Buprenorphine Addicts: Don't You Want to See them

De-Addicted, Learned Spl.Prosecutor?

(By T.D. Robin, Advocate, Ernakulam)

(Ref. Buprenorphine Bane of Kerala - 2005(4) KLT Journal 53)

Olden days, days when I thought she were in love with me, I used to scribble. Mostly letters to her; seldom those which me alone would dare call poems. Whatever it be, I learned one thing. Behind everything that we write which comes from the very heart of our heart, there is a lot of pain. A pain which will ultimately subside only when we complete the writing.

Today, when I sit with my pen and paper ready, and 2005 (4) KLT Part 13 & index, page 53 journal Section shining with the caption "BUPRENORPHINE - THE BANE OF KERALA" written by the reputed Spl. Public Prosecutor (Narcotics) , High Courts of South Zone, Sri. P.N. Prakash, I am feeling the same pain. Coupled with it is a trepidation, a 'should I or should not I’ feeling which confuses me. But the fact that there is something legally incorrect, something which is factually wrong and practically against commonsense in the above article has put to rest the confusion and given me the strength to scribble what I feel in my own humble way.

The words Buprenorphine or its trade names like tidigesic, Bunogesic etc. may not make a mark in many except Judges, lawyers who handle drug cases, doctors, drug mafia, peddlers and addicts. It is akin to morphine. It is a post operative analgesic or to put it in a layman's language, an injection given to a patient who has undergone operation to kill away his pain.

Accidentally or intentionally if a normal person takes an injection, that moment, he falls a pray to this 'bane' as the author rightly calls it. I had wondered and tried to collect from my clients what exactly was the pleasure that they derived from it. I was told that the most exciting effect of the drug was that it gave boundless confidence to the taker. Suppose he is on to buy a shirt. He enters the shop. Not even a few seconds are wasted; the selection is made spontaneously and with absolute satisfaction. Likewise, he is in the company of his friends one of whom asks him to pick the pocket of a person. There are no second thoughts. The thing is done. Consequences are not thought of.

The effect of an injection ordinarily lasts for four hours. Then starts the craving for the next one. Step by step it increases and a completely addicted person may take upto 8 injections per day. The cost of an ampule containing 2 ml is around Rs.15. But its availability from Medical shops is strictly on production of medical prescriptions. The next option is only purchase from peddlers. There, the amount varies from Rs.100 to Rs.250/- per vial and even more depending upon the urgency and inevitability of the taker.

The taker can be a menace to the society. There is no doubt. He would be unmindful of involving in crimes. The chances of disseminating dreaded diseases like HIV and AIDS are high because of the common use of syringes. Buprenorphine is a bane. It is a bane to the society. I AGREE cent per cent with senior Prosecutor Mr. Prakash on that aspect. But I DISAGREE with utmost respect when he calls it "THE BANE OF KERALA". Thank God the other states of South zone are free from this bane.

No small quantity : I want to write a lot. But I want to be short too. The author of course advanced his arguments in Shaji's case before this Court. His article is in effect a reproduction of his well prepared and to-the-point arguments. (Shaji 's case had its birth at District & Sessions Court Ernakulam.) Admittedly Buprenorphine is available in liquid form, its sold content being only 0.3 g per ml. In the last but one sentence of the first paragraph in page 54, the author says "one vial (ampule) of Bupernorphine will contain 2 ml (approximately 1.5 gm) of Buprenorphine preparation in liquid form. For one thing, the use of the word approximately does not suit the pen of an authentic writer especially when much matters upon it. The liquid contents of the ampules were weighed at the District and Sessions Court, Ernakulam. Each ml. weighed 1.08 gms. Therefore the total weight of the ampule containing 2 ml is 2.16 gms. Buprenorphine is available in medical shops in 2 ml ampules only. (Smallest unit) Conceding the arguments of the author, that the whole weight of the liquid and the substance together has to be measured (for arguments sake) , the weight of one ml is 1.08 gms. The small quantity prescribed for Buprenorphine is one gram. But we are now stranded herewith 2.16 gms. What can be the expected result. If we go by the theory of whole weight of the preparation. Buprenorphine will have no small quantity. Even according to the author, the weight of 2 ml is approximately 1.5 gms.

Dear Author, before writing this article, or advancing your arguments at Shaji 's case or at any time after the amendment 2001 came into force, have you come across S.64A?. Had you ever felt in your mind that at least some of the addicts who are still languishing in jail want to get rid of this nasty habit and return to normalcy?

Before the amendment in 2001 the law on this aspect was so stringent. Minimum and deterrent punishments were prescribed for possession of even small quantities of drug. Notification regarding small quantity came into existence in 1996. Before that, the power to prescribe small quantities not already prescribed in the Act was given to respective District Medical Authorities, who according to their whims and fancies fixed them as 3, 4 or 5 ampules, (based on experience of author in courts). An interesting aspect is that, in spite of these stringent provision, the crime rate did not go down or rather went up. (The author would be better equipped with clear data).

That must be the reason why the Parliament in its wisdom thought it fit to amend the Act by Act 9 of 2001. Certain reasons have been enumerated by the Parliament in the Objects and Reasons which prompted it for this amendment. I think the learned Author might not have perhaps read it. But do take it, Mr. Special Prosecutor, the Judges of Kerala High Court have read it and had it in their mind when they rendered the judgment which you have attacked in your article.

It reads "The NDPS Act 1985 provides deterrent punishment for various offences relating to illicit trafficking in Narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a minimum of ten years rigorous imprisonment which may extend upto twenty years. While this Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts,. In view of the general delay in trial, it has been found that the addicts prefer not to invoke the provision of the Act. The strict bail condition under the Act add to their misery. Therefore it is proposed to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalization of the sentence structure provided under the Act. It is also proposed to restrict the applications of strict bail provisions to the offenders who indulge in serious offences".

With this back ground let us examine Section 64 A of the Amendment Act 2001 and the consequences that would have ensured if Shaji's case was held to be good law.

S.64A. Immunity from prosecution to addicts volunteering for treatment

Any addict, who is charged with an offence punishable u/S. 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under any other section for offences involving -mall quantity of narcotic drugs or psychotropic substances.

Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

(Section 27 prescribes punishment for consumption of any narcotic drug or psychotropic substance; first limb prescribes, punishment with the imprisonment which may extend upto one year or with fine which may extend to twenty thousand rupees or with both and the second limb prescribes punishment for a term which may extend to six months or with fine which may extend to Ten thousand rupees or with both, depending upon the nature of the drug used).

Answers to the arguments advanced lie in the article itself. Author admits that the solvent for Buprenorphine is water. I hope he would not advance an argument that water is a psychotropic substance. Admittedly, the Parliament was aware of these facts. Author also says Buprenorphine has to exist in solid or liquid medium. The chemical Analysis reports in the cases show that the Buprenorphine content in those medium can be extracted and weight calculated in terms of gms. Invariably, C.A. Reports show the weight of Buprenorphine as 0.3 mg/ml. or less (I have never come across any higher quantity. 0.5 gms etc., mentioned in the article, again, I may say must be a factual mistake). To cut it short, if Parliament intended the whole weight of the solution, it would have put it so in black and white. The only conclusion is that what the Parliament intended was the weight of the substance called buprenorphine alone and not the weight of the whole liquid medium. A contrary view will make S.64 A redundant.

The substance of his arguments lies in his compulsion to read section 2 (xx) which defines preparation and 2 (xxiii) which defines psychotropic substances together. May I invite the attention of the reader to item No. 111 (One hundred and eleven) in the Table of the Act which prescribes the quantities. It reads "Preparations made from the extract of tincture of Indian Hemp" .If the author's argument is to stand, the word preparation used therein was unnecessarily inserted by the Parliament. If not, the effort made in this article by this author should be deemed to be more correct. In this context, may I reproduce two lines Justice Badar Dureez Ahmed of the Hon'ble High Court of Delhi in (2005(4) Crimes 598. While a recovery of 4 gms of heroin would amount to a small quantity, the same 4 gms mixed up with say 250 gms of powdered sugar would be quantified as a "commercial quantity". And where would this absurdity stop?

Author said 'Dosage' has not been defined in the Act. You approach a doctor with a complaint of slight fever. He prescribes you Paracetamol pills to be taken three times a day for three days. The pill that you take one time is the 'dose' and the pills that you have to take for three days is the 'dosage'. Should we find fault with the Parliament for not defining these silly matters?

The Author, based on his daily life experience and seeing Medical Practitioners prescribing Antibiotics has opined that the prescription does not refer to the weight of the drug in milligram but to the 'potency' of the drug in milligrams. He continues to say "So the fundamental fixed factor for multiplication adopted by the Apex Court in the above three cases, (Ouseph v. State of Kerala, Hussain v. State of Kerala, Sajan Abraham v. State of Kerala) is erroneous." Taking into consideration his argument which is based on daily life experience and Medical prescriptions I have most carefully weighed them in golden scales with the three decisions on the other side. Sir, the scales show that the Hon'ble Supreme Court is on the winning side.

In the last paragraph, there is an element of lamentation seemingly created by Article 141 of the Constitution tried to be overcome by a quotation of Justice Brennan of the Supreme Court of America "We on this court are not final because we are infallible: We are in fallible because we are final". It reminds me of a case where our own Supreme Court had committed a serious error and then corrected it after the harm was practically caused. A person was found to have committed perjury before the Apex Court and the Apex Court straight away sentenced him to 6 months imprisonment. After undergoing the sentence an application was moved before the Apex Court and the court clarified that the proper procedure to be followed u/S.340 Cr. P.C. was to remit the matter for trial to a Magistrate Court. So there is nothing to feel disheartened if ones feels that his arguments has not been considered well. There might be a break some day.

I was present all through in the court when Sri. Prakash was advancing his arguments. His performance was excellent and so convincing. As a young brother of the same profession I do adore and love him. I want him to understand that it is the saline prayers claded in the tears of hundreds of parents whose children had somehow or other turned out to be addicts and who have now become de-addicted and are waiting for immunity from prosecution that has prompted me to scribble these lines. So please help me and other lawyers who are trying to defend those addicts. Let us try and see if we can make at least a few real and responsible citizens out of them.

Law is Neither a Boon Nor Bane

(By Karunakaran Bevinje, Advocate, Kasaragod)

This is in response to the article in 2006 (1) KLT Journal page 3 authored by Mr. V.S. Thampi, Advocate Kollam. The learned author has commented on the decision of the Supreme Court reported in 2005 (2) KLT 265 (SC) regarding the appreciation of evidence of a power of attorney. In the 1st Para of the Article, the learned author described the decision as a "death blow to all cases filed on power of attorney". The description given by the author in the article is opposed to the dictum laid down in the decision of the apex court.

The apex Court's decision on the interpretation of word "act" occurring in O.III R.I CPC is clear, unambiguous and however does not create any fallacy of law. The decision has resulted in removing doubts on the question and has reflected sound reasoning. The thorough reading of the decision makes it clear that apex court has not made prohibition in giving evidence by power of attorney holder on behalf of his principal. What is forbidden is from being a witness in the capacity of the principal. In other words it is meant to say that the power of attorney holder cannot be a substitute of his principal for giving evidence. The word "act" occurring in O.Ill R.1 of CPC does not extend to allow the power of attorney holder to be a proxy of his principal. The dictum laid down in apex court's ruling reported in 2005 (2) KLT 265 stands only as a corollary to the well settled law as to inadmissibility of hearsay evidence. The expression in the ruling that "cannot depose for the principal in respect of the matter which only the principal can have personal knowledge" in effect permits the power of attorney holder to give evidence of such matters if both the principal and agent have equal knowledge of such matters.

A prosecution before a criminal court undertones two stages. One is stage of inquiry and other is stage of trial. Every proceeding in a criminal case before framing charge falls within the stage of inquiry. The trial starts after the framing of charge. In a prosecution under S.138 of N.I. Act the evidence by affidavit is permitted under S.145 of the Act. Even during the inquiry stage, the complainant need only to prove facts by affidavit to make out a prima facie case. The power of attorney is not entitled to file a complaint, he can also give evidence to make out a prima facie case. For the purpose of taking cognizance under S.138 N.I. Act, the complainant has to make out only a. prima facie case against the accused. S.146 of the Act makes it clear that bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, is a prima facie evidence of fact of dishonour. On this effect evidence by the power of attorney holder is sufficient to meet the mandates of S.200 Cr. PC and to proceed under S.204 of Cr. P.C.

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. 

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.

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.