Fast Disappearing Law

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

Law and legal principles, I am afraid from my own humble experience though limited, are fast disappearing even from the Subordinate Courts in the State. The Subordinate Courts constitute the back-bone of the judiciary and are the most important and dominant components of the administration of justice. Those Courts alone deal directly with litigants unlike the appellate courts and the litigants have a feel of their Law Courts and justicing system first hand. All Criminal Courts are open to the public under Section 327 of the Code of Criminal Procedure.

It is therefore, axiomatic that the Subordinate Courts and particularly trial courts should address themselves strictly, sternly and scrupulously to provisions of law and legal principles. Unfortunately however, these days either because the Courts are far too busy or due to lack of equipment, [either way it is destructive of the system itself] many of the orders passed by the Subordinate Courts do not reflect application of mind to the relevant legal provisions and the principles of law applicable to them enunciated by superior courts.

Judgments of Munsiffs, particularly from the former Malabar area of the State, were upheld upturning the judgments of the High Court by the Privy Council. So much was the quality and content of those judgments, particularly when litigations were bitterly fought out in family disputes, property rights, inheritance, etc., etc. Those days appear to be gone forever.

It will be really unfortunate if Courts at the grass-root level do not adhere to the relevant provisions even in the matter of passing interim orders, dealing with applications for bail, petitions for custody and a host of similar relief oriented applications submitted by ordinary litigants. The litigants expect that the statutory provisions applicable to them will be looked into by the Presiding Officers and the correct legal principles applied. Much of the appellate work and the revisional work, which are flooding superior courts in the country, can be easily avoided if the Subordinate Judges carefully look into the statutory provisions in regard to cases arising before them and apply the legal principles to the best of their ability. This is their bounden duty for they provide the gateway to justice for the common man by whom and for whom Courts are established.

Instances of rendering judgments without any respect even to English grammar are increasing. I refrain from quoting, lest it will be hurting. The time has come to end the experiment with an alien language and to switch over to our own.

The Apex Court recently declared in Jamshed Ansari v. High Court of Judicature at Allahabad (2016 (4) KLT 1044 (SC)) as follows:

“Therefore, if anything has the effect of impairing or hampering the quality of administration of justice either due to lack of knowledge or proper qualification on the part of the persons involved in the process of justice dispensation or they being not properly certified by the Bar Council as provided under the Act and the Rules made there under, it will surely affect the administration of justice and thereby affecting the rights of litigants who are before the courts seeking justice.”

How about applying the same principles to Presiding Officers? Unfortunately the Supreme Court has declared in one case that even a green horn in the Bar can become a Magistrate without even a day’s practice. This in fact has adversely affected the entire system and needs a second look. Many of the Lawyers are ill-equipped to come out successful in the examinations conducted for selection of Judicial Officers.

In neighbouring Karnataka not even one passed in a test. This is because the system of apprenticeship for a period of one year was done away with making entry into the Bar easy for all those who possess a Degree in Law. It is time that the system of apprenticeship is brought back and a period of minimum practice insisted upon for appearance in the High Court. Like in Income Tax References and Second Appeals, formulating questions of law shall be made compulsory in all cases in the High Court.

Ours is a system based on the superiority of the Rule of Law. Let me quote from one of the brilliant judgments rendered by Justice Sri Dama Seshadri Naidu in Manager v. Augustine (2016 (4) KLT 1028): 

“In the law’s broad-sweep, individual inconveniences, and even hardships, hardly matter. They are swept away.”

We should therefore, have an efficient and equipped Subordinate Judiciary than an obedient and frightened one.

Highlights of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 & Security Interest (Enforcement) Rules, 2002 & The Debt Recovery Tribunal (Procedure) Rules, 1993

(By Dr.P.Syamjith, Ph.D. in Law from Dr. Ambedkar Law University, Chennai)

The Central Government introduced the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016 in Lok Sabha as Bill No.144 of 2016 to primarily amend the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act (DRT Act) and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). Later on, the bill was passed by both houses of Parliament and got the assent of the President of India on 12th August, 2016. In terms of S.1(2), the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. The Central Government vide notification appointed 1st September, 2016 as the date on which some of the provisions of the Amendment Act shall come into force. Some more provisions are notified on 4th November, 2016. Further, the Central Government has also made rules to amend the Security Interest (Enforcement) Rules, 2002 & Debt Recovery Tribunal (Procedure) Rules, 1993 vide notification dated 3rd November, 2016.

In the long history of recovery laws, both the Acts, DRT Act and the SARFAESI Act have traveled through various stages in its evolution. During such long journey, these Acts have been subjected to judicial scrutinies at various judicial forums and faced variety of legal objections, which ultimately lead to consequential amendments for perfecting the provisions of these Acts. Though the objects of both the Acts are to expedite the recovery of dues to banks, respective Acts are operating at different platform. In its long journey, both the recovery laws proved to be a beneficial legislation in facilitating the recovery of large dues to the Banks albeit with attentive delay and unavoidable litigation.

While enforcing the provisions of the SARFAESI Act, numerous legal issues and challenges have cropped up which demanded resolution through amendment in the provisions of the Acts. On analysis of the provisions of the Amendments Act, it appears that it has brought out some revolutionary changes in both the Acts, which have got far reaching consequences.

Further, the Central Government has also made rules to amend the Security Interest (Enforcement) Rules, 2002 vide notification dated 3rd November, 2016. The important highlights of the amendments brought in the Recovery of Debts Due to Banks and Financial Institutions Act (DRT Act), the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), the Security Interest (Enforcement) Rules, 2002 and the Debt Recovery Tribunal (Procedure) Rules, 1993 are as follows:-

Amendments in the Security Interest (Enforcement) Rules, 2002

AMENDMENTS  IN  DRT ACT -- EFFECTIVE  DATES

Victim’s Participation in Criminal Justice Process -- Need for Change

(By Devi A.R., Advocate, Assistant Legal Officer in Law Department, Government Secretariat, Tvm. (On deputation as Assistant in Kerala Human Rights Commission)

The effective and fair administration of Criminal Justice System is the corner stone of a free welfare society and it is the vital component of the public confidence in the institutions of Government. In a free society, aim of every Criminal Justice System should be to protect the rights of individuals against the intentional invasion of criminals who violate the basic norms of the society.

 The machinery which administers criminal justice system must be able to punish the offender in heinous crimes so as to boost confidence of the public in the justice administration process and to prevent or deter others from committing the same offence. In our State sponsored criminal justice administration, how far this aim is protected remains as a question. Now we often hear that many offenders are set free or awarded with lesser sentence as the prosecution has blundered or has not placed the case before the Trial Judge in a systematic manner.

In due process model of justice administration the interests of the offenders are protected by many constitutional guarantees and procedural safeguards like presumption of innocence, proof beyond reasonable doubt etc. The adversarial system of trial, which we follow, gives more importance to procedural safeguards to the accused. The accused may be tried only once for the same offence and shall not be forced to testify against himself. He has the right to be notified of the charges against him and to have an impartial trial. If he cannot afford a counsel the State will provide him with a lawyer. Moreover the Supreme Court of India has given broad interpretation to Article 21 of the Constitution in favour of an arrested person in a criminal offence.

 Procedural fairness is an underlying principle of rule of law and in a modern State it is acceptable that individual rights are being more focussed but criminal justice administration process concerns meagerly about the person who suffered actual loss. Victims are entirely overlooked in misplaced sympathy for criminals. The factual reality is that merely relying on procedural fairness will adversely affect the ruling of truth.

 In a criminal case the victim gets justice when the justice administration machinery is able to prove the case before the court of law. The participation of the victim in investigation and trial will accelerate finding out of truth. And if he is able to make his views before the court of law pronouncing judgment, it will execute the principle of natural justice in its precise sense.

In India criminal justice process both in pretrial and trial stage, the victim’s participation is not ensured either in the Criminal Procedure Code or any other national legislation. Starting from the registration of first information report, the participation of the victim is neglected, of course the victim has got the right to register the first information report (F.I.R.) but it depends upon the discretion of the police as to register it or not. In law, against non registry of F.I.R., the victim can approach the higher authority but how far the machinery is able to guarantee is a question of fact. During the investigation stage the victim is not at all informed about the progress of the case. To conduct investigation of a case is the statutory rights of the police1 and investigating officer is considered to be the master of the investigation. If the police is not conducting investigation properly or the victim is not satisfied with the manner of investigation, the victim can only approach the court. But at that stage normally, a Magistrate cannot interfere in the matter before the completion of the investigation and police report under Section 173 Cr.P.C. is filed2.What the victim can do is to wait for completion of police investigation and then approach the Court for further investigation or reinvestigation.

Coming to the appointment of a lawyer, the accused is vested with the right to appoint the lawyer of his own choice, but the victim has no such right to appoint the lawyer of his own choice, of course a private lawyer can be appointed under S.301(2), Cr.P.C. but he has no independent role to play. He can act only under the direction of the public prosecutor3. He cannot appear before the court without the permission of the court. He cannot examine or cross examine the witness; this cross examination of witness is considered as the main instrument of the lawyer to elucidate the truth .The private lawyer can only submit the written arguments with the permission of the court.

Before rendering the judgment the accused will be given an opportunity to be heard by the court4 but the victim is not even given an opportunity to make his view and on a non satisfactory sentence of the Court, right to appeal is very limited to victim. The victim has right to appeal only against order of acquittal and not against the inadequacy of sentence that too only in case of private complaint. Though plea-bargaining is adopted in our Criminal Procedure Code it is not an effective provision to deal with the right of participation of victim in the process, as it is limited to certain cases only.

In certain cases the discretion of the Court decides the fate and in case of anticipatory bail5 The court can grant the anticipatory bail on its discretion, if the public prosecutor does not object the granting of bail in such cases as the court may not be aware of the facts and circumstances of the case. Judicial discretion is being exercised in case of award of compensation as it is only an additional remedy available to victim on to certain cases which come under the purview of Section 357 of Cr.P.C.

There is an argument that the participation of victim in Indian legal system is limited because Indian legal system follows accusatorial or adversarial system of trial. It is true that we follow the adversarial system of trial, where the trial is accused oriented, but it doesn’t mean that the victim's right to participation cannot be recognized in adversarial model of trial. Many other nations like U.K., U.S.A., Newzealand which follow the adversarial system of trial, are able to recognize the rights of the victims through their national legislations and guideline. Victim impact statements are taken and in that the victim can make his statement about the physical, mental and emotional injuries as a result of the crime.

At the international level also efforts are made to protect the rights of the victims. UN Convention on Justice and Support for Victims of Crime and Abuse of Power6 details about the right of the victim against the abuse of power and also requires the state parties to take adequate steps to protect the rights of the victims and also to take the adequate steps to prevent further victimization of the victim to give adequate participation in the criminal justice process and also requires their rehabilitation and restitution. Other regional organizations like European Union recognize victim’s participation through various guidelines in dealing with victims of crime.

The aim of criminal justice administration is not only to reform and rehabilitate the accused but also to protect the victim and thereby satisfy the vengeance of the society towards the offender. At various national and international levels the rights of the victims are protected through various domestic laws and international conventions. But our criminal justice system shows no progress in this regard still and in Indian criminal justice administration the victim’s role is limited to that of a witness. So, now in the interest of justice, it became necessary to adopt those provisions in our legal system to ensure victims right to participation in criminal justice process and thereby protect their natural justice.

SUGGESTIONS

•    After the registration of first information report the copy of the report shall be given to the victim and the officer who is recording the statement shall duly sign on it.

•    When the investigation of the case begins, the victims shall be informed about it in writing and it shall contain the name of the officer who conducts the investigation and also the persons who assist him in such investigation.

•    If there is any change in the officer conducting investigation, that shall be informed to the victim in writing.

•    The progress of the case shall be informed to the victim in writing. And if the victim want to make any suggestions in the mode of investigation, allow him to make his views before the officer conducting investigation.

•    A special wing of the police who are specially trained in the investigation, of cases should be created7 to deal with all complicated cases other than petty offences and offences triable summarily.

•    A monitoring committee consisting of members from the judiciary and higher officials of the police should be allowed to monitor the police officer conducting investigation and his dealings with the victim. And the victim should be allowed to rate investigating officer conducting investigation and it shall be considered by the committee and give directions to the officer concerned.

•    Victim shall be heard before granting anticipatory bail to the accused.

•    Victim should be allowed to have proper representation through a private lawyer. Amendments should be made to Section 301(2) so that the private lawyer appointed should have independent status, and should be allowed to appear before the court in appropriate cases.

•    Victim should be allowed to present evidence before the court and also to put question to the accused.

•    Allow private prosecution in cases where the prosecutor wants to withdraw without reasonable ground.

•    Victim or his legal representative shall be allowed to be implied as party to the prosecution.

•    Victim shall be allowed to file civil suit for material loses occurred to the victim as a result of the conduct of the accused.

•    If the victim dies before the completion of trial, the legal representatives of the victim shall be allowed to continue with the civil suit for compensation.

•    Victim or his legal representative shall be provided with the right of appeal in case of acquittal and inadequacy of sentence.

•    Victim’s opinion should be considered before granting parole.

•    State shall appoint a Victims of Crime Co-ordinator and this Victims of Crime Co-ordinator shall assist the victim in getting legal and health services.8

Foot Note:

1.     S.N.Basak v.Union of India (AIR 1963 S.C.447).

2.     Zulfiqar Beg alias Babyy v State of U.P. (1992 Cr.L.J 2067).

3.     Code of Criminal Procedure (1973,S.301(2)).

4.     Code of Criminal Procedure (1973, Ss.248(2) and 235).

5.     Code of Criminal Procedure,1973,S.439 reads: “Special powers of High Court or Court of Sessions regarding bail: (1) A High Court or Court of Sessions may direct,-(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.”

6.     UN Convention on Justice and Support for Victims of Crime and Abuse of Power, 1985.

7.     Malimath committee recommendation on criminal justice administration.

8.     In March 2001 South Australia appointed a Victims of Crime Co-ordinator. The Victims of Crime Co-ordinator will assist government agencies and non-government organizations involved in the criminal justice system, health, education and welfare services to improve the delivery and co-ordination of victims’ services. relied on www.voc.sa.gov.au/Publications/News/Achievements_in_SA_Victim_Policy (visited on 9.4.09).

Scope of Amending the Execution Petition

(By V.S. Girija, Advocate, Kuzhithurai, Kanyakumari District, Tamil Nadu )

An urge to pen a few words on amending the Execution petition emerged while watching arguments in the Court Hall over an application seeking leave of the court to amend the execution petition which was filed under Order VI Rule 17 and Section 151 of the Civil Procedure Code.

The Execution petition was one for attachment of the movable property scheduled. The suit was of the year 1996 and the Execution petition was filed in 2002. The amendment petition was filed in 2014. The most important averment in the affidavit attached to the amendment petition was that, ‘if the execution petition is not pressed and a fresh execution petition is filed for the purpose of introducing a property which did not initially find a place in the property sought to be attached, the latter will be barred by limitation’. Hence, it was clear that the amendment petition was meant to get over the bar of limitation.

Scope of Order VI Rule 17 in the Execution Stage

A reading of Order VI Rule 17 will make it clear that the said provision is applicable to amendment of pleadings. According to Order VI Rule 1 ‘Pleading’ shall mean Plaint or Written Statement. In (2000) 3 Andh 431 (431), it is seen that Order VI Rule 17 is meant only for amending the pleading as given in Order VI Rule 1 land it cannot apply to the Execution Petition. Therefore, a petition to amend the E.P. filed under Order VI Rule 17 is prima facie defective.

However, when an application is filed in the execution stage for amending the Execution application under O.VI R.17, when the object of the petition is to correct an error manifest, but, without changing the nature and character of the Execution Proceedings, courts have inherent power under S.151 & S.153 C.P.C to act in interest of justice. The proposition of law in this aspect is recently found in the Madras High Court decision reported as 2016(1) MWN (Civil) 141.

Execution of Decrees and Orders

Order 21, with the most number of Rules, deals with Execution of Decrees and Orders.

Order 21 Rule 17 contemplates the ‘Procedure on receiving application for execution of decree’. Order 21 Rule 17 provides:

On receiving an application for the execution of a decree as provided by Rule 11 sub-rule (2) (Order 21 Rule 11(2) prescribes the requirements for a written execution application such as number of the suit, names of the parties, date of decree etc...) the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with, the Court shall allow the defect to be remedied then and there or within a time to be fixed by it.

1A. If the defect is not so remedied, the Court shall reject the application:

Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of Rule 11, the Court shall instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.

2. Where an application is amended under the provisions of sub-rule (1) it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

3. Every amendment made under this rule shall be signed or initialled by the Judge.

4. When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application.

Provided that, in the case of a decree for the payment of money, the value of the property attached shall as nearly as may be, correspond with the amount due under the decree.

Scope of Order 21 Rule 17

Thus, Order 21 Rule 17(1) makes it precise that an application for amending the Execution Petition can be filed if such petition suffers from defects for having not complied with the requirements contemplated under Rules 11 to 14 of Order 21. Eventually, the Rule does not apply where the defect in the application is one which has no reference to Rules 11 to 14. Likewise, if the subsequent application is not one for amendment of the original application but is really an independent application for execution seeking a relief not included in the original application, sub-rule (2) cannot apply and the subsequent application cannot be said to be presented on the date of the original application.

As seen thus, the scope of amending an execution petition lies within the purview of what is provided in Order 21 Rule 17. To make it clear, an execution petition can be amended only as provided in Order 21 Rule 17, and hence Order VI Rule 17 is not applicable for amending an execution petition so as to alter the nature and character of the relief granted in favour of the plaintiff and thereby cause prejudice to the defendant/judgment debtor. Therefore the scope of amending an execution petition is much more limited than amendment of pleadings.

Question of Limitation

In this context, it has to be looked into whether an application for substituting entirely new property for that mentioned in the execution petition must be treated as a fresh application or not. As reported in AIR 1942 All. 442(443), ‘an application for substituting entirely new property for that mentioned in the execution application must be treated as a fresh application’. Therefore an application for amending the execution petition meant to substitute or introduce or add an entirely new property has to be considered as a fresh application. A fresh application can be entertained only if the same is filed within the period of limitation. Therefore, by virtue of Art.136 of the Limitation Act, an application of the kind mentioned above gets barred by limitation after twelve years from the date of decree. The Kerala High Court by its judgment reported in2010 (4) KLT 127 has elaborately discussed whether an item of property can be proceeded against in execution of a decree for recovery of money after the period of limitation prescribed under Art.136 of the Act though the execution petition was filed within the period of limitation. While holding its answer in the negative, the Honourable High Court has discussed the rigour of Section 48 of the C.P.C 1908, (which was repealed by Section 28 of the Act), when read with Art.136 of the Limitation Act. A comparison of the said provisions and the distinction between the expressions ‘fresh application’ (occurring in Section 48 of the Code) and ‘subsequent application’ (in Section 230 of the old Code) is analysed.

It has to be borne in mind that when a party to the proceedings fails to exercise his right provided to him by law, a valuable right accrues in favour of the opponent. It may more or less be by way of a bar of limitation. This right which accrues to the opponent is nevertheless lesser than the right which was available to the former before it became barred. Therefore such a right cannot be taken away to the detriment of the party in whose favour it has bloomed.