About Arrest and Medical Examination of a Suspect for Drunkenness

(Joseph Thattacherry, B.Sc, B.L, Advocate, Changanacherry)

Liquor shops selling different varieties of beverages are sprouting like mushrooms throughout Kerala. Spurious arrack is available even in pen shops at very low price. The number of persons frequenting liquor shops are increasing by leaps and bounds. No wonder cases u/s. 51 (a) of the Kerala Police Act are swelling in courts. So a discussion on the following point seems relevant and appropriate.

1. Can police arrest without warrant a person suspected of having committed an offence u/s 51(a) of the KP. Act?

2. Has the medical officer any authority to examine a person for inebriety if he is not brought under arrest, and without a request of a police officer not below the rank of a Sub-Inspector.

3. Can the court enter a finding that a person is under the influence of drink without blood and urine test and if so under what circumstance?

Under Art.20(3) of the constitution no person accused of an offence shall be, compelled to give evidence against himself. To prick a person with a needle in order to extract blood from him without his consent, is an offence under the Penal Code. In order to overcome these difficulties, by the Amendment Act 2 of 1974 of Cr. P.C, S.53 was newly introduced. That section being an exception to the general law, it is well settled that it has to be strictly complied with. For better appreciation, S.53(1) of Cr. P.C. is extracted below:

S.53(1). When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as Is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

It is clear, that unless a suspected person is arrested and produced before a medical practitioner, who satisfies the required qualification prescribed in the explanation to S.53(2), with a requisition from a police officer not below the rank of a sub-inspector, the medical practitioner has no authority to examine the person of the suspect. An examination if conducted without satisfying the above 2 pre-conditions viz. arrest and requisition from proper person, the examination if conducted is illegal and the certificate if any issued is ab initio void and hence inadmissible in evidence.

An offence under 8.51(a) of the K.P. Act is punishable only with imprisonment which may extend to one month and with fine which may extend to Rs.200/-. It comes under the classification of offence against other laws, under schedule II to Cr. P.C. As punishment for the above offence is imprisonment for less than 3 years only, it is not a cognizable offence as per that schedule and hence a police officer has no authority to arrest without warrant a person suspected of having committed an offence u/s.51(a). Any police officer is empowered to arrest without a warrant any person accused of an offence u/s.48 of the K.P. Act even though the punishment prescribed therein is only imprisonment not exceeding 3 months and fine. As such an authority to arrest is conspicuously absent and consciously omitted in S.51(a),the only irresistible conclusion is that a police officer has no authority to arrest without a warrant a person suspected of the commission of such an offence. Support for the above view can be had from a recent decision of the Madras High Court reported in 1991 Crl. L.J. 2416. It was a rape case. Potency test of the accused was found necessary for investigation. The accused was, under S.438 Cr. P.C. released on bail in the event of arrest. So it was contended on behalf of the accused that S.53 contemplates subjecting a person arrested alone for medical examination. The court accepted the contention that only a person arrested could be examined u/s 53 Cr. P.C, but held that a person released on bail is still considered to be detained in the constructive custody of the court through his sureties. It also held that he is notionally in the custody of the court and hence continues to be person arrested as a charge of commission of an offence and hence he could be examined. However it is clear from the above decision that in order to invoke powers under S.53 Cr. P.C. the accused should be a person arrested whether still under custody or released on bail and under the constructive custody of the court. Offence punishable u/s.51(a) of the K.P. Act being only a non-cognizable offence, the police could not arrest the suspect without warrant. So he shall not be subjected to medical examination, unless he is arrested under a warrant issued by a competent court.

Section 54 Cr. P.C which is newly introduced, gives a valuable right to the accused to request the magistrate to direct the examination of the body of the accused by a medical practitioner if it will afford evidence which will disprove the commission by him of any offence or which will establish the commission by other person of any offence against his body. That is a statutory right intentionally given to the suspected person for his benefit. But in order to avail of the benefit under the sections the suspect should be a person arrested, because the section begins with the words "when a person who is arrested whether on charge or otherwise". So a person accused of an offence u/s.51(a) of the K.P. Act, because he is not arrested and produced before Magistrate, he loses his right to challenge the correctness of the drunkenness certificate issued by a medical practitioner, as directed by the Magistrate, at his request. Similar right to prove his innocence by challenging the result of examination by the public analyst is given to the accused in a food adulteration case, by sending the sample of food for analysis to the Central Food Laboratory. So Section 54 Cr. P.C. a valuable right intended for the benefit of the accused will become otiose so long as he is not arrested. Hence the necessity for arrest. Thus it is abundantly clear that unless a person is arrested in execution of a warrant of arrest, S.53 and 54 Cr. P.C. have no application in a case u/s 51(a) of K.P. Act and the medical practitioner has no authority to conduct an examination of the person.

The second pre-condition is usually ignored in the sense that in vast majority of cases the request for examination is made by head constables. The legislature in its window, thought it dangerous or unwise or unhealthy to leave it to him and fancy of a police officer below the rank of a Sub-Inspector of Police to make the request. It is the subjective satisfaction of a superior police officer of the existence of a prima facie case of inebriety against the suspect, that the legislature wants and nothing short of that. It is to protect and safeguard the interest of citizens from unnecessary harassment and prosecution that, the above pre-condition was introduced and it has to be strictly complied with. So unless the request comes from an officer not below the rank of a Sub-Inspector, the medical practitioner gets no jurisdiction to examine a suspected person brought before him.

The next question for consideration is whether a blood and urine test is necessary to prove that, one is under the influence of drink. A ruling of the Division Bench reported in 1991 (2) KLT 570 deals with the point. It only says that neither the section nor the decision of the Supreme Court yields the inference that a charge of drunkenness cannot be found unless blood or urine is examined and that the considerations indicated by the statute are relevant considerations in determining the issue. It does not say that those considerations are conclusive proof of the fact in issue. It only says that courts shall not insist upon blood or urine test if the charge of drunkenness is proved otherwise by clinical examination as specified in the rule under the K.P. Act. That rule prescribes a particular form for the "certificate of drunkenness" after conducting all the examinations enumerated therein. If the results of all those examinations turn positive the court may reach a conclusive that drunkenness is proved. Invariably in all the drunkenness certificates issued by medical practitioners some columns may be left blank, some findings normal some partially impaired or lost and some positive. To the last query, whether urine and blood taken and preserved for chemical examination, their answer is not taken either because of non-co-operation of the accused or because of lack of facilities". That exactly is one of the reasons which persuaded their Lordships in the above case to hold that urine or blood test is not essential to find a charge of drunkenness, because in para.6 of the judgment it was observed, "If the state of law is such that a conviction cannot be entered except on the basis of the tests indicated by the learned judge then any accused who refuses to subject himself to the tests can evade the process of law. That is what the accused in this case did". It appears that the last clause in S.53 Cr. P.C. viz. "and to use such force as is reasonably necessary for that purpose" was not brought to the notice of their Lordships. So long as the statute empowers the medical practitioner to seek the assistance of any number of persons over and above the police officers who escort the accused to use necessary force it is not difficult to take sample of urine or blood. Hence that reasoning appears to be not sound.

Coming back to the clinical observations only as proof of drunkenness the apex court in 1972 SCC (Cvl) 178 observed "unsteady gait is often caused by nervousness and smell by itself is not conclusive of drunkenness". The rule under the K.P. Act is a true copy of the scheme of medical examination contained in "The Drinking Driver", a revised report of the Special Committee of British Medical Association. In para.2 of the report it is stated "The doctor should examine the suspected person thoroughly and keep full notes. He should also exclude any pathological condition which may stimulate or exaggerate alcoholic intoxication as, apart from odour of breath there is no single symptom or sign due to consumption of alcohol which may not also be found in some pathological states". The chief pathological conditions which stimulate alcoholic intoxication are enumerated therein. Here no medical officer produces before court his notes prepared at the time of examination of the suspected person along with the certificate. Even the handwriting (N.M.W) is not produced. When in the certificate several faculties are shown as partially impaired and partially lost and there is no evidence on record as to the degree of impairment or percentage of loss of such faculties, how could the court enter a finding that the examinee was under the influence of drink. Is the subjective satisfaction of the doctor alone sufficient for conviction u/s.51(a)? Should not the judicial officer be satisfied and should he not get sufficient materials for the exercise of his judicial discretion so as to come to a conclusion of his own. So unless it is conclusively proved to the satisfaction of the court that a person was under the influence of drink it is not safe to convict a person and put him in prison.

When urine or blood test at the laboratory is a sure and conclusive proof for intoxication and the degree of intoxication, one fails to understand why the Division Bench does not insist upon it. N.J. Modi in his treatise on Medical Jurisprudence and Toxicology, twentieth edition says "Evens and Jones had shown that the concentration of alcohol in urine is so precise that it gives an accurate indication of the minimum quantity of alcohol consumed." Modi further says that for better accuracy two samples of urine are taken at about 15 minutes interval to avoid possible error. Examination of urine for determination of alcohol is more advantageous than that of blood in as much as the alcohol concentration in urine is more constant than in the blood. Besides, it is much easier to obtain a sample of urine than that of blood for examination. Again Modi says that absence of alcohol in urine definitely rules not drunkenness and the amount of alcohol found gives a definite idea of the amount ingested by the person. If the urine is collected in two or three clean and sterile bottles with a preservative and opportunity given to the suspected person to get it examined at some other better equipped laboratory then the one where in it was tested u/s.54 Cr. P.C. justice could be meted out and justice will seem to be done. Under the Bombay Prohibition Act 1949 and Bombay Prohibition Medical Examination Blood Test Rules 1959 made under the above Act it is necessary that the accused should be medically examined and his blood be collected for being tested for determining the percentage of alcohol therein. So with utmost respect to their Lordships it is submitted that the ruling reported in 1991 (2) KLT 570 needs reconsideration. For a conviction u/s.51(a) of the K.P. Act sentence of imprisonment without proof beyond doubt of drunkenness will be too hard.

The menace caused to the society owing to disorderly behaviour under the influence of drink is insignificant when compared to the menace of increasing road accidents caused by drunken drivers. In all western countries if a driver of vehicle is suspected of having consumed alcohol in excess of the prescribed limit the police conduct breath test by blowing balloon and charge them if found guilty. Here also driving or attempting to drive a motor vehicle under the influence of drink or drug is made an offence. But since there is no facility for breath test, or some other device for quick test such drivers go up and down the roads fearlessly under the very nose of police officers. Road accidents are alarmingly on the increase and in most cases the accidents are due to drunken driving. So it is high time the government should take urgent steps to remedy the evil by roadside examination of drivers for drunkenness and further subject those found positive to clinical and urine or blood test, and by charging those found guilty.

The Battered Woman Syndrome

(T.G. John, Advocate, Trichur)

Of recent interest is the ruling of an English Court where an Indian woman, Kiranjit Ahluwalia who was convicted and sentenced to life imprisonment for the murder of her husband was acquitted on retrial. The court of appeal quashed her conviction and ordered retrial in the light of fresh evidence regarding her 'state of mind'. At the retrial after hearing her evidence about the abuse she had suffered at the hands of her husband, the time she had served in jail was considered sufficient since the court found that she had committed the offence irrationally due to the strain of living with a violent man!

In May, 1989, Kiranjit poured a tin of petrol over her husband while he was asleep and set fire. The husband was reduced to ashes. It was in evidence that she was constantly beaten up by her husband, sometimes with his waist-belt. On one occasion she was pushed from the stairs. The husband, it was reported, was a sadist and constantly inflicted brutalities on her for years continuously. The retrial was ordered when the women's rights Campaigners took the matter up.

The above judgment gives a new dimension of defence for lawyers in murder cases. Under what head does this new exemption come? It cannot be grave and sudden provocation because she had been undergoing it for so many years. For a layman this criminal act of Kiranjit can be understood only as a retaliatory measure. She had various other courses open to her. She could have reported the matter to the police, to her relatives or even taken steps for a divorce. But refraining from all these, she stoops to murder her husband in the most grotesque fashion. The taw and the lawyer fondly terms it as 'The Battered Woman Syndrome'" If this principle is recognised, it can very well apply to other specific categories also. If a married man has to suffer long from his nagging wife, and after several years, of suffering, he kills his wife, the action can safely be called 'Battered Man's Syndrome'. And again if an employee who had to suffer for long, for number of years under his cruel employer, finally murders him can it be 'Battered Employee's Syndrome'? In short the trend will be to put every murder or manslaughter under a particular 'Syndrome'.

'Syndrome' only means 'a symptom, characteristic or set of symptoms or characteristics indicating the existence of a condition or problem'.

x    x          x          x          x          x          x          x          x

Just think about a job where you are required to wear not only a long gown, neckbands and a sash but also a bulky horse hair wig. That is the uniform most British Judges have worn since the late 17th century - seeming with pleasure and at the tax payer's expense (as much as Pounds 7000 per costume). Additional ceremonial garments including knee breeches, gold buckled shoes and a fur trimmed robe are worn on special occasions. Britain's new Lord Chief Justice, Lord Taylor has set out to answer the question. 'Is this really necessary for the administration of Justice?' Many Britons maintain that the costumes only encourage judicial arrogance and widen the gap between the public and the so-called public servant. Lord Taylor and the Lord Chancellor-Lord Mackay has issued this August, a consultation paper asking interested parties from lawyer to police officers to speak openly their views about the above issue.

A Critical Note on S.5 of the Kerala Buildings (Lease & Rent Control) Act, 1965

(E.K. Ramakrishnan, Advocate, Payyannur)

Section 5 of the Kerala Buildings (Lease & Rent Control) Act 1965 empowers the Rent Control Court to fix the fair rent of the tenanted building. It is vividly stated in the latter portion of S.5(i) that "the fixation of the fair rent shall be after holding such enquiry as the rent control court thinks fit". But at the same time S.5(2) confines the role of the rent controller by saying that "in fixing the fair rent, the court shall take into consideration the property or house tax register of the local authority within whose area the building is situated". Since clear guidelines are laid down in S.5(2), what is the scope of the enquiry contemplated in S.5(i)?

True, the Kerala Buildings (Lease & Rent Control) Act, 1965 is a legislation intended for the benefit of the tenants i.e. regulation of allotment of houses, fixation of fair rent, prevention of unreasonable eviction of tenants etc. So while exercising the powers under this Act, the paramount consideration should be the interests of the tenants, based on the principle of social justice.

Fair rent is not defined in the Act. But S.5(2) and (3) are the guidelines to determine the fair rent of a building. Is it fair to determine the fair rent wholly relying on the property tax or house tax fixed by the local authority?

Being a judicial body, the finding/order of the rent control court should be based on merits, by relying on the cogent and concrete evidence available before it. But while fixing the fair rent of a building, the rent control court is prevented from applying its judicial conscience due to the restrictions imposed by S.5(2) of the Act. In short it has been constrained to do some arithmetical calculations. Is it wrong to consider the investment made by the building owner for constructing the building for fixing fair rent? No doubt, the location of the building, the condition of the building, the access to it, the amenities provided in it etc. are very important for fixing the rent of a building. In Arunachalam Pillai v. Natarajan (1968 KLJ 614), the importance of the above factors are dealt with.

Similarly in Devassy v. Joseph (1969 KLT 541) also, his lordship Justice V.R. Krishna Iyer (as he then was) held that, "among other relevant facts the court may have due regard to the cost of construction and maintenance, the taxes and rates payable by the landlord and so on" for fixing fair rent. But in the same ruling it was held that the fair rent should not exceed by more than 15% the monthly rental forming the basis of house tax computation. The concept behind this ruling was that rents are liable to be enhanced not due to the scarcity of rented buildings, but because of natural causes affecting rents. But the 15% enhancement suggested in the section is not always sufficient to cover" those natural causes affecting rents".

Rule 4 of the Kerala Panchayat (Building Tax) Rules, 1963 deals with the determination of annual rental value of a building and R.5 of the above rules empowers the executive authority to summon the owner or occupier of the building to furnish returns of the rent payable for the building, the cost of erecting the building and measurement of the land etc. in order to assess the building tax. Similar provisions (S.100 and corresponding rules) are incorporated in the Kerala Municipalities Act, 1960 also. Unfortunately our local authorities are based on imaginary figures somehow estimated by technically unqualified staffs. Even if the provisions are strictly complied with, in order to evade excess tax burden, some fabricated returns will be submitted by the building owners. The ultimate result would be the preparation of a wrong building tax register. By virtue of S.5 of the Kerala Buildings (L & R) Act, the rent control court has been constrained to rely wholly on this illogic and fallacious building tax registers being maintained by local authorities, without applying its independent judicial mind. So the "failure of the system" affects the judiciary also.

The rent of a building as well as the judicial proceeding for fixation of rent should be fair. In a pending petition under S.5, the parties to the petition can easily speculate the maximum extent of rent to be fixed by the rent control court as fair rent. This is against the very spirit of judicial system.

Being a judicial proceeding, the fixation of fair rent should be based on the merits of each case. The investment made for constructing the building should be a vital factor for determining fair rent. This can be assessed by invoking the powers under Order 26 Rule 9 of CPC.

The precious time of judiciary is not intended for doing some arithmetical calculations based on the illogic building tax register. So it is better either to relieve the rent control court from the duty of fixing rent or to suitably amend S.5, thereby empowering the rent control court to fix the fair rent in a reasonable and effective manner.

Christians and the Family Courts

(Sebastian Champappilly, Advocate, Ernakulam)

The Law Commission of India, in its 59th Report (at Page 13) suggested that the States should think of establishing Family Courts which will give more emphasis on the settlement of matrimonial disputes by way of conciliation rather than the normal mode of trial. It may be pertinent to note at this juncture that the Law Commission was not mainly concerned with the proposal of institution of Family Courts. It was mainly examining the need for amendments required under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Obviously the 59th Report was not concerned with the Indian Divorce Act or the marriage and divorce laws applicable to Muslims and Parsis. Nor, in the circumstances can one consider this Report, a comprehensive study about the need, relevance, nature etc. of Family Courts in India. But the Government of India thought it necessary to bring in a legislation for the establishment of Family Courts, on the representations made by various Women's Organisations and individuals and the Parliament enacted the Family Courts Act, 1984. It was brought into force in Kerala from 21-10-1989 and Family Courts at Thiruvananthapuram, (for Thiruvananthapuram and Kollam Districts), Ernakulam (for Ernakulam and Thrissur Districts) and Kozhikode (for Kozhikode and Wayanad Districts) have been established on 6-6-1992.

The Family Court exercises all the jurisdiction exercisable by any District Court or any subordinate court under any law for the time being in force in respect of suits and proceedings in the nature of suits for declaration of nullity of marriages, restitution of conjugal rights, judicial separation or dissolution of marriage and such other reliefs as provided under S.7 of the Act. It also exercises powers under Chapter IX of the Code of Criminal Procedure. Therefore it can be said that the Family Court is a Civil Court of District Courts' stature when exercising jurisdiction under S.7(1) of the Act and a Criminal Court of Judicial 1st Class Magistrate's Stature when exercising jurisdiction under Chap. IX of Cr. P.C. (Munna Lal v. State of U.P. AIR 1991 All. 189).

The Act was indeed enacted with the object of promoting conciliation in, and securing speedy settlement of disputes, relating to marriage and family affairs and matters connected therewith. This Act supposedly covers the whole area of matrimonial jurisdiction. S.20 of the Act starts with a non-obstante clause, whereby provisions of the Act are given over-riding effect on all other laws for the time being in force.

But it appears that these provisions may not have any impact on the provisions contained under the Indian Divorce Act, which regulate divorce among Christians. The Family Courts are invested with only the powers of the District Courts and Courts subordinate (hereto as is clear from S.7. Therefore, it does not affect the jurisdiction of the High Courts in matters of matrimonial jurisdiction. And under the Indian Divorce Act, it is the District Courts and the High Court which have concurrent jurisdiction to deal with questions of marriage and divorce among Christians. In other words, the High Court's jurisdiction to deal with matrimonial causes of Christians is not at all affected by the provisions of the Family Courts Act. The Bombay High Court's decision in Kamal V.M. Allaudin v. Raja Shaikh (AIR 1990 Bom. 299) wherein the court which also exercises Letters Patent jurisdiction, expressed no final opinion as regards the High Court's jurisdiction in matters matrimonial to which the Indian Divorce Act and the Parsi Marriage and Divorce Act are applicable. The Court has however hastened to add that, such matter will continue to be cognisable by the High Court until jurisdiction in that respect is conferred by express statutory provision upon the Family Court. Further the Act does not contemplate transfer of proceedings instituted or entertained by the High Court itself to the Family Court. It will mean that as far as Christians are concerned a different court in the shape of Original side of the High Court will be there within the limits of its territorial jurisdiction. The Bombay High Court is therefore correct when it observes that it may seemingly appear to be incongruent after the advent of the Constitution that Communities of different religious persuasions should be required to approach different forums for obtaining similar matrimonial reliefs and that position is the result of existing laws which have not so far been consolidated. As the law stands now, the invoking of the jurisdiction either of the High Court or the District Court (Family Court) is left to the petitioner though. Since the provisions of the Family Courts Act do not take away the jurisdiction of the High Courts, in matters matrimonial, the persons professing the Christian religion are left free to choose the forum either the High Court or the Family Court for rederessal of their grievances. If one chooses the High Court, the application of the Family Courts Act could be excluded. The position emerging out of the present situation can be summed up as follows. A petition for divorce under S.10 of the Indian Divorce Act, and petitions under Ss.l8 and 19 for declaration of nullity of marriage and petition under S.23 for judicial separation and petition under S.32 for restitution of conjugal rights etc. can be filed before the High Court, inspite of the Family Courts Act, 1984.

Apart from this, the Family Court is conferred with the jurisdiction and powers of a District Judge alone, confirmation by the High Court of the decrees passed by the District Courts is however mandatory under S.17and 20 of the Indian Divorce Act. Even if a Christian gets a decree of divorce from the present Family Court, he has to seek confirmation from the High Court. Thus, the Christians are being singled out in such matters. This position becomes all the more important when we appreciate another situation. Under the last proviso to S.17 of the Indian Divorce Act, "any person" is at liberty to file a petition before the High Court for transfer of the case from the District Court to the High Court on the ground that any of the parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce. In other words, even in a case where the parties did not elect to go to the High Court, a third party can drag them to go to the High Court, on the ground of collusion and thus defeat the avowed purpose of the Family Courts Act so far as Christians are concerned.

The Family Courts Act presents another question also in the Kerala context. A decree passed by a High Court in its original jurisdiction can be executed by the court of the lowest grade under R.275 of the Civil Rules of Practice. Under S.18(1) of the Family Courts Act, that court is given power only to execute its decrees or orders. S.18(3) makes it clear that the power of the ordinary Civil Court for execution of decrees is not excluded by the Act. Therefore, as far as execution proceedings are concerned, the powers of the ordinary Civil Courts would remain unaffected. Again, under S.45 of the Indian Divorce Act, the provisions of the Code of Civil Procedure is made applicable to the proceedings under that Act. Now another question that arises is whether the execution proceedings now pending before the ordinary civil courts would get transferred to the Family Courts. Under S.8(a), of the Family Courts Act, jurisdiction of other Courts are excluded only in respect of suits or proceedings of the nature referred to in Explanation under S.7(l). Since S.7(1) or the Explanation does not deal with execution proceedings and since S.18(3) makes its clear that the powers of the ordinary Civil Court for execution still prevail, the pending execution proceedings are to be dealt with by the ordinary civil courts and this is particularly so if they arise from decrees made by the High Court in its Original jurisdiction under the Indian Divorce Act.

In short, as far as Christians are concerned, the advent of the Family Court is not going to have any impact and they are still shackled by the provisions of the obsolete law on marriage and divorce. This is again a case signifying the crying need of reform of the personal law of Christians.

Appropriation of Payments under Decree

(V.K. Sathyavan Nair, Advocate, Kottayam)

1. This is to point out an erroneous practice followed by decree holders, especially, banks and other financing companies, in the matter of appropriation of payments under decree, totally disregarding the amended provisions of Order 21, R.1 C.P.C. More often than not, this practice bears the stamp of approval of the execution Courts.

Principal sum

2. Interest is the premium for the money used and is quite distinct from 'principal sum adjudged'. Section 34 C.P.C empowers Court to award interest pendente lite and for post decretal period on the 'principal sum adjudged'. In 1974 KLT 853 a Division Bench has held that if as per the agreement between the parties the interest that has accrued due at the end of the quarter is added on to the principal and becomes the principal the interest so added never thereafter ceases to be the principal. The Court was considering the mode of calculating principal amount at the time of filing the suit. But the principal sum referred to in S.34 does not include interest except in cases were interest accrued prior to the filing of the suit and added on to the principal in accordance with the agreement between the parties. It may also be noted that under the amendment of S.34 by Act 66 of 1956 post-decree interest can be allowed only on the principal and not on the aggregate amount adjudged.

Part payment

3. The judgment debtor is bound to pay the decretal debt in one of the modes specified in R.1of Order 21. A payment into court towards the decree debt operates as a discharge of debt to that extent. The words "all money payable under a decree do not mean the entire amount payable under the decree. Even if a portion of the decretal amount is paid into court, it will be a valid payment. The question is whether such part payments shall be credited towards principal sum or interest.

Section 60 of the Contract Act

4. The normal rule is that, in the absence of any definite indication on the part of the debtor, when money is paid it is to be credited first towards interest and the balance if any, towards the principal. The Contract Act does not contain any express provision regarding appropriation towards interest. What S.60 says is that where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied the creditor may apply it at his discretion to any lawful debt actually due. Strictly S.60 contemplates distinct debts and the law of appropriation is not attracted to single debt. Nevertheless the principle underlying S.60 of the Contract Act was held to be applicable to interest as well. So in the case of a debt due with interest, any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. The apex Court held in AIR 1970 SC 161 that where  mortgagor-judgment debtor  made deposits in Court from time to time, the amounts so paid could be appropriated first towards interest and then towards the principal due in the absence of evidence of the mortgagee having accepted the amounts towards the principal. Unless the mortgagee was informed that payment was towards principal and not towards interest and the mortgagee agreed to the conditional deposit, normal rule of appropriation would apply to payments under decree. However in the light of the amended provisions of R.1 of Order 21, the above said principal can no longer be held applicable to payment of money under decree.

1976 Amendment

5. Order 21 Rule 1 was amended by C.P.C. (Amendment) Act No.104 of 1976. Before the amendment there was no express provision regarding appropriation of payments or cessation of interest. Sub-rule (2) of R.(1) provides that where any payment is made under Clause (a) of Sub-rule (1), notice of such payment shall be given to the decree holder. It is held in 1968 KLT 136 that the decree holder is entitled to interest till the date of notice.

Modes of payment

6. After the amendment there are significant changes in R.(1) of Order 21. By the amendment the judgment debtors have been given an opportunity to send money to the Court by money order or through a bank or by any other mode wherein payment is evidenced in writing. The modes of payment under decree has been enlarged and the present rule envisages the following modes.

1. By deposit in court.

2. By sending money to the Court by postal money order or through bank.

3. By paying to the decree holder out of Court by postal money order or through bank.

4. By paying to the decree holder out of Court by any other mode evidenced in writing.

5. Any other mode as the Court which passed the decree directs.

Notice of payment

7. It is also provided that where payments are made to the Court or by any other mode as the Court which passed the decree directs, the decree holder shall be given notice either through court or directly to him by registered post acknowledgment due. When payments are made to the decree holder himself no notice is necessary.

Statement of particulars

8. If money is sent to the court or to the decree holder by money order or through bank, the money order or the payment, as the case may be, shall contain an accurate statement of particulars specified in Sub-rule (3) of R.1. Clause (c) of Sub-rule (3) stipulates that it shall contain a statement regarding how the money remitted, is to be adjusted, that is to say, whether it is towards principal, interest or costs.

Cessation of interest

9. Sub-rule (4) and sub-rule (5) are introduced by the amendment. These rules provide that interest shall cease to run from the date of payment to the decree holder or date of service of notice on him, as the case maybe. The new provision regarding cessation of interest on the amount paid is very clear and specific and there is hardly any scope for conflicting views. If any amount is paid under decree interest shall cease to run on that amount, that is to say, the amount paid shall be credited towards principal sum. The meaning of the provision is quite plain and unambiguous and it is not capable of any other interpretation.

Objects and reasons

10. In this context the objects and reasons for the amendment may give added force to the above literal interpretation "The committee note that there is no provision in the code in relation to cessation of interest on the money paid under a decree out of court to a decree holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing. The committee are of the view that in such a case, the interest should cease to run from the date of such payment. In case the decree holder refuses to accept the postal money order or payment through a bank interest should cease to run from the date on which the money was tendered to him in ordinary-course of business of the postal authorities or bank sub-rule (5) in Rule 1 of Order XXI has been inserted accordingly."

Valid tender

11. It is clear from a bare reading of the provisions that judgment debtor is entitled to cessation of interest on any amount paid under the decree whatever be the mode of payment. If that be the case, the stipulation contained in clause (c) of sub-rule (3) regarding the manner of appropriation appears to be unnecessary. The reason for such a requirement is not quite clear. But that is no ground to deviate from the literal interpretation to be given to sub-rule (4) and sub-rule (5). Clause (c) of sub-rule (3) cannot be said to govern and restrict the definite and unambiguous meaning of sub-rule (4) and sub-rule (5). Non-compliance with requirement contained in clause (c) of sub-rule (3) may affect the validity of the tender, but it has no significance in construing sub-rule (4) and (5).

Order 24 Rule 3

12. Even during the stage of trial if any amount is paid it has to be adjusted towards principal. Rule 3 of Order 24 provides that no interest shall be allowed to the plaintiff or any sum deposited by the defendant from the date of receipt of notice, whether the sum deposited is in full by the claim or falls short thereof. The same principle is applied to payment under decree also by substituting sub-rule (4) and sub-rule (5) in R.1 of Order 21.

AIR 1988 P& H 33

13. This question was considered by the High Court of Punjab and Haryana in the case of Punjab National Bank v. Prem Sagar the Court held that part payment under decree shall be credited towards principal (AIR 1988 P & H 33).

Conclusion

14. Unfortunately the mode of calculating balance amount due from a judgment debtor ignores the above said principle and often an incorrect method by appropriating payments towards the aggregate amount is followed. Quite obviously such wrong method of calculation works out inequitable results allowing realisation of interest on interest, penalising the judgment debtors denying them the benefits conferred by the express provisions contained in sub-rule (4) and sub-rule (5) of Rule 1 of Order 21.