Sweet and Sour!

(T.G. John, Advocate, Trichur)

The court room is often likened to a stage, with the Judge, the lawyer and the litigant as the leading lights of the play. A layman cannot just comprehend the many technicalities, the tactical niceties and the hair splitting commonly associated with the temples of justice.

Unpremeditated humour often sends the audience into peals of laughter. Once an eminent advocate of our country was arguing a case before a Judge who had risen from the bar. The Judge was in the habit of snubbing his erstwhile collegues. One day while a case was being argued, the lawyer referred to a book of which there was only one copy which was the one in his hands. The Judge asked for it and it was passed on to him. While going through the book, the Judge found a bug. Addressing the lawyer he said "There is a bug in your book". The lawyer replied at once. "Sir, it is one of those ambitious bugs which have gone from the bar to the bench.

Readers of Serjeant Robinson's 'Bench and Bar' may recall a pleasant story he tells of Danby, a former wigmaker in the Temple. One day, says Robinson, a legal friend went to Danby's to have his hair cut, and while the operation was in progress, he noticed a small boy of about ten years playing in the shop. The customer asked Danby whether the boy was his. "Yes Sir" was the reply "to the best of my knowledge and belief. "And what do you mean to make him?" was the next question. "Well, Sir, as at present advised and without prejudice, if he turns out a sharp clever fellow I mean to bring him to my own business, but if he should prove to be, in the efflux of time, a dull, idle, blockhead -- as I think it is not unlikely he will -- I shall send him to the Bar". Apart from the humour of the little incident and its sly hit at the profession, it amusingly exhibits the love of legal expressions which the wig-maker had managed to pick up in the course of his work and his daily contact with lawyers, 'To go bail for', 'to join issue with', 'a moot point', 'possession is nine points of the law', are only a few of the idioms which the law has presented to our current English.

Here is a fascinating story of a Judge who was not very alert to the arguments advanced at the bar. The Judge while the argument was progressing suddenly noticed that a donkey had started braying outside the court room. He enquired 'what is this noise?' Pat came the reply from the lawyer arguing the case "Sir, this is the echo of the court". The witty retort elicited laughter in the court room. The Judge became very attentive thereafter. Soon he got the better of the lawyer, The donkey started braying again and the Judge comically remarked "Please don't both of you speak at the same time".

Some times an affable insolence heard in the court relieves its tedium., The story goes of a prisoner who was an old offender not unknown to the Judge who was trying him 'It is time you checked in your carrer of crime' said His Lordship. "How many times have you been convicted of this offence before?" 'Five' was the man's unruffled reply. "Five" said His Lordship. "Then this time I shall give you the maximum sentence laid down by the law".

'Maximum?' echoed the prisoner "Don't the regular customer get a discount?"

Before electric fans came in vogue punkhas used to be tied to long ropes which were constantly pulled by coolies and some times by peons. One hot sultry day in the Madras High Court, the Judge went to sleep. The late Mr. Norton, who was arguing the case before him found himself in awkward position. It so happened that the peon was also enjoying a nap. Mr. Norton felt very annoyed. He thumped the table with his books as a result of which both the Peon and the Judge woke up with a start. The Judge asked the counsel, 'Why what is the matter?' Mr. Norton's crushing retort had the telling effect. "Oh, nothing my Lord --it is only the impertinence of the peon to think that he can go to sleep in the open court, as if he is also a Judge".

Mr. Justice Khosla, the former Chief Justice of Punjab High Court, recounts the story of a lawyer who was not very particular about his dress and appearance. One day unexpectedly, he appeared in court meticulously dressed. He was well groomed wearing a new gown. The Judge slyly sizing him up said, 'it seems you got a lottery'. The lawyer repaid in the same coin at once and retorted "My Lord, how can I be so lucky as you are. Your Lordship gets a lottery on the first day of each month".

An eminent lawyer who had made a significant contribution to court room humour was an Irish Barrister John Carran, considered to be the high priest of the scintillating repartee. An Irish Judge had trained a small dog to sit beside him in the court. One day when Curran was arguing the case, the Judge turned his eyes from him in contemptuous indifference and started fondling the dog. The barrister stopped, 'Go on' said the Judge. 'I beg your pardon' answered Curran 'I thought your Lordship was in consultation'.

The same Judge once said to Curran, 'Oh Sir if that is the law, I may burn all the law books'. 'Oh no my Lord, better read them' came the witty reply.

Tailpiece:

'The greater the number of laws and enactments, the more thieves and robbers there will be'. LAOT ZU Chinese philospher.

The Rule of Law

(T.G. John, Advocate, Trichur)

"Let all things be done decently and in order", said St. Paul to the Corinthians, and from the beginning man's desperate struggle, for order and justice has given force to the law. It gave force to the divinely inspired canons for human conduct of Moses; it gave force to the rule of the Hindu Manu, the 'Babylonian Hammu Rabi, the Roman Numa and the Greek Lycurgus; it gave force to the law as a human science in the Digest of the Roman Emperor Justinian; it gave force to the common law of England, based on principle, shaped by experience, controlled by reason. That force survived and beat down the political absolutism of the 17th and 18th centuries which held that the law was no more than the will of the sovereign. Sir Edward Coke immortalised Bracton's words "Rex non debet esse sub homine Deo at lege". (The King ought not to be under man, but under God and the law) - by flinging them in the furious face of absolutist James-1 of England. Then Coke fell to his knees in terror of losing his head -yet his doctrine lives today as the well-spring of the rule of law.

According to Hindu Legal theory, Law is intended to promote Dharma or Righteousness which in turn is conducive to secure 'moksha'. The concept of Dharma as the basis of validity of all laws is deeply embedded in the Indian mind. Dharma is a higher law which the king himself is bound to respect and enforce. The Smritis hold that every deviation from Dharm, if brought to the notice of the king, will be punished by him. According to Manu, the king who harasses his Subjects loses his family, life and kingdom. "The people should take courage and kill a cruel king who does not protect his subjects, merely robs their wealth who extracts taxes and who gives no lead. Such a king is Kali (evil and strife) incarnate". (Anusana Parva). Mitra and Varuna are declared to be "lovers and cherishers of the law". They are invoked as "lords of the shining light" to protect men not only from their enemies but from the forces of nature. "The winds waft sweets; the rivers pour sweets for the men who keeps the law; may be plants be sweet for us. Sweet be the night and sweet the dawns, sweet the terrestrial atmosphere, sweet be our Father in Heaven to us". (Rig. Veda. Book I, Hymn 90).

According to Savingny, Law is the organ of folk right; it moves and grows like every other expression of the life of the people; it is formed by custom and popular feeling,' through the operation of silent forces and not by the arbitrary will of a Legislature. In Marbury v. Madison, Chief Justice John Marshall unarmed except for the force of law, determined the right of judicial review over legislative decision, gave breath and blood to the American precedent, as "a Government of laws and not of men". So it was also that at the testing time of that Republic, Abraham Lincoln was a man who knew only two basic books - the Bible and Blackstone's Commentaries on the Law. Richard Hooker has stated that law can be no less acknowledged than that her seat is in the bosom of God; her voice the harmony of the world; all things in heaven and on earth do her homage-each in a different sort and manner admiring her as the mother of their peace and joy.

The guiding principle of the American Constitution (in fact the motto of the constitution of every civilized nation) has been explained:-If men were angels, no Government would be necessary. In framing a Government which is to be administered by men, over men, the great difficulty lies in this: You must first enable the Government to control the Government; and in the next place, oblige it to control itself. The origin of the rule of law is based on certain fundamental propositions founded on certain natural rights inviolable and inviolate and which have emerged in the process of the evolution of the human being due to the development of culture and refinement. The origin of the ideas of individual liberty, freedom and private property are all milestones on the way from savagery to civilization. Prof. Lasky says: "From the Rule of Law, in a word, there is imposed on the State, the obligation to assume to each and all its citizens the means to enable them to contribute all it is in them to give to the fullest realization of social solidarity. It is because of this obligation that the State is entitled to use force for the achievements of its end. For all the matter that is essential for the purpose, there should be constitutional guarantees in the ultimate framework of the State. In such an attitude we have all the materials for the full the theory of the State. Experience is to suggest in terms of social solidarity a rule of right conduct and the aim of the State is its realization. The State clearly is bound by the rule, that is to say, bound by law, for by every definition, it is an instrument and not an end".

With all this, sometimes we do feel really concerned about public morality. It is our chief and indeed our only protection against tyranny and exploitation. If we could not rely on our politicians to give an honest account of their official conduct and intentions, if we could not rely on our civil servants to administer affairs impartially, if we could not rely on our magistrates and judges, to enforce equality before the law, if we could not rely on the police not to practice torture and not to manufacture evidence, if we could not rely on the Press to make an honest attempt to ascertain the facts and to report them fairly, not only should we be deprived of any control over the conduct of public affairs but we should be denied the security which is essential for our private well being. Among all forms of official wickedness, the perversion of justice outrages us most. Not that the egoism, or even the stupidity of a politician or the corruption of a civil servant may not do more harm. But we look on the law as our protection against the infringement of what we take to be our rights. Even though the laws themselves may be oppressive or discriminatory there is some safeguard in their being honestly applied. And we feel most deeply threatened and wounded when a miscarriage of justice arises out of political, racial or communal prejudice.

Personality Disorders and Nullity of Marriage According to Church Jurisprudence

(Rev. Dr. Joseph Vadakumcheny, Presiding Judge, Archdiocesan Tribunal, Ernakulam)

The Ability to Assume the Marital Obligations

As in every contract, consent is the efficient cause of the marriage covenant, and the deficiency of this consent cannot be supplied by any human power other than the spouses themselves. In order for a marriage to be contracted validly, a psychologically valid consent, elicited in terms of due mental discretion alone, will not be enough. The spouses should also be in a position to decide upon or reach out the object of the marital consent, which points to the capacity of the contractants in respect of the very object of marriage, and this capacity is termed by jurisprudence as 'the ability to assume the marital obligations'.

Viewing marriage objectively, we can see that the object of the marriage covenant is the formation of a permanent family, which entails the mutual rights and obligations which level with the nature, purpose, and the essential characteristics or properties of marriage. Hence, the spouses, while entering marriage, should be endowed with the emotional maturity and 'the capacity to assume', whereby they can bind themselves in order to sustain, honour, and fulfil the essential obligations of marriage.

A person's inability to assume marital obligations can be said to be amounting to a consensual defect, only in the sense that a psychologically valid consent could be rendered inefficient with regard to the object in so far as the object of the marital consent would be far beyond the reach of the contracting person (subject) because of his/her 'personality make up' which impedes him/her from carrying out the obligations of married life.

Lack of due discretion necessarily implies inability to assume marital obligations, and not vice verse. For, the marital consent is of the present ('de praesenti') and the marital obligations which constitute the object of the marital consent are to be. under- taken here and now at the time of marriage, and hence the person who is bereft of the due discretionary power of the mind is also enept to assume the object of the marital consent.

On the other hand, a person because of some personality disorder, though not deprived of the due discretionary power at the time of marriage, can remain enept to sustain, honour, and fulfil the obligations of married life. In such a case the marriage can be declared null on the score of the 'inability to assume marital obligations' alone. That is why the present Rotal Jurisprudence recognises 'inability to assume marital obligations' as an autonomous ground of nullity as distinct from the 'lack of due discretion'.

Since marriage-consent is of the present and the marital obligations are to be assumed here and now at the time of the marriage, 'the inability to assume' of either contractant is to be assessed with respect to the time of marriage, so much so, it should exist at the time of marriage and not at a later period. An example will illustrate this: suppose that somebody has reached an agreement to buy a house, and unfortunately the said house was razed to the ground at the event of an earthquake or any other calamity, precisely before the registered deed of contract was executed; the buyer unaware of the incident executes the contract deed in respect of the house which was inexistent at the time of the purchase deed; since it was a contract regarding an inexistent thing, the said contract cannot be but invalid. In like manner the marriage contract would be invalid, were it to be effected when either of the spouses had not the ability to assume the obligations of marriage. The 'inability to assume' is also termed as incompetence.

The Essential Rights and Obligations of Marriage

Traditionally the essential rights and obligations which constitute the object of the marriage-consent were limited to the exchange of the right to those acts necessary for procreation of progeny ('bonum prolis'), to a life-long marriage ('borumSacramenti'), and to fidelity in marriage ('bonum fidei').

Already in the Encyclical "Casti Connubi", Pope Pius XI had included among the essential marital obligations of spouses, "the generous giving of self and the life-long commitment of the person to the partner in marriage" (Preface).

The Pastoral Constitution of Vatican II, "Gaudium et Spes" (n. 48), while describing marriage as "an intimate partnership of life and love", and "as a mutual giving of two persons" has enlarged the extent of the rights and obligations of marriage also to "the community of life and love". The Council indeed speaks of a sane interpersonal relationship between the spouses about which St. Thomas Aquinas has already preluded (Suppl., q. 44, art -1).

The Jurisprudence of the S.R. Rota has taken proper account of the mind of the Vatican Council while judging the marriage -nullity cases. The Rotal Judge Serrano in a decision, dated 5 April 1973, states that as matrimonial consent is primarily and radically directed to the interpersonal relationship, the partner in marriage, who, because of his/her personality make-up, is simply unable to form an adult personal relationship, cannot contract a valid marriage (SRRD: Vol. LXV, p. 330-331, nn. 11,12).

The Communion of Life and Love

The revised legislation of the Church while defining marriage has incorporated the Conciliar concept and terminology on marriage: "The marriage covenant established by the Creator and ordered by His Laws, by which a man and a woman, by an irrevocable personal consent, establish between themselves a partnership of the whole life, is by its natural character ordered toward the good of the spouses and the procreation and education of the offspring" (CCEO, 776; CIC, Can. 1055). If the marriage is'a community of life and love', then the marriage-partners, must conscientiously give to each other the right to this community of life and love together. That means, a prospective spouse must be able to make a rudimentary assessment of the capacities of oneself and of the partner, and to decide freely that he/she wishes to establish a perpetual and exclusive community of life and love with the partner, a community that will involve-a life-time of fundamentally faithful caring and sharing (Lawrence G. Wrenn, Decisions, Washington, D.C., 1982, p. 160). This consideration opens the way to deal with easily those marriage cases in which one of spouses, because of some personality disorder, is unable to give the marriage partner this right to a community of life and Jove in marriage.

The communion of life stands out as the basic and overall marital obligation, and as such it comprises all other essential obligations which marriage entails. Hence the capacity to promote a mutually committed interpersonal relationship in view to fostering generously the community of conjugal life and love can be considered as an indispensable specific capacity the spouses should be endowed with.

In other words, the communion of life and love on the basis of an interpersonal relationship presupposes in the spouses a unique capacity coupled with that state of mind which is solicitous of promoting the well-being of the one by the other, of being a mutual aid in love and fidelity, of giving oneself and accepting the other as a distinct person, and of relating to each other in a meaningful manner of caring, sharing and supporting (The Code of Canon Law: A Text and Commentary, TPI, Bangalore, 1986, p. 777-778; SRRD: Coram Serrano, 9 July 1976: Monitor Ecclesiasticus, 102 (1977), p. 369Sq.)As the main radical capacity of those called to married life, it engenders all the rest of the subsidiary capacities which are necessary to guarantee and protect the three 'bona' of the marriage covenant, namely, the procreation and education of children, a life-long committed married life, and the marital fidelity. That means, the incapacity or inabilility on the part of either of the spouses to assume and fulfil any one of the essential obligations, whether it be relating to the 'bonum prolis', or 'bonum Sacramenti', or 'bonum fidei', or communion of life, is sure to render the marriage-consent defective on the part of its object.

Though it is difficult to determine the quantum of the marital obligation relating to communion of life and love, it is nevertheless possible to determine those obligations which would constitute a required minimum without which there could be no marriage at all. A true marriage certainly requires the ability to establish and maintain at least a minimum kind of common life, ie, a certain minimum capacity of the couple to share their lives together in more than a physical sense.

Adverse Impact of a Personality-Disorder on the Communion of Married Life

A person can be rendered incapable of true matrimonial consent on the score of 'inability to assume' by a phychic disorder. Excepting the qualified cases of Psychoses which necessarily impair the required discretionary power of the mind, there can be cases of psychopathis personalities which are personality disorders exhibiting a variety of abnormal behavioural patterns to the extent of causing harm either to oneself (Neuropaths) or to the society (Sociopaths). "The abnormal is but an exaggerated or unbalanced expression of the normal - mode of behaviour or of living which is logical although socially maladjusted outcome of the particular individual's original endowment" (Kolb, Modern Clinical Psychiatry, 9th ed., W.B. Saunder's Company, Philadelphia, London, Toronto, 1977, p. 119).

In the chapter dealing with the matrimonial consent, Canon Law rules: "Those, who, because of causes of a psychic nature, are unable to assume the essential obligations of marriage, are incapable of contracting marriage (CCEO, 818, n. 3; CIC, 1095,n.3).

It is to be noted that only personality disorders of psychic nature, which stem from the original endowment of the particular individual can bring about the inability which is our present consideration. Hence Vices which are acquired habits due to the malice of the will cannot give ground to a nullity case on the score of inability to assume.

Psychic anomalies like severe immaturity, Neurosis, Psychopathy, Borderline cases etc. could be pointed out as general causes of the psychic incompetence, and the

personality disorders like homosexuality, Nymphomania, Trans-sexualism etc. would be some of the particular causes for the said incompetence, deriving from any of the aforesaid general causes.

Although Modern Psychiatry distinguishes a variety of psychopathic personalities amounting to ten different kinds, all of them have certain common traits like immaturity, egocentrism, non-communication, propensity to tell lies, debility of the mind, inability to take a practical decision etc. (SRRD: Coram Raad, 13 Nov. 1979: Monitor Ecclesiasticus, 105 (1980), p. 33, n.6).

It is characteristic of the psychopathic personalities that, while their mental faculties remain intact and unimpaired, they are prone to be unsteady and their fluctuating suggestibility and affectivity are wont to produce a certain immaturity which renders them incapacable of having control and evaluative insight into life whereby the sufficient freedom of choice would be lacking in them. The immature personality is exemplified by a lack of psychic maturity, dependency, incapacity of accepting responsibility etc.

In the case of psychopathy or personality disorders, it is not easy to determine practically whether the disorder has reached such a stage at the time of marriage as to render the contract incapable of assuming marital obligations. There is no favour of presumption on the part of law in such cases. Only the existence of a very serious and aggrevating circumstance in connection with the marriage would give grounds to absolute incompetence of the contractant. It is in this sense that Canon law speaks of the 'inability to assume'.

Some Ecclesiastical Tribunals, especially of the United States, seem to consider also relative incompetence termed as 'psychological or radical incompatibility' (mutual inability to fulfil the obligations of marriage) as giving grounds for nullity of marriage on the score of inability to assume'. This relative incapacity, accordingly, is any psychological incompatibility tantamount to a personality disorder which renders one incapable of fulfilling the obligations of marriage only with a particular person.

Whatever be the terminology adopted in order to designate this relative incapacity, as a matter of fact, this cannot be an acceptable criterion at all to decide upon the nullity of a given marriage. For, we cannot speak of any true moral impotence or incompetence which is shared half and half mutually by both the spouses. The invalidating psychic anomaly should exist in an aggrevating degree in either or in both the spouses. In either case it can be only an absolute incompetence. The relative incompetency can bring about only difficulties in a given marriage and not any invalidating circumstance.

We should bear in mind that there is adequate distinction between impossibility and difficulty. So too there is distinction between inability and incompatibility. Cases of inability result in impossibility, while the cases of incompatibility bring about difficulties only which could be surmounted by the intervention of good will and efforts for adaptation and adjustment on either side. Lack of this good will and efforts at the opportune time during the course of joint married life cannot argue apt all for the nullity of as marriage on the score of inability to assume and fulfil the obligations of marriage. Hence the incompetence in order to be invalidating the marriage consent, should have already existed as a serious personality disorder which had irremediably rendered either of the contractants really incapable of assuming the essential obligations of marriage at the time of contracting the marriage.

Reflections on Leelamma v. Dilip kumar-1992 (1) KLT 651

(By Fr. Joseph Vadakkumcherry, Archdiocesan Tribunal, Ernakulam)

It was a moment of exultation for the Church in Kerala when the High Court of Kerala delivered its judgment in Leelamma v. Dilip Kumar on February 24,1992.

The facts of the case can be summarised as follows:--

The petitioner in this case was a Syrian Catholic wife and the husband, the respondent, was an Ezhava by birth. Concealing the fact of Ms being an Ezhava, be pretended to be a Syrian Catholic, and obtained the consent of the petitioner tor marriage. Thereafter, presenting himself as the son of Syrian Catholic parents, k& received baptism from a Catholic priest, before the marriage actually took place. The petitioner, wife, therefore, prayed for a declaration of nullity of the said marriage under S.19of the Indian Divorce Act on the ground of "Fraud".

The Hon'ble High Court after referring to the Canon Law for the first time has laid down in categorical terms that the personal law applicable to Latin and Syrian Catholics is their respective Code of Canon Law, and declared the said marriage null and void on the ground that misrepresentation regarding religion or community is "fraud" and that it has vitiated the consent of the petitioner in this case.

Though there were decisions of various High Courts in India and that of the Supreme Court on this point, they were not understood in their proper perspective when this Hon'ble High Court dealt with Kurian v. Alphonsa (1986 KLT 731) and Jose v. Alice (1988 (2) KLT 890). There the Court proceeded on a basic assumption that there was conflict between Canon Law and Civil Law. In fact, that was not the case at all.

Canon Law always respected the Civil Law. Further Canon Law provides for adjudication of civil effects of marriage by a civil court (see Canons 1059,1062. and 1672 of the Code of Canon Law, 1983, of the Latin Church, and Canons 780 and 1358 of the Code of Oriental Canon Law, 1990).

The 1988 and 1988. cases in the Civil Court could have been resolved without entering into any adverse finding on the proceedings under the Canon Law, as those cases were concerned only with the question of the civil effects of marriage, like maintenance. In my opinion those decisions did not advance the development of that branch of civil law on marriage and divorce, rather, only hindered its growth.

It is interesting to note that the constitutional provisions under Art.44 for the ena - tment of a Uniform Civil Code remains a dead letter and the Muslims are allowed to be governed by their personal law. Yet, when it comes to the Christians, they ought to be the only "Indians" in India. For example, the Indian Divorce Act of 1869, and the Indian Succession Act of 1925, are by their title meant to be for Indians, but for all practical purposes, they are applicable only to the Christians in India.

Therefore, when the Muslims and other communities are governed by their personal laws, there should be no reason why those Indian Christians belonging to the Catholic denomination be discriminated in that matter, especially, when they have their respective Code of Canon Law as their personal law. In fact, the Latin and the Oriental Codes of Canon Law are well developed and refined systems of law and in no way inferior to any other legal system for that matter, but can only claim superiority on the score of the timely revision and updating and especially when the Civil Law remains unamended even after a century.

Under the circumstances, the recent judgment of the High Court of Kerala assumes special significance. The High Court in this case has held in categorical terms, after referring to and relying on the decision in Lakshmi Sanyal v. S.K. Dhar (AIR 1972 SC 2667), that Canon Law governs the members of the Syrian Catholic Community.

In fact the Supreme Court in the aforesaid case had already held that "The question of capacity to marriage and impediments in the way of marriage, would have to be resolved by referring to their personal law. That, for the purpose of deciding the validity of the marriage would be the law of the Roman Catholic Church, namely, the Canon Law of that Church."

Inspite of this decision of the Supreme Court in 1972, it was unfortunate that this could not be highlighted before the High Court of Kerala in 1986 and 1988. It is in this context that the present decision comes as a much awaited remarkable and appreciable judgment, which is rendered by Hon'ble Justice Chettur Sankaran Nair, for removing the confusion over the matter for the last few years, in the minds of the Bench and the Bar in Kerala. It is given to understand that Advocate Sebastian Champappilly M.A., LL.M., who is a scholar in the field, used his expertise to serve the Catholic Community through this case.

Search and Seizure under the Income Tax Act Popularly Known as 'Income Tax Raid'

(R. Krishna Iyer, Chartered Accountant)

Introduction

For long the Law Enforcement Authorities have used the power of search as a potent instrument to trace culprits, to unearth evidence of indictable acts. It has originally confined to stolen goods, its usefulness forced its recognition, now extended to the Income-tax Laws also. The Criminal Procedure Code 1973 has detailed provision in this behalf. Such powers of search are now extended to civil enactments relates to taxes, duties etc. The persons against whom such searches are instituted are broadly classified as economic offenders, It is viewed that economic offences against the State, deserve to be punished severely, intention is to dissuade them on committing such offences for his private gain at the cost of the Nation and to its detriment. After the introduction of this provision 'search' and 'seizure' have become very common and now it is known as 'Income-tax Raid'.

The expression 'Search' means taking possession of the records for the purpose of inspection. 'Seizure' means that the authority could take into possession the records and take them outside the possession of the assessee.

Objects

The object of this provision is prevention of evasion of tax. This is to unearth the hidden or undisclosed income or property and bring it to assessment. It is not merely to get information of the undisclosed income but also to seize the money bullion etc., representing the undisclosed income and to retain them for purposes of proper realisation of taxes, penalty etc.

The scope of S.132 of the Act is limited to articles and things mentioned in (a), (b) or (c). The Section does not include within its ambit immovable properties because the location of an immovable property is known and no search need to be made for it. Where the precise location of the article or thing is not known and where it will not be ordinarily yielded over by the person having possession of it and in such circumstances a search must be made for it.

The Hon'ble High Court of Kerala in a recent decision held that the department has no authority as per S.132 to seize the immovable properties and therefore the High Court set aside the action of the Income-tax Department to seize the immovable properties.

The Authorities prescribed under the Act for Search and Seizure.

There are two Officers at two different stages who have to apply their minds under the scheme.

(1) Director General or Chief Commissioner or Commissioner may authorise any Deputy Director, Assistant Commissioner or Income-tax Officer and they will issues a warrant of authorization for a search. These authorised officers have to direct another set of authorities to carry out the operations.

(2) The authorities not below the rank of an Income-tax Officer, who carried out the actual search and seizure operations.

Conditions for Issue of Order

If the Authorised Officer has reason to believe that;

(a) a person summoned to produce accounts etc. fails to do so or

(b) such person is not likely to produce the accounts; or

(c) a person is in possession of money, bullion, jewellery etc. which he has not disclosed or not likely to disclose as his income.

There is a distinction between clause (a) and (b). Under Clause (a) the particulars of the specific documents, books of accounts etc. which are required to be produced should be specified, whereas under Clause (b) it is not necessary to specify the documents in the warrant of authorization.

A 'reasonable belief’ is a pre-condition to be satisfied. This Section does not permit indiscriminate search and seizure. The 'belief of the Authorizing Officer must be honest and based on cogent material. By exercise of this power, a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purpose for which the law authorizes it to be exercised. Sri. N.A. Palkhiwala opines that this Section "confers dangerously wide powers of search and seizure on the authorities without any external check or safeguard for the citizens".

If the conditions are not satisfied, the search becomes illegal. If the Commissioner does not have information about the particular individual, then search authorization would be illegal. If an assessee has been regularly producing his books of accounts and if they are accepted, it would be unjustified to issue a Search warrant, unless there is information that he has been keeping secret account books also.

'Reason to believe' is a cardinal requirement for initiating a search. 'Reason' means cause or justification, the word 'believe' means to accept as proof or to have faith in it. The Supreme Court observed that the reason must be held in good faith and should not be a mere pretence.

Merely because an assessee has utilised his undisclosed income in constructing a spacious building, his premises cannot be subjected to search. It has been observed by the Supreme Court, that if a search warrant is challenged the burden lies on the Commissioner who has issued the warrant to satisfy the Court that he had taken action on proper and relevant material.

Powers of the Inspecting Officers

The Inspecting Officers before making Search has to call upon two or more respectable inhabitants of the locality to witness the search. The Search is to be made in the presence of said witnesses and a list of all things searched to be taken and signed by such witnesses. The authorised Officer can enter and search any building where he has reason to suspect that such books of accounts, other documents, money etc. are kept and he can even break open the lock of any door or locker, if the keys are not available, he can also seize the books of accounts and other valuables.

He has also the power of prohibiting a person from parting with the assets and books of accounts during the course of search. This power is called a 'freezing order' or 'attachment'. This power is used when the seizure of the said articles have become impracticable. The bank accounts can also be attached by this provision. The Court held that they can be included under valuable things. Even though the fixed deposit receipt itself is not an asset, still there can be a valid order against the Fixed Deposits. The Kerala High Court has also held that it is not practicable to seize the Fixed Deposit, therefore attachment is permissable. This Order can be issued by the Authorised Officer alone and that too during the course of Search. The prohibitory order issued to bank lockers without knowing the content or without making enquiry are bad in law.

A prohibitory order cannot be applied in case of godown or stock-in-trade without making a detailed verification, which would only reveal the unaccounted stock representing the undisclosed income.

The books of accounts and documents can be subject to prohibitary order if it is not practicable to seize them, but such books of accounts or documents would not have been produced by issuing notices or their usefulness to any proceedings.

The Examination on an oath during the course of Search and Seizure

The Inspecting Officer is empowered to examine any person on oath who is found to be in possession or control of books, valuables etc. This power is not for the purpose of general investigation of the assessee but for the limited purpose of seeking an explanation or information in respect of the documents, articles or things found during the search. The questions have to be relating to documents, jewellery, money etc., found in possession of searched party. Those questions regarding past events, example, expenses on marriage in the family, cost of construction of building etc., are not legally permissible at this stage. Any statement made by such person may there after be used as evidence in any proceedings under the Act.

Among other things, penalties are impossible for concealment of income. If the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income, he will be liable to pay penalty u/S.271(l)(c) of the Income-tax Act. Certain explanations have been added in the said section by which the assessee would be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income in certain circumstances.

Circumstances:

1. In a case, a search is conducted, it is found that the assessee is the owner of the money, jewellery or other valuable articles. The assessee claims that such assets have been acquired by him, by utilising his Income but from undisclosed Income. The due date of filing the Return is over and the search is conducted after that date, the assessee has not filed his Return. In this case the assessee has concealed his Income as per the explanation and penalty will be attracted.

Example:

(a) Date of search                                                                     10-6-1990

(b) Previous year ending                                                          31-3-1989

(c)  Due date of filing Return                                                    31-8-1989

(d) It is assumed that he has not filed the Return till              10-6-1990

2. In another case the Return has been submitted, but such income has not been declared. In the earlier example, the Return has been not furnished even though it was due and in the later case the Return is furnished but such Income has not been included. Before the date of search the assessee has filed his Return and the Income for this acquisition of them not included. Penalty for concealment is attracted.

In all the above circumstances even if the assessee declares such Income in any return after the date of search, for the purpose of penalty u/s.271(l)(c) he would be deemed to have concealed the particulars of Income or furnished inaccurate particulars of such Income.

Therefore the position is by furnishing the Income in the Return alone he cannot escape from penalty, probably the presumption is that he would not have declared the said Income, but for the search and therefore a specific explanation is added in the section for imposing penalty.

There is an exception to this explanation. In the above cases, if such Income is recorded before the date of search in the books of accounts, if any, maintained by him and if such Income is disclosed before the Commissioner of Income tax, he will not be liable for penalty.

The object of the said exception is not clear. Once the Income is disclosed to the Commissioner before the date of search, the valuable things become a disclosed property not out of undisclosed Income as mentioned earlier elsewhere. The very object of S.132 itself is to unearth hidden or undisclosed Income. By making a disclosure to the Income tax Commissioner before the date of search it can be said that it is not out of disclosed income. The first part of the explanation of the section relates to disclosure of Income in the Return filed after the date of search irrespective of whether the Return is due or not. In other words the assessee is not entitled for the waiver of penalty by furnishing in the return the items found out in search, if they are undisclosed, would be liable for penalty.

But the assessee is entitled for the benefit of waiver of penalty if he makes a disclosure at the time of search by a statement to the Inspecting Officer. Before the Inspecting Officer he should specify the manner in which such Income has been derived and he should pay the tax together with interest, and then he is entitled for the waiver of penalty. But again there is one condition. The year of acquisition of his Income should relate to the year which the Return is not due as per the Act.

Example:  1) Search is conducted on 10-6-1990

                    2) Previous year 31-3-1990

                    3) The due date of filing the Return 31-8-1990

In the above case, if the assets are acquired out of the Income of the previous year ending 31-3-1990, he can get the benefit of waiver of penalty by making a statement before the Income-tax Officer. In this case even if the asset is acquired out of income after 1-4-1990, he can claim the benefit. But if the search is conducted say on 10-9-1990, and if the asset is acquired out of the income of the previous year ending on 31-3-1990, even though he has not furnished the return, he cannot claim the benefit, since the due date of filing the return for 31-3-1990 is already over. In short the benefit of waiver of penalty can be availed only when the return is not due and not on the basis of not filing the return. Therefore the condition for claiming the benefit of waiver of penalty u/s. 271(1) (c) are:

1. The assessee should make a statement at the time of search before the Inspecting Officer.

2. He should specify the manner in which it is acquired.

3. He should pay the tax with interest.

4. The return of that income should not be due to be filed.

In short, wherever the return is already furnished or where ever the return are over due the benefit for waiver of penalty cannot be availed by making a statement at the time of search before the Inspecting Officer.

Summary Statement

Any money, Jewellery or other valuable articles 'when seized, the Assessing Officer shall make a summary assessment on the undisclosed income in a summary manner to the best of his judgment on the basis of such materials as are available with them. The Assessee should be given a reasonable opportunity before making such a summary assessment. The order should be made within 120 days of the search. The Assessing Officer should obtain the prior approval of the Deputy Commissioner of Income tax. The Assessing Officer will calculate the amount of tax on the income estimated and also the Interest payable and the amount of penalty to be imposed. He should also specify the amount required to satisfy any existing liability under other tax laws. He may return the amount in his custody to meet those liabilities and release the balance.

This is only a Summary Assessment and it is not necessary that in the final assessment the same Income is assessed and the matter can be reviewed in Regular Assessment. However, the person can apply to the Commissioner of Income tax regarding the order made by the Income tax Officer requesting for appropriate relief in the matter. The object of providing this remedy is to prevent abuse in the power of retention of assets by high and excessive estimates arrived at by the Income tax Officer. But normally the authorities are taking a view that this is only a provisional order for the purpose of retention of assets and much relief is not granted on the petitions.

The books of accounts or other documents seized can be retained by the authorised Officer, upto 180 days. Thereafter, they can be further retained with the approval of the Commissioner of Income tax. However the books of accounts and other documents cannot be retained for a period exceeding 30 days after the proceedings in respect of the year for which the books of accounts are relevant and completed. Where the authorised officer has no jurisdiction over the person whose premises are searched, and the books of accounts or other assets seized shall be handed over to the Income tax Officer having jurisdiction over such person within a period 15 days. Where the authorised Officer has reason to suspect that the person concerned has hidden any books of accounts, other documents, money or other valuable articles he has the power to search and also to seize them. If the location of the property is known, there is no need to conduct a search and to seize the property also. It does not include the immovable properties. The Kerala High Court had occasion to consider this issue and set aside the order of seizure of immovable properties including the prohibitory order. Title Deeds of immovable properties are valuable documents, and can be retained.

The Assets retained may be applied to the existing liability or the liability in respect of the regular or re-assessments. If the money has been seized and retained such money may be applied for the above purpose. If the money seized is not sufficient, the other assets can be sold. If any assets or proceeds remain in excess of the liabilities they shall be forthwith be paid to the person. The Department is also liable to pay interest on the surplus at 15 1/2%. This interest is to be payable after six months from the date of the provisional order to the date of regular-re-assessment.

Conclusion

A recent decision of the Hon'ble High Court of Delhi on this issue is very important. Failure to return an Income on the contention that the same was not taxable would not be a ground for issuing an authorization for search. The Department has jurisdiction to invoke the provision in an effect to tax the same. Failure to disclose immovable properties in the return cannot be a ground for conducting a search. The Department was under a belief that the assessee was liable to tax, cannot be a ground for a search. The issue of an authorization to conduct a search can be only on certain conditions. A search which was conducted was a serious invasion into the privacy of a citizen. The Department has power of recording the statement of a person. The authorization only enables the Officer of the Department to conduct search and seizure. They have the power to enforce the presence of a person for the purpose of examining him on an oath. In that case, the assessee requested to permit to attend to his work in the High Court. This permission was not granted. The Act does not give any power to the Income tax Department to arrest an individual. The movement of a person against whom search is ordered cannot be restricted. The Court held that by refusing to give permission to the assessee to attend to his work in effect, amounted to his confinement, which is not permissible in law.