1995 (2) KLT 430 — In Re Rajan Filial

(By P.S. Vasavan Pillai, Advocate)

In 1995 (2) KLT 439 the learned Division Bench held that the Additional Chief Judicial Magistrate, Thiruvananthapuram had acted without jurisdiction when he granted bail to Mr. Rajan Pillai, an Indian citizen who happened to be a fugitive criminal from Singapore and on that ground the Honorable Bench cancelled the bail. (Mr. Rajan Pillai later died under tragic circumstances in Delhi and may his soul rest in peace).

When Mr. Rajan Pillai surrendered before the Thiruvananthapuram Magistrate on 8.4.1995, there was no order of inquiry issued by the Central Government, under S.5 of the Extradition Act. Incidentally, the Central Government issued the order under S.5 only on 2-6-1995. It is true that once S.5 is issued, only the Magistrate to whom it is issued will have the jurisdiction to deal with the fugitive criminal.

On 8.4.1995 when the fugitive criminal appeared before the Additional Chief Judicial Magistrate, Thiruvananthapuram, the latter's jurisdiction had not been taken away by the issuance of an order under S.5 of the Extradition Act. He had jurisdiction over the fugitive criminal just like any other Magistrate in India.

If a fugitive criminal against whom no order under S.5 has been issued, appears before a Magistrate and applies for bail, what the Magistrate should do?

The learned Division Bench says that "a fugitive criminal cannot chose any magistrate as he pleases to get himself discharged on bail". It is respectfully submitted that this is true only in cases where orders under S.5 of the Extradition Act have been issued: The 'frog leap managed by the fugitive criminal from Bombay to Thiruvananthapuram also should not disqualify him from getting bail because what was denied at Bombay vas the anticipatory bail and not bail proper. According to the Learned Bench, the Additional Chief Judicial Magistrate, Thiruvananthapuram 'usurped the power envisaged in S.25 of the Act by wrongly dangling on S.9'.

Section 9 is unrelated to Sections 4 to 7. All Magistrates can apply this section especially when there is not an order under S.5. As per this section if a Magistrate gets information that there is a fugitive criminal within his local jurisdiction, he can issue a warrant for his arrest even without the authority of S.5 order. He need report the matter to the Central Government only after issuing the warrant. He can even retain that person for three months. He can retain him beyond three months if he gets within that period an order under S.5.

Section 25 of the Extradition Act, it may be pointed, comes under Chapter V named 'Miscellaneous' whereas S.5 comes under Chapter II dealing with extradition of criminals to countries other than Commonwealth countries with extradition arrangements. The judgment under comment makes it explicit that if the Magistrate had issued warrant and the fugitive was arrested and brought before him, he could grant the bail. In this case the fugitive has appeared on his own volition before the Magistrate and bail cannot be granted consequently. It is submitted, if the Thiruvananthapuram Magistrate was competent to issue warrant and get the criminal arrested (he was competent, it is made clear), he could grant bail also when the criminal appeared voluntarily before him and prayed for it. If an arrested criminal is entitled to get bail, there is no logic in denying it to other who voluntarily appears. If so, what the ACJM, Thiruvananthapuram did is correct and proper, it is submitted.

Viewed in another way also, the action of the ACJM, Thiruvananthapuram is sustainable. As per S.25 of the Extradition Act, a Magistrate before whom a fugitive criminal is brought shall have the powers and jurisdiction of a Sessions Court envisaged in the Criminal Procedure Code. Under S.439 of the Cr. P.C, a Sessions Court can direct an accused to be let on bail. So the ACJM, Thiruvananthapuram invested with the powers of a Session Court, could very well grant bail to Mr. Rajan Pillai.

Judicial Repentance or re-thinking?

(By. S. Parameswaran, Advocate Ernakulam)

(1) One is not dismayed, but dejected and disappointed, on reading the news item entitled "Judge deletes own remarks on V.V.I.P." in the Indian Express dated 24.9.95. Justice Jagadeesan of Madras High Court suo moto deleted certain paragraphs from his judgment concerning the mega-wedding of Sudhakaran, the foster son of the megalomaniac Madras Chief Minister Jayalalitha. He cannot claim to be poineer of suo moto review on the judicial front, for, way back in 1968, Chief Justice M. Hidayathullah of the Supreme Court suo moto reviewed a judgment passed by his Lordship in circumstances entirely different and justifiable.

(2) Justice Jagadeesan's belated attempt is to wriggle out of the opprobrium and onslaughts rightly directed towards him by the discerning common men and the enlightened public of this country. When the case came up on 4.9.1995 before the Bench, the Judge appeared independent and earnest in adjudicating the case, and gave certain directions to the Respondents and the Advocate General. But, in spite of persistent and persuasive efforts by the counsel for the petitioners, who were themselves Advocates of the Madras High Court, Justice Jagadeesan did not give an early posting, but posted the case for orders on the 7th September to be delivered after the wedding, thereby rendering infructuous and nugatory the writ petition itself.

(3) One is not surprised at such conduct of the higher judiciary in this country which has witnessed several instances of the higher echelons of the judiciary functioning as evolutionery extensions of the Establishment.

Self-seeking sychophancy has ceased to be the exclusive preserve of the politicians and the Bureaucracy in this country; it has found fertile soil in the higher echelons of the Indian Judiciary as well. Chief Justice Coke of England, who repudiated Government of men in favour of Government of law (Non sub sub homine sed sub deo et lege) and invited the wrath of the monarch of England must be turning in his grave.

(4) In the present, case it was the critical editorial in Tuglaq, a Tamil fortnightly, that has apparently spurred Justice Jagadeesan into deletion of his observation. After having done great damage through his judgment there was nothing for the Judge to lose by deleting the observations in question. The reasoning given by the learned judge for his review is astounding, and no less agonising. It is not a remorse-stricken retreat, but a belated attempt at escapism on account of a frontal attack from the Fourth Estate. Nor does the learned Judge appear to have been swayed by the observation of Justice Jackson of U.S. Supreme Court;"we are not final, because we are infallable, but we are infallible because we are final".

(5) Justice Jagadeesan's decision aroused the ire of the public and the press by inventing and extending a protection to the powers and prerogatives of the Chief Minister by eclipsing the egalitarian ethos informing Article 14 of the Constitution.

(6) Our constitutional set-up and development of Indian jurisprudence in the post Independence era provide opportunities to individual justices to influence the development of constitutional law and public policy significantly. In certain cases they can be specially influential because of the force of their intellect and the power of their personality or of their commendable persuasive capacity. Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, Dharubhai Desai, Y.V. Chandrachud and P.B. Gajendragadkar fall in this category. Their social vision and moral mission have given a totally new look and direction to the Apex Court and they translated Justice Vivian Bose's famous dictum that the Constitution is not meant only for the affluents and the influential, but also for the butcher, the baker and the candle stick makers" into an operative reality. They are the salt of the earth. But, unfortunately, we had and have a few Justices who a la Jagadeesan, J. express views and expound philosophies from the Bench making people suspect that they do with an eye on their personal future. The black robes of judicial office cannot eliminate the human attributes and motivation of the people appointed to sit on Bench.

(7) When dealing with subjects like judges who are relatively inaccessible and purposefully obscured behind a symbolic facade, one has to be cautious and must avoid speculation. But in order to ensure and promote the collective understanding of the judge's roles in the Indian legal and judicial system, one must necessarily have the freedom critically to observe and analyse their judicial conduct. Jurimetrics is a sine qua non for the healthy development of any judicial system and the preservation and promotion of the Rule of Law. And the public has to keep a vigilant watch to see that an institution expected to be the sentinel on the qui vive does not degenerate itself into a semantic forum for self-seeking sycophancy. A drop of vinegar will suffice to spoil and savour a whole cup of milk.

(8) In judicial discourse, atleast in the tradition of legal justice in the Anglo-American orbit, the will to power has to be constantly, in each decision, justified by an act of reasoned discourse. Judges have to give cogent reason for their decisions, which have to be publicly articulated and reported (unlike a Minister's order on files). Not merely is this articulation and publication of reasons thus structured, it has also to form part of a corpus of judicial reason itself. In other words, past decisions are a guide, and they sometimes bind, the future scope for decision. The obligation for public discourse is thus writ large on judicial power which, all said and one, is not like the executive and legislative power residing in the domain of sheer will. It also straddles the domain of reason, judicial power is the jurisdiction of reason in ways that neither legislative nor executive power is, in its very nature. (Upendra Baxi, "Judicial Discourse : Dialetics of the Face and the Mask" 35 J .I.L.I. (1993) page 1).

(9) In the imperfect legal setting and political atmosphere we have in this country, we expect our Judges to uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato's philosopher king, to be cautious sometimes and sometimes to be bold, to respect both the traditions of the past and the convenience of the present, to reconcile liberty and authority, the whole and its parts, the letter and the spirit. The great judge is an "activist", a legislature who uses the law's inevitable ambiguities to promote justice and, no, doubt, he carries the merciless burden of adjudication. Justice Jagadeesan cannot take shelter under the Holmesian "can’t helps" to justify his conduct. " A judge must manage to escape both horns of the dilemma", he must preserve his authority by cloaking himself in the majesty of an overshadowing past but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery". (Learned Hand, 'The Spirit of Liberty' 3rd Edition Dilliard, 1960, page 130).

(10) Tail-piece:

                             "I live with bread like you, feel want

                             Taste grief, need friends, subjected thus

                             How can you say to me I am a King".

                                                                                                  (Shakespeare's Richard II).

Section 103A vis-a-vis Section 157 (Motor Vehicles Act)

(By Prakash Ramanaihan. Advocate, Manjeri)

After a long innings the M V Act of 1939 was amended in 1989 and again 1994 and one of the far-reaching consequences was substitution of Section 103-A by corresponding Section 157 in the amended Act. As per the provisions of Section 103-A of the old Act a Policy issued to a person in respect of a vehicle lapsed on his transferring the said vehicle and also reserved to the Insurer the right to refuse cover under the Policy to the transfere. However as per Section 157 of the amended Act the right to refuse transfer of the Policy has been taken away from the Insurer and a "deemed" transfer of the Policy is contemplated in case of transfer of ownership of a vehicle. It should be noted that Section 157 stipulates transfer of ownership of the vehicle together with the policy of Insurance relating thereto and further stipulates vide Sub-Section (2) that the transferee shall apply within 14 days to the Insurer to effect necessary changes in the Policy to record the transfer. As per the ruling of the Hon'ble High Court of Kerala in 1989 (2) KLT 48 it was held that non compliance with Section 157(2) would render the transferee ineligible for indemnity under the Policy. Quoting 1982 KLT 700 with approval it was held that the transfer of a policy being in the nature of novation of an existing contract the consent of the Insurer to the transfer was essential and absence thereof will absolve the Insurer of liability to indemnify the transferee. Accordingly the Andhra Pradesh ruling AIR 1986 AP 62 was dissented from. Again vide the ruling reported in 1994 ACJ 1019 the Hon'ble High Court of Kerala held that non compliance of Section 157(2) absolved the Insurer of liability to indemnify the transferee. A similar point of view has been held by the High Court of Orissa in the ruling reported at AIR 1994 Orissa 177. Now in the ruling reported at KLT 1995 (1) 691 the Hon'ble High Court of Kerala has agreed with the principles traced out supra but cast a burden on the Insurer to plead and prove the fact that transfer was not applied for as contemplated in Section 157(2). In contrast to the above thread of thought the ruling of the National Commission for Redressal of Consumer Disputes at CPR 1993 (2) pg 101 would hold that since Section 157 falls under the Chapter IX "Insurance of Motor Vehicles against Third Party Risks " non compliance with sub-section (2) can avail the Insurer protection only in case of vehicle (own property) damage and is not an answer to third party claims thereby creating an anomalous situation. Again it would appear that in the event of an accident to a third party occurring within 14 days of transfer of a vehicle the Insurer would continue in the interregnum to be liable to indemnify the transferee. At the Tribunal level during trial more often than not the transferor / transferee remain ex parte leaving the Insurer as the only contesting respondent. The legislature has not drawn any distinction between own property damage and third party injury/ death in so far as Section 157 per se is concerned. It is also unfortunate that no penal or contractual consequences have been stipulated in case of non-compliance with Section 157(2). It deserves mention here that comprehensive Policies are often not assigned/transferred alongwith the vehicle since the current Policy holder may be entitled to No-claim bonus discounts an premium thereunder and would prefer to reinstate the Policy in respect of his new vehicle. The concept of "malus" whereby a Policy having a history of claims is loaded with extra premium was also introduced' by the Insurance Companies after the 1989 amendment. In the circumstances to avoid unnecessary confusion perhaps it would have been best to specify that Act Policies covering only third party liability would be deemed automatically transferred alongwith the vehicle thus protecting the interests of innocent third party victims of accidents.

The Brides in the Bath

(T.G. John, Advocate, Trichur)

QUEEN ELIZABETH I of England (Elizabeth Tudor) was considered surpassingly sanitary in her time because she took a bath once a month "whether she needed it or not". Despite the innovation of the order of the Bath, a Georgian Duke later pronounced that it was sweat that kept a man clean! And it may have been adherence to this hygenic principle which resulted in there being no bath fitted to Buckingham Palace when Queen Victoria came to the throne in 1837. Aided perhaps by the teenage influence of Florence Nightingale, who expressed the conviction that "with privacy and a quart of water any woman can be clean".

The bath, however, made a triumphant come-back during Queen Victoria's reign due perhaps to John Wesley's 'heretical' teaching that "Cleanliness is next to Godliness"; major improvement in the efficiency of plumbing, and the fact that the Industrial Revolution made life in. general much grubbier.

In addition to simple hot water, people have since submitted themselves to bath, in mud, peat, bran, malt, soup, offal, blood, dung and most other non-corresive emulsions! Historical awards for originality have gone to Poppea, Nero's wife, who tubbed herself in asses' milk, Mary Queen of Scots, who soaked her long body in white wine, Cora Pearl who disported before customers in champagne, and Mrs. Porter and her daughter who washed their feet in soda water. The late Aga Khan's bath water was probably the most valuable since hotel fable holds that special catchment arrangements had to be made when he was in residence so that it could be bottled and sold to the faithful as a universal panacea! Besides their normal ablutionary function, bathtubs have been used by Romans for committing Hara-kiri, for storing coal by apocryptal cockney-dwellers, and by Mr. George Joseph Smith for doing-in brides in.

That gives me the trigger for the story and trial of George Joseph Smith, the great "Marriage-Swindler" who is one of the most powerful argument against judicial savagery in criminal history. He was born in Bow in 1872 and when he was only nine years old, he was sentenced to eight years at a stretch in a reformatory! This undoubtedly had the effect of making him a ruthless enemy of society. Anyone who can visit a Borstal institution today can easily envisage how much more horrible they must have been in the good old days and that only elicits more sympathy for Mr. George Joseph Smith than for the Judge who condemned him and went on muttering in his sleep all through his lifetime " Fiat Justitia!.

In 1896 he was sentenced to a year in Jail for receiving stolen goods- the actual thief was a servant girl who stole under his direction. He was released in 1897 and a year later be married Caroline Thornhill in Leicester. In her two years of married life with him, she had also become a criminal and when finally she was arrested she gave Smith away and again he was condemned for two years for receiving stolen goods-the maximum sentence.

During the next six years, he perfected, his method of marriage swindler. It is not known how many women he 'married' and left (the women were different to come forward as witnesses) but the technique was always the same; once the woman was ' married' and had trusted her husband with her money he went out on some pretext-to buy a paper and vanished!

In 1908 he met and married a woman for whom he seems to have felt genuine affection. Edith Pegler answered his advertisement for a house-keeper and Smith married her at Bristol under his own name. Miss pegler had no suspicion about her husband's real trade. While travelling in Clifton (Bristol), Smith met one Bessi Munday, a woman of 31 and who possessed about 2500 pounds. Smith called himself Henry Williams; the courtship was swift and they were married at Bey mouth Registry Office. Miss Munday was Smith's second wife since his marriage to Edith Pegler. Through much persuasion they made wills in one another's favour and then Smith bought a Zinc Bath for 1 pound. On 13th July 1942, Miss Munday was found drowned in this bath in their house in the High Street, Heme Bay. Smith obtained her property and rejoined Edith Pegler at Margate. He explained his affluence by saying that he had had a profitable business trip to Canada.

Smith now bought seven houses in Bristol for 2180 pounds.

His next victim was a healthy professional Nurse named Alice Burnham whom he met at South Sea. She was the daughter of a Coal Merchant. Smith managed to get her cash 100 pounds and insured her life for 500 pounds. They were married and on 12th December 1913 she was drowned in her bath in a house in Regent's Road, Blackpool. Again a verdict of death by misadventure was returned and Smith made 600 pounds by her death.

Then followed another quiet year with Edith Pegler and then he repeated his old trick of 'marry and run' marrying Alice Reavil, a modestic servant and absconding with 100 pounds and her clothes and jewellery. In December 1914 he met his last victim Elizabeth Lofty, lady's companion and clergyman's daughter. Smith gave his name to her as Lloyed. They moved to Bismarck Road - Highgate and she made a will leaving all her property to Lloyed alias Smith. The day after they moved in, the landlady heard sounds of struggle in the bathroom and hands slapping the side of the bath. Miss Lofty was found drowned in her bath and the verdict as usual was 'misadventure'.

The death was reported in the papers and a relative of Miss Burnham saw it and was struck by the similarity in the two cases and the matter was reported to Scotland Yard. The Yard immediately followed up the trial and warned Smith's Solicitor in Shepherd's Bush not to pay over the insurance money for Miss Lofty's death. In January 1915, Smith was arrested on a charge of causing a false entry to be made on a marriage certificate. As evidence against him accumulated, the charge was altered to murder.

Smith's trial began on 22nd of June 1915 and lasted for nine days. It took place before Mr. Justice Scrutton at the Old Bailey, Sir Archibald Bodkin prosecuting and Sir Edward Marshall Hall defending. The Jury were out for twenty three minutes and returned a verdict of guilty. Smith proclaimed his innocence to the end but was executed on 13th August, 1915.

Typical of Smith's calculating callousness was an incident in connection with his purchase of the bath in which Miss Munday was drowned; the shop asked 2 pounds for it. but Smith beat them down by a half a crown!

A Comment on 1995 (2) KLT 386

(By P. Rajan, Advocate, Thalassery)

A Division Bench of our High Court recently held that offence under Section 138 of the Negotiable Instruments Act, 1881, cannot be compounded by invoking Section 482 Cr. P.C since the Act does not expressly permit composition and Section 320 (9) Cr. P.C. also prohibits; according to the learned Judges. The point to ponder is though the enactment in question is silent On this aspect, can't the High Court permit composition of the offences being under a special statute, considering the scope, ambit and purpose of it?

The newly inserted provisions in the Negotiable Instruments Act 1881, Sections 138 to 142 (Amendment Act 66/88) speak of the offence, mode of trial and punishment. It is pertinent to note that these provisions have been introduced to check the menace of issuing cheques indiscriminately by persons knowing about the consequences on presentment to the banks and afterwards, causing embarrassment to many, including bankers. Civil suits often and rarely complaints under Section 420 I.P.C. were the remedies of the aggrieved, till then. Since Act 66/88 has came into effect from 1.4.1989, effective remedy is extended to the drawee or holder in due course of a cheque even dishonoured by the drawer's bank to achieve desired legislative intent, General law regarding period of limitation, jurisdiction of trial court to award sentence etc. have been specially mentioned in the statute itself, by passing the general provisions contained in the Code of Criminal Procedure. It is expressly made clear that the provisions in the Act alone need be looked into, while trying a complaint under Section 138 of the Negotiable Instruments Act for several purposes. Time to launch a complaint is minimised to 45 days only, on issuance of the statutory notice contemplated under Section 138(b) of the Act and a First Class Magistrate is empowered under the Act to award fine amount exceeding Rs.5,000/-. These special features are strikingly different to Section 468 and Section 29 of the Code of Criminal Procedure. This has gained approval of our High Court (1993 (2) KLT 769), also.”

Considering these patent deviations from the general rules of law, it is reasonable to opine and prudent to think that the purport of the enactment is to give rapid remedy to the complainants' by avoiding the normal and cumbersome procedures under general law, which occasionally occur. If so, can composition be refused, even if the statue is silent? The learned Judges have refused permission mainly holding that Section 320(9) Cr. P.C. is an express bar for compounding other offences, if not detailed in Section 320(1) and (2) of the Code. In effect sub-section (9) speaks about the process of composition and the same could be done in the manner Section 320 Cr. P.C. permits. For example, persons who are competent to compound the offences under the Indian Penal Code are detailed in sub-sections (a) and (b) of Section 320(4) and only such persons can compound those offences. Section 320 does not say that if a special enactment does not favour compounding of offences under that statute, this provision under the Code cannot be pressed into service. In short, if circumstances warrant, courts can permit composition in the manner in which Section 320 prescribes, for procedural formalities. Even if Section 320 is in applicable, as held by our High Court, will it curtail the inherent powers of the Hon'ble High Court to allow settlement of complaints by invoking Section 482 Cr. P.C. Section 482 with its wide scope, permits the High Court to act in order to secure the ends of justice. Considering the purpose of the enactment, coupled with the relief and remedy that could be given to the concerned parties the High Court can permit compounding of complaints by resorting to Section 482 Cr. P.C, at least by over-looking Section 320 Cr. P.C. Otherwise, sometimes, the complainants also would be placed in a disadvantageous position; say for example, if a trial Court does not award, after the conclusion of the trial, the entire cheque amount as fine to the accused, and chose to tack on a short term of jail sentence as part of the sentence, complainant's grievance remain not redressed. Even though the accused is liable to pay the whole cheque amount, and the complainant could not appeal for enhancement of sentence, or his attempt before the appellate forum became futile, the desired result remain unachieved. If the accused in such circumstances if attempt to settle the complaint before the appellate forum in his appeal, by offering the entire cheque amount, probably to avoid the jail term, the present ruling put both the parties in peril. Relating to an offence under Section 138 of the Negotiable Instruments Act, dishonour of the cheque by the bank itself does not give cause of action to the drawer. This is an advantage given to an accused to make payment after dishonour of the cheque and on intimation from the payee. This seems to be avoid litigations at the first instance itself, without giving any time to settle the disputes out of Court. In grievous offences which are non-compoundable, the Apex Court has granted permission after considering certain reasons advanced by the parties, in appeals filed under Article 136 of the Constitution. (AIR 1988 S.C. 2111). If so, the High Court also can extend the relief of composition under Section 482 Cr. P.C. Since complaint under Section 138 of the Negotiable Instruments Act are on escallation. Genuine attempts for settlement by payment of the amount, though belated due to varying reasons, will remain unanswered otherwise. Thus a larger Bench's intervention is needed to resolve the issue, in order to express desired motto of the law makers.