Withholding of Increment with Cumulative Effect –

Whether a Major Penalty?

 

(K.A. Abdul Gafoor, Advocate, Ernakulam)

 

This question resumes importance since the decision of the Supreme Court in Kulwant Singh Gill v. State of Punjab (1991 Supp. (1) SCC 504 = 1990 (6) SLR 73). Even though a similar view was expressed by the High Courts of Mysore, Calcutta and Punjab earlier, the issue was set at rest for a while when a Division Bench of the Punjab and Haryana High Court in 1985 (2) SLR 76 found that stoppage of increments with cumulative effect is a minor penalty. Now, overruling this decision, the Supreme Court has, examining the very same provisions, held that the relevant rule "docs not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding enquiry and following the prescribed procedure".

 

In a Mysore case (1973 (1) SLR 241), three increments were withheld permanently "affecting the future increments". The court observed that "the result therefore will be that so far the petitioner is concerned the hand of the clock is put back for three years". Only the future increments were withheld; then it cannot be said that "the hand of the clock is put back". Even then the court did not come to a definite conclusion whether it is a major penalty. The court said that "if the effect of the order is the reduction of the petitioner to a lower stage in the time scale it necessarily means the imposition of a major penalty as specified in the Rules". Whether it really had such effect was not decided. The relevant rule enumerating various penalties mentioned "withholding of increment or promotion". Whether this penalty will take in withholding of increment with cumulative effect was not canvassed in that case. The Court "assuming that the penalty imposed upon the petitioner is a minor penalty" quashed the order on another ground. Detailed enquiry was conducted in this case. But no copy of the report was given to the delinquent though the punishment order was issued "accepting the report" and Government based its decision "solely on that". The order was thus found to be bad. It was not decided in that case whether withholding of increment with cumulative effect is a major penalty.

 

The provision regarding withholding of increments in the West Bengal Service (C.C. & A.) Rules 1971, is similar to that considered by the Supreme Court and the Mysore High Court. "Paragraph 8 of the West Bengal Rules lays down the penalty which may be imposed on a Government servant. Sub-rule (ii) of the said Rules provides 'withholding of increments or promotion'. Nowhere in R.8 is there such a penalty as withholding of increments with cumulative effect. That withholding of increments simpliciter and withholding of increment with cumulative effect have different meanings and implications would be apparent on the reference to R.16(1-A) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 which provide both for withholding of increment of pay... or withholding of increment of pay with cumulative effect for any period". Thus it was based on the literary interpretation of the Rules; the Calcutta High Court in 1981 (2) SLR 33 held that the authorities "by imposing the penalty of stoppage of five increments with cumulative effect on the petitioner acted beyond the powers" given by the Rules and directed "to proceed afresh in accordance with law from the stage reached prior to the passing of the impugned orders". In that case the punishment was imposed "after enquiry". So whether it was a major penalty could not be in issue. On the other hand the contention was that withholding of increments with cumulative effect was "not a punishment which is permissible under R.8 of West Bengal Service (Classification, Control and Appeal) Rules, 1971".

 

In 1983 (2) SLR 410 the Punjab and Haryana High Court considered the very same provision now examined by the Supreme Court. R.5(iv) of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 prescribed the minor penalty of "withholding of increments of pay". It did not mention anything about cumulative withholding and the provision was as in the case of the West Bengal Rules. Noting this difference, it appeared to the court that "the rule framers only wanted to provide imposition of minor penalties under sub-rule (iv) of withholding of increments without cumulative effect so that there is a temporary loss to the employee not having a permanent effect on his increments, whereas sub-rule (v) provides for making a permanent loss in the increments and that is why it was included in the category of major penalties". (emphasis supplied). The 1st part of this is in the same way as found in the Calcutta decision which the Punjab court referred to and agreed. But it did not stop there. The learned Judge further went to "conclude that withholding of increments with cumulative effect xxxx may fall under sub-rule (v) and therefore would not be a minor penalty". Sub-rule (v) comes under the heading Major Penalties and it reads as follows:-

 

"(v) reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay".

 

When this punishment is imposed, it is not loss of increment or withholding of increment that happens. The delinquent only gets a lesser pay than what he did receive when the delinquency commenced, with postponement of future increment if specifically ordered. In the case of withholding increment the delinquent continues to draw the same salary; but the future increments alone will be withheld. In such case there is no "reduction to a lower stage". At the same time there is no "permanent loss in the increments", as the court styled, while imposing the penalty of reduction to a lower stage. Therefore, it shall not be correct to say that withholding of increment with cumulative effect "may fall under sub-rule (v)". It may not be a penalty authorised by law as found by the Calcutta Court. But in the last para of the report, the Punjab Court held that "stoppage of increments with cumulative effect is a major punishment". Certainly this finding is not in tune with the conclusion extracted above. The conclusion was that it was not a minor penalty. But it cannot be said to be a major one also, as it is outside items (v) to (ix) mentioned under the heading "MAJOR PENALTIES" (see page 412 of the report). It can, at the best, only be one not permitted by law as held by the Calcutta Court.

 

In 1983 (2) SLR 684 another Judge of the Punjab Court considering a similar issue found that the ratio in 1983 (2) SLR 410 is that "such a punishment is a 'major' punishment and for inflicting the same, the procedure prescribed by R.8 of the said Rules has to be gone through".

 

Just after one and a half years, a Division Bench of the Punjab and HaryanaHigh Court in 1985 (2) SLR 78 considered the very same issue again. Mr. Justice I.S. Tiwana who followed 1983 (2) SLR 410 in 1983 (2) SLR 684 was in the Division Bench sitting along with Mr. Justice P.C. Jain Ag. C.J. Considering both these decisions, the Division Bench held that:

 

"Under clause (v) there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. This clause envisages reduction to a lower stage which in the case of withholding of increments with cumulative effect does not at all arise. In cases where the increments are withheld with or without cumulative effect, the Government employee is never reduced to a lower stage. In this view of the matter, we find that the stoppage of increments with cumulative effect is a minor penalty and would fall under clause (iv) and not under clause (v) which is part of major penalty".

 

They specifically overruled both the earlier decisions. Referring to R.47 of Volume I of the Punjab Civil Service Rules, the Division Bench found that withholding of increment will include withholding with cumulative effect as well. Thus the controversy for the moment, ended that it is a minor penalty.

 

Now the issue is again revived from Punjab itself in 1991 Supp. (1) SCC 504, wherein the Supreme Court held that "R.5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding enquiry" (emphasis supplied). R.5(iv) is under the heading 'MINOR PENALTIES' and it does not speak about enquiry. Enquiry comes only from R.5(v) "reduction so a lower stage" onwards. The Supreme Court did not agree with the views of the Division Bench of the Punjab and Haryana High Courts in 1985 (2) SLR 78 that "incase where increments arc withheld with or without cumulative effect the employee is never reduced to a lower stage of the time scale of pay", because the Supreme Court finds that "it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay" (emphasis supplied). My submission is on imposing such penalty only future increments are withheld and "increments earned" are not "cut off” nor "the clock is put back to a lower stage". Only the pace of "upward march" is slowed. If viewed this way, it can be seen that the employee is never reduced to a lower stage as to come within Rule 5(v) and that the decision of the Division Bench of the Punjab and Haryana High Court is correct to the point. At any stretch it cannot be said to be a major penalty.

 

With Reference to Kerala Rules

 

In the Punjab Rules considered by the Supreme Court, Rule5(ii) is "withholding of promotion" and Rule 5(iv) is "withholding of increments of pay". The latter does not say anything about cumulative effect. In the Kerala Civil Service (CC & A) Rules, 1960, R.11(1)(iii) takes in both "withholding of increments or promotion" and Note (1) there to specifically states that "withholding of increments may either be permanent or temporary". Permanent withholding of increment means withholding of increment with cumulative effect. So the Kerala Rules specifically mention cumulative withholding also in R.11(1)(iii) and that penalty is one among the minor penalties specified in R.16. So also R.31 Part I Kerala. Service Rules, which is the basic provision to effect withholding, provides that "the withholding authority shall state whether the postponement shall have the effect of postponing future increments". So 'Kulwant Singh Gill' may not have any application to a case arising out of Kerala Rules. The ratio in the Calcutta case referred supra also may not have any bearing, because in a Kerala case it cannot be said that "nowhere in rule is there such a penalty as withholding of increments with cumulative effect."

Regarding the Balance Court Fee Payable u/S.4Aa

When the Defendant Admits the Plaint Claim

 

(By V.K. Babu Prakash, Munsiff Magistrate, Thiruvananthapuram)

 

Act X of 1960 had a sweeping change by virtue of the amended Act VI of 1991. So many progressive and warm outlooks have been embedded in its periphery. The upward revision of court fee has been scaled down. Indeed a novel and qualitative amendment has been effected with respect to the payment of court fee at the institution of the suit.

 

The relevant new section so incorporated is S.4A of the amended Act. As per the new section the plaintiff has to pay 1/10th of the total court fee at the institution of the suit and an appellant to pay 1/3td of the court fee on his appeal memorandum.

 

The trend of the executive since independence was to consider court fee as a source of revenue which is quite against the concept of a welfare state. Administration of justice being a basic sovereign function of the State can never be considered as a source of income.

 

His Lordship Justice V.R. Krishna Iyer as early as in 1968 KLT page 610 (P.N. Sekhara Menon v. Ismail Sait Ummar Sait) had held in his exemplary style that "Broadly speaking, court fee is a fetter on the assertion of a right or the seeking of a remedy by a party, although a person who is unable to pay court fee may thereby be deprived of the equal protection of the laws notwithstanding the considerate treatment extended under O.XXXIII of the Code of Civil Procedure to Paupers".

 

Now, the main attention is earmarked through this article confining to the unsettled position, whether balance court fee need be paid as provided u/S.4A, with respect to a plaint claim which has been admitted by a defendant in his written statement. Many courts in Kerala are either requiring or not requiring to pay the balance court fee in such context. So a divergent view on the aspect is rampaging in the judicial mind. The Hon'ble High Court has not settled the position by any direct verdict on the point.

 

Section 4A operates as follows:-"Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaints at the time of institution of suit shall be 1/10th of the amount of fee chargeable under this Act and the balance shall be paid within such period, not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding 15 days as may be specified by the court." The first proviso to the section says that time can be extended upto 30 days. Second proviso states that if the parties settle the dispute within the period specified or extended by the court for the payment of the balance amount, they shall not be called upon to pay such balance.

 

Relying on the scope of the second proviso an argument was canvassed before the High Court that the benefit accrues to ex parte decrees also. However His Lordship Justice K.T. Thomas repelled the contention 1991 (2) KLT page 925 (Arimboor Panchayat Improvement Trust v. Antoney) and held as follows:-

 

"Order IX Rule 6 enables the court to make an order that the suit be heard ex parte if the defendant does not appear when the suit is called on for hearing after summons was duly served. Merely because the defendant was absent it is obligatory on the court to pass a judgment in terms of the plaint. True, O.VIIIR.10 enables the court to pronounce judgment against a defendant who fails to present written statement. But the same rule enables the court to make such order in relation to the suit as it thinks fit. This shows that the judgment need not invariably be in terms of the plaint merely because the defendant was absent or the defendant is failed to present a written statement."

 

Hence a judgment pronounced ex parte cannot be equated with a judgment pronounced on admission by a defendant or on compromise or settlement between the parties. So court fee has to be paid by the plaintiff.

 

Another decision of the High Court also makes out certain prepositions regarding the question of admission of defendant. In 1987 (1) KLT 525 His Lordship Radhakrishna Menon held that "If the suit is disposed solely on the admission of the parties and without any investigation as such the party who paid the court fee on the plaint is entitled to refund one half of the court fee".

 

The above decision is with respect to the refund of court fees paid under S.69 of the Act. Hence the ratio laid under it cannot be taken into account to see whether court fee has to be paid on admission of the defendant.

 

It is a well recognised rule of law that if a defendant does not appear and answer the plaint claim as provided under O.VR.1, the presumption is that he admits the plaint claim. So an ex parte decree is the sine qua non. This is envisaged under Clause 6 of R.1 of O.XIV also.

 

Hence the legal effect and implication is that if the defendant does not appear and answer the plaint claim he constructively admits the plaint claim. In such context the court suppose passes an ex parte decree invariably the plaintiff has to pay the balance court fee. What difference does it make if defendant appears and admits the plaint claim? In such context also does not the defendant pay the balance court fee?

 

My view is that in the case of admission of the defendant also the court shall insist for the balance payment as in the case of an ex parte decree. The reasons are as follows:-

 

(a) Section 4A makes out that balance court fee has to be paid not later than 15 days from the date of issues or where framing of issues is not necessary. This is self explanatory. Even in cases where framing of issues is not necessary the legislature insists for the balance payment. In an ex parte decree, there are no issues in controversy. In plaint on admission also there are no issues in controversy. The only exceptional circumstances under which court fee need not be paid is contained in the second proviso. It is when parties settle the dispute within such period.

 

The wording is very clear. To have the benefit thereunder parties must settle the claim. One party cannot unilaterally settle the claim. An admission is a unilateral action. The Legislature does not recognize such context.

 

(b) To settle according to Osborn's (A Concise Law Dictionary by P.G. Osborn) dictionary means – “To create settlement. To arrive at a compromise mutually". Hence no assistance is required from the court. No adjudication is necessary in such case.

 

(c) On admission even, an adjudication is necessary. It is elementary principle that the plaintiff shall prove his case. In 1973 KLT 849 (Chari Vijayan v. Achuthan Vasu) it has been held that "courts owe a duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest or appearance".

 

(d) The above principle makes that the court should apply its judicial mind in cases where a defendant admits the claim. Hence an adjudication is called for.

 

(e) In the case of settlement O.23 R.3 mandates that the terms of the compromise shall be recorded and pass a decree. Though it is a decree, in the strict sense it is not an adjudicated decree as provided under S.2(2) of C.P.C.

 

(f) The characteristics of a decree are that it is appealable and is an adjudication of the court. Whereas from the periphery of S.96 C.P.C. a compromise decree is excluded from appeal.

 

(g) Though terms of compromise are recorded by the court, it is not an adjudication. The court only authenticates whether the compromise terms are legal or not.

 

(h) A compromise decree does not operate as res judicata but only operates as estoppel - AIR 1956 SC 346, AIR 1954 SC 352, whereas an adjudicated decree operates as res judicata.

 

(i) In compromise decree the court acts only as a supervisor or arbitrator - AIR 1961 AP. 71.

 

(j) Such decree has no greater value than a contract AIR 1969 All. 296 & AIR 1960 Cal. 597.

 

(k) It is only a formal expression of the agreement of the parties -AIR 1922 Lah. 309.

 

(l) Decree on admission operates as res judicata. S.11 explanation III CPC.

 

Hence for the foregoing reasons I am of the view that if in the case of an ex parte decree, (which constructively means that the defendant impliedly admits the plaint claim) balance court fee has to be paid. It makes no difference that such rule shall also be made applicable if at all a defendant admits the plaint claim. In both these situations the court passes a decree after adjudication since the decree is an outcome of the intervention of the court. So court fee has to be paid on a plaint claim which is admitted by the defendant in his written statement.

Is Our Constitution a Non-Fundamental Document?

 

(N. Haridas, District Judge, Alappuzha)

 

What immediately distinguishes our Constitution is its unusual length, running into nearly three hundred closely printed pages containing 395 articles, too many schedules and innumerable amendments. We do claim to adopt and borrow the practices of British Parliamentary government, but the British have no Constitution in writing. The British Parliament is working as the perpetual Constituent Assembly or Convention. Among the written Constitutions, as the fundamental law supporting a mighty republic, the Constitution of the United States stands most distinguished, but this classical document is only in seventeen printed pages. In comparison, the Constitution of Ireland is 30pageslong, Australia21 pages, the Basic Law of Germany 48 pages, and that of Japan 11 pages. The ideal constitution of Switzerland is in 25 pages and that of the latest French Republic 15 pages. After India, the longest document is the Constitution of Austria - in 60 pages. The Constitution of Israel is the shortest - only 6 pages, and the Constitution of Greece - the birth place of democracy - is in 22 pages. India's Constituent Assembly debated the making of a Constitution for four long years, and satisfying all precautions for administrative detail and doubt-clearance, the complex instrument was adopted. But that this volume deprives the document of its claim as fundamental law, has missed the draftman's quill. In the jungle of articles and schedules, the fundamental incidents are seen indistinguishably lost, and now there is more ordinary law than fundamental law in the text. This unequal coexistence between the fundamental and the ordinary .remains an abominable problem in making judicial commentary also, leading to consequences in bad law.

 

2. No prophetic insight needed to say that a Constitution shall lay down only the fundamental guidelines of a state. Ordinary law, which is non-fundamental and municipal, must find its place in the code of ordinary laws, and not in the constitutional text. The judicial power of the Union must be the inevitable part of sovereign power. How the framers define judicial power in the American Constitution, presents a good case-study on the nature of basic laws. That document defines that "the judicial power of the Union shall vest in a Supreme Court, and also in such other courts which the Congress may ordain and establish", and leaves the details of judicial organisation for the legislature (Congress) to formulate and establish. Similarly that basic law prescribes the method of election to the offices of the President, the Vice-President, the members of the House of Representatives and the Senate; how an impeachment motion is to initiate and proceed, and on what reasons etc., but gives no other directives on further congressional procedure on these questions. The Constitution leaves those future details to develop along democracy's firstprinciples. This incompatible, or rather enforced co-existence of the fundamental and the ordinary in our supreme document, creates a lot of misdirection on the content and meaning of our basic law. The draftmen's motive in incorporating such trifling administrative details also into the Constitutional text, had been prima facie a laudable one - to secure clarity within easy reach; - but then what results is that the Constitution itself is looking like a commentary, on an otherwise ought to be fundamental law. It must cause concern that the non-fundamental details, get undeservedly elevated to the status of fundamental law and in the resulting confusion. It is the fundamental law which suffers a set-back. The anomalous equation of the non-fundamental and procedural with the fundamental, in the constitutional text, remains a dangerous factor plaguing the basic concept in judicial review also. The framers of the American Constitution even avoid to mention therein the structure and functions of an electoral college, deciding on the election of the American President, and leaves it as the future business of the Congress. So is the case of judicial power, which in fact had been really fundamental to have more detail. A study in retrospect will convince the constitutionalist that our framers have ignored the historic rule that the Constitution shall contain only the fundamentals.

 

3.  This criticism that the Constitution shall exclusively be a body of basic laws alone, and therefore the inflation of this text into big volume by including the mass of governing details, will distort the meaning of fundamental law, does not appear stressed in the debates in the Constituent Assembly. All opinions were inexorably moving towards the aim that the working of the Constitution shall not be hindered by any doubting and gaping impasses - and so they thought that the more explanatory it is, the better. So the Constitution descends down to enumerate even bureaucratic offices like Attorney General, Auditor General, Public Service Commissions etc., which details are eligible to be the subject matter of a statute in administration law. Also there is a large body of articles describing legislative procedure governing the transaction of business in the Houses of Parliament and Assemblies, the distribution of finances, re-organisation of state-territory, the powers and departments under the Union and the States etc. Then there are chapters dealing with trade, commerce and contracts. The Election Commission and its powers, the conduct of elections etc. can very well be part of the Representation of People Act. We must remember that when we speak of the British Constitution, we do not think of the British Police Act, The Mental Health Act, The Poor Law or the Fire Services Act; but we think of the Magna Carta, the Bill of Rights, The Habeas Corpus Act, The Petition of Rights, The Act of Settlement etc. As fundamental Law, a written Constitution need lay down the composition and power of the legislature, the executive, and the judiciary of the Union and States, define the Bill of Rights, set out Constitutional remedies, confirm the primacy of basic principles, provide for amendment to the Constitution etc. The hundreds of other questions in running the state-machine can be left to be enacted and codified under ordinary laws, and matters like emergencies can be left to be handled by the executive. But what we see is that what is usually called municipal law, is underservedly placed on a par with fundamental law, and this placement is confusing to the sense of constitutional primacy. The preamble or articles make no distinction that one article declaring a fundamental right belongs to a superior category, and another article declaring the powers and privileges of an ordinary office as part of an inferior law. But for the classifications attempted judicially and with hesitancy all articles in the Constitution stand independently equal.

 

4. A peoples' inalienable and natural rights are not born from the matrix of the Constitution, and it is on this point that our judicial interpretism suffered seriously. Suppose a Constitution is overthrown; do the people forfeit their natural rights by such overthrow? In this search, the history of the Philadelphia Convention on the Bill of Rights provides an intersting anecdote. The inclusion of Bill of Rights (now superbly fundamental) in the American Constitution had been opposed by the majority in the Convention, who argued that it is ridiculous to remind the citizen of his fundamental right to awake in the morning, breakfasting at 8 a.m., eat his lunch at mid-day, dinner at 8 p.m. and then his irresistible right and inclination to go to bed at 10 PM. Any how, not having a Bill of Rights in writing had been viewed as an act of neglect of the civilized rights of man, and only the relentless pressure of the proponents could persuade a reluctant Madison to incorporate a Bill of Rights, by an immediate amendment. This discretion and over caution of the framers to demarcate only the fundamental frame-work alone in the text, speaks of their rigorous selection of fundamentals for inclusion in the constitutional text.

 

5. The Constitution of a republic cannot be a ready-reckoner for every unfolding politican situation. Madison says "There must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae". Emphasising the inevitability of implied powers, Marshall says that "a Constitution to contain an accurate detail of all the sub-divisions, of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves". During arguments in the Kesavananda Bharathi case, a heavy mass of juristic logic had to be dragged into and traded in the court-room in order to identify the rare fundamentals from the jungle of prolix Constitutional text, overloaded with municipal details, and thus the basic structure theory was developed for judicial view. Even the Counsel and the Court seemed reaching a blind-alley injudicial reasoning for a while, and to accept these rights dearest to freeman, there ultimately was the majority of only one vote. A rediscovery of human rights became an onerous job once again, and the contenders were seeking and reading every letter in every article again and again, and the identification of fundamental law from the complex text became a very difficult job for the court to undertake. The reason is that the large body of ordinary law in the text almost swallows up the fundamentals, making the fundamentals as such dwarfed as the ordinary.

 

6. Man's natural and inalienable rights are not born out of a written Constitution. A Constitution shall define only the frame work of the state and its powers, the relation of the state with the citizen and his rights etc, which are necessary to define the basic rules of bond between man and state, and nothing more. But in the Kesavananda Bharathi case, the court decision appears anchored on the principle that the source of all human rights is the Constitution itself. Instead of emphasising the rights of man so precariously defined in the case, the subsequent Habeas Corpus Case placed dangerous restrictions also on the rights of the citizen narrowly upheld in the Kesavananda Bharathi case.

 

7. The purpose of this write-up is not to attempt an exhaustic marking out of the outline of what ought to be the fundamental facts making our basic law. But easily we know that the large body of materials included in the Constitution could have been kept out of the text, and made the subject matter of different statutes in ordinary law. The great democracies say that a Constitution, as fundamental law, need not run for more than fifteen to twenty pages. The election rules can be the subject matter of the law on elections, the service rules can be part of service law, The legislative procedure another ordinary law, and so it goes on. On gaining freedom, India was suddenly changing into a republic, and in that speedy transition, the framers might have thought it wiser to adopt a voluminous document literally planning for every minor political eventuality. But the transition of the American colony into a democracy was speedier and more abrupt and their precedents more vague, but their basic document could be as brief as 17 pages. By arrangement and synthesis, when there is equal importance for every article, the court is forced into the controversy of seeking out the 'original intent' of the framers in constitutional non-interpretism. Then, is it not abhorrent to our constitutionalism to see an article on the salary claims of an official becoming entitled to an equal treatment with the inviolability of an article in the Bill of Rights?

 

8. A Constitution, codifying fundamental law, necessarily granted implied powers. The power of a government to legitimately punish the violator of its laws is historic, but this is not a power enumerated in any article in any Constitution. The high power of judicial review also is not raising its head through any single article in the Constitution; but without granting primacy to this power of courts, the rights of man will remain merely fiction. Though unexpressed literally, this implied power is seen more and more emphatically read into the Constitution in course of time by our courts. Regarding an emergency like war, mutiny or calamity, the court and the legislature are bad managers. But the court must be there to balance the situation and check any abuse. But unlike the other leading Constitutions, our Constitution empowers the declaration of emergencies, the suspension of fundamental rights etc. An emergency is a question which shall be confronted by the executive when the factual situation of war, rebellion etc. exists. But the inclusion of an article explaining the reasons justifying an emergency and authorising its use, makes its imposition not only legal, but constitutional also. Sometimes in anticipation of reconstructing a factual situation later on. In the Constitution of Japan, Ireland, U.S.A. etc, there is no article authorising the declaration of emergency or the suspension of citizens's liberty, but when a situation of war, mutiny, or calamity exists, an emergency has to be clamped, out of necessity. There this extraordinary step is empowered not by an article in the Constitution but by the need of an extraordinary circumstance. A Constitution cannot direct how a war is to be waged and won, and similar the case of managing an emergency.

 

9. In our Constitution, perhaps the sole guideline to the basic principles of governance is the preamble. Even the 'Fundamental Rights' fail to retain its special primacy as a Bill of Rights, as it is given only an equal place with the other chapters and articles enacted in ordinary law. Or the framers could have divided the Constitution into fundamental and non-fundamental parts, in order to protect the primacy of fundamental law.

 

10. The partisans of detail may say that the Indian Constitution is the best working basic law among post-war Constitutions, and this uniqueness is solely due to its voluminous detail. A Constitution sustains and survives only on the commitment of its people to the ideals, and more so on the quality of its leadership, and rearely because of the wisely crafted idioms and phrases superbly interspersed in its clause. A Constitution, in reality, presents the face-look of the nation. All modern Constitutions, without exception, accept all the important basic principles in free government, and differ only in detail, but how long they could live with the ideals and fundamental law, depends on their democratic discipline and loyalty to the system. A fundamental law cannot descend down to explain every minor detail in bureaucratic logic.

 

11. This wrong co-existence between the ordinary and the fundamental, is the main reason enabling to challenge the basic rights also enumerated in the Constitution. A Constitution shall represent only the supreme law of the land. For decongesting the overcrowded document, the ordinary laws, now taking up the lion's share of the constitutional space, has to be amended out, and such rejected parts are to be re-enacted into different ordinary statutes, according to the subject and department it represents. Here I will specify that such severance need not present any problem in law, as the amending process will not touch on the basic structure schemed in the document. The emergency provisions also can be scrapped, and the executive can be authorised to deal with a factual emergency, and any excess checked by courts in judicial review. This incongruous combination is the reason causing a lot of confusion in judicial review, and thereby causing serious damage to the rights of the citizen on many occasions.

Compensation to the Victims of Crime :

Indian Law and U.N. Resolutions

 

(By Justice B.N. Patnaik, Judge, High Court of Kerala)

 

Victimology, as a separate discipline deals with the study of the problems of victims of crimes and their right to claim compensation which, includes rehabilitation and restitution, from the offender or the authorities of the State. The traditional concept of criminal justice administration which connotes, legislation of penal law, enforcement of the law and detection of crime, trial of offenders and execution of sentence passed by a court of law does not comprehend the duty of the State to alleviate the suffering of the innocent victims and/or their families for the loss of life, liberty, property and reputation and for bodily or mental injury in consequence of a crime.

 

In a large number of cases, untold misery to the victims and their family members ensures in the event of murder of a sole earning member of the family and destruction of dwelling house and property by arson and loot, permanent disability resulting from injury, social stigma and personal trauma on account of sexual assault, loss of property due to the offences of cheating, robbery, decoity and theft. In many cases, the victims are left in the lurch.

 

The expenditure incurred for investigation and trial of a sessions case is approximately Rs.16,000/- and for maintaining a prisoner convicted of an offence is about Rs.3,550/- per annum. It is calculated in the following manner:

 

On an average, the duration of pendency of a sessions case, from the initial stage of investigation till the culmination of trial, is one year. But in effect, the total time devoted to the investigation and trial is 360 hours (15 days). Salary and allowance of investigating staff, consisting of two gazetted officers and three non gazetted officials and the expert, salary and allowances of the Magistrate, Judge, two Clerks, one Stenographer, two peons and one Process Server come to vRs.10,800/-, at the rate of Rs.30 per hour. Witness expenses amount to Rs.500/-. Fees of the Prosecutor and his staff come to Rs.3,600/-. Miscellaneous expenses like transport of accused/convict, stationery and establishment are Rs.1,000/- (Total Rs.15,900/- rounded toRs.16,000/-).

 

Expenses of diet, clothing, other amenities like medical aid, personal hygiene and occasional entertainment of a prisoner in a year amount to Rs.3,650/-, at the rate of Rs.10/- per day. Maintenance cost of Jail building and its premises, including water supply, lighting charges, security and sanitation; pay and allowance of Jail and Welfare Authorities, stationery and office expenses, all taken together per annum for one prisoner can be assessed at Rs.500/-. The income derived from the labour of a prisoner is Rs.600/- per annum. (Total - Rs.4150/- less Rs.600/-   = Rs.3,550/-).

 

It is seen that about 5% of the State revenue is spent for criminal justice administration.

 

It is imperative for the State to incur expenditure to manage the various departments of law enforcing agencies in order to maintain peace and tranquility in the society, and to prevent the unlawful activities of anti-social elements. At the same time, the duty of a welfare State to devise ways and means to bring solace to the hapless victim by way of payment of compensation on humanitarian grounds is no less important. It will give some consolation to the distressed victim.

 

The necessity of paying compensation to the victims of crime has also engaged the attention of the United Nations. The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders, came out with a declarataion of basic principles of Justice of Victims of Crime and Abuse of Power, which was later adopted by the U.N. General Assembly. In the declaration, the U.N. defined the "Victims of Crime" as follows:

 

"1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.

 

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

 

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability."

 

The U.N. Social Council's draft "Guidelines for Measures on behalf of Victims of Crime and Abuses of Power" laid down the types of harm, injury, loss or damage caused by wrongful conduct. It is as follows:

 

"The loss of life or of support, impairment of health, including physical or psychological injury, pain and suffering both physical and mental, loss of liberty, loss of income or livelihood, loss of property or damage to it which is not subject to restitution and deprivation of the use of property. Due account must also be taken of the special damages or expenses and costs reasonably incurred by the victim or where appropriate, by the victim’s family, dependants or heirs, which resulted from victimisation, including medical costs, transportation costs, funeral and burial costs, legal costs, treatment and rehabilitation costs, and similar and related costs and expenses".

 

The victims in general may be broadly classified into twelve categories. They are:-

 

1. Victims of war.

 

2. Victims of accidents that occur

 

(a) on Road, (b) on Railways (c) on the Aircraft, (c.) on Sea and (e) in the workplace.

 

3. Victims of abuse of power by lawful authority :-

(a) Custodial death,

(b) Death due to firing,

(c) Groundless arrest and detention;

(d) Unnecessary harassment

 

4. Victims of rape.

 

5. Victims of criminal conspiracy, offences of giving or fabricating false evidence, fabricating false documents or forgery of records, valuable documents, certificates or causing disappearance of evidence by way of destruction or concealment of the documents, fraudulent acts with the intention of causing bodily or mental harm to a person, murder, miscarriage, hurt, wrongful restraint and wrongful confinement, assault, use of criminal force, kidnapping, abduction, forced labour, unnatural offence, theft, extortion, robbery and dacoity, cheating, mischief, arson, criminal trespass, adultery, bigamy, fraudulent marriage, dowry torture and death, defamation, criminal intimidation, insult and annoyance.

 

6. Victims of offences relating to manufacture and sale of adulterated, substandard and prohibited drugs, liquor and food.

 

7. Victims of offences of smuggling, blackmarketing, unfair trade practice and evasion of tax.

 

8. Victims of offences committed by public servants, such as negligence and inefficiency in discharging their duties, corruption, bribery and misappropriation of public funds.

 

9. Victims of environmental pollution and wanton destruction of flora and fauna, and public nuisance.

 

10. Victims of offences committed in the election.

 

11. Victims who are also offenders as perpetrators of crimes such as drunkenness, consumption of narcotic drugs, gambling, attempt to commit suicide and prostitution, which are otherwise known as victimless crimes.

 

12. Victims who create a compelling situation in which the offender reacts violently by committing a criminal act. Sometimes the victim provokes the offender to commit the crime. Victims of affray, free fight and rioting may also be included in this category.

 

The necessity of compensating the victims of war was declared in the draft guidelines for Measures on behalf of Victims of Crime and Abuse of Power by the United Nations Economic and Social Council. The treaties following both the First and Second World Wars obliged the defeated powers to pay full compensation with respect to war crimes and crimes against humanity committed by their armed forces on the territories of the Allied and Associated powers.

 

The Personal Injuries (Emergency Provisions) Act, 1962, and the Personal Injuries (Compensation Insurance) Act, 1963 envisage that the Central Government has the power to make schemes for the grant of relief in respect of personal injuries sustained during the periods of emergency that were declared on 26.10.1962 and 3.12.1971. Payment by way of allowance, shall be payable only where the injury or disease causes serious and prolonged or permanent disablement of death as a result of war.

 

Victims of accidents are those who sustain bodily injuries causing either permanent or temporary disability and the legal representatives of deceased who dies, as a result of it. It may arise out of the use of a motor vehicle, Railway train, Aircraft, a Ship or while operating a machine in a factory.

 

Sections 140, 161 and 166 of the Motor Vehicles Act 1988 entitle a victim of motor accident to prefer a claim for compensation before a duly constituted Motor Accidents Claims Tribunal. Provision has also been made empowering the Government to establish and administer a solatium fund out of which compensation can be paid in cases of death or grievous injury resulting in hit and run cases where the persons guilty of causing the accident remain untraced.

 

S.124 and the rules framed under S.129 of the Indian Railways Act 1989 provide for payment of compensation to the Railway accident victims.

 

Under S.5 of the Carriage By Air Act, 1972, persons who are carried by aircraft are entitled to claim compensation in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took pi ace on board aircraft or in the course of any of the operations of embarking or disembarking. Under Regulation No.5 of the Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations, 1980, the Indian Airlines Corporation is liable for damage sustained in such event. Under S.346 of the Merchant Shipping Act, 1958 the owners of the ship shall be liable to pay compensation whenever loss of life or personal injuries are suffered by any person on board a ship owing to the fault of that ship and of any other ship. Under Sections 3 and 10A of the Workmen's Compensation Act, 1923, a workman is entitled to claim compensation in the event of death or bodily injury caused to a workman in the course of his employment or while discharging his duties as a workman.

 

The Government of India enacted Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to settle the claim of compensation for those who suffered due to leakage of lethal gas from the Union Carbide Corporation at Bhopal. On the night of December 2, 1984 there was massive escape of lethal gas from the MIC storage tank at Bhopal plant of the Union Carbide (I) Ltd. (UCIL) as a result of which 4000 human lives were lost and tens of thousands of citizens of Bhopal were physically affected. Action was brought up by the Union of India as parens patriae before the District Court, Bhopal pursuant to the statutory enablement in that behalf claiming 3.3 billion dollars as compensation against the company. When an interlocutory matter pertaining to the interim compensation came up for hearing there was a court assisting settlement between the Union of India and the Union Carbide Corporation (UCC - owning 50.99 per cent shareholdings of UCIL). Under this settlement a sum of US Dollars 470 million was agreed to be paid by the UCC to the Union of India in full settlement of all the claims of all victims of the gas leak against the UCC.

 

In a number of cases, the Supreme Court has laid down sound guidelines with regard to assessment of just compensation to be paid to the victims of accidents. Though in some hard cases, either no compensation was paid or inadequate compensation was paid, yet it is generally found that the courts and tribunals have been liberally granting compensation to such victims in accordance with the observations made by the Supreme Court.

 

Thus, the victims of war and accidents have the right to claim compensation under the statute. But there is no such right of other victims, though compensation has been awarded in a few cases, at the discretion of the court.

 

In Kasturi Lai v. State of U.P. (AIR 1965 SC 1039), it was held that the State is immune from liability to pay damage to an injured, if a tortious acts committed by public servants in course of employment and in exercise of statutory functions delegated to them by the Government. It is observed that there is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not refer able to the delegation of any sovereign powers. If the tortious act is committed in discharge of statutory functions based on the delegation of sovereign powers of the State, then the action for damages will not lie.

 

But, later the Supreme Court in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960) held that the concept of sovereign immunity is not applicable to the cases of violation of fundamental rights. It is observed as follows:

 

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the constitution is an acknowledged remedy for enforcement and protection of such rights, and such claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts.32 and 226 of the Constitution.

 

In Sebastian M. Hongrayv. Union of India.(AIR 1984 SC 1026), two persons were taken to the Phungrei camp by the jawans of 21st Sikh Regiment on March 10,1982. In a writ of habeas corpus, the Court directed the concerned authorities to produce those two persons, who were reported to be missing since then. The Government finally failed to do so. This was considered to be a case of death of persons while in custody of the lawful authority. The Supreme Court, in the circumstances, keeping in view the torture, the agony and the mental oppression through which the wives of the persons directed to be produced had to pass, instead of imposing a fine, directed that as a measure of exemplary costs a° is permissible in such cases, the respondents shall pay Rs.1 lakh to each of the aforementioned two women.

 

In Nilabati's case, a person was taken to custody by a police officer on 1.12.1987 at 8 A.M. for interrogation in connection with a crime and he was found dead the next day on the railway track near the Police Outpost without being released from custody. His death was unnatural, caused by multiple injuries sustained by him. In the absence of a plausible explanation by the police authorities and the State, consistent with their innocence, it was held that the obvious inference is that the fatal injuries were inflicted to him in police custody resulting in his death, for which the respondents are responsible and liable. The court accordingly, directed the State to pay a sum of Rs.1,50,000/- to the mother of the deceased and a further sum of Rs.10,000/- as costs within three months, by holding that it is a clear case for award of compensation to the petitioner for the custodial death of her son.

 

The Supreme Court, in State of M.P. v. Shyamsunder Trivedi (AIR 1995 SCC (Crl) 715), found that the victim died in police custody as a result of extensive beating given to him. The Sub Inspector of Police was sentenced to pay a fine of Rs.50,000/ - and other accused sentenced to pay Rs.20,000/- each and the entire amount of fine on realisation was directed to be paid to the heirs of the deceased. It was observed that torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.

 

On 19th April, 1986, the Police personnel surrounded a gathering of 600 to 700 poor peasants and landless people mostly belonging to the backward classes, while holding a peaceful meeting within the compound of Gandhi Library in Arwal. Without any previous warning or any provocation on the part of the people who had so collected, the police opened fire as a result of which several people were injured and at last 21 persons including children died. The Court on a consideration of the facts and circumstances of the case, directed the State Government to pay a sum of Rs.20,000/- to the dependants of the deceased and Rs.5,000/- to every injured person. (See: Peoples' Union for Democratic Rights v. State of Bihar - AIR 1987 SC 355).

 

In Rudul Sah v. State of Bihar ((1983) 4 SCC 141), the Supreme Court found that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal. It is said that Art.21 will be denuded of its significant content if the power of the Supreme Court were limited to passing orders of release from illegal detention. The only effective method open to the judiciary to prevent violation of that right and secure due compliance with the mandate of Art.21 is to mulct its violators in the payment of monetary compensation. The right to compensation is thus, some palliative for the unlawful acts of instrumentalities of the State which act in the name of public interest and which present for their protection the power of the State as a shield. Therefore, the State must repair the damage done by the officers to the petitioner's rights. The State was therefore, directed to pay a sum of Rs.30,000/- to the petitioner in addition to the sum of Rs.5,000/- already paid by it.

 

In Bhim Singh v. State of J & K (AIR 1986 SC 494), a member of the Legislative Assembly was arrested while en route to seat of Assembly and in consequence, the member was deprived of his constitutional rights to attend the Assembly Session and responsibility for arrest lay with higher echelons of the Government. The person was not produced before the Magistrate within the requisite period. Arrest was made with mischievous and malicious intent. There was, therefore, gross violation of his rights under Arts.21 and 22(2) of the constitution. It was held that it is a fit case for compensating the victim by awarding a compensation of Rs.50,000/-.

 

In Saheli v. Commissioner of Police, Delhi (AIR 1990 SC 513), a boy about 9 years old was beaten by the police in course of some investigation into a crime. He died as a result of the assault by a police officer. It was held that the State is liable to pay compensation, if death of a person occurs due to police atrocities. The State Government was directed to pay Rs.75,000/- as compensation to the mother of the victim.

 

In Inder Singh v. State of Punjab (1995 SCC (Crl.) 586), seven persons were abducted and eliminated by police authorities by misusing official machinery to wreak private vengeance. State as a token of its failure to enforce law and order to protect its citizens, was directed to pay Rs.1.50 lakhs to the legal representatives of each of the seven victims.

 

In Central Co-operative Consumers' Store Ltd. v. Labour Court ((1993) 3 SCC 214), it was found that apart from insult, humiliation and harassment thrust on a sales girl of a Co-operative Store, the manager removed her from service without giving a notice to her. Her removal from service was held to be illegal by all the courts. She had to light the litigation for a period of nearly 20 years. As a result, the Co-operative Society had to pay about Rs.three Lakhs to her for the thoughtless acts of its officers. The Supreme Court while asking the society to pay the amount directed to replenish itself and recover the amount from the personal salary of the officers of the Society.

 

In Radha Bai v. Union Territory of Pondicherry ((1995) 4 SCC 141), it was found that a woman officer of the Pondicherry Administration was harassed by the authorities. She was fighting for her cause for 17 years. The Supreme Court ordered the Government to pay her Rs.3 lakhs as compensation for loss of reputation and honour and the agony suffered in the long battle. The amount of compensation was directed to be paid jointly by the Union Territory of Pondicherry and the then Home Minister of the State.

 

In Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), it was found that an allottee of a flat by the housing authority was entitled to get compensation for deficient service under the Consumer Protection Act, 1986 (as it stood prior to the amendment). Apart from awarding compensation, the Supreme Court held that the compensation should be recovered from the personnel of the concerned department or authority of the State.

 

In Delhi Domestic Working Women's Forum v. Union of India (1995 SCC (Crl) 7), some jawans raped six women while travelling in the train. Appropriate action was not taken against the culprits. In that context, the Supreme Court observed as follows:

 

"It is necessary to indicate the broad parameters in assisting the victims of rape.

 

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with die criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.

 

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

 

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

 

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

 

(5) The Advocate shall be appointed by the Court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained,

 

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

 

(7) It is necessary, having regard to the Directive Principles contained under Art.38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

 

(8) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

 

In Gudalure M.J. Cherian v. Union of India (1995 SCC (Crl) 925), some miscreants broke open the window of the house where (he Sisters of a Missionary Society were staying. The miscreants committed rape on two sisters and others were assaulted. The Supreme Court directed the State to pay a sum of Rs.2,50,000/- as compensation to each of the two sisters on whom rape was committed by the assailants and a sum of Rs.1 lakhs each to other who were assaulted.

 

Compensation to the victims of abuse of power by lawful authorities and victims of rape was awarded in exercise of the jurisdiction under Art.32 of the Constitution of India for violation of the fundamental rights. Though damages could be claimed in a civil suit, yet it was found that there was violation of Fundamental Rights of the victims and as such they are entitled to the compensation. A civil suit for compensation entails heavy expenses besides the delay in getting the relief.

 

Sections 250,357,358, 359 of the Code of Criminal Procedure, 1973 and S.5 of the Probation of Offenders Act 1958 are some of the provisions relating to the power of the court to award compensation to the victims. S.250 empowers the court to award compensation for accusation without reasonable cause. S.357 empowers the court to direct the whole or any part of the line amount or if no sentence of fine is imposed, then a specified amount as compensation to the victims on conviction of the accused person. S.358 lays down that maximum amount of Rs.100 as compensation may be ordered to be paid by the Magistrate to persons who have been groundlessly arrested. Under S.359, the Court can order the accused to pay costs of the proceeding in a non-cognizable case, if the accused is convicted. Under S.456, the court has the power to restore possession of immovable property on conviction of the accused for criminal trespass. Under S.5 of the Probation of Offenders Act, the Court has the power to direct the offenders who have been released under the Act to pay compensation to the victims.

 

Under Ss.357 and 359 of the Code of Criminal Procedure and under S.5 of the Probation of Offenders Act, the victim is entitled to get compensation only in the event of the conviction of the offender. That apart, it is entirely at the discretion of the Court that a victim is given compensation. These provisions of the Code of Criminal Procedure and the Probation of Offenders Act are practically circumscribed by the conditions that the accused person must have been convicted, and the fine amount, if imposed is recoverable or the accused commits a probationable offence. These provisions do not create any right to claim compensation in favour of the victim. Moreover, if the convict is incapable of paying the fine or the compensation as ordered by the Court on grounds of poverty, the victim is deprived of getting it from any other source. Award of one hundred rupees under S.358 of the Code of Criminal Procedure can be hardly said to be any compensation.

 

In Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127), the Supreme Court while considering the significance of S.357 of the Code of Criminal Procedure, said:

 

".....It is an important provision, but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences, but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender.... We therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way."

 

There are hundreds of cases in which the accused persons are convicted although offences are found to have been committed against some innocent persons. In such cases, the victims of crime are left without any remedy.

 

The prosecution must prove the complicity of the accused in the crime beyond any reasonable doubt. If the court finds that no offence is made out, according to law, there is no question of having a victim. Although the court finds that an offence has been committed against the aggrieved complainant, yet it may acquit or discharge the accused on one or more of these grounds, namely, (a) even though the case is true, yet no clue was found to implicate the accused in the crime during the investigation; (b) no sufficient legal evidence was available against the accused at the trial for holding him guilty; (c) the alleged criminal conduct of the accused could get protected under any of the exceptions provided in the Indian Penal Code, such as right of private defence of property and person, incapacity, insanity of the accused or lack of mens rea (guilty intention) etc., (d) in some cases, prior sanction for prosecution of certain authorities is required to prosecute an offender and for want of such sanction, the accused is entitled to acquittal, and (e) there may be a case of mistake of fact or mistaken identity of the accused person as the culprit. In such circumstances, it will be unjust to deny compensation to the victims who deserve to get the same, merely on the ground of acquittal of the accused even though a crime has been committed.

 

So far as the victims falling under categories 6 to 12 are concerned, they are the general public. So far as the persons who suffered on account of their own illegal conduct, such as victimless crimes are concerned, steps are usually taken by the State to reform and rehabilitate them. If compensation is paid to the victims of this category, it would amount to rewarding the offender.

 

It is found that some of the victims are in a real sense instigators. Their attitudes, wishes and personalities seem to provoke action by the doer. The actual affinity between the doer and the victim was found to range from complete indifference to conscious impulsion. There are some discernible attitudes which determine the affinity of victim and the doer. They are the attitudes of 'submitting, conniving, passively submitting, cooperative, contributory, provocative, instigative ad soliciting'. A person, who is equally responsible for the commission of a crime, is also a perpetrator of the crime. Offences like affray, free fight and rioting between some groups of people which result in the disturbance of public peace and tranquility are indeed the crimes against the entire community of a locality. Almost all the offenders sustain injuries in such cases. If such acts cause tension and disharmony in the lives of the people of the society, compensation to such injured persons is inappropriate.

 

The U.N.O. in its declaration of 'Basic Principles of Justice for Victims of Crime and Abu se of Power' laid down the method of tackling the problems of victims of crime and victims of abuse of power. They are as follows:

 

"Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to promote redress, as provided for by national legislation, for the harm that they have suffered.

 

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

 

The responsiveness of judicial and administrative process to the needs of victims should be facilitated by:

 

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

 

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

 

(c) Providing proper assistance to victims throughout the legal process;

 

(d) Taking measures to minimize inconvenience to victims, protect their privacy when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

 

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

 

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

 

Offenders or third parties responsible for their behaviour should where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, provision of service and the restoration of rights.

 

Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

 

In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of the community.

 

Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

 

When compensation is not fully available from the offender or other sources States should endeavour to provide financial compensation to:

 

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes.

 

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.

 

The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

 

Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.

 

Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

 

Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

 

In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.

 

States should consider incorporating into the national law norms prescribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.

 

States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.

 

States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation prescribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts."

 

One of the stumbling blocks in the implementation of such programmes is the financial constraint of the State. It can be modestly estimated that at least in 50% of pending criminal cases victims of crime may be eligible to get compensation. The amount of compensation to the victims of a case could range from Rs.100 to Rs.1 lakh. The approximate number of criminal cases pending in different courts in India is about five million. Out of them, in at least 2 1/2 million cases victims may be eligible to claim compensation. If compensation on an average is calculated at the rate of Rs.5,000/- per case, the mini mum requirement to meet the demand would be Rs.1,250 crores at present. In Kerala alone, for example, the total number of pending criminal cases is 2,24,428 as on 31.7.1996. Out of it, in 1,12,124 cases compensation at the rate of Rs.5,000/- may have to be paid and the total amount of compensation would come to Rs.56,10,70,000/-. If the State is called upon to pay the entire compensation, then there will be heavy burden on the exchequer. It may not become possible to recover the compensation from the offender if he is untraceable, acquitted or impecunious.

 

The other option is to create a public fund for the purpose. An appeal may be made to the people and philanthropic societies to generously extend their co-operation in contributing money to organise such a fund, if the State fails to provide it.

 

However, to start with, payment of compensation may be confined to the victims of crimes of violence. One who causes personal injury on another or death of another by committing unlawful or reckless acts may be said to have committed a crime of violence. They may be grievous hurt (except those, including death, arising out of accidents and war) murder, rape, dowry related torture and dowry death. Amount of the loss of movables or cash cannot be precisely determined objectively. Very often, the victims make exaggerated statements on this score. Hence such claims may be excluded from the purview of any scheme relating to the grant of compensation to the victims.

 

Forums, like the Consumer Redressal Forums, may be constituted by an Act of Parliament to adjudicate the claims and award compensation in deserving cases.

About Jurisdiction and Compensation in

Cheque Cases — the Need for Amendment

 

(A comment, on- Jaya Baby v. Vijayan, 1993 (2) KLT 679 )

 

(Joseph Thattacherry, Advocate, Changanacherry)

 

In Jaya Baby v. Vijayan reported in 1993 (2) KLT 769, the only contention raised was whether the offence under S.138 of the Negotiable Instruments Act (for short "the Act") can be tried only by a Chief Judicial Magistrate or a Chief Metropolitan Magistrate, when the cheque amount exceeds Rs.2500/- It being a long agiatated question of law, an authentic judicial pronouncement on that question was long awaited. But in all humility and with utmost respect to His Lordship it is submitted that it is doubtful whether the question of law involved, is properly considered in the decision. The contention was repelled for various reasons, which seem not sustainable.

 

The first reason advanced was that "if the above argument gains acceptance the Chief Judicial Magistrate Courts would be Inundated with spate of complaints, since most of the cheques would be for amounts far in excess of half the figure upto which a Judicial Magistrate of First Class can impose the fine sentence. The Parliament would not have intended to create such a situation when it provided S.142 of the Act that no Court inferior to that of a Judicial' Magistrate of First Class shall try such offence". Such a situation (inundation with spate of complaints) is not a creation of the Parliament but a creation of unscrupulous persons who issue cheques that bounce. The intention of the Parliament in passing the new Act was with a view to enhance (lie acceptability and credibility of the cheques by punishing the guilty and also by compensating the loss of the complainant out of the fine realised. After the coming into force of the Act, people will think twice before they draw a cheque and the number of cases of dishonour of cheques would naturally diminish. Whatever it be,' the feat about ^inundation' may not be a ground for interpreting the provision in such a way as to confer jurisdiction to First Class Magistrate to try offences regarding cheques the amount of which exceed Rs.2500/-. Instead the Court should have considered at depth the legal aspects involved in the question. Such hardship or difficulty could very easily be overcome by the High Court invoking S. J 2(2) Cr. P.C. Under that provision the High Court could very well appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or any oilier laws for the time being in force as the High Court may direct. Thus by appointing sufficient number of Additional Chief Judicial Magistrates the problem of "inundation" could be solved.

 

Again if the First Class Magistrate are by the 'Act' invested with enhanced powers to impose sentence of fine, the problem 'inundation' could be solved much easily and the complainants could be adequately compensated. Such investment of enhanced powers we find in several Central Acts. For example, S.21 of Prevention of Food Adulteration Act, 1954, enjoins that "notwithstanding anything containedinS.29 of the Code of Criminal Procedure it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the First Class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section". Almost identifiable provision is contained in S. 36 of the Drugs and Cosmetics Act 1940 by which First Class Magistrates are empowered to impose any sentence authorised by that Act in excess of his powers under S. 29 of the Criminal Procedure Code. Similar provisions enhancing the powers of the Court are provided in oilier Acts also. If such a provision is inserted in the 'Act' enhancing the powers of imposition of fine by First Class Magistrates, they could have imposed fine which may extend to twice the amount of cheque and out of the fine realised adequate payment could have been made to the complainant.

 

But when the Parliament which inserted the above provisions for imposing enhanced penalties in other Acts, has consciously and deliberately omitted to insert similar provision in the 'Act', it has to be construed as a conscious and purposeful omission. We cannot attribute carelessness or forgetfullness to the Parliament. It has to be remembered that S.142(c) of the Act does not say that all cases under the Act shall be tried by a First Class Magistrate or Metropolitan Magistrate. But instead it only mentions that the lowest Court that could try any offence punishable under S.138 is a Metropolitan Magistrate or a Judicial Magistrate of the First Class. It means that superior courts are also empowered to try cases under the 'Act' and that the Second Class Magistrates have no such powers. Then the question arises, which court has to try, which offences under the 'Act'. It has to be decided by the Parliament which of the respective courts are empowered to award each case. Since the Court of a Magistrate of the First Class may pass a sentence, not exceeding Rs.5000/- and the superior Court, the Chief Judicial Magistrate has unlimited powers of imposition of fine under S. 29(l) & (2) of Cr. P.C. The intention of the Parliament is clear that only those cases involving cheques the amount of which does not exceed Rs.2500/- only shall be tried by a Judicial First Class Magistrate of Metropolitan Magistrate. Had the intention of the Parliament be otherwise, it would have made adequate provision, similar to that contained in 'The Prevention of Food Adulteration Act, Drugs and Cosmetics Act' etc. S. 16(1 A) and (IB) of the Prevention of Food Adulteration Act prescribes imprisonment which may extend to term of life and S. 27(a) of the Drugs and Cosmetics Act prescribes imprisonment for a term winch may extend to ten years. S.138 of the 'Act' provides punishment with imprisonment for a term which may extend to one year and with fine which may extend to twice the amount of cheque. Nowhere in the Indian Penal Code or in any other law, the quantum of fine that may be imposed is tagged to the loss sustained by the party aggrieved. So it can reasonably be inferred that one of the main objects of the ' Act' is to provide recompense for the loss sustained to the complainant, because it is well known that the principle of penal legislation never postulates that, penalty is the sole aim of legislation. In order to pay compensation the Court has to resort to S. 357(1) of the Code of Criminal Procedure, as observed by His Lordship. But if the First Class Magistrate is not that empowered the complainant is daminified. So the intention of the Parliament is that Chief Judicial Magistrate or Additional Chief Judicial Magistrate alone should try cases u/s. 138 of the Act, cheque amount of which exceeds Rs.2500/- It has to be remembered that identical provisions as we find in S. 142(c) viz. "no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under S. 138" are-contained in S.20(2) of the Prevention of Food Adulteration Act and S.32(2) of the Drugs and Cosmetics Act and other Acts as well. Then the omission to give powers to impose enhanced penalty as we find inserted in those Acts becomes more conspicuous and significant. Hence it is submitted that First Class Magistrate and Metropolitan Magistrate have no jurisdiction to try offence u/s. 138 of the Act where the cheque amount exceeds Rs.2500/-.

 

Relying on the decision of the Calcutta High Court reported in 1977 Crl. L.J. 1503 the Allahabad High Court in 'Ravindraprakash v. Union of India' (1984 Crl. L.J. 1321) held in a case involving an offence u/s. 27(a) of the Drugs and Cosmetics Act, 1940, for winch the maximum punishment prescribed is imprisonment for a term often years, that the case should have been tried by a Court of Sessions and not be tried by a First Class Magistrate. Those rulings were distinguished and held not applicable by His Lordship on two grounds. Firstly that "No particular Court is mentioned in the Drugs and Cosmetics Act for trial of offences under that Act". That is not a correct statement because S.32(2) of that Act provides thus "No Court inferior to that of a Presidency Magistrate or of a Magistrate of the First Class shall try an offence punishable under tins chapter". S.27 falls under the very same chapter. So the very substractum of the reasoning stumble to the ground and the reasoning fails. In 'Prem Pal Varsheny v. Union of India' reported in 1990 Crl. L.J. 989 the Allahabad High Court held that where it was crystal clear that the quantum of sentence sought to be imposed was beyond the power of the Magistrate u/s.29 of the Code, he shall commit the case to the court of Session. The second ground is that "under the second division of the First Schedule to the Procedure Code such offences can be tried by a Magistrate of the First Class". That also is not correct because S.26(b) of the Procedure Code says that any offence under -any other law shall, when any Court is mentioned in tins behalf in such law, be tried by such court and only when no court is mentioned it may be tried by any other court by winch such offence is shown in the first schedule to be triable. So, as the court to try such offences is specified in that Act, second Division of First Schedule to the Procedure Code has no application. Similarly in para.5 of the order His Lordship after discussing the applicability of S.26 of the Procedure Code, observes that even if S. 142 of the Act has not mentioned specifically as to the Court which can try the offence, any Judicial Magistrate of the First Class would have got jurisdiction to try the offence under S. 138 of the Act. Since S. 142(c) of the Act specifically mentions the Court which is to try the offence under the Act, .the said observation has no relevancy and applicability.

 

Two remedies are suggested by His Lordship to alleviate the grievance of the complainant in para.6 of the order. One is that the Magistrate could resort to the steps envisaged in S.325 of the Procedure Code. If so, since most the cheques are for amounts far in excess of Rs.2500/- the Magistrate of the First Class may have to submit his proceedings in all such cases and forward the accused to the Chief Judicial Magistrate after evidence is taken and arguments heard and formation of necessary opinion, as contemplated in the section. The Magistrate in such circumstances may not be able to differentiate and select some cases and forward them and at the same time refuse to forward some others. As the nature of such cases is the same, if he so does, he may be accused of partisanship which may mar the impartiality of the Judiciary. Naturally all the complainants are eager to recover full compensation. If the Magistrate took steps under S.325 of the Code, would not the Chief Judicial Magistrate Courts be inundated with spate of complaints? Not only that, the Chief Judicial Magistrate may have to try those cases denovo, which would cause much harassment and hardship to the accused as well as the complainant. So the first remedy suggested by His Lordship is not feasible.

 

The second remedy suggested by His Lordship is that a Magistrate can alleviate a complainant's grievance by resort to S.357(1) of the Procedure Code. That also is not feasible as the First Class Magistrate could not impose fine exceeding Rs.5000/- and he could compensate the complainant only out the fine recovered, which under no circumstances will exceed Rs.5000/-; In most of the cases the cheque amount will be much higher. So payment of compensation by a First Class Magistrate with limited powers of imposition of fine will not alleviate a complainant's grievance. So both the remedies recommended by His Lordship are not practicable. Thus the malady continues and the remedy eludes. It is not fair and proper to push the complainant to a civil court for realisation of the cheque amount as the intention of the legislature is otherwise.

 

Now considering the various aspects involved in the question, it is most respectfully submitted that the Hon'ble High Court be pleased to appoint sufficient number of Judicial Magistrates of the First Class to be Additional Chief Judicial Magistrates, u/S.12(2) of the Procedure Code or to recommend to the Central Government to invest First Class Magistrates and Metropolitan Magistrates with enhanced powers of imposition of fine under the Act, notwithstanding anything contained in the Code of Criminal Procedure. Hence it is submitted that the decision in Jaya Baby's case requires reconsideration.