Critique to Madhavan V. Narayandas - 2002(3) KLT 493

(By G. Krishna Kumar, Advocate, Ernakulam)

This Article is intended only to share my thought on the decision rendered by the Hon'ble High Court in Madhavan v. Narayandas, 2002 (3) KLT 493 by which it was held that the High Court will have to invoke the Revisional powers under S.115 of CPC only subject to the mandate of the amended proviso and further held that Revision will not lie against an order except if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings in which such order is passed.

With utmost respect to the learned single Judge it is pointed out that the Learned single Judge has not considered that the proviso to 115 is not newly added and mere deletion of the Proviso (b) to S.115 the High Court's jurisdiction will not affect in revision to interfere with non final orders which if allowed to stand would even if occasion to failure of justice or cause irreparable injury to a party.

The questions discussed herein are (1) Whether the High Court's hands are tied due to the new amendment to interfere with non-final Order even if it causes failure of justice or cause irreparable injury to a party?

(2) Whether the Proviso in a Section can be interpreted so as to defeat the Section itself?

Point No. 1:

The Hon'ble High Court in Para 10 of the judgment held that "The Legislature did not, chose to delete the existing proviso and introduce a fresh proviso. It must be assumed that compelling reasons were there to report to this exercise." But in fact the Proviso (a) and (b) to the section were not in the Code and it was added by Act 104 of 1976. As per amendment the Legislature deleted the Proviso (b) and Proviso (a) was not newly introduced and it was in existence since 1976 Amendment.

Revisional powers of High Court are visitatorial and supervisory in nature. If any court below passed an illegal order the High Court can correct such order by exercising the Revisional powers and High Court cannot shirk its duties in exercising Revisional jurisdiction by saying that only final orders stricto senso will be revisable. Latin maxim 'Actus curie Neminem Gravabit' which says that an act of a court shall prejudice none. By applying this principle, the Honourable High Court of Kerala in Gopala Vijayan v. Raveendran (1999 (2) KLT 47) held that "inherent powers of the court can be exercised where a party is injured by the Act of court and further held that the court is justified in the interest of justice to invoke inherent powers under S.151.

The Apex Court in a landmark decision Jang Singh v. Brij Lai (AIR 1966 SC 1631) speaking through His Lordship Justice Hidayathulla held that "there is no higher principle for the guidance of the court than that one that no act of court should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by mistake of the court he should be restored to the position he would have occupied but for that mistake.

Laws are means and end is justice and ultimate function of judiciary is to render justice to the parties in a lis. A statute is to be interpreted as a whole. Interpretation of isolated section will cause miscarriage of justice. S.115 of CPC is to be interpreted after absorbing the logic and purpose for which it was introduced. Here one has to follow golden rule of interpretation.

S.151 of the Code saves inherent powers of the Court. It is a non obstante Clause which has over riding effect. So if an order is illegal and if it not revisable due to the bar under Proviso to S.115 the court can invoke inherent powers to meet the end of justice. In view of notwithstanding clause in 151 r/w. S.115, the High Court has the power to revise an illegal order even if it is hit by the proviso to S.115.

It is well settled principle that procedures are handmade to justice and court cannot deny justice clinging on technicalities. The Apex Court in Lilly Thomas v. Union of India (2000) 6 SCC 224) held that "Justice is a virtue which transcends all barriers and rules, procedures or technicalities of Law, cannot be stand in the way of administration of justice" and further held that the law should bend before justice. If the High Court finds that the order passed by the court below has caused gross injustice to a party in a lis, the High Court has ample power to interfere. Contrary approach in giving prominence to law and rules instead of dispensation of justice is like "tying the horse behind the cart."

Point No. 2:

Whether proviso in a section can defeat the language and purpose of the main Section?

Proviso is an exception to the main rule. Normal function of a proviso is to except something out of the enactment or to qualify something out of the enactment or to qualify something enacted therein. But the proviso would be within the power of enactment. Lord Watson in West Darby Union v. Metropolitan Life Assurance Co. (1987) AC 647 P 652 (H.L.) held that "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso."

The Apex Court in Dwaraka Prasad v. Dwarakadas (AIR) 1975 SC 1758) held that "When on a fair construction the principal provision is clear, a proviso cannot expand or limit it. In A.N. Seligal v. Rajaram Sheoran (AIR 1991 SC 1406 at 1414) the Hon'ble Supreme Court held that "Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within it express terms".

In a landmark decision Macbeth v. Ashly (1874) 2 SC and DIV. 352 (HL) -cited in page 168 of Principles of Statutory Interpretation by - Justice Singh) House of Lords held that proviso is normally in the nature of qualification or exception and therefore it does not wholly nullify the enactment. Exceptions cannot be allowed to swallow up the general Rule. This aspect considered by the Hon'ble Supreme Court in Raghuthilakathirtha Swami (Sree) v. State of Mysore (AIR 1966 SC 172) and in Director of Education (Secretary) v. Pushpendra Kumar (AIR 1998 SC 7230) and held that "A provision in the nature of an exception cannot be construed as to subsume the main provisions and thereby nullify the right conferred by the main provision."

The Privy Council in Madras and Southern Maharastra Railway Co. Ltd. v. Beyevenda Municipality (AIR 1944 PC 71 at 72 & 73) held that "whereas in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly fall within its express terms."

The Division Bench of the High Court of Kerala in Madhayan v. Excise Inspector (2000 (1) KLT 311 Para. 10) dealing with the proviso to S.36 of Abkari Act held that "requirement under the proviso is clearly linked with the procedure to be followed while considering search and that in terms of the Code. Category of persons to be called upon to attend and witness the search is indicated in the proviso and they have really nothing to do with mandatory or directory nature of provision."

The language in the S.115 of CPC is very clear and unambiguous which prescribes under which circumstances revision will lie to High Court. As the language is clear the proviso cannot defeat the main section. In view of the principle laid down in the above decisions, it can very well say that the proviso has no overriding effect over S.115 and hence the proviso as it exists now after new amendment does not negative or dilute the power conferred on the High Court under S.115 of CPC to the extend of completely taking back the powers conferred under the main section.

So in my humble view, fortified by the decision cited above, the decision in Madhava v. Narayandas require reconsideration.

KESAVA PILLAI - 2004 (1) KLT 55(F.B.) IS IT GOOD LAW?

(By G. Krishna Kumrn, Advcvate, Ernakulam)

This Article is intended to analyze the decision rendered by tiie Hon'ble High Court in Kesava Pillai v. State of Kerala (2004 (1) KLT 55 (F.B.)) wherein it was held that, in view of the newly introduced S. 100 (A) of C.P.C (Amendment Act 22 of 2002), appeal against the decision of single Judge under S.5 (2) of Kerala High Court Act, will not lie after 1.7.2002, and the AFA preferred was dismissed, eventhough it arose in a suit which was instituted prior to 1.7.02. The Full Bench in the above decision held that "No litigant can have a substantive tight for a further appeal after 1.7.2002 on the ground that proceedings from which the appeal arose were instituted prior to 1.7:2002."

The decisions of the Apex Court and various authorities whereby the Principles of Statutory Interpretation are now well settled, do not appear to have been brought to the notice of the Full Bench which rendered the decision in Kesava Pillai's case,

Eventhough an appeal is in the realm of procedure, it is not a procedure in itself. An appeal is a right of entering a Superior Court and invoking its aid and interposition to redress an error of the court below. According to His Lordship Justice Hidayathuliah1 "Though procedure does surround an appeal, the central idea is a right." Right of appeal is a right vested in the suitor at time of institution of the original proceeding. Any change in the law relating to appeals, after institution of the original proceeding, which adversely touches this vested right is presumed not to be retrospective and will not affect the rights of the parties. For example, if original proceedings are initiated prior to the C.P.C. Amendment Act 2002, unless otherwise it is specifically mentioned that S. 100 (A) is equally applicable to the proceedings initiated before the amendment Act came into force S. 100 (A) is not applicable to proceedings initiated prior to 1.7.2002.

According to Maxwell2 "When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such right". Similar question arose before the Privy Council3 wherein it was held that "provisions which touch aright in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment ornecessary intendment". The Hon'ble Supreme Court considered this aspect in a 4landmark case. In that case the suit was instituted on 22.4.49 before the Sub court. The suit was valued at Rs.11,400/. The trial court dismissed the suit. On 4.3.55 the Andhra High Court accepted the appeal and allowed the same. The High Court refused to grant leave to appeal to Supreme Court for the reason that the suit was valued only at Rs.11,400/, without considering the point that as per S.3 of the Govt. of India Act 1935 the appellant had the right to appeal to the Federal Court which was replaced by Supreme Court. Finally it was held that the suit, out of which the application arose, having been instituted prior to the date of coming into force of the Indian Constitution, the parties thereto had from the date of the institution of the suit, a vested right of appeal, upon terms and conditions then in force and the judgment of reversal being in a suit of value above Rs.10,000/, the applicant had a vested right of appeal to the Federal Court under the provision so fold C.P.C. r/w Government of India Act 1935 and the Federal Court (Enlargement of Jurisdiction)Act 1947. It was held in paragraph 24 of the said decision "in the case before us the suit was instituted on 22.4.49 and as per principles established by the decisions referred to above the right of appeal vested in the parties thereto at that date and (sic) is to be governed by the law as it prevailed on the date, that is to say, on that date the parties acquired the right, if unsuccessful, to go up in appeal from the Sub-court to the High Court and from the High Court to the Federal Court". It was further held in the same judgment that right to appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on, and from the date, the lis commences; although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of filing of appeal." It was further held that the vested right of appeal can be taken away only by a subsequent enactment providing therefore expressly or by necessary intendment, and not otherwise.

A question regarding the applicability of new enactment to a pending proceeding arose before the Kings Bench Division5. As per S. 146(1) of the Law of Property Act 1925, a landlord served a notice to repair, on a tenant and subsequently started proceedings claiming possessionon the ground of want of repair. During the pendency, the Leasehold Property (Repairs) Act 1938 came into effect. According to this new Act, after the service of a counter notice by the tenant, the landlord could proceed to enforce the forfeiture clause of the lease only with the leave of the court, which may be granted only in the circumstances specified in the Act. The Court of Appeal held that the new Act did not have a retrospective operation and it would not affectthe rights which the landlord acquired by proceeding under the Law of Property Act6. In yet another decision by Supreme Court held that a change in law restricting grounds of appeal will not apply to the suit instituted earlier.

In a recent decision7, the Apex Court considered the question: Does a right of appeal accrue to a claimant under the M.V. Act 1939 on the institution of the claim petition in the M. A.C.T., notwithstanding its repeal by the M.V. Act 1988? Answering the question, it was held: "Unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively, right of appeal will crystalise on the appellant on institution of application in Tribunal of first instance". Finally it was held that appellant's right to appeal is governed by the old Act eventhough the new Act came into force. Similar question arose Before the Division Bench of the High Court under S. 13 (1) of Kerala Civil Court Amendment Act8 In that decision it was held that eventhough the Amendment Act came into force on 27.3.1996, the right of appeal vested on the litigants who were parties in the original proceedings initiated prior to the date on which the ne w Act came into force (i .e. on 27.3.1996), the law relating to appeal will be governed by the then law.

In the light of above discussion, let us examine whether the right to prefer AFA u/S. 5(2) of the Kerala High Court Act, conferred on the litigants who are parties to the original proceedings initiated prior to the CPC Amendment Act, is taken away with retrospective effect by the newly ' introduced S. 100(A). S.100(A) of C.P.C is as follows:

"S.100(A). No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."

The language employed by the Legislature in S.100(A) is clear and unambiguous. There is no express or implied indication that the provision is equally applicable to original proceedings initiated prior to 1.7.2002. To preserve the right of appeal, vested at the time of institution of original proceedings, saving clause is not necessary. Contra to take away such right, there should be express or implied indication that the provision shall have retrospective effect and will be applicable to pending matters as appeal is vested right.

In my humble view, the decision of the Full Bench in Kesava Pillai v. State of Kerala (2004 (1) KLT 55) requires reconsideration, as certain crucial aspects, as indicated above have escaped notice of the Full Bench.

___________________________________________________________________

Foot Note:

1. Radhakrishnav. Sridhar AIR 1950 Nag. 177 P. 184 F.B.

2. Maxwell, Interpretation of Statutes, 11thEdn. P. 212.

3. Tata Iron and Steel Co. Ltd, v. Chief Revenue Authority AIR 1923 P.C. 148.

4. Garikapati v. Subbaiah Choudharee AIR 1957 SC 540.

5. National Real Estate & Finance Co. Ltd. v. Hassan (1939) 2 KB 61.

6. Kasibai v. Mahadu AIR 1965 SC 703.

7. Ramesh Singh v. Chintha Devi (1996) 3 SCC 142.

8. Kunnappadi Kalyani v. Lekhraj 1996 (2) KLT 106.

Death Sentence Need for a Shift in Philosophy

(By Sreejith Cherote, Advocate, Calicut)

The maintainability of death sentence as an ideal mode of punishment for grave offence has been a subject matter of great controversy, right from the time when the objectives of punishment was confined within the walls of four theories. Perhaps the problem that is most discussed, most analysed under the criminal jurisprudence without no fruitful outcome is the justifiability of death sentence. All studies conducted on the justifiability of death sentence are incomplete in the sense that the sustainability of death sentence is analysed only on its objective merits and not on its subjective spirit.

The abolitionists and the retentionists are considering only the objective impact of retaining or abolishing death sentence. The purpose and utility of death sentence when viewed from the social angle has got several compelling reasons, which may justify its sustainability. But, while assessing its role as a successful mode of punishment, the real criteria to be considered should be subjective i.e., the criminal himself, if we have to prescribe a solution to the crisis "whether to retain or abolish death sentence".

No matter how ever abstract, results are no study is complete unless viewed from all angles. The sentence of death is not an exception. An attempt has been made to analyse death sentence from a different angle, which would suit the present social scenario.

Undoubtedly death penalty has three main purposes

(A)  Elimination

(B)  Deterrence

(C)  Confirming social solidarity by a system of collective revenge.

Death penalty as a method of elimination of the undesired and also as a mode of deterring potential offenders has been successfully adopted by successive generations. Turning the pages of history, it can be seen that, in the earlier societies death penalty was lavishly awarded as an easy method to eliminate criminals who are dangerous to the society. Hence in the Anglo Saxon period there were more than hundred crimes, which carried death sentence as punishment. In those period elimination and deterrence was admired for its double impact of easily removing the offenders forever and also setting standard for the rest of the society by fear psychosis. Elimination by way of death sentence was also admired for the reason that in those days there was scant regard for human life and human worth, followed by an unwillingness to take the risk of experiment by trying for reformation of criminals.

The concept of reforming was disregarded mainly for the reason that the earlier society did not possess the knowledge nor did they realize that the human mind is prone to reformation. The ideal “ONCE A CRIMINAL ALWAYS A CRIMINAL” was concrete and giving a criminal an opportunity to reform was considered to be a foolish and futile attempt. It was a time when criminals were judged according to their past, the concept the “THE PAST PREDICTS THE FUTURE” has been mechanically applied that there was seldom a study into the criminal behaviour. The result was that the justifiability of death sentence was considered only on an objective scale.

There is a time related justification for this outlook of our ancestors. They did not have the understanding to access the capacity of human mind. They were also not in a position to realize that the human mind was subject to reformation. They underestimated the capacity of human mind by confirming to the conclusion that once programmed human mind is never subject to change. Relying on this concept the earlier society did not want to take chance by extending an opportunity to a criminal for a probable reformation when there was an easy and economic way of getting rid of criminals dangerous to the society, moreover reformation in those days was a costly affair as sustaining a criminal in a restrictive atmosphere incurred a lot of administrative and infrastructure expenses.

Now the social circumstances have undergone a sea change. The unwillingness and hesitation on the part of the earlier society to experiment on reformation adhering on the concept of elimination and deterrence cannot be availed by the preceding generation for discarding reformation. Now we are no longer ignorant as we were. Now the idea once a criminal always a criminal lacks understanding. We have acknowledged the ability of human mind to reform. We have realized the worth of life and cost effectiveness cannot be criteria for terminating life.

If the elimination aspect of death sentence does not stand to reason then the mild impact of deterrence is not worth enough to sustain it.

Research has shown that the deterrence is the last criteria for a criminal in judging his action. Deterrence has no major role in preventing a criminal from committing a crime because; most crimes are committed in a concealed atmosphere with a firm belief that the authorities will not detect the offender.

If deterrence and elimination has failed in its purpose then the argument that by an organized execution of criminals called judicial murder will enhance social solidarity by collective revenge has to be examined for its worth. It is true that to a certain extent collective revenge helps to appease the sentiments of the victim's family and friends by allowing another injustice to happen. If we examine in detail we are superficially balancing the sentiments arising out of an injustice by committing another injustice. Instead of prescribing a solution to a problem we are balancing it with another one.

It is a high time that the justifiability of death sentence is examined on a subjective basis. It is the criminal behavior that has to be made the subject of study and not its impact on the society, while assessing the merits and demerits of death sentence. If we consider criminal as the center of the study needless to say there should be a shift from society to criminal. On analyzing death sentence in the light of the above reasoning we can conclude that for extinguishing life, the justification that it satisfies victims family and friends and also for its deterrent impact is not a convincing argument. The result of the modern study also reveals that the criminal behaviour is a' “mental abrasion” caused by intervening circumstances in a personal life, further corroborated by aspect like physiology & psychology of a person. Circumstances have a good role in pruning a criminal. The influence of the social environment in criminalizing a person's behavior cannot be under estimated. The frustration of the present day social life are a major contributory factor in creating a criminal.

Modern study also reveals that confirming to social norms need not necessarily create same response in every individual, while attaining of a peripheral solidarity quench the thirst of society, likely hood of developing negative impulse coming within the ambit of criminal behavior in a person cannot be ruled out. Adhering to social code in its strict sense is likely to reflect as developing frustration, depression and an array of other negative feelings, which in course of time expose itself in a much-aggravated form resulting in a creation of a dangerous criminal out of a social human being.

If we consider external aspects forced into the personality of a person and the role of social environment in nurturing a criminal behaviour we should acknowledge the argument that what a criminal needs is treatment and not elimination. Thus social environment especially the circumstance under which a person's character is molded has got a commendable role in the creation of a criminal. The mounting number of adolescent criminals is concrete evidence to the fact that social influence often unbalances the mental make-up of individuals at an early age.

Now there is a need for a shift from objectivity to crime and criminal. Apart from this, the society owes a responsibility towards such persons and it is neither moral nor legal to eliminate a person forever whom the society has directly or indirectly deprived.

The attitude of the public reflects as law, but the law has to be time tested for its utility. When the law prescribes an extreme penalty like the death sentence, it often has an inbuilt safety valve in the form of a subjective discretion given to the Judge. He has the freedom to consider circumstances and decide whether the act of the accused qualify for a major penalty like the death sentence. Unfortunately, the attitude of the Judges is to consider the act of the accused in the light of its gravity and impact on the society. The subjective aspect of the inherent weakness of the criminal is seldom considered. While taking such an approach the Judge sentencing an accused fail to consider his weak personality and the necessity of subjecting them to treatment for reformation.

It is submitted that, judging a criminal by evaluating his modus operandi and his existence as a threat to the society, while imposing punishment is like judging the criminal from other's angle. A judicial verdict should judge the criminal from "WITHIN" and in such judgment no Judge on earth can substitute death for death.

Instances are also there were death sentence is awarded for the sake of moral justice ad also as a measure for bringing peace in the society. Such a tendency is without a clear understanding of crime, criminal and of punitive justice.

The role of a Judge while sitting in judgment in matters involving death sentence is much like a doctor, i.e., a doctor curing social evil. His attempt should be to cure the criminal and uproot the cause of criminal behavior and not to eliminate him by taking refuge on the theory that it is for the benefit of the society at large. This is just like a doctor who is never justified in killing his patient for the reason that the patient has an infectious disease dangerous to the society. Eg. (HIV Cases).

Our history is full of examples where the present has forsaken the past for a glorious future. The whole fabric of the society is knit with the thread of history and our history is full of examples as VALKMIKI in the east and LESSMESARABLES from the west to the fact that human nature has got a universal philosophy, i.e., the ability to reform.

If we have accepted the philosophy and disagreed with its utility, at a time, when resources were limited in our hand, the same is not eternal. Now we have the means to put into use the accepted. To conclude, it could be said that history and law are like mirror and its reflection. You look into the past and plan for the future, if we assess the past we can realize the mistake and mend for the future. Opportunity should be given both for the criminal and for the society. REFERENCE

1.  Law of Crimes and Criminology                -           R.P. Kathuria

2.  Criminology, Problems & Perspectives    -           Ahammed Sidique

3.  Criminology & Penology                             -           N.V. Paranjape

Remembering M.S.

(By A.K. Jayasankaran Nambiar, M/s. Menon & Pai, Advocates)

To some, he was just a former Chief Justice of the High Court of Kerala. To most others he was the wise old man of the mountains. Nestled in his cottage in the salubrious heights of Munnar, Mannanthazhathu Sankarankutty Menon (affectionately known as M.S.) was a tower of strength and inspiration, the eternal spring to which one could turn to quench one's thirst for knowledge. The crisp mountain air, perfumed by the scent of tea leaves, must have had an enhancing effect on MS, for he chose it to be his retirement abode and lived there for almost a quarter of a century before cruel and envious fate came calling, last November.

In his death, the nation lost a great jurist, the State one of its noblest sons and humanity a great person. The subtle blend of intellect, humour, affection, courage and empathy made this man stand tall among his compatriots. He had it all and in abundant measure. To enumerate his deeds and accomplishments would require many pages even of condensed text and hence I refrain from embarking on such an exercise. In the year that has gone by, I have felt a strong yearning for those little moments that I used to spend with him in Munnar. The three or four hours that I invariably spent with him during my visits to Munnar were so inspiring and enlightening, that today I blame myself for not having spent more time with him when I could have. In those few hours, he would entertain me with little anecdotes taken from the annals of his journey through life and also discuss current topics -legal and political - with such fervour and passion that it set you thinking. His words worked like magic and had an almost catalytic effect on my thought process.

For anybody who had the pleasure of meeting MS, it was not difficult to understand why he was loved and revered by his friends and admires. His knowledge of the English language was enviable, his incisive analysis of issues unmatched and his persuasive skills were positively menacing. He had read almost everything there was that was worth reading. "A lawyer should know something of everything" he used to say. He supplemented his knowledge with his curiosity to know more about the subject. If you talked to him about something, he would pretend to know nothing of it till you had said everything that you had to say about it. He would then tell you what he knew about it (which was little!) and why he either agree or disagreed with you. He was always careful not to hurt other people's feelings. That is not to say that he did not pull you tip when he found you slacking in work. His affection and concern for a person was often gauged from the displeasure which he indicated (in no uncertain terms) to the persons when he/she did not live up to his expectations. He had a curious knack of making young lawyers, work - 99% perspiration and 1% inspiration - was his prescription for success as a lawyer.

He preached a practical method of advocacy to junior lawyers. He often said that young lawyers had necessarily to let go of their ego in the best interests of their client. "There is an element of prostitution in any persuasive profession", he once quipped with that wicked smile on his face. While he advised lawyers to fight their cases vehemently he also cautioned them against picking up a quarrel with the Judge. "Judges are human beings and all those little things that affect a human being will also affect a Judge.....fight with a Judge and you'll be fighting a losing battle", he cautioned.

MS had a great sense of humour. There wasn't a meeting with the man during the course of which you didn't burst out laughing. Years ago, when I had been to visit MS in Munnar, he was telling me about this lawyer who used to avoid all the questions put to him during the course of arguments by stating "I'm coming to that, my Lord". MS went on to narrate his own experience with the lawyer during his term as the Chief Justice. At the end of it all when I asked MS whether the said lawyer had since passed away, MS was quick to retort "No, but he's coming to it !!!"

Yes, I do miss him a lot and I'm sure there are many others who share my feelings. He was that intellectual giant, whose brains I could pick whenever I was faced with a nagging legal problem, the affectionate grandfather who would patently listen to all I had to say and then offer practical solutions to my problems, the philosophical mentor whose words of advise guided me through difficult times and, most of all, he was to me my very own - MS uncle.

Let Registry Help the Prosecution

(By Ajith N., Advocate, Irinjalakuda)

Recent rulings of our High Court and the Hon. Apex Court make it mandatory that the FIR as well as the articles seized from an accused shall be sent "forthwith" to the nearest Magistrate failing which that itself casts a doubt in the prosecution story warranting the Courts to approach the prosecution case with caution. Our Criminal Judicial System bestows the accused with certain rights rather blessings. Every accused is 'innocent' until his guilt is proved beyond any reasonable doubt. An accused is also a citizen who shall not be deprived of his Constitutional rights to life and liberty. He may not have thought much about such rights which were enjoyed by the victim. The duty of the prosecution is heavy to establish the guilt of the accused.

While going through various documents produced by the Police either along with the FIR, Remand Reports or thereafter, like the Property Lists especially, it is seen that the concerned Magistrate will be putting his dated signature and seal on a particular date, but those properties are entered in the Property Register by giving the Property Index Number on a subsequent date. The delay in between these two dates may sometimes go upto five to seven days. Sometimes there may be an omission from the part of the Magistrate to put the date on the Property Lists produced by the Police.

R.28 of the Crl. R.P. (Kerala) mandates that every papers presented to the Courts shall be sealed with the date stamp of the Court immediately they are received. On receipt of FIR the Magistrate shall initial it noting the date and time of the receipt thereof. Here the prosecution is put to trouble. The S. 157 and the verdicts mandate the sending of the seized articles then and there or forthwith to the nearest Magistrate. The only available evidence before the Trial Judge or for the prosecution is only the oral evidence of the detecting or investigating officer and the Property List filed by him before the concerned Magistrate. Then if the Property List bears a different date with Property Index Number then what will be presumption available for the Court as well as the Prosecution? A flagrant violation of the provisions of S.157. The accused is given the benefit of doubt. The Court will conclude the verdict with a comment onthe prosecution "...........miserably failed in establishing the case levelled against the accusedbeyond any reasonable doubt". Who is really responsible? The Registry, the Police or the Prosecution? Beneficiary is no doubt, the accused. Presumptions of Official functions will not always help the prosecution, if the Court is having an acquittal trend.

How it can be solved is the real question to be placed before the Registry of all Registries, the Registrar, Hon. High Court. Only two or three crimes will be there wherein the MOs will be produced before the Magistrate on a single day. If the concerned Registry spends a few more minutes in putting the date seal with the initials, on the very same date itself, it will be sufficient. If time is also mentioned, nothing remains.

There will be definitely a question, whether this is the only reason for high acquittal rate in Kerala. Answer is simple. This also serves a valid ground. R.28 of the Criminal Rules of Practice in Kerala may be enforced in script and spirit. There shall be no further "miserable failures" for prosecution. Let the Registry do the needful.