Both Will Prevail

(By E P. Abu, Advocate, Mannarkkad)

In doubting contradictions in the decisions reported in 2001 (1) KLT 517 SC and 2001 (3) KLT 950 SC, as is deemed to be contradictory in nature, the author of article published in 2002 (1) KLT page 65, is infact not correct and the answer to the question is "Both will prevail".

Both Hon'ble Supreme Court decisions are based on the cases agitated under Negotiable Instruments Act, 1881 as amended by Act 66 of 1988.

The decision reported in 2001 (1) KLT 517SC is with regard to the jurisdiction of Judicial First Class Magistrate in imposing sentences. Upon deciding the case Their Lordships was in the considered opinion that S.29(2) of Criminal Procedure Code cannot be by-passed to S.142 of Negotiable Instruments Act, inorder to widen the power of Judicial First Class Magistrate, since there is no absente clause in the Negotiable Instruments Act.

What was discussed in that decision by Their Lordships is that the Magistrate of First Class has no jurisdiction to impose a fine exceeding Rs.5000/- and a sentence of imprisonment exceeding three years, which is the mandate of the statute, that constitute the very position of the Magistrate.

The decision reported in 2001 (1) KLT 517 SC and 2001 (3) KLT 950 SC are not way contradictory in nature as is presumed by the author of the article.

Under the Criminal Procedure Code the Judicial Magistrate of First Class has got jurisdiction to impose a sentence of imprisonment not exceeding three years and a fine not exceeding Rs. 5000/- or both, unless a special statute confess a jurisdiction in specific terms with an obstante clause, which according to their Lordships lacks in the Negotiable Instruments Act.

But, the matter is different when the Magistrate chooses to resort S. 357 of Cr.P.C, wherein there is no limitation prescribed if the Magistrate thinks that the complainant must be compensated with his loss, that is what is seen in the decision reported in 2001 (3) KLT 950 SC.

The decision is reported in 2001 Cri.L.J. 950 SC, wherein para.17 says that "in our view this question does not pose any practical difficulty. Whenever a Magistrate of First Class feels that the complainant should be compensated he can after imposing a term of imprisonment award compensation to the complainant for which no limit is prescribed in S.357 of Cr.P.C."

What the decisions in both the cases prescribe that, when imposing a fine the Magistrate must strictly adhere to S. 29(2) of the Code, but it does not bar the Magistrate to resort to S. 357 of the Code, if he feels that the complainant has to be compensated for his loss.

In nutshell, there is no room for ambiguity in both decisions.

Adultery - Is it A Male Partner Offence?

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

Indian women are enjoying a position of high esteem in society, since time immemorial. In ancient days they were subjected to certain injunctions to protect their respectability and reputation. A duty was imposed on husbands to protect their young and youthful wives. It was believed in the ancient texts that women should be protected from the slightest of corrupting influence especially since an unprotected woman aggrieves both families (those of her father and husband) on account of her sexual proclivity. Women though well protected make transgressions at times if things are favourable for them. This transgression was called in the old texts Sangrahana or adultery which we call at now. Severe punishment was also prescribed for woman engaging in adulterous activities. "Unlawful coming together of a man and woman for sexual enjoyment constitutes the offence of Sangrahana (adultery)" - Mitakshara on Yajnavalkya-11-283. Both man and woman indulging in adultery are liable to be punished, so is told Brihaspati- P: 367-15. Manu Samhitha provided that, "For acts of infidelity to her lord, a wife becomes condemnable in society and she will be reborn as a she jackal afflicted with many a foul disease. She shall be punished by the King to be devoured by ferocious dogs in a well crowded locality. The male partner of adultery shall be laid down on a hot bed of iron and the public executioners shall cast logs of wood in the fire bed till his body is consumed to ashes".

In the above background the offence of adultery if visualised with a comparison to the definition comes under S.497 of Indian Penal Code, 1860, it becomes apparent that the scope of the offence and its punishment is drastically diluted. S.497 defines adultery as follows: "Whoever has sexual inter course with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual inter course not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such case the wife shall not be punishable as an abetor". The cognizance of this Section is limited to adultery committed with a married woman and the male offender alone has been made punishable. Thus under the Code, adultery is an offence committed by a third person against a husband in respect of his wife. It is not committed by a married man who has sexual intercourse with an unmarried woman.

By the reason of S.198(1) CRPC no Court can take cognizance of the offence of adultery except upon a complaint by some person aggrieved by the offence. Sub-s.2 of S.198 provides that for the purpose of sub-s.(1) "No person other than husband of the woman shall be deemed to be aggrieved by an offence punishable under S.497. A combined reading of S.497 IPC with S.198 Cr.P.C. tells the following tale.

(a)    S.497 prescribes punishment on the adulterer male only. It does not punish the adulterous wife.

(b)    S.497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

(c)    S.497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

(d)    It does not cover cases where the husband, has sexual relations with an unmarried woman with the result that husbands have, as it were, a free licence under the law to have extra marital relationships with unmarried women.

The framers of Indian Penal Code who were English People found the following reasons to exclude the woman partner of adultery from punishment. "We cannot but feel that there are some peculiarities in the State of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of woman of this country is that they are married while children they are often neglected for other wives while still young. They share the attentions of a husband with several rivals. To make laws for punishing the inconstancy of the wife, while the law admits the privilege of the husband to fill his Zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law as evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow but we trust the certain operation of education and of time. But while it exists, while it continues to produce is never failing effects on the happiness and respectability of woman, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law".

The above reasoning has many pitfalls. The framers on their anxiety to save women from the spell of punishment under S.497 IPC though used some ideological jinks, yet made the offence of adultery as an offence committed unilaterally by male by prescribing punishment on him alone. Everyone knows the fact that adultery is a bilateral act in which both man and woman are equal partners. The other fallacy of the reasoning is that Indian Women are given concession under law to satisfy their sexual need outside matrimonial home. It is an assault on the virtue of Indian women. Equally the same framers have forgotten the fact that they had made marriage during the life time of the other spouse an offence under S. 494 IPC in which both the man, woman and all the abetors are punishable. In India except Muslim community no other community is practising polygamy. No more is child marriage permitted under law in India. So looking at the offence of adultery in Indian context, it should be. seen an offence committed both by man and woman and both should be adequately punished.

S.497 was challenged before the Supreme Court two times. The first one was way back in 1954. The decision is reported in AIR 1954 SC 321 in Yusuf Abdul Aziz v. Bombay. It was challenged on the ground that it discriminates woman on the ground of Sex. However, Supreme Court let loose the protective umbrella around S.497 referring to Art.15(3) of Constitution. After about 30 years again S.497 was Subjected to the touch stone of judicial scrutiny. The decision is reported in 1985 Criminal Journal 1302 in Smt. Sowmitri Vishnu v. Union of India. The Supreme Court dubbed the contention in the appeal as emotional appeals and dismissed it with the following observation. "It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some changes over the years but it is for the Legislature to consider whether S.497 should be amended appropriately so as to take note of the transformation which the society has undergone". The Law Commission in its 42nd report recommended the retention of S.497 with the modification that the wife who has sexual inter course with a person other than her husband should be punished also *However the suggested modification was not considered by the Legislature. Thus the offence of adultery goes on with its onslaught on the male partner and gives a feather touch and go on the female partner. It shows that adulterous sexual inter course is a unilateral act in which the man is vim and vigorous whereas the woman is only timid and livid. It makes a big question mark, "Is the woman a chattel to own or a love statue to woo upon"?

Proceedings Due to Under Valuation Under S.45b

of the Kerala Stamp Act, 1959

Whether Applicable to Sale Deeds?

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

Retaining of instruments (Sale Deeds) by the Registering Officers for want of proper stamp duty and dealing such sale deeds under S.45B of the Kerala Stamp Act, 1959 (Act 17 of 1959) (for short "the Act") has become a common phenomenon in the State. In that connection, in 2002 (1) KLT 18, (Kerala Buildings Forum v. State of Kerala), it was ruled that the Registering Officer/District Registrar has got power to retain the original document (Sale Deed) after registration, till the adjudication of the reference under S.45B(1) of the Act is over and its compliance done. Such a conclusion was arrived at on a construction of the provisions contained in S.45B, read with Ss.33 and 34 of the Act. But in 2002 (1) KLT 806 (Periyar Real Estates v. State of Kerala) overruling the above said decision it was held by the Division Bench that even if there is a dispute as to the stamp duty payable on the instrument subject to registration, after registration of the instrument, the registering authority is not entitled to retain possession of the original document under S.45B of the Kerala Stamp Act, 1959. According to the latter decision, if S.45B of the Act is construed as empowering the Registering Officer to retain the original instrument, it would be repugnant to S.61(2) of the Registration Act, 1908 (Central Act, XVI of 1908).

But when we go through Ss.28A and 45A of the Act, it appears that as far as a Sale Deed (which does not bear sufficient stamp at the time of presentation for registration) is concerned, S.45B of the Act has no application and S.45A would be the relevant provision to deal with a sale deed bearing stamp of insufficient amount.

A comparative study of Ss.45A and 45B of the Act would be helpful to explain the position.

Sub-s.(1) of S.45B of the Act provides that - "If the Registering Officer, while registering any instrument, transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration, as the case may be, and the proper duty payable thereon" (*S.45B was inserted in the Act by way of an amendment vide S.6 of Act 17 of 1967).

But such a wide and general power conferred on a Registering Officer under sub-s. (1) of S.45B of the Act seems to be curtailed as far as it relates to a sale deed, in view of the provision contained in S.45 A of the Act, which was inserted in the Act on a subsequent occassion, i.e., by the Kerala Finance Act, 1994.*

Sub-s.(1) of S.45A of the Act provides that- "Notwithstanding anything contained in this Act, the Registering Officer shall, while registering an instrument transferring anv land. other than an instrument of partition, settlement or gift among the members of a family, chargeable with duty verify whether the value of the land or the consideration set forth in the instrument is the fair value of that land". Sub-s.(2) of S.45A of the Act provides that- "Where on such verification, the Registering Officer is satisfied that the value of the land or consideration set forth in the instrument is not less than the fair value of that land, he shall duly register the instrument". Sub-s.(3) of S.45A of the Act further provides that- "Where on verification, the Registering Officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under S.28A, he shall, by order, direct the payment of proper stamp duty on the fair value of the land fixed under S.28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, the instrument shall be duly registered." (S.28A was also inserted in the Act in the year 1994).

On a meticulous examination of S.45 A and 45B of the Act, it should be seen that, though under sub-s.(1) of the S.45B a general power has been conferred on a Registering Officer to deal with any instrument, transferring any property, the Legislature with the insertion of a special provision viz., S.45A has excluded Sale Deeds from the purview of S.45B. In other words, by the usage of the words, "Notwithstanding anything contained in this Act..." and "other than...." appearing in sub-s.(1) of S.45A of the Act, the Legislature has engrafted a special provision in the Act, to deal with instruments (which squarely cover sale deeds), which do not bear sufficient stamp as per 'fair value' fixed under S.28A of the Act. So S.45 A of the Act contains a prerequisite condition for registering a sale deed, i.e., payment of stamp duty as per fair value fixed under S.28A of the Act. Therefore, in the case of a sale deed there arises no question of fixing proper stamp duty on a subsequent occasion (i.e., after effecting registration) following the procedure laid down under S.45B of the Act. While registering a Sale Deed, one of the questions to be considered by the Registering Officer (in addition to the aspects to be looked into as per the Registration Act, 1908) is whether the sale deed has been properly valued as provided under S.45A of the Act. The instrument has to be registered, if the value of the land or the consideration set forth in the sale deed is not less than the fair value of that land fixed under S.28A of the Act. Otherwise, the Registering Officer has to resort to the course of action provided under sub-s.(3) of S.45 A of the Act and not the one provided under S.45B of the Act. If a sale deed was also to be referred to the Collector under sub-s.(1) of S.45B, then the Legislature would not have incorporated the concept of "fair value" under S.28A and the special provision of S.45A in the Act. Therefore, S.45A of the Act would be the relevant provision applicable to Sale Deeds, which are insufficiently stamped at the time of presentation for registration. In such circumstances, the maxim - "Generadia specialibus non derogant" (i.e., General words do not derogate from special) would apply and in the result, a Registering Officer may not be able to refer a sale deed after registration to the Collector. Because, as stated earlier, as far as a Sale Deed is concerned, the procedure prescribed under S.45A of the Act are special in nature and all such procedures are founded on the "fair value" to be fixed under S.28 A of the Act.

In this context, another aspect which may require consideration is whether under sub-s.(3) of S.45 A of the Act, a Registering Officer can refuse to register a Sale Deed presented for registration, on the ground that it is not duly stamped as per fair value fixed under S.28A of the Act, and whether such a course would be repugnant to the Registration Act, 1908 or not. It may be noted that sub-s.(1) of S.71 of the Registration Act, 1908 empowers a Registering Officer to refuse registration of a document, for reasons to be recorded. Therefore, in view of the said provision in the Registration Act, a Registering Officer can refuse to register a Sale Deed which does not bear stamp duty as per fair value, as provided under sub-s.(3) of S.45A of the Kerala Stamp Act and insist for compliance of the demand for proper stamp duty as per fair value fixed under S.28 A of the Act.

*Note:     1.     Section 45-A inserted by the Kerala Finance Act, 1994 published in K.G. Ex. No. 784 dated 29-7-1994. Earlier section 45-A was renumbered as "45B" and new section 45A inserted by Act 14 of 1988. Later section 45 A was omitted by Act 16of 1991 with effect from 11-1-1991.

 2.     Section 45B was inserted by section 6 of Act 17 of 1967 (15-6-1967).

(Source :- Gangadharan on Stamp Court Fees and Suits Valuation in Kerala -A.G. Publications).

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Hamsadhwani and a Hallmark Judgment:

A Critical Appreciation of Radhakrishna Panicker v. State (2001(3) KLT 631)

(By S. Parameswaran, Advocate, Ernakulam)

I.  In Carnatic music a concert normally starts with the invocation of Lord Ganesha, mostly with Vatampiganapathim Bhajeham in raga Hamsadhwani. Though Ganeshastuthi is an unwritten writ, Hamsadhwani is not - and rightly so - for the artists must have the freedom of choice of the raga. So is the case with judicial performance. Minds differ as rivers differ and judicial minds are no exception; and consistency is not known as a judicial virtue. But, there are cases and circumstances where Judges should be consistent and should not give room for disconcerting unpredictability of litigations. One such area is admission of cases to file. Admission of a case is a judicial conduct that is expected of him in discharge of a duty plainly cast on the Judge by the Constitution. Further, admission of a new case to file though done by an individual Judge is virtually admission by the High Court. Hence, once a similar case has been admitted by one Judge, the other judges, before whom identical cases come up for admission, are bound to follow suit and to act otherwise is nothing short of judicial indiscipline.

II.   It is in this context that the decision of the Division Bench in Radhakrishna Panicker v. State (2001 (3) KLT 631) assumes significance and deserves a thundering applause and a standing ovation from our lawyer fraternity, for, it has well laid to rest the ghost of a pernicious practice persistently pursued by some puigne Judges of the Kerala High Court in the matter of admission for some time past.

III.  Admission of cases to file is a judicial act with its noble and laudable underpinnings of law and justice. Inconsistency of approaches and discrepancy in attitudes of different Judges in admission of cases will send out wrong signals about the impartiality of the judiciary and invite popular misconception that this august institution is little different from the two political Branches of the Government. See the ring of truth in the observations of the Americal Supreme Court: "The Court's power lies in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the judiciary as fit to determine what the Nation's law means and to determine what it demands. The Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation...........The Country can accept some corrections of error without necessarily questioning the legitimacy of the Court......   The legitimacy of Court would fade (however,) with the frequency of its vacillation. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible". (Planned Parenthood of South Pennsylvania v. Casey, (505 US 833)(1992)).

IV.   It is very much necessary that Judges take particular care about their attitudes and utterings from the Bench when one considers the fact that justices maintain an image of a hallowed, priestly tribe that dispenses wisdom from Olympian heights and the people have a right to challenge that wisdom and demystify or debunk those images.

V.  Public scrutiny of the behaviour and perception of Judges is the only effective check on judicial "extravaganza and error", but the scrutiny should not degenerate into a scurrilous, motivated attack on the judiciary.

VI.  And does not former Indian Chief Justice J.S. Verma speak a home truth when he says "The people must be satisfied that he (Judge) practices what he preaches, and only the proper perception influences the course of judicial process. Justice is a divine function. We (Judges) are entrusted with the onerous task of dispensing justice. We, therefore, discharge, a divine function. Since none of us is divine and consequently, perfect justice is beyond us. to administer justice to the best of our ability is all that we can and must strive to achieve". ("New Dimensions of Justice", J.S. Verma, Universal Law Publishing Co. P. Ltd., New Delhi (2001)).

VII.  It is pertinent here to recall the words of the Apex Court in State of Assam v. P. C. Mehra (AIR 1996 SC 430), "Constant awareness of the nature of the (judicial) power and purpose for which it is meant would prevent situations leading to clash of egos and the resultant fall out detrimental to public interest".

Moreover, above the High Court's head, we have a powerful Supreme Court in the country, which can - often does - act as a check on the former's vacillation and vagaries.