Some Legal Thoughts - In Legal Manner

(By V.B. Premachandran, Advocate, High Court)

                              Is the law for man or man for law?

                              The classic legal luminory says -

                              "Law for Man."

                              The unanswered question remains". The

                              Lawyer primarily duty bound to the

                              Client or society at large"?

                              Bench and the Bar -

                              The wheels of the same charriot -

                              Let there be total harmony between the two

                              Let the Judge deviate from hyper technicality

                              And clinch to substantial justice.

                              Let His Lordship focus his attention

                              On the principles of natural justice

                              Keeping the eyes shut except -

                              Against the unfair, unjust and unwarranted;

                              Illegal, irregular and improper.

                              Meticulously evaluating the factual matrix

                              And the legal positions :

                              Like the venus - the Roman Goddess.

                              Requires amendment, many a law.

                              The thing which requires no amendment -

                              Is the amendment, indeed!

                              Needs amendment -

                              The personal laws in many areas.

                              Rent control law, more often than not

                              Tilted to the tenant than to the landlord -

                              Observed His Lordship Krishna Iyer, J.

                              In a classic judgment of his -

                              In his inimitable style

                              Section 125 of the Criminal Code;

                              The maintenance amount of

                              Rupees Five hundred - such meagre -

                              For the wife -

                              "To keep her body and soul together -

                              Unless she be willing to sell her body

                              And keep her soul."

                              Judgments to rise to the occasions -

                              Applying Article -142, by the Supreme Court

                              (1998 (2) K.L.T. at 232)

                              Injunction Suit, miraculously, but -

                              Rightly converted to partition suit -

                              Judgment resulting in a preliminary decree

                              And 1995 (2) K.L.T. 848

                              Declared the Division Bench -

                              Rent Control Act, 1965 -

                              Provisions relating to fair rent

                              often resulted in 'Unfair rent'

                              Ultra vires the Constitution

                              Violative of Arts. 14 and 19(1)(g)

                              Rightly stride down Ss. 5, 6 and 8

                              Justice non est lex

                              Unjust law no law !

Let the Lord - Aimighty -

Omni potent and the Omni present

Guide His Lordship -

The learned Judge - to identify the -

Right natural flower of justice

Where the honeybee - sticks, from among the

Artificial flowers of injustices

Like the celebrated King Solomon;

Let the lawyer be shown the beacon light -

To keep all the professional ethics -

Maintaining his duty to the client

And to the society at large alike;

Like him - the litigant - come

With the cleanest hand;

Fiat, Justicia Ruat Coelum.

Justice shall be done

Heaven may fall !

Hurdles on Judicial Benevolence

(By Salim Kambisseri, Asst. Public Prosecutor Grade-I, Changanacherry)

Judicial leniency is permissible and judicial sympathy is justifiable, but too much benevolence is alien to a democratic country. In this article the author proposes to dissect the recent decision of our High Court in Coromandal Distributors v. Food Inspector reported in 1998 (2) KLT 657.

Brief facts of the Case

The complainant Food Inspector purchased 900 gms. of curry powder from the 1 st accused (Vendor) who is the proprietor of a bakery at Alappuzha. When the sample was sent for chemical analysis it was found to be adulterated. Petitioners in this Crl. M.C. were later impleaded as co-accused, probably may under Section 20A of the P.F. A. Act; on the allegation of the first accused that he purchased the curry powder from the petitioners. Petitioners were summoned before the Magistrate Court only on 30.3.1992, ie., long after the complaint was failed. They came before the Court with a prayer that the second sample may be forwarded to the Central Food Laboratory under sub-s.(2) of S.13 of P.F.A.  Act. Eventhough the application is belated one which was filed after three years and seven months from the date of sampling, the learned Magistrate was pleased to forward the second sample to the Central Food Laboratory. According to the CFL report the sample was completely deteriorated in condition, having off colour and hence it is not fit for analysis. Learned Magistrate suo motu sent the third sample to the Central Food Laboratory and that was tested. According to the Director, CFL the sample was fit for analysis and the sample does not conform to the standards of curry powder as per PFA Rules 1955 and hence adulterated. Aggrieved by the act of the learned Magistrate the petitioner approached the Hon. High Court with a Crl. M.C.

Hon. Justice Sreedevi after hearing both sides allowed the Crl. M.C. and quashed the proceedings before the JFMC, Alappuzha against the Petitioners. According to the Single Judge trial of this case against the petitioners is an abuse of the process of the Court and it will result in manifest injustice to petitioners.

The ratio of the above decision can be formulated as follows:

1) AstheFoodlnspectorwasawaretliatthepetitionersweretliemanufacturers.heought to have impleaded them also as accused in the complaint itself.

2) The act of the Magistrate in sending the third sample to CFL is not correct since the first report of die CFL becomes final and conclusive.

3) Sub-s.(2-c) of S.13 of the Act provides only when die second sample is lost or damaged the Court can order that the third sample be sent to the Central Food Laboratory.

4) Since the report of the CFL only shows that the sample was decomposed and unfit for analysis, it cannot be said die sample was "damaged".

I do with due respect doubt the correctness of all these 4 points enunciated in the above decision. To substantiate my view it is necessary to have a discussion on, and a comparative and harmonious analysis of Section 13, Section 14A, Section 19(2) of the Act.

Sections 13(2) and Section 14A :

Section 14A says that every vendor of article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food. Here a duty is cast upon the person from whom the sample is taken to disclose the source of supply, if Food Inspector requires, but no duty is cast upon the latter to find out the person mentioned in the cash memo or warranty so as to implead him.

In PAV Subba Rao Gupta v. State of Andhra Pradesh, [1]Andhra Pradesh High Court held as follows:-

"By a reading of the above Section (S.14A) is clear that a duty is cast upon the person from whom the article of food is purchased by the Food Inspector to disclose the source of supply, if the Food Inspector so requires. But nothing in the above said section suggesting that a duty is cast upon the Food Inspector to find out the vendor mentioned in the cash memo and to implead him. However, it is open to the Food Inspector to find out who was the supplier to the person from whom the sample is taken and if he is satisfied that the said person supplied the food article he can take action under the provisions of the act against the supplier also. But by that itself it cannot be said that there is a mandatory duty cast upon the Food Inspector to find out the said supplier to take action against him, particularly when the information is not given immediately eventhough required by PW1 at the time of sampling".

According to me, this decision has much bearing since Section 14 of PFA Act prohibits manufacturers, distributors and dealers from selling the food articles to vendors unless they give a warranty in writing in the prescribed form. R.12A of PFA Rules also provides for it. These provisions have to be read along with Section 19(2) of the Act. S.19(2) makes it clear that the burden is on the vendor to produce warranty and to prove that he purchased the Food from a particular person under a warranty.

A combined reading of the above sections along with Section 20A of PFA Act, makes it clear that the Food Inspector cannot be blamed for not impleading the petitioners in the Crl. M.C. in the complaint itself. Mere knowledge on the part of the Food Inspector that the present petitioners are the manufacturers is not sufficient enough to state that he has a statutory obligation to implead the petitioners in the complaint itself. So according to me, the observation in para.5 of the judgment that the Fl ought to have impleaded the petitioners in the complaint itself is per se not correct especially in the light of the observations made by His Lordship Justice Padmanahhan in Food Inspector v. Sathiskumar [2]which is extracted below:-

"In fact it is not the duty of the prosecution to prove the ingredients of Section 19(2). Those ingredients will have to be specifically alleged and proved by the accused".

No statutory right to petitioners :

A plain reading of Section 13(2) would clearly indicate that the Local Health authority need send the notice under Section 13(2) only to the person from whom the sample was taken and to the person, if any, whose name, address and other particulars have been disclosed under Section 14A of the Act, after the institution of prosecution. This section is not applicable to other persons impleaded later.

It is true that a Magistrate is at liberty to invoke its power and jurisdiction and to allow an application by an accused to send the second sample to Central Food Laboratory even after the expiry of the period of 10 days as stead in Food Inspector v. Karunagappally Co-operative M.S. Society Ltd. [3] But the accused has to satisfy the Court that there was no latches or fault on his part. But in State of Kerala v. P.K. Chamu [4] our High Court has held that if there was no delay or defect on the part of the prosecution, but the accused did not choose to exercise his right to have the sample sent to the Central Food Laboratory within a reasonable time and exercised his right only after a considerable lapse of time and by reason of that delay the sample deteriorated, he cannot turn round and say that he has been deprived of his right under S. 13 of the Act. Same view was taken in Gopalakrishna Kurup v. State of Kerala [5] and in Prabhu v. State of Rajasthan. [6] So according to me the petitioners could be exonerated relying on the first report of the Central Food Laboratory in which no analysis was done and according to me the second report of CFL alone becomes final and conclusiveness can be given only to that. To give imprimatur of conclusiveness there must be a report from CFL after conducting a proper analysis. As the second sample was not analysed by the CFL there is no conclusive report.

Expression "Damaged"- Meaning of

The decision of the Allahabad High Court is relied on by the learned Hon'ble Judge in the judgment under study and then observed as follows:-

"The contents of the bottle also cannot be said to be damaged, as the bottle in which the sample was kept was quite intact and seals were also not tampered with. Therefore, it cannot be said that the sample already sent to the laboratory is "lost or damaged". Ss.(2-C) of the Act provides, that only when die 2nd sample is lost or damaged die Court can order that the third sample be sent to Central Food Laboratory".

With due respect it is submitted that this dictum is against the principle laid down by our Apex Court in Charanji Lai v. State of Punjab [7] in which it was held as follows:-

"Under the scheme of the Act, the remaining two parts of the sample are kept with the Local (Health) Authority in order that in case the part of the sample sent to the Public Analyst under Section 11(1)(c)(i) is lost or damaged, or one of the remaining two parts of the sample sent by the Court to the Director of the Central Food Laboratory under sub-s.(2B) of Section 13 is lost or damaged, the remaining part or parts are preserved for further analysis by the Public Analyst, or the Director of the Central Food Laboratory, as the case may be. It would be seen that the phrase lost or damaged' appears both in sub-s.(2) of S.11 and in the proviso to sub-s.(2C) of Section 13 and these provisions have been inserted by Parliament with a definite object.

The word "damaged" in the collocation of the words "lost or damaged" appearing in the proviso to sub-s.(2C) of Section 13 in relation to the part of the sample sent by the Court to the Director of the Central Food Laboratory must, in the context, mean damaged due to any cause, including decomposition. The part of the sample sent by the court to the Director of the Central Food Laboratory under the proviso to sub-s.(2C) of S.13 may be either damaged due to the container not being property sealed or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word "damaged" in the collocation of the words "lost or damaged" occurring in sub-s.(2) of Section 11 and in the proviso to sub-s.(2-C) of Section 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis.

So it is clear that decomposition of the sample will also come under the purview of the term 'Damaged' mentioned in sub-s.(2C) of the Act. In this case under study the third sample was fit for analysis and it was neither damaged nor decomposed.

Premature findings: alien to judicial process

In para. 5 of the Judgment the Hon'ble judge held that since the curry powder contains salt the moisture content may increase due to natural causes by lapse of time. According to me, this observation is also against the settled principles of law laid down in a Full Bench ruling in Mathukutty v. State of Kerala, [8] wherein it is observed as follows:

"What the legislature intended to check and prevent is the adulteration of article of food so that the Public Health is not endangered. Accordingly expert committee on food standards is constituted and standards are prescribed for various food articles. In fixing such standard the committee must have taken into account the variations that occur under normal conditions.

When the sample taken is properly packed, sealed and fastened and Analyst finds the sample fit for analysis the court cannot assume that supervening delay in analysis would have caused material change in the quality or standard of sample in the absence of relevant evidence."

It was also held that divergent opinions in the report of the Public Analyst and the Certificate of the Director of Central Food Laboratory cannot be compared and to contend that the variations occurred due to the interval between the analysis by the Analyst and the Director. It was also made it crystal clear that when all formalities are substantially complied with and analysis shows that the article does not conform to the prescribed standard, the result of analysis can be safely acted upon and that the burden of proving that the presence or increase of the vice affecting the sample is due to natural causes or otherwise during storage is upon the accused.

It is also well settled that any kind of delay in complying with a formality will not per se prejudice the accused. [9] Since the 3rd sample was fit for analysis and the report of the Director shows that the article was adulterated Court cannot presume for the possibility that the increase of moisture content was due to the lapse of time, especially when the burden of such matters is upon the accused who puts such a plea. Ss. 105 and 106 of the Evidence Act also will support my reasoning.

It is true that proviso to sub-s.(5) of Section 13 of the Act says that the Certificate signed by the Director, Central Food Laboratory shall be final and conclusive since it is conclusive proof as defined in Section 4 of Indian Evidence Act; and it does not require formal proof and no evidence can be allowed to be adduced to disprove the fact therein. [10] This does not mean that the report of the Director on the 2nd sample becomes conclusive and the third report become inadmissible. Since the second sample was unfit for analysis and no analysis was done that report cannot be treated as final and conclusive. The trainers of this statute would have anticipated such a contingency and that is why they incorporated a proviso to sub-s.(2-C) of the Act for further analysis by the Director when the second sample is lost or damaged.

Conclusion

Foot Note

1. 1991 Crl. L.J. 1115 (A.P.)

2. 1985 KLT 1093

3. 1986 KLT 174 at para.58

4. 1975 KLT 411 at para. 5

5. 1971 KLT 16

6. 1994 (1) KLT SN 33 (C.No.31) SC

7. 1984 Cri. L.J. 15 (SC) at Paras.12 and 13

8. 1987 (2) KLT 867 (F.B.) paras.14, 15

9. 1984 KLT 27 para.11, 1986 KLT 174 para.11, 1986 KLT 852 para.4, 1989 (1) KLT 707 paras.8, 20, 22 & 24.

10. 1994 (1) KLT 1006,1987 (2) KLT867

Protest Complaint

(By S.A. Karim, Advocate, Trivandrum)

The Criminal Procedure Code, hereafter refers the Code, provides provisions for police charge case and the complaint case. It does not contain any provision for protest complaint. Police charge case starts with first information report and ends with fifing charge to a competent court for trial. Ss.154 to 173 of the Code state the procedure. It relates to cognisable case. After the first information report, the investigating agency finds the case is either false, non-cognisable or mistake of fact, etc, refers the case and intimates the same to the informant. Kerala State Police has prescribed the following form.

K.P.F. ..........,................. Order No.............

Kerala Police

(Duplicate)

Notice to informants under Section 157(2) and 173 Cr. P.C.

Please take notice that your complaint under Section.............Indian Penal Code (a) has been reported to the..............Class Magistrate of.........................to be (1) false (2) non cognisable, (3) mistake of fact or law (4) undetectable (cases in which investigation are referred at any stage comes under the head) (5) under S..............IPC (b) and that if you want to oppose this report, you will have to do so, before the above Magistrate within a week from the date of receipt of this notice.

                                                                                          Signature of Police Officer

Notes:

(1) If under other laws, specific enactments (a)

(2) Number (5) is to be used 'only' in case charge sheeted by Police.

(3) Score off portions not applicable.

This notice is called refer report. Along with the refer report the aggrieved files complaint on the same matter to the competent Magistrate. It is called protest complaint; In the instant case protest means the failure of the investigating agency to file charge on the stated offence.

Ss.200 to 203 of the Code deal with complaint case. It applies to non-cognisable case, and provision requires written complaint to initiate proceeding. In case an aggrieved files complaint to a Magistrate Court on a cognisable offence, the Court in turn sends the same to the police for investigation under S.156(3) of the Code. It's possibility to refer cannot be ruled out. In this contingency, the investigating agency intimates the complainant in the form stated. Protest complaint is the only remedy open to the case referred on police investigation and on complaint sends down under S.156(3) of the Code. S.2(d) of the Code defines:

"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

The definition relates to the 1st complaint. The protest complaint is one that is reported against by the investigating agency once. There is no provision in the Code to this purpose. Many a Magistrate demands provision for filing protest complaint. In the given circumstance, the aggrieved has to forgo the offence. So, it is time to incorporate suitable provision in the Code of enable the aggrieved to file protest complaint.

Arrest, Bail, Jail and Trial

(By S.A. Karim, Advocate, Thiruvananthapuram)

The procedure for arrest, bail, jail and trial of criminal case, among other things, are dealt with in the Criminal Procedure Code, hereafter referred the 'Code'. There is cognisable and non cognisable offence as well as case. In the former police arrests the accused without warrant from a competent court. In the latter warrant is a pre-condition for arrest. The classification of offence in the first Schedule of the 'Code' details cognisable and non-cognisable offence. The same Schedule speaks about bailable and non-bailable offence.

Arrest of accused is the most essential part of investigation, enquiry and trial. Without arrest, or bail, or jail, no trial ends. Chapter 5 of the 'Code' narrates the arrest of accused and its various circumstances. It includes arrest on refusal to give name and address, arrest by private person, and arrest by Magistrate. Section 89 of the Code relates to arrest of accused by a Court on breach of the bond for appearance. Section 151 enables the police to arrest to prevent commission of cognisable offence. Section 390 of the 'Code' is another provision to issue warrant by a High Court to arrest accused in appeal from acquittal.

The Police once arrests an accused, produces before a competent Court. The Court either grants or refuses bail, considering the gravity, seriousness and nature of the offence. Ss. 436 and 437 of the 'Code' speak about bail of accused. The former is for bailable offence, and the later is for non bailable one. Section 437 reads -

"When any person accused of or suspected of the commission of any non bailable offence, is arrested or detailed without warrant by an officer in charge of a Police Station or appears or is brought before a Court, other than the High Court or Court of Session, he may be released on bail, but.......". The underlined portion is the same in Section 436. It is singular in expression and pertains to arrest, or appearance or brought before a Court for one particular offence.

There is instances, where the Court refuses bail to accused once arrested, appears or is brought before a Court. If the same accused involves in another offence, the Police submits report to the Court narrating the offence involved. In such case, certain Magistrates issues production warrant, take cognisance of the offence and either grants or refuses bail to the accused according to the circumstance of the case. Many a Magistrate refuses to act on the wording of Sections 436 and437 of the Code "arrested or appears or in brought before a Court" as it relates to one particular offence. The later view prevails it takes longer time to try cases of under trial prisoner. In the former view the matter becomes easy. Speedy disposal of under trial prisoner is the rule. Everything depends how a Magistrate understands and interprets the relevant portion of law. Once a matter becomes un-settle, it is just and proper to settle it.

Interest and Expense on Dishonourned Cheque

(By S.A. Karim, Advocate, Thiruvananthapuram)

Money is what money does. In trade and commerce, cheque, bill of exchange, and promissory note are used commonly instead of liquid cash. These three are called negotiable instruments. In number of dealings, cheque stands first. Minimum three parties involve in a cheque. Drawer is one who deposits money with the drawee, who is always a bank. Payee is the receiver of money from drawee bank. There, are holder and holder in course. In fact, they are legal heirs of payee and have the same rights and obligations. Drawer issues cheque on the drawee bank, who pays the money to the payee. There ends the transaction. This system has been built upon trust and is the same throughout the globe.

Once a cheque is dishonoured, there begins trouble. The relationship between the drawer and payee is debtor and creditor or borrower and giver. The dealing may be money or money's worth. In this context, Ss.138 to 142, Negotiable Instruments Act, 1881, comes to play. Before dishonoured cheque goes to court, it needs to satisfy several preconditions. One is to issue demand notice narrating dishonour.

"Section 138(b) says- The payee or the holder in due course of the cheque, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from die bank regarding die return of die cheque as unpaid".

So, the payee takes the matter with lawyer. There incurs bank charges, notice charge, postage and travelling and other expenses to the payee. Money is always active and presumes to be earning profit, but in different names. In dealings of goods, if is profit; in service it is fees or salary or wages as the case may be and in money dealings, it is interest. Cheque means money. So, in cheque transaction interest involves.

Interest Act, 1978, Act, 14 of 1978, guarantees interest. S.3(1) of the Interest Act says,

"In any proceedings for die recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damage already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person amking such claim as the case may be at the rate not exceeding the current rate of interest, for the whole part of die following period, that is to say (a) if die proceedings relate to a debt payable by virtue of a written instrument at a certain time, then from die date when die debt is payable to the date of institution of die proceedings".

This is all about dishounour of cheque. The drawer is solely responsible for this situation. In the instant context, the payee takes all the trouble. If section 138(b) reads in between the lines it means the amount on the face of the instrument. If the same matter agitates in the Civil Court, the payee gests interest and expense. Therefore, the Parliament intends to include, interest and expense with the expression "MAKE A DEMAND FOR PAYMENT OF THE SAID AMOUNT OF MONEY BY GIVING A NOTICE IN WRITING" under S.138(b), Negotiable Instruments Act, 1881.