ATTEMPT TO MURDER

K. Sadasivan, Judge

The law of attempt is an important branch of criminal law. A crime has several stages; “first it must occur to the mind; it must then be considered and determined upon, preparation more or less extensive must, inmost cases be made for it and it must be carried into execution. The execution may either be prevented or may be fully carried out, in which case it may either accomplish or fail to accomplish, the full object which the criminal proposed to himself.” Attempt to commit any crime is not indictable; attempt to assault, for instance, is not actionable. In an attempt to stab or beat, a person might raise his hand, but if he be withheld by another from behind and no assault takes place, no crime is committed. But attempt to coin money, to commit burglary, or poison or murder is punishable, even if only a part of the process in the commission of the offence, is performed. In the case of counterfeiting or burglary or dacoity sometimes, even preparation is punished; for instance, purchase of instruments in the case of counterfeiting, intending to be used for counterfeiting (S. 233 IPC.) and making preparation in the case of dacoity (S. 399). This is not enough in the case of attempt to murder. In a case of attempt to murder by poisoning, mere purchase of poison with that intent is not actionable. The poison should be mixed with the food intended for the victim, or if death is intended by firing a loaded gun the trigger atleast should be drawn; then only the stage would be reached to call it an actionable or indictable attempt. In cases of attempt to murder the most significant aspect to be remembered is that the will of the offender is taken for the deed, when it is accompanied by an overt act clearly indicating the intention of the offender. In other words, the person is punished not for the act actually committed by him, but, for the act which would have resulted if not prevented by any intervening circumstance, i. e., to say, he is punished for the act intended by him. Intention, therefore, is the guiding factor.

It is necessary that the intention existed in the mind of the prisoner from the very beginning, i. e„ he must have planned the act in his mind before starting for its fulfillment. For finding the prisoner guilty of this offence, the question is often asked whether it is essential that the prosecution should prove that the prisoner had the intention right through, or is it enough that the prosecution succeeds in showing that it would have been a case of murder had death ensued? In the words of Patterson, J., proof of the latter element is not sufficient to find the accused guilty of attempt to murder. In R. v. Crusewhere a man was indicted for inflicting an injury dangerous to life on a child with intent to murder it, the learned Judge in summing up observed, “Before you can find the prisoner guilty of this felony (attempt to murder) you must be satisfied that when he inflicted this violence on the child he had in his mind a positive intention of murdering the child. Even if he did it under circumstances which would have amo­unted to murder if death had ensued, that will not be sufficient unless he actually intended to commit murder.” From this statement of the law, it follows that the offence of attempt to murder is to be culled out, not from the gravity of the act committed, but from the intention with which it was committed. A misguided youth finding a girl in a lonely forest-all alone-made overtures to her and his attempt having been foiled, got exasperated and fired at her a sporting gun and escaped from the place, (Moidu v. State of Kerala-1967 KLT. 223). Here the first and the foremost element viz., intention to kill is absent; because the accused could never have formed in his mind the intention to kill when he sighted the girl, neither at the time he made his amorous approach to her. When his attempt was frustrated could he have formed the intention? This, even if Patterson’s theory-is not accepted has to be inferred from the nature and extent of the violence and injurious means employed to effect his object. Is the shot from a sporting gun likely in the natural and ordinary course of things to cause death? The evidence was that it was a sporting gun used for the purpose of scaring away birds and cattle from the cultivation. The gun itself was not recovered and there was no previous instance brought out in evidence of any human being or for that matter, any bird or animal having been killed by shooting with it. Thus the other element viz., that the act should be such as to cause death in the natural and .ordinary course of events was also absent. The accused was, therefore, liable only for the act actually committed viz., hurt by dangerous weapon falling under S. 324 IPC.

Elucidating the latter aspect further, the intention should be coupled with an act sufficient in the natural and ordinary course of events to cause death. If a man attempts to commit a crime in a manner in which success is physically impossible, say shooting at a figure which he falsely supposes to be a man, with intent to murder, could it be said that he has committed the offence? He has not committed any offence at all though he had the criminal intent (intent to kill) strong in him In 4 B. H. C. R. (Cr. Ca) 17, quoted by Mayne in his book on Criminal Law, the prisoner pointed a rifle at his oTicer. but it was stuck up before he had drawn the trigger and the rifle was found to be loaded but not capped. On the same line of reasoning he was also found not guilty though he had a guilty mind. In the same category could be clas-sed a recent case of the Allahabad High Court, Bhagavan Din v. State(AIR. 1967 All. 580) where a body of persons armed with guns, revolvers and lathis emerged from a retreat and attacked the two victims who were proceeding along a field in the early hours of the morning. They approached the victims crying “maro” meaning “kill”. Three of the accused who were armed with firearms (two with guns and one with revolver) fired from a short distance of 18 or 20 paces, causing injuries to both the victims. Pellets, a good number of them, got stuck up on the body of the victims. The conviction was entered by the High Court, only under S. 324 IPC. and not under S. 307. Death did not ensue because the pellets due to their inherent defect, were incapable of piercing further into the body and cause death. That the assailants had the intention to kill can, on no account, be denied in the case but a shot from such a gun discharging such pellets was impassible to kill. The act must synchronise with the intention; then only could it be said that an indictable attempt is committed. In these cases, unlike in R v. Cruse the requisite intention was pre&nt;but the act committed fell short of the type of act necessary to create the oSence viz., the act sufficient in the natural and ordinary course of events to cause death. In the absence of intention to kill, the accused can be punished if at all, only for the act actually committed by him as was done in Moidu v. State of Keralaand Bhagavan Din v. State and a series of other cases; like Emperor v. M. V. Prabhu(15 B D. R. 991) where the Bombay High Court held that “although the hatchet is a deadly weapon, a blow with it is not, in our opinion, an act ordinarily capable Of causing death in the natural and ordinary course of events”; Sarju Prasad v. State of Bihar (AIR. 1965 SC 843) where the Supreme court observed, ‘it is true that the injury was inflicted on a vital part of the body but the fact remains that no vital organ of the body was injured thereby......We are therefore unable to say with anything near certainty that the appellant had such intention or knowledge. In this state of evidence we must hold that the prosecution has not established that the offence committed by the appellant falls squarely under S.307 IPC. In our opinion it amounts to an offence under S.324 IPC”; and in Rekha Mandal v. The State of Bihar (1968-1 S. C. W. R. 14) the Supreme Court held:-

“S.307 requires that the act must bs done with such intention or knowledge or under such circumstances that if death is caused -by that act the offence of murder will emerge. In the present case the offence though serious enough did not go beyond S. 324 IPC. (injury sustained was a cut wound with a ‘farsa’ on the head 5” length and 3/4” bone deep).”

The point, therefore, to be borne in mind is that it is not merely the seriousness of the injury or the weapon that matters; but the intention enter­tained by the prisoner before he actually embarks on the project. The blows must have been struck with that intention. When once the prosecution, is able to make out this element, the offence is proved even if no injury is caused to the victim as in the case of firing a loaded gun or placing food mixed with poison on another’s table. Here, we have the intention coupled with an act capable of causing death in the natural and ordinary course of events. The offence therefore must be taken as proved if the shot misses the mark or it is prevented by an intervening agency, or the food is not taken by the victim. It is thus the intention as observed by Patterson. J., that matters, coupled with the potentiality of the act designed, and not the mere gravity or magnitude of the assault actually made. Culling out “the intention to kill” from the seriousness of the assault or the weapon used, was ruled out by Patterson, J., in the passage quoted already wherein it was emphasised by him that for an indicatable attempt it is not enough that as a result of the act committed had death ensued it would be murder even if the prisoner had not intended it. S. 307 IPC. is so worded that even if the act is committed with the knowledge that “if he by that act caused death he would be guilty of murder” the offence of attempt to murder would be committed. But in practice, this deductive method of inferring intention from “knowledge attri­buted” is difficult and inmost cases unsuccessful as illustrated above, in the rulings cited.

In R. v, Jones(9 C & P 541) where the first court charged the prisoner with shooing at Vanghan with intent to murder him and the facts were such as only to amount to man=laughter/;whather on a court charging an intent to murder, it is essential that the jury should be satisfied that, that intent existed in the mind of the prisoner at’ the time of the offence; or whether it is sufficient that it would have been a case of murder if death had ensued........In the present case think you may dismiss the first count from your consideration as it would be very difficult to say that if Mr. Vanghan had died this would have been a case of murder.” It is always difficult in such cases where the victim of assualt does not die, to support the charge of intent to murder. Alderson B. in a similar case (R.V.. Howlett- 7 C&P274) charged the jury as follows:-

“You will have to consider in this case whether, if death had ensued, the prisoner would have been guilty of murder; and in giving your judgment on that question you will have to consider whether the instrument employed was in its ordinary use likely to cause death or though an instrument unlikely under ordinary circumstances to cause death, whether it was used in such an extraordinary manner as to make it likely to cause death either by continued blows or otherwise.”

In a case where the weapon used is so deadly and it is used persistently in such inhuman and brutal manner, an inference might justifiably be drawn that the prisoner had the requisite murderous intention; but the dividing line being so narrow and the court being called upon to gauge something which is not manifest but is hidden in the mind of the assailant, great care and circumspection would be required so as to avoid injustice being done to him.

To sum up, attempt to murder is a highly technical and hypothetical offence, delicate in concept and largely an abstraction; rarely discernible or decipherable from the act actually committed: Intention to kill when combined with a physical act capable in the ordinary and natural course of events of causing death, the offence is committed, even if the act is interrupted or foiled in the middle. The act as designed, if fully takes effect and the victim does not die the resultant offence is solely a matter of speculation’ or conjecture, and it is always advisable and proper that the prisoner is punished for the act actually committed unless from the weapon used and the persistence shown in inflicting the violence it could safely be inferred that the prisoner acted with the requisite intention. Attempt to murder is more often than not, misunderstood, misconstrued and misapplied not only by students of law, but even by lawyers and judges.

Criminal Procedure Code & Rules of Law in India

(By Thomas Maliyekkel, B.A. B.L., Advocate, Irinjalakuda)

The Central Law Commission is now reported to be visiting the States for collecting evidence and recievfng suggestions on the working of the Criminal Procedure Code, before submitting their final report to the Government of India and hence it is appropriate to review the working of Cr. Pro. Code vis-a-vis enforcement of rule of law in the various States in the Union of India.

Cr. Pro.Code is the main adjective law which deals with the administ­ration of criminal justice and among other things, it classifies the courts, defines their powers, prescribes the procedure for summons, pleadings, proofs, inquiries, trials, judgments and execution. It also deals with police investigations and the powers and duties of the police officers investigating offences, prevention of offences and maintenance of public order and peace. Therefore, its working has got an important bearing on the maintenance of rule of Jaw in the States.

With the experience of last general election in India, it is to be expected in future that parties or amalgamation of parties with scant respect for rule of law or parties with their moorings in totalitarian ideology are likely to come in power in one State or other in India. In West Bengal and Kerala, people be­longing to the opposition parties began to complain inter alia, that rule of law is being denied to them; their life and property are in danger; and that they are discriminated against in the matter of police help and withdrawl of complaints. Similar charges are being levelled against certain, other ministries in other States by opposition parties there. Hence it is high time for us to ponder over some independent machinery by which rule of law is being maintained in States irre­spective of ideological whims and fancies of political parties in power.

Rule of law is to democracy what oxygen is to animal life. Law consists of rules recognised and applied by courts in their exercise of functions of en­forcing and maintaining justice by means of the physical force of the State. It is justice speaking to men by the mouth of the State. In idea, law and justice are coincident. It is for the expression and realisation of justice that the law has been crested and no democracy can properly work and achieve its purpose unless rule of law prevails within its domain.

Democratic rights of a citizen in a democracy are inalienable and if the executive fail to use its sword in aid of administration of justice, that State has failed in its exercise of essential function of administering justice aid the result is democracy degenerates into a primitive barbarous system of society wherein practices of private vengeance, violent self-help, and collective defence (civil war) prevail. Therefore one finds that democratic society can exist only under the shelter of the State and the law and justice of the State is a permanent and ne­cessary condition of peace, order and civilization. That is why in all democratic forms of Government, whether it be Republican or Constitutional monarchy, rule of law is being zealously guarded by the litera scripta of the Constitution where there is a written Constitution, and by convention, practice, and social sanction where there is no written Constitution.

The founders of Indian Republic had this in mind when they advert to “Justice” in the preamble of the Constitution. Moreover, Article 14 in the chapter on Fundamental Rights of our Constitution directly enjoins that “the State shall not deny to an/ person equality before law or the equal protection of the laws within the territory of India. Rule of law is raised to the exalted position of Fundamental Right at the hands of the framers of our Constitution. Further, to safeguard administration of justice from the interference of the exec­utive which is controlled by the political parties in the scheme of working of our Parliamentary democracy, Article 50 of the Directive Principles obliges ”the State to take steps to separate the judiciary from the executive in the public services of the State.”

Public order, police and administration of justice are State items as adumbrated in List II of the seventh schedule of the Constitution. But Art­icle 256 makes it obligatory on the State to exercise its executive power so as to ensure the compliance with the laws made by Parliament and the existing laws of the State. The “law’’ and the “law in force’’ are defined in Article 13 (3) of the Constitution.* It is obvious that the above categories of law* take in Acts like Criminal Procedure Code, Police Act, and Indian Penal Code etc.

If the State fails to discharge its Constitutional obligations under Art­icle 256 over the administration of above items like Cr. Pro. Code and Police Act etc. in accordance with the mandatory and fundamental provision of Article 14, then the Union executive is empowered to issue directives under Article 257 to the State. Whether or not the State failed to carry out its Constitutional obli­gations is a question of fact and that can be ascertained by a fact-finding com­mission at the instance of the Union executive if it deems fit or otherwise satisfied by a factual report from the Governor concerned and thus President can act under Article 365 which enables the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Though the Union executive has over-riding powers under the Centrally biased Indian Federal Constitution, to effectively interfere when a State fails to discharge its Constitutional obligations, in practice, it may result in political difficulties for the ruling party in the Centre, more so in times when it has a narrow majority in the Parliament.

On the otherhand, the judicial remedy is to move the High Court or the Supreme Court for appropriate writs against the State; but to move the courts in all individual cases of infringement of one’s Constitutional rights is a laborious and expensive process and by its nature impracticable to serve as a general remedy to meet the magnitude of the situation. Therefore, apart from the drastic Constitutional remedy and the expensive judicial relief, one is inclined to think over some independent system by which rule of law is being scrupulously maintained in the States.

The ideal behind the sacrosanct principle of the separation of the judiciary from the executive will be complete only if law enforcement officers are also sepa­rated from the executive in the public services of the State on the analogy of separating judicial magistrates from the executive magistrates The police forces in the State can be conveniently bifurcated into executive (administrative) and judicial wings and the judicial police may be attached to the Law Enforcement Commission which will appoint its own prefects, prosecutors and pleaders.

The administrative police will be responsible to the Stats executive and their main functions will be maintenance of public order. The judicial Police on the other hand, will under take the prevention and detection of crimes, the collec­tion of evidence and the delivery of the accused to the examining tribunals. In France, the police is divided into administrative and judicial wings with distinct duties and functions and the French system has survived the tests of time and found successful. This proposal does not entail additional financial commitment to the State.

The Law Enforcement Commission can be constituted by amending the Cr. Pro. Code, a Central Act and an item in the Concurrent List and hence legislatable «, by Parlianent. Chapter If of the Cr. Pro. Code already provides for the constitu­tion of various criminal courts and their offices. Similarly a new chapter may be added to it by suitable amendment for the constitution of Law Enforcement Com­mission and its offices,’defining its nature, organisation and work. The Police Act and other relevant Acts and if need be, Constitution should be amended to meet the situation.

Though almost all States have separated judiciary from the executive, one finds remnants of past shackles still fettering the independence of the judiciary, for, even now under Cr. Pro. Code, authority is vested with the State executive to confer powers on the judicial magistrates, to withdraw complaints, to remit fines and to absolve sentence of imprisonment etc. If a judicial magistrate refuses to allow the request of the public prosecutor to withdraw a complaint on the initiative of the State, then the further conduct of the prosecution entails trouble because the police and the prosecutors are under the administrative control of the State executive. Even the Central Government had the bitter experience of appoin­ting its own pleaders to continue the prosecution of complaints originally launched by the State police in connection with the Central employees’ recent strike in Kerala.

It now behoves the I aw Commission to examine afresh the working of Cr. Pro. Code vis-a-vis the position of rule of law in the States and submit its suggestions to the Government of India and the Parliament should lose no time in taking positive steps to constitute Law Enforcement Commission and its offices. Eternal vigilance is the price of democracy.

Foot Note:

*13(3) (a) “Law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of the law;

(b) “Laws in force” includes laws passed or made by a legislature, or other com­petent authority in the territory of India before the commencement of the Constitution......etc.

 Paper Read in a Conference of the Law Officers of Kerala

Held under the Presidentship of the Advocate General on 22-2-1969 at Ernakulam By
Sri. P. Balagangadara Menon, Addl. Govt. Pleader, Kerala High Court.

The jurisdiction vested in the High Courts under Article 225 of the Con­stitution of India is frequently invoked by employers engaged in industry and agriculture for the grant of relief by way of Writ of Mandamus or a direction for protection of their life and property. According to the procedure now in force in our High Court, the petitioner can move an application under Article 226 of the Constitution and pray for an interim direction and the Court, on being satisfied that there is a prima facie case, admits the Writ Petition and may make an interim order. At the stage when the case comes uo for admission the State Government or the officers are not represented in the Court unless the State Government or the officers give instructions to the law Officers of the State to enter appearance and oppose the grant of interim direction. Once an-interim direction is made by the Court, it is often difficult to get the same vacated unless exceptionally strong grounds are made for the same. In order, therefore, to quickly and effectively deal with these cases the rules regulating the proceedings under Articles 226 and 227 of the Constitution may be suitably amended so as to make it obligatory on-the part of the petitioner to give advance notice of any application to be moved by him for the grant of interim order. If such an amend­ment is made to the rules it will not only facilitate quick disposal of cases by the Court but will also help the authorities in taking expeditious and effective action.

An analysis of the cases decided by the Court for one year reveals that the following are the circumstances in which the petitioners approach the Court with a prayer for” police protection. Employers pray for the issue of a Writ for directing the State and the Police Officers to afford protection for their factories and industrial undertakings. Big as well as small agriculturists also pray for direction for giving adequate protection for their property and for carrying on agricultural operations and also for the issue of a direction for protection of their personal liberty. In some industrial establishments, the workers may be on strike and then petitioners pray that they may be given adequate police help to carry on the work with loyal workers and that they may be given help of the police to bring raw materials inside and take finished goods outside the factory.

The Constitution of our country guarantees freedom to acquire and own property and the freedom to assemble peaceably without arms. When an indus­trial dispute arises between the employers and the workmen there is likely to be conflict between the interests of the employers and the workmen. The workmen in exercise of their right of collective bargaining may carry on demonstrations, launch strike: and indulge in other activities with a view to compel the employers to agree to their claims. This frequently gives rise to problems of law and order but in order to appreciate and understand the points in controversy a clear dis­tinction has to be borne in mind between the rights of the workmen, the rights of the employee’“? and the duty of the State. What are the rights of the employers? The employers have the right to carry on business peacefully. They have the right to acquire and own property. On the other hand, the workmen have the right to work and have also the right not to work. They have the right to bar­gain collectively against the employers and for wresting from them better terms and conditions of service and so long as the employers and the workmen exercise their rights in a peaceful and orderly manner no question of any interference by the police will arise. But the moment either employer or the workmen violate the law of the land it is undoubtedly the duty of the police to interfere and dis­charge the duties vested in them by law. But, the duty of maintaining law and order, rests with the executive Government and Courts normally will not and can­not interfere with that function. The Constitution of our country has in its preamble, resolved to secure to all its citizens social and economic justice. In this connection, the following observations of an eminent Chief Justice of India about the imperative and urgent necessity of securing social justice to economi­cally weaker sections of our people may with advantage be referred to. Chief Justice Gajendragadkar in his Lajpatrai Memorial Lectures stated thus:

“Let us never forget that to the large class of citizens who suffer from stark poverty and its inevitable accompaniments, notions of individual freedom and liberty are apt to sound as empty words which obtain popular currency only in the drawing-rooms of the rich and well-to-do classes of citizens; for it is plain that hunger makes men impatient and angry, and impatience and anger lead to blindness. In their struggle to face the urgent and pitiless problem of poverty, citizens may not be able to appreciate the theoretical signifi­cance and grandeur of the concept of individual freedom and liberty. The concept of social justice is thus a revolutionary concept which gives meaning and significance to the democratic way of life and makes the rule of law dynamic. It is this concept of social justice which creates in the minds of the masses of this country a sense of participation in the glory of India’s political freedom. When Indian democracy seeks to meet the challenge of socio-economic inequality by its legislative process and with the assistance of the rule of law, it virtually seeks to achieve economic justice without any violent conflicts”.

Therefore it is necessary and inevitable that a modern democratic welfare State has to approach the problem of the rights of employers and workmen in an entirely different way from that of a State which concerned itself with purely maintenance of law and order. Before our country became independent when workers were carrying on agitations for advancement of the rights the police consciously or unconsciously was acting in such a manner that the employers were in an advantageous position and in many cases the agitations of workmen were suppressed with the help of the police. But a modern democratic welfare State cannot afford to adopt this course and necessarily has to direct its police to remain neutral in conflicts between capital and labour. I think that the policy of the State in this matter is not only legal and fair but is consistent with the principles of justice, fair-play and good government. In this connection, it will be interesting to recall the declaration of the police policy by the first Government of Kerala. The Chief Minister at a Press Conference at Trivandrum on 23rd July 1957 made the following observations on the role of the police in maintenance of law and order:

“It has been the practice of previous Governments that, at the slightest sign of workers and peasants, unrest, leading to demonstrations, strikes, hartals or satyagraha, the police was rushed to help the employers, landlords etc., to suppress the movements, pro­hibitory orders were issued and security proceedings launched and lathi charges and firings ordered, and such use of police force had come to be considered as part of the rule of law. The Government, therefore, repudiate the charge made against them that their policy of not giving capitalists and landlords the assistance and protection, which they have so far been getting in the matter of suppressing the working class and peasants’ struggles, is a violation of the Rule of Law. They, on the other hand, hold the view that such use of the police in favour of the owning classes is a violation of the fundamental rights of the toiling classes, the right of collective bargaining accompanied by the right to resort to strikes or other forms of peaceful direct action. Resort to such repressive measures as Ss.107, 144 etc., will not be made in order to suppress a movement of any section of the people; the right of organisation, of collective bargaining and of direct action will be guaranteed to all sections of the people. But no direct action will be allowed to go beyond the limits of peaceful action laid down above. The person and property of every individual and family will be; protected.”

This naturally raises the question as to what are the legitimate rights of the workers.

In a recent decision the High Court of Calcutta has clarified the position and has observed that there is no immunity for the members of a Trade Union for being dealt with for violation of law except that they will not be liable for criminal conspiracy if they collect together peacefully for the purpose of bargai­ning for their rights. Chief Justice Sinha has made the following pertinent observations:-

“The net result of the decision set out above is that Ss.17 and 18 of the Indian Trade Unions Act grant certain exemption to members of a Trade Union, but there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence where they amount to an offence. Members of a Trade Union may resort to a peaceful strike that is to save cessation of work with the common object of enforcing their claims. Such strikes must be peaceful and not violent and there is no exemption where an offence is committed. Therefore, a concerted movement by workman by gathering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provisions of law. But when such a gathering is unlawful or commits an offence then the exemption is lost. Thus, where it resorts to un­lawful confinement of persons, criminal trespass, or where it becomes violent and indulges in criminal force or criminal assault or mischief to persons or property or molestation or inti­midation, the exemption can no longer be claimed.”

The legal position seems to be the same in England and while the workers have the right to picket in front of an employer’s business in furtherance of a trade dispute law does not permit any picketing which involves any violent activity. The question has directly come up for consideration and Courts in England have held that while the workers have a right to picket in front of factory and business premises it is the duty of the police to take steps for pre­vention of breach of peace.

In a recent case Lord Parker, Chief Justice of England has observed thus:-

“The Court has been referred to a great number of cases both Irish and English dealing with the position when a Police Constable can be said to contemplate a breach of the peace and to take action to preserve it, but I find it is unnecessary to refer to those cases. It seems to me that the law is reasonably plain. First, the mere statement by a constable that he did anticipate that there might be a breach of the peace is clearly not enough. There must exist proved facts from which a constable could reasonably have anti­cipated such a breach. Secondly, it is not enough that his contemplation is that there is a remote possibility but there must be a real possibility of a breach “of the peace”.

The law in the United States of America is also the same. The Supreme Court of United States in the case of National Labour Relations Board v. Fansteel Metal Corporation has held that while workmen have a right to picket in furtherance of a trade dispute they are not immune from being dealt with in accordance with law if they commit offences punishable under criminal law of the land. Chief Justice Hughes speaking on behalf of the Court has stated as follows:-

“For the unfair labour practices of respondent, the Act provided a remedy. Inter­ference in the summer and fall of 1936 with the right of self-organisation could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1927. But reprehensible as was that conduct of the respondent, there is no ground for saying that it made respond­ent, an outlaw or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike bat they had no licence to commit acts of violence or to seize their employer’s plant. We may put on one side the contested questions as to the circumstances and extant of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong, apart from any acts of sabotage But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its Property or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labour dispute or of an unfair labour practice would be to put a premium on resort-to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society”.

Norman Arthur Citrine, who is an acknowledged authority of labour law and labour relations in England; has observed that when picketing ceases to be peaceful and becomes an obstruction or nuisance, the picketeers are liable to be dealt with in accordance with the provisions of criminal law.

‘If the manner of the picketing ceases to be peaceful or becomes an obstruction or a nuisance, or endangers the public peace, the picketing will cease to be lawful. Thus, if a picket commits a private nuisance, as by violently and continually hanging on the door, shouting, obstructing ingress or egress, or otherwise seriously interfering with the enjoyment of the house or if he commits a public nuisance such as behaving in a manner calculated to cause a breach of the peace, or unreasonably obstructing the highway, his common law right to picket and his right to “attend” under the Section will cease and neither will protect him from civil or criminal liability for any of these acts, or for any “watching or besetting”, with a view to compel, which he may also have committed. So also if the picketing is carried out in such numbers or otherwise in such a manner as to be likely to intimidate those subject to it, or to obstruct or molest them against their will, it will be unlawful. Any show or threat of violence, or any other unlawful threat likely to create fear in the mind of a reasonable man will render picketing unlawful, and may make it criminal. Pickets are therefore not entitled, in order to compel people to listen to them, to obstruct them by deliberately standing in their way or catching hold of their arms. Nor are they entitled to obstruct the passage of vehicles by lying down in the highway in front of them. Neither may they continue to pester, i. e. molest those persons who do not wish to listen and who have requested them to desist.”

The maintenance of law and order is an executive function of the State and Courts normally do not and will not interfere in the exercise of such fun­ction. Even if the Court interferes it is doubtful whether the Court has power to say in which way the administration of law and order must be carried out. That essentially is a matter which the executive Government has to decide.

In cases in which police protection is sought for the High Court normally will not interfere if the authorities have exercised their jurisdiction vested in them and will not and cannot direct the exercise of function in any particular manner. But, if there is any violation of a statutory duty vested in the autho­rities and the High Court is satisfied that there has been a deliberate refusal to discharge such duty the Court may in appropriate cases issue directions to them for discharging duties imposed by law. What then is the extent of jurisdiction of the Courts interfering with the duties of police in maintenance of law and order? The answer to this question can be found in a decision of the Privy Council. Lord Porter who delivered the judgment on behalf of the Board has stated thus:-

“Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he maybe duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S.491, Criminal Procedure Code, to give directions in the nature of habeas corpus”.

In conclusion I desire to emphasise that law like all other human instit­utions can never be static. As society advances law must also adapt itself to meet new and challenging situations. The traditional concept of rule of law requires a change in the light of social and technological developments in a modern democratic society. We must adapt a progressive and dynamic concept of the rule of law.

Are Separation Agirts Between Spouses Valid?

(J. Duncan M. Derrett, D. C. L., Professor of Oriental Laws in the University of London)

In a decision of far-reaching significance (if it is correct) the Madras High Court has opined that not only ante-nuptial but also post-nuptial agree­ments to separate are void. Mulla’s Hindu Law, 13th edn.,p. 645 is cited for the view that present agreements to separate are valid, and we are now told in Thirumal Naidu v. Rajammal(1967) 2 MLJ. 484 that Mulla is wrong.

The wife sued for restitution of conjugal rights under the Hindu Marriage Act, 1955. The husband put forward an agreement between them that they should live separately. If the agreement was valid and binding the husband could not have left the wife without her consent and he could not have “with­drawn from the society of the (wife)” without reasonable excuse within the meaning of S. 9(1) of that Act. The wife argued that the agreement was extorted from her by unfair means, but in view of other arguments the learned judge did not pursue that aspect of the matter. He was satisfied that, even if the agree­ment had been freely consented to by her in full knowledge of her rights, it would have been void and would not have bound her.

This, it is submitted, is a matter of the greatest importance, to be taken very seriously. The basis of the judgment of the learned judge is one to which this writer would be inclined at first sight to give every possible support. It is an Indian judgment, based on Indian ideas and Indian cases, and’it rejectsas inapplicable the modern trend of English case law as not providing a proper precedent in the conditions of India, particularly in the background of the Hindu society. This is the sort of approach we have always wanted. But is it correct in this instance? The present writer started off with a hope that it would turn out to be correct, for the persistence of Hindu traditional ideas about marriage, Hindu norms even in the midst of non-Hindu practices, is a fact of life and deserves to be recognised adequately.

The learned judge notices English cases which, long ago, viewed seperation agreements with suspicion, and so considered many of them against public policy and so void: See Wilson v. Wilson 0848) 1 H L. Cases 538, H. L. It is manifest that this particular point of view is obsolete in England and countries u taking a similar view of the spouses’ contractual powers. Does it survive in India? The only cases to which the learned judge refers are ones to which, to start with, we must give particular attention. In the antiquated case of Tekait- Mon Mohini Jemadai v. Basanta ‘Kumtr Singh (1901) ILR. 28 Cal. 751 it was decided that a Hindu wife must reside, as a matter of Hindu law, with her hus­band wherever he chooses to reside-a proposition which, though not judicially declared not to be good law, is surely one which by no means everybody- would accept as the last word on that subject. The judgment of Mr. Justice Ghose goes into texts and case-law, both Indian and English, and concludes that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove the wife from her parental abode is invalid as inconsistent with the Hindu law and against public policy. With respect, this must be right, for under Indian conditions many a son-in-law would be victimised were the contrary to be the law. Readers can call upon their own personal knowledge to confirm this aspect of the matter. It is evident that what was rejected by the learned judge was the ante-nuptial character of the alleged agreement and its tendency to place the husband himself within the power of the wife’s parents- a situation which seemed evidently contrary to public policy. But we may mark his words (p. 765):

“There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of marriage and an agree­ment before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory or infructuous. Such an agreement would seem to be opposed to public policy.”

Such an agreement was struck down in Tekait case.

In Krishna Aiyar v. Balammal (1911) ILR. 34 Mad. 398 a Brahmin, after refusal by his wife B to return, brought a suit for restitution in 1903. The suit terminated in a compromise between A and B in July 1904, by which it was agreed that B should return and live with A and that if at*any time thereafter she should desire to live apart from A, she was to be paid Rs. 350 by A. B never returned to live with A, who in July 1907 brought a suit for restitution alleging a demand and refusal in February 1907. It was held, following the Tekait case (1901) ILR. 28 Cal. 751 that the agreement, providing for a future separation, was invalid, it was forbidden by the Hindu law. Such agreements must be considered as opposed to public policy and unenforceable. Their Lordships, Sankaran Nair and Krishnaswami Ayyar, JJ , were fortified by the fact that the English law (at that time, 1910) was the same. The only other case referred to was that of Meherally v. Sakerkhanoobhai (1905) 7 Bom. L. R. 602 a similar case between Khojas.

Now it happens that shortly thereafter the English law took a turn. The proposition upheld in Krishna’s case is no longer accepted since MacMahon v. MacMahon: Purser v. Purser (1913) 11. R. 428 in Ireland in 1913, being followed in Meyrick’s Settlement: In re Meyrick v. Meyrick (1921) 1 Ch. 311 in 1921, itself followed in Lurie v. Luric (1938) 3 All E. R. 156 in 1938.

Our question now is whether post-nuptial agreements to separate are void ab initio because they are contrary to the Hindu law. The English law by no means strikes such contracts down unless they contain some other unlawful element: P. M. Bromley, Family Law, 3rd edn. (1966), p.188; Derrett, Intro­duction to Modern Hindu Law (1963), § 312. If such contracts are void thousands of arrangements now in operation throughout India fall to the ground. From where did the notion come that spouses could separate by agreements if the Hindu law was so opposed to them? The answer, one regrets to say, is simply this that the Hindu norm was that the wife should never leave her hus­band, but that practice has enabled the wife to live apart with her husband’s consent. That this can happen even in the eye of the law is plain from the wording of the Hindu Marriage Act itself, S. 10(1) Explanation.

“...In this section, the expression ‘‘desertion’, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party...”

What “consent” would this be if agreements to live apart could not be entered into?

The range of cases dealing with this question is enormous. Wives are coming before the courts and praying for an enhancement of their allowance under separation agreements, and if the latter come within S. 25 of the Hindu Adoptions and Maintenance Act, 1956, as they most frequently do, the prayer is granted. Would the courts be doing this if such agreements were void and against public policy?

One may suppose that it did not occur to the learned judge in Madras that agreements for the wife’s separate maintenance were separation agreements! The style of the usual textbooks on Hindu law is such that separation agree­ments do not form a chapter (the present writer’s is the exception). Neverthe­less it is clear that when a husband goes to the length of formally agreeing that he shall pay maintenance to his wife he is consenting to her living apart from him permanently or indefinitely, and her consent to accept this allowance makes the agreement a separation agreement even though it may not contain the non-molestation clause which is a frequent (but not invariable) ingredient in English separation agreements.

Mulla, in his commentary on the Hindu Marriage Act (Hindu Law, 13th edn.,p. 645) rightly points out that the Tekait case(\90\) 1LR. 28 Cal. 751 made a careful distinction between ante-nuptial and post-nuptial agreements. Mulla (i. e. the editor, Sri S. T. Desai) adds

“...There seems no reason why a valid agreement for immediate and not future separation bona fide entered into during the continuance of marriage with a view to enable the parties to live in peace should not be treated as empowering the court to refuse a decree for restitution.” In the present writer’s submission this is correct.

Further, if the remedy of judicial separation has been made available, as it has, to spouses under the Hindu Marriage Act, how can it be said that volun­tary separation is impossible? Can it seriously be argued that what can be obtained through the court could not be arrived at validity by the parties by way of settlement or compromise? If such a notion should be upheld there would be an anomaly of a most curious kind, unknown to Indian law. No one will seek to uphold the Madras judgment under discussion on the ground that it will give extra work to the Bar.

Finally, the present writer invites readers to look at a few sample cases where actual separations had taken place by agreement between the spouses, in not one of which separation was disputed on the-ground that it contravened the Hindu Law or public policy: Darasikrishnayya v. Darisi Hanumayamma (1955J AIR. N.U.C. 671 (Madras) (January 27,1954) (where the terms of the agreement are set out fully); Subbayyan v. Ponnuchami Chettiar (1941) AIR. Mad. 727; Sivagnana thammalv. Sankarapandian Pillai (1955) AIR. N.U.C. 1453 (Trav. Co.) (Feb. 26, 1954); Purshottamdasv. Rukshamani (1936) 39 Bom. L.R. 458, SC. (1938) Bom. 1, (1937) AIR. Bom. 358 (a particularly strong case); Seshi Ammal v. Thaiya Ammal (1964) AIR. Mad. 217 (cf. Pathuri Veer annas. P. Setthamma (1967) 2 An. W. R. 475) on the subject of the right to an enhancement); Mussammat Sham Devi v. Mohan Lai (1933) ILR. 15 Lah. 591 (where separate living by consent is parti­cularly adverted to at p. 595).

If, it is asked, how then do wives who have accepted maintenance as part of a separation agreement come forward later as plaintiffs suing for restitution, and why should not the court allow them to attempt to effectuate a reconcilia­tion j because they after all remain wives in the eye of the law, the _ answer is simply this: not that they want a reconciliation and want to live with their hus­bands again, but that they want mors money out of them. The case is the same in reverse with the husbands who sue for restitution when their wives have applied for maintenance from them under S. 488 of the Criminal Procedure Code: the husbands do not want a reconciliation-all they want is to avoid paying the money. A simple solution, and unworthy of the highfaluting appeals to the spirit of the Hindu law and spouses’ duty to remain ever faithful, like birds in a nest. Let us by all means remain aware of the traditional factors which make Hindus ‘Hindus’: but let appeals to them not be mainfestations of dissimulation.

This is Nixon’s Land Calling

(T. G. John, Advocate, Trichur)

The U.S. Supreme Court rarely rebukes individual attorneys, but last year a unanimous 9 to 0 murder conviction of a Cab-driver LLoyd Eldon Miller (Junior) carried a blunt reprimand. Miller had been accused of the brutal rape-murder of an eight year old^ girl near Canton-Illinois and the Court was convinced that he did not get a fair trial. It charged Fulton County Prosecutor Blaine Ramsey and his special assistant, Roger Hayes with deliberately misre­presenting evidence by repeatedly waving a’bloodstained’ pair of men’s shorts before the jury. Justice Potter Stewart remarked that in the context of the crime, the gruesome emotical impact upon the jury by the dramatic exhibition of the under-pants was incalculable.

Moved by the Court’s angry words the Illionois State Bar Association ordered a full-scale inquiry by its Grievance Committee. After nine months’ of probing into the prosecutor’s conduct the Committee has rendered a verdict of its own Its report not only clears Ramsey and Hayes of all wrong-doing but also concludes that it was really the Supreme Court that misapprehended the acts! Misapprehended or not the major facts of the case remain undisputed. Little Janice May was found fatally beaten along the railroad tracks at Canton in November 1955. Miller was arrested two days later and kept under police custody for 52 hours and then persuaded to confess after the Police told” him that one of his pubic hairs was found in the victim’s vagina. Miller later recanted the confession and the hair, which was not his, was never introduced as evidence. Instead, Prosecutor Ramsey relied on the red-stained underpants found a mile from the scene of the crime. They were smeared with the girl’s blood, he told the jury, and discarded by Miller after the assault.

The prosecution never established that the shorts were Miller’s or men­tioned that they seemed too small for him. Not until. 1963, seven hours before Miller’s oft-postponed date with the execution, did his lawyers win permission from a Federal Court Judge for an analysis of the shorts by a defence Chemist. No blood was found on the twelve threads the Chemist was given for analysis and he reported that the red marks were only paint. Prosecutor Ramsey then admitted that he had known all along that there was paint on the pants!

Portraying the paint-spattered shorts as heavily stained with blood seemed to Justice Stewart a clear attempt to deceive the jurors. But the Illinois Bar Committee insists that the Prosecutors were merely following the expert view of a State Chemist. His pre-trial analysis, says the Committee, indicated that there was blood of the victim’s type on the shorts. The fact that the shorts were also paint-stained, the Committee remarks, was quite immaterial. The defence would still have to explain away the blood.

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Tailpiece;Her lawyer wanted to know if the lady had ever attacked her husband.

“I did throw an egg at bum once and I threw a lukewarm cup of coffee” testified the wife of Detroit Mayor Jerome P. Cavanagh, 40,

Q: Was there any provocation?

A: “Yes, I was making a Phone Call in the kitchen and he gave me a good whack as he went by”.

Q: A friendly tap or a rough one?

A: “No, Sir, it was not friendly”.

So ran the dialogue as the Mayor of Detroit and his wife took their do­mestic troubles to Court last year. She aske& for a legal separation; he asked for a divorce and each asked custody of their eight children, with the Judge reserving decision after two days of testimony. Mary Helen accused Jerry of excessive drinking while he charged that she was addicted not only to the bottle, but to mule skinner’s language!