Powerful Police vis-a-vis Mighty Court

(Salim Kambisseri, Asst. Public Prosecutor, Thiruvalla)

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

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

(1) Is the act of the Magistrate correct?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(P.N. Mohanan, Advocate, Ernakulam)

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

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

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

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

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

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

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

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

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

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

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

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.

Uniform Civil Code - A Constitutional Mandate

(T.P. Diaz, Advocate -Trichur)

There has been a multiplicity of complicated personal laws in India; broadly categorised as Hindu system, Muslim system, X 'an, Parsis etc. Some have its origin in the Vedic period, some others in the medieval period; but the origin of these into a legal system in its present form is ascribable to the 19th century, under the British rule. 'Divide and Rule' was the motive behind all these legislations, to cement the bed-rock of the superstructure of their colonial empire. To keep up the tempo of communal discord, they exploited every tiling within their command and legislation was also not spared.

The protagonists of secularism and the founding fathers of our constitution had to wade through a pool of problems to enact and incorporate Art.44, in the constitution, because of the onslaught unleashed by the vested interests and communal forces. They could withstand the mounting pressures and refused to bow. Their successors in office also should be able to uphold the same tradition courageously to solve the problem, the best way, facing it.

Article 44 of the Constitution has been a mandatory provision, reads as follows:—"The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". Why should a government which claim secularism as its goal, a government which always resort to Constitutional provisions for various purposes, fight shy to give legislative expression to this mandate, enacting a uniform civil code?

Legislative competence and constitutional mandate have been there in abundance, but what is lacking, has been the political will and courage, and the same weakness was manifested by the enactment of "The Muslim Women (Protection of Rights and Divorce) Act, 1986-17/86, which action of the Central Government reminded the proverbial mother-in-law caressing, oiling and stroking the hairlock of the proverbial daughter-in-law to appease her and to pre-empt her jolting and kicking, while the daughter-in-law sits in a relaxed, pleased and victorious mood of taming the mother-in-law, as her maid-servant. The golden principle laid down by the Supreme Court in Shah Bano's case (1985 2.S.C.C.556), was nullified or neutralised by the said enactment, Shah Bano's preference for Criminal Procedure Code, over her personal laws, brought encomium, laurels and bouquets to her; but brickbats to the Government. The defence of her husband (a lawyer by profession), banging on his personal laws and Talaq, was rejected by the court and then the 'mile-stone Judgment'. "S.125, is truly secular in character. It was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions which are prophylactic nature, cut across the barriers of religion. They may not supplant the personal law of the parties, but equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws, unless within (lie frame work of the constitution, their application is restricted to a defined category of religious group or classes. The liability imposed by S.125 to maintain close relatives who are indigent upon the individuals' obligation to the society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed to religion".

The court further expressed its regret that Art. 44 of our Constitution, has remained a dead letter. By enacting a uniform civil code, the cause of national integration will be accelerated. It will culminate in the narrowing down or bridging the gap of divergence of divorse competing religion-based laws. And the chance to enhance the national outlook and to engender a 'mother-India' feeling and thereby reducing the sectarian, fundamentalistic and divisive attitude of the various communities. The Court held further, "No community is likely to bell the cat by making gratuitous concessions on this  issue. It is the State which charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so".

In a democratic country like India, where secularism has been a declared goal, sectional, communal and religion-based laws should be scrapped or replaced by National laws. Any delay or failure to lake follow-up action as mandated by Art.44, will amount to dereliction of duty and miscarriage of justice, which will expose a weak, pusillanimous government. Skyrocketed to the skyline in the advancement of technical, technological know-how almost in all the branches of science and technology, we enjoy today an enviable, exalted position among powerful nations. Our stridency to the top rung or row of great powers, is looked upon by other Nations with dismay and envy. But our personal legal system, that threads the Warp and Weft of the social fabric, remains rotten and stinking, reeling under the Vedic, Paleolithic or Medieval, irrational customs and conventions which leave our homogenous unity truncated.

"Honey on the tongue and sting in the tail"— attitude of the Government has been amply exemplified by the peroration, in the glorification of secularism on one hand, and the contra-legislation, on the other. The same had been the attitude of the Government, when they codified Hindu personal laws, which had been fading or vanishing out. in 1962,1 wrote an Article and published in Kerala Law Times (1962 KLT Journal Page 57), Titled, "Communalism thrives on legal loop-holes". I take liberty to quote a few lines, from that Article of mine, - "But those who are at tire helm of affairs --------- do not care to see that the main source of this foul stream of communalism, is --------- the legal system of the land".------------------" They make distinctions Mid discriminations on the basis of class and community, in the field of legislation. And if the Government itself does not view the people of India as a whole, why should the citizens view?" "So, we find that within the four boundaries of India certain emotional boundaries are visible". "Why can't the Government contemplate upon 'Indian Acts' applicable to all the citizens of India? Why did they codify the conventional laws of Hindus, which were really fading out?" "It is high time for the government to put a stop to these kinds of legislations and orders which seek to discriminate people of a community from the other".

The letter and spirit of the Constitution make it imperative on the part of the Government, only to enact National Laws, uniform codes and not religion-based communal laws, which drive a wedge in the national unity, which make a dent on Indian polity, and it will be a bountiful harvest for communal politics. Though belated, the time is ripe for the Government to indulge in these matters, on a priority basis and to enact a uniform Civil Code, applicable to all citizens, irrespective of their religion or community.

All along hitherto, Muslim community has been the stumbling block, opposing the introduction and enactment of a Uniform Civil Code. Eminent jurists and top-ranking leaders have pointed out that their apprehension, seems to be baseless and irrational, in view of the well-known protective guarantees, couched in Art. 25, regarding freedom of conscience and the right to profess, practise or propagate the religion of one's choice, and Art.29, regarding the right to conserve its language, script or culture. They should join the main stream of national unity, unhesitatingly and wholeheartedly. Conveniently they should not shut their eyes towards the vast and dynamic changes brought out in almost all the Muslim countries of the world, Mr. Justice, Tulzapurkar, in his famous Article on Uniform Civil Code, says, "for instance, polygamy has been completely prohibited in Tunisia (S.18 of Tunisian law of Personal Status) and Turkey (Art. 74 of Turkish Civil Code, 1926) while it has been curbed in Syria, Morocco, Egypt, Jordan, Iran and Pakistan permissible subject to certain conditions such as obtaining of permission from a third agency like the Court or Arbitration Council before taking a second wife. Similarly, the right of a Muslim-husband to give a unilateral Talaq has also been curbed in all these countries".

To combat the fissiparous tendencies, to anchor the pulls to different directions, by casteism, communalism and fundamentalism, Uniform Civil Code has been the only juristic solution; the only known panacea for putting an end to the various, diverse, unfair, inequitable and in certain cases, humiliating personal laws, applicable to various communities; and nauseating practices, eating into the vitals of the National unity.

In conclusion, I quote the following from Mr. Justice Chagla, "That Art. 44 is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision. The Constitution was enacted for the whole country and it is binding on the whole country and every section and community must accept its provision and its directives".