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.

Contributions of the High Court of Kerala to

the Doctrine of Stare-Decisis

(K.S. Raju, Research Scholar, Department of Law, University of Kerala)

In a dynamic society Law should commensurate with the changing needs and aspirations. Precedent which is the cardinal source to Law must be a stepping stone and not a halting place. A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative elements is termed as ratio-decidendi which alone has the force of Law as regards the world at large. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided, in Mukdeo Singh v. Harak Narayan (AIR 1931 Pat. 285 at pp.291-92) it has been laid down as follows:

"The courts must always hesitate to overrule decisions which are not manifestly erroneous and mischievous, which have stood for many years unchallenged and which from their nature may reasonably be supposed to have affected the conduct of a large portion of the community in matters relating to rights to property." J.W. Salmond in his book, The Theory of Judicial Precedents" has warned the courts against laying down principles which are not required for the due decision of the particular case or which are wider than is necessary for the purpose. In Jwala v. State (AIR 1963 All. 161) it has been laid down that the prerogative of a judge is not to make the law by formulating and declaring it but to make the law by applying it and that judicial declaration unaccompanied by judicial application is not authority.

In Sheik Dawood v. Collector of Central Excise, Madras (AIR 1961 Mad.1) it has been laid down that the only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. The doctrine of Strare-decisis embodies an important social policy which is reflected in the considerations of certainty, continuity and stability in Law. In a number of decisions which have arisen under the Constitution of India, the Supreme Court has taken the policy of strict adherence to the doctrine of Precedent. In Bengal Immunity Co. Ltd. v. State of Bihar (AIR 1955 SC 661) it was unanimously held that in constitutional matters, it would not consider itself bound by the orthodox doctrine of precedent. The decisions rendered in many cases have been in zigzag motion(see Sankari Prasad Case AIR 1951 SC 458, Sajjan Singh Case AIR 1965 SC 845, Golak Nath Case AIR 1967 SC 1463 -Kesavanahda Bharathi Case AIR 1973 SC 1461, Waman Rao's Case AIR 1981 SC 271 and & Minerva Mills Case AIR 1980 SC 1789.

In Ram Adhar Singh v. Bansi AIR 1987 SC 987 it was held that matters once concluded by the doctrine of stare-decisis regarding rights of occupancy of tenants could not be re-opened as it would not only unsettle the law which has stood the test of time but may have the effect of re-opening transactions past and closed and unsettling titles. In Bachan Singh v. State of Punjab, AIR 1982SC 1325 if the rule of state-decisis were followed blindly and mechanically, it would dwarf and stultify the growth of the law and effect its capacity to adjust itself to the changing needs of the society. In M/s Amarnath Omprakash v. State of Punjab AIR 1985 SC 218 at 227 it was laid down as follows:

"A case is only an authority for what it actually decides and not what may seem to follow logically from it." This being the trend of decisions of the apex court it is to be stated that the High Court of Kerala had occasions to test the doctrine of Stare-decisis in the following decisions.

In Anthuman v Kannan 1960 KLT 1313 (F.B). it was held that the law is not always logical and a principle enunciated with respect to certain circumstances cannot always be carried out to its logical conclusion and applied to analogous circumstances. In Esaya Nelson v. Adichan Nadar Lakshmanan Nadar (1963 KLT 878, F.B) Madhavan Nair, J quoting Salmond on Jurisprudence observed:

"A decision passes sub silentio in the technical sense that has to be attached to that phrase, when the particular point of law involved in the decision is nor perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown however that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, decision is not an authority on point B. Point B is said to pass Sub Silentio."

Hence decision Sub Silentio is not an authority. In Mathai Abraham v. Koshi Koshi, 1958 KLT 83 at 84, a judicial decision on a question of law is not a piece of legislation but only an exposition or correct interpretation of what the Law on the subject is. The fact that there was a previous judicial decision in which another view was taken in the later decision a fresh piece of legislation. The latter decision only says what the correct law is and amounts in effect only to a pronouncement that the earlier case was decided wrongly. In State v. K. Kesavan 1958 KLT 934 it was held that Malabar area was within the jurisdiction of the Madras High Court. Naturally, therefore, a court in that area was bound to follow the decision of the Madras High Court irrespective of any consideration that on identical question a different view has been taken by a different High Court. In Sankaran Namboothiripad v. Parameswar Nambuthlri, 1958 KLT 1005 it was held that courts do not enact new Laws or change existing laws. Their decisions are only declarations as to what is the existing law or expositions of the same. In Dharma Das v. State Transport Appellate Tribunal. 1962 KLT 505 (FB), the Regional Transport Authority, Kozhikode granted a stage carriage permit rejecting the application of 3rd respondent. He challenged the correctness of the order before the Slate Transport Appellate Tribunal. The STAT set aside the order and remanded the case to the Regional Transport Authority. It was held that decisions made under one enactment can in the very nature of things be of little or no assistance for the decision of the question under another enactment. In S.M Thirumala Devaswom v. Land Tribunal 1993 (1) KLT 619 it was held by Sreedharan, J. that Land Tribunal has no jurisdiction to issue an order of injunction. Consistent view taken for a long period should be presumed to be settled and not proper to depart from settled position.

In Ouseph v. Joseph 1987 (2).KLT 228 it was held that only an issue that was pointedly considered and disposed of would constitute a binding dicta. To put it differently, only deliberate expressions of opinion given after consideration of facts and Law and not 'judicial opinions' by the way, which will be only a mere 'aside' and not one of the links in the form of reasoning, would constitute a binding dicta. In Chandran v. Excise Inspector(1989 (2) KLT 845, it was held that when judgments of the Superior Courts are of co-equal Benches and therefore, a matching authority, then their weight inevitably must be considered by the rational and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. In Raghava Nadar Reghu v. State 1988 (1) KLT 156 a Division Bench of High Court observed as follows:

"Precedents are quoted because the practice has got a peculiar fascination. If a judge feels to accept the precedent quoted, it gives him a way of escape. It relieves him of the difficulty to think for himself or even decide for himself. He feels that the matters to be considered have already been decided, by the previous authority. Anyhow, precedent is the Law only in regard to certain binding principles. In regard to facts decided in the precedent it will have its own peculiarities and we have to remember that facts can never be alike in any two cases, however alike they may seem."

In Narayana Moopan v. Sureshan, 1985 KLT SN 22 Case No.33, Varghese Kalliath, J. observed:

"Precedent is the life blood of legal system, so it is said and we take this to convey the common sense idea that similar cases are decided similarly. The final type of reason offered in favour of a rigid doctrine of Stare-decisis is that it offers to litigants some measure of certainty about the likely outcome of a case and certainty in the Law is what is most fair and just. I should also remember that aphorism that in the decision process the courts are dominantly coerced not by the essays of their predecessors but by a surer thing - by an intuition of fitness of solution to problem. General prepositions do not decide concrete cases and the life of the Law has not been logic; it has been experience." In Mathew Antony v. State of Kerala, 1991 (2) KLT 213, it has been held that though the former decision which has become final interparties may continue to bind the parties thereto, when the Law is changed and cause of action becomes different, the new Law will have to be applied to the facts in the subsequent case even though facts are same because the Law applicable is different.

In Collector of Customs v. State of Kerala (1993 (1) KLT 850) at p.851 it was held that a decision rendered per incurium is one in which a statute or rule having statutory effect is not brought to the notice of the court or the decision is given in ignorance of a decision which is binding on the court. The fact that the earlier decision was rendered as an advisory opinion on a reference under Art. 143 of the Constitution does not whittle down its binding nature. In Rugminiamma v. Raman Plllai, 1993 (1) KLT 80, Balasubramanyan, J. laid down that in the case of conflict between two decisions of the Supreme Court, the court has to follow the decision that is rendered by more number of judges.

In Valsamma Paul v. Cochin University 1992 (1) KLT 436 it was held that when the operation of (he judgment of the High Court is generally stayed by Supreme Court, the judgment is not binding upon the respondent and the principle in 1981 KLT 24 that on marriage the girl becomes the member of the community of her husband need not be followed. In Excel Glasses Ltd. and others v. State of Kerala, 1992 (1) KLT 121 Padmanabhan, J. observed:

It is in order to guard against the possibility of inconsistent decisions on parts of Law by different Benches that the rule has been evolved, in order to promote consistency and certainty in the development of Law and its contemporary status, that the statement of Law by one Bench is binding on another of the same or lesser number of judges. The principle was evolved by several generations of judges, what is binding under Art.141 is only the Law declared by the Supreme Court. Doubts or assumptions without any decision in a judgment on a matter which did not arise for consideration could only be obiter and not declaration of Law under Art.141 of the Constitution. Even though the Obiter dicta of the Supreme Court is also binding on High Courts, when there is a binding decision to the contrary position is different. Even if the strength of the two differing Benches constituted, the same number of judges, it is not open to one Bench to decide the correctness or otherwise of the views of the other. As between a direct decision and Obiter dicta in another decision, it is definitely the former one that would prevail. Even conceding that there are conflicting decisions, in such a situation, it is open to the High Court to choose as to which should apply to the case before it.

Some of the Full Bench decisions of our High Court require special mention. In Kochappi Kunji v. Velayudhan Damodaran, 1970 KLT 610 (FB) following the decision in AIR 1964 SC 1099 it was held that the principle of Stare-decisis is nothing more than a precipitate of the notion of legal justice and should not be permitted to perpetuate erroneous decisions. In State of Kerala v. Vasudevan, 1974 KLT 617 (FB), it was held that judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even Obiter dictum of the Supreme Court should be accepted as binding declaration of Law by that court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that court would be attracted by Art. 141. Statements on matters other than Law have no binding force. As on facts no two cases could be similar decisions of Supreme Court which are essentially on question of fact could not be relied upon as precedents for decisions of other cases.

The above contributions of the High Court of Kerala to the doctrine of Stare-decisis are really remarkable to one who studies the jurisprudential significance of judicial process.