In Facie Contempt: Law And Praxis

(By Kaleeswaram Raj, Advocate, Ernakulam)

For the first time in Kerala's history a Single Judge of the High Court has convicted a lawyer for in facie contempt by dispensing with procedures prescribed by law. Justice G. Sasidharan interpreted Art.215 of the Constitution in the following terms:

"This court has inherent powers under Art.215 of the Constitution to punish for its contempt summarily. When initiating proceedings for contempt invoking powers under Art.215, the proceedings are not governed by the provisions of the Contempt of Courts Act or Rules made thereunder. Since these proceedings are in respect of contempt committed by the respondent in open court on making statements on the face of the court which would lower the dignity and authority of the court and interfere with and cause obstruction to the administration of justice, it is not necessary to frame any charge or to conduct an enquiry. This court of record under Art.215 of the Constitution of India can adopt its own procedure as it likes and suitable to the circumstances prevailing in the contempt proceedings."

The incident that led to the action as stated by the Judge is as follows:

"On 21.12.2001, Crl. M.C. No. 8804 of 2001 came up before this Court for admission hearing and in that application for bail, the respondent was appearing as the advocate of the petitioner. After hearing the respondent and the learned Public Prosecutor, this Court dictated the order in open court by dismissing the application. Immediately after the dictation was over, the respondent went wild and made submissions before this Court, which were not expected to be made in open court by a lawyer. He said on the face of the Court that even though in some other cases bail had been granted to accused who had only been in jail for 10 days, this Court did not grant bail to the petitioner in his case and there would have to be a limit to what the Court is doing. The respondent also said that he did not mind whatever this Court was doing in judicial matters. The above statements were made by the respondent in a loud voice and the way in which he said all those things were unbecoming of a lawyer. As a result of the statements made by the respondent, the dignity and authority of the Court were lowered and in making those statements, he interfered with and obstructed the administration of justice."

The Judge also refused to accept the regrets expressed by the lawyer, found him guilty and convicted him for simple imprisonment for one month. Subsequently the Division Bench of the Court consisting of Chief Justice B.N. Srikrishna and Justice K. Thankappan has exonerated the lawyer and set aside the conviction, after accepting the apology. The Division Bench did not go into the various facets of contempt law, nor attempted to give an elaborate judgment on facts. Nevertheless the issues involved in the case still remain significant, for the same touch the very root of constitutional democracy, professional freedom and internal power equations within the judicial hegemony. The questions as to what constitutes in facie contempt and as to whether all the matters related to professional conduct would come within the domain of contempt jurisdiction are of great importance. These issues were however, not addressed by the Division Bench. To this extent, the judgment by the Single Judge calls for a fair and democratic critique.

Art.215 and Procedure

A striking feature of the judgment by the Single Judge is that it does not analyse Art.215 of the Constitution on the basis of any authority or precedents. It therefore stood diametrically opposite to what the Supreme Court has said about Art.215 recently in Dr. L.P. Misra's case (1998) 7 Supreme Court Cases 379. In Misra's case the Apex Court held that action for contempt under Art.215 must be exercised in accordance with the procedure prescribed by law. Otherwise a situation would arise where a single Judge is empowered to become the accuser and the Judge simultaneously who is again empowered to deliver instant punishment on the ground of an incident which in his opinion constituted in facie contempt. This embarrassing situation, which is inherent to some extent in contempt jurisdiction could be met with only by way of some intelligent procedural safeguards.

Therefore to dispense with procedure would necessarily amount to dispensation of due process of law, which is recognised as a basic feature of the Constitution. The Contempt of Court Act 1971 and the rules made thereunder prescribe the procedure. According to S.14(2) of the Contempt of Court Act a person charged with contempt is entitled to have the charge tried by some Judges other than the Judges in whose presence the offence is alleged to have been committed. The Act says that the cases of criminal contempt shall be heard by a Bench of not less that two Judges. R.6 of the Contempt of Court Rules framed by the Kerala High Court also categorically mandates that proceedings for contempt shall be dealt with by a Bench of not less that two Judges. Had these procedures been followed a fundamental change would occur in the very structure and character of contempt jurisdiction. This is precisely the significance of procedure in contempt case, which was indicated by the Apex Court in Misra's case supra. Dispensation of procedure therefore may lead to 'contempt terrorism' as Justice Krishna Iyer termed it in a slightly different context.

Denning on the Bench :

However, the question of in facie contempt does not any more appear to be a mere matter of law or procedure. It also involves an attitudinal question related to judicial power. In 1970, a lady who appeared in person and conducted a case before the Jury headed by Lord Denning, got agitated and threw the law books to members of the jury when her appeal was dismissed in open court. But Lord Denning and his companions ignored the whole incident and returned to Chambers with a unique sense of maturity. It is noteworthy that it was Lord Denning who explained the law on the point, in Balogh's case (1974) 3 All. E.R. 283 holding that contempt on the face of the court as meaning contempt which the court can punish on its own motion. However, the great Judge has clearly explained the distinction between legal theory and constitutional praxis when he said - "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something more important at stake. It is no less than freedom of speech itself.

Cases of contempt on the face of the court call for a radically different approach, for those directly touch the judicial institution. C.J. Miller quotes the general principles regarding exercise of jurisdiction in the cases of contempt on the face of the court, as summarized by Lawton L.J. in Moran's case -

"The following principles should be borne in mind. First, a decision to imprison a man for contempt of court should never be taken too quickly. The Judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extend to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the Judge should consider whether the seeming contemnor should have some advice.............(I)f the circumstances are such that it is possible for the contemnor to have advice, he should be given an opportunity of having it. In practice what usually happens is that somebody gives the contemnor advice. He takes it, apologises to the court and that is the end of the matter. Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which in many ways is Draconian. If there is a member of the Bar in Court who could give advice, a wise Judge would ask that member of the Bar if he would be willing to do so. The member of the Bar is entitled to say no, but in practice never does" (Contempt of Court - C.J. Miller - Clarendon Press, 1989).

Contempt by Lawyers

Miller also extracts a heated conversation between Justice Bulier and Erskine, the renowned lawyer. At the end of the dialogue, the Judge threatened that Erskine would be proceeded against, for contempt. When Erskine reacted by saying that he would not alter his conduct and he is not bothered if the Judge chooses to proceed against him, Mr. Justice Bulier gave up his warning. Miller says that Erskine's reaction "has frequently been cited as illustrating the need for an independent and courageous bar (Ibid. Pages 110-111). It may be noted that in the above incident Erskine had insisted the Judge to record the judgment of the Jury and the conversation started on account of the reluctance expressed by the Judge to record the judgment. This incident at least remotely indicates that sometimes conflict may arise between contempt power and professional rights. The expansion of the latter's scope would in turn broaden the horizons of judicial democracy.

In another case even when by way of an indirect analogy a Judge was compared with an interested umpire, the High Court of Australia held that there is nothing contemptive in it (Lewis v. Ogden (1984) ALJR 342). The High Court of Australia however said that the counsel's conduct may be discourteous, offensive or even rebukable. Therefore it goes without saying that even a discourteous, offensive, and rebukable behaviour need not be necessarily an offence of contempt. It is one thing to deprecate such behaviour, and quite another thing to proceed for contempt - This seems to be the tenor of the Australian judgment.

The Great Indian Legacy

It is rather astonishing that the legacy of the Indian Judiciary has in fact surpassed and outweighed even the recent liberal democratic perceptions on the subject. Way back in the Fiftees, the Constitutional Bench headed by Chief Justice Patanjali Sastri held in Brahma Prakash Sharma's case AIR 1954 SC 10:-

"In the second place when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the Judge is concerned does not necessarily make it contempt."

In the Sixties, Chief Justice Gajendragadkar reiterated the principles and thereby reaffirmed the glory of the institution in the following words;

"A court should never forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their offence is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, any by the restraint, dignity and decorum which they observe in their judicial conduct (fn re, under Art.143 of the Constitution. AIR 1965 SC 745).

Canadian Guidlines on the use of Contempt Power

Last year the Canadian Judicial Council has promulgated comprehensive guidelines on the use of contempt powers. The paper says that the contempt as a legal question requires serious detached consideration. It also makes a general prefatory statement that Judges must hereafter be prepared to endure almost any forms of out of court criticism. As regarding in facie contempt the guidelines are more eloquent-

"A Court loses respect if it is offended too easily. Many experienced Judges have never found it necessary to resort to contempt proceedings in order to preserve order in their court rooms, or they have wisely ignored much vulgar abuse without doing harm to their dignity or authority."

"Often, when things are getting testy in court, or when there is an outburst of some kind, a warning is all that is necessary. On other occasions it is sometimes useful to adjourn court abruptly, with or without a warning, in order to give everyone an opportunity to compose themselves."

"It is highly desirable to avoid contempt proceedings because, inter alia, they embroil the court in distracting collateral issues, and they start the court down a road which is not its regular circuit. The Judge becomes a party in his or her own court. Judges should always remember the admonition of Lord Resell in R.v. Gray and often repeated in other judgments, that the Court's jurisdiction in contempt is 'to be exercised with scrupulous care only when the case is clear and beyond reasonable doubt' "(Some guidelines on the use of contempt powers - Canadian Judicial Council, May, 2001).

It is a matter of great relief that by setting aside the conviction and purging the lawyer of the charges the Kerala High Court has acted in its introspective jurisdiction and thereby . illustrated the possibilities of judicial dynamism within the institution. 

Baradakanta Bothers

(K. Ramakumar, Advocate)

Enlightened and esteemed readers of the Kerala Law Times, the foremost Law Journal in the State, have apparently been taken for a ride by the inaccurate, if not misleading statement of law regarding the applicability of the contempt jurisdiction to the administrative side of the Court. (See 2002 (1) KLT 27 (Journal)). If the opinion expressed in it is accepted as the correct position in law, legal practitioners and members of the subordinate judiciary, run the risk of facing actions in contempt. Some of the erstwhile authors of the Baradakanta judgment (1974 SC 710) have started bothering about its wisdom.

Baradakanta was an indiscreet Orissa Judicial Officer, who forgot the fundamental principle that a human being who likes criticism and who does not like flattery is yet to be born. Not even the Mahatma was an exception to this, which is why he ensured the easing out of the elected Nethaji, and picked up Panditji. Baradakanta therefore, was proceeded with in contempt. A Full Bench (Five Judge Bench) including Sri. Justice Ranganatha Misra, (who later wrote to the President of India that he be made the Chief Justice instead of Shri. Justice Sabyasachi Mukharji - The President did not oblige but providence did) - wrote an elaborate judgment in which they held that Baradakanta was guilty of contempt. (See AIR 1973 Orissa 244 (F.B.)) Baradakanta appealed to the Supreme Court. A Constitution Bench of the Supreme Court heard it and declared the position in law as follows:-

"The above authorities are sufficient to show that there is no warrant for the narrow view that the offence of scandalization of the Court takes place only when the imputation has reference to the adjudicatory functions of a Judge in the seat of justice. We are unable, therefore, to accept the submission of Mr. Sen on this aspect of the case".

Both Sri. Justice Bhagavathi and Sri. Justice Krishna Iyer, not only concurred by a separate but colourful judgment (of course the progressive hue is evident) handed down by Sri. Justice V.R. Krishna Iyer, and agreed with the majority judgment that the contempt jurisdiction extends even to the administrative side of the High Court. Said Sri. Justice Krishna Iyer.

"Obviously, the impugned conduct of the contemner was qua Judge and the evil criticism was of a supervisory act of the High Court and the critic would - and should - necessarily court contempt action. And in his memorandum of appeal the contemner used expressions like 'mala fides' and 'subterfuge' without good faith, and in such a case no shelter can be sought in the alibi of "administrative act"."

He adds:-

"A liberal margin is permissible in such cases but batting within the crease and observing the rules of the game are still necessary. Irrelevant or unvarnished imputations under the pretext of grounds of appeal amount to foul play and perversion of legal process".

xxx                  xxx                  xxx                  xxx

"The facts of the present case, disclose that an incorrigible contemner, who had made it almost his latter - day professional occupation to cross the High Court's path, has come to this Court in appeal. He has been reckless, persistent and guilty of undermining the High Court's authority in his intemperate averments in both petitions. But having regard to the fact that he is a senior judicial officer who has at some stage in his career displayed zeal and industry and is now in the sombre evening of an official career, a punishment short of imprisonment would have met the ends of justice and inspired in the public mind confidence in the justice administration by showing that even delinquent Judges will be punished if they play with or pervert the due course of justice, as the contemner here has done ".

The law declared by the Constitution Bench of the Supreme Court as of now is that if a subordinate Judicial Officer makes improper references in an appeal concerning disciplinary matters to the High Court they also constitute contempt.

Can it then be contended as has been done by my esteemed colleague in the article concerned, that the answer to the caption posed by him should be "No"? Baradakanta can be bettered, but not battered. The answer obviously should be an emphatic but embittered "Yes". 

"You Said It, Mr. Chairman"

(By T.P. Kelu Nambiar, Senior Advocate)

I tend to agree with Sri. S. Gopakumaran Nair, Chairman, Bar Council of Kerala, on all what he has said 'From the Editor's Desk' in the Kerala Bar Council News, March, 2002. The Chairman has lined up his thoughts for 'A Healthy Bench and a Healthy Bar'. He has discerned the generation gap between lawyers and lawyers and Judges and Judges! A teary-eyed Chairman has visualised this day that age. His discomfort borders on a deep concern over the present predicament of the legal profession, and the chaos theory of advocacy. He has written about 'half-baked' young advocates, the legal 'culture of hearing and then deciding', the 'divine duty' of judges, the 'Godly element' injustice, the need for a 'fearless Bar', the bane of a servile bar, and all that. The Chairman has, indeed, preached and propagated the basics of the legal profession; and provided something for all. I hail him; and, in agreement, wish to add detail to his vista.

It hardly requires to be underlined that the profession is receding from the lawyers; lawyers are running away from advocacy, and the legal profession has dipped to record low. It is feared, advocacy is being sold at a discount. If a lawyer fails in his professional duties, it will be considered to be a tragedy of trust. A lawyer's success is the client's smile. A lawyer has to function as the point man of his client. A lawyer's office is not a stop shop for litigants. A lawyer's office is not a trading desk, nor are the law-books trading books. An advocate's office is not a fast-food counter. Behold the advocate in the lawyer. The legal profession is a lawyer's fixed asset.

A reverse merger of the junior and senior bar is essential for the good of the profession. A good senior is the best elevator of a junior. And seniors should lead by examples. Here, I would say that seniors should lead the Advocates' Association, because the Association is the lawyers' dressing room. But, these days, the conglomerate junior group of lawyers stand in the way of seniors being elected to offices in the Advocates' Association. The Bar without seniors is like cricket without wicket. Ironically as it may sound, in law practice longevity is a blessing though age is a curse. Juniors should use time in their favour to improve. Get noticed in the profession immediately you enter the same. Do your home work properly. Celebrate the victory of hope. Juniors should line up their thoughts/arguments, and argue with precision, avoiding bang-bang type of arguments. Do not behave in court as though you have a background in theatre. Of course, there is nothing wrong in arguing with a hint of Shakespeare and a touch of Dickens, for the legal profession is a dialogue driven profession. Do not use your enrolment certificate as a jumbo passport to unprofessional journeys. Do not hold court in the corridors or in the library hall. Court corridors are corridors of uncertainty for a young lawyer. Bestow full attention in inch-perfect study of law, remembering that law breakers are also tried by law. Do not allow your legal learning atrophied. Do not cook your books. The role of middle class lawyers is deceptively simple yet profoundly significant. They should try to build a great score for the profession. Our profession is one demanding tremendous discipline. Everybody should try to be the best, not only the best of the rest. Try to be a E-Lawyer; a hotshot lawyer.

Mr. Chairman has referred to judicial fury and the super-power obsession of the Judges. The Bench should not take head-on the Bar. It is difficult to argue before an ever emphatic Judge, a Judge who gets hot under the collar and blames everyone but himself. Judges should have strong stomachs. Let me make a plea and a proposal to the profession. Don't you ever be a lawyer courtesy the Judge. Let every lawyer breathe easy. If I may give you some persuasive advice, try to push back the horizon and do not join the long list of worshippers at the Bar; do not be a weak-kneed lawyer. It does no credit to a lawyer to be a sycophant of a Judge. Between the Bench and the Bar, there should be no question of the one dictating; both discuss only. I should think that addressing Judges with ceremonial prefixes should go.

I have ever been a vociferous defender of the Bar. I believe in a lawyer being humble but dignified; polite yet prudent. I am for a highly optimistic projection and expansion of the profession.

Judicial Language

(By T.P. Kelu Nambiar, Senior Advocate, Ernakulam)

A judgment should prompt you to read it in full, not to read extracts from it. A Judge must give clear reasons for his decision. The better role of a Judge is to be a master of words.

Guess, who said as above. Doubtless, none other than Lord Denning, the master of simple, grand judicial language, who wrote judgments with his tongue, with a distinctive style, perfectly fluent in English.

Come to think of it, judicial language has not been the subject of serious criticism so far in India. I cannot but resist the temptation of saying that in these days there seems to be shortage of good English in judgments; and it is acutely disappointing, because the Indian judiciary is the most faithful offspring of the western system of justice delivery. English language seems to be the most democratic of all legal institutions; it obeys the will of the Judges who speak and write it.

Our Constitution recognised the importance of English as judicial language, when Art. 348 said that until Parliament by law otherwise provides, all proceedings in the Supreme Court and in every High Court shall be in the English language. But now-a-days it is seen that judgments 'are left in the decent obscurity of a learned language', to borrow a Gibbon expression. Sir W.S. Gilbert's chiding that 'he uses language that would make your hair curl', would be applicable to some judgments rendered by Courts, forgetting 'the best chosen language', to use the words of Jane Austen.

C.L. Barber, in 'The Story of Language', pithily said: "The rich variety of English is one of the things that make it an exciting language to speak and to hear......One of the striking things at the moment is the remarkable expansion going on in the vocabulary". Grammar is the life-blood of any language. But some of the present day Judges seem to think with Roman Emperor Sigismund: "I am the Roman Emperor, and am above grammar"; yes, heedless of grammar. They seem to have forgotten their 'Wren and Martin'. I can quote passages from certain judgments to be put under 'Exercises', in a book of grammar, to recast correctly. Justice V.R. Krishna Iyer wrote: "We live in days when Judges, both in their prepared judgments and public speeches, are so allergic to grammar or idiom that Fowler, it alive and free to act, would have made a bonfire of most of them to save correct or Queen's English". (Off the Bench). I draw courage and borrow boldness from David Pannick who advocates, in 'Judges', that we should not treat Judges as infallible, and we should also not hesitate to tell the truth about the judiciary.

The beauty of English language is aptly expressed by Paul-Henri Spaak by suggesting: "Look like Charles Boyer and speak like Winston Churchill." John Honey is reported to have said: "Language always keeps pace with the social development of its users." Let our Judges not forget these important aspects when handling English language, the dress of judicial thought. Let it not be forgotten that the summits of judicial thought are to be put into words clearly and precisely. I had occasion to tell a former Director of Training in the High Court that apart from legal training, all presiding officers should be given language training in an institute of English; English has really become 'foreign' to some of them. They seem to be oblivious of the beauty, grandeur, force, and richness of the English language. In "Off the Bench", Justice V.R. Krishna Iyer thought it 'not surprising' that the command of English of some Judges 'may be culpably deficient'.

It certainly does good for Judges to acquaint themselves with the dignified and stately writing in the passages by Winston Churchill, G.M. Trevelyan, Bertrand Russel, Bernad Shaw, T.S. Eliot, and others, which would enable them to improve their judicial prose by employing positive expressions with clear senses and facile easiness. It would be appropriate to quote here Learned Hand's observation: "I venture to believe that it is as important to a Judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Action and Maitland, with Thiicydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books which have been specifically written on the subject."

Judicial prose writers should always remember the profound statement of Jonathan Swift that proper words in proper places make the true definition of a style. Good prose should resemble the conversation of a well-bred man, said W. Somerset Maugham in 'The Summing Up'. Judges should have respect for the language of their judgments. Otherwise, the judgments would lose respect. Judges should have power of language, not language of power alone.

Quo Vadis Article 141

(By T.P. Kelu Nambiar, Senior Advocate)

"The law declared by the Supreme Court shall be binding on all courts within the territory of India", is the mandate of Art.141 of the Constitution of India. The scope of this Article itself has been the subject of several decisions of the Supreme Court. A seven-Judge Bench, in Moti Ram, held that the observations in the judgment of the Supreme Court which are in the nature of obiter dicta cannot be relied upon solely. A three-Judge Bench, in Gasket Radiators, held that the Supreme Court's decisions should not be followed generally like statutes irrespective of their fact situations. "Nor can be read a judgment", observed the Supreme Court, "on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions and facets of such questions arose for consideration or not in that case". The Supreme Court has also ruled, in more decisions than one, that there is no law declared where the court gives no reasons.

Recently, a two-Judge Bench of the Supreme court, in Suganthi, (2002 (1) KLT 581 (SC)), has chastised a learned single Judge of the High Court of Kerala for violation of the mandate in Article 141. Pronouncing the judgment on behalf of the Bench, Mr. Justice K.T. Thomas, faulted Mr. Justice T.M. Hassan Pillai of the High Court of Kerala for committing an impropriety by expressing that a legal direction of the Supreme Court should not be followed by the Subordinate Courts in Kerala.

As the mandate in Art. 141 is not binding on me, I make myself bold to assert, with respect though, that the High Court was right, and the Supreme Court was wrong in finding that the High Court was wrong; Mr. Justice Hassan Pillai was not wrong; Mr. Justice K.T. Thomas was not right.

In Rajendran v. Jose (2001 (3) KLT 431), Mr. Justice T.M. Hassan Pillai was considering the cumulative effect of Ss.357(3), 421 and 431 of the Code of Criminal Procedure. S.357(3) says:

"When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced."

S. 421(1) may be read:

"421. Warrant for levy of fine.-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may –

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

S. 431 reads as follows:

"Any money (other than a fine) payable by virtue of any order made under this Code, and the methods of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that S.421 shall, in its application to an order under S.359, by virtue of this section, be construed as if in the proviso to sub-s. (1) of S.421, after the words and figures "under S.357", the words and figures "or an order for payment of costs under S.359" had been inserted."

After noticing S.357(3) and S.431 of the Code, Hassan Pillai, J. observed as follows, in paragraph 3 of the judgment:

"Two ways provided for the recovery of fine under S.421 Cr.P.C. are: (a) issue warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender (here in this case, the revision petitioner) and

(b) issue warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both, of the defaulter. The Court is empowered to recover the compensation awarded by taking action in either or both of the above stated two ways. So, default clause imposed by the learned Sessions Judge i.e. to undergo imprisonment for six months in case of commission of default in payment of compensation awarded cannot be sustained or salvaged and the court below (trial Magistrate) is to take steps to recover the compensation awarded as provided under S.421 and 431 Cr.P.C."

After observing as above, the learned Judge said, in paragraph 4:

"The learned Sessions Judge imposed sentence in default on the basis of the observation made by the apex court in Hari Kishan (or Hari Singh) & State ofHaryana v. Sukbir Singh (AIR 1988 SC 2127), that court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of apex court was not drawn specifically to the provisions of S. 431 Cr.P.C. providing for recovery of money (other than fine) payable by virtue of any order made under the Criminal Procedure Code. In a later decision (Balraj v. State of U.R, AIR 1995 SC 1935) the Supreme Court directed that "if the appellant fails to pay this amount within three months from today, the same may be collected as provided under S.431 Cr.P.C. and be paid to PW2. Compensation of Rs.10000 was awarded by the Supreme Court by way of compensation to PW2. This Court in Siby v. Vilasini (1998 (2) KLT 462) took the view that "provisions contemplated in Ss.431 and 421 Crl.P.C. are conspicuously clear that amount of compensation awarded under S. 357(3) can be recovered under the Revenue Recovery Act."

The case before the Supreme Court, in the decision reported in 2002 (1) KLT 581 (SC) (Suganthi), was one relating to a prosecution for an offence under S. 138 of the Negotiable Instruments Act. The trial Magistrate sentenced the accused to undergo imprisonment till rising of the Court and pay a fine of Rs.5000/-. The complainant filed the appeal before the Madras High Court on the premise that the sentence was grossly inadequate. He had contended before the High Court that the trial Magistrate should at least have invoked the provision under S.357(3) of the Code of Criminal Procedure. However the High Court was not inclined to interfere with the sentence passed nor did the High Court invoke S.357(3) of the Code. The Supreme Court was approached in these circumstances.

No question akin to the question involved in Rajendran arose in Suganthi. The Supreme Court found that the sentence imposed in the case was inadequate and remitted the case back to the trial court for passing appropriate sentence on the respondent after hearing both sides.

In Suganthi, K.T. Thomas, J., while referring to the observations in Bhaskaran (1999 (7) SCC 510) to the effect that the Magistrate in a case like that in hand can alleviate the grievance of the complainant by making report to S.357(3) of the Code of Criminal Procedure, referred to Hari Singh case, to which reference had been made in Bhaskaran. In Bhaskaran, reference to Hari Singh was in paragraph 31 alone. Paragraph 31 may be read:

"However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to S.357(3) of the Code. It is well to remember that this Court has emphasised the need for making liberal use of that provision (Hari Singh v. Sukhbir Singh). No limit is mentioned in the sub-section and therefore, a Magistrate can award any such as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider which would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding Rs.5000 the Court has power to award compensation to be paid to the complainant."

Paragraph 11 of the judgment in Hari Singh quoted by Thomas, J. In Suganthi was not the relevant aspect considered in paragraph 31 in Bhaskaran. (Mr. Justice K.T. Thomas should have known it better, as his Lordship himself had rendered the judgment on behalf of the two-Judge Bench in Bhaskaran.) Therefore, for the purpose of deciding Suganthi, Rajendran was not relevant. But Thomas, J. referred to Rajendran and said that the learned Judge who decided Rajendran has directed that the decision of the Supreme Court in Hari Singh is not to be followed as the Supreme Court laid down the said legal position without adverting to S.431 of the Code. Hassan Pillai, J. did not issue any such direction in Rajendran. Hassan Pillai, J. had noticed Hari Singh as also another decision of the Supreme Court in Balraj (AIR 1995 SC 1935) in which the Supreme Court had held that if the appellant fails to pay the amount of compensation, the same may be collected as provided under S.431 of the Code. Therefore Hassan Pillai, J. followed the correct later decision of the Supreme Court, noticing that the earlier decision in Hari Singh did not notice the provisions of S.431 of the Code when the Supreme Court made a passing observation that "the Court may enforce the order by imposing sentence in default". Hari Singh was decided by a Bench of two Judges. Balraj was also decided by a Bench of two Judges; but it is a later decision. There was nothing wrong in Mr. Justice Hassan Pillai following the decision in Balraj when the earlier decision in Hari Singh did not accord with the later decision. I should think that the following observation in Suganthi is unkind and unnecessarily vehement:

"Hence learned single Judge of High Court of Kerala has committed an impropriety by expressing that the said legal direction of this court should not be followed by the subordinate courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose, 2001 (3) KLT 431. It is unfortunate that when the Sessions Judge has correctly done in a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it."

Draft Art.117, which is now Art.141, was introduced, discussed and passed in the Constituent Assembly of India, on the 27th May, 1949. From the speeches of Shri. H.V. Kamath and the Hon'ble Dr. B.R. Ambedkar, it would be evident that the Supreme Court was not considered infallible, unlike the House of Lords, and it was therefore that the Supreme Court was not sought to be bound by the decisions of the Supreme Court. The Supreme Court overruling its own decisions, till then followed by all Courts in India, are galore. Who knows the fate of Suganthi ! Quo Vadis Art.141 !

Tail-piece: Some awkward decisions are so 'distinguished' that they are never followed at all: Ronald Irving.