Section 5(3) of the Central Sales Tax Act - An Appraisal

(R. Krishna Iyer, B.Com., F.C.A., Chartered Accountant, Ernakulam)

Preamble

The Honourable Minister of Finance in his Budget Speech in March 1990 said that the problem before the country is the strain on the 'Balance of payments position'. The higher foreign borrowing to finance the essential import requirements runs the risk of mortgaging economic independence. Therefore, the Central Government is giving top priority to exports and give special encouragement for exports which .would earn higher foreign exchange. This thrust was also seen in the approach of the Government in the recently convened 'Open House' in Cochin under the aegis of the Hon. Commerce Minister of India.

Under the existing laws, one of the concessions given to boost exports and to enable the exporters to compete with the foreign market is the concession in Sales Tax on goods exported. On this view in 1976, the Government of India decided to treat certain sales to exporters as 'Demand Exports' by which they are exempted from levy of Sales Tax.

Analysis

According to S.5(1)of the Central Sales Tax Act, a sale or purchase of goods can qualify, as a sale in the course of export, if the sale or purchase has occasioned such export or is by a transfer of title to the goods. The Supreme Court held that the sale by an Indian Exporter from India to a Foreign importer alone qualifies as a sale which has occasioned the export of goods. (36 STC 136) As per Export Control Regulations, exports of certain goods can be made only by specified agencies such as State Trading Corporation. The small and medium scale units have to depend on some experienced export houses for export of the goods because special expertise is needed for carrying out an export trade. Therefore if such sales by these units do not qualify as sales in the course of export, they would be liable to pay sales tax and there would be corresponding increase in the price of the goods. This would make exports incompetitive in the tough and competitive international market.

Under these circumstances there was an amendment to the Central Sales Tax Act. By that amendment, the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India, shall also be deemed to be in the course of such export, if such last sale or purchase took place after and was for the purpose of complying with the agreement or order for, or in relation to such export.

There is a constitutional bar on collection of sales tax on export sale. By virtue of the above amendment, the last purchase or sale occasioning export, on certain conditions would be treated for the purpose of sales tax assessment as export sale by which there cannot be any levy of sales tax on such purchase or sale.

This amendment has come into effect from 1.4.1976. There are three conditions to treat the sale as export sale for the purpose of entitlement to exemption.

(1) The transaction of such last sale or purchase takes place after the agreement or an order has been received by the exporter from his foreign buyer.

(2) The last purchase must have taken place after the agreement with the foreign buyer was entered into and

(3) The preceding purchase or sale should be of the same goods for which export order has been received and to be exported.

From the above three conditions, it is very clear that the goods should be purchased or sold by the exporter only after obtaining the Purchase Order from the foreign buyer and in turn transferred to the local suppliers. Another condition is that the local supplier should buy and sell the very same goods for which the exporter obtains order from the foreign buyer.

There is a great significance in the third condition with reference to the kind of goods, the export of which is dealt with or "the same goods" which were referred to earlier.

For example, when Cashew nuts are purchased, processed and thereafter if the cashew kernel were to be exported, it does not constitute export of the same goods and hence exemption under this section would not be available.

As stated earlier, this amendment is made to the Central Sales Tax Act with the object of reducing the cost of items exported by which the exports can be made competitive in the global market. As per Sales Tax laws, the point of levy of sales tax is on sale or purchase. Again in the case of points of levy of tax on items of purchase, it may be on the first point or last point of purchase. In the case of spices, prawns etc. the point of levy in Kerala is on the last purchase. In other words, the dealer who is the last purchaser in the State is liable for payment of Sales Tax. There is substantial export of Pepper and Prawns from Kerala. By the Amendment to the Central Sales Tax Act, the turnover of goods exported becomes exempt and Kerala Government has to lose heavy revenue on this account. The Kerala Government felt that by the Amendment, only the Central Government is getting the benefit of exports. On the contrary, the Kerala State Government is losing the revenue of sales tax. In order to avoid the loss of revenue, Kerala Government amended the first schedule of the Kerala Government Sales Tax Act by which the entry in the first schedule of 'Pepper' was classified into 'garbled pepper' and 'ungarbled pepper' from 1.4.1978.

Similar amendment was made in the case of 'prawns', by differentiating 'prawns' and 'frozen prawns'. The idea behind this classification in this schedule is that there would be a last purchaser for the ungarbled pepper and raw prawns in the State and they would be liable to pay Sales Tax as last purchaser. One of the conditions for claiming the exemption under S.5(3) of the Central Sales Tax is that the preceding purchaser should purchase and sell to the exporter the same commodity for which the exporter has obtained the purchase order and goods exported. The idea of classification is that 'ungarbled' and 'garbled pepper', 'prawns' and 'frozen prawns' are different commodities and therefore the last purchaser of the prawns or ungarbled pepper have not sold the very same goods to the exporter. If they have sold 'garbled pepper' and 'frozen prawns', they are different commodities and therefore claim of exemption is not available under S.5(3) of the Central Sales Tax Act.

As per the decision of the Honourable High Court of Kerala, the 'garbled pepper' and the 'ungarbled pepper' are one and the same commodity. It has been held that 'pepper' merely because it is garbled, does not become another commercial commodity. Merely because in entry 58, 'Pepper' is itemised under two different heads, it need not be that these are two different commodities. A similar amendment was made by Karnataka State Government with effect from 1.9.1978 by which Prawns/Shrimps are classified into two categories; i) Shrimps, prawns and lobsters, ii) frozen shrimps, prawns and lobsters. In the entry it is also mentioned that 'processing' shall include cutting of head or tail, peeling, de-vening, cleaning or freezing. The effect of this amendment is that the dealers would be last purchaser of shrimps, prawns etc. but other than frozen shrimps, prawns etc. The issue was considered by Honourable Supreme Court in the case 'Sterling Foods' (63 STC 239). It has been held by the Honourable Supreme Court that the raw prawns, shrimps and lobsters remain the same goods in commercial parlance after such processing and freezing. The effect of these two judgments is that after the decision of the High Court and Supreme Court the exemption is available under S.5(3) for these goods.

The exporters of Coffee, participate in auction conducted by the Coffee Board. In that case the property in the coffee does not pass to the buyer at the fall of the hammer, but immediately on payment of full price and setting apart of coffee for delivery to the buyer. A question came up as to whether in such circumstances if an exporter before making full payment produces an agreement with an order from a foreign buyer, such a sale would attract exemption u/S. 5(3) of the Central Sales Tax Act. The question in this case is whether this exporter got the order after the (purchase of coffee) in which case he is not entitled to the exemption, since one of the conditions of the sale is not taking place viz. "after the agreement or order under which the goods". Alternatively if the purchase is not concluded and in the meantime the exporter gets an order from a foreign buyer, he is buying the coffee after obtaining the export order and therefore entitled to get exemption. This position has been settled by the Honourable Supreme Court (46 STC 164).

Another important question has recently emerged regarding the blending of tea and export. The dealers purchase tea in auction. They blend the tea and export in packets. The question that arises now is whether by blending does a change occur in the commodity?

The Honourable Bombay High Court, in 'Nilgiri' Tea Company's case considered that when tea of a different grade is purchased and blended for the purpose of producing the tea mixture, whether there does occur any activity of processing? The Honourable Bombay High Court held that it cannot be regarded as 'processed' since the commodity remained in the same condition. On another occasion, the Honourable Supreme Court considered this observation of the Bombay High Court; the court observed that as a result of mixing, a qualitative change in that tea mixture has come into existence because of the difference in quality and flavour of the various grades of the tea that were in the mixture. By this observation it can be concluded that by blending, the commodity produced is a different tea. If so, the tea purchased from auction is different from the tea exported and therefore they are not the very same goods and hence exemption u/s 5(3) of the Central Sales Tax Act is not available since one of the conditions is that the sale should be of the very same commodity that is purchased for export.

In this connection, the decision of the Honourable Supreme Court in 'Pio Food Packers' Case (46 STC 63) is relevant. According to the Honourable Supreme Court, the test is whether the original commodity is recognised in the trade as a new and different commodity. The test that is required to be applied is "does the processing of the original commodity bring into existence a commodity which is different and distinct"? On the application of this test it is clear that the blending of different qualities of tea cannot be said to involve process/manufacture, since the end product cannot be regarded as a new and distinct commodity. The Honourable High Court of Kerala has held that by the process of manufacture, if it is not affecting the character of the goods, the goods are said to be the same. (46 STC 512).

The Honourable Calcutta High Court observed that in order to characterise an operation as 'Processing', the commodity must, as result of the operation, experience some change. (16 STC 935). The Honourable Supreme Court in another case observed that in order to characterise an operation as a process that has resulted in a manufacture, the resultant product must be a different Commercial Commodity. Merely because certain articles are known by different names, it does not mean that they are different commercial commodity though infact, they are merely different forms of the same commodity. (60 STC 213). On this view Supreme Court held that timber and sized and dressed logs are one and the same commodity. Planks, beams and drafters would also be timber. In the same judgment, the Honourable Supreme Court mentioned the decision in another case and observed "what is relevant is how these entries are understood in common parlance specially in commercial circles".

It is also seen that various judgments delivered by the Courts in this regard are on different contexts and not on the issue involved in the case of 'blending' referred to earlier for the purpose of claiming deduction u/S. 5(3) of the C.S.T. Act. The decision of the Supreme Court on the "Sterling case" is directly on the point and moreover after the decision of Supreme Court in Chowgle's case, if the test suggested by the Supreme Court is applied in the blending of tea, it could be confirmed that by blending no new commodity is produced. The original character and its identity remains the same and it is continued to be called as tea in common parlance. Therefore there cannot be any doubt that the tea purchased in auction and later exported after blending can also avail the exemption u/S. 5(3) of the CS.T. Act. It is understood that the Board of Revenue has issued a circular earlier in 1978 clarifying that blending would not amount to manufacture and so it would not be considered as a different product from tea. It is also understood that the Tea Traders Association have submitted a memorandum to the Kerala Govt. to clarify the issue. The author feels that the Government would examine all the aspects of the case before issuing a clarification on this point.

As stated earlier the amendment to C.S.T. Act was made with a view to help the exporters reduce their cost and to encourage them turn over higher exports. It is true that by this amendment there would be some loss of revenue to the State Governments. But the State Government should consider the object of the amendment and try to help the exporters by making the provision liberal and to allow them to enjoy the benefits. The approach of the State Government making enactment by amending the laws results in defeating the purpose of the amendment. The State Government can very well represent to the Central Government for compensating losses in one way or the other and the State Governments should whole heartedly support the Central Government to earn more foreign exchange by increasing the exports in the interest of the country as a whole.

Comments on the Proposed Christian Marriage Bill

(Fr. Joseph Vadakumcherry, Archdiocesan Tribunal, Ernakulam)

By the enactment of the envisaged 'Christian Marriage and Matrimonial Causes Act, 1990', a common 'Christian Personal Law' on marriage will come into force, replacing thereby the archaic and outdated Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872. The proposed draft Bill is the net result of the initiative taken by the Joint Women's Programme (JWP) and the Church of North India (CNI), which was later endorsed also by the National Council of Churches in India (NCCI).

The draft Bill contains 44 Sections distributed in 7 Chapters. Chapter I carries the title 'Preliminary' and contains the short title, definitions and explanations of certain legal terms in Sections 1 -- 3. Section 1: (ii) reads: "It extends to the whole of India except the State of Jammu and Kashmir.......". It is not understood why the State of Jammu and Kashmir which is an integral part of India as a whole should be excepted from the application of this Bill! The Christians of various denominations belonging to the State are truly Indian Christians!

Section 2 reads: "Nothing in Chapter VI of this Act shall apply in relation to a marriage of Roman Catholics and Christians of Orthodox tradition, unless the parties or one party to the marriage records in writing his/her decision to be governed by this Chapter before a Notary Public (at the time of their marriage or) at any time during the subsistence of their marriage". Chapter VI indeed deals with the question of divorce. As for the Catholic spouses it is essential that the recording of the 'decision' mentioned above is carried out precisely in connection with the marriage itself, and not later at any time during the subsistence of the marriage. For, a valid Christian Marriage cannot be but at the same time a Sacrament whereby it is also indissoluble. An intention from the part of either of the spouses to enter into a dissoluble marriage would automatically render the said marriage invalid from the very beginning. Therefore only on making clear the intention of entering a sacramental marriage or otherwise at the time of the marriage, the Church can decide upon administering a valid sacramental marriage or not to the party concerned.

In Section 3(a) the term 'Christian' is defined as 'a person who professes and practises the christian religion'. This definition, is inadequate without the incorporation of the term 'Baptism' into it, because, Baptism alone is the distinctive and juridically identifiable basic factor of becoming a christian.

In Section 3(m) the explanation No.1 reads: "Relationship includes, (a) relationship by half or urine blood as well as by full blood". It is to be noted that the given explanation of relationship includes only consanguinity, and not affinity, whereas affinity also is mentioned in S.27(3) while speaking about the prohibited degree of relationship.

Chapter II deals with the conditions for christian marriage in Sections 4 - 5. Section 4 reads: "Every marriage between persons one or both of whom is or are christians shall be solemnised in accordance with the provisions of this Act, provided that in the case of tribal christians the Customs and Usages demand that both be christians". According to the Canon Law of the Catholic Church disparity of cult among the spouses is a diriment impediment to marriage, and hence for the solemnisation of a sacramental christian marriage it is essential that both the spouses be christians.

S.5 lays down conditions for the christian marriage as follows: (i) "Neither party has a spouse living at the time of the marriage".

(ii) "At the lime of marriage neither party, (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage or procreation of children". There is some ambiguity in the use of the phrase 'valid consent' in clause (b) above: for, one who is unfit for marriage due 10 a mental disorder cannot at all give a valid marriage consent. Marriage consent has to be valid when considered both subjectively as well as objectively. Subjectively, i.e., in relation to the agent of the consent, the marriage consent should be a human act which requires that a deliberate and free practical discretionary assent of the mind is elicited from the part of the agent, and so the unsoundness of the mind as mentioned in (a) above renders the marriage consent invalid subjectively. Objectively on the other hand, i.e., in relation to the object of the marital consent, unless the agent is able to reach out, honour and sustain what constitutes the object of marriage (the rights and duties of married life), he would not be in a position to elicit a marriage consent validly, because, such a consent would be bereft of object. Therefore one who is unfit or unable to assume and fulfil the essential obligations of married life due to a mental or personality disorder would not be capable of giving a valid consent objectively. Hence the diction in (b) above -- 'though capable of giving a valid consent' is not correct.

Further, the conditions implied in clauses (a) & (b) are rather hard and impracticable since the verification of the same might require a judicial probe leading to very serious inconveniences. As a matter of fact, lunacy and idiocy have been made grounds for nullity of marriages in Section 27 (4), and this will serve all practical purposes regarding the nullity of the marriages arising from the defect of intellect or insanity or inability to assume and fulfil marital obligations on the score of any serious personality disorder.

(iii) "The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage".

(iv) "The parties are not within the degree of prohibited relationship".

(v) "Where the marriage is to be solemnized outside India, both the parties should be domociled in India'.

Chapter III deals with the solemnization of christian marriages. Sections 6 and 7 speak about persons authorised to solemnize marriages. Section 6 reads: "Marriage may be solemnized under this Act, (a) by any minister of a Church, who has been appointed according to the rules and regulations of the Church". It is to be noted that according to the rules and practice existing in the Catholic Church, marriages are solemnized not only by making use of the official power conferred to by appointment to an office, but also by making use of the delegated power. Hence the term 'deputed' or 'delegated' should be added disjunctively to the term 'appointed' in the above mentioned clause in order to read: "who has been appointed or deputed".

Sections 8 - 11 deal with the appointment of Marriage Registrars, and Sections 12-22 speak of solemnization of marriages by minister of Churches, by licensed minister, and by Marriage Registrars. Section 23 takes on the 'Registration of Marriage'.

Chapter IV deals with 'Judicial Separation' in Sections 24 - 25. In this connection it is to be noted that the Church Tribunals also should be entitled to issue the decree of 'Separation from bed and broad', which practice is in force in the Catholic Church according to Canon Law.

Chapter V deals with 'Nullity of Marriages*. Section 26 speaks of 'Void Marriages' which are considered such for reasons either of an existing marriage bond, or unsound mind, or mental disorder, or prohibited degree of relationship of the parties to marriage. Section 27 takes on 'Voidable Marriages', which are declared such on the grounds of impotence, in consummation, prohibited degree of consanguinity or affinity, lunacy or idiocy, existing marriage bond, and fraud or force under certain conditions. In this connection it is to be noted that Canon Law offers more grounds of nullity than those envisaged in the proposed Act.

In Clause 6 under Section 27 marriages of Roman Catholic or of member of any other Church which have been declared null and void according to the rules and regulations of the Church are included in the category of voidable marriages. However, similar to the event of 'Registration of Marriages' as contemplated in S.23, there is no provision as to the taking effect of the decree on nullity issued by the Church Tribunals in respect of voidable marriages mentioned in Section 27, Clause 6.

Section 28 deals with the question of 'Legitimacy of Children' in the case of void/voidable marriages.

Chapter 6 takes on 'Grounds of Divorce' in Ss. 29 - 32, and on 'Remarriage of Divorced Persons' in S.33. S.33(ii) reads: "No minister of the Church shall be compelled to solemnize- any such marriage", i.e., remarriage. This prescription is earmarked precisely for indemnifying the Catholic position in respect of divorce and remarriage of divorced persons.

Chapter VII deals with jurisdiction and procedure: Ss. 34 -39 on Decree in Proceedings, and Ss. 40-44 on 'Relief for Respondent in Divorce and other Proceedings'

S.41 reads: "All proceedings under this Act shall be regulated as far as may be, by the Code of Civil Procedure, 1908.

While dealing with the question of evolving an updated personal law on Christian Marriage, we should indeed adopt a realistic and practical approach. We have to face, rather than turn our back to, certain realities which are concomitant to the question of a common Civil Code on marriage for the Christian communities of India.

On one side we have to take into account the bare fact that the hackneyed provisions of the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872 are still operative, and that as far as the law of the Country stands today, the Civil Judiciary, while handling the marriage cases of the Christians, cannot overlook the above mentioned Acts.

Since all the christian citizens of this Country come within the mischief of the Indian Divorce Act and the Indian Christian Marriage Act, it is high time that all the christian communities, irrespective of their denomination, should, through concerted efforts, try their level best to get the archaic and outdated civil marriage law either repealed or updated. There is no point in bringing about amendments to the Acts mentioned above, as it would only be tantamount to initiating a 'process of grafting' on an age old disintegrating tree trunk.

On another side we can see that the Catholic denomination of the Christian communities of India is already in possession and making use of a by far advanced codified system of personal religious law, namely, the Canon Law, for matters matrimonial. In. fact, Canon Law on marriage is invariably concerned with the spiritual values implied in the christian marriage which is a Sacrament. Hence it follows that the civil law should not only not go against these spiritual values, but should certainly safeguard them positively by giving due recognition to the personal religious law of the Catholics Respect for personal law would indeed be the key note of any democratic welfare society.

There is also another reality of no lesser importance which requires serious consideration. It is the fact regarding certain civil rights, for example, divorce, which were availed of by some of the non-Catholic christian denominations of India under the Indian Divorce Act.

It is the privileged task of any democratic secular Government to enact law-in line with the principle of equity and fairness which would ensure and enable the citizens belonging to the different religious denominations to avail of the civil and religious rights without any tinge of discrimination.

Hence, granted that the Catholic community is already availing of a codified system of religious law on marriage, it becomes a reasonable proposition that provision is made in the proposed 'Christian Marriage and Matrimonial Causes Act' to the effect that Canon Law of the Catholic Church on marriage is recognized as the personal law of the Catholic community of India with full civil effects, so much so, that the said community would be able to avail of their religious rights concerning the Sacrament 01 marriage, without any collision with or encroachment by the Civil Law of the Country. This provision may be incorporated in the proposed Act by replacing, by way of substitute clauses, the Section 2 of the Preliminary in Chapter I.

The enactment of the proposed Act may perhaps be protracted to a far away future beyond determination. Since the Indian Divorce Act and the Indian Christian Marriage Act remain still operative there remains also every chance for a collision between Canon Law and the Civil Judiciary whenever controversy arises in matter; connected with Catholic marriages. Although the Civil Courts in the past have pronounced in favour of Canon Law as personal law of the Catholics, few recent judgments of the Civil Courts of Kerala seem to have ignored such precedents.

However, since the Catholic community of India is at present availing of an updated codified personal religious law in order to deal with cases connected with the Sacrament of marriage, it is only meet and just that the Civil Judiciary while handling and taking decision on the marriage cases of the Catholics does not simply feign to assume as 'ignoramus' attitude and resort solely to the Indian Divorce Act and the Indian Christian Marriage Act. Otherwise, it will be tantamount to the obstinacy of a Surgeon who would only resort to those instruments belonging to the stone age in order to perform a surgical operation on persons of modern times, belonging to a particular religious community.

What is said above is just to pinpoint how much urgent and imperative is the need to arrive at a general consensus of all concerned on a Common Civil Code on Christian Marriage at the earliest, which would be consonant to the present day socio-juridical conditions and life situations of the Indian Christians of various denominations.

The Role of the Judges in Contemporary Society

(M. Mathew, Advocate, Ernakulam)

Courts like the other branches of Government, belong to the people, they serve the individual and the public interest through legal processes slowly and carefully evolved over centuries. An independent judiciary need not be a mysterious area of government or appear to be an occult priesthood. Indeed of all branches of the Government, it can be seen as the most open; all its hearings are public, and all its decisions are promptly made public. No one may address arguments to the Court except in public sessions of the Court and by printed briefs available to public examination. Justices who disagree with the majority have their dissenting views printed with the Court opinion.

It has been said that, except for its decision conferences, the Courts literally operates "in a goldfish bowl" Like all institutions it consists of flesh-and-blood morals with individual personalities, the normal human traits, their lives and activities are available to any person diligent enough to inquire.

Most people know, or think they know, what the Executive and the legislature are expected to do under our constitution. Far fewer have a clear idea of what goes on in the Courts generally. Even though hundreds of thousands of visitors have gone through the Court buildings and perhaps have observed oral arguments briefly, for most it has remained a remote austere "marble temple" housing seldom seen jurists who periodically issue pronouncements on the law of the land. This is not because the justices prefer remoteness, but chiefly because they are engrossed in the confining task of reviewing cases and writing opinions. It is surely not because they do not want people to understand the judicial function in our system; unfortunately there are relatively few people qualified to interpret and explain the Court's role in terms widely understood and even fewer who undertake to address public on the subject. But happily now this is changing.

Judicial Integration

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

The pros and cons of Judicial Integration are now under active deliberation of the Bench and Bar.

Now a Munsiff in the Civil Judicial service can get promoted first as a 'Sub Judge and Assistant Sessions Judge', a combined post. Thereafter he can get promoted as a District and Sessions Judge in the scale of Rs.4435-5285 and also as a High Court Judge. But in the criminal side, a Magistrate who starts as a Second Class Magistrate becomes on promotion a First Class Magistrate and later a Chief Judicial Magistrate Grade II (Rs.2470-3675) at first and then a Chief Judicial Magistrate Grade I (Rs.2640-3815). After that there is no promotion and that's why those officers in the Criminal side demand for integration.

Law has grown to multidimensional extents and therefore to be a master of all branches of law is an impossibility. One cannot be very much learned even in all branches of the Civil wing itself. In that situation to be well-versed in both Civil and Criminal divisions is beyond one's attainment. The Judge or Judicial Officer who concentrates in one division only, will be better fitted to discharge his functions than one who diverts attention to both divisions. Therefore it is better that the Civil and Criminal wings of the judiciary are kept separate as at present.

However, it is necessary that the Officers in the Criminal wing also do not feel frustrated on account of lack of promotions. For that I suggest the following changes.

The present combined post of Sub Judge and Assistant Sessions Judge should be split into those of Sub Judge and Assistant Sessions Judge. The combined post of District and Sessions Judge should be split into those of District Judge and Sessions Judge. Munsiff should be given promotion to the post of Sub Judge and 1st Class Magistrate to that of Assistant Sessions Judge. So also Sub judge is to be promoted to District Judge and Assistant Sessions Judge to Sessions Judge. There should be promotion to the High Court from both District Judges and Sessions Judges. High Court Judges promoted from District Judges can take care of Civil matters and those from Sessions Judges can handle criminal matters.

The present scale of pay of Chief Judicial Magistrate Grade I which is higher than that of Sub Judge should be fixed for both the posts of Sub Judge and Assistant Sessions Judge.

1991 (2) KLT143 - A Criticism

(By P.S. Vasavan Pillai, Advocate)

The Bench consisting of their Lordships Shri K.S. Paripoornan and Shri B.M. Thulasidas has held as reported in 1991 (2) KLT 143 (Joseph Binoy v. Union of India) that Article 134 A of the Constitution of India "does not contemplate the filing of a written application at all". According to Their Lordships certificate for appeal to the Supreme Court can be granted only on oral application made by the aggrieved party instantly on pronouncement of the judgment by the High Court or suo moto by the Court. True, some other Benches of other High Courts cited in the judgment also have ruled so. However, the Supreme Court has not looked into the question so far.

One thinks the decision requires a reappraisal.

Article 134A of the Constitution reads, "Certificate for appeal to the Supreme Court: Every High Court, passing or making a judgment, decree, final order or sentence referred to in clause (1) of Article 132 or clause (1) of Article 133 or clause (1) of Article 134,

a. may, if it deems fit so to do on its own motion; and

b. shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132 or clause (1) of Article 133 or as the case may be, sub-clause (c) of clause (1) of Article 134, may be given in respect of that case".

With due respect, I may state that Article 134 A or for that matter Art.132(1) or 133(1) or 134(1)(c) does not prohibit the grant of the certificate for appeal on a written application. 134A only enunciates that the certificate can be granted on oral application itself without encumbering the party with the necessity of a written application. It is an enabling provision, for an oral application and not a prohibitory provision against a written request. The need of the 44th Amendment by which Article 134A was incorporated arose because Articles 132(1), 133(1) and 134(1)(c) were silent about the oral application.

It does not stand to reason that if a certificate can be granted on an oral application, the same cannot be given on a written request.

The judgment refers to the book 'Constitution Amendment in India' which is only a publication of the Lok Sabha Secretariat and not a compendium of Lok Sabha debates on Amendments. However, even the extracted passage from that book does not preclude a written application.

The Honourable Court has also interpreted the word "immediately" in clause (b)of Article 134, A as to mean the moment just after the pronouncement of the judgment or order. This is too-restricted an interpretation, it is submitted. The word "immediately" can take in itself a few days. One need not mention that Constitutional Provisions require a wide interpretation.

If a party is entitled to get a certificate for appeal, it is not in the interest of justice to deny him that certificate solely on the ground that the application is made a few hours or days after the pronouncement of the judgment or order.

The concerned advocate may not make an oral request soon alter the pronouncement of the judgment or order or sentence because of several genuine reasons, one being the lack of timely instruction from the party. But that should riot come in the way of agitating an important point in the normal course.

'An aggrieved party can even orally apply for a certificate of appeal, the next moment after the pronouncement of the judgment, decree, order or sentence. But he can apply in writing in the immediate future also'. Only this line of interpretation would fully meet the ends of justice.