Comment on 1989 (2) KLT 845 Regarding Precedents

(L Manoharan, Advocate, Trivandrum)

A single Bench of the Kerala High Court has held in 1989 (2) KLT 845, that when there are two conflicting decisions of superior court of equal strength, their weight must be considered by the rational and logic thereof and not by the mere incidence of time of judgments. In deciding the same his Lordship Justice K.T. Thomas has merely relied on AIR 1987 Pat. 191. This decision is against the decisions of other various High Courts including the High Court of Kerala.

A division Bench of the Bombay High Court in AIR 1980 Bombay 341 is one instance. In that case their Lordships noticed the irreconcilability between two decisions of Supreme Court (each Bench consisting of equal number of Judges) Viz. AIR 1965 SC 414 and AIR 1976 SC 2229 and held "In the event of there being conflict, the decision of such later Bench would be binding on us".

The High Court of Karnataka is also of the same view. AIR 1980 Kant 92 F.B. (consisting of five Judges). It was on a direct question on a reference to a larger Bench by a Full Bench. Therein all the Judges opined that if two decisions of Supreme Court-on a question of law cannot be reconciled and one of them is by a larger bench, while the other is by a smaller bench, the decision of the larger bench whether it is earlier or later in point of time, should be followed. But with regard to decisions of two benches consisting of equal number of Judges, the majority (three Judges) held that the later of the two decisions should be followed though the minority (two Judges) was of the view that the better in point of law is to be followed.

In AIR 1981 Allahabad 300, the Full Bench of Allahabad High Court also accepted the same proposition. In that case, AIR 1977 All.1, AIR 1980 Kant. 92 and AIR 1968 Cal. 174 were considered and followed. Therein their Lordships relying on AIR 1980 SC 1762 also rejected the contention that the later judgment is 'per incuriom'. The contention to follow the decision which appear to be better in point of law (which was favoured by the minority view in AIR 1980 Kant. 92, AIR 1981P & H 213 and AIR 1987 Pat. 191) was also rejected after discussing English Decisions.

Again the Gujarat H.C.in AIR 1986 Guj.81(FB) after considering AIR 1981 P & H 213, AIR 1980 Bom, 341 and AIR 1980 Kant.92, agreed with the High Courts of Bombay and Karnataka and declared that "when there are two conflicting decisions of the Supreme Court consisting of equal number of Judges, the later of the two decision should be followed".

The Division Bench of Kerala High Court in 1987(1) KLT 192, when dealing with a case in Sales Tax held, "In any case, the decision in Pio Food Packers (1980 KLT 624) is later in point of time rendered over a decade after the decision...........we are bound to follow the later decision..........."

But the contrary view is expressed by the High Courts of Punjab and Haryana in AIR 1981 P & H 213 (FB) and Patna in AIR 1987 Pat.191 (FB). In the former approving the minority view in AIR 1980 Kant. 92, it was held that the decision which appears to state the law accurately is to be followed and the mere incidence of judgments of co-equal Benches of Superior courts whether it is earlier or later is not a relevant consideration. The latter also (AIR 1987 Pat.191) approved the same view. There it is to noted that it is the very same Judge (S.S. Sandhwalia CJ) who headed the judgment in AIR 1981P & H 213 spoke for the majority in AIR 1987 Pat. 191.

From the above it can be seen that the High Courts of Bombay, Kama taka, Allahabad, Calcutta, Gujarat and Kerala are of the uniform opinion that the later decision is to be followed whereas the Punjab and Patna-High Courts are of opinion that the decision which appears to state the law accurately is to be followed:

Then, if the decisions of Supreme Court are considered as the Punjab and Patna High Court direct, to choose one which appears to state the law accurately the difficulty may crop up when both the decisions are reasoned. In such situation there is no proper solution to the problem than to accept a view which the Judge favours. The result would be "intellectual slavery' as his Lordship J. Sukumaran puts it (1987 (2) KLT 848). Judicial propriety does not warrant it. Obedience to law becomes a hardship when the law is unsettled or doubtful. The rule of law should be settled than it should be theoretically correct. Another factor is also there. The decision of a Division Bench of Supreme court is binding on another Division Bench of the same number of Judges and the Supreme Court also is not bound by its earlier decision and possess the freedom to overrule its own judgments in a changed social context (See U.O.I, v. Raghabir Singh (AIR 1989 SC1933) when this proposition is also reconciled on the principle of implied over ruling does not the earlier decision over ruled by the later one by necessary implication? So I feel, the view expressed by the former is sound. Though not directly, the Supreme Court also favours this position. In AIR 1959 SC 1041, the Supreme Court approved the later decision on the ground, "Punjab Custom is fluid and capable of adapting itself to varying conditions and that the decisions for the last ten years are uniformly against..........."

Coming to 1989 (2) KLT 845, it is not seen that the decision in 1987 (1) KLT 192 - which has a binding force-has been brought to the notice of his Lordship. Had it been apprised, that part of the decision would have been different. Hence that part of the judgment requires reconsideration.

Decision Per Incuriam

(By M.R. Parameswaran, Advocate, Ernakulam)

In 1981 K.L.T. 861 (Dakshayani v. Madhavan) a Division Bench of the Kerala High Court held that the deposit contemplated by Order XXI Rule 89 C.P.C. for setting aside sale thereunder is to be made within the time specified in Rule 92(2) i.e., 30 days from the date of sale though the period for filing applications for setting aside court sales is extended to 60 days under Article 127 of the Limitation Act. The Court took note of the anomaly as a case of 'Casus omissus' while the comprehensive amendment was made to the provisions of the Civil Procedure Code in 1976 by Act 104 of 1976 including Article 127 of the Limitation Act and called the attention of the Government to the need for immediate amendment of the Rule 92(2) to Order XXI C.P.C. Thereafter the Madras High Court in A.I.R.1981 Madras 254 (Thangammal v. Dhanalakshmi) held that Article 127 of the Limitation Act as amended prevails over Rule 92(2) applying the maxim Generalia Specialibus Non Derogant and as such the deposit as well the application for setting aside the sale need be made within 60days. The Supreme Court in Basavantappas case AIR 1987 Supreme Court 53 pointed out the inconsistency between the two provisions and held that a harmonious construction is called for. (Thangammal v. Dhanalakshmi) AIR 1981 Madras 254 was relied upon. Necessary amendment by Parliament was also suggested in this decision. Now on 22nd February 1990 a Division Bench of the High Court of Kerala in (Pathummakutty v. Kathiyumma) 1990 KLT (1) 596 has overruled 1981 KLT 861 (Dakshayani v. Madhavan) following Thangammal's case and the decision of the Supreme Court in Basavantappa. On 20th February, 1990 a bench of three Judges of the Supreme Court has held speaking through Thomman, J. in P.K. Unni v. Nirmala Industries and others 1990 (1) KLT 896 : (1990) 2 SCC 378 that the deposit contemplated in Order 21 Rule 89 is a condition precedent to the making of an application to set aside the sale. The court drew a distinction between the making of such a deposit which is to be made in 30 days and filing of the application for which the period is 60 days after the amendment. The court overruled Thangammal's case and also Basavantappa. It is now found that there is no inconsistency and the maxim Generalia Specialibus Non Derogant nor the Principle in Heydon's case applies. The Court finally relied upon AIR 1953 SC 148 and also quoted Lord Halsbury in Mersey Docks case and Crawford v. Spooner to hold that in any view it is not for the court to make up deficiencies in an enactment. The court also referred to Dakshayani v. Madhavan (1981 KLT 861) and held that the time for making the deposit under Order 21 Rule 89 CPC is only 30 days. In the light of this decision the decision in Pathummakutty v. Kathiyumma 1990 (1) KLT 596 is not good law. It is a decision Per Incuriam as the same has been rendered after the decision of the Supreme Court in P.K. Unni's case and in ignorance of it.

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.

All About Finger Prints

(T.G. John, Advocate, Trichur)

As we skip over the pages of the Indian Evidence Act and come to S.46, we find the word 'finger impressions' in brackets in that section. The portion in brackets was added by S.3 of Act V of 1899. The statement of objects and reasons of that Act contains the following paragraph:

"The system of identification by means of such impression is gaining ground and has been introduced with considerable success in the Lower Provinces of Bengal. It seems desirable that expert evidence in connection with it should be admitted and with that object it is proposed by the third clause of the Bill to amend the law on the subject."

Years have rolled by; still no Indian criminal is found doing his job with gloves oh, or in any way afraid of leaving his fingerprints at the scene of the crime, for the very plain reason that in India unlike Scotland Yard and FBI, analysis of finger prints have not reeived the due regard it should have in the detection of crime.

It is very interesting to trace the back ground of the history of finger print legislation. In China and the East, the finger and thumb print have been used for centuries as a form of signature, to seal official documents and legal claims. A twelth century Chinese romance describes the finger printing of two women arrested for murder. The finger prints of an early Briton on a pick haft at Brandon, Suffolk, are at least five thousand years old.

In the West, a most important early record of the legal awareness of the fingerprints is the Major Declamations, the addresses of a Roman Lawyer. One of them is a case which centres on the planted evidence of bloody handprints and this is used by the defending lawyer of the innocent man to break down the real murderer, who then confesses. During the middle ages, in Europe seals were also impressed by the finger print as a sign of one's 'act and deed'. Marcello Malpigi, an Italian Physiologist of the seventeenth century was the European to consider scientifically the ridge patterns on the skin. His contemporary Nehemiah Grew, Secretary of the Royal Society, similarly studied the pores of the hand and feet. Other scientists followed up these studies over the next two centuries. In 1823 Johann Purkinje, Professor of Anatomy at Breslau, suggested the first system for the classification of finger prints. In the 1880's too, there is evidence that others in the West were becoming very conscious of the significance of fingerprints. In two contemporary detective stories of Mark Twain, 'Life on the Mississippi' and Pudd'nhead Wilson', fingerprinting plays a crucial role. In 1892, Juan Vucetich, later director of the fingerprint bureau in Buenos Aires and formulator of a classification system, achieved the first conviction of a murderess on the evidence of finger-prints.

In 1890, Edward Richard Henry, Inspector General of Police in Bengal, simplified and made really workable achievements hitherto made in the field of finger printing system. In 1897 he published a book "Classification and uses of Fingerprints" which became an official text book and his system was accepted by many European countries and the United States. In 1901 Henry was made the Assistant Commissioner at Scotland Yard and in the same year the Central Finger-print Branch was created. In 1902, on Derby Day, fifty-four men were arrested on the Epsom Race Course and fingerprinted. By next morning, an Inspector was ready with the records of twenty-nine old offenders amongst those charged. In the autumn, a burglary at the Denmark Hill provided the first trial to accept fingerprint evidence at the Central Criminal Court. Jackson, the accused, whose finger-prints were already in F.B.I. records received seven years.

The first murder case in which fingerprint testimony placed a serious role was the celebrated 'Straton trial'. On a rainy Monday morning, in 1905 an elderly couple named Farrow, was found battered in a chandler's shop. The husband was dead and his wife died three days later in hospital. The motive had obviously been robbery and two black masks made of silk stockings were found in the shop. Aright thumbprint was found on the tray of the cash box which did not correspond with any of the victims or a policeman who admitted having touched the tray. The robbery committed under a delusion that the Farrows were fabulously rich and kept a large sum of money in the premises. Actually, they were only employees of the shop and had only a few pounds in the cash-box. A careful police check finally led suspicion to fall on two young hooligans named Alfred and Albert Straton. On the Sunday after the murder, a police officer heard that Alfred was in a public house. With some courage, he went in along (the place was full of petty criminals and prostitutes) and ordered Alfred to come outside where he arrested him for murder. 'The thumbprint on the tray was found to have eleven points of resemblance to Alfred's thumb print. Albert also was arrested later. Mr. Justice Channel in his summing up, was cautious about the thumbprint evidence but admitted the extraordinary resemblance. The Stratons were found guilty and sentenced to death.

The Bhowal Sanyasi Case

(T.G. John, Advocate, Thrissur)

Appearing and disappearing with bewildering rapidity, the facts of the Bhowal Sanyasi case (Bibhabati v. Ramendra Narayan - AIR 1947 P.C. 19) have the disjointed quality of a surrealist movie. It has all the thrills and twists of a fictional whodunit-all the dramatic portents ofa melodrama; it is a true life story of mystery, crime, love and adventure. It will seem that a dead man has walked out of his funeral pyre-a sequence which can only be imagined as a product of trite fiction of the class of Marie Corelli's immortal work 'Vendetta'. But still that was what really happened on that fateful night at Darjeeling in the year 1909.

Raja Bajendra Narayan Roy, the Zemindar of Bhowal, one of the largest landed proprietors of East Bengal died on 26-4-1901. The family was regarded as the premier Hindu Zemindar family of Dacca and the annual rent-roll of the estate was about six lakhs of rupees. The Raja was survived by his widow, three sons and three daughters.

Ramendra Narayan Roy was his second son. The three sons were mentioned in order of seniority as Bara Kumar, Mejo Kumar and Choto Kumar.

Though born with silver spoons in their mouth, the three Kumars neglected their studies in such away that though placed under the tutelage of the best educationists, they never got beyond their Bengali and English alphabets. The Kumars were busy otherwise. They were thriving in other fields; at the age of 18, when his father died. Ramendra Narayan - the hero of our story - was a confirmed debanchee visiting prostitutes and haunting low dens of vice. In 1902 he married Bibhabati, a beautiful girl of 13. Even after his marriage, he kept on sowing wild oats and at some date subsequent to 1905 the second Kumar had gummatous ulcers on or about both the elbows and on his legs, being the tertiary stage of syphilis.

Bhibabati had a brother Satya Babu who was studying for law about the year 1908. He was a very cunning man and he proposed to the second Kumar the idea for visit to Darjeeling. Ramendra set out to Darjeeling with a party consisting of Satyababu, his wife Bhibabati, a retinue of servants and a doctor. Sixteen days after reaching Darjeeling, Ramenra fell ill and on May 8, 1909, he died a little before midnight. The body lay in the house 'the entire night and was cremated the next morning'. On 10th May, Bhibabati with the rest of the party left Darjeeling for Jaidebpur where she had her ordinary residence until April 1911, where she left for Calcutta to live there permanently with her mother and brother Satyaendra. She began to enjoy her widow's estate in the undivided one third" share of the Bhowal estate, which her husband the second Kumar had owned, and she recovered the proceeds amounting to Rs.30,000/-, of a life policy taken out by the second Kumar, the necessary certificates of death having been provided. By 1910, the first Kumar died and in 1913 the third Kumar also died, all due to dissipation and fast living. The Bhowal family was practically extinct.- And then things began to happen December 1920. One cold morning in December an unusually lean sanyasi alighted at the usually crowded railway Station of Dacca. He was later found sitting on the Buckland Bund on the river. There he sat night, and day, rain or shine, for nearly four months till April 5,1921. But for a loin cloth, he was naked. He had a fairly long beard and his hair fell behind his back, malted into a mass of cords reaching down to his knees, his body besmeared with ashes from head to foot. Buckland Bund was a public walk on the margin of a river where people promenade morning and evening for pleasure or health. All were struck by the close resemblance of this ascetic with the second Kumar of Bhowal. He was later taken to Jaidebpur where all his tenants and his relatives after close scrutiny, deliberation and questioning were finally convinced that he was none other than the second Kumar of Bhowal. Bhibabati through her brother Satya Babu resisted and maintained that the sanyasi was only a pretender. On April 24, 1930 the second Kumar instituted a suit for declaration that he is Kumar Ramendra Narayan Roy, the second son of the late Rajah Narayan Roy of Bhowal and that his possession should be confirmed in respect of the one third share of the properties described in the schedule, or if from the evidence and under the circumstances plaintiff s possession thereof should not be established, then possession thereof should be given to him. He further asked for injunctions against obstruction to his possession. Bhibabati contested denying inter alia the identity of the plaintiff with Kumar Paramendra Narayan Roy. The rest of the story could be pieced out from the large volume of evidence which was forthcoming in this case. The defence maintained that the second Kumar died shortly before midnight and that the following morning his body was cremated with the usual rites at the new sasan at Darjeeling. The plaintiff admitted that there was a funeral procession and cremation on the morning of 9th of May hut maintained that the body so cremated was not of the second Kumar; his case being that the second Kumar was taken for dead at about dusk between seven and eight O' clock in the evening of 8th of May, that arrangements were at once made for cremation, that the body was taken in funeral procession to the old sasan and placed in position for cremation, when a violent storm and rain caused the party to take shelter, and that on their return after the rain had abated the body was no longer there, that thereafter another body was procured and was the subject of the procession and cremation, the following morning. The plaintiff s further case was that while the funeral party were sheltering from the storm, he was found to be still alive by four sanyasis who were nearby and had heard certain sounds from the sasan and who released him and took him away, looked after him, and took him with them in their wanderings, that when he had recovered from an unconscious state, he had lost all memory of who he was, where he came from and of past events. Some eleven years later he recalled that he came from Dacca, and that was how he took up a position on Buckland Bund on the margin of the river Bunganga at Dacca.

Before the First Additional District Judge of Dacca, the trial lasted for 608 days. 1042 witnesses testified for the second Kumar and 433 for the defence. On 24-8-1936, the judgment of the Court was delivered which ran into 532 foolscap pages the limit of judicial endurance! The plaintiff was declared to be the second Kumar and entitlted to an undivided orte third share in the properties in suit. The appeal from the trial Court's decree was heard by a special bench of the Calcutta- High Court consisting of Costello, Biswas and Lodge JJ (Lodge J. dissenting) and was dismissed confirming the trial court's decree. The appeal from the Calcutta High Court to the Privy Council was heard by Lord Thankerton, Lord Du Pareq and Sir Madhavan Nair, Mr. D.N. Pritt appeared for the respondent. On 13thof July 1946 Lord Thankerton advised his majesty that the decision of the High Court should be affirmed.

Strangely enough on 3-8-1946 four days after the Privy Council judgment, the second Kumar died at Calcutta. There was a funeral procession; there was a funeral pyre-there was cremation; and it really did rain on that day. But on that fateful day he could never walk out of the funeral pyre as he did previously; and no sanyasi came to his rescue. Corpses cannot walk.

The flames of the pyre became longer than long and with one violent crackle of the skull, the curtain was finally rung down on one of the strangest sagas of human history once more flaunting the fact that truth is always stranger than fiction.