A Critical Note on 2000 (2) KLT 933 (DB)

(By P.B. Menon, Advocate, Palakkad)

The above decision coming from two eminent Judges of the High Court of Kerala reads a pathetic picture. Leave alone the procedure adopted which is nothing but novel.

I strongly feel that it is a startling proposition of law that is what is laid down in this decision.

Landlord - tenant relationship is controlled by the provisions of T.P. Act and Indian Contract Act. An inroad is made by legislating the Buildings (Lease and Rent Control) Act m Kerala as elsewhere. There were provisions in the said Act for fixation of fair rent etc. with the result the contractual rent could be varied by exercising the right under the said statutory enactment. Those sections have been struck down by the Hon'ble High Court of Kerala in various decisions. The natural result is that the parties are relegated back to the realm of contract and contract rent is what is demandable or payable as between a landlord and tenant. There is no common law right recognised by law as regards a landlord or tenant, so as to get the fair rent fixed of the leasehold premises. When there is no such common law right or any other statutory right, what is the legal basis for a suit which is cognizable under S.9 C.P.C. to get the fair rent/increased in rent fixed by a Civil Court. No discussion or reasoning is seen made therein except saying that the jurisdiction of the Civil Court is not excluded and so a suit for fixation of fair rent will lie. But what about the provisions of T.P. Act and Indian Contract Act which governs the parties; what about the binding nature of the contract between the landlord and tenant. What is law under which it can be put an end to or varied.

If at all a civil court has the right to fix the fair rent, what are the guiding principles to determine the same. The result will be that a civil court is at liberty to fix any amount arbitrarily and according to its whims and fancies, in as much as there is no provision of law or any guiding principles on the basis of which such fair rent has to be fixed. Above all, as staled earlier, what happens to the binding contract between the parties. Will it not amount to a new contract being made by a civil court, so as to bind the parties and is it not prohibited by law. Under what law and under which system of jurisprudence can a civil court make a new contract between the parties is also not known. The only result of this decision will be not to put an end to multiplicity of suits but opening a flood gate for litigation in all civil courts in the State of Kerala. Any comment to the contra will be appreciated and is welcome.

Rent Control Litigation - A Fine Example of the Maxim ‘Justice

Delayed is Justice Denied’

(By R. Lakshmi Narayan, Advocate, Ernakulam)

A Justice Delivery System, imparting speedy justice is a dream of every citizen. And this ought to be the duty and the desire of the Judicial System. But when the System fails to achieve the said goal for various reasons, it wisely takes shelter under yet another maxim 'Justice Hurried is Justice Buried', inspite of our understanding of the distinction between Speedy Justice and Hurried Justice. We should not forget that it is the need of the hour to have a system of dispensation of justice imparting speedy justice. Litigation has become a liability for the generations to pass on to the next.

2. It is vital for the Judicial System to have widespread support and trust of people in order to sustain itself in esteem, in its role as a protector of the rule of law. Delay, that too unreasonable, in the disposal of cases will certainly deprive itself of the strong public support, based on which the Judicial System stands erect. Anitha Garg, in her article observes "People have lost faith in Courts and are taking recourses to extra legal methods for rough and ready justice"1. One cannot refute this observation.

3. Reasons for delay are numerous. Some are unavoidable, while many are avoidable. Avoidable reasons should be strictly avoided at any cost in order to keep the credibility of the legal system intact. Stringent provisions have to be inserted in the Law Books to avoid deliberate delaying tactics adopted by parties for their selfish ends, which adversely affects the legal system. Whether our lawmakers are serious enough to take into account the problems caused by delay and find out ways and means for solving them by making suitable changes in the law books is yet another controversial matter especially in view of the controversial amendments recently brought in the Code of Civil Procedure.

4. Kerala Buildings (Lease and Rent Control) Act, 1965 and the Rules framed thereunder are to be amended by absorbing the ground realities and practical problems faced by litigants and the Courts. One of the most crucial problems of rent control proceedings is the unreasonable delay in the disposal of cases. All other problems are secondly in nature. Delay is a curse for the litigants, especially for the landlords and to an extent for the tenants too. It shakes the credibility of the Rent Control Courts as they fail to control the delay due to their own limitations-legal and others. A landlord who seeks eviction of his own building has to wait for decades together to have a final decision on his claim. Instances are many where the landlords never see the fruits of their litigation. It has become a herculian task.for a landlord to get vacant possession of his own building. Examples are umpteen, where landlords who seek eviction on the ground of bona fide need for own occupation to start new ventures for their livelihood, have lost their urge in midway of litigation due to various adversities the passage of time has inflicted upon them such as ill-health, old age, drastic change of circumstances, financial decline etc., all these due to unreasonable delay. Scared of unreasonable delay in the final adjudication of the cases, landlords are hesitant to approach the Court even if their need is dire in nature, bona fide and genuine.

5. So delay should be curtailed at any cost. Rules have to be modified in order to curtail the delay. Justice Cardozo remarks: "Every case is an experiment; and if the accepted Rule which seems applicable yields a result which is felt to be unjust, the rule is to be reconsidered". He further says; "but if a Rule continues to work injustice it must eventually be reformulated. The principles themselves are continually retested; for if the Rules derived from a principle do not work well, the Principle itself must ultimately be re-examined"2. The old Principle attached to Rent Control Legislation that it is enacted for the benefit of tenants, is no longer the Principle governing the Rent Control Legislation3.

6. The Hon'ble High Court of Kerala has expressed much anguish over the delay in the disposal of Rent Control cases. In Sumathi v. Devasan4 His Lordship Justice T.L. Viswanatha Iyer has observed: "The Act by its S.24 gives vent to the fond hope of the Legislature that a Rent Control Petition should find disposal as far as possible within four months. I wonder whether this expression of hope has materialised in any case. It is not that this time frame applies only to the court of first instance and then matters may languish in Appeal or Revision. What has been stated of the Rent Control Petitions should apply equally to the Appeals and the Revisions. Courts in this country of overcrowded dockets are certainly not to be blamed for the delay which is contributed by a variety of other cases. But the Courts should at the same time be vigilant to see that there is no judicial contribution to the delay as in this case".

7. I respectfully agree with the Learned Judge who has shown great wisdom in analysing the matter carefully. But the question still remains "who should be blamed for the delay". It may be very difficult question to be answered and no purpose other than academic interest will be served by trying to search for the villain. Finding out a solution rather than blaming somebody will be a workable proposition. Courts have attempted to reduce the delay by interpreting various provisions of Rent Control Act. But these attempts have not yielded desired results as new loopholes are found out to defeat them. The Hon'ble High Court has held that on every order of Rent Control Court, Appeal under S.18 will not lie if the Order is merely procedural and those which do not affect the rights and liabilities of parties"5. But in practice the provisions of S.18 is seen misused in order to cause delay. Petitions are filed in Rent Control Court invoking various provisions of C.P.C. beyond the ambit of S.23 of the Act. The Courts are called upon to decide those petitions on merits. This consumes much time. Discouraging frivolous petitions by dismissing them in limine by imposing heavy cost may be the first step in the right direction. What is contemplated under R.11(8) of the Rent Control Rules is a summary procedure. But in practice the Rent Control litigation has longest procedures and voluminous evidence, oral as well as documentary. R.11(8) of the Rent Control Rules dictates that all applications under the Act should be decided in accordance with justice, equity and good conscience. So it is quite natural to presume that the term 'equity' demands ‘Speedy Justice’.

8. It may not be out of context if I cite an example of frivolous nature of petitions filed by tenants to protract proceedings. A case of the year 1996 came up for trial in the Special list before the Rent Control Court, Ernakulam, in the month of March, 2000. In that case a partnership firm and its partners are respondents. On the date of the trial, the tenants filed a petition to implead a new partner who had been recently inducted into partnership, as additional respondent and delete one respondent who had just retired from partnership. Along with the application another petition to remove the case from the Special list was also filed. The Court rightly dismissed the petition. If such petitions are entertained, there will be no end for litigation. Our Hon'ble High Court has held that R.C.P. is maintainable against partnership firm without the junction of the partners"6 : But the Counsel for respondent prayed time for filing Appeal against the said Order. Prayer was rejected and ex-parte order of eviction was passed after examining the landlord. The landlord was very happy until he was informed that there was nothing to rejoice as the matter would come back for fresh disposal, and the tenant would get more time. Another tendency seen is that the respondents even prefer to remain ex-parte in the trial stage in order to delay the proceedings. Such delaying tactics, if not suppressed with iron hands, will hamper the very system itself.

9. To avoid delay, in certain types of cases, the Courts have permitted the landlords to approach them in advance in anticipation of their future need7. But this concession is extended to limited types of cases and the general rule that the rights of the parties must be determined as on the date of institution of the action, governs the rent control litigation. So filing of petitions in advance in anticipation of delay is not possible in most of the cases. Eventhough Courts are sympathetic towards the landlords in respect of the delay and the trauma experienced by the landlords, they fail in their attempt to find out a solution to the problem, on account of factors like arrears of cases, exploding dockets and insufficient number of Tribunals for trial, Appellate and Revisional. So it is high time for the Judiciary to suggest methods to curb the delay, and for the legislature to implement the suggestion by enacting new rules in the light of practical difficulties faced. The Presiding Officers have vital role to play in curbing the delay. They can very well refuse to yield to unreasonable prayers for adjournments sought by parties. They can also check the delaying tactics employed to drag the proceedings, keeping in mind that delayed justice is equivalent to justice denied. As rightly pointed out by Ehrlich, "There is no guarantee of justice except the personality of Judge8".Here we must also remember what Lord Hewart C.J. has said "justice should not only be done but manifestly and undoubtedly be seen to be done9

10. Arrears of cases, is yet another hurdle to be got over, for it is one of the main reasons for the delay. In order to reduce the arrears we can experiment with alternative dispute redressal forums like Lok Adalaths. But there is hardly any chance of a rent control petition being settled outside the Court room as the matters are hotly contested. Constitution of sufficient number of Rent Control Courts, Appellate Forums and Revisional Courts, is absolutely necessary to reduce arrears of cases and to dispose new cases as early as possible. Separate Courts may be constituted at trial and appellate stages. Sufficient number of Special Courts designated as Rent Control Court and Rent Control Appellate Authorities must be separately constituted, and the matter should not be entrusted with Civil Courts hierarchy which is overloaded with civil litigation. Even cutting down one Forum from the hierarchy of Forums has not yielded desired results. In my opinion, sufficient number of Rent Control Courts may be constituted in each district with District Judges as Presiding Officers as in the case of Family Courts, Labour Courts and M.A.C.T. If the Government is not in a position to create more permanent posts, it may consider availing services of retired Judges for a specified time to undo with backlog of cases. An Appeal or a Revision may be provided against Order of Rent Control Court. According to me, Revision before the High Court is preferable as Rent Control Act contemplates only a summary trial. Under the Act, the Revisional Court can also probe into the propriety of the findings. Of course the aggrieved party can approach the Supreme Court under Art.136 of Constitution. In my view the hierarchy suggested above is sufficient safeground for the proper and final adjudication of Rent Control Cases.

11. So, in order to achieve speedy justice in Rent Control litigation it is expedient to constitute sufficient number of Courts, downsize the hierarchy of Forums now available, curb the right of Appeal in interlocutory applications, discourage frivolous applications by dismissing them in limine with heavy cost and simplify the procedure. The Law, Rules, Principles and procedures must be modified to absorb the changing situations. As pointed out by Hon'ble Justice Jitendra N. Bhatt, Judge, High Court of Gujarat, in one of his articles, 'It would be really unwise and improper if the law were so petrified as to be unable to rise to situations and constant challenge of evolutionary and revolutionary changes in Society"10.One can only hope that the authorities concerned will give serious thoughts on this aspect as early as possible in order to keep the legal system intact and to retain the trust the system has created in the minds of the people. If immediate renovative steps are not taken, it may not be too remote, that the hierarchy of Rent Control litigation will crumble under the pressure of huge arrears of cases and the frustration and agony of litigants who suffer due to the delay. As Lord Denning observed; "Justice must be rooted in confidence"One can only hope that the authorities concerned will give serious thoughts on this aspect as early as possible in order to keep the legal system intact and to retain the trust the system has created in the minds of the people. If immediate renovative steps are not taken, it may not be too remote, that the hierarchy of Rent Control litigation will crumble under the pressure of huge arrears of cases and the frustration and agony of litigants who suffer due to the delay. As Lord Denning observed; "Justice must be rooted in confidence"11. Trust and confidence of people in Judicial System is undoubtedly precious and it is to be preserved for the benefit of society at large. If this principle is borne in mind and on its basis corrective steps are taken to revamp the system, "Speedy Justice" will not be distant reality.

________________________________________________________________________

1. Anitha Garg, "A Critical Study of Certain Amendments preposed in the Code of Civil Procedure", AIR 2000 Journal page 66.

2. Cardozo - 'The Nature of the Judicial Process' - Page 23.

3. K.S. Sundara Raju Chittiar v. M.R. Ramachandra Naidu (1994) 5 SCC 14.

4. Sumathi v. Devasan 1991 (1) KLT 453.

5. Thomas John v. Kochammini Amma 1991 (1) KLT 99.

Sumathi v. Devasan 1991 (1) KLT 453.

6. Lieya v. Kaliappa Chettiar Sons 1995 (2) KLT 783

7. Secretary, Thevara Co-operative Consumer Stores Ltd. v. Jose -1984 KLT 290. Kunhamma v. Usha 1991 (2) KLT 772.

8. Cardozo "The nature of Judicial Process" at page 17.

9. R.V. Susex Justices; 1923 All. ER 233.

10. "New Soio Legal Perceptions and Challenges of Bio-Genitic Technology" - AIR 2000 Journal 73.

11. Metropolitan Properties Ltd. v. Lannon(196S) 3 All. ER 304. 

Place of Trial of Cruelty Case

(By S.A. Karim, Advocate, Thiruvananthapuram)

Cruelty is dealt with in S.498A of the Indian Penal Code, 1860, hereafter referred the Penal Code. Though Penal Code came into existence about one and a half century back, S.498 A is just 17 years old. It has been introduced by Act 46 of 1983. It reads-

"Whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine".

In this offence the victim is always the wife and the offender is either the husband or his relatives or both.

In our society marriage is a solemn act. It usually takes place at the bride's place. The place of the bride groom may be near, distant, far distant and even outside the State. Cruelty ordinarily starts at the husband's place. Once cruelty becomes either acute or unbearable, the wife flees away from the husband's house to her house. In such a situation either the victim woman or her dear and near one thinks to file case for cruelty.

Under S.177, Criminal Procedure Code, hereafter referred the Procedure Code, the place of enquiry and trial is the place where the offence is committed. The section reads-

"Every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed."

So the victim wife has to travel to the husband's place to lodge complaint, give assistance to the investigating agency, and then for trial. If the distance between the offence committed and the victim's residence is far distant, the victim wife suffers much. In such a contingency, the procedure for initiating a case under cruelty becomes more cruel. S.179 of the Procedure Code says-

"When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

Mental agony, torture, want of maintenance and loss of company are some of the unfortunate consequences that arise on cruelty. Either the investigating agency or the trial court does not consider these aspects as ensuing consequences. In order to do justice to the victim of cruelty under S.498 A, it is absolutely necessary to give option to the victim wife to file complaint, conduct enquiry and trial the case where the victim resides. Once this comes true, the reverse of what is happening today will follow. So that the procedure in filing complaint, enquiry and trial will not be cruel to the victim wife. 

"Democracy is Panting, When the Millennium Politics of

Electioneering Generates Horror"

(By V.P. Ramesan, Advocate, Ernakulam)

It was Lord Thomas Babington Macaulay, nay, by Act 39 of 1920, Chapter IX A containing "Election Offences" were incorporated in the Indian Penal Code (Act No. 45 of 1860) which now becomes ineffectual if we glance on the millennium criminal trend of human character. Lord Macaulay whose services in codifying the fundamental substantive laws in the domain of criminal jurisprudence for the British India which were recorded in the annals of our legal history still deserves high appreciation and admiration. Lord Macaulay who could peep into the mental miasma of a human being was absolutely right and correct in defining and carving out the dense dark areas of human criminal activity which still remains unaltered even by efflux of a lot of time. It was not a matter of assignment then for Lord Macaulay to analyse the "Election offences" since our land was not ripe geographically as well as politically to pile the pillars of a legal system embeded on parliamentary democracy. Even in 1920, the year in which Act 39 of 1920 was enacted, India as a body politic was not even in an embryo stage where elections to democratic forums was not a process of common man's involvement in a circumstance where the whole country was burning in the freedom struggle. Yet, the framers of Act 39 of 1920 could do the better considering all expected aspects and ill-activities that may happen in an election process. But it appears from the tendency and trend of the present day political activity connected with electioneering, Chapter IX A of the Penal Code is not enough and exhaustive to cope with the need of the hour and hence it requires some amendments to prevent a situation where the very basis of democratic process is to be allowed smoothly enabling the electorate to exercise their franchise freely without any fear of being put to criminal intimidation and assault.

The conduct of election, a very pious process as well as the pivot of a democracy, in a peaceful manner has become impossible in the present day sovereign republic of India. Coming to our State, the recent incidents of atrocities on the poor innocent public in the guise of political activity by warring political groups has created panic among the public at large, where the constitutional limbs are silent spectators even though the cold-blooded activities of the political parties have terrorised and abashed the people. This tendency emasculating the democratic process gives rise to a thinking as to why the provisions regarding "offences relating to election" contained in the Indian Penal Code be amended by inserting a section in Chapter IXA which may enable the criminals to be placed in the deserving dock. It is times harbinger to which we cannot close our eyes. Chapter IX A containing S.171A to 1711 in the Indian Penal Code deals with offences relating to election which definitely spells out nothing about any dastard criminal activity of political parties apart from definition and enumerating misconducts. The framers while debating on the aforesaid Chapter may not have contemplated the happening of a contingency of the kind mentioned above where the people are being confronted with the same persistently. The political executive despite to shackle these criminal elements is throwing its hands up driving the people in peril and pitiable plight. It has become more clear after every election that the conduct of the same peacefully is impossible without any effective legislation which should certainly aim at the venom-breeding political activity of political parties and its leadership. The political parties are sturdy enough to go to any extreme if they can procure a scape-goat. This is the dire fact that has to be borne in mind while moving for a legislation to curb the above evil.

As things goes at present, the culprits can be charge-sheeted for various offences enumerated under the Indian Penal Code, the conviction under which is solely dependent upon the evidence on record strictly in tune with the Indian Evidence Act. To avoid a situation where the culprit get an easy vent and walkover the above chapter may include a section which may categorically define that all atrocities either by way of clashes or conflicts between political parties that occur during the span commencing from the month immediately preceding the date of notification of election by the Election Commission of India to the month immediately succeeding the date of declaration of results be election offences and penal provisions for such offences may be analogous to the provisions prescribed for the offences of the very same nature enumerated in the Code. Such a section may also contain a proviso to the effect that if the culprit indulging in acts of violence causing damage to life and property has or had allegiance to a political party at the time of commission of the offence, the conviction of him shall directly affect the party to which he belongs or belonged and such party may also be penalised which may be by cancelling its registration and imposing other punishments such as imposition of fine which may be paid to the victims or to the kith and kin of victims by way of compensation and in case of non-payment of fine, the assets of the concerned political party may be sold and the proceeds may be applied for the above.

It may also contain necessary safeguards to prevent the protraction of procedure and also avoid cumbersome proceedings as are quite natural in the present day legal system. There cannot be any ambiguity with regard to the trial of the offence which shall be independent of the prevailing procedural laws applicable to offences for which necessary amendments in the Indian Evidence Act may also be introduced. If this be the consequence of the proposed insertion of a new section as suggested above, the political masters will certainly relegate and stop inciting their rank and file to resort to violence rendering the democracy a mockery now-a-days.

The Legislature has the duty to see that the system as laid down under the Constitution should sustain and continue as undisturbed for which the power of legislation invested with it must be exercised. The irony is that the political parties being so responsible to such a situation will certainly hesitate! Since, the parliamentary system of democracy is squarely under the control of a legislature dominated by political parties, there is little chance on their part to pilot a bill in the Parliament to insert a new section of the kind as suggested above to Chapter IXA of the Indian Penal Code with the above intent. Then, the only constitutional limb that can rush to the rescue of the people is the judiciary which can suo motu take up the matter and can give effect to a legislation embodying the above purport in exercise of its jurisdiction of interpretation by interpreting election offences contained in Chapter IX-A of the Indian Penal Code. Pertinent to note at this juncture is the callous way in which some of the political parties deal with membership register which may also be borne in mind when the idea highlighted above is moulded into a section in the code so as to avoid the attempt abortive.

There is sharp difference of opinion as to whether the Judiciary can step into the shoes of legislature when it hesitates. Justice Ashok A. Desai in the book on "Justice v. Justices" has emphasised the need for self-restraint by all the three constitutional limbs by confining their sphere of activities to the respective domains as enumerated and enshrined in the Constitution. Our exercise under the Constitution for half a century spells out the dire fact that the laxity and lapses on the part of the legislature with the staunch support of the political executive towards gnawing but soring problems of the people led to a situation where the Judiciary was constrained to wear the mantle of "Judicial Activism" which in effect tantamount to a legislation. Ironically, the people heave a sigh of relief on occasions of Judicial intervention. So, there is no point in speaking about separation of powers in the strict sense between constitutional limbs as experiences hitherto attaches no significance to it.

In "All India Judges' Association v. Union of India" reported in (1992) 1 SCC 119, the Hon'ble Supreme Court of India gave a judgment enhancing the retirement age of subordinate Judicial Officers and issued certain directions with regard to allied matters. Also, in Special Reference No.1 of 1998 reported in (1998) 7 SCC 739, the Apex Court held in crystal clear terms the opinion of the Chief Justice of India as "primacy" in the consultative process in respect of appointment and transfer of Judges. In view of the landmark Judgments given by the Apex Court in the above, it may not be inappropriate to have a look at the issue raised in this article regard having to its gravity and significance.

Epilogue:-

The Soothsayer in "Julius Caesar" murmur to Caesar: 'Beware the ides of March'. The Caesar stabbed by a group of conspirators headed by Brutus uttered: 'Et tu, Brute', while Cinna clamoured out "Liberty! freedom! Tyranny is dead".

We would be compelled to say then, "Liberty! freedom! Democracy is dead" if not otherwise immediately correct ourselves so as to uphold the best traditions of democracy having its cradle in Homer's Land and evolutioned to the Anglo-Saxon heritage of the British which we follow unscrupulously whether fair or foul. What is done cannot be undone. Before the deed is done, we have to prevent it with our hands in prayer saying 'hosanna' for the sake and survival of our democracy by repudiating and renouncing all evil tendencies hovering the body politic.

Section 24 Cr. P.C. v. Kerala Law Officers Rules, 1978

 – Need for a Paradigm Shift

(By Advocate T.P. Aboo, Majeri)

The Supreme Court of India in Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51) has clearly stated the duties of Public Prosecutors.

There are a catina of Supreme Court and High Court cases highlighting the importance of the office of the Public Prosecutor. According to the Supreme Court, "the Public Prosecutor is its minister of justice."

It is a strange paradox that the law relating to appointment of law officers of Kerala today is a wonder land of anomalies, ambiguities, errors, omissions, irregularities and even illegalities. S.24 Cr. P.C. 1973 deals with the Public Prosecutors. As a result of to the change of Government in Kerala, the Advocate General, Additional Advocate General, Public Prosecutors of the High Court and District Courts have resigned and new persons have assumed office. The appointment of Public Prosecutors in some district head quarters are to be made. The purpose of this piece is to highlight the irregularities now prevailing in the appointments of Public Prosecutors in the District Centres.

S.24 of the Criminal Procedure 1973 deal with Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors. Sankaran Nair, J. in Aboobacker v. M. Ralna Singh (1992 (1) KLT 41) has dealt with the legal position regarding the appointment, qualification, condition of service of the Public Prosecutors. The Hon'ble Judge observed in Para 8 of the above decision "office of the Public Prosecutor is created by the Code of Criminal Procedure, and appointment is made only under the Code, plurality of source of authority to make an appointment is alien to the 'context'."

This observation was made as a reply to the argument advanced by the Counsel for the petitioner that the 3rd respondent in that case was appointed under Kerala Public Service Act. 1958.

The Kerala Public Service Act, 1958 was enacted by the Kerala Legislature "to regulate the recruitment and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala. S.2 of the above Act enables the State Governments to make rules (either perspectively or retrospectively) to regulate the requirement and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala". It is under this Section that "Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978" is framed by the State Government. This ominibus rules cover the appointment and condition of service of the Law Officers of the State of Kerala. As per 1992 (1) KLT 46; it is submitted that these rules cannot be framed under the Kerala Public Service Act as the Public Prosecutors are not "recruited to ihe Public Services and posts in connection with the affairs of the State of Kerala". Justice Sankaran Nair in no uncertain words put it, "it is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is 'recruited' to 'public service or posts' in connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate 'recruitment and conditions of service' of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a 'service or post' in the real sense. Perhaps, the position may be different under S.24(5). But it is unnecessary to consider the question further, as petitioner did not advance any argument on this aspect". (1992 (1) KLT page 46)

It is respectably submitted is that position in S.24(5) is also not different except in cases were Public Prosecutors are appointed from regular cadre of Prosecutors under S.25(6) of Cr. P.C. In the light of K.J. John v. State of Kerala, AIR 1990 SC 1902 such appointments are not taking place in Kerala today.

Now let us examine the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978. S.2 of the Rules defines "Government Law Officer" S.2 reads; 'Govt. Law Officer' means a person appointed by the Government to conduct the Government cases in any Court or Tribunal in the State or in the Supreme Court of India and includes;

i) Laison Officer in the High Court

ii) Pleader Appointed to Government work in a Munsiff Court

iii) Special Government Pleader

iv) Special Public Prosecutor

v) Government Pleader for arbitration proceedings and

vi) Standing Counsel for the State in the Supreme Court.

In this definition, 'Public Prosecutor' finds no place. In the definition it is stated that Law Officer means a person appointed by the Government to conduct Government cases in any Court or Tribunal in the State or in the Supreme Court and includes persons enumberated 1 to 6. Words 'means' and 'includes' are used in this definition. As per the rules of interpretation, the word 'means' is intended to be not exhaustive while the word 'includes' is intended to be exhaustive. But by any stretch of interpretation Public Prosecutor is deliberately excluded because Public Prosecutor is not a person appointed by the Government to conduct the Government cases in any Court. Public Prosecutor conducts the prosecution for the State, the term 'State' is wider than the term 'Government' the State goes on, while the Government changes. This can be clear from the judicial decisions under S.321 and other sections of Cr. P.C.

S.8 of the Part B of the Law Officers Rules deals with set up in District Court centres. S.7(l) reads, 'there shall be one District Government Pleader and Public Prosecutor at each district centre. S.8 deals with appointment of Government Law Officers at District Courts, Addl. District Courts etc. Anomolous position here is that nowhere in the rules it is stated that the Public Prosecutors are Law Officers. My submission is that only Law Officers and not Public Prosecutors can be appointed under S.8 of the Rules. There is a patent difference between S.3 and S.8 of the Rules. In S.3 it is stated that besides the Advocate General and the Addl. Advocate General there shall be the following categories of the Law Officers in the High Court namely;

i) Public Prosecutor

ii)               --

iii)              --

iv)              --

So S.3 includes the Public Prosecutor as Law Officer. But S.7 deliberately omits to say so. The intention of the Rule is exclusion of Public Prosecutor from the category of the Law Officer. Another area of conflict between Cr. P.C. and Law Officers Rule is in the combination of District Government Pleader and Public Prosecutor. S.7 of the rules mandates that there shall be one District Government Pleader and Public Prosecutor in each district centre. Though sub-section to S.7 gives power in necessary circumstances for separate appointments, it is not in practice in Kerala, though other States have separate Government Pleaders and Public Prosecutors. There is a change of circumstances in the District Courts now, from what it was when the rules were framed in 1958. Now the District and Sessions Judge tries cases involving atrocities to Schedule Caste and Scheduled Tribes, Abkari cases, apart from civil and criminal cases, appeals and revisions. There is 'docket flooding' in district centres. Therefore separation of the posts of Government Pleaders and Public Prosecutor is a must in the interest of administration of justice.

Clubbing of these two officers is against the spirit of S.24 Cr. P.C. as well. S.24 stipulate conditions for the appointment of public prosecutor in the High Court and District Court. The spirit of this Section is against plurality of offices. It prescribes various qualifications for various posts of Public Prosecutors. S.24(9) is a deeming provision by which the services of Pleaders, Asst. Public Prosecutor and the prosecuting officers whatever name called shall be deemed to be the period during which such person has been in practice for the purpose of appointment of Public Prosecutor in the District or appointment of Special Public Prosecutor. S.8(2) of the Rules stipulates that the District Collector shall while preparing the panel bear in mind that person included in the panel shall have at least seven years of practice as an Advocate. Thus S.82(1) does violence to S.24(9) Cr. P.C. A rule made by the Government, that too without legal authority cannot take away a right given by the Parliament of India in its wisdom to the Pleader and Assistant Public Prosecutor. The intention of the Parliament was to accommodate very senior, experienced persons who had spent long years as prosecutors. The points raised by me in this article can be summarised as follows:

1. Appointment of Public Prosecutor in the District centres can be only under S.24 Cr. P.C.

2. The enactment of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978, is ultra vires of the Kerala Public Service Act, 1968, the appointments being not to a 'service or post' and it being not a 'recruitment'.

3. Even under definition of the Law Officer as per the rules, Public Prosecutor is excluded.

4. Office of the Public Prosecutor is created by Cr. P.C. an Act of Parliament. The right conferred under this Act cannot be taken away by any Act of the State or under any irregularly framed rules.

5. There is no State amendment as of today of S.24 Cr. P.C.

6. S.8(2) of the rules takes away the rights conferred by S.24(9) of the Cr. P.C.