Suspension of Sentence

(S.A. Karim, Advocate, Thiruvananthapuram)

Section 389 of the Criminal Procedure Code, 1973 deals with suspension of sentence pending appeal and release of accused on bail. It arises as soon as an accused is convicted and sentenced. In other words suspension of sentence is applicable only to convicts. Under sub-section (3), the convicting court can suspend the sentence, if the. conviction does not exceed three years, and if the conviction is on a non bailable offence. In both the situations, the convict should have been on bail at the time of suspending the sentence. It intends to give sufficient time to prefer appeal and obtain suspension of sentence. This sub section prevents the convict from going jail immediately on conviction for offences which are not grave. It is a great relief to persons who happen to become convicts by misfortune or similar other circumstances. Once the appeal is lost, he has no other way, but surrender to custody.

If appeal fails, the convict can invoke the revisional jurisdiction of the court under S.397 of the Code. This is possible if the appellate judgment or order is either, illegal, improper or irregular. Once revision is admitted, the execution of sentence can be suspended. The relevant portion of S.397 reads-

"When calling for such records, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of record".

The wording of the section indicates the convict can either be free or in confinement before filing revision and obtain suspension of sentence.

In law a convict can never be free. He may be on bail or under warrant of arrest. The sentence of a convict under warrant of arrest cannot be suspended, unless he appears or is b-ought before court. The expression suspension of sentence in S.397 docs not stipule-: that the convict shall be in custody at the time of filing revision. It happens, if the appellate court suspends the sentence of the convict-appellant on dismissal of appeal and releases him on bail as under sub-section (3) of S.389. But appellate court is reluctant to suspend the sentence on the failure of appeal in the absence of specific provision.

Appeal and revision are the continuation of trial. Appellate and revisional courts have all the powers of trial court unless otherwise specifically prohibited. An accused is presumed to be innocent until finality of judgment or order is reached. This is the well settled position of law. If this is accepted, the appellate court can suspend the execution of sentence on the dismissal of the appeal and release the accused on bail as in the case of sub-section (3) of S.389. This position is further clarified in S.397 of the Code. If so, a good member of accused can avoid the convict home.

Muslim Polygamy and the Special Marriage Act

(Advocate S.A. Karim, M.Com, LL.B., Vanchiyoor, Thiruvananthapuram)

In Anwar Ahamed v. State of Uttar Pradesh and another, reported in Criminal Law Journal, page 717, Mr. Justice S.I. Jafri of the Allahabad High Court held that a second marriage solemnised under the Special Marriage Act, 1954 amounts to bigamy and is punishable under S.494 of the Indian Penal Code, and that the Special Marriage Act supercedes the Muslim personal law (shariath). With due respect, I submit this interpretation and finding seems erroneous and needs re-consideration.

Anwar Ahamed had married Hasin Begum according to shariath. While the first marriage subsisted, he married another lady, Nusrath Sultnana alias Shirin, under the Special Marriage Act. The husband and both wives are Muslims.

Now, it is obvious that the Hindu Marriage Act, 1955 provides for monogamy among Hindus under S.5(i) readwithS.11. Similarly, S.4 of the Special Marriage Act 1954 leaves no doubt that marriages under this Act are monogamous. Also, under S.60(2) of the Indian Christian Marriage Act of 1872, monogamy is prescribed. Since the Parsi law also enforces monogamy, all codified personal laws of India are unanimous on the position regarding monogamy.

The position is entirely different in Muslim personal law. A Muslim man, under shariath as well as the current law of India, is permitted to have four wives at the same time, but not more, with the condition that he should be just between them. It is well-known that this rule reflects the conditions prevailing in Arabia when the Arabs fought several wars and a large number of men died in them, so that many women became widows and there were more women than men. To avoid the resultant contingency of immorality and destitution, shariath dictated that able-bodied men may have more than one wife, but limited their number to four. Before this theory came into existence men had kept any number of spouses. Might was the right prevailing then. This is the brief history of the four wife theory. Though indirect legislative restrictions have been imposed in India, marriage and divorce of Muslims are still governed under shariath.

The objects and reasons stated in the Special Marriage Act touch several aspects of the Hindu Marriage Act. It never refers to the marriage Saws of either Muslims, Christians, Parsis, or Jews. This indicates the Special Marriage Act is intended only for Hindus. When Parliament enacted this Act, shariath was in force. If the legislature had desired to bring Muslims under the Special Marriage Act, it would have stated so. In the absence of such a reference, S.43 of the Special Marriage Act cannot be interpreted to include Muslims.

Shariath permits the existence of more than one wife at a time. It does sot mean ail the marriages snail be under the Muslim personal law. A man who comes under shariath cannot be found guilty under another Act for another marriage, as long as he has not violated the terms of shariath. In the instant case, both marriages are legal and within the ambit of shariath. Thus, S.43 of the Special Marriage Act has no relevance and the conviction for bigamy under S.494 Indian Penal Code is illegal and void.

Section 138 of Negotiable Instruments Act, 1988-Good Law?

(P. Rajan, Advocate, Tellicherry)

The newly introduced S.138 of the Negotiable Instruments Act is with an obvious purpose--to check the menace of issuing cheques by unscrupulous individuals knowing full well that sufficient amount is not available in their Bank account and punish such persons at the earliest. Civil suits often, if the drawer has necessary means; complaint of cheating under S.420 Crl. P.C, rarely were the recourses open to the aggrieved persons hitherto in the event of dishounour of cheques. The introduction of Ss.138 to 142 is with the good intention of helping the aggrieved and is a real relief even to bankers. But the point to ponder is whether these provisions have plugged all the loopholes to prevent the escape of a clever drawer.

The cardinal principle of criminal justice-Mens-rea is the primary element of any criminal offence. Intention or knowledge is not a factor at all in deciding a case under S.138 and the object is to eradicate mushroom-growth of dishonouring of cheques by bankers. Rather to serve a social purpose, the lawmakers have taken a determined deviation from the general principles of criminal jurisprudence by even giving an exclusion clause as slated under S.140 of me Act. On a careful analysis of the new Chapter, i.e. XVII, few doubts would crop up regarding the requirements to be complied with by a payee before the institution of prosecution.

Sub-section (a) to S.138 speaks of presentment of cheque for collection of the amount. Two categories of cheques are specified considering the validity of the cheque, 6 months as generally or period of validity of the cheque, if given. Hence on first presentment if the cheque is bounced, can it be presented again by the payee with the good hope or on the request of the drawer within the period of 6 months or as the case may be. Since the section is silent about this, successful prosecution also is not possible if a complaint is instituted on a cheque presented more than once. Courts also cannot hold otherwise as the law now stands. Another anomalous feature of S.138 is giving of notice in writing by a payee or holder to the drawer. Sub section (b) to S.138 provides for giving notice in writing within 15daysonreceiptofintimationfrom the bank regarding the return of the cheque as unpaid. S. 138 sub-section (c) gives 15 days time to make payment of the amount to payee on 'receipt of notice'. If notice as required under S.138(b) is issued and the other party does not receive it or is unable to accept, what follows? To secure speedy redressal of grievance even S.46S Cr. P.C. has been bye-passed and time given for launching prosecution is-only one month as given in 8.142(b). If the requirements narrated in sub-section (a) and (b) of S.13S are not resorted to, the prosecution becomes a nullity. Issuing a cheque by itself is no offence and commission completes only on the happening of certain contingencies. S.30 of the Negotiable Instruments Act 1881 also speaks that in the event of dishonour of cheques or bill of ' exchange, due notice to the drawer is mandatory and without notice, holder of the instrument gets no cause of action, unless dispensed with as detailed under S.90. So written notice given in S.138(b) has got its own significance and the service of the same on the drawer needs clarification. Other modes of notice like newspaper publication etc. will tantamount to effective service is worth considering for effective implementation of the provision. Another hurdle to cross by the parties is the reason under which bouncing of cheque has taken place. Only two reasons have been given, (1) insufficiency of fund (2) if the cheque amount exceeds than what has been arranged or available with the bank. Banks could refuse to honour cheque on different grounds as their memos reveal. Apart from the two reasons given, under S. 138, amount is not paid due to some other reason, can a prosecution be launched is also cannot be said with certainty. If the drawer asks the bank to stop payment, after issuance of the cheque, and on that reason can a complaint be filed?

In short, even though the idea and intention of the statute makers are appreciable, it is desirable to have at least necessary explanations and illustrations to the sections in order to make them doubt-free; if not amendments since the Act is in its infancy, to make prosecutions under S.138 time-saving and successful.

1991 (1) KLT Journal 29 - Legal Profession: Restrictions

(By K.G. Balasubramanian, Advocate, Irinjalakuda)

It is stuperfying to see that members of the noble profession, nay the noblest profession, have started feeling sentiments of not so noble a nature expressed in the article. One is at a loss to understand the trepidations of the writer about the short comings of/in the profession and among its members, which are based on an intention to shut out competition. At what cost, to the litigant community and to the entire annals of legal achievements? We are facing a period of challenge and reforms in the social, cultural, economic, educational and all other spheres of life. Social justice is being shaped into stark reality, by and large, as a concerted effort of judges, advocates, socialworkers and a host of other persons. I have in mind hundreds of persons who have benefited by neethi melas organised by persons committed to cause of unfortunate litigants who cannot, for any number of reasons, get justice from the existing system stymied by procedural laws and precedents.

The sentiments expressed by the writer must be shared by many among my brothers. But I feel that the profession has had to suffer only because of such sentiments, to a larger extent. One's policy should be 'live and let live'. Our profession has the deepest roots. It has survived time and history, evolving new and practical facets, in response to the calls of time. This article is not intended to be one to dwell upon legal history, but to be a reasonable response to the outraging article.

Personally, I feel that the solution to the antipathy of the writer is to set up more and more courts, on a more practical basis. The present set up is not based on any real sense of litigant population, but only on the purse of the exchequer. It is the duty of the government to establish courts. Unfortunately, judiciary does not get its share from the powers-that-be who are concerned more about those glorious 5 years in office as-a-minister-MLA-or-otherwise. Is it because of an anticipation of loss of power and authority? Let us have courts to administer justice on a population basis and not an area/extent basis. In our taluk (Mukudapuram), a major number of cases originate in identified areas since a long time and the litigants can be better catered to by having a court nearby, instead of having to travel 40 KMs. one-way to get justice. There should be more law colleges in order that one may know HIS law in these days of executive abuses. In all enactments creating adjudicatory authorities, it should be laid down that only law graduates shall be appointed as any authority. Enrolments should be made frequent occurrences in order to facilitate juniors to enter the profession at the earliest. Is the writer aware that doyens of the bar and judiciary have not all been holding creditable academic records? Academic brilliance need not always enable a person to be legal luminary. But not vice versa.

The writer has contradicted himself in his over enthusiasm. Imposing the restrictions suggested by him would only mean suffocation and saturation of the profession. It is upto a litigant to decide whose services he requires and not for the advocate or any supervisory body. After all, who can say which case he should accept or decline, the arena being unpredicable, in anticipation, only on the basis of number of cases he may be restrained with?

There is no meaning in prescribing an upper age limit also, since changing fortunes in life may compel anyone to enter the profession, if he is otherwise qualified, not because "he does not find a place anywhere else" but because of a feeling of "Liberty, equality and fraternity" and above all, THE SPIRIT TO FIGHT FOR WHATEVER IS RIGHT.  Should one be denied  that opportunity?

However, I would like to add my own suggestion to ameliorate the plight of the profession. Why not amend the Advocates Act and Rules to the following effect:

1. Advocates holding a specified number of briefs should take in a specified number of juniors.

2. Juniors shall remain juniors for a specified period and shall have actively assisted the senior in a specified number of cases.

3. Seniors shall pay the juniors at specified rates, for which the fees rules may be suitably amended fixing the minimum chargeable fees (which will also prevent undercutting and tax evasion).

4. The Bar Council shall have power of superintendence over these and allied general matters.

5. Provide efficient Judges, who are fairly remunerated, on par with at least a senior civil servant.

Above all, one should be fair and truthful to himself and all others, giving and receiving respect.

Judges on Strike: Lessons to Learn

(By Kaleeswaram Raj, Advocate, Supreme Court and  Kerala High Court)

The total bedlam in the Telangana judiciary has left an indelible scar in the country’s legal history.  Very many Judges across the new State behaved abominably when they called for ‘High Court bandh’ (a new brand indeed) and threatened of availing mass casual leave (which the service rules are unable to tackle).  The advocates fulsomely supported the Judges and they could practically lock the court premises scattered over the ten districts in Telangana.  Altogether eleven Judges are suspended by the High Court at Hyderabad.  The effrontery by the bar and the bench reflected a peculiar category of judicial jingoism that refuses to share even a common High Court for the two States which enjoyed geographical and political syncretism till the bifurcation in 2014.

The “Bangalore principles of judicial conduct” is a fine instrument of Indian origin that captured international recognition.  It was accepted in its revised form at the Round Table Conference of the Chief Justices held at The Hague in 2002.  The principles require the Judges of all ranks to ‘exhibit and promote high standards of judicial conduct, in order to reinforce public confidence in the judiciary” and to “avoid impropriety and appearance of impropriety” and “accept personal restrictions”.  The Telangana episode is apparently antithetical to the grandeur of the ‘Bangalore values’.  Winston Churchill put it pithily: “A form of life and conduct more severe and restricted than that of ordinary people is required from Judges”.

One should not however, underestimate the concerns expressed by the agitators at the grass root level.  The Subordinate judiciary is the supreme judiciary for the majority of the people in India.  In All India Judges Association case (1991), the Supreme Court emphasized the significance of district judiciary which performs the sovereign functions of the State.  In essence, every Judge is bound to be an epitome of the Constitution.

The Telangana Judges’ Association seems to have a genuine concern about the provisional allocation of Judges between the two States.  As against the cadre strength of 335 Judges in Telangana, only 190 are ‘natives’ and others are from Andhra Pradesh, it is bemoaned.  The protesters  demanded the “Andhra Judges” to “quit Telangana”.  Also they demand a separate High Court for the newly formed State.

Article 3 of the Constitution enables “formation of new States and alteration of areas, boundaries or names of existing State”.  The State of Telangana is formed by virtue of the Andhra Pradesh Reorganisation Act, 2014.  The statute envisaged a clear bifurcation of the State in the executive and the legislative realm.  However, Section 30 of the Act in a consolatory gesture said that, for the time being, the High Court at Hyderabad would remain as the common High Court for both the States.  Section 31, on the other hand,   by way of a predictive note, prescribes separate High Courts for both the States.  Thus the political division which the Telangana could attain was not translated to judicial level.  The judiciary at Telangana, for a variety of reasons, finds itself uncomfortable with the control exercised by the Andhra Pradesh High Court.

Judicial federalism is a constitutional virtue. The High Courts in the country are older than the Supreme Court.  Article 214 of the Constitution only says that “there should be a High Court for each State”.  It does not make it mandatory that each State has to have a separate High Court.  Democratic harmony in Indian Federalism has however materialised common High Courts for a few States.  Gauhati High Court exercises jurisdiction over Arunachal Pradesh, Assam, Nagaland and Mizoram.  Punjab and Haryana share a single High Court.  Bombay High Court encompasses Maharashtra, Goa, Dadra, Daman and Diu. Lakshadweep is under the Kerala High Court and the Andaman Nicobar Islands are under the Calcutta High Court.   Puducherry,  a different terrain, subjects itself to Madras High Court.

However, the story of Telangana is ostensibly different.  People in the new State can have legitimate reasons and justifications to demand judicial autonomy and independence.  But the means to  attain the end also needs to be equally legitimate.  The judicial tinderbox in Telangana is the manifestation of the deeper fissure between the two States at political, economic and cultural levels.   But the method of agitation by the robed brethren had only exacerbated the situation.  The suspension orders by the High Court, which refused to strike a code with the political and historical sentiments emanated from the judicial citizenry in Telangana has only aggravated the judicial dismemberment. Federalism and decentralisation do not halt with the powers accrued on the High Court.  It should travel further, down to earth.  A separate High Court for Telangana would help maintaining the quintessential relation between the court and the people.

(The above article was originally published in Deccan Herald dated 2.7.2016).