Is Section 43 Criminal P.C. Redundant?

(By T.M. Rajasekharan, Advocate, Calicut)

The learned judicial officer who contributed the Article reported in 2005 (4) KLT Journal 49 appears to have been carried away by the records of arrest in criminal cases. That many culprits are "arrested" by the private citizens (or public) is only a fact. But curiously no such arrest is recorded anywhere. The reason is obvious.

Culprits taken into custody by private citizens, are handed over to the Police. The Police officials, in order to take credit of the arrest, do not maintain documents u/S.43 Cr. P.C. but create records as if to show that it was the Police who arrested the accused. This practise is prevalent in the country.

S.43 Cr. P.C. is sidelined in the Police files also due to the ignorance of public regarding the salutary provision on one side and the dishonesty of the Police on the other. The media is also not well informed on this aspect. What is required is to create awareness among the public about the provisions. It is not without reason that Justice Malimath Committee recommended retention of S.43.

The provision is a useful one and enables the citizens to be active participants in the detection and investigation of crimes. No doubt, "If the private individual dares to exercise the power upon a criminal who does a criminal act in his presence", he may not succeed in taking the criminal to the police station. Yet the criminal could be kept in custody and the Police be informed about the arrest. What is envisaged is the collective function of the Public and not daring acts of individuals. Various other questions paused by the learned author are too hallucinatory to be accepted.

S.43 is not to be read in isolation. It is only supplementary to Ss.37, 38 and 39 of the Code. These Sections impose certain duties on the citizens to assist the Magistrates and Police to aid to arrest, and in execution of warrant to give information of certain offences etc. The Public is thus made vigilant rather than being reduced to silent spectators of crimes. That the Britishers misused the provision is not a ground to dispence with it.

A Fanciful and Wrongful Approach

(By T.M. Rajasekharan, Advocate, Calicut)

The classic example of neglect of important provisions of law is exhibited in two decisions of the Kerala High Court in Kesavan Nair v. State of Kerala and Haries v. State of Kerala (2005 (3) KLT 391 and 2005 (3) KLT 400 respectively). Much of the exercise in these two rulings could have been avoided had the attention of the Court been drawn to the S.216 of the Code of Criminal Procedure.

S.216 Cr. P.C. reads as follows:-

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(Sub-sections 3 to 5 omitted)

In Kesavan Nair v. State of Kerala, the Accused were charged with offences u/Ss.380 and 451 Indian Penal Code. It is not usual that the High Court interferes with the trial by hairsplitting evaluation of the allegations in the Complaint. But that is what precisely the court did, while interpreting the word "dishonestly" and scrutinizing the facts of the case. The Court, inexplicably, found that Ss.380 and 451 I.P.C. do not apply to the facts of the case. However without adverting to the salutory provisions of S.216 Cr. P.C. the entire proceedings in the case were ordered to be dropped, resulting in a strange and unmerited acquittal. The Court, with great respect let me state, failed to find that offences under S.447 and 427 I.P.C. were writ at large in the matter. If the statement of facts contained in the reported judgment were established at the trial, there would not have been any escape for the accused from conviction under those sections of the Penal Law. When charge sheets are filed by the Police, ignorantly, inadvertently or deliberately, the correct section of the Penal Code could be omitted. It is for the Court, when the evidence raises the curtain, to realise if there is any omission in the charge, and act accordingly.

As if to illustrate judicial inconsistency, barely within one month of the pronouncement of the judgment in Kesavan Nair's case, came the decision in Haries's case, applying different yardstick diametrically opposed to the earlier ruling. In the latter case, the High Court found that the charge under S.292, 294(b) and 506(1) would not lie, but instead of quashing the proceedings as was done in Kesavan Nair's case, searched out and discovered that offence under S.509 is attracted.

Paragraph 26 of the judgment in Haries' case reads: "But when this Court finds that the allegations revealed from the records constitute any offence or offences other than what are stated in the charge sheet, it will not be just and proper to quash the charge. Such quashing will not only not secure ends of justice but it will even result in miscarriage of justice". Further it is added "Though the specific section is not included in the charge sheet nothing prevents the lower Court from proceeding against the Petitioner for offence under S.509 I.P.C. Anyway, I am not inclined to quash the charge on the ground that there is failure to include a particular section in the charge sheet". A pathetic late realisation though for the good. In this situation, two aspects deserve the attention of students of law. Firstly, in a pre-trial intervention especially under S.482 Cr. P.C, the High Court should be cautious in analysing the facts contained in the case records. It will amount to prejudging the evidence. It is better to allow the trial courts do their own business. Secondly, while the provisions of the Indian Penal Code are subjected to detailed study, the related provisions of the Criminal Procedure Code should be discussed side by side. Unfortunate it is that rudiments of application of Criminal Law is to be reminded of through these columns.

I am constrained to add that there is yet another anomaly of far reaching consequences in the entire episode as far as Kesavan Nair's case is considered. The Kerala Buildings (Lease and Rent Control) Act is provided for eviction of tenants in a lawful manner. It is not for the land-lord to take the law into his hands with perfect immunity, to use force and throw the tenant out of the building disregarding the provisions of Specific Relief Act and disobeying the order of injunction granted by a competent court of law. Painstaking interpretations of the provisions of law is one thing, but to provide substantial justice to the aggrieved is another. The Court may find intellectual pleasure from the former but its basic duties demand the latter. The Court of law can neither act as a silent spectator or become a somnambulist by hiding in the darkness of a self-made cocoon. I am sure that the judgment of the Kerala High Court in the instant case is an open proclamation to all the land-lords that "might is right". The end of "rule of law" appears to be in the near vicinity.

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!