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.

Identity Cards to Voters E.C.'s Directive — Without Jurisdiction

(T.P. Diaz, Advocate, Thrissur)

As it is reported, that a meeting of State Chief Ministers, convened by the Union Home Minister, on 19lh of January, 1994 has expressed their willingness to implement the "Photo identity card scheme" in a phased manner - as it is the "general consensus" emerged at the meeting. But the Chief Election Commissioner rejected the suggestion made by the conference and reiterated that he would stand by his decision of not holding elections in the country after January 1st, 1995 if the scheme is not implemented before the stipulated time and explained in his "usual ebullient and eloquent style" that the scheme "cannot be phased, it will have to be faced", (as reported by The Hindu dated 21-1-94) Here an attempt is made to face it legally on the basis of Articles of the Constitution, sections of the Representation of the People Act, Registration of Electors Rules, 1960, Conduct of Election Rules, 1961, Precedents and decisions of the Supreme Court.

Article 324 of our Constitution confers full powers on the Election Commission, in matters of superintendence, direction and control of the preparation of the Electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President. Now, the question that gathers momentum at present, or dealt with in this article, is, since the commission being a creature of the constitution whether it can exercise its powers so as to supercede the provisions and Rules framed thereunder for the conduct of Elections.

Articles 327 and 328 of the Constitution specifically confer on the Parliament and Legislatures of States, powers to make provisions with respect to all matters relating to or in connection with elections to either House of Parliament or Legislature of State respectively, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

From the above summary of the provisions of Law, it can be seen, the powers conferred on the Election Commission, can only be supervisory in nature and no authority to make law has been conferred on it. Whereas, it is abundantly made clear, the authority to make provisions for the conduct of elections, vests with the Parliament and State Legislatures. The powers of the commission under Art.324, shall in no way, supercede the provisions of the Representation of the People Act, Rules and conduct of Election Rules framed thereunder. The powers of the commission have been calculated only "to supplement rather than supplant" the law in the matters of superintendence, direction and control, as provided by Art.324. But the Legislative Authority or Power conferred on the Parliament and Legislatures, have been once again bed-rocked, when included under Entry 72 of List I (Central List) and Entry 37 of list II (State List) of the seventh schedule appended to the constitution. But the exclusive jurisdiction of the commission to execute in regard to matters, imparted to it as couched in the Act and Rules, cannot be challenged.

But the Plenary powers of the Commission can be exercised, where this Act or Rules, are silent with regard to matters for the safe and smooth conduct of election. Here looms large the question whether the Acts or Rules adumbrate any method, to identify the voters in case of any dispute arises.

Sections 40 to 51 of the Representation of the People Act (43/51) deal with provisions regarding the appointments of Election Agents and Polling agents. S.49 empowers the polling agents to perform such functions earmarked by the Rules framed thereunder. Conduct of Election Rules (1961), Rules 12 & 13 deal with the appointments of Election and Polling Agents, respectively. Rule 35, contemplates "the identification of electors", thus:—The Presiding Officer may employ at the polling station such persons — to help in the identification of electors. Here "such persons" mean Election and Polling Agents (for their appointments also, Rules, Notification, qualifications etc. prescribed) who are armed to help officer in the identification of the electors, even by "challenging" the identity of an elector (Rule 36) which will lead to a summary trial even. Rule 35(3) says, where the Polling stations - the Electors of which have been supplied with identity cards under R.28 of the Registration of Electors Rule. 19,60, "the elector shall produce his identity card". It is evident from this that Parliament has not resolved to identify electors by means of an identity card. The Legislature has very cautiously empowered the Election Commission only to introduce the card system for Registration under R.28 of the Registration of Electors Rules, 1960; and significantly not under the Conduct of Election Rules, 1961. And that too, to be confined to certain polling stations only after due gazette notification. This will bear ample testimony that the Legislature has not even intended to introduce it as a method for identifying the electors for the whole Nation, nor intended to supersede the General, time-honoured practice of identifying the electors by the Polling Agents, as covered by the statutes and rules.

This method of identifying electors by agents may not be so fool-proof, as the photo identity card system. But the question is whether the Election Commission can change it? The Commission is not free to issue any directive which will have the effect of amending, Act or Rule in this regard enacted by Legislative Bodies. A mere reading of S.61 of the Representation of People Act, on which the commission hangs upon now, will convince that Rules are yet to be framed for preventing personation of electors. Section 61 reads thus, "with a view to preventing personation of electors provision may be made by rules made under this Act";— 61(b) "for the production before the Presiding Officer or a polling officer of a polling station by every such elector as aforesaid of his identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the R.R. Act (43 of 1950) electors of the constituency in which the polling station is situated, have been supplied with identity cards with or without their respective photographs attached thereto;" Section 169 of the same Act (43 of 1950) empowers the Central Government to "make rules for carrying out the purposes of this Act", of course after consulting the Election Commission. Then how does the Election Commission assume jurisdiction?

Our Supreme Court had occasion to consider an identical position in an Election case. (A.C. Jose v. Sivan Pillai Reported in AIR 1984 S.C. 921; 1984 (2) SCC 656, 1984 KLT 510). Supreme Court reversing the decision of the Kerala High Court, quashed the Election Commissioner's Notification directing the use of voting machines in some polling stations and further held that the Notification was issued by the Election Commission without jurisdiction. The method of voting in India, has been contemplated by "Ballots" only (Rules 49 of Conduct of Election Rules and Section 59 of the Representation of People Act) and the Notification for the use of voting machines was contrary to the provisions of Act and Rules and so held without jurisdiction. Similarly the present direction by the Election Commission also is contrary to the provisions of the Act and Rules, in so far as the "ratio decidendi" of that decision, still holds good.

There is no difference of opinion from any quarters regarding the introduction of identity card scheme. The mal-practice of impersonation should be curbed at any cost. Compared to the vast ocean of electorates in India, the number of cases of impersonation is negligible. Does the Election Commission consider all the Indian voters are malpractitioners so as to carry identity cards? Will the benefit or purity of identity, derived by the card system, commensurate with the exorbitant financial drain on the Exchequer, at least, at this juncture of the financial crisis of the Nation? Ignore the possibility of forged identity cards. Still the suggestion has been accepted by all concerned. Why can't its implementation be stopped then for some time? Atleast till the Parliament frames rules in this regard. Why should the Election Commission show undue haste to transgress into the Legislative sphere exclusively kept apart for the Lawmaking Bodies, especially when our Supreme Court has decreed that the Election Commission shall not act as a "third chamber in the Legislative process"?

A Comment on 1994 (1) K.L.T.141

(By E.K. Ramakrishnan, Advocate, Payyannur)

After the advent of the Kerala Court Fees and Suits Valuation (Amendment) Act, 1991 (Act 6 of 1991) which came into force with retrospective effect from 5-12-1990, the litigant public are benefited considerably. The amendment Act was the result of a long pending demand for abolition of court fee.

It is clear from the Amendment Act that, the intention of the legislature was to minimise the financial liability of the litigant by reducing the rates of court fee. By the insertion of S.4A and proviso to S.52 to the Principal Act, the financial burden of a litigant to institute/file a suit or appeal has been further minimised.

But the decision rendered by His Lordship Mr. Justice K.P. Balanarayana Marar in State Bank of India v. Iqbal Zacharia, (1994 (1) KLT 141) is a set back to one of the beneficial aspects of the Amendment Act.

Section 4A reads thus:

"Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one tenth of the amount of fee chargeable under this Act and the balance amount 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. Provided that the court may for sufficient reasons to be recorded in writing extend the period upto 30 days. Provided further that if the parties settle the dispute within the period specified or extended by the court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance."

According to the 2nd proviso "if the parties settle the dispute" the plaintiff need not pay the balance nine-tenth court fee. The outcome of a settlement of dispute by the parties would be (1) Dismissal of the suit as it is not pressed or withdrawn by the plaintiff (2) Decreeing the suit solely on the admission of the defendant or (3) a compromise decree as contemplated in Order 23 R.3 of CPC.

As per S.4A, the time to pay the balance court fee is fixed solely on the basis of framing of issues.

Issues need be framed only in cases where the plaint claim is denied or disputed by the defendant. If the defendant disputes the plaint claim, the plaintiff is bound to pay the balance 9/10 court fee within the prescribed extended time after the framing of issues.

On the other hand, if the defendant is ex-parte or admits the plaint claim, there is no question of framing of issues. Though in both cases there is no framing of issues, the situations are somewhat different, i.e. it is a settled rule of law that if a defendant does not appear and answer the plaint claim as provided under C.V Rule 1 of C.P.C., the presumption is that he admits the plaint claim. So an ex-parte decree is the result. But that decree is not final as it can be set aside. But if the defendant entered appearance and admits the plaint claim, the normal meaning is that there is no dispute between the parties to be investigated by the court. A decree solely on the admission of the defendant is the result. That decree is final too.

As such, it is clear that in the case of an ex-parte decree there is no settlement of dispute by parties. But a decree solely on the basis of the admission of the defendant is the result of a settlement of dispute between parties.

As an exparte decree is not the result of a settlement of dispute by the parties as contemplated in the 2nd proviso to S.4A of the Act, the plaintiff is bound to pay the balance court fee. As I mentioned above, in this case also there is no necessity of framing the issues. Anticipating this situation it is stated in S.4A" or where framing of issues not necessary". Hence even in a case in which framing of issues is not necessary as the defendant is exparte, the plaintiff is bound to pay the balance court fee, obviously for the reason that the dispute is not settled by the parties.

A compromise decree also is the result of settlement of dispute by the parties. So in that case also, the plaintiff need not be called upon to pay the balance court fee. But the stage of reaching the compromise has got relevance while determining the balance court fee. A compromise can be entered into at any stage of the suit. If the compromise is reached atleast before the framing of issues, definitely the benefit of S.4A can be granted to the plaintiff. Whereas if the compromise is reached after the framing of issues, definitely the balance court fee should be paid by the plaintiff. Then his recourse is to invoke S.69 of the Act for getting the refund of half the court fee.

The term "admission of the parties" depicts a situation where there is no dispute between the parties. In such circumstance the suit is decided without conducting any enquiry because there is no dispute to be enquired into. In other words, admission of the plaint claim tantamounts to settling the dispute between the parties. If S.4A is interpreted in its plain language, the plaintiff need not pay the balance court fee if the defendant is admitting the plaint claim.

After the amendment Act, the operation of S.69 is confined only after the framing of issues or rather after the payment of the balance 9/10 court fee. As per S.69, when a suit is compromised or when a suit is decided solely on the admission of the parties without any investigation, half the court fee is to be refunded. From the plain interpretation of S.4A and the provisos, it is clear that the compromise and admission of the parties mentioned in S.69 is pertaining to a compromise or admission after the payment of the balance nine-tenth court fee.

The proviso to S.69 says that" provided that no refund shall be ordered where only one-tenth of the amount of fee on plaint as required by S.4A or one-third of the amount of fee on memorandum of appeal as required by S.52 has been paid by the parties".

If S.69 is intended for all compromises and admissions irrespective of its stage, there is no necessity to incorporate the proviso to the section by way of the amendment Act.

So in my humble view, the decision of the learned Single Judge requires a reconsideration by a larger bench.

About Jurisdiction and Compensation in

Cheque Cases — the Need for Amendment

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

(Joseph Thattacherry, Advocate, Changanacherry)

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

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

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

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

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

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

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

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

Sidelights on 'Contempt'

(T.G. John, Advocate, Thrissur)

"The Karachi Bar Association has learned with grant regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Rafique, Barrister-at-Law, and to an outstanding member of this Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a Bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the Courts will be undermining foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949 at a meeting of the Karachi Bar Association the-above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949 the "Dawn" a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the Court. Tyabji C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument of expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into 'contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Sayed Ahmed Refique, the President of the Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his Judgment in Reg v. Gray (1900 2 Q.B.36). It has been made clear by his Lordship that any act done or writing published calculated to bring a Court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In A.I.R. 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court judgment in. E.M. Sankaran Namboodiripad v. Narayanan Nambiar (1970 KLT 588), Hidayattulla C.J. observed. "The spirit underlying Article 19 (1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactments upto 1971. It would have been highly salutary that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.