Delay in Filing of Application to Set Aside Arbitration Award - Is Condonable?

(By M/s. H.B. Shenoy & Ashok B. Shenoy, Advocates, Ernakulam)

It seems to be a prevalent view in the field of Arbitration Law that an Award can be set aside by the court upon an application under S. 33 of the Arbitration Act, 1940 only if the application thereof is filed within 30 days from the date of service of notice of the filing of Award and in cases where such application is filed beyond 30 days, the v Court has no jurisdiction to condone the delay by invoking S. 5 of the Limitation Act, 1963. ThisviewissupportedbyaDivisionBenchdictaoftheKeralaHighCourtin5tote of Kerala v. Sivan Pillai: 1997 (1) KLT 556. The reasoning given by Their Lordships to uphold this view is that S. 5 of the Limitation Act 1963does not apply to an application seeking to set aside an Arbitration Award. This view seems to be inconsistent with the express words employed in S. 5 of the Limitation Act, 1963.

No doubt, the general law as laid down in S. 3(1) of the Limitation Act 1963 is that every suit instituted, appeal preferred or application made after the period prescribed in First Schedule of the Act shall be dismissed. However, this general rule is subject to the exception contained in S. 5 of the Limitation Act 1963 which expressly provide for the extension of time in the case of any appeal or any application other than those under O. 21 of the Code of Civil Procedure, if the appellant or applicant satisfies the Court that he had "sufficient cause" for not filing the proceeding within the period prescribed. In other words, the Court is given the power to condone the delay and admit any appeal or any application notwithstanding having it filed after the expiry of the prescribed period of limitation. S. 5 of the Limitation Act 1963 reads as:'

"Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the-prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

From the express words employed in the above statutory provision, it can be seen that it applies to: (a) appeals; and (b) applications other than those under O.21 of the Code of Civil Procedure.

Compared to the aforesaid statutory law now prevailing under S. 5 of the Limitation Act 1%3; the correspondent old statutory provision contained in S. 5 of the old Limitation Act 1908 covered, besides appeals, any applications for review of judgments, applications for leave to appeal and applications to which the section was made applicable by or under any enactment for the time being in force. This would be I amplified on a reading of S. 5 of the old Limitation Act 1908 which reads as:

"Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

The old statutory provision restricted and confined its application to a very restricted category of applications expressly specified therein, only 3 in numbers. As against that, the present statutory provision in S. 5 of Limitation Act 1963 has been considerably enlarged in its scope. The present section, as would be revealed by the express words therein, automatically applies to all applications except those under O. 21 of the Code of Civil Procedure. From the express words therein, it can be safely concluded that while under the old Limitation Act 1908 power for condonation of delay upon sufficient cause being shown was not available to all applications; under the prevalent Limitation Act 1963 such power of condonation of delay is available in cases of all applications. No doubt, an application to set aside an award under S. 33 of the Arbitration Act 1940 did not fall within the purview of S. 5 of the old Limitation Act 1908, for none of the enactments including the Arbitration Act did not provide that the powers contained in S. 5 of the Limitation Act 1908 would apply to such an application. However under the new Limitation Act 1963 when the scope and ambit was widely enlarged and all applications fall within the purview of S. 5 of the new Limitation Act. When that be so under the new Act, S. 5 would be definitely applicable to an application seeking to set aside an award under S, 33 of the Arbitration Act. In this context, it is worth noting that under the Limitation Act, in the First Schedule wherein the period of Limitation for such proceeding is specified, the proceedings has been classified into three divisions, namely 'Suits', 'Appeals' and 'Applications'. And the statutory schedule thereof classifies an Application to set aside an arbitration Award, as an application under the third division. The Act thereof has thus expressly construed and considered it purely as an application and a different nature, that of a suit can never be showered on it for the purpose of considering the application of S. 5 to it.

The Division Bench of the Kerala High Court omitted to take notice of above statutory provision contained in S. 5 of the Limitation Act 1963 while rendering its decision in State of Kerala v. Sivan Pillai : 1997 (1) KLT 556. Intact the Division Bench had relied on the law laid down by the Supreme Court in Madanlal v. Sunder Lai: AIR 1967 SC 1233: by the Bombay High Court in Hastimal Dalichand Bara v. Hiralal Motichand Mutha : (AIR 1954 Bom 242) and by Nagpur High Court in Kawalsingh Akbar v. Baldeosingh Akbar : (AIR 1957 Nagpur 57); which are actually precedents on the old statutory law contained in the S. 5 of the Limitation Act 1908 which has been later on superceded and enlarged in scope by S. 5 of the new Limitation Act 1963. Admittedly S. 5 of the old Limitation was not made applicable to applications under S. 33 of the Arbitration Act. This underwent change and a new S.5 under Limitation Act 1963 brought within its ambit all applications including applications under S. 33 of the Arbitration Act. However, this most important aspect with regard to change of statutory law since the aforesaid 3 prior precedents, was unfortunately not brought to the notice of the Division Bench of the Kerala High Court.

On an over all view S. 5 of the new Limitation Act expressly lays down that any applications would fall within its ambit and there seems to be not even a slightest implication in any of the provisions of the Limitation Act 1963 to exclude an application under S. 33 of the Arbitration Act from the purview of S. 5 of the Limitation Act 1963. When that is so, delay in filing of an application to set aside an Arbitration Award, would be condonable in exercise of the powers under S. 5 of the Limitation Act 1963; even if the application thereof is filed beyond 30 days from the date of service of notice of the filing of the Award. The Division Bench dicta in State of Kerala v. Sivan Pillai : 1997 (1) KLT 556, it is respectfully submitted does not enunciate the correct view and it requires re-consideration.

Impact and Implication of Section 163A of the

Motor Vehicles Act, 1988

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

Act No.54 of 1994 has brought various important amendments to the Motor Vehicles Act of 1988. These amended provisions of Law came into force with effect from 14-11 -1994. As per the 1994 amendment a new benevolent provision i.e., S.163-A has been incorporated by the Parliament. This beneficial piece of legislation must have been discussed at length but its application is yet to be understood in the correct perspective of Law. The Claimants are not fully aware of the impact of this section, the legal practitioners are a bit confused and the Tribunals are groping in the dark regarding its proper application.

The news media is also publishing articles regarding the application of the said provision making the public more and more confused. Misinterpretation given to a benevolent provision may sometimes nullify the very intention of the legislature. Therefore, a discussion on the application of this Section is quite relevant. S.163-A inserted as per 1994 amendment reads as follows:—

"163-A. Special provision as to payment of compensation on structured formula basis—

1. Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of Law, the owner of the motor vehicle of the authorised insurer shall be liable to-pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the second Schedule to the legal heirs or the victim, as the case may be.

2. In any claim for compensation under sub-section (1), the Claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any order person.

3. The Central Government may, keeping in view the cost of living by notification in the official Gazette, from time to time amend the second schedule.

The object behind the introduction of this noval section is to ensure payment of compensation on a structured formula basis so as to enable the injured claimant having sustained permanent disablement and the legal heirs of the deceased to get a minimum assured reasonable sum as damages irrespective of the fact whether the injured or the deceased had contributed to the cause of the accident. In other words even if an accident had occurred solely due to the negligence of the injured or the deceased, the injured or the legal heirs of the deceased as the ease may be are entitled to claim compensation. In such a situation they need not plead and prove negligence. This is made clear in sub-section 2 to S.163 A. Moreover this section is applicable in fatal accident cases and also when the injured sustains permanent disablement due to the accident. For other types of injuries and also for compensation for property damage, the remedy still lies under S.166 of the Act. In short, the purpose underlying the enactment is to provide immediate and urgent relief to the hapless and helpless victims of a motor vehicle accident. Before the introduction of S.163A, the same benefit was available to the Claimants so far as a claim under S.140 of the M. V. Act was concerned. In cases of death the Claimants were entitled to get a consolidated sum of Rs.25,000/- and in respect of serious injuries resulting in permanent disability as defined under S.142, the injured was entitled to Rs.12,000/-. After the 1994 Amendment the compensation payable on the principle of no fault under S.140(2) has been enhanced to Rs.50,000/- and Rs.25,000/- respectively. To claim compensation under S.140 also the Claimant need not plead and establish the negligence of the wrong-doers.

Both these provisions, i.e., Ss.140 & 163-A are clear departure from the common law principle that a Claimant must establish the negligence of the tortfeasors to get compensation. Now let us look into the main distinguishing features of Ss.140 and 163-A. Unlike S.163-A, S.140 is not an independent provision. In a case of fatal accident or permanent disablement a Claim Petition is preferred under S.140(2) read with S.166 of the M.V. Act. Even after receiving compensation under S.140(2) the Claimant is legally entitled to claim further compensation if he is capable of proving negligence on the part of the tortfeasor. This right to claim additional compensation is envisaged as per S.141(1) of the Act. S.141(1) reads as follows:—

"141(1) - Provisions as to other right to claim compensation for death or permanent disablement:—(1) The right to claim compensation under S.140 in respect of death or permanent disablement of any person shall be in addition to (any other right, except the right to claim under the scheme referred to S.163-A (such other right hereafter) in this section referred to as the right on the principle of fault' to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force)."

But a person who makes a claim under S.163-A should satisfy with the amount indicated in the second schedule. He is legally debarred from claiming any additional amount towards compensation. This is also made clear under S.141(1) of the Ac t. In short an award passed under S.140 is only an interim award whereas an Award under S.163-A is final. Further, by the introduction of S.163-A Claimants under Motor Vehicles Act are grouped into two categories. One class of claimants who prefers a claim petition under Ss.140 and 166 of the Act and another class who claims compensation under S.163-A. The first class conies under the category of Claimants who have to prove the negligence of the torfeasor and the 2nd class who are not liable to do so. In the first case, the Claimants are victims or legal heirs of victims of a motor vehicle accident which occurred not as a result of any fault or negligence of the victim. The 2nd Class includes even victims who are responsible for the accident. To make it more clear, when an accident happens and a person gets injured or dies due to the wrongful act of another, the injured or the legal heirs of the deceased are entitled to put forward a claim for damages under Ss.140 and 166 of the Motor Vehicles Act whereas a person who sustains permanent disablement or dies because of his own negligence, the injured or the legal heirs of the deceased as the case may be can prefer an application for compensation only under S.163-A of the Act. Thus after the 1994 amendment, by the insertion of S.163-A two types of claim petitions could be entertained. But at the same time a Claimant is barred from relying on both the provisions i.e., 140 & 166 and 163-A simultaneously. The Claimant can opt either of these provisions according to the nature of his claim. This is stated under S.163-B, a Section newly incorporated as per the 1994 amendment. S.163-B says:

"163-B:—Option to file Claim in certain cases: Whereas a person is entitled to claim compensation under S.140 and S.163-A he shall file the claim under either of the said sections and not under both".

The next area where further discussion needed is whether compensation stipulated in the second schedule is applicable to all claim cases irrespective of the fact that such claim is preferred under S.140 read with 166 or under S.163-A. Confusion prevails still in this area and the views also differ. Some are of opinion that the table mentioned in the second schedule is applicable to all cases irrespective of the fact whether the accident had occurred due to the negligence of the victim or not. According to some the schedule is applicable only to cases filed under S.163-A, I think the second view is correct.

On a plain and combined reading of Ss.140, 141, 163-A, 163-B, 166 and 168, I think there is absolutely no room for any ambiguity or confusion. The applicability of the second schedule and fixation of compensation on its basis is mentioned only under S.163-A. The tribunals are not bound to look into the second schedule for fixing the compensation while disposing of a claim petition under Ss.166 & 140. The intention of the legislature in introducing S.163-A and the schedule II table as stated earlier is to enable a victim of a motor accident or his legal heirs as the case may be to get an assured minimum reasonable sum even if the accident had occurred as a result of the negligence of the victim himself. In the second schedule the maximum annual income is also limited to Rs.40,000/-. The legislature might not have thought or intended that a person involved in a motor vehicle accident due to his own negligence and a victim who sustains injury or dies for no fault of his own should get equal amount as compensation. The injured or the legal heirs of the deceased who prefers a claim under S.166 are entitled to get more compensation than fixed under the schedule if he is capable of proving the earning capacity of the victim and the negligence on the part of the tort-feaser. In such cases, the Tribunals are not bound by S.163-A for fixing compensation. As already mentioned in a case filed under S.166, if the Claimant succeeds in proving a higher annual income exceeding Rs.40,000/- the Tribunals are bound to accept the same and award compensation accordingly. Of course, the Tribunal can, in such cases look into the second schedule only for the limited purpose of selecting a suitable multiplier.

The applicability of the second schedule is referred to under S.163-A alone. Nothing has been stated under Ss.166 or 168 regarding the applicability of the schedule. The intention of the legislature is thus made clear. This is further evident from the wording of S.168 which has not been amended in 1994. S.168 says:—

"168- Award of the Claims Tribunal:(1) On receipt of an application under S.166 the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer), an opportunity of being heard, hold an inquiry into the Claim or as the case may be each of the claims and subject to the provisions of S.162 may make an award determining the amount of Compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the Award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of diem, as the case may be".

It is pertinent to note that this Section is silent regarding the applicability of S.163-A. Here the Tribunals are given a wide discretion in fixing a just compensation on the basis of the evidence on record. If the legislature had really intended the application of the 2nd schedule in adjudicating a Claim Petition filed under S.166 of the Act, S.168 would have been amended accordingly. This was not done; deliberately too.

Therefore, it can be concluded that strict adherence to the 2nd schedule is to be followed only when the Petition for Compensation is filed under S.163-A of the Motor Vehicles Act; 1988. Such an adherence is not at all warranted when the Claimants application for compensation is one submitted under S.166 (r/w 140).

Buildings (Lease and Rent Control) Rules, 1979 (Kerala) -- Amendment of Rules Dt. 29-11-1994 S.R.O. No.1628/94 --

1995 (1) KLT Kerala Statutes Page 15 - An Inadvertant Omission

(By P.S. Ramalingam, Advocate, Kozhikkode)

Recent amendment of the Buildings (Lease & Rent Control) Rules (K.G. Extra No.1250 dt. 29-11-94 S.R.O. No.1628/94), in short the Rules, is seen published in 1995 (1) KLT Kerala Statutes page 15.

It is seen that various Amendments are made in Rule 4, sub-rule (5) of Rule 5, sub-rule (4) of Rule 6, sub-rule (3) of Rule 7, Rule 10 and sub-rule (3) of Rule 16.

Rule 10 by its conception deals with the time with in which legal representative of a deceased party to the proceedings is to be impleaded and the original Rule prescribes a period of 15 days from the date of death of the party, which is now amended by substituting 30 days.

Likewise sub-rule (3) of Rule 16 deals with tune within which a respondent has to prefer an application to set aside an ex parte order passed against him by the Appellate Authority and the period originally prescribed was 15 days from the date of receipt of the order, which is now amended by substituting 30 days.

But I may humbly point out that the Rule making Authority has not applied its mind properly which effecting above said amendments thereby skipping sub-rule (3) of Rule 13 viz., to substitute 30 days instead of 15 days occurring therein, which is identical to that of sub-rule (3) of Rule 16 but differs only in that it applies to proceedings before the Rent Control Court.

The Rent Control Court as well as the Appellate Authority being persona designate under the Act 2 of 1965, there need not be an unnecessary, distinction between the two with respect to period for setting aside ex parte order passed as per the prevailing sub-rule (3) of Rule 13 and amended sub-rule (3) of Rule 16, especially in view of non-applicability of S.5 of the Limitation Act to those provisions which is concluded by the decision rendered by the Division Bench of Hon’ble High Court of Kerala in Jokkim Fernandez v. Aminakunhi Umma (1973 KLT 138) which has been further reiterated in the Division Bench Ruling rendered in Selvi v. Nataraja Mudaliar, 1994 (1) KLT 82).

The Rule making Authority's attention is kindly invited to the above aspect to make necessary amendment with respect to sub-rule (3) of Rule 13 in consonance with sub-rule (3) of Rule 16.

"Screening" of Subordinate Judicial Officers - To Make Judicial Immunity Seem Absolutely Meaningful

(K. Srinivasan Nair, Former Judicial Officer and Additional Director of Public Prosecutions, Vigilance)

Corruption has become rampant, irrespective of the incessant loud deliberations at all authoritative realms to effectively combat this growing menace. Day by day, a common man, virtually, finds it difficult to get things done in any office, without parting with substantial additional expenses, either by way of tips, presents or bribe. Officers and employees who take objection to this malpractice, to secure illegitimate comforts, are first ignored as inefficient outcastes and later made to suffer humilitatory treatments, intended to make suitable changes in their concept. Even the most upright and the honest are finally dragged down to co-operate, assist or acqiesce in the dubious and deceptive dealings of others. A few percentage, that is ultimately left out, becomes the target of common attack and is finally entrapped in trivial or imaginary delinquencies, boosted up to the virge of misconduct.

The media coverage, every day, elaborately reveal fresh instances of corruption, at all levels, political, bureaucratic and administrative. When the unethical and fraudulent devices of various agencies, including higher ups in politics, are frequently raked up and placed before Courts for adjudication, the impartial, bold, unbiased and the deserving verdicts they pass, permeate a divine message that testifies to the supremacy of law.

No man, however high, is above law. When persons in power encouraged or willingly tolerated any overt or convert abuse of official position and become a privy to such nefarious, unsocial acts, to acquire undue gains, it is ultimately the court that emerges as a ray of hope to all right minded citizen, to convince them of the existence of a superior forum to deal with and punish the miscreants of such criminal commitments. People naturally feel elated at this powerful, unerring, ultimate win of the dictates of law.

But what if these essential prerequisites of virtue and unbiased approach appear lacking in some judicial officers in the lower rung? Will it not project a sharp, ostensible difference in the dispensation of justice between the highest and lowest forums of the well structured institutionality of justice?

In our democratic set up, judiciary enjoys absolute independence and the confidence of public trust of the three pillors exercising sovereign power in a State legislature, executive and judiciary-judiciary is held to be relatively distinct and superior, inspite of its containing 'public servants' alike in the other two systems. It is in view of the supreme power it weilds in deciding the legality of the various actions attributed to the parties involved, irrespective of official, social or political status. This decision making, uninfluenced by the level of personalities, undoubtedly, requires absolute immunity.

The judges of the Supreme Court and the High Courts have constitutional safeguards. The Supreme Court, therefore, laid down that the misconduct of a judge should be discussed only on a motion in the Parliament, as per the enabling provision in the Constitution, without making such matters a subject of discussion in a Bar Association or any other forum of lawyers. But judicial officers, subordinate to the High Court, do not have that constitutional protection, though the nature of their work requires fair and impartial administration of justice, quite uninfluenced by fear or favour or other extraneous considerations.

Though an authoritative final pronouncement of the Supreme Court on the point whether justification by truth is a valid defence in contempt of court cases is still awaited, the available view, deductible from the decision of-the Nagpur Bench of the Bombay High Court lays down a ban on any discussion regarding the misconduct of even a lower judicial officer. However, the question of elimination of truth as a valid defence in the contempt case, is, actually, desirable, would attract conflicting contentions.

Here, I only intend to deal with the possible consequences of rendering total immunity to the actions of judicial officers at all levels, without ensuring the qualitative outcome of their disposal.

Granting absolute immunity to the judiciary is a reward for its rectitude. It should never be interpreted as a safeguard to protect wrong or avoid exposure of misdeeds, by suppressing dishonesty or corruption. It should never signal impending terror of autocracy.

The question now is whether the recognition of this immunity would, in effect, stretch its power to unlimited heights that may breed dangers inherent in absolute power. One can not be totally oblivious to the adage "power corrupts; absolute power corrupts absolutely". In this modern age nobody can be unconcerned about the accountability of any office. Accountability and transparency are accepted as the keynotes in administration. It requires especially so in the case of judicial officer in view of the oft-quoted ideal "justice should not only be done; it should appear to be done". By presenting a Bill on the Right to Information we have glorified the theory of transparency. So, naturally it has to be ensured whether an officer is a "real" judicial officer or is only "assumed" to be one.

Much, therefore, depends on the selection of lower judicial officers, the sort of training imparted to them and the extent of control exercised by the High Court in overseeing their judicial merit.

It is undoubted that only the best of the lot are now selected as Munsiffs and Magistrates. But do they stand comparison to the old recruits, having better standard of accomplishments? One can conceive of the still newer hands who will be selected in due course, from among the lawyers in profession, who are blissfully exempted from appearing for the Bar Council Examinations and in whose respect the terms of apprenticeship were conveniently waived. Prudence credits practical sagacity with experience. In otherwords, expertise is achieved only by practical experience over the years. That is why drastic shortcoming of lower judicial officers are often exposed by the higher judicial officers, in exercise of their appellate or revisional jurisdiction. When the judges of the Supreme Court and the High Courts analyse matters and adjudicate thereupon, their observations and verdicts themselves speak of their maturity, depth of knowledge and seasoned and reasoned thinking underlying.

The term 'Judicial Officer' includes within its fold all judicial officers, young and old, at all levels, with different standards in perception, thinking and decision making. So, the automatic or mechanical extension of immunity to all these officers alike, by equation in nomenclature, may tend to have adverse consequences. Indisputably, the divine mission of dispensation of justice is performed by mortals of different capabilities. Human beings are of varying types, honest, shrewd, hardworking, intelligent, erudite, peevish, lazy, indifferent, impatient, haughty, snobbish, ill-tempered and the like. It has to be remembered that many newcomers do not become tempered as expected; but remain guided by temperaments.

The term 'judicial officer' postulates a homogenous fusion of all what is good and right. It has to be a synonym for rectitude.

Common people always form their impressions through their familiar day-to-day experience derivable from the judicial system at the bottom. Though a party involved or concerned in any litigation cannot always directly assess the legitimacy or otherwise of the various acts of the Presiding officer, he will naturally be posted with essential informations, divulged to him in secrecy, by this lawyer, lawyer's clerk, police or any friendly staff in Court. The image he thereupon forms and conveys to others in his gossips may create an impression of absence of straightforward, honest and impartial execution of duties and responsibilities. When such unwarranted digressions cannot be discarded as unfounded, the possibility of attaching a stigma is felt inevitable. This has necessarily to be guarded against, in the interests of justice.

It is true that an uninhibited objective analysis, in an attempt to obtain perfection, will be a commendable step in the process of attaining self improvement. But that does not appear always possible in respect of all officers. Some seem to refuse to receive counselling on account of egotistic considerations. In many mofussil centres, the rapport between the Presiding Officer and the advocates is unhealthy, unlike the olden days. Yet another few would prefer to forget altogether the nobility of a lawyer and start treating him with unconcern, the moment they leave that field and enter the judiciary.

Human traits may also require some sort of expert advice or warning from experienced elders, preferably exercising administrative control to ensure compliance of certain requirements to gain excellence in performance.

To guard against any stigma of disrepute, it is felt better that the High Court should intervene, otherwise than through the embarrassing and apprehensive approach of an advocate or client who would, naturally, like to avoid interpretative innuendoes, guarded unconcern and hidden threats from related quarters.

Brotherly advice tendered by Justice Kamath of the Kerala High Court on the opening of the training course to the lower judicial officers is an exemplary mode of instructive enlightenment. The elaborate exposition of the attributes of a "real" judge made recently by the Supreme Court is a self eloquent pointer of the pressing need of accomplishment.

It is, therefore, highly essential to rule out the possible abuse of immunity by inexperienced hands, to reinforce the basic principle. As a well wisher, having long experience, also as a judicial officer, I venture to suggest the introduction of a system of 'screening' of the subordinate judicial officers, to eliminate misfits and encourage the deserving and modifying the curriculum of training, if need be, to improve their all round performance, over and above the present evaluation of their intellectual faculties.

It is earnestly hoped that the well experienced and conscientious Chief Justice of the High Court may chalk out and implement appropriate steps to make the judiciary exemplary, in conformity with the aspirations of the entire populace. Let all the judicial officers acquire the required attributes to withstand all potential extraneous influence, as reflected in the revelation made by the Chief Justice of the Supreme Court, the other day.

Investigating and Prosecuting Agencies – Their Susceptibility and Lack of Co-ordination - Measures for Improvement

(By K. Srinivasan Nair, Former Addl. Director of Public Prosecution)

Enforcement of the rule of law, inter alia, requires conviction of the criminals and the resultant awarding of appropriate punishment commensurate with the guilt committed.

But there is remarkable gap between the "guilt alleged" and "proved to have been committed'". The question of proof, therefore, assumes utmost importance in the prosecution of a criminal. The basic principle of our criminal jurisprudence that until proved guilty (he accused is presumed to be innocent, testifies to the imperative need for substantiating the offence charged, though, the law, sometimes, admits of exceptional circumstances mitigating that rigour, by shifting the burden of proof on the accused.

A prime element required for the success of any prosecution is coordination between the investigating and prosecuting agencies. Right from the registration of a case, the concerned investigating officers have to keep in touch with the prosecutor in charge to obtain proper advice and to lay (he chargesheet on the close of the investigation, vide S. 173 Cr. P.C. Inclusion of the relevant Sections of the penal provisions in the FIR and following up of the other further steps in investigation, promptly and diligently, are certainly matters on which a skilful and devoted public prosecutor can render effective guidance. Plugging of loopholes and avoidance of irregularities and illegalities in investigation are mostly ensured by such timely consultations. The charge sheets also have to be got approved by the concerned prosecutor, before the same are laid before court. This system enables the prosecutor to have a subjective satisfaction as to the compliance of instructions, if any, earlier issued. The aim of the prosecution, always, cannot be to have recourse to the judicial pronouncements which held that the irregularities or illegal ties in investigation, in the absence of prejudice, do not vitiate the trial and the evidence adduced therein.

In olden days, these essential prerequisites were literally fulfilled. Any failure on the part of the respective police officers to comply with these requirements were also viewed with seriousness and suitable punishment awarded for ther lapses. In those days, any stricture passed by a court concerning the mode of investigation or prosecution was also seriously dealt with at appropriate higher levels. Devotion to duty and sincerity of purpose are, indeed, sharpened only by retention of an apprehension of initiation of disciplinary action for deriliction of duty. Otherwise, that thrive is only diminished on comparative assessment of ineffective response to lapses. A scrutiny at higher levels, detection of errant officers and the consequent disciplinary action for lapses are sufficient precautionary measures to safeguard against possible abuses.

In special units like the C.B.I and Vigilance, enforcement of all the legal and statutory requirement is strictly adhered to. Prosecuting officers are also given awards, rewards, commendations certificates and G.S. Es (Good Service Entries), as an incentive for still meritorious performance. And so, the results are also evidently better.

But the checks to ascertain and remedy the flaws in investigation and prosecution, coupled with steps for punitive action against delinquents, have gradually, lost that rigour. The authorities at the helm of the successive Governments, directly or indirectly, managed to make the police officers believe that the maintenance of law and order, by making bundobast arrangements and giving protection to organised activities like jathas, picketing, strikes etc, of favoured political associations is their primary duty, in preference to the pursuit of investigation, according to law. Naturally, much cannot he expected, exclusively, from a station house officer, or any other in charge. And, thus, investigation began to be treated as comparatively unimportant, unless specially asked for by superiors. The consequence, no doubt, was a slackening in investigation, at the hands of the .local police.

A situation has come, it is generally complained, where one can expect vigilant police action, only if any person in authority or anyone connected therewith, is interested in the proper continuation of criminal action. Similarly, when interested or influential persons are involved in the commission of any crime, action is delayed, by one reason or other, ostensibly with a view to pave way for the disappearance of evidence relating to the commission of the crime. Kerala police has got exceptionally efficient officers, but unless the higher ups, whomsoever it be, retrain from imposing restraints, they are bound to become helpless.

It has to be noted, that delayed retention of vacancies in vulnerable posts and constant transfers of officers only help to court adverse criticism on this score.

This peculiar phenomenon is frequently described as criminalisation of politics and politicisation of criminals. It admittedly, threatens the very security of the people at large and the ideal of peaceful coexistence. The oft repeated delay in investigation displays a totally lethargic disfunction. And it has assumed serious proportions, destroying the faith on an impartial probe by the local police.

In respect of many detailed instances the discontended people started legal proceedings, requesting the intervention of the highest court to set right this malady and it is reported that this tragic trend has warranted a factual account from the Director General of Police.

Is the political support, alleged to have been received by the police officers, one of the reasons that made the prosecuting agency also lethargic in its insistence on, or advice relating to the building up of a strong edifice for prosecuting the criminal elements? Political allegiance of prosecuting officers, may. sometimes, afford scope to spell out calculated inaction, that supplemented this all pervading malady. Any law abiding citizen, cannot remain unconcerned, unless political or extraneous considerations in investigation and prosecution are set at bay and handling of crimes and criminals, are allowed to proceed strictly, in conformity with prudence and dictates of law. It is appropriate to remember that it is totally dangerous to allow legal, statutory and moral requirements to be outweighed by sheer personal predilections and considerations of some persons in power.

Every prosecutor will have to realise that inspite of his representing the State, he is an officer of the court, to assist it in the administration of justice. He should not be susceptible to extraneous influence and be blindly carried away by the orders of the Executive. The caution given in several judicial pronouncements in this respect, makes it imperative that he should have his own independent assessment in the light of all the attendant facts and circumstances and questions of Jaw involved, even in matters regarding withdrawal from prosecution, as per orders of the Government, sought for under S. 321 Cr. P.C.

It is however, true that now there is no code of conduct for police officers, making it obligatory to obtain the opinion of the public prosecutor, at the various stages of investigation. The practice of getting the charge sheets approved by the concerned prosecuting officers, as stated above, and their concerted move for the success before Court, have become a thing of the past. Unless the prosecuting officers are compulsorily asked, providing sufficient opportunity, no doubt, to have a thorough grasp of (he entire facts and circumstances, with due emphasis on the questions of law, they are bound to put up a sorry figure before court. Appointment of prosecuting officers, otherwise than on merit, only undermines the status of the post and defacto efficiency.

An incompetent prosecutor, leaves the impression of an inconsequential apparition, straining just to fulfil his official obligation. A hero among friends becomes a zero within court, contributing only to the annoyance of the presiding officer. No doubt, the court will manage somehow; but this predicament is frequently discussed, joked at and sympathised in professional circles.

A much earlier order of remand, in an appeal against the order of conviction and sentence of the accused for the offence under S. 5(i) (a) of the Prevention of Corruption Act, 1947 for habitually accepting bribe, on the ground of misjoinder of charge under S. 219(i) Cr.P.C. on the practical admission of the prosecutor, comes to my memory as one of the concrete examples of such a pathetic predicament.

Even in all important cases, case diaries are not presented to the prosecutors, in advance, or copies of records supplied, except in some stations. The assistance rendered also is sometimes, nil. This has serious adverse reflections in results.

I genuinely feel, it is high time to ensure proper coordination between these two vital agencies to prevent this mockery of justice. Separate codes of conduct have to be chalked out and scrupulous compliance ensured to obtain positive results. An independent Directorate of Prosecution has to be evolved to improve this generally prevalent pitiable plight of the prosecutors in the lower rung. But, this idea still awfully remains a wishful thinking, for reasons obvious. A more fearless approach and proper assessment of the situation by the prosecuting officers can be ensured only by the creation of an independent Directorate of Prosecution.

Creation of cadre posts for the promotion of Dy. Directors of Prosecution as Public Prosecutors, bifurcating the post of Government Pleader and Public Prosecutor will necessarily be another salutory step to improve the qualitative functioning of this important agency.

Years back, in 1985,1 happened to submit a report to the Government, through the Director General of Police, in my then official capacity; but what followed eventually, confined only to the creation of 14 posts of Deputy Directors of Prosecution.

It has to be gratefully remembered that the post of Director of Public Prosecution made its presence keenly felt, for the first time, during the tenure of Sri. Chettoor Sankaran Nair, who was later elevated as a Judge of our High Court.

Any further omission on the part of the concerned authorities to find out and implement appropriate measures, intended to streamline and strengthen the prosecution set up in the State can only result in more chaos and confusion in our democratic society. No wonder if people loudly aspire for the advent of a system of District Attorneys, as in USA who control the investigation and discharge their duties and responsibilities with integrity, dignity and distinction.

The Advocate General and the Director of Public Prosecutions may do well if they realise the gravity of the situation and bestow their personal attention on this issue and chalk out and implement appropriate measures, in consultation with the Government and the Director General of Police, for the betterment of the qualitative functioning of these two important limbs in the administration of justice.