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.

Unfair Treatment of a Judgment

(By P.K. Ashokan, Advocate, High Court of Kerala)

I had always a fancy to hear and read Sri. S. Parameswaran, Advocate, whose language has a Victorian aura. But I was distressed to read his article "No Flattery, No Flak" published in the journal section of 1996 (2) KLT 16. He had claimed at the outset itself that "that this article is not meant to be an exercise in the flattery of a judge and his judgment; nor is intended to be a flak on another judge or his judgment". But, after reading it carefully, one gets a clear impression that his exercise was went for the later part. Perhaps, his mind would have had an impulse to state so at the outset so that the reader would feel that, he was dealing the two judgments with same 'lenslook.'

Mr. Parameswaran had attacked the decision in Chandramohanan v. S.I. of Police and another reported in 1996 (1) KLT 766 on the grounds of conservatism and strict constructionist approach. He complains that the judgment fell short of his expectations and it was not what was desired of a judge. The simple question to be decided in the judgment was whether the offences punishable under sections 3(1) (xi) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act 1989 are applicable to a victim born to Christian parents or not. Undisputed by the defacto complainant, the victim's father and the minor girl are Jacobite Christians. I had filed the said Crl. M.C. and argued the matter before Justice Nambiar. The case records revealed that the family of the victim were Christians for generations. But the case of the complainant was that originally their ancestors were Mala-Araya Community which is a Scheduled Tribe in the State of Kerala. Justice Nambiar found as the victim and her parents are Christians, they will not come within the purview of the Act and hence the charge in respect of the Section 3 (i) (XI) of the Act was quashed. He had also considered Articles 341, 342 and clauses (24) and (25) of the Article 366 of the constitution which deal with Schedule Castes and Scheduled Tribes.

It is not in dispute that the Act applies only to members of the Scheduled Castes and Scheduled Tribes as defined under clause 24 and clause 25 of Article 366 of the Constitution. The Act is enacted with the salutary goal of punishing offenders who commit all sorts of inhuman and savage atrocities on the Dalits. They were victims of oppression, ill-treatment and torture for centuries. Besides they were put to inexplicable disabilities, disadvantages, indignities and suffering. It is true, by and large, their conditions remain as they were before. It may take centuries to do justice to them.

The object of reservation for Scheduled Castes and Scheduled Tribes under Article 15 (4) of the Constitution was to remove the handicaps and suffering of these oppressed sections and to bring them in the main stream of the nation's life. The Hon'ble Supreme Court had considered the question in Mrs. Valsamma Paul v. Cochin University and others (JT 1996 (1) SC 57) and has held that "a person born in upper caste and having early advantages of education is not entitled to the benefit of Article 15 (4)". In the present case, the victim's father is a Professor and mother is an officer in a Nationalised Bank, and they belonged to Jacobite Christians, a forward caste.

If reservation is not applicable to such people and will they come within the ambit of a penal statute like the Act is question? The Act, in tune with it's great goal, had prescribed stringent punishments. This is the only penal statute in our country where (he provision of anticipatory bail is prohibited. Further, the trial is to be conducted by a special court presided over by District and Sessions Judge. Justice Nambiar has also decided that as the victim is born to Christian parents, the offence is not attracted.

The victim and her parents had styled them as "Christian Mala-Arayas". But the list of Scheduled Tribes in Kerala, published under Article 342 and Clause 25 of Article 366 of the Constitution, does not include "Christian Mala-Araya". It is held by the Supreme Court in A. Chinnappa v. Venkiatamuni & others, (JT 1996 (4) SC 213), in Prabhunder Mallikarjunaiah v. Ramachandra Veerappa (JT 1996 (5) SC 71), in S. Smigaraloos v. Zonal Manager, F.C.I. (JT 1996 (2) SC 182) and in Nithyananda Sharma and another v. State of Bihar and others that the court has no right to add or substract the names of Tribes in the light published under Articles under 342 and 366 of the Constitution.

Before parting with this, I should say that Mr. Parameswaran had no justification in exercising a comparison between two judgments by two Judges in utterly different situations. But he ventured to do so and then acclaimed one judgment in best chosen words. I do also appreciate the judgment of Justice Radhakrishnan. I have no doubt that Mr. Parameswaran had been quite unfair to Justice Nambiar and his judgment. Otherwise he would not have stated that it was no judgment at all. Criticism serves its purpose only when it is objective and constructive. Further, judging the judges and their judgments should be done with utmost restraint, caution and circumspection.