The Art of Distinguishing

(By C.M. Abraham, Advocate, Ernakulam)

Whether the authorised officer as mentioned in the N.D.P.S. Act, on getting information that a person is selling ganja at a particular place and immediately proceeding with police party to that place of alleged sale of ganja and finding a person standing there and arresting him is an arrest under S.41(2) of the Act or not is the substantial question of law.

In AIR 1995 SC 244, Alimusthafa v. State of Kerala our  Supreme Court held that in view of the law laid down in Balbir Singh's case, AIR 1994 SC 1872, there has been violation of S.50 of the Act and consequently the conviction of the appellant cannot be sustained. The appeal was allowed and the conviction and sentence was set aside. It agreed with the finding in AIR 1994 SC 1872 in the real spirit.

In AIR 1994 SC 1872, State of Punjab v. Balbir Singh, our Hon'ble Supreme Court held that S.41(1), (2), and 42(1) are mandatory in nature. It also held that on prior information the empowered officer acting under S.41(2) or S.42 should comply with the provisions of S.50 and that the provisions of S.50 are mandatory. In sub-para.5 of para.26, it was observed that:— "on prior information the empowered officer or authorised officer while acting under Ss.41(2) or 42 should comply with the provisions of S.50 before the search of the person is made and such person should be informed that if he so requires he shall be produced before a gazetted officer or the magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires fails to take him to the gazetted officer or the magistrate would amount to non compliance of S.50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed such person opted for such a course or not would be a question of fact".

It was also held that (para.17):— "It must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so desires to be searched before a gazetted officer or a magistrate. To us it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate, if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused, to afford such an opportunity to the person to searched he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right".

Now the crucial thing is the way in which these decisions are followed or distinguished by our Hon'ble High Court, In 1995 (1) KLT24 the decision in Balbir Singh's case has been relied on following that acting under S.41(2) or 42 of the Act the empowered officer or the authorised officer should comply with the provisions of S.50, before the search of the person is made, and such person should be informed that if he so requires, he would be produced before a gazetted officer or a Magistrate as provided thereunder. But in the same decision, the decision in Alimusthafa v. State of Kerala has been distinguished by holding that in the case of a seizure under S.43 of the Act, the conditions prescribed in S.50 cannot be said to be mandatory, and that the authorised officer or the empowered officer has to comply with the provisions contained in S.50 of the Act only if the person makes a request and oh such request being made, he shall be produced before a gazetted officer or a magistrate as provided thereunder. Going away from the decision in Alimusthafa's case to the extend that if the arrest is under S.43, it is not obligatory on the part of the officer to inform the person of his right under S.50 of the Act, as if it was an arrest under S.43.

In paragraph 12 it is observed as follows:— "Counsel for the appellant has drawn attention to the decision of the supreme Court reported Ali Muthafa Rahman Moosa v. State of Kerala, 1994 (2) KLT 864 = 1994 (6) SC 326). There in the Supreme Court agreed with the observations contained in para.17 of Balbir Singh's case. At the same time, the request made by the counsel for the State of Kerala for a reconsideration of the decision in Balbir Singh's case was turned down by observing that there are no compelling reasons advanced by counsel for the State of Kerala for reconsideration of that decision. It may be that the Supreme Court in that case was considering the mandatory nature of the requirement in S .50 of the Act in case of a seizure under S.43 of the Act, the seizure made from the first class waiting room of the railway station. But the Supreme Court in mat case had followed the law laid down in Balbir Singh's case and has also refused to reconsider that decision. It therefore follows that the principles laid down by the Supreme court in the conclusions set out in para.26 of the decision in Balbir Singh's case are to be followed while considering the mandatory nature of S.50 vis-a-vis Ss.41, 42 and 43. The decision in 1994 (2) KLT 864 = JT1994 (6) SC 326 is therefore of no assistance to appellant".

In 1995 (1) KLJ 456, Suresh v. State, it was again held that in the case of arrest under S! 43 of the Act, the conditions prescribed under S.50 are not mandatory.

Now the crucial point is to classify arrest into arrest under Ss.41,42 and 43. The test to check whether an arrest is under Ss.41,42 or 43 is the understanding of the sections and facts and circumstances of the cases. Now before carefully referring to the sections, let us try to watch the facts of the cases.

AIR 1995 SC 244

On 12-10-1988 at about 11.15 p.m. the accused was found in possession of 780 Gms. of charas in the first class wailing room, of the railway station, Quilon. PW6, S.I. had got reliable information about it. He went there, met PW 1, constable who was on patrol duty. Both went to the first class wailing room, accused was found sitting there with a bag, questioned him, seized the contraband - mahazar prepared and the accused was arrested. (According to me it is an arrest under S.41(2) as the authorised officer proceeded and arrested on getting prior information). The Hon'ble Supreme Court was pleased to set aside the conviction as S.50 was violated.

1995 (1) KLT 24.

While the C.I. of Police, Perinthalmanna and other police officials were on patrol duty at 5 a.m. on 9-12-1990, they found the accused standing with a bag on the north-eastern corner of the verandah of the K.S.R.T.C. bus stand at Perinthalmanna. On suspicion seized the bag, found 1.2 kgs. of ganja. Mahazar was prepared and the contraband article was taken into custody. (According to me it is an arrest under S.43 as the C.I. had no prior information).

1995 (1) KLJ 456

S.I. of Kozhikode City Detective Crime Records Bureau found the accused near the bus stop of Pottammal possessing 3.500 gms. of brown sugar in a packet kept inside a wills cigarette packet kept in the girdle knot of his mundu. The S.I. had received information at about 7.40 p.m. on 31-10-1990, that brown sugar was being sold near the bus stop. In pursuance to that information, the S.I. went to the spot and saw the accused standing near the bus stop. Mahazar prepared article seized-accused arrested. (According to me it is an arrest under S.41(2) and is identical to the case of Ali Musthafa v. State of Kerala).

Now, let us see what the sections say. Chapter V of the Act deals with the procedure of detection, arrest and investigation of offences punishable under the Act. Ss.41 to 68 clearly set out the mode in which investigation is to be carried out. Ss.41, 42, 43 and 44 clearly describe the mode of effecting arrest of persons and seizing the contraband. S.50 clearly state how a search should be made. The express provisions of law made by the legislature has to be taken in tune with the intention of the legislature.

The mere fact dial the place happened to be a public .place alone cannot be the criteria to hold that it is an arrest under S .43. The circumstances and the particular features are also relevant. To let the cat out of the bag, the word "place" used in S.41, 42, and 43 is to be understood. The word "place" should be well defined and explained. In S.42 the word place is supported by an adjective "enclosed". In S.43, the word place is supported by the adjective "public". In S.41 only the word place is used. I feel that in S.41, the word place means and includes both enclosed as well as public place.

A heading "POWER TO ISSUE WARRANT AND AUTHORISATION", has been given to S.41. Heading is given for easy catch of mind as-to what the section is intended for. When a heading is given to a Section the words used in the heading will not and need not necessarily convey the whole meaning or idea contained in that Section. It will contain only the main point.

Hence it cannot be felt that as the heading is ‘power to issue warrant and authorisation', the section doesn't or can't go beyond the scope of the heading, especially when there is clear cause in the section itself.

The words 'or himself arrest a person or search a building conveyance or place' has been included in S.41(2) so as to enable the authorised officers to arrest a person who has committed an offence punishable under Chapter IV of the Act, on and only on getting information given by any person or if he has reason to believe from personal knowledge. Of course, S.41 is intended to serve the purpose also of enabling the authorised officers to an authorise his subordinate officers to arrest a person or search a building, conveyance or place. When the authorised officer is unable to do it himself, due to some reasons, he can authorise his subordinate officers to that end. S.42 is intended to arrest a person and seize the contraband article from any building conveyance or enclosed place, without warrant. S.43 is to enable the authorised officer to check suspected persons and arrest if required on occasions other than contemplated in Ss.41 and 42. The words "or on information given by any person and taken down in writing" is seen omitted in S.43. The intention of the legislature to omit these words in S.43 is to enable an authorised officer to detain, search and arrest a person if he has reason to believe that an offence punishable under Chapter IV has been committed. It gives the power to an authorised officer to check suspected persons which very often happen during patrol or during the investigation in other crimes. In cases where he has information from any person then he should take it down in writing and should proceed only in accordance with S.41(2). In cases where the authorised officer deposes that he got information and proceeded and arrested, it should be taken as an arrest under S.41(2).

Suppose a magistrate comes to know that a person is selling ganja on a public road and dial the authorised officers are not arresting him, won't the magistrate issue warrant to arrest him? Or will he hold mat as it is a public place, it comes under S.43 and so only the authorised officers should take steps?

In this context, it is pertinent to note the lay of certain words put in Ss.41, 42 and 43. In S.41 - arrest first, then search. In S.42 - enter, search, seize and arrest. In S.43 - detain, search and arrest. So when you have prior information, you arrest first then search; whereas when you have no prior information, but have suspicion, you detain a person, search him, seize the contraband and arrest him. The in tendon of the Legislature is very clear, or as the Supreme Court said I would say that the language is very clear.

Now the difficulty is this:— If an authorised officer wants to trap a person, he can arrest him and produce him before a magistrate and say that the arrest is under S.43. He will be in trouble. The present law cannot save him, even if he innocent. This is not what the legislature intended. Even if thousand accused are set free, an innocent should not be punished. Are we anywhere near this principle in the context of the present posidon of law as interpreted and established now?

It is pertinent to note the facts in Crl. Appeal 328 of 1994 (decided on 16-2-1995) (not reported). On 29-12-90, at 17.30 p.m. on information that sale of ganja is being conducted on the southern side of the railway gate, near Meenchanda, Kozhikode, PW. 1, the C.I. of Police Kasaba and party proceeded to the place and found both the accused standing there on the roadside at 17-40 pm; conducted search, recovered 70 gms. of ganja from CM. Mammu (died pending trial) and 60 gms. of ganja from the accused (Raveendran), kept in the waist of their cloth, seized - arrested.

The learned I. A. Asst. Sessions Judge, Calicut, held on the mandatory section, S.50 as follows:— "Under S.50 for seizing the material, the accused should be produced before a gazetted officer or to the nearest Magistrate. PW.1 deposed drat he is a gazetted officer. Since he is a gazetted officer, the above provision is complied with. "PW1, the C.I. who seized the contraband admitted that as he is a gazetted officer, he did not ask the accused whether he should be taken before a gazetted officer or magistrate. In Crl. A. 328/94, at the time of final hearing, it was pointed out that the gazetted officer contemplated in S.50 is a gazetted officer other than the authorised officer who seizes the contraband. Of course everybody knows that. There it was held that the place was a public place and so S.50 is not mandatory. If it was an arrest under S.43, PW, 1 should not have uttered in the witness box that he got information that two persons were selling ganja at the place of offence and" it should not have been shown in the first information statement. In such a case where he deposes that he got prior information, the presumption must be that it was an arrest under S.41(2). When there is evidence to show that the arrest was under S.41(2) it becomes his obligation to inform the accused of his right under S.50, which he admits that he did not.

In 1995 (1) KLT 57, Mohanan v. State of Kerala, in para.7 it is observed as follows:— "The prosecution has no case that the provisions of S.50 had been complied with. True no request might have been made by the accused that he should be produced before the nearest gazetted officer or the nearest magistrate. But in view of the law laid down in Balbir Singh's case, it is obligatory on the part of PW4 to inform the accused of his right to be searched in the presence of a gazetted officer or a magistrate. Nothing is seen spoken to by him on this aspect. The requirement of S.50 having been held to be mandatory, the non-compliance vitiates the trial. For that reason the conviction entered against the appellant has to be set aside."

This very finding of the very same learned Judge was also pointed out at the time of final hearing of Crl. A. 328/94, in which PW .1 the authorised officer himself deposed that the did not inform the accused as to his right to be searched in the presence of a gazetted officer or magistrate. However, in Crl. A. 328/94; the conviction was upheld though the sentence of Rs.2000 fine or imprisonment for one year was reduced to Rs.2000/- fine or imprisonment for 3 months.

It seems to my little sense that the law laid down in 1995 (1) KLJ 456 (Suresh v. State) and the decision in Crl. A. No.328/94 requires reconsideration, as they are in conflict with the decision laid down in State of Punjab v. Balbir Singh, AIR 1994 SC1872 and Ali Musthafa v. State of Kerala, AIR 1995 SC 244. The decision in 1995 (1) KLT 24, though strange from the above said findings of the Hon'ble Supreme Court, as it was an arrest under S.43, from a public place and as there was no prior information could be correct to that extend, to which it is distinguished. But a mere reading of S.50 shows that the intention of the legislature in safeguarding the interest of the individual is taken away.

1988 (2) KLT 871 or 1995 (1) KLT 51 which will prevail?

(P. Vijayaraghavan, M.Sc, L.L.B., Advocate, Alappuzha)

1. Identical facts in two cases wherein entirely different views have been taken by the Division Bench of the Hon'ble High Court putting the claimants and the Tribunals in confusion. Which one is the correct proposition of law and which one is to be followed is the question in dispute.

2. In 1988 (2) KLT 871, the case arose out of an accident in which a stage carriage and a taxi jeep collided resulting in injuries to some of the passengers in the * Jeep. One such occupant of the Jeep preferred a Claim Petition for compensation before the M.A.C. Tribunal against the driver, owner and insurer of the stage carriage. The Tribunal held that the drivers of both the vehicles were negligent in causing the accident and their negligence was apportioned in the ratio 75:25. The driver, owner and insurer of the taxi jeep were not on the party array. The Tribunal in its award held that it was a case of composite negligence and drivers of both the vehicles were negligent and therefore they were jointly and severally liable to pay the entire compensation. The insurer of the stage carriage took the matter in appeal and the High Court in United India v. Varghese (1988 (2) KLT 871) held that "in a case of composite negligence the injured has the option to proceed against all or anyone of the joint tortfeasors. He can therefore enforce the claim impleading only one of the joint tortfeasors.lt was further observed by the Division Bench that "if one of the number of joint tortfeasors or of several tortfeasors causing the same damage is alone sued, he is liable for the whole damages though he did but a small part of it". The appeal filed by the Insurance Company was accordingly dismissed.

3. But in National Insurance Company Ltd. v. Sivasankara Pillai-1995 (1) KLT 51 the Hon'ble High Court took an entirely different view though the facts were almost identical and the question in dispute was also substantially the same. In 1995 (1) KLT 51 also 2 vehicles, one lorry and another trekker collided together and as a result some of the occupants of the trekker sustained injuries. They tiled petitions for compensation before the Tribunal against the driver, owner and insurer of the lorry. The driver, owner and insurer of the trekker were not made parties in the proceedings. The finding of the Tribunal was also the same. Here also the Tribunal fixed the negligence at 75:25 in respect of the drivers of the lorry and the trekker respectively. The Tribunal held that it was a case of composite negligence and the insurer of the lorry was directed to pay the entire compensation and was allowed to recover any excess amount paid from the insurer of the trekker. Aggrieved by the finding the National Insurance Company Ltd., which was the insurer of the lorry filed an appeal. While allowing the appeal the Division Bench held "in the case of contributory negligence the injured/claimant as well as the tortfeasor, both should have contributed to the accident through each party's separate negligence. In such case the liability of (lie tortfeasor gets slashed down in proportion to the negligence contributed by the Claimant. But in the case of joint tortfeasors there is no contribution from the claimant in the tort. Separate act or acts done by separate tortfeasor must either have been in concert between each other or towards a common design resulting in the tort to make all of them joint tortfeasors. But in the case of several tortfeasors there is neither concert nor any common design though each person's independent wrongful act or omission would have resulted in one "damnum". In a motor accident resulting from rash and negligent driving of more than one vehicle, the drivers of all the vehicles are several tortfeasors whose separate independent act of rash and negligent driving of the respective vehicles resulted in a common harm or injury. In the light of the contentions raised in these appeals the drivers of the trekker and lorry were several tortfeasors and not joint tortfeasors. That being so, we do not think that appellant can be made liable for the percentage of the negligence attributed to the driver of the trekker. Since the Tribunal has found that negligence on the part of the driver of the lorry is 75% the liability of the driver, owner and appellant insurance company has to be limited to that extent only of the total damages assessed by the Tribunal".

4. In short the gist of the ruling (1995 (1) KLT 51) is that in cases where two vehicles were involved in an accident, it cannot be said that the drivers of the vehicles are joint tortfeasors but are several tortfeasors because of the absence of concert between each other or absence of a common design.

5. If concert between the common design are given a wider interpretation i.e., two drivers driving the vehicle negligently knowing that their negligent act would cause an accident and are going to commit a wrongful act, both of them have the common design in mind to cause an accident, then there is an implied concert between them, having a common design for them. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (AIR 1987 SC 1184) the Hon'ble Supreme Court held "in order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same.....Such a benign provision enacted by the legislature having regard to the fact that in modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective".

6. The important question in fixing the liability and negligence in cases where two vehicles are involved in an accident as a result of a collision is whether the accident occurred as a result of composite negligence or as a result of contributory negligence. When a person dies or is injured without any negligence on his part but as a result of the negligence on the part of another person or due to the combined negligence of 2 persons it is a case of composite negligence and not a case of contributory negligence. This is a well settled position in the law of tort. There is no dispute regarding the principle of composite negligence in 1988 (2) KLT 871 and 1995 (1) KLT 51. Inpara.6 of 1995 (1) KLT 51, it is stated: "At this stage we wound.....But in the case of joint tortfeasors there is no contribution from the claimant in the tort".

So, when there is absolutely no contribution from the side of the Claimant to the cause of accident, and the accident occurred as a result of the negligence of two other persons, it is a case of composite negligence, and if it is a case of composite negligence the wront doers are joint tortfeasors. Thus if they are joint tortfeasors the person wronged has a choice to proceed against all or anyone of the wrong-doers.

7. Further it was held by various High Courts that in such cases of composite negligence the Court can only apportion the negligence of the wrong-doers and their liability to pay compensation should not be apportioned. Rule of apportionment of liability applies only in cases of contributory negligence, i.e., when the injured himself is also a guilty of negligence (Manjula Devi Bhatl v. Manjusree Raha. 1968 ACJ 1); Rama Bai @ & Meenakshi v. H. Mukhanda Kamath (1986 ACJ 561 Karnt); Karnataka State Road Transport Corporation v. Krishna (AIR 1981 Kant. 11); Galak Chandra Das v. Kanhalya Nayak (1978 ACJ 48 Ori.); Kundan Bala Vora v. State of UP (AIR 1983 All. 409).

8. It is submitted that the decision in 1988 (2) KLT 871 and 1995 (1) KLT 51 are conflicting. In case involving collission of two vehicles, if the claimant relics on 1988 (2) KLT 871 and impleads only (lie driver, owner and insurer of only one vehicle and the insurance company relics on 1995 (1) KLT 51 which is favourable to them, it would be very difficult for the Tribunal to pass an award accepting one decision and discarding the other. Further if 1995 (1) KLT 51 is followed, in motor accident cases the principle of joint tortfeasorship comes into application in cases wherein a vehicle is driven jointly by two drivers and their joint negligent act resulting in an accident and a third party sustains injuries or dies.

9. If 1995 (1) KLT 51 is followed there will be yet another embarrassing situation to the Claimant. For instance in a case where two vehicles are involved in an accident causing injury to a third party claimant, and the claimant himself gives an FIS before the concerned Police authorities stating that the accident occurred on account of the negligent act of one of the drivers alone and in pursuance to his statement the police after investigation files charge sheet only against that driver. In such a case the injured claimant would be precluded from filing a claim petition before the M.A.C.T. impleading both the drivers eventhough according to him one of the drivers is not negligent. So, if the Tribunal ultimately finds that it is a case of composite negligence, the Claimant will not be able to recover the entire compensation from the tortfeasor who is already on the party array. This will deprive the claimant from recovering sometimes a major portion of the damages to which he is otherwise entitled to. The tortfeasor thus escapes from his liability. But if 1988 (2) KLT 871 is followed he can recover the entire amount from any one of the tortfeasors without impleading all the tortfeasors to the proceedings. The party who pays any excess can recover the amount from the party from whom the same is really due.

10. The finding in 1995(1) KLT 51 (para.14) that under S.175 of the M.V. Act 1988, jurisdiction of the civil court stands barred also require reconsideration. The bar under S.175 is not a total or absolute bar. From the wordings itself the intention of the legislature is clear. S.175 reads as follows:

"Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for mat area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for Compenstion shall be granted by the Civil Court."

Thus the bar is only to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal. In other words the Claimant is debarred from filing a petition for compensation and its execution in a civil court or somebody filing a suit for injunction staying the execution of an award or any action taken or to be taken before or by the M.A.C. Tribunal. Even after the constitution of the M.A.C.T. in property damage cases the Claimant had the option to file before the M.A.C.T. or a competent Civil Court if the claim was more than Rs.2,000/- (1987 ACJ 446). Further under S.149 (5) [96(4) of 1939 Act] the insurer is permitted to recover any excess amount paid by them in satisfaction of an Award. Such a case is to be filed only before a civil court and not before the Motor Accidents Claims Tribunal because S.166 debars such a petition.

11. While interpreting certain provisions of the Motor Vehicles Act the Honourable Supreme Court in Skandia Insurance Company Limited v. Kokilaben Chandravadan (AIR 1987 SC 1184) observed "It is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by backward looking interpretation which serves to defeat the provisions rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not turned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved".

Therefore, it is submitted that the decision reported in 1995 (1) KLT 51 requires re-consideration.

The Decision of Supreme Court in ‘Common Cause'

v.

Union of India : 'A Decision per Incuriam’

(By Advocate P.P. Basheer, Parappanangadi)

Prefatory Note:

A Division Bench of the Supreme Court consisting of B.P. Jeevan Reddy & S.B. Majmudar, JJ, by its judgment dated 1-5-1995 (1996 (2) KLT SN 9) issued certain directions purported to protect and effectuate the right to life and personal liberty of the citizens guaranteed under Article 21 of the Constitution. The Judges, without hearing elaborate arguments or considering the binding precedence, issued certain general directions for the release/discharge of the accused persons, whose trials were pending for certain periods prescribed by it. In effect the bench prescribed an outer limit beyond which a criminal proceeding shall not continue. Since the purpose of this Article is not to examine the reasonableness or otherwise of the time limit prescribed, I am not dwelling on the directions of the court. The purpose of this Article is to examine the following questions and an attempt to find out its answer.

Is not the decision of the Supreme Court in 'Common Cause' v. Union of India, Per Incuriam and if so, whether the lower courts are bound to follow it?

Speedy Trial - A Fundamental Right

It is well settled that the Right to Speedy Trial is implicit in Art.21 of the Constitution. In the first Hussainara Khattoon Case (1979 Cri LJ 1036) Bhagawati, J. observed : "we think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Art. 21 as interpreted by this court in Maneka Ghandhi v. Union of India (AIR 1978 SC 597). In the third Hussinara Khattoon Case (1979 Cri LJ 1045) Bhagawati J. observed. "The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State". Thereafter the Apex Court as well as High Courts have applied this principle on innumerable occasions. The courts examined the factual situation in each cases in the light of the broad principles laid down by the Apex Court in various cases, including those stated above and granted suitable reliefs.

Consequence of Denial

In the first Hussainara Khatoon case Bhagawati J. posed a question, which he left to be answered at a later stage. The question posed was ": "What is the consequence of denial of this right. Does it necessarily entailes the consequence of quashing of charges/trial?" The question left answered by the Hon'ble Judge was answered by a Division Bench consisting of Bhagawati and R.N. Nisra JJ in Sheela Barse v. Union of India (1986 Cri LJ 1736): "The right to speedy trial is a fundamental right implicit in Article 21 of the Constitution and the consequence of violation of this right would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right". Therefore a person aggrieved by the denial of right to speedy trial can either approach the High Court under section 482 of the Cr. P.C. or under Article 226 and 227 of the Constitution or the Supreme Court under Art.32 of the constitution.

Prescribing outer limit - Views expressed in Antulay's Case

In A.R. Antulay v. R. S. Nayak (1992 Cri LJ 2717) a five Judge Constitution Bench headed by K.N. Singh C.J.I, considered the question whether it is possible to draw a time limit beyond which criminal proceedings will not be allowed. It is argued that to make the right of speedy trial meaningful, enforceable and effective, there ought to be any outer limit beyond which continuance of the proceedings will be violative of Article 21. Lengthy arguments were made for and against it and a large number of authorities, including decisions of the Supreme Court of U.S.A. and the House of Lords, were cited. After considering the arguments and the various authorities, the court rejected the contention and held as follows : "It is not possible in the very nature of things and the present day circumstances to draw a time light beyond which criminal proceedings will not be allowed to go. Even in the U.S. A., the Supreme Court has refused to draw such a line. Wherever a compliant of infringement of right to speedy trial is made the court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have, been pending for an unjustifiably long period." Considering various reasons for the delay in concluding the trial the court further observed : "For all the above reasons it is neither advisable nor feasible to draw or prescribe an outer limit for the conclusion of all criminal proceedings and it is not necessary to do so for effectuating the right to speedy trial. It cannot also be said that without such another limit, the right becomes illusory."

Conflicting decisions

It is pertinent to note that both the judgments were rendered by B.P. Jeevan Reddy J. Even then both are conflicting each other. It is very interesting to see that Justice Jeevan Reddy. who held in 1992 for the reasons stated that "it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings and it is not necessary to do so for effectuating the right to speedy trial "took a diametrically opposite view and held that "it appeals essential to issue appropriate directions to protect and effectuate the right to life and liberty of the citizens guaranteed by the Article 21 of the Constitution." It is very unfortunate that the earlier Full Bench decision in Antulay 's case rendered by His Lordship himself was not referred to in the 'Common Cause' case.

A Judgment per Incuriam

In D.W.C. v. Gurnam Kaur (AIR 1989 SC 38) a Bench consisting of three Judges observed : "A decision should be treated as given Per Incuriam when it is given in ignorance of terns of a statute or of a rule having the force of the statute. An order delivered without argument, without reference to citation of authority is Per Incuriam. A decision rendered Per Incuriam 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. In such case, the decision Per Incuriam does not have sway of a binding precedent (Mamleshwar Prasad Kancharija Lal. AIR 1975 SC 907). His Lordship Venkatachaliah J observed in AIR 1988 SC 1531 as follows : 'The circumstance that a decision is reached Per Incuriam. merely serves to denude the decision of its precedent value. Such a decision would not be binding as a Judicial precedent." This view is endorsed by our High Court (Per Viswanatha Iyer J.) in 1993 (1) KLT 850.

Conclusions

From the above discussion it is crystal clear that the decision of the two Judge bench in the 'Common Cause' case is Per Incuriam and therefore not a binding precedent.

A Comment on 1996 (2) KLT S.N. 9 (Case No.8)

(By Vidhu. M. Unnithan, Advocate, Alleppey)

On 1-5-1996, a two member Bench of the Hon'ble Supreme Court of India consisting of Justice B.P. Jeevan Reddy and S.B. Majumdar pronounced a judgment which contains certain guide lines and directions ensuring that Criminal Prosecution do not operate as engine of oppression. The above decision of course has direct concern with a good number of criminal cases pending before the Magistrate Courts in all over the country.

As per the decision, the directions which ultimately benefits the persons who are accused of minor offences punishable not more than three years or even less with or without fine, the proceedings are kept pending for years together. In short, the same will pave way for avoiding the "harassment" to which they are subjected to, during the pendency of judicial proceedings, as the very pendency of Criminal proceedings for a long periods by itself operate as an engine of oppression.

It is to be noted that the very intention behind the ruling stands defeated by the ambiguous words used in the decision. Among the directions, clause 2 (e) and 2 (f) deserves special attention as most of the cases pending before the Magistrate's Courts coming within the purview of these two clauses.

Clause 2 (e) of the direction which intended for the discharge or acquittal of the accused in cases pending in Criminal Courts under IPC or any other law for the time being in force which are punishable with imprisonment upto 1 year with or without fine and if such pendency is for more than one year and in such cases trial have still not commenced. Likewise in Clause 2 (f), a discharge or acquittal is warranted for the offences which are punishable with imprisonment upto 3 years and if such pendency is for more than two years and if trial has still not commenced etc.

Here, of course there is no ambiguity as to the commencement of period of pendency as it shall be calculated from the date the accused are summoned to appear in the Court. But the term "commencement of trial" in the said decision stands unexplained which places the decision in an ambiguous manner. The term 'trial' is not defined in the Code of Criminal Procedure 1973. The words "inquiry" and "trial" were both defined in the Code of 1872. But that the definition of the word "trial' was omitted in 1882 Code. As per the definition laid down in the old Code of Criminal Procedure, a trial starts with the proceedings in a summons case when the accused is appearing before a Magistrate and in warrant case, after the framing of charge and when it is read over to the accused. Their Lordships of the Supreme Court observed in AIR 1957 389 at 394 and in 1957 SCC 282 that "the words tried and trial" appear to have no fixed or universal meaning." No doubt in a quite number of Sections in the Code, to which our attention has been drawn, the words tried and trial have been used in the sense of reference to a stage after enquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why, where these words are used in another context in the Code. They should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose under consideration."

At the same time in AIR 1996 SC 1340; three member Bench of our Supreme Court observed that "the trial means act of proving or judicial examination or determination of the issues including its own jurisdictional authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial (Paragraph 19). It is settled law that under the Code of Criminal Procedure "trial commences the moment cognizance of the offence is taken and process is issued to the appearance of the accused." (Paragraph 27).

If the view in 1996 SC 1340 is accepted, the very intention behind the direction will be defeated as it is totally and wholly inconsistent with the direction given in recent decision of 1-5-1996. In such event there will not be any gap between the proposed date of appearance of the accused and the date of commencement of trial. As per the definition of trial laid down in the old Code of Criminal Procedure of 1872 "trial commences from the date of appearance of the accused in summons cases (as there is no formal charge to be framed) and trial commences from the framing of charge in case of warrant cases."

In majority of the warrant cases pending before the Magistrate Courts, the charge will be framed and read over to the accused within a short period after the appearance of the accused. It will not in any way exceed 2 years except in rare occasions. There also we could not find a long gap between the proposed date of appearance of the accused and date of commencement of trial."

It can be seen that the actual pendency of cases happens due to the delay in starting the examination of witnesses even after framing of charge or after compliance of Sec.251 Cr. P.C. as the case may be. This delay occurs due to the increase in number of cases before each Court. In a warrant case, after the appearance of the accused and after framing of the charge, if the case is pending for a period of 2 years due to the delay in starting the examination of the witnesses; the accused is not entitled to get the benefit of the directions issued by the apex Court in the light of the decision reported in 1996 AIR 1340. Likewise in a summons case, after the appearance of the accused if the examination of the witnesses is not started after a period of one year the accused is not entitled to get the benefit of the direction in clause 2 (c) as the trial has already been commenced.

The real purpose of the direction of the apex Court can only be served by giving a narrow definition to the term "commencement of trial" to mean "the examination of the witnesses or the issue of summons to the witnesses." This can only be clarified by the apex Court.

Even then certain class of accused persons who does not deserve the benefits of the directions because of their continuous absence before the Courts gets the way of escape by way of discharge or acquittal.

No doubt, the directions issued by the apex Court is with an intention to avoid harassment of the accused persons accused of minor offences who are regularly coming before the Court. But in practical an accused who never appears before the Court or one who appears before the Court and absconds thereafter can claim the benefits of the direction after one or two years in case of summons cases and warrant cases respectively. The intervention of the Apex Court is necessary in this respect also.

Let me conclude with the hope that the higher Judiciary in the Country will have an immediate look in to the matter to resolve the practical difficulties involved in the above matters.

A Comment on 'Niyamavedi v. Ramon Srivastava

*(By Dr. K.N. Chandrasekharan Pillai)

The Kerala High Court in Niyamavedi v. Ramon Srivastava[1]identified three points raised by the Additional Solicitor in response to the prayer of the petitioner that the Investigating Officer of the now famous espionage case should be given directions to include respondent as an accused in the case while the investigation is in progress.

The points are:—

1. Petitioner in the Original Petition has no locus standi to move this petition.

2. This court is not having any jurisdiction to interfere with the process of investigation undertaken by the C.B.I, in the course of investigation.

3. This Court in exercise of its extraordinary jurisdiction under Art.226 of the Constitution cannot direct the investigating agency to include the first respondent as an accused in the case and to direct the C.B.I, to arrest him[2].

In responding to these points, the Court examined the Supreme Court decision in Express Newspaper (Bombay) P. Ltd, v. Union of India[3]and found support in it to find an answer to point (1) above thus:

"Viewed in that light, we are of the opinion that the petitioner is having the locus standi to approach this Court by filing this O.P. relying on die news items published in the newspapers".[4]

Then relying on another decision of the Supreme Court in State of West Bengal v. Sampat Lal (1985 SCC (Cri) 62: AIR 1985 SC195) the Court enunciated its thesis:—

"This means that even while investigation into the case is in progress, the High Court has got the power to examine the records, make a judicial assessment of the situation and then give necessary direction".

This is more clear from the following observation made by their Lordships:—

"It may be that in a given case the Court on being prima facie satisfied from circum-stances appearing from the record that the statutory agency has not worked in an effective way or die circumstances are such that it may reasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the procedure...."

After referring to this the court makes out its conclusion:—

'Petitioner in this case has virtually asked this Court to exercise die jurisdiction to examine whether the investigation is fair and impartial'.[5]

It also came to issue a direction thus:—

"We direct him (C.B.I. Director) to re-examine the issue with more caution and direct his officers to proceed with the investigation in the proper line".[6]

After analysing the Privy Council's decision in Emperor v. Kwaja Nazir Ahmad1 the Court has however ruled that no court has power to issue directions to the Investigating Officer while investigation is in progress. The Court said:—

"This position has been reiterated by the Supreme Court in subsequent decisions (vide Janata Dal v.H.S. Chowdhary (1992) 4 SCC 305). Therefore, no Court can and should give the investigating officer any direction on any matter relating to the case while the investigation is in progress except in cases where the fundamental rights of anyone are being violated by the investigating officer. The legal position being such, we are of the firm conviction that none of the prayers made by the petitioner in the O.P. can be granted at this stage".[8]

Again the Court clarified:—

"On this aspect, we are having no doubt in our mind that this Court in exercise of the, powers under Art.226 of the Constitution or for that matter no Court has power to direct the investigating officer to include a person as an accused in the case while the investigation is in progress".[9]

Thus the ratio of this decision could be expressed as follows:—

1. The petitioner in this case has locus standi to move the High Court on the basis of some information published in the media seeking directions to get the investigation conducted fairly and impartially;

2. And the Court can issue such directions;

3. No Court has jurisdiction or power to give the investigating officer any direction on any matter relating to the case while the investigation is in progress; .[9]

4. No Court has power to issue directions to include a person as an accused in the case while the investigation is in progress.

Indeed, this is the net result emerging out of the Supreme Court rulings in Sampat Lai.[10]and Janata Dal v. H.S. Chowdhary[11] referred to and relied upon by the Court in deciding the case.

In this connection it is to be noted that it has been the consistent stand of the Indian Judiciary right from the Privy Council in Nazir Ahmad.[12]that the Court does not have right to issue directions to the Investigating Officer while the case is under investigation. This came to be reiterated by the Court in J.A.C. Saldanha.[13]. In the peculiar situation in Sampat Lai the judiciary however seems to have conceded a right to the Court to issue directions when the investigation is not reported to be impartial.[14]

It is this position which seems to have been projected in this case. However, the Court has failed either to rightly identify or locate this limited power. By asserting the locus standi of the petitioner and the right of the Court to issue directions in the first part of the judgment what the Court has done in the second part is to assert that it has no jurisdiction either to issue directions or to include the respondent as an accused. There is thus no coherence between these two parts of the judgment and therefore it fails as a balanced discourse on the subject-the primary purpose of a common law judgment.

Be that as it may, while exercising the limited power of issuing directions on the allegations of lack of fairness the Court seems to have gone beyond the limbo. It has made many an observation which could be described as unwarranted. It is evident from its discussions on the theories of alleged torture of accused by the police, and the internal politics of the Kerala Police as reason for the implication of the respondent in the case. These observations were perhaps avoidable and uncalled for. The Court's overreaching reached its acme when it commented on facts thus:—

The interrogation report dated 25-11-94 of Sashikumar, the Engineer clearly establishes the involvement of I.G. Ramon Srivastava in the deal. Huge sums of money even in foreign currency is seen.[15]to have changed hands through Ramon Srivastava".

These comments were indeed unfortunate and they remind a person of the words of Justice D. A. Desai in J. A. C. Saldanha:—

"Is there anything more required to write the final epitaph and say amen .... after the finding recorded by the High Court... .[16]

The right of the accused were not considered by the Court in this case. Their rights assume much importance because they are yet to be proved guilty and as such insulated by presumption of innocence. The judiciary has been following the 'hands off doctrine in the field of investigation not only because it is statutorily earmarked for the police but also because of the position that balancing of individual or societal interests-the judicial function-does not come to the fore at that stage. The Court has however, carved out a very limited jurisdiction for its interference only when it comes to know that the investigation is not fair-affecting societal interests or that the fundamental rights of the individuals affecting individual interests are violated. In such cases it becomes necessary for the Court to see that accused's rights are protected.

Viewed in this perspective there was failure of justice in this case as the Court's judgment helped the accusers to have retributory blood even before the arrested have I been charge sheeted. And the causality is one of the fundamental principles of criminal jurisprudence-the presumption of innocence,

I It would have been in the fitness of things if the Court weaved out its thesis by a process of balanced reasoning in the context of case law restraining itself at the same time from making unwarranted conclusions by way of its intrusions into the facts in the investigation report.

___________________________________________________________________

Footnote

*B.Sc. (Ker), LL.M. (Del), LL.M., S.J.D. (Mich) Professor and Head, Department of Law, CUSAT. Cochin.

1. 1995 (1) KLT 206

2. Ibid at 210

3. AIR 1986 SC 515

4. Supra n.2 at 212.

5. Ibid.at213

6. Ibid at 217

7. AIR 1945 PC 18

8. Supra n.2 at 219

9. Ibid.

10. State of W.B. v. SampatLal, 1985 SCC(Cri)62: AIR 1985 SC195

11. (1992) 4 SCC 305

12. Supran. 7

13. State of Bihar u. J A. C. Saldanha (1980) 1 SCC 554

14. The situation in which the Court came to say that there is residuary jurisdiction in the Court for issuing directions can be perceived from the following observations of the Supreme Court in Sampat Lal, 1985 SCC (Cri) 62 at 81:

"We have, therefore, thought it proper exercise of discretion not to enter into the facts and express any opinion one way or the other so as to prejudice the trial that might take place. It is sufficient to indicate that there is residuary jurisdiction left in the Court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude".

15. Supra n.1 at 215.

16. Supra n. 13 at 574.