Ice Cream Parlour Trial, Making the Judiciary

a Statue of Spinx

(By V.K. Babu Prakash, Judicial I Class Magistrate, Kollam)

The Kozhikode Ice cream Parlour Case has really made the judiciary a mocking doll among the public. It looks like the statue of spinx showing no expression on its face. The prosecution examined about 64 witnesses of which about 15 are occurrence witnesses. All of them in marching style turned against the prosecution and helped the accused persons. It is interesting to note that some of the victim ladies's statements were recorded by the Judicial Magistrates on oath under Section 164 Cr. P.C. Even then they in wholesale turned hostile. The trial court became dumbfounded and helpless. Even if the witnesses could be prosecuted for perjury under Section 193 IPC, still, what advantage will it make on the trial of the case.

This is the plight of the present trial system in India. We have seen the historical example in the Best Bakery Case. Now comes the second one. Indeed this is the way in which most of the trial of the criminal cases is going on in the courts of the country. As the Ice cream Case was one of the media darling cases, the plight of the trial got that much attention. What about the other ordinary cases which are not so important according to media standard whose trial also ends like the one ended Supra ? We blame the prosecution, the Government, and all the machinery which took the trial into such a turn. But the pity is that the present trial system itself is such a bad machine which has so many back firings. Even if the police officer questions the witness and records the statement under S.161 Cr. P.C. there is no guarantee that the witness would speak in the same line and length before the court of law. Even if the statements are recorded by the Magistrate after oath under S.164 Cr. P.C., still it does not have any guarantee that the witness would support the same in court. The statement by the witness before the court during trial is the substantive evidence and all other recorded statements made during the investigation are only previous statements. Thus the danger lies in the point that even if one who gives a statement before the police or Magistrate can easily depart from such statement while examined before court. Thus during the intervel period after recording the statement by police or Magistrate, a clever and powerful accused who can pull the strings can easily manuvre the witness and make him fiddle the tune in favour of the accused. Even if the Prosecutor digs the witness much by putting leading questions, yet it does not help the prosecution case, as one who falls from the line of prosecution does not support it at all.

Section 161 Cr. P.C confers power on the police officer investigating a case to examine any person orally to gather the facts and circumstances of the case. Such police officer may reduce into writings any statement made to him in the course of such examination. However the rigor of the Section and its purpose are really watered down by the proviso to Section 161 Cr. P.C. The Proviso circumscribes the relevancy of the statement making it only relevant to the accused to get it contradicted when the witness is examined in court. Apart from that the statement does not have any material importance at all. This is also the case of 164 Cr. P.C statement recorded the Magistrate after administering oath on the witness. The legislative wisdom should open its mind upon this gray area where one who gives a statement before the Police officer or Magistrate should hold or stick to it until the trial is over. One who has a tendency to deviate from the previous statements should be severely dealt with by imposing adequate punishment. Such persons should not walk away from the court making the court mere spectator of the melodrama. Certain changes are inevitable to be made on the procedural part of the Cr. P.C and Evidence Act.

(a) One who gives a statement before the Police officer under S.161 Cr. P.C or Magistrate under Section 164 Cr. P.C. should feel that he is giving a responsible statement about the commission of an offence.

(b) Such Persons should also feel a duty that he should stick to it during trial, otherwise, he should be alarmed that he would be sternly dealt with by law.

(c) Statements given before the Magistrate on oath should be recognised as evidence if resiled later.

(d) The offence giving false evidence should be made non bailable and severe punishment should be imposed. It should be made clear that one who deviates from the recorded previous statement is doing perjury.

(e) Some kind of guarantee in the form of evidentiary value should be attached to the previous statement given before the Magistrate.

Law should evolve into such an occasion to plug the loop hole thereby rich and powerful men cannot swindle the procedural law into their favour. Otherwise, within a short while people will spit upon the trial system. Ice Cream Parlour Case is a bitter lesson to learn by all legal literates in Kerala.

A Comment on the Book, Appreciation of Evidence in

Criminal Cases by Hon'ble Justice U.L. Bhat

(By V.K. Babu Prakash, Judicial I Class Magistrate, Kollam)

"Essentially style resembles good manners. It comes of endeavouring to understand others, of thinking for them rather than yourself. So your words will be fewer and more effectual and while you make less ado, what you do will be more profitable". This saying is stated by Quiller-Couch in his book "The art of writing' which is quite applicable to the fluid style of Honourable Justice U.L. Bhat in his short book "Appreciation of Evidence in Criminal cases". The book is the outcome of his Lordship's lectures delivered at the National Judicial Academy, Bhopal, In service Training held for Judicial Officers in Kerala conducted by Honourable High Court of Kerala etc. The National Judicial Academy, Bhopal took the lead to publish it as a book. The book is a short one running into fifty one pages only, nevertheless, it gives an in depth probe into the aspects of evidence and its appreciation by courts. It is like a torch which will light the mind of the reader to see all the four corners of evidence and the way in which it is to be appreciated. The most outstanding merit of the book is its simple and straight forward style in short sentences rather than making the matter worse into serpentine sentences using complex jargons. The book is sandwiched by the short preface of Dr. N.R. Madhava Menon followed by yet another short foreword by the Author, Justice U.L. Bhat.

Substantive Law defines the rights, duties and liabilities, the ascertainment of which is the purpose of every judicial proceedings. Adjective Law defines the pleading and procedure by which that law is set and kept in motion. The adjective law is contained in the Code of Civil Procedure. Purpose of law of evidence is the establishment of facts in issue by proper legal means to the satisfaction of the court. This is done by production of evidence, the law relating to which is to all legal practice what logic is to all reasoning. Proof is the effect or result of evidence, while evidence is the medium of proof. The author describes Evidence in the above paragraph in the shortest and simple way which will captivate the mind of the reader to read and chew it like a best seller. In the first part of the book learned author gives a picture about what is evidence and in what way it shall be convinced to the courts. Law of Evidence is a system of rules for ascertaining controversial questions of fact in judicial enquiries. It bears the same relation to a judicial investigation as logic to reasoning. After giving a short analysis of what is evidence, the next part goes on to deal with burden of proof which is an important element as to what question by whom and in what manner evidence must be produced and by which party any fact is to be proved. When a party successfully discharged his burden of proof, he can believe that a fact is proved when after considering the matters, the court either believes it to exist, or consider its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. The book gives a vivid touch up about the relevant sections of Evidence Act running from Sections 101 to 114 to emphasis the rule of burden of proof. It then deals with inferences and presumptions and then goes on with the need for corroboration and its needlessness. The author emphasizes that in old English common law, the rule "UNUS NULLUS" (one is equal to one) was followed to appreciate evidence. In England evidence was counted and not weighed. He who had the greater number of witnesses prevailed. This rule is no longer being followed in England as well as in India. Evidence is now weighed and not counted. This is gathered from the tenet of Section 134 of the Evidence Act which states that no particular number of witnesses shall in any case be required for proof of any fact. The book then describes about the quality of the witnesses and their quality of evidence even if they are partisan, interested or related to the victim or accused. The book then cautions about the way in which evidence has to be accepted and rejected in part or whole. Author reminds with authoritative pronouncements of Supreme Court that the maxim "falsus in uno falsus in omnibus (false in one, false in all) is neither a sound rule of law nor a rule of practice to be followed in India. The book then pauses a while on primary facts and the manner in which those are to be proved. Author gives certain examples of typical cases in which how the primary facts are to be proved. The book is rich with citations of Supreme Court on each and every point which sometimes casts a cloud on the free thought process of the author. Author at last gives a general idea about the way in which the evidence is to be appreciated. There is no hard and fast rule. It is a process by which the chauff is sifted from grain. Decided cases and their ratio decidendi are only helping hands. They are only search lights. The initiative has to come from the experienced mind of the presiding Judge itself. He has to apply his mind with all logical analysis, common sense and sense of reality, as crime is an event happened in the reality of life. Learned author concludes the book with a contented conclusion as follows. "Courts over the years have adopted various approaches based on common sense, towards oral evidence. Inherent consistency of the story is to be considered. If evidence has inherent contradictions, the entire evidence cannot be acted upon. Process of sifting must by adopted. Consistency or otherwise of evidence of one witness with that of another must be examined bearing in mind that several witnesses might have arrived at the same or at different times or might possess differing power of observation and memory. Consistency or evidence of story with undisputed fact or matters of common knowledge and experience must be examined. Inherent probability or otherwise of the story must be examined and a broad view arrived at". This is a book which is a remarkable thesis which should be kept in hand by everyone of the judicial community rather than let loose in the corner of a bookshelf to be handled in a lazy manner. The writing is gripping and it sensitively explores the entire area of appreciation of evidence. I respectfully quote the following words of Jonathan Richardson who wrote about John Milton in "Milton and the English Mind" as a parable to this book. "A reader of Milton must be always upon duty. He is surrounded with sense, it arises in every line every word is to the purpose. There are no lazy intervals. All has been considered and demands and merits observation. Even in the best writers you sometimes find words and sentences which hang on so loosely you may blow them off. Milton's are all substances and weight which cannot be broomed away as trash". 

By George! You, Middlemen and Refund of Court Fee

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

Counsel has suggested a very provoking manoeuvre to overcome a statutory obligation. Despite my own reservations on levy of court fee (even in THIS YEAR OF THE REPUBLIC), I do not think that a litigant should be allowed to conduct a laproscopic technique (trick?) on the system of ministration of justice. Gone are the days when we could ring the bell at the palace gate for justice. Come are the days of the economist and consumerist, where everything has a price tag.

A plaint, properly stamped at the time of presentation, I think, stands on a different footing from a plaint whereon enhanced court fee becomes payable by reason of an amendment thereto. (Quaere)

What counsel suggests is that the fraternity should be party to a fraud. Fraud, in that an amendment is obtained with full knowledge that it is necessary not for deciding the real controversy between the parties, but only to pull a fast one on the Court and exchequer. The technique, if it really is one, is foolhardy and unsavoury. The idea does not at all do credit to the profession. Brother, you are sitting on an already weakened bough. Litigants have declined to come to Court not because of court fee, but also because of many other reasons, too many others. You want to take the court for a ride? I think, in the scenario crafted By George, a righteous Judge should recall the order allowing amendment. If the court can grant an order, it can also recall that.

Despite every man being 'some more' Oliver Twist in one's own way, such ploys should not be entertained. I feel his Lordship J.B. Koshy, J was justified in referring to middlemen. Particularly, in By George situations!

Tailpiece: Should we not have a Tribunal for auditing courts' accounts and ensuring that court fee is pooled exclusively back into the system? Think of batta to the tune of crores, lying unclaimed for decades in courts all over the State!

Human Rights in the Constitutional Context

(By O.V. Radhakrishnan, Senior Advocate)

Enforceability of International commitments of India in relation to human rights is a seminal issue of considerable topical interest. In the Abu Salem extradition matter, the issue has been raised by the Special TADA Court in Mumbai which has evoked debate and discussion about the legal sanctity of the assurances of the Government of India given to the Government of Portugal as precedent condition for his extradition under the International Convention for the Suppression of Financing of Terrorism, 2000, The Government of India and the Government of Portugal are signatories to the above convention and both the countries have ratified it. In the above setting, it is interesting to examine the legal conundrum associated with the human rights within the constitutional frame work.

India and Portugal have not entered into a bilateral extradition treaty. The International Convention for the Suppression of Financing of Terrorism, 2000 in the absence of a law made by Parliament under Article 253 of the Constitution of India for implementing the treaty, agreement or convention cannot override the Indian Penal Code or other criminal laws. Consequently, it would be difficult rather impossible to honour the conditions agreed upon by the Government for extraditing the fugitive. Indian criminal jurisprudence requires to be moulded in accordance with the international principles of human rights.

Treaty making, implementing of treaties etc. fall under the legislative heads of Entries 13 and 14 of List I of Schedule VII. Article 51 (c) of the Constitution of India provides that the State shall endeavour to foster respect for International Law and treaty obligations in the dealings of organised peoples with one another. The power to legislate in respect of treaties is given in Entries 10 and 14 of List-I of the Schedule VII. Any legislation made by Parliament under Entry 13 List I, Schedule VII read with Article 253 of the Constitution of India to implement an International Treaty /agreement would override and prevail over the law made by the legislatures of the States. Article 253 thus empowers the Union Parliament to invade List-II by making law, which may otherwise be repugnant for the purpose of implementing the treaty obligations. However, making the law by Parliament becomes necessary only when the treaty or agreement impinges upon the rights of the citizens and others or runs counter to the law of the State. Needless to say that such laws cannot breach the barricades erected by Part III of the Constitution. The provisions of the covenants/treaties, which go to effectuate the fundamental rights guaranteed by our Constitution, are justiciable as facets of those fundamental rights even in the absence of a law made under Article 253 of the Constitution of India. Such treaties are "self-executory". Even so, legislation may be passed in aid of implementation though not necessary.

The opening words of Article 253," Notwithstanding anything in the foregoing provisions of this Chapter" namely Chapter I of Part XI dealing with Relations between the Union and the States stand in contra distinction to the expression "Subject to the provisions of this Constitution" occurring in Article 73(1) of Chapter I Part V of the Constitution of India. The executive power of the Union is not co-extensive with power of Parliament to make any law under Article 253. The exercise of the executive power of the Union is a function of the President and the President shall in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers in accordance with Article 74 of the Constitution. Executive power is not defined in the Constitution and Articles 73 and 162 declare the extent of executive power and its distribution between the Union and the States. The executive power connotes the residue of Governmental functions which remain unconsumed by legislative and judicial functions. Therefore, Article 73(1)(b) cannot be construed as investing executive power with the Union extending the power to make laws by Parliament under Article 253. The non-obstante clause appearing in Article 253 is intended to give overriding effect to the provisions in Part XI of the Constitution and that legislative device is not employed in Article 73(1)(b). It follows that the Union requires a specific legislation under Article 253, if it wanted to encroach upon the law of the States or to intrude upon the rights of the citizens and others for carrying out the International treaty obligations.

Relatedly, the exclusion of jurisdiction of Courts in respect of all disputes arising out of any treaties, agreement, covenant etc. is a hurdle in honouring the agreements and assurances given in a covenant. The proviso to Article 131 of the Constitution excludes the jurisdiction of the Supreme Court in respect of all disputes arising out of any treaty, agreement, covenant, engagement, sanad or other similar instruments which, having been entered into or executed before the commencement of this Constitution and continues in operation after such commencement. Turning to Article 363, the jurisdiction of all courts to entertain a dispute arising out of treaties, agreement, covenant etc., entered into between Rulers of Indian States and the Government of India is specifically barred. The second limb of the Article bars the jurisdiction of all Courts in respect of a right arising out of a provision of the Constitution relating to a covenant. Exclusion of the jurisdiction of the Courts in respect of the obligations of the Union is emphasized by the non-obstante clause employed in Article 363. Consequently, the remedies available under Articles 32 and 226 of the Constitution of India and through Civil Courts are unavailing in respect of. disputes falling within the gamut of Article 363 of the Constitution of India.

In the draft Constitution there was no Article identical to Article 363. Subsequently, the Drafting Committee introduced Art.302(AA) (present Article 363) on October 16,1949 into the draft Constitution. Art.302(AA) came to be introduced when the Constitution recognized the guarantee of Privy Purses and succession to the GADDI in the Merger Agreements and Covenants. It was felt that if any dispute in regard to such agreements and covenants and any dispute as to any right accruing under or any obligation arising out of any provision of the constitution relating to such covenants or agreements are allowed to be litigated before Courts it would upset the political relationship of the dominion of India with the Indian States. The main reason for inserting Article 363 was that the Courts would have become choked with the cases under Article 362 and the Constituent Assembly did not want to open up the Pandora's Box. The Constitution makers wanted to avoid challenge to various provisions in the Constitution based on the merger agreements. It has been observed in Madhav Rao Jivaji Fao Sindia v. Union of India (1971) 1 SCC 85. "That is why Article 363 really embodied the principles of Acts of State which regulated and guided the rights and obligations under the covenants or merger agreements by incorporating the doctrine of unenforceability of covenants or merger agreements coming into existence as Acts of State". The Constitution recognized, respected the guarantees under covenants and agreements by the allied Articles 291, 362, 363 and 366(22). Articles 291, 362 and 366(22) did not form the basic structure of the Constitution. Article 291 relating to Privy Purse sums of Rulers and Article 362 regarding rights and privileges of rulers of Indian States have been repealed by Constitution (Twenty-sixth Amendment) Act, 1971. Article 366(22) was substituted by the Constitution (Twenty-sixth Amendment) Act, 1971. In view of the above drastic changes made in the Constitution, the actual basis for Article 363 does not exist any longer.

The Constitution of India though uniquely voluminous is without a chapter on 'human rights'. This does not mean that human rights are not enshrined in our constitution. Human rights are recognised by and enforceable under the Constitution of India. The preamble declares inter alia that the Constitution of India has been aimed at securing human dignity. The very essence of our constitutional system and the democratic conception of our society are founded on human rights. Human rights are but natural rights. Modern human rights embrace national/domestic human rights and international human rights. The civilization of mankind has changed the content and the nature of human rights, expanding their horizon and bringing oat "needs-led" treaties and agreements. "Human rights" were incorporated into the UN Charier (1945). After a hiatus of three years, the Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the UNO on December 10,1948. The UDHR contained 30 Human Rights including civil, political, economic, social and cultural rights. The UDHR also included ancillary human rights. Nevertheless, the human rights comprehended by the UDHR remained unenforceable. The validity and authority of rights require protection of law. The glow and fire of the human rights were found in the two International Covenants adopted by the General Assembly of the United Nations at Tehran in 1966. India acceded to both the Covenants subject to Government of India's declaration dated 10-04-1979. The Government of the Republic of India made the acceding to the International Covenant on Economic, Social and Cultural rights and the international covenant on Civil and Political Rights adopted by the General Assembly of the United Nations in its resolution dated 16th December, 1966 conditional upon the observance of the declarations dated 10-04-1979. The provisions in the said covenants shall be so applied to be in conformity with the provisions of Articles 16, 19 and 22 of the Constitution of India. Notwithstanding such acceding to the Covenants, all the human rights incorporated therein did not become part of the law of our country conferring enforceable rights. Several treaty bodies had come into existence like the Convention on the Elimination of all forms of Racial Discrimination, 1966, the Convention of the Suppression and Punishment of Crime of Apartheid, 1973, the Convention on the Elimination of Discrimination against Torture, the Convention on the Rights of the Child, 1989, the International Covenant on Civil and Political Rights 1966 (ICCPR) etc. Ratification of those covenants by the Government of India by itself does not make them enforceable and justiciable.

Under our Constitutional system the fundamental rights guaranteed in Part ITI are justiciable and enforceable under Articles 32 and 226 of the Constitution of India. The Directive Principles of State Policy contained in Part IV of the Constitution are non-justiciable although they are "nevertheless fundamental in the governance of the Country". Many of the human rights recognised and included in UDHR have been rehashed in Part III of our Constitution elevating them to the status of fundamental rights. By the Constitution (Forty-fourth) Amendment Act, 1978 brought into force with effect from 20-06-1979, the rights guaranteed under Articles 20 and 21 are made non-derogable rights.

The Indian Constitution combines social and economic rights along with political and justiciable legal rights. It is primarily the education which brings forth the dignity of a man and that the framers of the Constitution were aware that more than seventy percent of the people, to whom they were giving the Constitution of India, were illiterate. Realising the above fact situation, the framers of our Constitution incorporated provisions for education in Articles 41 and 45 of Chapter IV of the Constitution. Article 41 obligates the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in any other cases of undeserved want. Article 45 mandates that the State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years. Right to education is now recognised as a fundamental right within the meaning of Article 21 of the Constitution of India, but the Government having no sufficient resources and infrastructure for providing education, the Societies/Trusts are permitted to establish and administer educational institutions. The right to live with human dignity, right to healthy environment which includes pollution free water and air, emergency medical aid, right to health, privacy, right to livelihood, right to fair and speedy trial, right to free legal aid are some of the important faceted rights under Article 21 of the Constitution. Prohibition of traffic in human beings and prohibition against forced labour are the constitutional mandated rights in Article 23 of the Constitution. The directive principles of State Policy are read with the fundamental rights and are treated as justiciable by construing them as supplementary to the rights guaranteed under Part III by way of semi-legislative process undertaken by the Judiciary. Article 31C was introduced by the Constitution (Twenty-fifth) Amendment Act, 1971 with a view to save the laws giving effect to the Policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution and the directives in Article 39(b) and (c) are made enforceable and would override the fundamental rights in Articles 14 and 19 of the Constitution of India.

Amongst our fundamental human rights, most people accord the precious place to the 'right to life' itself and while considering the sweep of the right to life, the protection and development of children take precedence. The children who are to disport themselves and to study are made to work as newspaper seller, cobbler, domestic help, beggar and sexual worker for their living. Children are abused for commercial purposes and for sexual exploitation. Article 39 of the Constitution aims at securing the health and strength of workers, men and women and the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. It concentrates attention on providing opportunities and facilities to children to develop in a healthy manner and in conditions of freedom and dignity. The law requires of the childhood and youth being not frustrated their rights by abuse of power. Article 15(3) under Part III of the Constitution enables the State for making any special provision for women and children, The Juvenile Justice Act, 1986, Immoral Traffic (Prevention) Act, 1986 and the Child Marriage Restrained Act, The Kerala Prohibition of Ragging Act, 1998 are legislations made for keeping the children within the swathes from exploitation.

The Protection of Human Rights Act, 1993 has been enacted to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto. National Human Rights Commission was constituted under S.3 of the Act in October, 1993. The rights incorporated either in the Constitution or "embedded in the two Covenants of 1966" (ICCPR or ICESCR) only are brought within the penumbra of the Protection of Human Rights Act, 1993. Twenty eight out of thirty human rights contained in UDHR, have already been incorporated in Part III and Part IV of the Constitution.

The Human Rights Commission continues to be an advisory or recommendatory body. The object of the Act, 1993 for better protection of human rights is not fully achieved by the constitution of the Human Rights Commissions. The Act does not contain any penal provision for enforcing the human rights and preventing the transgression or punishing the transgressor, A quotidian functioning of the Human Rights is opposed to the 'plan and purpose' of the Act.

The present day need is that the laws on human rights are to be re-vamped for the effective enjoyment of Civil and Political rights.

Any rights or obligations created by the treaty are to be made justiciable to meet today's needs and challenges. But then, does not Article 363 of the Constitution of India today represent a volte-face? 

Whether the Recent Decision of Supreme Court Regarding

Power of Attorney is a Boon or Bane to those

Complaints Filed on Power of Attorney

(By V.S. Thampi, Advocate, Kollam)

The recent decision of Supreme Court in Janaki Vashdeo v. Indusind Bank Ltd. (2005 (2) KLT 265 (SC)) regarding Power of Attorney is a death blow to all cases filed on Power of Attorney. The Division Bench of the Apex Court comprising Justice H.K. Sema and Justice D.M. Dharmadhikari has clearly stated that "if the Power of Attorney Holder has rendered some "acts " in pursuance to Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." This leads to an innumerable dismissal of fresh complaints filed under S.138 of N.I. Act based on Power of Attorney day by day by the courts. Hence a clarification is required from the higher judiciary regarding in this aspect.

I am hereby explaining some of my views regarding the above said matter.

Let us first see the circumstances under which the Supreme Court has passed this ruling.

Here a suit was instituted before the Debt Recovery Tribunal and the Tribunal passed a decree against the defendant. This was challenged before the Mumbai High Court on appeal, but the High Court upheld the decree passed by the tribunal, against which an appeal was preferred before the Supreme Court in which the court had stated that in order to pass any further orders in this case it is essential to decide first whether or not the appellants have a share in the property on the date were the decree was passed, and if so, to what extend ? Considering the great importance of the above said question the matter was remitted back to the Debt Recovery Tribunal to record a finding in this aspect and directed to forward its decision within 6 months. It is further held in clear cut that the burden of proving that the appellants/defendants have a share in the property is on the appellants/defendants.

By remanding the matter to the Tribunal we can assume the imperativeness of those questions in decision making. But when the matter was taken up before the Tribunal the appellants authorized another appellant in the case to appear and depose on behalf of the appellants as Power of Attorney. This was challenged by the learned counsel appearing for the respondent bank, but the tribunal allowed the Power of Attorney to appear and depose on behalf of the appellants. Here we should see the status of the Tribunal it was in trial stage and we know that the probative value of the deposition made in the trial stage is too high/effective than it is made in the pre trial stage, because it has an absolute place in the decision making.

Probative/Evidentiary value of the deposition made in different stages

The value of the deposition made in different stages may vary. Whenever the court sits in its cognizance stage it need not go deep into or weigh the substance of the evidence adduced. What is required is only, whether the complainant has made out a prima-facie case against the accused, and if there is & prima facie case then the court is bound to take cognizance. Here the probative value of the deposition is somehow dwindled, since it is made in the absence of the accused and not tested/scrutinized by the weapon of cross examination and it has less value in arriving any judgment.

As we know that every case has two stages one is pretrial stage (cognizance stage) and another is trial stage. Let us see the pre trial stage.

Pre-trial Stage

This stage commences right from the filing of the complaint up to the framing of charge. Once the charge is framed this stage culminates and there begins the trial stage. Hence in this stage the court is sitting in order to take cognizance and not to conduct trial, so the deposition made in this stage has less probative/evidentiary value while comparing it with the trial stage. The term 'cognizance' means the judicial notice of an offence or applies the mind to the suspected commission of an offence. Here the alleged offence itself is a suspected one the court cannot hold in black and white or cut and real that it is the accused who had committed the alleged offence because the probative/evidentiary value of the deposition is somehow coloured. In other words unless and until it is tested by cross examination it would not attain its purity and sanctity.

Hence the word deposition while come across the two stages it should be construed in accordance with its deserving status. When it comes in the cognizance stage the court should give priority to its position and not to the evidence adduced, obviously it must establish a prima facie case against the accused. It is a settled position in law that in cognizance stage the court need not go deep into the root of the evidence adduced before it, that is to be considered only at the trial stage.

Here I would like to draw the attention of the readers to the amended section-145 of N.I. Act. The section is extracted herewith.

145. Evidence on affidavit:

1. Notwithstanding anything contained in the Code of Criminal Procedure 1973 the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code.

2. The court may if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

The main objects and reasons of Amending Act of 2002 was to reduce the cumbersome procedure prescribed for the courts to deal with such matters and dispose the cases expeditiously in a time bound manner. Keeping in view, the recommendations of standing committee on finance and other representations, the legislature has enacted other sections along with S.145 as procedure for dispensing with preliminary evidence of the complainant.

Let us construct S.145

Before entering into the section we must be aware about the nature of S.145. It is not a normal provision, but a non-obstante clause.

Non obstante Clause

A clause beginning with "Notwithstanding anything contained in" is a non-obstante clause. Whenever the legislature enacts a non-obstante clause the intention behind it is to give the enacting part of the section in case of conflict an over-riding effect over the provision or act mentioned in the non-obstante clause. Here the non-obstante clause is "Notwithstanding anything contained in the Code of Criminal Procedure 1973" and the rest of the section is the enacting part. It is equivalent to saying that inspite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. Thus a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to over-ride it in specified circumstances.

Now it is clear that the enacting part of this section is "the evidence of the complainant may be given by him on affidavit and may ("subject to all just exceptions") be read in evidence in any enquiry, trial or other proceedings under the said Code", but this enacting part is subjected to the above underlined sentence. The phrase "subject to" is used in contradistinction to the phrase "notwithstanding anything in". The phrase "subject to" conveying the idea of a provision surrendering its place to another provision or other provisions to which it is made subject. Here the enacting part surrenders its position/place to the phrase "subject to all just exceptions". Whenever a complaint is filed u/S.190(2)(a) of Cr. P.C the Magistrate has to proceed u/S.200 for examination of the complainant on oath, but the non-obstante clause mentioned in S.145 of N.I Act over-ride the otherwise mandatory provision of S.200 of Cr. P.C and make it lawful for the complainant to give evidence on affidavit.

Now we can see the phrase "subject to" used in the enactment portion. By using the phrase "subject to all just exceptions" the enacting part surrenders its position to "all just exceptions". What was the intention of the legislature while enacting S.145 of N.I. Act by using the word "all just exceptions ", it may be on complaint filed by the P.O. A. Moreover the second provision permitting the court to summon and examine any person giving evidence on affidavit. Here the word "any person" is corroborating the intention of the legislature for using the word "all just exceptions".

Thus by considering the scope and object of the enactment of S.145 the court should consider the testimony of the Power of Attorney made in the preliminary stage and provide an opportunity to the original complainant to present his case in the trial stage. While passing the above said decision the Division Bench of the Supreme Court might not have expected the far reaching consequences of the above said decision in complaint filed under S.138 of the N.I. Act based on Power of Attorney. Moreover this decision has been passed in a civil suit and the determination of a civil suit depend upon the preponderance of probability. Moreover, the courts should not forget the fundamental purpose of administering or conferring justice.