Comment on 2002 (1) KLT 384

(By U. Balagangadharan, Advocate, Palakkad)

In the domain of disciplinary proceedings different sets of procedures are mandated for the imposition of major penalty and minor penalties. Minor penalty is ordinarily imposed after a summary procedure. While for inflicting major penalties a detailed regular enquiry in consonance with the principle of natural justice is necessary. Whether a given penalty is a major or minor one is no more a moot issue because it is either delineated in the Statutory Rules or is settled by Judge made laws.

In a recent case reported as Pushkaran v. State of Kerala, 2002 (1) KLT 384, the Single Bench of the Hon'ble High Court of Kerala found that withholding of two increments with cumulative effect is only a minor penalty and it does not amount to reduction to a lower rank. It was a case where the petitioner was Constable who was found guilty of releasing a bootlegger without registering any case. Upon conducting the enquiry, the Constable was imposed with the penalty of withdrawing two increments with cumulative effect. It was argued before the Hon'ble Court inter alia that the punishment amounts to reduction to a lower rank which is a major penalty as per the Kerala Police Departmental Inquiries (Punishment & Appeal) Rules, 1958 and regular enquiry ought to have been conducted. Hon'ble Court found that it was only a withholding of increments with cumulative effect and was not a punishment of reduction to lower rank and the consequences of it would be to deprive some monetary impact while the delinquent continues in the same rank. Therefore, the Hon'ble Court rejected the plea of the petitioner to follow procedure for imposition of major penalty was rejected. This was one of the findings in the judgment.

In this back drop, it is useful to reminiscent a decision rendered by the Hon'ble Supreme Court as early as in 1990 itself in an identical set of facts and held in unambiguous terms that withholding of two increments with cumulative effect would amount to imposition of major penalty and detailed regular enquiry was mandatory such circumstances. It was case (reported as Kulwant Singh Gill v. Stale of Punjab, JT 1990 (4) 70) of an Inspector in Food and Supplies Department of Slate of Punjab where lie was awarded the penalty of stoppage of two increments with cumulative effect under the provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970. Under the provisions of the aforesaid Rules, "withholding of increments of pay" is graded as minor penalty and "reduction to a lower stage in the time scale of pay" as major penalty. Therefore, the question arose whether stoppage of two increments with cumulative effect is a major penalty? The Apex Court found that withholding increments of pay simpliciter undoubtedly is a minor penalty but when it was imposed with cumulative effect it would indisputably mean that two increments earned by the employee was cut off as measure of penalty for ever in his upward march of earning higher scale of pay and in other words the clock is put back to a lower stage in the time scale of pay and on the expiry of two years the clock starts working from the stage afresh. The court further found that the insidious effect of the impugned order by necessary implication, is that the employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with the effect that two years' increments would not be counted in his time scale of pay as a measure of penalty. The Apex Court concluded by holding that the penalty of withholding of increments with cumulative effect would come within the meaning of major penalty and its imposition without enquiry is per se illegal. This decision is seen followed by various High Courts and Tribunals across the country. Very recently, in an identical set of facts, the Punjab and Haryana High Court in State of Haryana v. Harbans Lai Dua, 2000 (1) Administrative Total Judgments 363, following the aforesaid dictum laid down by the Supreme Court held that penalty of stoppage of increments with cumulative effect is a major penalty and such penalty can be imposed after a regular enquiry only. The above decision of the Supreme Court has not been so far over ruled or rescinded by any co-ordinate Bench or a higher Bench.

It appears that the factual matrix and the question of law arose for consideration in Pushkaran and Kuhvani Singh are identical. Therefore, inevitable fall out is that the decision in Kerala High Court in Pushkaran goes inconsistent with the decision of the Apex Court in Kulwant Singh. What sounds unfortunate is that the counsel appearing on both sides before the Kerala High Court in the case failed to enlighten the Bench by inviting attention to the above position of law.

"Polluter Pays Principle"

(By Jasmine Alex, Advocate, Ernakulam)

Recently the Supreme Court of India has adopted a new concept of compensation pertaining to environmental pollution, namely "polluter pays principle". It is a new born of judicial creativity of the Apex Court upon the realisation that if the environmental disturbances were not controlled the survival of human being on this planet would become impossible.

The decisions in Indian Council for Enviro - Legal Action v. Union of India, (A.I.R.1996 SC 1446.) 'Vellore Citizens' Welfare Forum v. Union of India, (A.I.R. 2000 SC 1997.) M.C. Mehta v. Kamal Nath, (A.I.R. 1996 SC 2715.) etc. deserve special mention for the following reasons:

 (i)    "Polluter pays principle" has been applied as a means of paying for the cost of pollution and control.

(ii)   A principle acknowledged in Public International Law has been incorporated into the law of the land as a binding principle of law.

(i) The Polluter should Pay:

The "Polluter pays principle" puts the wrongdoer under an obligation to make good the damage caused to the environment. Accordingly, it is not the role of Government to meet the costs involved in either preventing such damage, or in carrying out remedial action, because in effect the financial burden would be shifted to the tax payer. In fact, this principle is the resolve of the International Community that environmental policy shall be based on the principle that the polluter should pay.

The recognition of the fact of the uncontrolled disturbances caused due to pollution and its impact on future resources prompted the United Nations to hold a Conference on Human Environment at Stockholm in 1972. In 1972, The Organization for Economic Co-operation and Development adopted the "polluter pays principle" as a recommendable method for pollution cost allocation. The Paris Summit of 1972 also discussed the application of the same principle. In 1974, the European community recommended the application of the principle by its member States so that the costs associated with the environmental protection against pollution may be allocated according to uniform principles throughout the community. The principle has been one of the four Community Action Programmes on Environment. The Current Fourth Action Programme of 1987 makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the Environment which were introduced by the Single European Act of 1986. In 1989, the Organization of Economic Co-operation and Development reaffirmed the same principle. The 1992 Maastricht Treaty also provides for the environment policy based on the polluter pays principle.

The Supreme Court of India in Indian Council for Enviro-Legal Action (Supra n. 1) applied the above mentioned principle while examining the liability of the respondent, i.e., the Union of India, in defraying the costs of remedial measures. According to this principle, the responsibility for repairing the damage is that of the offending industry and the Government is empowered to lake measures for giving effect to this principle (lb. at p. 1466). The Supreme Court in Vellore Citizens' Welfare Forum (Supra n.2.) took the view that this principle has been held to be a sound principle by the Court in Indian Council for Enviro-Legal Action and the same thus forms part of the environmental law of the country (Ib.atpp.272L2722.)and M.C. Melita reiterated the same position.

(i)  Incorporation of International Law into the Law of the Land:

A close reading of the above mentioned decisions clearly depicts the judicial technique by which a principle in International Law has been brought into operation in the municipal sphere.

The decisions of the Apex Court in Jolly George Varghese (AIR 1980 SC 470), Rudul Salt, (A1R 1983 SC 1086) Nilabati Behera (AIR 1993 SC 1960.), and a plethora of decisions thereafter1 have witnessed the judicial trend to bring any international principle consistent with or in harmony with the constitutional principles of the land into the municipal law so as to enable the judiciary to promote the object of the constitutional guarantee. "It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law, when there is no inconsistency between them and there is a void in the domestic law."2

The spirit of Art.51© of the Constitution of India which provides for fostering respect for International Law also supports this judicial view. According, even in the absence of a law under Art.253, the judicial law-making provides for filling the gap. In the same way, the Supreme Court borrowed the "polluter pays principle" from Public International Law to fill a laccuna in environmental law in expanding the scope and ambit of Art.21 of the Constitution of India.

In M.C. Mehta (Supra n.3) Saghir Ahmed, J. read Arts.48-A and 51-A(g) into Art.23 of the Constitution and held that any disturbance of the basic environment elements which are necessary for life would be hazardous to "life" within the meaning of Art.21.(Id. At p. 2000) And the Court went further holding that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance (Ibid). In the matter of awarding damages under Art.32, the Court, following the decisions in Indian Council for Environ-Legal Action and Vellore-Citizens' Welfare Forum, as a corollary to the compensation jurisprudence3 evolved in Public Law domain, has enforced the "polluter pays principle" which is widely accepted in the international sphere as a means of paying for the cost of pollution and control (Supra n.3 at pp. 2001,2001).

Conclusion:

The adoption of the new principle into the law of the land obviates the difficulties in recovering compensatory costs from private parties by the Government. Still, the question whether private parties can directly be brought under writ jurisdiction remains open. But it deserves special mention that in the event of protecting rights of individuals and the society, the apex judiciary is duty bound to ensure remedial measures even by invoking equity principles or adopting legal rules from Public International Law.

______________________________________________________________________

Foot Note :

1."See, for example Bodhi Sattvea v. Ms. Subra Ckakraborty, AIR 1996 SC 922; D.K. Baku v. State of West Bengal, AIR 1997 SC 610; Vishaka v. Stale of Rajaxthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149; Chairman, Railway Board v. Chandrbna Das, AIR 2000 SC 988; Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

2.Per J.S. Verma, C.J.I., in Vishaka v. State of Rajasthan, AIR 1997 SC 3011 at P. 3015.

3.See, Rudul Shah v. State of Bihar, AIR 1983 SC 1086; Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82; Bhim Singh v. State of J. and K.; AIR 1986 SC 494, Saheli v. Commissioner of Police, Delhi Police Head Quarters, AIR 1990 SC 513; State of Maharashtra v. Ravikant S. Patil(l99l) 2 SCC 373; Nilabati Behra v. State ofOrissa, AIR 1993 SC 1960; D.K. Basu v. State of West Bengal, AIR 1997 SC 610 etc.

Mortgage by Deposit of Title Deeds (Equitable Mortgage):-

Face to Face with Realities

(By K.R. Giri Iyer, Advocate, Ottapalam)

Three questions for consideration :-

1)     Whether registration is a mandatory requirement or not?

2)     Whether original title deed is to be deposited for satisfying the requirements of the section?       

                                 ,

3)     What is the fate of a bonafide purchaser for value who has no notice of the prior mortgage?

The first question regarding registration can be considered as a matter of prime importance.

1) Under S.58(f) of Transfer of Property Act the Law recognises equitable mortgage, which is quite easy in procedure. One who wants a loan can hand over the title deeds of his property in a notified area and he can obtain the money and the loan becomes a secured debt, which will be having first charge over all unsecured debts. Although this was just a practice followed in olden days, which was there after recognised by law. When equitable mortgage is created, Law requires nothing to be reduced in black and white. The difficulties arises when the amounts are not returned when the person who lended money claims money through legal methods there may not be any evidence to find out the actual amounts borrowed or the rate of interest fixed. So to overcome the difficulties the parties searched for the remedy and even the Banking institutions were in front row and they adopted different methods like obtaining pronotes or any collateral negotiable instrument or other documents while giving the amount and nationalised banks also started a method of recording the deposit by way of executing memorandum of deposit of title deeds and there started the main difficulty of the question regarding registration of the documents as mandated by the Registration Act.

2) The question arose for consideration even during the year 1950 and appreciating the importance of the question a Bench consisting of 4 Judges of the Honourable Supreme Court in the case of United Bank of India Ltd. v. M/s. Lekharam Sonaram & Co. & Ors. which was reported in AIR 1965 SC 1591. There the Honourable SC reversed the judgment of the Honourable High Court which was reported in AIR 1958 Patna 472. The Hon'ble Supreme Court held that "when the debtor deposits with the creditor title deeds of his property with an intent to create a security the Law implies a contract between the parties to create a mortgage and no registered instrument is required under S. 59 as in other classes of mortgage. It is essential to bear in mind that the essence of a mortgage by deposit of title deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. It follows that in case the document which constitutes the bargain regarding security requires registration under S. 17 of the Indian Registration Act, 1908, as a non testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees or upwards. If a document of this character is not registered it cannot be used in evidence at all and the transaction cannot be proved by oral evidence either". And regarding the facts of the case the Hon'ble Supreme Court has stated "where the letter in question did not mention details of title deeds, which were to be deposited with the bank and neither mentioned what was the principal amount borrowed or to be borrowed nor it referred to rate of interest for the loan, the letter was not intended to be an integral part of the transaction between the parties and did not by itself operate to create an interest in the immovable property and therefore, it did not require registration.

So every case has to be interpreted independently as to whether the document constitutes an element of bargain regarding security, which may trouble both the laymen as well as the lawmen.

3) The Hon'ble Kerala High Court's decision in Hubert Peyoli v. Santhavilasath Kesavan Sivadasan reported in 1998 (2) KLT125 has created a pandemonium on the issue of registration. There the Hon'ble High Court has held as follows:- "Delivery of document of title alone is sufficient to create an equitable mortgage under the above Section. There is no necessity to execute any document. In case a document was executed for that purpose of creating a mortgage under S. 58(f) of the Transfer of Property Act, no doubt it requires registration. For creating an equitable mortgage, there must be a debt, there must be a deposit of title deeds and that intention of the parties should be that the title deeds were deposited only for the purpose of giving security of the property covered by the title deed. When the memorandum of letter was executed on the date of the deposit or delivery of the title deeds that needs registration. And after the delivery of the title deed, any letter or memorandum was executed endorsing the earlier deposit of title, which already created a mortgage that letter, needs no registration. In the instant case before me, it is quiet clear that Ext. A2 was executed on the same date on which the document was delivered. Therefore, as per the above principle laid down by the Madras High Court and by this Court in the above decisions, it is quite obvious that Ext. A2 at the outset needs registration".

4) This decision was followed by the decision reported in Joseph v. Michael after the lapse of two years and reported in AIR 2000 Kerala 240, which has cleared the confusion to certain extent. There Honourable Justice M.R. Hariharan Nair has stated in the Judgment that "the stray sentence in paragraph 4 of Hubert Peyoli 's case that when memorandum was executed on the date of deposit or delivery of title deeds that needs registration has, therefore to be understood as applicable to the facts and circumstances of that case and not as inflexible rule of universal application irrespective of the time of deposit and time of execution of the mortgage". "There is no bar in the execution of a memorandum evidencing the mortgage on the same day and the memorandum will not require registration provided it was executed after the deposit albeit on the same day".

5)  Even after the above decision the Hon'ble Kerala High Court while deciding the case of George v. Bank of India which was reported in 2001 (1) KLT 303 has observed regarding Hubert’s case that "In that case from the statement of facts it is seen that a document was executed on the same day on which the deposit was made and hence a learned Single Judge of this Court held that the document requires registration, because according to him, it was simultaneous. But here, no document is executed. Ext. A13 is only a recording of a statement".

6) Thus the question of registration is raised if there is an element of bargain recorded in the memorandum or if the deposit of title deeds and the handing over of the memorandum is simultaneously done. On this point even now there is ample possibility of raising another series of litigation on different facts and circumstances.

Another controversy is regarding the nature of documents to be deposited, i.e., second question; whether original title deed is necessary or not for creating equitable mortgage?

7) His Lordship Justice Raman Nayar while dealing with this question incidentally has stated in the case of Popular Bank Ltd. v. The United Coir Factories & Ors. reported in 1961 KLT 434 that "I do not think that the TP Act could possibly contemplate the creation of successive mortgages of the same property by the same person by the deposit, one after another, of the documents of title, which may be numerous, with nothing to show their sequence in point of time for the purpose of determining priority (except the word of the interested parties or, in case there is a writing in the shape of memorandum, a writing which can be passed by the mortgagor at any time with any day he chooses to put to it) and no means by which a mortgagee can ascertain the existence or otherwise of a prior mortgage excepting the assurance of the mortgagor. Even if it be that the mortgage holding the deed by which the mortgagor acquired title can claim priority under S.78 of Transfer of Property Act, there would still be nothing by which the priority of the remaining mortgages could be determined".

The problems of the mortgagee has clearly dealt with in the above passage by His Lordship.

8) While dealing with the question the Division Bench of Hon'ble Kerala High Court in Syndicate Bank v. Modern Tile and Clay Works and reported in 1980 KLT 550 has held as follows, "A copy of a deed of transfer is not ordinarily a document of title for the purpose of an equitable mortgage. It is only evidence of title. It is the original deed of transfer that is the document of title. This is because the rules for the issue of copies permit the obtaining of copies by an owner even while he is in possession of the original document of title. To hold that a copy of a deed of transfer is also a document of title for purpose of S. 58(f) of the Transfer of Property Act would amount to giving facilities to the owner to misuse the provision. He may get an advance from one person by delivering the original document of title and then use the copy of the document for getting an advance from some other person who may not be aware of the earlier equitable mortgage. It should be the policy of law to see that such contingencies are avoided. At the same time there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose. In the absence of original deed of transfer the next best evidence of the owner's title to the property is a certified copy of that document. A certified copy in such case may with sufficient safe guards be received as a document of title. The essential pre-requisite for the use of a certified copy as a document of title is the loss of original title deed. Unless and until it is made out that the original is lost, a certified copy of a document cannot be considered to be a document of title for the purpose of S. 58(f) of the Transfer of Property Act.

9) Where as a later Division Bench of Kerala High Court in C. Assiamma v. State Bank of Mysore and Ors. reported in AIR 1990 Kerala 157 has stated "we have not understood observation of the Division Bench to mean that only in cases where the original title deed is lost that deposit of a registration copy can validly create an equitable mortgage."

10) So the Division Bench has differed from the earlier Division Bench's observation. Again a single Judge of the Hon'ble Kerala High Court in the case of Indian Bank v. Bombay Hardwares & Sanitaray Stores reported in 2001(3) KLT 273 has stated as follows: "Even though S.58(1) of the Transfer of Property Act contemplates deposit of the original title deeds for creation of equitable mortgage, when the original is lost or not forthcoming, equitable mortgage can be created by depositing copies of the document." A similar issue was answered by the Division Bench of Kerala High Court in the case of State Bank of Travancore v. Velayudhan Pillai which was reported in 1995 (1) KLT 582. There the Lordships has held that "In a case where duplicate partition deed registered along with the original is deposited bonafide by one of the executants of the partition deed or persons claiming through such executants to whom only a duplicate was given as his title deed and not the original deposit of original deed need be insisted only as a rule of prudence and caution and not as a legal requirement for the purpose of validly creating an equitable mortgage."

In my humble view title deed mentioned under S.58(f) is none other than the original title deed and a person who is not in possession of original title deed can seek other modes of creating mortgage.

The third question regarding bonafide purchaser for value without notice of the mortgage is to be considered next.

11. Now even though no discussion on the point is necessary since the Transfer of Property Act does not recognise a bonafide purchaser for value and no protection is given to them under the Act. The most common problem faced by a bonafide purchaser for value who has no notice of the Mortgage even after due diligent enquiry is given below! It may happen when a person 'A' having sufficiently large plot divides and sells to different persons after constructing some rooms or flats and slates that since major portion is with him the title deeds are not handed over and registers the document and the purchaser B who sells the property to another person C who thereafter seeks a loan using his title deed and gives the original title deed of his predecessor B and certified copy of the basic deed or the title deed of the original owner A and obtains amount after depositing the title deeds and when the original mortgagee of A prays for a mortgage decree what will be the effect of the purchaser C and the Mortgagee of C and if it is a case where nothing is left with A after satisfying the debt.

To sum up:

First of all if there is no document to prove the nature of transaction, amount, period and interest it may cause serious difficulties and if there is memorandum of deposit of title deeds the question of registration will come in to play on the basis of the interpretation of the memorandum of title deeds. Secondly what are the title deeds to be deposited as contemplated in the section and whether it will cover duplicate if the document is simultaneously executed and registered and whether registration copy of the document will be sufficient and what is the effect if the original title deed if lost or missing. Thirdly if a person purchases the property for value bonafidely without any notice of the mortgage after due enquiry.

The Panacea :-

The only remedy possible to solve this problem is to delete this provision, 58(f) from the Act and makes registration compulsory regarding all other type of mortgages and reduction of the Registration charges so that the number of mortgages may increase and thereby the revenue of the Government may increase and lighten the burden of people and the number of litigation will be reduced.

Note                                                                               \

(It is curious to note that the word equitable mortgage is not at all used in Transfer of Property Act instead the word Mortgage by deposit of title deeds is used. And another aspect is that unlike the English Law of equity which is used in the case of equitable mortgage no question of equity arises in Indian Law since it is a matter of right)

Has Governance Misnomed The Democracy in India ?

(By Liju V. Stephen, Advocate, High Court of Kerala)

“Where there is no law, there is no freedom”                                                                                                                                -- John Locke.

The Indian constitution envisages a constitutional form of democracy but unless the fundamental facets of democracy are upheld, it would be just a misnomer to call it a truly democratic country. Democracy can never be attained unless the 3 facets of democracy are maintained (1) Strict adherence to The Laws (2) Equality and Equal Opportunities to all the Citizens and (3) Citizens right to live without fear in a civilized society. If any of these 3 facets fail it would not be Democracy but some other form of Government.

A glance through the Indian legislatives enactments make sure that it is not the lack of Law that hampers the Democratic system but lack of proper implementation of the same. Lack of proper implementation of law arises in various forms. The tinkering of the statutory provision by subordinate legislation many a times losses the teeth for which the legal enactment was originally made for. The passive response of the Executive and its delay to act in accordance with law necessitates the citizens to approach the Constitutional Courts under Article 32 and 226 whereby which the number of cases over burdens these Constitutional Courts. The majority of the cases in constitutional courts are nothing but the basic duties which the Executive fail to act on time. And in the Criminal legal system the escaping of real culprits from the clutches of law are mainly due to the fact that the investigation of the offence by officers without the proper understanding of Law makes inadvertent or advertent loopholes in the investigation reports which enable the culprits to get away from the clutches of law. The Judicial Courts which tries the offences on the basis of these reports furnished by the investigating officers have no go other than acquit the accused. As long as Criminal Jurisprudence lacks the Legal Enactments to search and find out the real culprits even after a criminal trial, the real culprits languishes in the society as a mockery to the so called lawful society. And the law protects the pitfalls of officers on bona fide grounds. It is not that it is only the executive organs that are to be entirely blamed for and that the judicial system is not tainted with, but when compared to the other organs of Government the judiciary has the less numbers of deviants, of course not absolutely without.

The Second Facet of Democracy is the right to Equality which is enshrined in Article 14 in our Constitution whereby the Indian Constitution treats all the citizens equally and with equal opportunities. But the fact remains that the Government and its machineries are not mainly utilized for the majority of the common man but for the privileged politicians, bureaucrats and the business corporate. The recent judgment of the Supreme Court inRam Singh and others v. Union of India reported in (2015) 4 scc 697, with regard to Jat community reservations held that the Government is not to circumvent the law and its machineries to favour the few for getting votes. Article 14 guarantees equality to the citizens of India with exception by Article 16(4) and Part xvi that for the upliftment of the socially backward class, reservations can be made. It is dubious that in spite of the Government policy for upliftment of the socially backward classes, even after a period of 65 years of the implementation of the said policy, the number of the backward class in India are day by day increasing, which makes it evident that the Government policy is only farce and the regulations are being misutilised, and the so called upliftment has not yet been attained. And communities are striving to get into the so called backward class list so that reservation benefits accrue to them. And the political parties utilizing the said opportunity to secure votes by giving false promises .No citizens of India would be against giving reservation to the deserving persons and communities, but it is unfortunate that the said policies are being misutilised and thereby the lawful opportunities are being denied to the deserving persons, and thereby resources of the state can’t be optimized for providing better living standards to the citizens.

The crouching summer heat in 2015 had taken life of more than 1200 people in the State of Andhra Pradesh alone and the reason being lack of proper shelter. Were they not citizens of India for whom also the Indian Constitution guaranteed protection of their lives? What are the taxes and levies collected from the people being utilized for? And the answer is that they are being diverted to the privileged by way of loans and write-offs to support their extravagance. Dating back to the formation of the Institution of Government was to support the citizens but now it is the reverse that the people are serving the Government and they are taxed to sustain the Government. The majority of the income that is collected by way of taxes and levies are spent for providing salaries to Government officials in States like Kerala, and the money which ought to be spent for providing better standard of living for the citizens are denied to them. To have a good road, continuous electricity, drinking water and other infrastructures are just a dream for the majority of the common man. It cannot be faulted that the young educated cream of India migrates to the other parts of the world seeking better employment and living standards, they don’t want to hear the routine gimmick of the age old politicians and their political philosophies. Any democratic form of Government can prosper only if the law is implemented equally for all, or else few of the elite class and their community would create a class of its own.

The Third facet of democracy is in fact the predominant one that is the right of citizens to live without fear in a civilized society. Freedom to live without fear is necessarily a fundamental right which should be given the utmost priority. All citizens should have the right to lead a dignified way of life and to live according to his wish and choice. Of course if any element of acts which is adverse to the interest of the nation the law should take care of the same and punish the guilty by the due process of law. But it is not the same to let few persons to carry out their whims and fancies to declare the nation to their will. When Pakistan declared itseif as an Islamic republic, demands were made to declare India into a Hindu nation but the Constituent Assembly did not heed to the said demand and declared India into a secular Democratic Country. The recent news report from parts of India gives a picture of how a class of individuals who have no respect for this great country is taking law into their hands and depriving the fellow citizens the fundamental rights guaranteed under the Indian Constitution. It has not been too long to forget the history of India which witnessed the worst blood shed as an aftermath of the “Direct Action Day” and the “Babri Masjid demolition” where thousands of Indians were killed in the communal riots. Is that not enough or let another ten thousand to be massacred. What are all these for? For few politicians to get on to power? Whether be it Hinduvata , Jihad or Christianity it is going to affect the Democratic fabric of this great nation and pushing our country and our children to chaos and misery.

Whether it is a Political party or any other organization, the right to form an association or to profess and propagate an ideology emanates from the right guaranteed under Article 19 and 25 of the Indian Constitution. Once the said organization commences its operation from the right so guaranteed it shall not deviate from the constitutional mandates. Article 13 of the Indian constitution declares any law that is inconsistent with the fundamental rights guaranteed under part iii of the Indian Constitution to be void. Article 13 of the Indian Constitution is so wide that it is not the legislative laws alone that comes under its sweep but non legislative sources also comes within its sweep .Hence any unlawful or illegal act of any political party or any organization that breaches the constitutional mandates the Government should curb the said act as unconstitutional. The Government being the repository of power given by the citizens to act under the constitution should first and foremost be accountable to the constitution, or else it is the people of this great nation that is to suffer and fail, and democracy would just be in words.

Let us be an Indian first.

taking cognizance of an offence - the dissillusionment continues

(By V. Ramkumar, Former Judge, High Court of Kerala)

The essential facts discernible from a nascent verdict of the Supreme Court of India in Crl. Appeal No. 844 of 2015 ( 2015 (3) KLT 382 (SC)- S.R. Sukumar v.S. Sunaad Raghuram) handed down (as reportable) on 2.7.2015, are as follows:-

 9.5.2007:    A complaint was filed by one Sunaad Raghuram before the Addl.

                     Chief Metropolitan Magistrate against one Sukumar (A1) and his mother

                     (A2) alleging the commission of offences punishable under sections120B,

                     499 and 500 I.P.C.

18.5.2007:  The Magistrate took cognizance of the offences under Section 200 Cr.P.C. and

                     recorded in part the sworn statement of the complainant and adjourned the

                     case to 23.5.2007 for want of time. The above proceedings were recorded by

                     the Magistrate in the proceedings sheet.

23.5.2007:  Recording of the sworn statement of the complainant was completed. The

                     matter was then adjourned to 24.5.2007 on request.

24.5.2007:  The complainant filed an application for amendment of the complaint by

                     introducing a subsequent event constituting a new cause of action by seeking

                     to incorporate 2 more paragraphs in the complaint.

24.5.2007:  The Magistrate allowed the application for amendment holding that he had not

                     taken cognizance of the offences earlier. He then took cognizance of the

                     offences.

26.6.2007:  The Magistrate permitted the complainant to carry out the amendment and

                     directed the issue of process against A1 alone.

2007:           Aggrieved by the above order A1 approached the High Court by filing a petition

                     (presumably under Section 482 Cr.P.C.) praying for quashing the order dated

                     21.6.2007 passed by the Magistrate contending, inter alia, that there was no

                     provision in the CrPC for amendment of the complaint and that, at any rate, the

                     Magistrate went wrong in allowing the application after he had already taken

                     cognizance of the offence.

21.1.2012:  The High Court dismissed the petition holding that-

                     i)  before allowing the amendment, the Magistrate had not taken cognizance of

                     the offence.

                     ii) no prejudice was caused to the accused.

                     iii) if the amendment was not allowed, then it would have resulted in multiplicity

                     of proceedings between the parties.

2012:           A1 preferred S.L.P. (Crl.) No.4813/2012 before the Hon’ble Supreme Court.

                     Leave was granted and the appeal was numbered as Crl. A. No.   844/2015. :

5.1.15          A two - Judge Bench of the Supreme Court (2015 (3) KLT 382 (SC)) dismissed

                     the criminal Appeal. The following propositions of law/observations made by

                     the Apex Court have surprised the author:-

A)       “Merely because the complainant was examined that does not mean that

the Magistrate has taken cognizance of the offence” (Paragraph 8).

B)       “Only upon examination of the complainant, the Magistrate will proceed to

apply the judicial mind whether to take cognizance of the offence or not

(Paragraph 11).

C)       “Under Section 200 Cr.P.C., when the complainant is examined, the

Magistrate cannot be said to have ipso facto taken cognizant, when the

Magistrate was merely gathering the material on the basis of which he will

decide whether aprima facie case is made out for taking cognizance of

the offence or not” (Paragraph 11).

D)       “It is wrong to contend that the Magistrate has taken cognizance of the

case even on 18.5.2007 when the Magistrate has recorded the statement

of complainant/respondent in part and even when the Magistrate has not

applied his judicial mind” (Paragraph 16).

E)       “Even though the order dated 18-5-2007 reads “cognizance taken under

Section 200 Cr.P.C.”,the same is not grounded in reality and actual

cognizance was taken only later” (Paragraph 16).

2. For the sake of argument we will assume that it is permissible to allow amendment of the averments in a complaint so long as the amendment does not change the character of the original complaint. Even then, what was the need or scope for examining the question as to whether cognizance of the offence was or was not taken ? If as a matter of fact the amendment sought is one which can be allowed since it does not change the foundation of the case as originally pleaded, can it not be allowed even after cognizance of the offence has been taken? Was not the enquiry regarding the factum and the stage of taking cognizance of the offences, an avoidable exercise?

3. Now let us examine the soundness of the propositions of law/observations referred to above. Although the learned Judges have adverted to the binding and oft quoted passages from the decisions of the Apex Court itself, such asR.R.Chari v. State of Uttar Pradesh (1951 SCR 312), Jamuna Singh & Ors. v. Bhadai Sah ((1964) 5 SCR 37), Nirmaljit Singh Hoon v. State of West Bengal & Anr. ((1973) 3 SCC 753), Devarapally Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors. (AIR 1976 SC1072); C.R.E.F. Finance Ltd v.Shree Shanthi Hornes (P) Ltd. & Anr. ( (2005) 7SCC 467), S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors. ((2008 (2) KLT SN 64 (C.No.78) SC = (2008) 2 SCC 492,) and Subrahmaniam Swamy v. Manmohan Singh & Anr.( (2012 (1) KLT SN 79 (C.No. 90) SC = (2012) 3 SCC 64), it is respectfully submitted that the essence of the ratio decidendi in those decisions has either been missed or conveniently sculled over by the learned Judges unmindful of the resultant incertitude and confusion. The settled position has been unsettled and chaos has been injected into the consistent, stable and immutable situation. The law, as crystallised through the various rulings of the Apex Court, is very clear on the point. If the Magistrate applies his mind for the purpose of proceeding under Section 200 and the subsequent sections of Chapter XV of Cr.P.C. then he can be said to have taken cognizance of the offences as made out in the complaint. But, if the Magistrate applies his mind not for the above purpose, but for taking action of some other kind, eg. ordering investigation under Section 156 (3) Cr.P.C. or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

4. The above proposition of law laid down by Justice Das Gupta of the Culcutta High Court in Superintendent and Remembrances of Legal Affairs, West Bengal v.Abani Kumar Banerji (AIR 1950 Cal. 437)was quoted with approval by the three - Judge Bench of the Apex Court in R.R. Chari (supra) and the other decisions adverted to by the learned Judges in the said decision of questionable authority. The decision inDevarapally Lakshminarayana Reddy (supra) was also rendered by a three - Judge Bench, Another three - Judge Bench of the Supreme Court inGopal Das Sindhi v. State of Assam(AIR 1961 SC 986) also reiterated the above legal position. One more decision which has affirmed the above legal position but which was not adverted to by the learned Judges, is Narayanadas Bhagwandas Madhavadas v. State of West Bengal(AIR 1959 SC 1118). The distinction between Chapter XII Cr.P.C. dealing with the pre-cognizance stage and Chapter XV Cr.P.C. dealing with post-cognizance stage, was succinctly delineated by the Supreme Court in Tula Ram v. Kishor Singh ((1977) 4 SCC 459). The judicial act of taking cognizance of the offence should not be confused with the subsequent act of issuing process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in the complaint or Police report or in the other information. The issue of process is at a subsequent stage. (Vide C.R.E.F. Finance Ltd v. Shree Shanthi Homes (P) Ltd & Anr.((2005) 7 SCC 467) and State of Karnataka v. Pastor P. Rajan ((2006) 6 SCC 728). (See in this connection the illuminating article authored by Advocate Sri. M.A. Rashid titled “Anil Kumar’s case(2013) 10 SCC 705 violates binding precedents”)

5. Thus, if the Magistrate after applying his judicial mind to the avernments in the complaint decides to record the sworn statement of the complainant under Section 200 CrPC (i.e. decides to proceed under Chapter XV Cr.P.C.) he can legitimately be said to have taken cognizance of the offence. Even the actual recording of the sworn statement under Section 200 Cr.P.C.. is not necessary. For instance, we will take a hypothetical situation:

After applying his judicial mind to the factual matrix recited in the complaint the Magistrate records the following in the “proceedings sheet” at 5 pm.-

“Complainant present. For want of time, the case is adjourned to tomorrow for recording the sworn statement of the complainant and his witnesses, if any”.

6. Here the Magistrate has decided to proceed under Chapter XV Cr.P.C. Hence the Magistrate can legitimately be said to have taken cognizance of the offence. He cannot thereafter retrace his steps back to the pre-cognizance stage and forward the complaint to the Police under Section 156(3) Cr.P.C. (See Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC) = (2004) 7 SCC 338).

 I am, therefore, with due respect, of the considered opinion that the two - judge Bench in Sukumar’s casewas wrong in laying down the propositions of law marked as A to E in paragraph 1 above and they tend to confuse, if not mislead, the entire hierarchy of courts particularly the Magistrates in the whole nation. The said verdict deserves to be over-ruled at the earliest.