Order of Ombudsman Relating to Destruction of Stray Dogs

 

(By Justice K.P. Radhakrishna Menon, Ombudsman)

 

O.P. No.676/2004

25th August, 2004

 

ORDER

 

The editorial in the Malayala Manorama dated 7th August, 2004 under the caption “\nba¯n\v hepXv \mbtbm a\pjyt\m”?the English rendering of which "Under law who is more important. Man or Dog", and the letter of Dr. Vincent Panikulangara dated 12th August, 2004,highlighting the predicament of the citizens who are inhabitants of either the Municipal Corporations, the Municipalities or the Panchayats, brought about by the stray dogs crisis crossing the length and breadth of Kerala, prompted me to initiate this Suo Motto proceedings.

 

It is stated in the letter of Dr. Vincent Panikulangara thus: "West Cochin has become a haven of stray dogs. On 3.8.2004 stray dogs bit Nashik (9 years) and Amal Deo (8 years) in Government Hospital, Mattancherry. In that area 56 persons were bitten by stray dogs during the period from 1st to 11th August 2004", The editorial aforesaid as also various items of news on the 2nd, 4th, 10th and 11th of August, 2004, with photographs of children, one of them having the tooth mark of the dog, 1/4 of an inch in depth on the left side of his cheek, and the complaints the Ombudsman is receiving from various places, highlight the gravity and the seriousness of the menance caused by the stray dogs, of which some are rabid dogs, freedly moving about in the State.

 

The situation was brought about because the local bodies were disabled by the order of the State Government dated 2.8.2002, canceling the notification dated 3.7.2002, empowering the local bodies to take action for the destruction of the stray dogs in terms of S. 11 (3)(b) of The Prevention of Cruelty to Animals Act. for short, The Act.

 

This was the state of affairs when one N. Bhaskaran moved W.P. (C) No. 23543 of 2003 (S), seeking a direction to the Government to restore the notification dated 3.7.2002 empowering the local bodies to take immediate action for the destruction of stray dogs. The issue in the Writ Petition was contested by the Central Government. The Counsel for Central Government relied on The Animal Birth Control (Dogs) Rules for short. The Dogs Rules, and argued that destruction of stray dogs, the local bodies shall not resort to, Considering the scope of The Dogs Rules, the Division Bench held as follows:

 

"We therefore dispose of the Writ Petition with a direction to respondents Nos.2 to 6, to implement The Rules (The Dogs Rules) strictly in letter and spirit and in case they are short of funds they should apply to the Government of India for the grant for the implementation of the aforesaid scheme."

 

The learned Judges have also made the observation that

 

"It is clear that Rules have been framed for implementing The Animal Birth Control & Immunisation of Stray Dogs Scheme. We have perused some of the provisions of these Rules and are satisfied that adequate provisions have been made therein to deal with the stray dogs, particularly those which are sick and dangerous to human beings. Provision has been made for their elimination as well".

 

Be that as it may. The question however arise whether "The Dog Rules" sets at naught S.9(f), S.11(3)(b) read with S.38(1)(2)(e-a) of the Act. For easy reference these provisions are reproduced:

   S.9(f)                 :     To take all such steps as the Board may think fit to

                                          ensure that unwantedanimals are destroyed by local

                                          authorities, whenever it is necessary to do so, either

                                          instaneously or after being rendered insensible to

                                    pain of suffering.

 

   S.1 l(3)(b)          :     The destruction of stray dogs in lethal chambers or

                                    (by such other methods as may be prescribed).

 

   S.38 (1)             :     The Central Government may, by notification in the Official

                                    Gazette, andsubject to the condition of previous publication,

                                    make rules to carry out the purposes of this Act.

 

            (2)             :     In particular, and without prejudice to the generality of the

                                    forgoing power,the Central Government may make

                                    rules providing for all or any of the following matters, namely:

 

   S. 38(2)(e-a)     :     The other methods of destruction of stray dogs referred to in

                                    clause (b) of sub-s. (3) of S. 11;

 

The originals words in bracket in S.11(3)(b) namely "by other methods with a minimum of suffering" were substituted "by such other methods as may be prescribed: with effect from 30.07.1982. By the same Amending Act clause 38(2)(e-a) namely "the other methods of destruction of stray dogs referred to clause (b) of sub-s.3 of S.11" was added. These Sections do establish beyond doubt that the representatives of the people (the sovereign) in the Parliament were determined to save the citizens from the fatal disease, rabies transmitted to humans by dogs, particularly stray dogs.

 

S. 38(1) empowers the Central Government to make Rules to carry out the purposes of The Act, Sub-s.2 thereof provides that in particular, and without prejudice to the generality of the foregoing power, (highlighted in sub-s.1). The Central Government can make Rules providing for all or any of the matters enumerated therein. It is relevant in th is context to note that the subject matter of "The Dog Rules" namely The Animal Birth Control (Dogs), is not one of the matters enumerated in sub-s.(2), nor for that matter is this, one of the purposes of The Act. There is no doubt, an omnibus clause, Clause (1) namely, any other matter which has to be, or may be, prescribed. It shall in this connection be remembered that this omnibus clause does not empower the Central Government to travel out of the four walls of The Act and make Rules. If it does it will be a colourable exercise of jurisdiction and may even tantamount to, legislation which is not permitted under law.

 

From the forgoing discussion it can be inferred without fear of contradiction that the Parliament has re-emphasized the need to take effective steps forthe destruction of stray dogs, which, going by the newspaper reports and complaints. The Ombudsman is regularly getting from people generally and particularly from the students of even 1st and 2nd standards and the morning and evening strollers, are causing serious health hazards to human beings.

 

Instead of making Rules in exercise of the power under S.38(2) (e-a), The Central Government has made "The Dog Rules", which, from the discussion above is clearly not a matter enumerated under sub-s.2 of S.38 or meant to carry out any of the purposes of The Act mentioned in Clause (1) thereof. It therefore shall be declared that by promulgating "The Dog Rules", The Central Government have arrogated the exclusive authority of The Parliament to legislate upon the subjects catalogued in List 1 and List 3 of the Seventh Schedule of the Constitution. Rule 3 of "The Dogs Rules", provides that all dogs shall be classified in one of the following two categories (1) Pet dogs (2) Street dogs. The words "Street Dogs" do not find a place in The Act, The Parliament made with respect to the matter, shown as item 17 in the 3rd list "Prevention of Cruelty to Animals". I do not want to make any more comment on this aspect, especially in view of the fact that "The Dog Rules" was the subject matter of discussion before The Hon'ble High Court, as discernable from the Judgment mentioned supra.

 

An incidental question however arises as to how far 'The Dogs Rules' shall be permitted to operate in the field occupied by S.11(3)(b) of The Act. To get an answer to this question it is necessary to refer to the principles of law governing the scope and effect of The Rules vis-a-vis substantive provisions of The Act under which The Rules are made. The fundamental principles have once and for all been settled by The Supreme Court. In Re Pratap Singh, AIR 1956 SC 140 the Supreme Court has declared that "The Rules cannot travel beyond The Act and must be read subject to the provisions". Similarly in Re --News Papers Ltd. AIR 1957 SC 532 the Supreme Court has restated the principle thus: The Executive cannot under the power of framingRules and Re gulations. clothe itself with power which the statute itself does not give................The cardinal Rules in regard to promulgation of Bye Laws or making Rules is that, they must be legi fidei rationi consona. and therefore all Regulations which are contrary or repugnant to statute under which they are made are ineffective. To put it briefly, it is a well established principle of law that a Rule can never contravene a provision of The Act, not can it curtail nor add anything to the statutory power under The Act, and if ever The Rule ever reaches the provisions of The Act or tantamount to be a piece of legislation, the said Rule will be ineffective, without any consequence and consequently a dead letter.(Emphasis supplied).

 

On a perusal of the Judgment of The Hon'ble High Court it can be seen that the High Court has had no opportunity to consider the validity of 'The Dog Rules' in the light of the provisions of The Act discussed supra. The High Court has only construed to interpreted The Rules. In such circumstances, what will be the value of such Judgment as a precedent, has in clear terms been stated by Krishna Iyer (J) in Mamaleshower Prasad AIR 1975 SC 907 thus:

 

"Certainty of the law, consistency of ruling and comity of Courts -- all flowering from the same principle --coverage to the conclusion that a decision once rendered must later bind like cases. We do not intend to destract from the Rule that in exceptional instances, where by obvious inadvertence or over sight a Judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents".

 

These principles laid down by the Supreme Court, are law declared by the Supreme Court and therefore under Articlel41 of The Constitution they are binding on all Courts, Tribunals and Statutory Forums and all Government Authorities within the territory of India.

 

"The Dog Rules", therefore is of no consequence, for that matter it shall not interfere with the power conferred on the local authorities for the destruction of stray dogs, intended to save the citizens from the fatal health hazard namely rabies, caused by them. It shall in this connection be remembered that rabies is transmitted to human beings by dog bite. It is an incurable disease; and the preventive treatment is highly expensive, When once affected by this disease death is certain. On a detailed study of "The Dogs Rules", one would certainly form the opinion that the Central Government is more concerned with the life of the stray dogs than the life of the human beings, for the welfare of whom the framers of the Constitution have made provisions guaranteeing their Human Rights by incorporating 'Fundamental Rights' chapter in the Constitution. 'The Dog Rules' has elevated the stray dogs to a place above the place allotted to human beings among God's creations: The power conferred on the local authorities by S. 11 (3)(b) therefore shall not be feltered by 'The Dog Rules'.

 

The following directions therefore are issued:

 

1) The Corporations, The Municipalities and The Panchayats at all levels are directed to take effective steps for the destruction of the stray dogs methods with a minimum of suffering on a war footing and save the inhabitants of their respective areas from the fatal health hazards caused by these stray dogs.

 

2) The Local Authorities, if found necessary, can requisition the assistance of Police in case any animal lower or Animal Welfare Organizations, more concerned with the human rights of the dogs than that of the human beings, cause any obstruction in the discharge of their duties under S. 11 (3)(b) of the Prevention of Cruelty to Animal Act, and on such requisition being made, the Police shall render all assistance to the authorities.

 

The Petition is closed.

 

The Secretary, Ombudsman shall forward acopy of this orderto the Government, to enable the Government to issue appropriate instructions to the local authorities in regard to the implementation of the order.

 

Voluntary Retirement (V.R.S.) and Tax Benefits

 

(By P.K.R. Menon, Senior Advocate, Kerala High Court)

 

- A view point -

 

The availability of tax benefits and the extent to which tax benefits are available to those who retire under V.R.S. is a very live controversy and Courts, Tribunals, authors and writers have expressed differing views on the issue.

 

This Article proposes to highlight various aspects of the issue.

 

Sub-s.10(C) of S.10 excludes any amount received by an employee at the time of his voluntary retirement in accordance with any scheme or schemes of voluntary retirement, to the extent such amount does not exceed five lakh rupees.

 

S.10(10C) comes under Chapter III of the Income Tax Act. And Chapter III deals with Incomes, which do not form part of total income.

 

S.10(10C), as it stood before 1.4.2001, took into consideration voluntary retirement in accordance with any scheme or schemes of voluntary retirement, to the extent such amount does not exceed five lakhs rupees. And with effect from 1.4.2001, S.10(10C) took into consideration voluntary retirement or termination of service, in accordance with any scheme or schemes of voluntary retirement or in the case of a public sector company referred to in sub-clause (1), a scheme of voluntary separation, to the extent such amount does not exceed five lakhs rupees.

 

Second proviso to S.10(10C) which has got bearing reads thus:

 

Provided further that where exemption has been allowed to an employee under this clause for any assessment year, no exemption there under shall be allowed to him in relation to any other assessment year".

 

"Voluntary retirement" before 1.4.2001 and both "voluntary retirement and termination of service" after 1.4.2001 contemplated are in accordance with any scheme or schemes of an institution or a company.

 

The meaning of the proviso to S.10(10C) is reasonably clear. It only says that once an employee has availed of the benefit, he is not entitled to the benefit again. To put the same differently, once an employee on his voluntary retirement from an institution or company avails of the benefit of S.10(10C) and joins some other institution or company and if he is to voluntarily retire from the second job he is not entitled to the benefit under 10(10C) on his second retirement. And the circular of the Board (circular No.657 dated 30.8.93) is in accordance with law. The circular reads:

 

"The guide lines prescribed by the Board for framing the schemes of voluntary retirement further specify that the employee should not have availed of the benefit of any other voluntary retirement scheme in the past. It may be difficult for the employers to comply with this requirement where the employees do not disclose the fact of their having availed of such benefit in the past. It has, therefore, been provided that where exemption has been allowed to an employee under S.10(100 for any assessment year, no exemption shall be allowed to him thereunder in relation to any other assessment year".

 

The Board's letter dated 23.4.2001, relied on by writers, apart from being not a circular under law, is against the circular referred to above. The letter of the Board is not binding on the officers who are to administer the statute.

 

As noted in S.10(10C) five lakhs is not included in the total income. Whether the amount in excess of Rs.5,00,000/- is entitled to be considered under S.89 is the question to be considered now.

 

89 reads:

 

"Relief when salary, etc., is paid in arrears or in advance.- Where an assessee is inreceipt of a sum in the nature of salary, being paid in arrears or in advance or is in receipt, in any one financial year, of salary for more than twelve months or a payment which under the provisions of clause (3) of S. 17 is a profit in lieu of salary, or is in receipt of a sum in the nature of family pension as defined in the Explanation to clause (iia) of S.57, being paid in arrears, due to which his total income is assessed at a rate higher than that at which it would otherwise have been assessed, the Assessing Officer shall, on an application made to him in this behalf, grant such relief as may be prescribed".

 

The payment in excess of Rs.5,00,000/- does not come under the first three categories, namely (1) salary paid in arrears (2) salary paid in advance (3) receipt of salary in one financial year for more than twelve months.

 

The only category under which the present amount could be considered is the fourth category, that is whether the amount is a profit in lieu of salary as contemplated under S.17(3) of the I.T. Act.

 

Under S.17(3) "profit in lieu of salary" includes-

 

(i) the amount of any compensation due to or received by an assessee from his employer or former employer at or in connection with the termination of his employment or the modification of the terms and conditions relating thereto;

 

(ii) (not typed)

 

*(iii) any amount due to or received, whether in lump sum or otherwise, by any assessee from any person--

 

(C) before his joining any employment with that person; or

 

(D) after cessation of his employment with that person.

 

"Termination of employment" found in S. 17(3) right from the beginning cannot be equated with "termination of service in accordance with any scheme or schemes" introduced in S. 10(10C) with effect from 1.4.2001.

 

"Termination of employment" obtained in S. 17(3) apart from the context and the company of words in which it occurs may not take in voluntary retirement under a scheme contemplated under S.10(10C).

 

S.17(3) contemplates termination of employment by the management either under the Industrial Disputes Act, Labour Law or under the Standing Orders or under an agreement between the employer and employee. Employees who do not come within the purview of statutes are governed by the standing orders of companies or agreement between parties.

 

In this context it is apposite to note the observation of the Supreme Court

 

"Except where there is a specific provision of the Income Tax Act which derogates from any other Statutory Law or Personal Law, the provision will have to be considered in the light of the relevant branches of law". (55 ITR 660 at 664).

 

Hence "termination of employment" has to be understood in the manner it is understood under the Industrial Law/Labour Law.

 

17(3)(iii) introduced by Finance Act, 2001, with effect from 1.4.2002 takes in any amount received after cessation of his employment. Hence S.89 may have application to the excess amount with effect from 1.4.2002. Notes on clauses to the amendment reads:

 

"sub-clauses (b) seeks to insert a new sub clause (iii) in clause (3) of the said section so as to include any amount due to or received, whether in lump sum or otherwise, by any assessee from any person before joining any employment, or after cessation of such employment as income of that person under the head "Salaries".

 

This amendment will take effect from 1st April, 2002, and will, accordingly, apply in relation to the assessment year 2002-2003 and subsequent years".

 

Retrenchment is defined in S.2(oo) of the Industrial Disputes Act. "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-

 

(j) voluntary retirement of the workmen; or

 

(k) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in the behalf; or

 

(l) termination of the service of a workman on the ground of continued ill health;).

 

In the light of the above the amount in excess of Rs.5,00,000/- could not be considered under S.89 before the amendment of S.17(3) of the I.T. Act by Finance Act, 2001 with effect from 1.4.2002.

 

Prior to 1.4.2002 the entire amount received under V.R.S. did not form part of 'salary'; whereas subsequent to 1.4.2002, the amount did form part of salary. And hence not entitled to S.89 relief prior to 1.4.2002 for the amount in excess of Rs.5,00,000/-.

___________________________________________________________________

*Inserted by Finance Act, 2001 with effect from 1.4.2002.

 

Children at the Crossroads of the New Milleneum:

An Analysis in Human Rights Perspective

 

(By Rathin Bandhyopadhyay & Hemantika Sundas, Lecturers, Department of Law, University of North Bengal, Darjeeling)

 

The children are the most beautiful and important assets of all. They are tiny apostles of peace and happiness. But what is so hard for us to grasp is the unpleasant reality that the whole of society from literates to illiterates, richest to poor, liberal to conservative, seems ferociously cruel to the children. It seems that fact is been forgotten by all that the development of a country depends on how its children are developed or protected. We must therefore, always remember that the children are the ultimate goal for development and also the most important tool for development. Thus, protecting the health and development. Thus protecting the health and education of today's children is their first and foremost right but it is also the most basic and wisest of all investments and therefore, in the interest of social and economic development of society.

 

But the fact remains same that the children of today are much more exploited and they are the main victims of violation of human rights whether in the form of child labour or child prostitution or child abuse or bonded labour or using child as beggars by criminals. There seem no end to such human rights violation.

 

CHILD AS VICTIMS OF LABOUR

 

The world is a witness that today the most of the children have been deprived of their life and liberty. Instead of playing and studying at their tender stage, they are working as newspaper seller, cobbler, domestic help, beggar and sexual worker for their living. They are engaged in factories and industries and that too hazardous industry. They have no time for developing their self-personality.

 

There is a general consensus that India has the largest child labour force in the world where little hands and nimble fingers are constantly occupied in a variety of chores, binding over tasks they are incapable of performing. These are major child labour centers where they are brutally exploited.

 

The cramped, unhygienic and unsafe surroundings of factories where children are forced to work, compromise a world of terror. Sivakasi is a classic example. Some 50,000 children comprising half the number of employed liberally play with fire every minute of their lives. Their ages range from 3l/2 to 15 years and they work for as long as 12 hours continuously at wages as low as Rs.2/- to Rs.8/- per day depending on the individual output.

 

In the glass factories of Ferozabad in Uttar Pradesh which produces blubs, glass, jars and containers, chandeliers, beads and bangles the children at works total 50,000. Barefoot, the labour are close to the furnace maintained at a temperature of 14000°C. In the pollution of soot fumes and dust, they look like machines with movements that are mechanical. They are potential victims of lung disease.

 

Bhiwandi is another area of child exploitation. The 15,000 children employed in the local power looms work in 12 hours shifts and some even for a 24 hour stretch. The diamond industry in Surat employs nearly 50,000 child labourers.

 

The export-oriented carpet industry in Palamau, Mirzapur, Varanasi and Allahabad employ some 1.5 lakh children and an undetermined number of children also work in bidi-making in Uttar Pradesh, Tamil Nadu, Karnataka, Kerala and Andra Pradesh. The list in both organized and unorganized sectors is endless1.

 

CHILD AS VICTIM OF SEXUAL ABUSE & PROSTITUTION

 

The ugly phantasm of sexual abuse haunts the children the world over. India has no law on child sexual abuse. If a child is abused and the overwhelming cultural bias for denial is overcome then a case can be filed for statutory rape, or 'outraging the modesty of the women', in the case of girls and for 'unnatural sexual offence in the case of boys2'.

 

Now, coming to define what sexual abuse exactly means, Sussman & Goham have defined the term 'abuse' as the infliction of serious physical harm or sexual molestation of a child. According to Black's Dictionary the word 'abuse' means everything which is contrary to a good order established by usage. Departure from reasonable use: immoderate or improper use physical or mental maltreatment, misuse, deception (female child). An injury to genital organs in an attempt of carnal knowledge, falling short of actual penetration. It is notable that in present perspective any case of sexual exploitation or abuse of persons for commercial purposes falls under the act of prostitution. That is to say that prostitution includes sexual exploitation or abuse of a person for commercial purposes3.

 

Well, from the very definition itself it means some inhuman treatment which the human beings as the most intelligent creatures do not bother in committing. It is heartening fact that the children of tender years who is too young to understand the nature of offence often falls victim of same.

 

The sexual offence that is perpetrated on them is in form either of incestuous abuse, or sexual assaults by stranger and child prostitution. Incestuous abuse means that child is sexually abused by a parent or an elder person in similar position of trust such as brother, relative, babysitter or step parents. Such incest or of abuse may be more traumatic than a child rape by strangers, because such behaviour may be continued over a period of time and the victim may find helpless to protect herself from such abuses4. This often leads to long term psychological effects and they cannot develop their personality in the long run, which might compel them to leave parental home or commit suicide. On the other hand the criminals are not even hurt by a pinch as because the matter remains subdued due to social prestige and reputation.

 

There is yet another group of sexual offenders, known as pedophiliac or child lovers who use immature children as the choice of their sexual object. Usually in the age group from thirty to fifty pedophiliac lurk around playgrounds, parks, schools and vacant lots where children wander. Then, they drag their victims to a secluded place and sexually molest or misuse them. In most cases, the offenders are usually a friend, relative or neighbour of the child. Sexual intimacy may consist of fondling, manipulation of the child's genitals, oral genitals contacts and partial or complete penetration of the child. Very often the child is induced to manipulate the sex organs of the offender. Coercive force is rarely used to obtain sexual favours. The offender's usual approach is based on the child's interest in some new and unusual thing or things which may have been denied to him. Most of these offenders are psychosexually immature, deviant and unable to establish and maintain normal sexual relations with adult5. In this context they find children as the most easiest victim for their sexual satisfaction.

 

RAPE, SEXUAL ASSAULT AND DISCRIMINATION AGAINST GIRL, CHILD

 

It is a known fact that a girl child in Indian Society is a curse to her parents. She is denied of love, physical care, proper nutrition, opportunity for education and advancement in life and sometimes killed to avoid financial burden. In other words they were denied of most basic and fundamental rights. In most of the families they are engaged in domestic work like washing, cleansing and even taking care of her brother. Nothing but the conservative thought of this society is the sole factor in degrading their status. They are more or less condemned in prison like environment.

 

An analysis of crime statistics both here and abroad indicates that no age group, social status or blood relationship can guarantee a girl child that she is safe from sexual assault6. She falls the victim of rape at the age of even two months old. In a Bombay's case reported in the year 1993, the rape victim was the age of four months old baby and was killed in the process. In another a father was convicted under S.376 IPC for having sexual intercourse with his eight-year-old daughter. Isn't it then a blood-boiling report that we are digesting in the so called age of human rights? All these indicate that every child is at high risk today.

 

The police statistics reveal the national capital as the center for sex crimes against children. In 1991, there were 167 cases of rape of minors below 16 years of age. By 1994 this number rose upto 319. In the 286 cases registered in 1992 only three were convicted, 42 were cancelled and 11 were acquitted. In 1993 only two were convicted, seven acquitted and 70 were cancelled. In 1994, there were no conviction7.

 

Child prostitution is yet another inhuman and degrading treatment that is being practiced world-wide. Lamentably, the young girls, some as young as seven, are forced in various parts of the country to become prostitutes. When a girl is gangraped if she refuses to entertain clients, the suffering encountered is definitely of a sufficient level of severity for it to fall within the scope of the definition of torture or inhuman treatment. So does the case of a girl kept in the brothel, alone, without being allowed to leave the room, given no food or drink until she complies with the rules of the brothel. Later, once the child has given up trying to oppose her oppressors, the 'entertaining' of several adult customers a day falls within the scope of inhuman treatment. Moreover, the treatment by which a child is forced to have sex with strangers for money, falls within the scope of a "degrading" treatment.

 

According to UNICEF report, one million children are drawn into commercial sexual exploitation every year in the world. The defence of Child International, an NGO had cited 1000 children working as prostitutes in the Netherlands. In a study published in 1996 it underlined the alarming growth of prostitution among the Polish, Romanian, Russian, Czech and Hungarian children. The report also said mostly poor children between the ages of 13 to 18 years are involved in the trade and that very young children are also not spared in this inhuman trade. According to a rough estimate 4,00,000 children in India are engaged in the flesh trade9.

 

Thus the problem of the girl child is another long neglected area, marked by deep-rooted gender bias prevailing in the country which calls for immediate attention. Despite the existence of various constitutional safeguards and a National Policy for Children 1974 to support the girl-child, she is never recognized as separate entity. Naturally, special attention is needed to assure her the right to develop to her full potential. In the action plan for SAARC, emphasis has been laid on survival and protection of the girl child and safe motherhood, overall development of the girl-child and special protection for vulnerable girl children placed in difficult circumstances and belonging to special grounds.

 

For the prevention of female foeticide and infanticide widely prevalent in the country an Act has been passed and efforts are being made to reduce infant morality rate to less than 60 per thousand live births and under 5 morality rate to less than 10 by the year 2000 and to virtually eliminate the gender disparities in morality rate.

 

But all these efforts pale into insignificance when we look at the enormity of the problem of exploitation of the girl-child in flesh trade10.

 

CONTRIBUTORY FACTOR

 

The economic degradation and condition is the main factor responsible for the child abuse and exploitation. The population explosion coupled with economic stagnation has led to more and more people competing for fewer and fewer resources. Struggling families send their very young children out to supplement income and for these children literally every encounter with an adult carries the risk of violence or exploitation.

 

Broken marriages or remarriages are other contributory factors in giving rise to child abuse and exploitation. Step parents seems, in most of the cases merciless on the child and are beaten and abused to death.

 

Only 23 percent of the neglected children, 32 percent of the emotionally abused and 39 percent of the physically injured were living with their natural parents. Marital discord and the 'inability to deal with normal behaviour' are factors often mentioned by social workers as reasons for child abuse11.

 

Commercial sexual exploitation or prostitution of children is promoted and largely encouraged by criminals and criminal networks and that inadequate laws and poor sensitivity of law enforcement personnels also contribute much. Besides the female or girl child of a prostitute finds no other alternative due to social bindings but to join in the trade carried on by her mother. The traditional and conservative thought of society is another important factor for denial of education and giving to an early marriage of girl child.

 

INTERNATIONAL & NATIONAL SAFEGUARDS

 

The problem of child abuse and exploitation is being faced by whole world. In order to tackle the problem various legislation were enacted to safeguard the children from such abuses. An attempt is being made in this paper to have an insight into those legislative measures very briefly.

 

1. International Laws & Protection of Children

 

Being guided by the principle "first call for the children" i.e., the essential needs for children should be given highest priority in the allocation of resources at all times, an International Convention on the 'Rights of the Child" was held in the year 1989 in furtherance of the recognition of the principles enshrined in the Charter of the U.N. which states that "inherent dignity and the equal and inalienable right of all members of the human family is the foundation of freedom, justice and peace in the world". In that Convention a set of international standards and measures intended to protect and promote the well being of the children in society was adopted by United Nations General Assembly on 20th Nov. 1989, which was drafted by the U.N. Commission of Human Rights12.

 

(i) Convention on the Rights of Child, 1989

 

It provides that in all actions concerning children, the best interest of child shall be a primary consideration. A child is provided with the most important and inherent right to life under the convention13. Moreover, the right not to be subjected to arbitrary or unlawful interference with privacy, family, home and correspondence and the right to enjoyment of the highest attainable standard of health is also provided14. State parties are required to take all appropriate measures to protect the child from all forms of physical and mental violence15 and also from economic exploitation16 and performing hazardous work. State parties are also under an obligation to protect the child from all forms of sexual exploitation and sexual abuse17. For these purposes, State parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

 

a) the inducement or coercion of a child to engage in any unlawful sexual activity,

 

b) the exploitive use of children in prostitution or in other unlawful sexual practices,

 

c) the exploitive use of children in pornographic performances and materials18.

 

State parties failing also to protect children against inhuman and degrading treatment or to provide children with remedies against it would therefore, be in breach of its obligation19.

 

Prior to this Convention several other Conventions were also held which stressed to protect the rights of the child. Geneva Declaration of the Rights of the Child, 1924 which was organized under the auspices of the League of Nations is perhaps the first of its kind to discuss the rights of the child. This was followed by Universal Declaration of Human Rights in 1948 which was adopted by the U.N. incorporating with it certain basic rights for the children. The principles mentioned in the "Declaration of the Human Rights" were incorporated in the "Declarations of the Rights of the child" adopted by the General Assembly of the U.N. on 20th November 195920. Some of the rights conferred under this Declaration are right to protection and to opportunities given by law,21 right to grow and develop in health,22 right to education and care,23 right to protection against all forms of exploitation, cruelty and neglect24 etc.

 

A concern for the welfare of the children also finds a place in Arts. 23 and 24 of the "International Convention on Civil and Political Rights", 196625 and in Art. 10 of the "InternationalConvention on Economic, Social and Cultural Rights", 196626. The "U.N. Standard Minimum Rules for the Administration of Juvenile Justice" otherwise known as "Beijing Rules", 1985 also had specific provisions relating to the rights of the child.

 

2. National Laws and Protection of Children

 

In India, large bodies of legislation exist to protect children from cruelty, exploitation, corruption, indulgence in smoking or alcohol, and regulate their employment in various capacities. Before discussing, the legislative measure it is also important to know what provisions are provided under the Indian Constitution for the protection and welfare of children.

 

With the adoption of the Constitution, the Governmental policies directed against the abuse of children. Part IV of the Constitution which deals with Directive Principles of State Policy clearly stipulates in Art.39 that the State shall in particular direct its policy towards securing "the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength27. The Article further directs the State "the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment28. Besides Art. 15(3) under Part III of the Constitution also urges the State to make special provisions for women and children. The rights of a child is also covered under the provisions of Art.21 which deals with right to life which includes right to live with human dignity and free from exploitation. Right against traffic and forced labour is provided under Art.23 of the Constitution and similarly right against hazardous employment is guaranteed under Art.24.

 

Now coming to the legislative measures, as regards procuration of minor girls, for the purpose of sexual exploitation the Indian Penal Code provides that whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, shall be punished29. Further whosoever sells, lets to hire or otherwise disposes of any person under eighteen years of age with the intention that such person to be employed for the purpose of prostitution or illicit intercourse, shall be punished30. Similarly buying minor for the purpose of prostitution etc. has also been declared offence and punishable31.

 

The Juvenile Justice law provides that whoever, having the actual charge of or control over, a juvenile, assaults, abandons, exposes or wilfully neglects or cause to them unnecessarily mental or physical suffering shall be punishable32. The cases of prostitution is attracted under S.44 of the Juvenile Justice Act, 1986. However this Act was amended in the year 2000.

 

For the protection of children against sexual exploitation Immoral Traffic (Prevention) Act, 1986 was also enacted and provides for the rigorous punishment in case a child is procured, induced or taken away for the sake of prostitution33. It also provides for the punishment to anyone who is found with a child in a brothel on the presumption that such person intends to have sexual intercourse with such child34. There are several other punishable provisions under the Act for the purpose of safeguarding the children against sexual exploitation and prostitution.

 

The Child Marriage Restraint Act, is another important legislation which aim at protecting the children from early marriage. It set forth the age of 18 in case of a girl child and 21 in case of a boy child as marriageable age. Besides Hindu Marriage Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act are other important legislation.

 

As for the protection of children against labour, there are several prohibitory laws starting from Children (Pledging of Labour) Act, 1933 to the latest Child Labour (Prohibition and Regulation) Act, 1986 which was enacted to prohibit the engagement of the children in certain employment and regulate the conditions of work of children in certain other employment.

 

CONCLUSION AND SUGGESTIONS

 

Despite all the protective measures, the world today has failed to give recognition to the children to a greater extent. India is no exception to it. It has been facing the problem regarding exploitation of children since the time immemorial. The challenge has been accepted by way of making provisions under the Constitution as well as by enacting various laws but has failed for the reasons of lacuna in it. Unfortunately, there is much more violation of rights also by those who have to safeguard the rights, e.g., the State and its regulatory personnel such as the police and those in charge of remand homes. Moreover even parents are guilty of this, perhaps even in the name of protection. Sometimes law perpetuates more injustice than justice. Thus, where the problem lies is the lack of proper education and economic strength. They are so much inter­related that without one the other cannot be achieved.

 

As against the child labour, the State must enforce compulsory education, the only instrument by which the children are removed from labour force. A campaign should be launched to see that no parents neglect their responsibility of sending their children to schools. It is not their right to live at the earnings of their children. What could be more inhuman treatment than this!

 

And as against child sexual abuse and prostitution, legal intervention may not be helpful especially in cases of child beating and incestuous abuses. To prevent these violences, a non-punitive approach is required. With proper social and psychotherapeutic treatment methods most assaultive parents and child victims can be helped. Besides a separate institution may be established mainly for the children who work as sexual labourers or prostitution and give proper guidance, safe custody ie., of women having high morale and dignity and human rights education.

 

Thus considering all the circumstances the following suggestions are being made in order to fight with child sexual abuse and exploitation:

 

1. Government's concentration on increasing the economic strength of the country.

 

2. Immediate and effective laws against the culprits and proper rehabilitation of victim.

 

3. A sub-divisional campaign to be launched to inspect that no parents are neglect in sending their children to school and giving it power to pick up the children from any street or workplace and giving them in rehabilitation centers.

 

4. Heavy compensation to the victims of sexual abuse, as of their right.

 

5. Criminals should not be set free unless the case of child abuse is pending and speedy trial of the matter should be given more and more importance.

 

6. A full fledged National Commission should be set up to implement the rights of the child giving it power to decide the matter suo motu.

 

7. Laws to protect the children should be effectively and strictly implemented and administration should take up stringent measures to punish the violators.

___________________________________________________________________________

1. Dr. M. Sammaiah, "Children as Victims of Crime -- The Denial of Justice", Crl. L.J.,2001 (Journal), p.52

2. Aravind Narain, "Child Sexual Abuse: Issues relating to Disclosure and Best Interest of the Child", Lawyers. Collective, 2000 April p.15

3. Shriniwas Gupta, "Sexual Violence on Children - A socio-legal Assessment," CILQ 1996 Vol.IX:IV.p.433

4. Subash Chandra Singh, "Growing Problem of Child Abuse and Neglect", Crl. L.J. 1994 (Journal) p.83

5. Subash Chandra Singh "Growing Problem of Child Abuse and Neglect", Crl. L.J. 1994 (Journal) at p.83

6. Ibid, at p.84

7. Supra note 3 at p.429

8. Caroline Lalon, 'Child Prostitution & Rights of the Child", Lawyers Collective, 1995 Vol. 10.p.15

9. Supra note 7 at p.430

10. Supra note 1 at p.53

11. Supra note 9 at p.434

12. Sukanta Ku.Nanda, "Right of the Child -- An Assessment", IBR 1998. Vol.25 (4) p.l46

13. Under Art.6 of the Convention

14. Under Art.24 of the Convention

15. Under Art.19 of the Convention

16. Under Art.32 of the Convention

17. Under Art.34 of the Convention

18. Ibid

19. Art.37 of the Convention

20. Supra note 12. p.147

21. Principle 2 of the Declaration of the Rights of the Child

22. Principle 4 Ibid

23. Principle 5 Ibid

24. Principle 9 Ibid

25. Art.23(4) of ICCPR provides that state parties shall take appropriate steps to ensure equality of right and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Art.24 provides that every child shall have without any discrimination, the right to measures of protection as well as right to acquire a nationality

26. Art.10(3) ICESCR provides that special measures of protection and assistance should be taken on behalf of all children and young persons and be protected from economic and social exploitation. Their employment in work harmful to their health or morals or dangerous to life should be punishable by law.

27. Art.39(e) of the Constitution of India

28. Art.39(f), Ibid

29. Section 366-A Indian Penal Code

30. Section 372, Ibid

31. Section 383, Ibid

32. Section 41 of Juvenile Justice Act, 1986

33. Section 5, Ibid

34. Section 6(2) and (2A), Ibid

 

Ten Commandments of 'Justice'

 

(By K. Divakaran Nair, Advocate)

 

Justice system is the highest gift of God to man given for solving disputes peacefully. In olden days, the rival claimants were asked to fight physically. The decision was given in favour of the victor, and against the vanquished. Later on, this question was found to be unsatisfactory. It was substituted by the 'oath system'. The party was asked to take oath before religious institutions. That system also was found unsatisfactory because a dishonest man could easily win by taking a false oath. The next system is adjudication by an impartial authority. Now that job is performed by the Courts and Tribunals.

 

When the justice system was introduced, the goddess of justice gave Ten Commandments, 5 to the Judges, and 5 to the litigants. It is worthy to note these commandments. First I will deal with the 5 commandments to the Judges.

 

The First commandment to the Judges is

 

"Fiat justitia ruat coelum".

This means that justice shall be done even if the celestial bodies (heaven) fall. Justice ordained: "let right be done though the heavens fall". The spirit of his commandment is included in the oath which a Judge has to take before he enters upon his office which inter alia affirms that "I will perform the duties of my office without fear or favour, affection or ill-will". One cannot visualize a more sublime affirmation. This commandment is the bedrock of the faith of litigants in judiciary.

The Second commandment is:

 

"Equitas sequitur legeme"

 

This means that when the law comes into conflict with equity, equity shall prevail. More importance is given to equity. This is based on the conception that there are two kinds of rights viz., legal right and equitable right. For claiming legal right, some law should be pointed out as the basis of that claim. But equitable right is not based on law. It is a concession given by justice on equitable consideration. Expressions such as "fairness requires" and "in the interest of justice", are reflective of the supremacy of equity over law. A person can claim legal right. But he has to beg for equitable right. Conscience is the cause of this concession. Legal rights are decided by the heads, while equitable rights are decided by the hearts. This is a somewhat difficult field. In England, formerly there were two separate Courts, one for administering legal right and the other for administering equitable right. If the case relates to legal right viz., a right conferred by law, the litigant has to approach the Court of law. But if he has no support of any law, he has to approach the Court of equity known as Court of Chancery. This position continued till 1873 in which year Judicature Act was passed bringing about a fusion of law and equity. But in India, there are no separate courts for administering these two systems of justice. Indian Courts are Courts of law as well as Courts of equity. Courts have discretionary powers. In the exercise of discretionary powers, the prime consideration is equity. This is reflected in S.20 of the Specific Relief Act, 1963. That section says that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so. The circumstance of a particular case may be such that strict adherence of law may result in failure of justice. In such case, the maxim "Equitas Sequitur Legeme " is applicable.

 

The Third commandment is:

 

"Audi alterem partem"

 

This means that before passing any order affecting the right of a person, he must be given an opportunity of being heard. No man should be condemned unheard.

 

The Fourth Commandment is:

 

"Salus populi est supreme lex"

 

This means that the welfare of the people is the Supreme law. This is also a difficult field. Judicial verdict should aim at the welfare of the general public. When individual right comes into conflict with the interest of general public, importance is given to the latter.

 

The most important Commandment to the Court is the Fifth viz.,

 

"Actus curiae neminem gravabit"

 

This means that an act of Court shall not prejudice anyone. There is no higher principle for the guidance of the Court than this. In passing any order the Court has to be very careful that by that order no one shall be prejudiced. That does not mean that Court shall refrain from punishing the guilty. The very function of the Court is to award appropriate punishment for the guilt established. But the punishment shall not be disproportionate to the guilt. That is why in the symbol the balance appears.

 

If these commandments are meticulously followed, there will be perfect administration of justice. If there is failure to adhere to any of these commandments, the result will be failure of justice.

 

Now let us see what are the Five Commandments to the litigants.

 

1. "Vigilantibus non dormientibus jure subveniunt" (Laws come to the assistance of the vigilant not the sleepy). This commandment says that the litigant must be vigilant. He must seek remedy before the appropriate forum at the appropriate time. The law of limitation is based on this commandment. The litigant has to approach the Courts within the period of limitation prescribed by law. In certain matters, this rule is very strict. For example, for filing a suit, there is no laxity of this rule. If the period of limitation has expired, the suit will not be entertained for any reason. But in the case of an appeal, the Court has the discretion to condone the delay. In the case of filing execution petition also the law is very stringent. Usually delay is condoned under S.5 of the Limitation Act. That section itself says that delay cannot be condoned regarding application filed under 0.21 of C.P.C. That is why it is said that the law is very stringent regarding law of limitation with regard to execution petition. As already said there is no excuse for the delay in filing original suits. The litigants have to be very vigilant. Of course, there is a remedy for every malady. "Ubi Jus Ibi Remedium " (where there is right, there is remedy). But this remedy has to be sought vigilantly. S.27 of the Limitation Act says that at the determination of the period limited for instituting a suit for possession of any property, the right to such property shall be extinguished. From this it is crystal clear that the litigants have to be vigilant in seeking redressal of their remedies.

 

2. "Ex dolo malo non oritur actio" (No right of action can raise out of own fault). A litigant shall be very conscious of this commandment. When you approach a Court of law, you must be as honest and upright as approaching a temple. A Court is the temple of justice. You cannot expect assistance of the goddess of justice when you approach the Court after committing fraud yourself.

 

3. "In pari delcito potior est conditio defendentis" (Where both parties are equally at fault, the condition of the defendant is more favourable). This means that when both parties are at fault, the Court will lean towards the defendant. This is a consequence of the Second Commandment which says that no action will arise out of own fault or fraud.

 

4. "Nemo debet bis vexari pro una et eadem causa" (No one shall be vexed by a litigation twice in respect of the same cause of action). The rule of Res judicata contained in S. 11 of Civil Procedure Code is based on this commandment. When a litigant approaches a Court, he must present all his cases in respect of that cause of action in that litigation itself. Piecemeal litigation is not permissible. This is the position with regard to criminal cases also. S.300 of the Criminal Procedure Code, 1973 says that a person once convicted or acquitted shall not be tried for the same offence again. (S.403 of the old Criminal Procedure Code) This rule is called Autrefois Acquit and Autrefois Convict. This is a valid defence for a second criminal prosecution for the same offence. This commandment is reflected in R.2 of 0.2 CPC which says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Suppose the rent is in arrears for 3 years and a suit is filed for realization of the arrears of rent for the second year only. Then that plaintiff cannot file thereafter a suit for the rent of the first year or the third year.

 

5. "De minimis non curat lex" (The law does not concern itself with trifles). The litigants should be conscious of this commandment also. They shall not rush to the Court for petty matters. This is the position with regard to criminal law also as contained in S. 95 of the Indian Penal Code which says that nothing is an offence by reason that it causes any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

 

Nowadays there is a complaint that litigants do not get relief from Courts. They do not know that the reason lies in themselves. In the majority of the litigations nowadays these five commandments are disobeyed by the litigants. The consequence is inevitable. Therefore it is very important that before a litigant proceeds with legal steps, he must make a retrospection in himself to satisfy whether his proposed litigation is in obedience to these commandments. If the answer is 'yes', he is sure to win. There is no meaning in finding fault with the Court when the litigant himself has disobeyed these commandments. If the judges and the litigants do obey the above stated commandments of goddess of justice, administration of justice is sure to produce the expected result.

 

The Locus Standi of The Third Party or No Party in

Withdrawal Proceedings Under S.321 Cr.P.C.

 

(Aboobacker v. State of Kerala- 2003 (1) KLT P. 42 -A Critique)

 

(By T.P. Aboo, Advocate, Manjeri)

 

S.321 Cr.P.C. empowers the Public Prosecutor or the Asst. Public Prosecutor in charge of a case to withdraw all or any of the accused from prosecution with the consent of the Court. This section is silent on the grounds on which the Public Prosecutor can withdraw the prosecution. But the Apex Court through some land mark decisions had laid down the legal principles in clear terms for filing petitions by the Public Prosecutor for withdrawal, and also for the Court to give consent. The paramount consideration according to settled law, is 'Public interest' and the 'larger interest' of the administration of justice.

 

In Balwant Singh v. State of Bihar, 1997 Supreme Court (Criminal) 633 - a Division Bench of the Supreme Court pointed out the difference between "Public justice" and "Legal justice". In para.2 of the ruling Krishna Iyer, J. observed "of course interest of public justice being the paramount consideration, they may transcend and over flow the legal justice of the particular litigation. For instance communal feuds when may have been amiably settled, should not re errupt on account of one or two prosecution pending. Labour disputes which may have been given raise to criminal cases, when settled might probably be another instance, where the interest of public justice in the larger connotation may perhaps warrant withdrawal from the prosecution. Other instances may also be cited where public justice may be served even apart the merit of the case."

 

In the land mark decision, Shivanandan Paswan v. State of Bihar (AIR 1987 SC 877), the Supreme Court elaborately dealt with all aspects of the withdrawal from prosecution and held that the judicial function implicit in the exercise of the judicial dispensation normally mean that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an excuse to interfere in the administration of justice for illegitimate reason on purpose.

 

The purpose of this article is not a detailed examination of the grounds on which prosecution is withdrawn by the Public Prosecutor. These are, by now, settled by judicial pronouncements. My intention is to high light the legal aspect of the recent ruling of the Honourable High Court of Kerala in Aboobacker v. State of Kerala 2003 KLT (1) 42 - Rajendra Babu, J. decided three points of law in the above decision.

 

(a) that only the Public Prosecutor in charge of the case can file the withdrawal petition under S.321 Cr.P.C.

 

(b) that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised.

 

(c) that the impleading of the de facto complainant is legal and he is entitled to be heard when the petition for withdrawal is considered.

 

Though in S.494 of the old Cr.P.C. corresponding to the S.321 of new Cr.P.C, there was no provision to bar the Public Prosecutor not in charge of the case, from applying for withdrawal. The Supreme Court in State of Punjab v. Surjith Singh (AIR SC 1214) had ruled that only Public Prosecutor in charge of the case is entitled to ask for withdrawal. On the basis of the * recommendation of the Law Commission the words "in charge of the case" was incorporated in S.321 Cr.P.C. thereby giving a statutory recognition for the Supreme Court ruling. The petition for withdrawal in Aboobacker's case (supra) was filed by the Prosecutor not in charge of the case. So the consent was refused and the order was confirmed by the High Court.

 

The second ground, that the Public Prosecutor must act in good faith, that the withdrawal must be for advancing the cause of justice and not to stifle it, is also well settled position.

 

The third ground that the de facto complainant has a right to be heard in withdrawal proceedings, is a debatable one and it creates practical difficulty for the subordinates courts in its application.

 

In para.7 of Aboobacker's case (supra) the Honourable Judge observes, "the learned counsel for the revision petitioners in Criminal M.P. 1309/02 submitted that the de facto complainant was not entitled to be impleaded or to be heard. Reliance was placed on two decisions of the court in Joy Joseph v. Gopinathan 1999 (1) KLT SN 37, and Razack v. State of Kerala (2000 (3) KLT 686). In the above two decisions, the learned single Judges of this Court held that when the Public Prosecutor applies for withdrawal, from prosecution, the de facto complainant or the charge witness, has no locus standi to challenge the exercise of the discretion by the Public Prosecutor to withdraw from prosecution. I respectfully disagree with the above view taken by the learned single Judges. The Supreme Court in M/s. J.K. International v. State of Government NCT Delhi and Ors, JT 2001 (3) SC 130, while considering the locus standi of a private party to be impleaded in criminal proceedings held:

 

''An aggrieved person is not altogether to be eclipsed from the scenario when the criminal court takes cognisance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of the one or more individual that they were wronged by the accused by committing offences against them". 2003 (1) KLT 42.

 

The learned Judge cited Abdul Kareem case and J.K. International case to substantiate the point that when the de facto complainant or third party seeks permission for himself, of being heard the court cannot deny the same and he has to be heard.

 

It is submitted that these two rulings "Kareem's case" and "J.K. International" cases are not authorities for the proposition that the de facto complainant or third party has right of audience under S.321 proceedings. The decisions of the Apex Courts and a catena of decisions of Kerala High Court and various other High Courts support the contrary view.

 

In J.K. International's case Thomas, J. of the Supreme Court delivered the judgment for the Division Bench:- A Writ Petition was filed before the High Court for quashing the criminal proceedings pending against the accused. The de facto complainant was not made a party. It was in the appeal against the High Court order allowing the petition that the Honourable Supreme Court observed in para.7 of the judgment, "An aggrieved person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of offence based on the report submitted by the police."

 

In J.K. International's case the facts are that the appellant filed a complaint before the police alleging that the respondent committed offences of criminal breach of trust and cheating. The FIR was registered on the complaint filed by the appellant. Respondents then moved the HC in a Writ Petition for quashing the FIR and the appellant was also allowed to be impleaded in that Writ Petition. For some reasons the said Writ Petition was not followed up by the respondents and it was subsequently withdrawn. The police, after investigation, filed a chargesheet against respondents for offences U/s. 402,406 and I20B of the IPC and the court issued process to the respondents requiring them to appear before the court. At that stage respondents filed the petition before the High Court praying for quashing the criminal proceedings pending before the Magistrate Court pursuant to the aforesaid charge sheet filed by the police. In the Writ Petition the appellant complainant was not made a party and therefore a petition was filed in the HC for impleading the appellant complainant as a party.

 

Held, it may not be that complainant should have been made party. But the right of complainant to be heard does not cease once cognizance is taken and he can thereafter continue to participate in proceedings as if he were aggrieved party. When the complainant wishes to be heard when the criminal proceedings initiated at his behest are sought to be quashed, it would be a negation of justice to him if he is forceclosed from being heard even after he makes a request to the court in that behalf.

 

The scheme of Cr.P.C. was also examined by the SC. Provision of Ss. 301 & 302 according to the SC would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police.

 

In Takur Ram AIR 1966 SC 911 the SC said "in a case which has proceeded on a police report, private party has really no locus standi........The criminal law is not however to be used as an instrument of wrecking private vengeance by an aggrieved party who according to that party has caused injury to it. Barring few exceptions in criminal matters, the party who is treated as aggrieved party is the State, which is the custodian of social interest, of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interest of the community to book". Takur Ram's case is still good law. These few exceptions are specified in Cr.P.C. They include S.173, S.301, S.302 and S.482 Cr.P.C. stretching the scope of these exceptions beyond what is meant by the Parliament will be against the rules of the interpretation of the statutes.

 

The view expressed by Thomas, J. in "J.K. International" case (supra) deserves detailed study. S. 301 deals with the private pleaders instructed by de facto complainant in cases wherein Public Prosecutor or A.P.P. is appearing. The section says that in such cases the Public Prosecutor shall conduct the case and the private pleader shall act under the direction of Public Prosecutor. The written agreement to be filed by the pleader with the consent of the . Court is subject to the direction.

 

S.302 Cr.P.C. deals with he power of Magistrate to permit any person other than a police officer below the rank of an Inspector, to conduct the prosecution. This section also provides that Advocate General, Public Prosecutor and A.P.P. can conduct prosecution without permission of the Court. So when Advocate General or Public Prosecutor appears without permission the Court has no power to permit any other person to conduct prosecution. Thus S.301 and 302 restricts the power of third person to interfere in the prosecution of cases.

 

In Bhagavant Singh v. State (supra) the SC pointed out that informant who had taken the initiative in lodging the first information report is interested .in the result in the investigation. And hence the law requires that the action taken by the officer in charge of the police station on such FIR should be communicated to him.

 

This observation of SC was made with reference to S.173(2) Cr.P.C. which recognises the rights of the informant at the stage of investigation. This decision refers to the precognizanee stage of the case; under Chapter 12 from S.154 Cr.P.C. to 173 Cr.P.C. - information to police and the power of investigation. Thus J.K. International case stands on a different footing.

 

In Abdul Kareem v. Slate of Karnataka, the facts are that the case against Veerappan the forest brigand under TADA was sough1, to be withdrawn by the State of Karnataka. This petition for withdrawal was filed in the wake of abduction of Rajkumar, she Cine Artist on a policy decision taken by the Government of Karnataka to meet the demands of Veerappan to release the hostages. The petition was opposed by Abdul Kareem, lather of Shakkeel Ahamcd the illfated S.I. of Police who was shot dead by Veerappan's men. The special court granted, consent for withdrawal. This order was challenged in appeal by Abdul Kareem in the SC. The SC set aside the order of consent given by the special court. - 2001 Crl J. 151.

 

In page 47 the Hon'ble Judge of Kerala High Court in Aboobacker 's case referred to the following statement of SC "In fact the SC heard the father of one of the victims in respect of the matter under S.321 Cr.P.C. Sri. Abdul Kareem who approached the SC was none other than the father of a victim at the hands of the accused whose case was sought to be withdrawn and the SC accepted his contentions also. Thus, an aggrieved person was heard by the Supreme Court while considering the application for withdrawal from prosecution under S.321 Cr.P.C. Hence the argument advanced by the learned counsel for the revision petitioners that the de facto complainant who is a stranger, is not entitled to be heard, cannot be accepted."

 

By virtue of Art. 141 of the Constitution Supreme Court decisions are binding on all subordinate courts. A decision is only an authority for what it actually decides. Essence of a decision is its ratio. When we examine the various decisions of Supreme Court it is evident that Supreme Court has not laid down a law, that the de facto complainant or a third party, or no party can participate in 321 proceedings when the matter is being taken up by the subordinate court.

 

In Shivanandan Paswan '$ case AIR 1987 SC 877 Khalid, J. for the majority said, "S.321 Cr.P.C. is a step by way of composition of the offence by the State. The State is a master of litigation in criminal cases, it is useful to remember that by the exercise of functions u/s. 321 the accountability of concerned person or persons does not disappear. A private complaint can be filed if the party is aggrieved by the withdrawal of prosecution, but running the possible risk of a suit of malicious prosecution, if the complaint is bereft of any basis."

 

In State of Punjab v. Surjit Singh, AIR 1967 SC 1214 the SC observed as follows: "It is for the Public Prosecutor to decide whether he could continue or withdraw, the power cannot be subject to the wishes of a third person even though he might be interested."

 

These observations of the SC must be borne in mind when the principles laid down in J.K. International's case, and Abdul Kareem's case are applied. In J.K. International case with a support of Bhagavtmt Singh's case (supra) the Supreme Court was pinpointing...............the specific role of de facto complainant in criminal prosecution. In Rajendrakumar v. State (AIR 1980 Supreme court 1510) (The Fernandez's case) the Supreme Court formulated 8 principles by way of guide lines to be applied when petition under S.323 Cr.P.C. is dealt with. They are

 

(a) the prosecution is the responsibility of the executive

 

(b) withdrawal of the prosecution is an executive function

 

(c) Discretion is that of the prosecutor, he cannot surrender it

 

(d) Government can suggest but not compel the prosecutor

 

(e) Paucity of evidence is no ground for withdrawal but includes larger aspect of public justice

 

(f) Court's duty is not re appreciate the ground but consider whether Public Prosecutor acted freely. Third party participation in withdrawal proceedings are to be scanned through these principles laid down by the Apex Court.

 

In Achuthanandan v. Balakrishna Pillai P., 1994 (2) KLT 325 Supreme Court did not decide the question whether the third party can interfere at the time of initial proceedings under S.321 Cr.P.C. Varma, J. (as he then was) delivering the judgment for the 3 Bench Court observes in Para. 9 "High Court also took the view that the leader of opposition in the State Assembly who had appeared to oppose the withdrawal of prosecution, had no locus standi in the matter. We need not go into the question of locus because no learned counsel appearing before us disputed that the appellant who is a acknowledged public figure of the State has sufficient locus in the matter." In State of Kerala v. Balakrishna Pillai (1993 (1) KLT 473) Sankaran Nair, J. makes a detailed study of the development of public prosecution. In Para 18 of the decision the Hon'ble Judge puts it, "allowing third parties to enter the arena of criminal justice would be to destroy institutional perspectives that have been built over the years. The prestine criminal law was "an eye for an eye" - it was private vengeance". In later years matters changed and it lead to a situation which Lord Chief Justice Campbell described as follows:

 

"The Criminal Law is most shamefully perverted to serve private purposes". In this case the High Court allowed a revision filed by the State against the judgment of the Special Judge (Edamalayar Investigation, Ernakulam) refusing consent. Though this order of the single Judge of Kerala High Court was set aside on merit by the Supreme Court the observations made by Sankaran Nair, J. are illuminating.

 

In Saramma Peter v. Kerala -1991 (1) KLT 881 another single Judge of Kerala High Court - Tulasidas, J. - decided that even a Food Inspector who detected the case and had filed the compiaint, had no locus standi to withdraw the food case when the Assistant Public Prosecutor is in charge of the case. Though Food cases are in the nature of private complaints, the learned Judge cited various rulings of other High Courts in support of his view.

 

In "Shivanandan Paswan case", "Achuthanandan case", and "Kareem case" the Supreme Court had heard third parties in its special jurisdiction. Shivanandan Paswan and Achuthanandan were leaders of opposition. Kareem was the father of the victim. But what is decided by the Division Bench of Kerala High Court in Balagopal v. Kerala is authority in such cases, "a case is only a authority for what is actually decide and not what may seem to follow from it." 2000 (1) KLT 120. The learned Judges relied on AIR 1983 Supreme Court 1246 and AIR 1985 SC 218 for their finding.

 

What is canvased by me in this article is that a decision is binding on subordinate courts under article 141 of the Constitution if the Apex Court has declared the law, logical conclusions are out the purview of the article. Supreme Court even hear amicus curiae in certain cases or it may allow to compound an offence under S.307 in CPC as reported in a Supreme Court case 1982 SC 149. Under Cr.P.C. a de facto complainant can file a criminal revision against acquittal. But an appeal can only be filed by the Public Prosecutor. So is the case with withdrawal petition under S.321.

 

The Public Prosecutors have to face now the lawyer of the accused as well as the lawyer of de facto complainant when petition for withdrawal is heard. In reality only the Public Prosecutor can enlighten the court regarding public justice whereas the private lawyer is concerned only with the legal justice which is outside the ambit S.323 Cr.P.C.

 

As we have now conflicting decisions by the Kerala High Court on the point of third party participation the subordinate Judges are compelled to sit in judgment over the rationality of the decision of their superior courts, and they are to pick and choose out of these rulings. This is not a pleasant task. The way out is pointed out by the Apex Court in its recent ruling, "when a Bench of coordinate jurisdiction disagree with another Bench of coordinate jurisdiction on a question of law, the matter should be referred to a larger Bench for the resolution of the issue." (2001KLTSN70).