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 Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice R. Rajendra Babu

\·IÄsImIp \ndbs«

PohnX Ime¯ntesd \msfms¡bpw

\otbm Ign¨Xo tZhmeb¯nembv.

C¶n\n \obpw ]Snbnd§oSsh

CÃnà s\m¼c¯n¶nà Imcyhpw.

Xsâ a\xkm£n sNmÃnb a«nembv

sN¿m³ IgnªXn \otbm IrXmÀ°\mw.

\n¶nembv AÀ¸nXamsbmcp ZuXy§Ä

FÃmw anIthmsS sNbvXp XoÀs¯¶Xpw.

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km[mcW¡mcnse¯n¨p \oXnbpw.

\nsâ alXzw Ipdn¡pamsds¸mgpw

\n¶nse tkhI³ \ns¶ ISm£n¨p.

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h¶p`hn¨Xpw ]qÀÆkpIrXamw.

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amäpIq«nSp¶p \n¶psS hyànXzw.

h¶hgnIÄ ad¶p t]mImsXbpw

F¶pw anIthmsS Im¯pkq£n¨p \o.

Imew Ignbnepw ambnsÃmcn¡epw

BbXnepImw alXzasXs¸mgpw.

]n¶nte¡mbn Xncnªp t\m¡oSsh

DImw A`nam\w F¶papImbnSmw.

\n¶psS IÀ½]Y¯nembv  F¶pta

\nsâ kJn \n\t¡In shfn¨hpw.

\n¶psS IÀ½§Ä t{ijvTam¡oSphm³

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a¡tfm \ÂIn A`nam\sa¶Xpw

\nsâ kpIrXasXm¶psImImbnSmw.

am\h\·¡mbv taenepw H¯ncn

Imcy§Ä sN¿m³ IgnbpamdmIs«.

F¶pw I\nbs« Cuizc³ \n§fnÂ

\·IÄsImIp \ndbs« PohnXw.

The Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice N. Krishnan Nair

\osbsâ kl]mTn

HmÀ¯nSp¶pthm "IrjvWm' A¶p\mw Hcpan¨p

F¯nbm emtImtfPn \nbaw ]Tn¡phm³

F{Xtbm kwhÕcw Ignªpsh¶mInepw

C¶se Ignªt]m HmÀ¯pt]mIp¶p Rm\pw.

_mÀ«¬ln emtImtfPn F¯n\msamcpZn\w

BbnSmw Hcp]t£ hn[nX³ \ntbmKamw.

Fs´Ãmw IpkrXnIÄ F{Xtbm XamiIÄ

s]m«n¨p IgnªntX B \Ã Zn\§fnÂ.

cIp hÀj§Ä \½Ä ]n¶n«XdnªnÃ

F{Xtbm thK¯nembv Zn\§Ä IS¶pt]mbv.

\nba_ncpZw \mw FSp¯sXmtcZn\w

k¶[p e`n¨tXm Hcpans¨mcpZn\w.

HmÀ¯nSpsa¶mIntem AÛpXw kv^pcn¨nSpw

hn[nX³ \ntbmK§Ä F{Xtbm hnNn{Xamw.

{]mIvSoÊp XpS§n \mw Hcpans¨mtcZn\w

Gsd \mÄ Ignªnà \½tfm {it²bcmbv.

A¶p Rm³ ]dªntà HmÀ¯nSp¶pthm \obpw

\½tfm Ccp¶nSpw Unhnj³_©nÂXs¶.

D]cn]T\hpw Ignªp ]Tn¸n¡m³

t]mbntX F¶mInepw hoIpw \o Xncns¨¯n.

\n¶psS A²ym]\PohnXw \n\t¡In

F{Xtbm {]KÂ`cmw injysc ktlmZcm!

Ahcn ]ecn¶p \oXn]oT¯n hmgvsI

A`nam\n¡m³ \n\s¡{Xtbm hI \ÂIn.

hoIpw \o Xncns¨¯n {]mIvSoÊp XpS§sh

Cuizc³ \n\t¡In PnÃmPUvPnbmw tPmen.

H¶pIn bmZrÑnIw Asæn ssZthÑbpw

Hcpans¨mtcZn\w BIphm³ IgnªXpw.

F¯n\mw kwØm\¯n³ ]ctam¶XØm\w

Iev]nXamImw ]t£ BbXpw HtcZn\w.

C¶nXm ]ncntbI t\cambv At¸mtg¡pw

H¶n¨p ]ncnªnSmw BlvfmZNn¯t¯msS.

kvt\ln¡psa¶mIntem Bbncw aS§p \oþ

kvt\ln¡pw, shdp¡pIn BbXpw AXpt]mse.

DIXp \n\¡ev]w ap³ipWvTn F¶mInepw

DcpIpw aªpI«bmbnSpw DS³Xs¶.

\n\¡mbv Hcp¡nb thZnIsfÃmwXs¶

\¶mbn Ifn¨p \o Ac§p XIÀ¯ntÃ!

C¶n\n HgntbWw Øm\asX¶mInepw

Jn¶X tXm¶otSI Imcyta hcp¶nÃ.

\n¶neÀ¸nXamb IÀ½§sfÃmwXs¶

`wKnbmbv sImsI¯n¨p kvXpXyÀlamIpw hn[w.

Cuizc ImcpWy¯m \n\¡p e`n¨tXm

kÂkJn, kÂk´Xn BbXpw alm`mKyw.

\n¶psS kÀtÆm·pJ DbÀ¨bXn³ ]n¶nÂ

\n¶psS a\kzn\n AhÄX³ Ic§fmw.

\osbsâ "kl]mTn' t\cp¶p \n\¡p Rm³

BbpÊpw, BtcmKyhpw kÀÆku`mKy§fpw.

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).

To Hang or Not to Hang?

(By Shri M.R. Hariharan Nair, Former Judge, High Court of Kerala)

Hectic debates on the above question preceded the execution of Dhananjoy Chatterjee a few weeks back. Even after the President rejected his mercy petition, the Supreme Court had to look into the question once again and it confirmed the punishment. Dhananjoy had been convicted for committing the offence of rape and murder of a school girl. A heinous offence indeed! But then two questions would still emerge. Is capital sentence found justifiable by the society of the 21st century? Assuming it does, should it be by the primitive, if not brutal, method of hanging by the neck?

No doubt the victim, his relatives and the society at large should get justice. Capital sentence takes in an element of retribution. Perhaps it is intended more to ensure that the convict will no more be able to do harm to the society. But then, are there not other ways of ensuring it? Why not he suffer imprisonment for life in the literal sense? The recommendation of Justice Malimath Commission that "in respect of offences for which death is a punishment, the sentence of imprisonment for life without commutation or remission be prescribed as an alternative sentence" and that "suitable amendments shall be made to make it clear that when such punishment is imposed, the Government will be precluded from commuting or remitting the sentence" are relevant in this context. Articles 72 and 161 of the Constitution which provide for remission of sentences can perhaps be left as they are because even capital sentence already comes within the scope of the said provisions which enable the President and Governors respectively to commute and remit sentences. If that is not sufficient, even further amendments to the said Articles to take away imprisonment for life without commutation or remission out of their purview can be thought of.

My memory goes back to one of my routine monthly jail visits, made in the Ninentees to one of the Central Prisons of the State in my then capacity as Sessions Judge of the District. An indelible memory which still haunts me and perhaps will continue to disturb me for the rest of my life. It was this way. After meeting the prisoners housed in all the blocks of the prison, I was returning to the office room of the Superintendent to record my observations and to verify the statutory Prison Registers. A loud call then stopped me. Somebody was calling out: "Sir, please do not leave without meeting me too". That was from one of the 2 or 3 rooms in a small building where prisoners under solitary confinement and condemned prisoners were to be housed. ('Condemned", here, means condemned to face execution shortly). The Prison Authorities who were accompanying me informed me that the cry was from the solitary inmate there; one nick named by the Press as 'Ripper'. I approached him. He fell at my feet and with tears rolling down his cheeks and still wheeping like a child, he implored repeatedly "Sir, I have been convicted. I am prepared to continue here until my last breath; I assure you that; but for heaven's sake, ask them not to kill me. Please leave my life to myself. The Officers beside me told me that his Mercy Petition to the President had already been dismissed by then and that he was awaiting the decision on yet another similar petition already presented by his mother. He implored me to take some step on my part to get the capital sentence commuted to imprisonment for life, what, perhaps Justice Malimath later on called imprisonment for life without commutation or remission. But what could a Sessions Judge do in the matter except to passify him and to advise him to apply for commutation once again? Later Press Reports revealed that he was certified as having been hanged until death within a month or so after the said incident.

The Ripper taught me one thing; that life is the dearest possession an ordinary person aspires to maintain and that he would surrender anything in exchange therefore. A psycho killer who anticipated his death in a few days was no exception. A question certainly arises. If man cannot create life, why not he atleast ensure that he does not take away the life of another? Should any one be killed by the State as an act of retribution?

Now the second aspect. India appears to be one of the very few countries which resorts to the primitive method of hanging a convict to death. If he is bound to suffer death, why not he be allowed to take it without pain and too much of agony? The electric chair has given way to the syringe in many countries. What is injected is not the poison at the first instance. He is first put to sleep and then anaesthetised through injections. Only when he is out of all his senses the lethal shot is given. Perhaps a procedure for ensuring death in the most peaceful manner that even the propounders of Euthanesia would ask for it. This way the convict can be allowed to leave the world without the slightest feeling of pain. According to me such a reform which can be brought in without any financial commitment and with just a humane approach and appropriate amendments to the Constitution, Penal Code, Criminal Procedure '"'ode and the Prison Rules should have been adopted in India long back. Should we wait for International Covenants and Treaties to bring this up? Certainly not. The earlier the changes are brought, the better it is for all concerned.

Justice Malimaih Commission has not touched upon the above aspect, though as item 105 of Recommendation No:14 it suggested prescribing new forms of punishments wherever appropriate, It should be possible for the Government to give sufficient consideration to this aspect of L-aw Reforms as well along with the prospective criminal law reforms. The Resolutions passed by legal bodies and legal fora (Bar Associations and Bar Councils included) will certainly go a long way in accelerating the consideration of the required changes.