Kerala High Court on Christian Law - Recent Trends

 

(By Sebastian Champappilly, M.A., LL.M., Advocate, High Court of Kerala)

 

The Full Bench decision of the Kerala High Court in George Sebastian [1] assumes much importance, for it touches upon a matter of great significance to a large number of Indian citizens belonging to the Christian community. In order to have a proper appreciation of the judgment, a short survey of the decisions of the High Court of Kerala from the year 1986 and that of the Supreme Court having a bearing on the subject seems to be appropriate.

 

To begin with, in Kurian v. Alphonsa,[2] the question that arose for decision was whether a Christian woman, whose marriage was declared null and void by Eparchial Tribunal [3], was entitled to get maintenance under S.125 of Cr. P.C. The court answered in the affirmative saying that the dissolution was not valid. It reasoned thus:—

 

"When Parliament has enacted a law [4] providing for dissolution and for decree of nullity of Christian marriage, Eparchial Tribunals cannot adjudicate upon those matters so as to affect the civil rights of parties to the marriage" [5].

 

As regards the authority of the Eparchial Tribunal to annul a marriage the court observed:—

 

"Whatever be the jurisdiction of the Eparchial Tribunal in ecclesiastical matters, it cannot affect the civil rights of the parties. Rights flowing out of a legal marriage cannot be interfered with by the Eparchial Tribunal." [6]

 

It may be noted that the court granted maintenance to the wife on the ground that the decree of nullity granted by the Eparchial Tribunal would not affect the marriage.

 

In fact there was no necessity for the Court to express any opinion as to the validity of the decree of nullity in view of the content of S. 125 of Cr. P.C. and the provisions of Canon Law which explicitly provide for the civil effects of marriage to be regulated by the civil law. So according to Canon Law maintenance should have been decided under S.125 Cr. P.C. This is evident from Canon 1672 of the Code of Canon Law. It provides:

 

"Cases concerning the merely civil effects of marriage pertain to the civil courts, unless particular law lays down that, if such cases are raised as incidental and accessory matters, they may be heard and decided by an ecclesiastical Judge".

 

The parties to the marriage in Kurian v. Alphonsa [7] were Syrian Catholics. So the provisions of Oriental Canon Law, contained in the Pius XII, Motu Proprio Crebrae allate. 1949 which was the personal law of the parties should have been made applicable. It's Canon 5 is specific:—

 

"The marriage of baptised persons is ruled not only by Divine Law but also by Canon Law, save for the competency of the civil authority in regard to the merely civil effects of marriage [8].

 

This position of Canon Law was however not brought to the notice of the court.

 

The ratio in Kurian was reiterated by a Division Bench of the High Court of Kerala in Jose v. Alice [9], wherein the Court held:—

 

"a Christian marriage can be declared null and void only by a decree of Court as provided for in Ss.18 and 19 of the Indian Divorce Act....." [10]

 

And it also held:—

 

"Marriage between the parties creates civil rights and the Ecclesiastical Tribunals have no jurisdiction to annul marriages involving the civil rights of parties" [11]

 

It may be pertinent to note that the court in this case built up the entire edifice of its thesis on the ground that the marriage was solemnised in accordance with S.5 of the Indian Christian Marriage Act, 1872. [12] But tins is not correct. The Indian Christian Marriage Act, 1872, has been specifically excluded from application to the erstwhile

 

Travancore-Cochin States.[13]Therefore, the very foundation of the Court's reasoning is non est. That apart, as has already been pointed out,[14] Canon Law has specifically left the civil effects of marriage like maintenance to be administered by the civil law. Therefore there was no need or necessity for the Courts to have looked into the validity of the dissolution of marriage.

 

In this context, it appears that the Division Bench did not correctly apply the ratio of the decision of the Supreme Court which was rendered as far back as 1972. The Supreme Court ruled that the Canon Law was applicable to Christians in certain respects. It observed:—

 

"The question of capacity to marry and impediments in the way of marriage, would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of marriage, would be the law of the Roman Catholic Church, namely the Canon Law of that Church." [15]

 

Thus, when the Apex Court accepted Canon Law as the personal 1 aw of Catholics and relied upon it to supplement the civil law, the attitude of the High Court of Kerala to the contrary appears to be inappropriate. In fact the High Court should have been liberal in its interpretation as the Supreme Court in Reynold Rajamani [16] held that the Courts must adopt a liberal approach in the areas of marriages and divorce.

 

It was in this background that the High Court of Kerala got another occasion to examine the question afresh. In Leelamma v. Dilip Kumar,[17] Justice Chettoor Sankaran Nair emphatically stated that the personal law of Syrian Catholics is Canon Law and that their marriages are governed by Canon Law.[18]

 

While matters remained thus, a Full Bench of the Kerala High Court re-examined and revised the position in George Sebastian v. Molly Joseph [1]. The question that arose for consideration in this case was whether the dissolution of the first marriage of the respondent, effected by the Eparchial Tribunal on the ground of nullity-the marriage being null and void ab initio was to be recognised by the civil court as valid so as to deem her free with capacity to effect a valid marriage subsequently. It was after obtaining the decree of nullity from the Eparchial Tribunal, the wife in the instant case contracted the subsequent marriage with the petitioner in accordance with the personal law (Canon Law) of the parties. After some time the relations between them got strained and the husband moved the District Court for a decree of nullity of the marriage under Ss.18 and 19 of the Indian Divorce Act, 1869, on the ground that her (wife's) first marriage still subsisted, in as much as the dissolution effected by the Eparchial Tribunal was not valid. Even without taking evidence the District Court accepting husband's plea granted a decree of nullity and forwarded it for confirmation to the High Court.

 

The High Court remanded the case directing the District Judge to conduct an enquiry into the allegation relating to the subsistence of the former marriage. While doing so it thought it proper and necessary to review the position of the law that got reestablished in Leelamma.

 

At the outset, it may be noted that the Full Bench of the High Court was convinced that the decree of the District Court was in violation of the procedural requirements under S.47 read with S.45 of the Indian Divorce Act, in as much as the District Court without conducting an inquiry granted the decree of nullity merely on the admission, made by the parties in their pleadings. The Court noted:—

 

"All those would suggest that the District Judge is not to pass a decree of nullity of marriage just after reading the pleadings of the parties. At any rate, S.45 of the Divorce Act is not a carte blanche for dispensing with any enquiry as to the existence of a ground for nullity of marriage merely because no dispute regarding mat ground has been raised by the other party".[19]

 

Having come to such a conclusion and having finally remanded the case for taking evidence, one wonders whether there was any necessity at all for the High Court to lay down any principle on the binding nature of a decree of nullity of marriage granted by the Eparchial Tribunal especially when the case came up before the High Court for confirmation under S.20 of the Act and it being no reference under S.9 for the decision of the High Court. Yet, the Court went on to express its opinion which was not necessary for the decision of the case, especially when the Court came to the conclusion that for obvious procedural irregularity no confirmation could be given under S.20 of the Act. It is significant in this context to refer to the mandate under S. 9 of the Act which provides for a decision on a reference by the District Court to the High Court. Therefore, the opinion in the case may be considered per incuriam.

 

Be that as it may, let us examine the opinion of the Full Bench. It ruled:—

 

"Our conclusion is the legal position laid down by the Division Bench in Jose v. Alice (1988 (2) KLT 890) vis-a-vis the Canon Law is the correct position and requires no change". [20]

 

This conclusion was made on reasoning thus:—

 

"When there is a statute governing the area, the statute has primacy over any personal law in that regard.[21] after the Divorce Act came into force dissolution or annulment granted under such personal law cannot have any legal impact as statute has provided a different Code for divorce or annulment.. ,[22] In other words, personal law stands clipped to the extent statutory law has stepped". [23]

 

It may be pointed out that the entire edifice of the judgment in Jose v. Alice [24] was built on a foundation that there is a statutory law applicable to the parties for solemnisation of marriage. This is evident from the judgment. The Court began to weave out its thesis thus:—

 

"It is not disputed that the minister had received episcopal ordination and was competent to solemnise the marriage under sub-section (1) of S.5 of the Indian Christian Marriage Act,1872". [25]

 

It proceeded further:—

 

"There is no dispute that the marriage in the present case was solemnised in accordance with the personal law applicable to the parties. The minister who had received episcopal ordination and had solemnized the marriage in accordance with the sub-s.(1) of S.5 of the Indian Christian Marriage Act of 1872 should be presumed to have ensured that the parties had given free consent for the marriage and such presumption will hold the field until the High Court passes a decree of nullity of marriage on the ground of force or fraud in obtaining the consent". [26]

 

In this context it is to be noted that in Jose v. A lice, the Division Bench went wrong on a fundamental assumption, and it is that there is a statutory law applicable for solemnisation of Christian marriages in the concerned area. This is simply a misconception.[27] The Indian Christian Marriage Act is not made applicable in these areas as it is specifically excluded from application to Travancore-Cochin areas. This vital fact which largely influenced the decision in Jose v. Alice was obviously omitted to be taken note of by the Full Bench. And it is this decision of the Division Bench that is affirmed by the Full Bench in George Sebastian. (supra)

 

The Indian Christian Marriages Act which the Full Bench seems to think applicable is not at all applicable in the areas which formed part of Travancore or Cochin. If what the Court speaks of ("the statutory law has stepped") is the Indian Divorce Act, it may be noted that it deals mainly with divorce and nullity of marriages. > And solemnisation of Christian marriages in these areas is regulated by the personal law, the Canon Law and customs.[28] Therefore, the Court should not have decided the question as to whether there was a validly solemnised marriage without recourse to the personal law. At any rate, this question could not be examined by looking into the provisions of the Divorce Act alone. This is especially so when the Supreme Court has held:—

 

"The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled". [29]

 

Thus the relevance of personal law was brought home by the Supreme Court even in a maintenance case. Therefore, whether it is in the case of maintenance or for other reliefs, a wife or husband must establish her/his civil status as a wife or husband with reference to the personal law applicable to the parties.

 

In George Sebastian, the capacity of the respondent (wife) to contract the marriage in question could be determined only by resort to the personal law applicable to the parties and if according to the personal law, the earlier marriage was void ab initio. the question of nullity of the marriage between the petitioner and the respondent would not arise as S. 19(4) of the Indian Divorce Act, 1869 will be attracted only if there was a marriage according to the personal law. If the marriage was void ab initio the marriage would be non est and it would have had no legal effect at all and since that marriage was only a simulation of marriage, that law which allowed the solemnisation of marriage (Canon Law) has the power to declare that the marriage was non est. That being so, the question of the former marriage being in force as contemplated under S.19(4) [30] would not arise.

 

Further, the Full Bench of the High Court seems to have proceeded on the assumption that the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872 form the comprehensive legislation on the subject,[31] This does not appear to be correct as is evident from the preamble to the Indian Divorce Act, 1869 which states:—

 

"Whereas it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain courts jurisdiction in matters matrimonial".[32]

 

It is pertinent to note that it was not to 'make' or 'consolidate' the law, but to amend. That means there was some law then existing and the Divorce Act was to be part of that law. The concept of amendment in law postulates an antecedent law in force and in some cases the bulk of that antecedent law is kept alive and only the dead wood removed. Whenever there was no law, the legislature specifically noted the position. For example the Preamble of Divorce Act may be read in contra distinction with that of the Indian Christian Marriage Act, 1872 which reads:—

 

"An Act to consolidate and amend the law relating to the solemnisation in India of the marriages of persons professing the Christian religion".[33]

 

Now, therefore, it becomes evident that the Indian Divorce Act does not consolidate the law of divorce, but it only amends [34] the law and aims only at a limited intervention in the law by conferring jurisdiction on the Courts to exercise the same in these matters. And in the exercise of that jurisdiction the court has to act on the principles of English Divorce Courts as is made mandatory under S.7 of the Act.

 

The Indian Christian Marriage Act, 1872 consolidated the law relating to 'solemnisation' of Christian marriages rather than the substantive law of marriage such as capacity to marry and impediments. This is abundantly evident from the various provisions of the enactments. This position was correctly appreciated by the Bombay [35] Madras [36] and Allahabad [37] High Courts.

 

The Supreme Court appears to have approved of the finding of the Bombay High Court to the effect that the whole of the Indian Christian Marriage Act 1872 deals only with the ceremony of marriage.[38] and repelled the contention that it was not open to the courts to travel beyond S. 19 or the provisions of the Divorce Act to discover whether an impediment which renders the marriage null and void ab initio existed. And then the Supreme Court held that the question of capacity to marry and impediments in the way of marriage would have to be resolved by referring to their personal law, i.e., Canon Law.[39] In fact the Supreme Court travelled beyond the provisions of the Statutory Law to decide the validity or otherwise of a Christian marriage. This was made possible by the Legislature by enacting S.88 of the Indian Christian Marriage Act, 1872. It provides:—

 

"Nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into".[40]

 

Thus it was not intended to make any infraction on personal law which was to be held as substantive law. It was by resort to S.88 that the Supreme Court in Lakshmi Sanyal [41] recognised and applied the Canon Law as personal law of Catholics in deciding upon the validity of a marriage solemnised under the Indian Christian Marriage Act, 1872. It was a case where the statutory law, i.e. the Indian Christian Marriage Act, was made specifically applicable and yet the Supreme Court gave effect to personal law by resort to S.88 of the Act. In George Sebastian, there is no statutory law relating to solemnisation of marriages [42]. The Full Bench failed to note the importance of personal law in the light of the decisions of the Supreme Court

 

The British Indian Courts had taken a balanced view in those matters as is evident from the decision of the Bombay High Court which held:—

 

"any marriage which should for any reason be invalid in the eyes of that law (Canon Law) must also be held invalid in a civil court".[43]

 

The above reasoning of the court appears to stand fortified as the Court would get jurisdiction in a case of nullity of marriage only if the parties approach it under Sections 18 and 19 of the Act. And nowhere in the entire Act, it is stated that a declaration of nullity of marriage rendered under the personal law of the parties can have no legal effect.

 

The dissent from Leelamma's ratio or for that matter the non-application of the Supreme Court's decision in Lakshmi Sanyal hy way of distinguishing it was unwarranted. It is felt that having said in Moore v. Valsa that suppressing the fact of vasectomy [44] would amount to 'fraud', it is difficult to understand as to how their Lordships were able to take a different view disagreeing with Justice Chettoor Sankaran Nair, on the content of fraud in S.19 of the Indian Divorce Act as held in Leelamma's case. One fails to understand this stand particularly when the reasoning in George Sebastian is examined in the light of the following observation in Moore:—

 

"The pristine view that scope of fraud in matrimonial law has a narrow radius need not rigidly be adhered to in modem times .....In a way more liberal out look was adopted by the Courts in recent years".[45]

 

It appears that the view taken by Justice Chettoor Sankaran Nair in Leelamma's case, even apart from Canon Law is impeccable because a false representation as to caste has been held to be cheating [46] and further a consent signified by a woman has been held to be no consent at all, if the consent was given under a deception.[47]

 

In this context, it is worthwhile to notice the welcome received by Leelamma among academic lawyers.[48] The response of the Canonists was also not different. [49]

 

It appears that their Lordships of the Full Bench has ignored a vital aspect in upholding Civil Law against canon law, that they were dealing with a situation where there was no civil law but only Canon Law. The Full Bench relied on the Indian Divorce Act to find out the principles governing marriage, while doing so it failed to appreciate that the law relied on was not the Indian Christian Marriage Act or for that matter any other Marriage Act but the Indian Divorce Act which deals with post marriage status only.

 

In this context it may be mentioned that if a certificate of marriage issued under the authority of Canon Law is sufficient for the civil court to accept the marriage as valid, there is no reason why the civil court should not accept and act upon a certificate or decree granted under the authority of the same Canon Law, which provides for the grounds and a machinery to declare that no such valid marriage has taken place. Therefore any such declaration to the effect that a marriage is non est which should for any reason be valid in the eyes of that law (Canon Law) must also be held valid in a civil court.

 

Certain writers have opined that when personal law has the right to celibrate a marriage between Catholics, the right to declare nullity of marriage is implied. [50] Jurists go even beyond this. For example:—

 

"Since the Christians in these parts constitute a separate class for the purposes of marriage and divorce having regard to the tight grip of the church on them it would be in the fitness of things if Ss.18 & 19 of the Divorce Act are not made applicable to them. The Eparchial Court being the custodian of Canon Law may be conferred with the jurisdiction to decide the question concerning dissolution of Christian marriages".[51]

 

The recognition of personal law in Leelamma's case, following the Supreme Court decision in Lakshmi Sanyal for deciding the validity of marriages seems to be correct especially when there is no comprehensive statutory law in the field. This is particularly so when the personal law of Muslims has been recognised as a valid defence even against prosecution for bigamy.[52] Hence there is no rhyme or reason for the non-recognition, by the civil court, of a decree of nullity of marriage granted by the Eparchial Tribunals.[53] This is all the more so as laws exist for the sake of man [54] and not for the law. Further laws exist for the sake of life [55] and courts for the sake of enforcing them for the citizens.

 

Viewed from the context of the Constitution of India, it appears that Canon Law and its forums and procedure can claim protection under Art. 13(3)(b) of the Constitution as personal law was also a law in force at the commencement of the Constitution. Certainly the legislature has not thought it necessary to enact a zonal law to govern. Therefore, it is felt that it would have been better had the court refrained itself from rendering the opinion in George Sebastian.

________________________________________________________________

Foot Notes:

1. George Sebastian v. Molly Joseph, 1994 (2) KLT 387 (FB). (CM. Ref.No.5 of 1994 of the High Court of Kerala).

2. Kurian v. Alphonsa, 1986 KLT 731. (The marriage of the parties in this case was solemnised at the Sacred Heart Syrian Catholic Church, Erumapetty in Thrissur District).

3.Following the directive of St. Paul, the Catholic Church has a long tradition to settle disputes through its own tribunals. Such tribunals exist at the Eparchial (Diocesan), Metropolitan and even at a higher level. These tribunals can decide apart from other issues, the validity or otherwise of a Catholic marriage in case of dispute, in accordance" with then-personal law, i.e., in the present case Canon Law.

4. The law is the Indian Divorce Act, 1869.

5.Kurian v. Alphonsa, 1986 KLT 731 at 733. It may be noted that the Indian Divorce Act, 1869 was not enacted by Parliament, it was enacted by the Viceroy's Council-See: Gazette of India, 1869, Supplement, page 291. See: Infra Note: 31 also.

6. Ibid at para.9.

7. See: Code of Canon Law: English translation: Theological Publications in India. Bangalore: 1983. This Code is applicable to Latin Catholics.

8. See: Pius XII, Motu Proprio Crebrae allate, 1949. It was repealed by the Code of Canons of the Eastern Churches. 1990. which entered into force with effect from 1-10-1991. This Code also provides for the civil effects of marriage to be regulated by civil law as is evidenced by Canons 780 and 1358.

9. Jose v. Alice, 1988 (2) KLT 890. Here the marriage between the parties was solemnised at the Syrian Catholic Church, Santhipuram in Trichur District.

10. Ibid at page 896.

11.Ibid at page 893.

12. See: Ibid at page 891 and 897

13.See: The Schedule to the Part B States (Laws) Act, 1951.

14. Supra Notes 7 and 8.

15. Lakshmi Sanyal v. S.K. Dhar: (1972) 2 SCC 647 = AIR 1972 SC 2667, para.10

.16. Reynold Rajamani v. Union of India (1982) 2 SCC 474 = AIR 1982 SC 1261.

17.Leelamma v. Dilip Kumar, AIR 1993 Ker. 57 = 1992 (1) KLT 651.

18. On this, a reputed author*opined:-

"What is surprising is that it took Kerala twenty years to follow up and fall in line with a sentence of the Supreme Court of India given in 1972, which had recognised Canon Law as the personal law governing Catholics. Perhaps the responsibility for this delay has to be shared by the legal profession both civil and canonical".

* Professor George Nedungatt of the Pontifical Oriental Institute. Rome, in his forward to Marriage Laws in Canon Law and Civil Law by Dr. Joseph Vadakumcherry.

19. See: Paragraph 6 of the Judgment.

20. See: Paragraph 27.

21. See: Paragraph 16 of the Judgment.

22. See Paragraph 18 of the Judgment.

23. See Paragraph 18 of the Judgment.

24. Jose v. Alice, 1988 (2) KLT 890.

25. Ibid at page 891.

26. Ibid at page 897.

27. See: Supa Notes 12, 24-26. It can be noted that, the marriage in this case was solemnised in the former state of Cochin. The Indian Christian Marriage Act is specifically excluded from its application to this area by the Schedule to the Part B States (Laws) Act, 1951.

28. See: Cheriya Varkey v. Ouseph Thresia: AIR 1955 T.C. 225 and also Leelamma v. Dilip Kumar, AIR 1993 Ker. 57 = 1992 (1) KLT 651.

29. Yamunabai Anantrao Adhav v. Anantrao ShivaramAdhav. (1988) 1 SCC 530 at page 536. This decision was rendered in the context of S. 125 Cr. P.C. as was the case in Jose v. Alice.

30.Section 19(4) provides that a decree or nullity may be made on the ground; "that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force".

31.In this context the view taken in Mary Zoniz Zacharia v. Union of India, 1990(1) KLT 130 might be noted. His Lordship has stated that the Indian Divorce Act, 1869 was enacted by the British Parliament. It is not correct. It was enacted in India. This is evident from the despatch of the Secretary of State transmitting the Letters Patent (Letter from Secretary of Suite Judicial No.24 dated 14-5-1862,33rd para.) as is quoted in the Statement of Objects and reasons of the Indian Divorce Act, 1869 as published in Calcutta Gazette, 1863. page 173. It is pertinent to note that the view taken in Mary Zoniz, Zacharia v. Union of India, that S.10 of the Indian Divorce Act, 1869 as violative of Art. 14 of the Constitution has been disapproved by the Supreme Court in Anil Kumar Mahasi v. Union of India, J.T. 1994 (4) SC 409 = 1994 (2) KLT 399, (This decision of the Supreme Court requires further examination).

32. Preamble to the Indian Divorce Act, 1869. (Act No.4 of 1869).

33. Preamble to the Indian Christian Marriage Act, 1872. It is interesting to note that S .88 of this Act recognizes personal law applicable to the parties. It is thus a balanced piece of legislation to that extent.

34. See: Lakshmi Sanyal v. S.K. Dhar (1972) 2 SCC 647 para.6.

35. Peter Philip Saldanha v. Anne Grace Saldanha: ILR 54 Bom. 288.

36. In re Kolandaivelu (1917) 40 MAD. 1030 (FB).

37. Alfred v. Titili, AIR 1933 All. 122.

38. Lakshmi Sanyal v. S.K. Dhar (1972) 2 SCC 647 page 654.

39. Ibid at Paragraph 10.

40. See: The Indian Christian Marriage Act, 1872. (Act No.15 of 1872).

41. See: Supra Note 38.

42.See: Supra Note 13 and 27.

43.Peter Philip Saldanha v. Anne Grace Saldanha: (1929) ILR 54 Bom. 288 at page 313 = (AIR 1930 Bom. 105). It is pertinent to note that this decision was rendered in the context of the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869.

44. It may be noted that the fact (vasectomy) is amenable to correctional measures like re-canalisation. Further such a concealment has never been brought within the field of Penal law.

45.Moore v. Valsa, 1991 (2) KLT 504, para.7.

46. Mohim Chuder Sil (1871) 16 W.R. (C.R.) 12.

47. See:S.375 of the Indian Penal Code which deals with consent of a woman in a rape case.

48.Prof. K.N. Chandrasckharan Pillai: A comment on Leelamma v. Dilip Kumar alias Kochaniyan, 1992 (1) KLT 651 in 1992 (1) KLT Journal page 53.

49. Rev.Dr. Joseph Vadakkumcherry: Reflections on Leelamma v. Dilip Kumar, 1992 (1) KLT 651 in 1992(1) KLT Journal 73.

50. M.I. Joseph: Conflict between personal law and civil laws: Though the author had also thought that the Indian Christian Marriage Act, 1872 was applicable to that case, i.e., Kurian v. Alphonsa.

51. See: Supra 48 at pages 56-57.

52. Abdulla v. Noorjahan: 1987 (1) KLT 885. The right of Muslim husband to make a unilateral "Talaq" is recognised by the Civil Courts without any reservation whatsoever.

53. It is common knowledge that the church does not allow dissolution of marriage except on valid grounds. It is in fact very difficult to get a decree of nullity under the Canon Law.

54. And man includes woman also.

55. Here life should be given the meaning as given under Art.21 of the Constitution, where life does not mean mere animal existence.

Tax on Knowledge

 

(K. Sukumaran, Former Judge, High Court of Bombay & Kerala)

 

1. In my early infancy, I was taught one of the enduring lessons of life. It was done with all the imprint of authority. The verse was in Sanskrit, then revered well. Its gist was:

 

The thief can't steal it;

The King can't rob it;

Not to be shared with the brothers

Nor a burden that bothers;

 In daily deals, it increases as you spend;

 Knowledge is the best asset you can vend!

 

2. Knowledge could be gained in diverse ways. In some fields, proficiency may be in born with the family and environment. Some branches may require harder toil and greater expenses. The Indian case law has brought the distinction between the two types: Prostitution and the Indian Civil Service. The bias, was however, always in favour of the industrious scholar.

 

3. The Privy Council observed:

 

"Many a learned man makes nothing and many a specialist gets on his profession by pertinacity and mother wit. It is difficult to decide whether the emoluments are "the rewards of the learners brains and industry and good fortune".

 

4. In tune with the Indian sentiments, the Indian legislature passed an Act, to ensure that the gains of one's own knowledge did not go to swell the assets of me Joint Family in which he was born. Hindu Gains of Learning Act, 1930 set the controversy at rest. What is relevant is the outlook on acquisition of knowledge.

 

5. In England, people and their representatives in Parliament were unanimous in their opposition to any taxing measure which imposed any financial burden on the acquisition of knowledge. The reason is not far to seek A.L. Rowse records:

 

"Melbourne was an omnivorous reader. Pitt a good classic; Fox and Palmerston had languages at command. "Politics were not then the life sentence to hard labour that in our iron age they have become”.

 

6. Such taxes as the stamp duties on newspapers which rendered it impossible in those days to sell a daily newspaper at a price that allow it, to come into the homes of the poorer classes, were considered as 'taxes imposed upon the spread of knowledge'. According to Trevelyan, taxes on knowledge consisted of an excise duty on paper; a tax of one shilling and six pence on every advertisement however short; and a newspaper stamp of a penny on each sheet.

 

Those who have lightened the burden of taxation have been remembered by the enlightened for their imaginative acts.—Akbar who reduced the King's share to a third, and the British who had reduced it to a eighth or twelth.

 

7. Tax on knowledge can be levied directly, and some times even indirectly. Denying a deduction of expenses in computing income, is indirect impost of tax on knowledge when the expenses are incurred for acquiring knowledge.

 

8. Permissibility of expenses on deduction for Income Tax purposes had been subject matter of keen legal controversy. The precedents are more puzzling than dazzling. A conflict in the views of Law Lords in House of Lords which came out openly, is indicative of the sharpness of the conflict. The view of one of them was characterised by another as 'confusing'; and he proceeded to observe that such confusion would cause chaos in the administration of Revenue Laws (Smith v. Abbott 1991 (1) All England Law Reports 673). The decision has referred, almost exhaustively to the precedents dealing with permissibly of deductions under the relevant provision of English Act, which is more stringent and restricted than S. 37 of the Indian Income Tax Act, 1961.

 

9. A more comprehensive view on the term 'expenditure incured wholly and exclusively', had been taken in early times in the well known Vellambrosa case. Such a perspective is preferable in areas where statutory obstructions are absent. That would be in consonance with a better management of the Revenue Laws, conserving for the State in the long range, what is due to it, and at the same time, encouraging the entrepreneur to spend initially so that income would be generated, if not immediately, atleast in the forseeably near future. Ultimately, it is the Revenue which is benefited by the derivation of such income, by having the opportunity to slice off a portion of that income for sovereign use. The resistance to encourage initial expenditure by denying a permissible deduction in the computation of income, would be counter productive in the ultimate analysis.

 

10. Apart from heavy burden directly imposed on the means of acquisition of knowledge, there could be indirect but equally onerous imposts. That has now become clear beyond doubt,

 

A provision for permissible deduction in the Income and Corporation Tax 1970 as enacted in Britain is illustrative. Farewell C.J. refers to those corresponding provisions of England as "notoriously rigid narrow and restricted in their operations". Many were the victims of the rigidity and narrowness of that provision.

 

11. Way back in 1925, a medical man was roughly treated by the Revenue. He joined certain medical and scientific societies in order that by means of their meetings and published transactions, he might be aware of all recent advances and keep himself upto date on all medical questions affecting public health. (Many may infer from the thin attendance in IMA meetings, that such a habit is not so astutely cultivated among the Indian Medical men). The expenses incurred were claimed as permissible deductions while computing the income. The claim was disallowed by a Judge familiar with Taxation jurisprudence. It is doubtful whether the reasoning advanced was not a fragile one. However, the reasoning supporting of the conclusion was expressed by him, as follows:

 

"When one looks into the matter closely, however, one sees that these are not moneys expended in the performance of his official duties. He does not incur these expenses in conducting professional inquiries or get the journals in order to read them to the patients".

 

12. Twenty years later, a student Assistant in a Research Laboratory of a company had a similar unfortunate fate. He was required by his employer as a condition to employment to attend classes for preparation of final examination for Degree of Bachelor of Science. The employer allowed time off to attend the classes for that purpose. There was a claim to deduct for Income Tax purpose, the expenses he incured in travelling to and from the classes and in the purchase of text books. It was Macnaughten J. who pronounced on the claim. He observed that:

 

"the duties of his employment were as a Student Assistant in the Research Laboratories on the General Electric Company".

 

The Judge continued:

 

"It seems to me impossible to say that, when he was listening to the lecture at the Chelsea Polytechnic, he was performing the duties of a student assistant at the laboratories of the company".

 

13. It is little wonder that expenses such as had been incurred by a Regimental Officer in joining the Mess, which under the Regulations he was obliged to become, had been disallowed in the year 1953.

 

14. More directly on the questions of the deductability of expenses for educational activities was a case decided in 1962. A Head Master was required to teach history in a school. He attended a series of week-end lectures on history. The Court accepted the fact that the Headmaster

 

"attended the course to improve his background knowledge of the subject.... he gleaned useful information from the lecturers .. he felt the course was essential to keep himself up to date ... to provide him with materials which he reproduced in the history lessons".

 

Even then, the claim was rejected!

 

According to the Court, deductable expenses do not include expenses incurred in qualifying initially to perform the duties and in adding to his usefulness in performing his duties.

 

15. Three decades later, the journalists themselves became victims of this harsh treatment of the Revenue law.

 

16. Under the agreement with the National Union of Journalists, allowances were granted for purchase of newspapers and periodicals, which could equip them better to perform the duties as reporters, photographers or editors. No doubt, the amount involved in the litigation was substantial. The membership of National Union of Journalist exceeded 30,000. The yearly expenditure per head come to about 1000 pounds. The aggregate amount was a substantial amount of 30 million pounds! In pure theory, of course, the range of the revenue is not decisive on the ultimate conclusion. Yet, that aspect was referred to in the final decision rendered by the House of Lords in July 1993 (Smith v. Abbott 1994 (1) All ER 673).

 

17. There were two batches of cases, with the Departmental set up in Scotland and England taking divergent views. Ultimately, the decision turned out to be adverse to the Journalists.

 

Lord Templeman gave the leading Judgment on behalf of the House. The emphasis was on the distinction between the performance of duties and enabling the duties to be performed. Templeman observed:

 

'When he reads newspapers and periodicals he is not acting in the performance of his duties as a reporter'.

 

18. That Lord Brown-Wilkinson took a different view is poor consideration for the Journalists. According to him:

 

"Knowledge of each day’s news and the way it is being dealt with by other newspapers is the raw material from which that day's news is presented in that day's paper. Each day’s paper is a separate lecture; each day's work is preparation of that lecture and each, day's reading of other newspapers is research for that day's lecture. Certainly on the facts found, the knowledge acquired from daily reading of news papers could not properly be described as being merely preparatory or by way of background information'.

 

Journalists may find the approach and conclusion as congenial and comfortable. Yet, from the practical angle, it offers them little solace. The majority has its way. It did act and affect them, in hard way and on harsh terms. The decision has been criticised in 1994.110 LQR page 364.

 

19. When the highest Tribunal of law, hands down an authoritative verdict, it has necessarily to be accepted as the law till such time that a later and stronger Bench decides otherwise. (We in India are now having such experiences fairly frequently!)

 

20. Fortunately for India, the provision regarding permissible deduction does not appear to be that narrow or that rigid. It may be hoped that liberalisation may not make the Administrators, follow the English example!

 

21. I have before me one volume of a foreign law journal, the All England Law Reports, and its bill for Rs.13,331! How many among the lawyers who are expected to assist the Judges, afford, subscribing for that informative report? There are many Law Colleges, where Post-graduate teaching is also undertaken, which have discontinued the subscriptions for such costly journals. And the teachers unfamiliar with the later trends are to guide their wards!

 

They have doubtless missed the sonorous song of Tagore praying for the country to awake

 

'where knowledge is free,

where the world has not

broken up into fragments by

narrow domestic walls

 

22. Doubtless, the above situation is not one faced by law colleges only, but all colleges in the country; not merely in the Delhi University but in all Universities in the country. That is an aspect in which Ministers of Education and Finance would do well to bestow some thought as soon as they can. Taxing knowledge, would be vexing the intellect

 

23. Every one extols the virtue of Education, the Finance Ministry included. We will have no disbelief in the man who holds the string of the purse, for, he was himself an academic but yesterday. Yet, we feel unduly disturbed when a renowned Vice-Chancellor of his own University resigned over the failure of the Government in making available to a prestigious University the subsistence level funds. No one is alarmed about such developments. The claim of a Minister that he will not lose his sleep, whether there be a scam or a plague, does not disclose a Samsonite strength.

 

24. Why is it that even when a Vice-Chancellor had to quit his office because of the tax on knowledge, no one appeared to be alarmed about it? The brilliant students; the vigilant teachers, the shrewd intellectuals and dedicated public men watched the event with perfect detachment. Will it not lead India into the labyrinths of gloom? - India which taught the world, the glory of liberation into the fulness of knowledge? It is time for the people to get worried about a possible bleak future for the Nation and the remedial measures emergently needed to redeem the situation.

 

"What was held by the House of Lords in these cases was that Oils decision should be taken by the Court and not by the employer".

 

He is of the view that two significant questions were omitted to be raised during the course of the case when it was argued.

 

"The first question is this: If the employers had bought the newspapers for the employees to read, at the place of work or elsewhere, would the employees have then.had to pay tax?

 

And the Second question is: Would it have made any difference if the journalists had not been employees, Schedule E, but had been freelance, Schedule D?"

 

A graver question projecting a point which may adversely affect the Revenue is thereafter raised:

 

"If the Revenue wants to claim that an activity is somehow outside the scope of an employee's employment - so that he cannot deduct the expenses arising from the activity - then the logic of the Income Tax system, and it is basically logical, may suggest mat payments made to the employee in relation to the activity are not emoluments from the employment and so are not taxable".

 

What is relevant in the present context is not the finer naunces of taxation jurisprudence, but the effect that the decision had in adding to the burden on a journalist for his inalination to have an intellectual activity, inter-linked and inter-twined with the better and more efficient discharge of his duties as a journalist.

___________________________________________________________________

NOTE

The above decision has been subjected to a strong critical review by Roger Kerridge of the University of Bristol. A history of the Income Tax Legislation dating back to 1853 when Gladstone in his first budget, introduced the Income Tax Act, 1853 has been alluded to in the article. The criticism notes that the essential problem is with the phrase "in the performance of the duties of the employment". According to Roger, the problem is not one of wording; he poses the problem; who is supposed to decide what these duties are, is it to be the employee, the employer or the Court? and expressed his view about the decision:

United Kingdom Immigration Laws

 

(Ranjit Malhotra, Advocate, Chandigarh)

 

This article highlights the further tightening of the immigration laws with regard to spouses, visitors and students seeking to enter Britain from India. The irony is that even a large number of genuine cases are dealt very harshly, invariably resulting in refusal of visa.

 

The primary purpose rule has generated more anger and anguish for the British Asians than perhaps any of the immigration rules. The primary purpose test basically lays down that the husband and wife coming from abroad must prove that the admission to the U.K. is not the primary purpose of the marriage.

 

The facile assumption that Asian marriages are cleverly arranged devices to get around immigration controls has led to three major tests that intending immigrants have to pass. They are the primary purpose test, the intention to live permanently as husband and wife and the requirement that the parties have met before marriage may be considered as actually undesirable for some traditional orthodox Punjabi families.

 

The primary purpose rule is mainly targeted at spouses seeking entry from our homeland but more recent evidence suggests that the harsh effects of this rule are also felt by non-white ethnic minority groups, in particular people from Nigeria, Ghana and some Caribbean countries.

 

A crucial contributory factor to the no win situation in primary purpose cases is the fact that the immigration rules provide that the onus of proof rests upon the applicant to satisfy the entry clearance officer (when applying from India) or the Secretary of State (if applying within the U.K.) that it was not the primary purpose of the marriage to gain entry to the U.K. It is a matter of serious concern that the intimidating manner in which the interviews are conducted by the British High Commission at Delhi and Bombay. In a large number of cases the applicant is put to a disadvantage so onerous that she is unable to establish his/her own case. It is disturbing to note that the evidence so recorded, usually under pressure, forms the foundation of the applicant's case, which is used by the U.K. immigration authorities ultimately to refuse entry clearance outrightly.

 

It is also pertinent to note that British immigration control is now achieved not so much by changes to the relevant statute, nor even the immigration rules but by secretive administrative instructions from the Home Office to the immigration officers, which are outside the purview of both the public and parliamentary control.

 

The systematic deterrent strategy employed by the courts in England and Wales illustrates that the courts tend to favour Government over immigrants even where the immigrant's important interests such as liberty, livelihood, reputation and family unity are at stake. It is indeed pathetic that the Punjabi community among other Asian communities, who have toiled in Great Britain for several decades have been meted out such treatment when it comes to marrying their children to eligible spouses from India. The way law is developing in this direction, which will eventually mean that Punjabi families will have to forget marrying their children to suitable boys and girls from Punjab or other parts of India. It is more than apparent that the primary purpose rule has been tailor - made to hit husbands coming from our motherland and to curtail, rather thwart, the Asian practice of arranging international marriages.

 

Furthermore, the Asylum and Immigration Appeals Act, 1993, makes provisions about persons who claim asylum in the U.K. and their dependants and drastically restricts certain rights of appeal under the Immigration Act, 1971, in non asylum cases. Lawyers in Britain specialising in Immigration laws are of the view that the application of the provisions of the 1993 Act will lead to manifold increase in judicial review applications.

 

The most disturbing aspect about the 1993 Act is that the abolition of right of appeal from visitors, short term and prospective students which will give the immigration officers less incentive to make thorough and reasoned decisions. Otherwise, in many situations there is a right of appeal against an adverse decision by an entry clearance officer or the British Home Office Immigration Department. In the implementation of the said Act, there are genuine fears that an already hostile system will be further tightened against students and visitors coming from a commonwealth country like India. The possibility of judicial review bearing in mind its remoteness, is no substitute for reassessing their case on merits. Being practical, it is unrealistic for a visitor/student from India to spend money in pound sterling to initiate legal processings in Britain, especially in light of the current exchange rates.

 

What then is the solution to this problem which has now assumed serious dimensions. Part of the problem can be attributed to the fact that some applicants do not prepare their papers properly. Quite often, they also rely on half baked advice given by travel agents. It is strictly unadvisable to rely on the advice of travel agents since they do not have proper professional knowledge of British Nationality Laws, which are complex in their understanding and undergo amendments very rapidly.

 

This can only be a brief account of the present day harsh operation of the United Kingdom immigration law. In the final analysis, the author's advice is that the relatives and friends of immigrants from India seeking to enter Britain should prepare their papers meticulously, never rely on the advice of travel agents, do not attempt to enter Britain as illegal entrants, rather seek legal advice in complex situations.

______________________________________________________________________

Footnote:

*The author is a practising lawyer at Punjab and Haryana High Court and has recently obtained his LL.M. degree from University of London, with a specialization in Immigration Laws.

 

Powerful Police vis-a-vis Mighty Court

 

(Salim Kambisseri, Asst. Public Prosecutor, Thiruvalla)

 

Aggrieved by the inaction of the police on their refusal to register and investigate various cognizable offences, a complainant knocked the door of the Criminal Court and he filed a complaint alleging commission of offences under Ss. 447 & 427 read with S.34 IPC. The learned Magistrate, in exercise of the power under S.156 (3) Cr. P.C., forwarded the complaint to the local police for investigation and report. After a couple of weeks, the police registered a case. Subsequent - conduct of the police also revealed snailslow progress. The complainant again rushed to the court and informed the Magistrate, through a Written Complaint, that the polls e did not conduct any investigation and not even a scene mahazar was prepared. Another grievance, voiced by the complainant, is that if a scene mahazar is not prepared, there is likelihood of the evidence being disappearing and the complainant prayed for appropriate action so that valuable evidence may not be lost. Seeing the pitiable position of the complainant, the learned Magistrate thought it just and proper to call for the Case Diary for satisfying himself and to ascertain the present stage of investigation and the quantum of evidence so far collected. A further direction to have a speedy investigation was also made. The stand taken by the police is that the Magistrate cannot call for Case Diary at that stage and the Magistrate cannot direct the police as to the manner in which investigation has to be proceeded with. Such an incident has happened recently in one of the Criminal Courts in Kerala.

 

2. The questions to be raised for thinking on the academic side are the following: -

 

(1) Is the act of the Magistrate correct?

 

(2) Can the court call for Case Diary at the investigation stage?

 

(3) Is there power on the part of the Magistrate to order speedy Investigation and, if at all there is such a power, to what extent is this power limited?

 

3. An attempt is made in this article to have a solution for these problems and to enlighten the police about the power of the court in giving direction at the investigation stage.

 

4. Investigation of a cognizable offence is in the realm of police. It is the process of collection of evidence and thereafter to send a final report either Inculpating the accused of the offences alleged against him or to file a report stating that the case was registered under a mistake of fact or mistake of law or on faulty information. It is axiomatic that the Magistrate, after having exercised the power under S.156(3) Cr. P.C., has no further power to direct the Investigating Officer as to the manner in which the investigation has to proceed. Once an investigation by the police is ordered by a Magistrate, he cannot place any limitation on, or direct the officer conducting it as to how to conduct it. Whether the Magistrate applied his mind only for ordering investigation u/S.156 (3) Cr. P.C. or issuing a warrant for the purpose of investigation, he cannot he said to have taken cognizance of the offences. (Nirmaljith Singh v. State of West Bengal 1973 SCC (Crimes) 521). In other words, the power of the police to investigate a cognizable offence is uncontrollable by the Magistrate and it is only in cases where the police decides not to investigate the case, that the Magistrate can intervene and either direct an investigation or, in the alternative, himself proceed, or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate the case has been made independent of any control by the Magistrate. (S.N. Sharma v. Bipinkumar, 1970 SCC (Crimes) 258). Likewise the Magistrate cannot call upon the police to submit a charge sheet against an accused person, when the police has sent a report that there is no scope for sending up the accused for trial, even though the court can call for a further investigation. (R.N. Chatterjee v. Kavildar K. Singh 1970 Supreme Court Cases (Crimes) 218). The above discussion of law will lead to the irresistible conclusion that the Magistrate, after having referred the case for investigation under S.156(3) Cr. P.C., cannot meddle with the investigation by giving various directions to the police in the matter of investigation. To put it in another form, the Court cannot ask the Investigating Agency the "What, How and Why" of the investigation. But the court is not rendered helpless when the Investigating Officer conducts 'a make belief investigation' or snail-paced investigation. The court has the power, in order to prevent abuse of process, and also the abuse of power, to ascertain the stage of investigation. As against an inactive Police Officer, a Magistrate can be active by calling for the Case Diary to ascertain the stage of investigation. In the factual set up, given at the earlier part of this article, the Court has to do justice to the party who brought a complaint and the court is empowered to ascertain as to the extent of investigation done by the Police Officer. In such a situation, in order to ascertain the genuineness of the second complaint, the Court can call for Case Diary and ascertain whether there is substance and truth in the allegations levelled against the police. If such a power is not exercised, the complainant who brought the complaint before court will not be in a position to substantiate his allegations since, by that time, material pieces of evidence will disappear. Under the provisions of the Code of Criminal Procedure the Magistrate has several powers even at the investigation stage. These powers will include holding of Test Identification Parade, recording of confessional statement, granting of bail, declaring a co-accused as an approver, etc., etc. All these are steps in aid of the investigation and not an interference in the investigation. The court can exercise its judicial discretion even after submitting a final report not to take cognizance of the offences. If there is refer report the Court can decide whether a further investigation has to be ordered. At this stage, coming to S.190 Cr. P.C., the Court exercises a judicial-cum-mental act whether to take cognizance or not. Here the Investigating Agency has no role to play. Even after taking cognizance of the offence, the Investigating Officer is entitled to investigate the matter further and submit a further report by virtue of S.173(8) Cr. P.C. and such a report is in addition to the original one. But it is not a substitute to the original final report on which cognizance was taken. The court can also take cognizance of the offences disclosed against other persons not included in the original final report. The Magistrate can refuse to act upon a supplementary report or to lake cognizance either fully or in part. He can refuse to proceed against any person for want of sufficient grounds. With whom the final discretion vests is stated by His Lordship Justice S. Padmanabhan in -- 1988 (1) KLT 924 (State v. Gopakumar) with the following observation:-

 

"The further investigation cannot trench upon the proceedings before the court because the final discretion in regard to further action is with the Magistrate. That final word is sufficient safeguard against any excessive use or an abuse of power of further investigation by police".

 

Likewise in Aravindakshan v. State of Kerala (1985 KLT SN 45 (C.No.66) His Lordship Justice Padmanabhan has taken the view that court can direct a further investigation even after taking cognizance, when the stage for proceeding under S.319 of the Code has not arisen, even though the judicial authority may not interfere with the statutory right of the police to investigate the case -1986 KLT 445, AIR 1974 SC 1146, 1980 Crl. L.J. 98 and AIR 1985 SC 1668 etc. In exceptional cases the court can interfere with the stage of investigation whenever miscarriage of justice is smelt on account of non-interference. No kind of argument can be addressed relying on S.172(2) Cr. P.C. that the court's power to call for the Case Diary is only at the stage of 'inquiry' or 'trial'. S.172 (2) Cr. P.C. is only an enabling provision which enables the court to call for the Case Diary at the stage of inquiry or trial for the purpose of aiding such inquiry or trial. But that does not mean that the hands of the court are chained to ask for the Case Diary at any other stage. If such an argument is allowed to be raised the power of the police is likely to be misused, its power may cause unnecessary delay in investigation and may permit the evidence to disappear. There would not be any prejudice to the police if the court asks for production of the Case Diary to ascertain the stage of investigation. Calling for Case Diary or a direction to have a speedy investigation cannot be equated with interference by the court during the investigation. The grant of bail will not come under the stage of 'inquiry' or 'trial'. Inquiry is defined to mean every inquiry other than trial conducted by the Magistrate under the Code. Authorities arc legion to the fact that Courts can call for the Case Diary at any stage other than the inquiry or trial. (1990 Crl. Law Journal 788 (Supreme Court). In that decision the Honourable Court held:—

 

"..........The learned Judge had also refused to consider the materials placed before it for the purpose of satisfying himself whether there was no reasonable ground to believe that the respondent has committed the offence. In the course of investigation witnesses have been questioned and their statements have been reduced to writing. The learned Judge refused to consider the statements recorded in the course of investigation for the simple reason that such statements had not been read over in the open court though the court was empowered to persue the Case Diary for the purpose of satisfying itself as to the stage of investigation, and the nature of evidence that had been collected".                        (Emphasis supplied)

 

Similarly our Honourable High Court in 1984 KLT 687 (Supdt. of Police v. Vijayaraghavan and others) speaking through Justice Bhat observed:--

 

"..........The C.B.I., and its Prosecutor were certainly in the wrong in not producing the case diary before the Court Officer or the Chief Ministerial Officer and insisting or handing over the same to the Sessions Judge himself and at the same time when the learned Sessions Judge found the case diary was not before him, he should have insisted on the same being produce d either by passing an order in that behalf or by issuing a notice to CBI. It is the right and duty of the Court to look into the materials available on the basis of which the bail application is opposed".                                           (Emphasis supplied)

 

These decisions will show that there were instances where the court called for case diary at the stage of investigation and that such an interference is not confined to inquiry or trial. The latest decision is that of the Supreme Court in 1992 Criminal Law Journal 527 (SC) (State of Haryana and others v. Bhajanlal and others). The Supreme Court has made it clear that the Magistrate is not helpless. In these circumstances a court can pass appropriate orders in the interest of justice. The following portion is worth to be extracted:--

 

"The investigation of a cognizable offence is in the field exclusively reserved for the Police Officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provision falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the Investigating Agencies are well within their legal bounds as aforementioned. Indeed a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the Police investigation, but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a Police Officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the persons aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of Constitution. It needs no emphasis that no one can demand absolute immunity even he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos. Any recognition of such power will tantamount to recognition of 'Divine Power' which no authority on earth can enjoy".                   (Emphasis supplied)

 

5. Even though an inherent power saved under S.482 of the Crl. P.C. is only in favour of High Courts, the Subordinate Criminal Courts are also not powerless in cases like this to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provision, provided there is no prohibition, illegality or miscarriage of justice. As has been observed by His Lordship S. Padmanabhan in 1987 (1) KLT 488 (Madhavi v. Thupran):-

 

"Under such circumstances in order to do what is absolutely necessary in the ends of justice or to prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Cr. P.C. cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations. All the Criminal Courts are having such an auxiliary powers subject to the restrictions which justice, equity, good conscience and legal provisions demand, provided it will not unnecessarily prejudice somebody else".

 

6. Conclusion:--The Police is powerful. Investigation is within its province. But the mighty criminal courts can prevent abuse of process and power by giving direction to the police at the stage of investigation and call for Case Diary to ascertain the stage of investigation. Police Officers are guardians of law. The judiciary is the backbone of Indian democracy. It is the duty of the Judiciary to protect the liberty of citizens. It is the duty of Criminal Courts to see that the actual culprits do not escape from the clutches of law on account of the inaction of the police.

A Comment on Sudevan v. Joint Registrar (1992 (2) KLT 18)

 

(P.N. Mohanan, Advocate, Ernakulam)

 

With due respect to the decision reported in 1992 (2) KLT 18, Sudevan v. Joint Registrar, in my view, requires re-consideration as it does not lay down the correct law, in view of S.66 of the Co-op. Societies Act read with Rule 176 and a Division Bench decision of this Hon'ble Court reported in 1992 (1) KLT 381 (Trivandrum Dt. Co operative Bank Ltd. v. State of Kerala) and a decision of this Court reported in 1990 (1) KLT 374 (Gregory v. Secretary, Manimala Service Co-op. Bank Ltd.).

 

The question that came up for consideration before this Hon'ble Court reported in 1992 (2) KLT 18 was whether the Registrar of Co-op. Societies is bound to appoint a Returning Officer for conducting election on receipt of a resolution by the committee of a Co-op. Society or whether he can exercise his discretion.

 

The Petitioners therein challenged the order passed by the Joint Registrar, rejecting the request of the Petitioner's Society/Bank to appoint a Returning Officer to conduct election under R.35(1) and (2) on the ground that (1) before passing the resolution there was no proper notice to the Committee Members (2) the minutes of the Committee meeting were not closed and signed by the competent officers and (3) no resolution was passed by the Society for convening a General Body meeting for election.

 

Ultimately the Court held that the Registrar on receipt of a resolution can straight away appoint a Returning Officer for conduct of the election and the Registrar has no power to ascertain whether the resolution was properly adopted and whether it is defective.

 

S.66 of the Co-operative Societies Act deals with supervisor) powers of the Registrar. In the decision reported in 1992 (1) KLT 381 (Trivandrum Dist. Co-op. Bank Ltd. v. State of Kerala) it was held that S.66 gives powers or authority to the Registrar to supervise the working of every society. In exercise of that power, for effectively supervising the working of the society, certainly the Registrar is entitled to pass appropriate orders which are necessary in the circumstances of the case.

 

The Registrar can authorise any of his Subordinate Officers to supervise the same. Before taking a decision under S.35(1) and (2) of the Rules, certain formalities had to be complied with by the Managing Committee. Necessary notice must be given to the Committee Members as provided in the bye-laws of the Society and minutes of the meeting should have been recorded properly and should be closed and attested by a competent authority. These are the cardinal principles to be complied with as provided in the bye-laws of the society. In Sudevan's case these were the objections raised by the Registrar. If the Registrar's power is curtailed as decided in the case, it will adversely affect the interest of the Society and the members. These days a lot of malpractices are being committed in the Societies by the Management. To curtail this, the Rule making authority has used the word 'may' instead of 'shall' in sub-rule (2) of Rule 35. When we examine the entire rule we can see that in the beginning of the rule 35 and throughout that Rule the rule making authority peremptorally used the word 'shall' to show that all provisions are mandatory. Hence the word 'may' used in Rule 35(2) should be construed as 'may’ taking into account the entire provisions of the Rule and not 'shall' as done in Sudevan's case.

 

Construing Rule 176 in 1990 (1) KLT 374 (George v. Secretary Manimala Service Co-op. Bank) this Court held that the Rule enables the Registrar to rescind the resolution if it is against the provision of the Act, rules or by laws. The rule is intended to subserve a definite purpose, to provide effective control and supervision by the Department over the functioning of the Co-operative society, a power which finds statutory expression in S. 66 of the Act.

 

So long as there is a provision for supervision expressly-provided by the Act that cannot be overridden by deciding that the aggrieved party can move under Rule 176 of the Rules to rescind any decision of the Board of Directors. That de horse the statutory power contained in S.66 of the Act. Before appointing a returning officer to conduct the election the Registrar has to satisfy a number of formalities such as whether they have obtained the consent of the public place, to conduct the election if the election is decided to be conducted outside the Society's building and resolution under R.35(1) is included in the agenda etc.

 

While construing the rules the intention of the law makers has to be taken into account. In Engineering Industries Training Board v. Samuel Talbot Ltd., 1954 (1) All. E.R. Page 480 Lord Denning observed that

 

"We no longer construe Acts of Parliament according to their literal meaning. We construe them according to their object and intent."

 

Thus taking into account S.66 of the Co-operative Societies Act and in view of the decisions cited above, my humble view is that the decision reported in 1992 (2) KLT 18 in Sudevan v. Joint Registrar of Co-operative Societies has not laid down the correct law and it requires reconsideration.