357 of the Code of Criminal Procedure embodies the concept of compensating the victim of a - crime and empowers the courts to award a suitable amount. This power, it goes without saying, shall be 23 exercised by the Courts having regard to the nature of the injury or loss suffered by the victim as also the paying capacity of the accused. That the provision is wide enough to cover a case like the present where the appellant has been found guilty of offences punishable under Sections 323 & 325 of the IPC has not been disputed before us. Indeed Mr. Luthra relied upon the provision and beseeched this Court to invoke the power to do complete justice short of sending the appellant back to the prison. Mrs. Subhashini also in principle did not have any quarrel with the proposition that the power was available and can be exercised, though according to her, the present being a gross case of unprovoked violence against law abiding citizens the exercise of the power to compensate the victims ought not to save accused from suffering a deterrent punishment warranted under law. 26. Prof. Andrew Ashworth of Oxford University Centre for Criminological Research has in the handbook of Criminology - 24 authored by him referred to what are called "Restorative and Reparative Theories" of punishment. The following passage from the book is, in this regard, apposite: "Restorative and Reparative Theories These are not theories of punishment, rather, their argument is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centred, although in some versions they encompass the notion of reparation to the community for the effective crime. They envisage less resort to custody, with onerous community based sanctions requiring offenders to work in order to compensation victims and also contemplating support and counselling for offenders to regenerate them into the community. Such theories therefore tend to act on a behavioural premises similar to rehabilitation, but their political premises is that compensation for victims should be recognised as more important than notions of just punishment on behalf of the State" 27. The provision for payment of compensation has been in existence for a considerable period of time on the statute book in this country. Even so, criminal courts have not, it appears, taken significant note of the said provision or exercised the power vested in them thereunder. The Law Commission in its 42nd Report at para 3.17 refers to this regrettable omission in the following words: 25 "We have a fairly comprehensive provision for payment of compensation to the injured party under Section 545 of the Criminal Procedure Code. It is regrettable that our courts do not exercise their statutory powers under this Section as freely and liberally as could be desired. The Section has, no doubt, its limitations. Its application depends, in the first instance, on whether the Court considers a substantial fine proper punishment for the offence. In the most serious cases, the Court may think that a heavy fine in addition to imprisonment for a long terms is not justifiable, especially when the public prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf." 28. In Manish Jalan Vs. State of Karnataka (2008) 8 SCC 225, even this Court felt that the provision regarding award of compensation to the victims of crimes had not been made use by the Courts as often as it ought to be. This Court observed: "Though a comprehensive provision enabling the Court to direct payment of compensation has been in existence all through but the experience has shown that the provision has really attracted the attention of the Courts. Time and again the Courts have been reminded that the provision is aimed at serving the social purpose and should be exercised liberally yet the results are not heartening." 29. In the above case the appellant had been convicted under Sections 279 and 304A of the IPC. The substantive sentence of imprisonment was in that case reduced by this - 26 Court to the period already undergone with payment of fine and a compensation of an amount of rupees one lakh to the mother of the victim. Reference may also be made to the decision of this Court in Rachpal Singh and Anr. Vs. State of Punjab AIR 2002 SC 2710, where this Court emphasised the need to assess and award compensation by the accused to the gravity of the offence, needs of the victim's family as also the paying capacity of the accused. 30. Coming to the case at hand we need to keep in mind that the incident in question had taken place as early as in the year 1997. The appellant has faced a prolonged trial and suffered the trauma of uncertainty arising out of his conviction by the Trial Court and the High Court in appeal. Besides the appellant have had no criminal antecedents or involvement in any case, before or after the incident in question. He has already undergone nearly three months of imprisonment out of the sentence awarded to him. He has, in the above backdrop, offered to compensate the victims of the incident in question suitably. Mr. Luthra submitted on instructions that the appellant is running a - 27 hotel in Goa and is earning an amount of Rs.10-12 lakhs per year from the same implying thereby that he is in a position to deposit the amount of compensation ordered by this Court. In the totality of the above circumstances, we are inclined to interfere in so far as the quantum of sentence awarded under Section 325 of the IPC is concerned. 31. In the result, we allow this appeal in part, set aside the conviction and sentence awarded to the appellant under Section 302 read with Section 149 of the IPC and acquit the appellant of that charge. The conviction of the appellant for offences punishable under Sections 323 and 325 of the IPC is affirmed and the appellant is sentenced to the period of imprisonment already undergone by him. We further direct that the appellant shall deposit a sum of Rs.3,00,000/- towards compensation to be paid to the widow of the deceased Shri Felix Felicio Monteiro, failing her to his surviving legal heirs. A sum of Rs.1,00,000/- shall be similarly deposited towards compensation payable to Shri Salish Monteiro, besides a sum of Rs.50,000/- to be paid to Ms. Conceicao Monteiro failing to their legal 28 representatives. The deposit shall be made within two months from today failing which the sentence of one year awarded to the appellant shall stand revived and the appellant taken in custody to serve the remainder of the period. The appeal is disposed of with the above modification and directions. ..................................J. (ASOK KUMAR GANGULY) ....................................J. (T.S. THAKUR) New Delhi February 1, 2012 29