DOUBLE ROLE

(By K.J. Thomas, Advocate, Irinjalakuda)

After a young barrister had finished arguing an appeal in the Kings Bench Divisional Court, he was asked to re-argue it from the point of view of the respondent, who was not represented. He acquitted himself well in this rather gilbertian situation, but won the appeal. There is distinguished precedent for this double role, though generally in the past it has been played through inadvertence. Thus Bethell, afterwards Lord Chancellor Westbury, once by mistake drew a bill in Chancellory against a client for whom he held a standing retainer, and at the hearing when his services were claimed by the defendant, he had to argue against his own pleading. "Your honour" he began "of all the cobwebs that were ever spun in a Court of justice this is the flimsiest; it will dissolve at a touch". It did, and the solicitor who first instructed him must have been but little consoled when Bethell whispered in his ear as he left the Court "the bill is as good a bill as was ever filed".

Lord Eldon used to tell a somewhat similar story of the great Dunning in an earlier generation: "I was once a junior to Mr. Dunning who began his argument and appeared to be reasoning very powerfully against our client. Waiting till I was quite convicted that he had mistaken for what party he was retained, I touched his arm and upon his turning his head towards me I whispered to him that he must have misunderstood for whom he was employed as he was reasoning against our client. He gave me a very rough and rude reprimand for not having sooner set him right, and then proceeded to state that what he addressed to the Court was all that could be stated against his client and that he had put the case as unfavourably as possible against him in order that the Court might see how very satisfactorily the case against him could be answered. And accordingly Dunning very powerfully answered what he had before stated".

New Experiment with Law Clerks -- A Useful Assistance to Judges

(By Jacob P. Alex*, Advocate High Court of Kerala)

".......The Supreme Court has introduced the system of Law Clerks-cum-Research Assistants, one each being attached with every Judge so as to assist in research work which will improve the quality of judgments and also accelerate the decision making process..."1observed the Chief Justice of India. This is an eloquent testimony to the role of Law Clerks behind the bench. But who is a Law Clerk? What is a Law Clerk's Role? This article provides an introduction on concept of Clerkship by detailing the functions of a Law Clerk in Judge's chamber, the benefits of having a Law Clerk and also proposes the idea of introducing Clerkship in our High Court.

Law Clerkship, reportedly originated in 1875 in the United States of America, when Horace Gray, Chief Justice of the Massachusetts Supreme Court hired a young graduate of Harvard Law School to be his law secretary for research and drafting assistance. When he was appointed to the United States Supreme Court in 1882, Justice Gray continued the practice that was later institutionalised by Congress in 1886. The tradition of hiring judicial clerks from the leading law schools grew in the US Supreme Court, and the role of these clerks expanded. They screen cases, draft opinions, and reportedly have a significant influence on the course of American jurisprudence 2-. Canada, Australia and many European countries already have in place an institutionalized clerkship scheme. In Germany there is infact a system by which Law Clerks are appointed on a permanent basis. Almost all international judicial bodies like the International Court of Justice, the European Court of Justice, the International Criminal Court and many UN Tribunals employ law clerks.

A Law Clerk is a young law graduate, who closely works with a Judge by assisting him with his caseload. This temporary assignment will normally last for a year or two. The duties of a law clerk, vary from Judge to Judge and Court to Court, but includes conducting legal research, preparing case notes/summaries and pre-hearing notes, writing speeches and even assisting the Judge in drafting judgments. Law clerks serve as confidants and assistants to Judges, always by their side to assist them in discharging their duties. In the privacy of their chambers, Judges exhaustively discuss cases with Law Clerk and rely on clerk's legal research, writing and editing skills. The law clerk works in the library, studies papers and magazines, and browses the internet for the Judge. In return, he receives an exciting one-on-one education from a stellar member of the legal profession who is a knowledgeable jurist in a lofty position of influence and authority. This heady experience is one that is unmatched by any other in legal employment. Considering the increasing work load and much needed research assistance to Judges, the Supreme Court of India started to appoint Law Clerks-cum-Research Assistants with Judges on a regular basis from 2002 onwards.

Selection process of law clerks in the Supreme Court of India:

In view of the close association that usually exists between the Judge and his law clerk, the law clerk's action, both professional and personal, reflect upon the esteem in which the judiciary is held. The law clerk owes the duty of confidentiality concerning everything that occurs in the process of decision making. So the selection process therefore is very important. Now each Judge in the Supreme Court selects his own law clerk from a panel of graduated, students recommended by the National Law Schools. The Judges go through the dossier of

each candidate and will choose one, who will assist the Judge in the position of a Law Clerk. Some Judges may call the students for interview and selection will be made thereafter. Judges prefer students with proven research and writing skills. Students who have quality publications to their credit are preferred with significant emphasis on their rank in class. In addition, Judges place great weight upon students's achievements in various extra curricular activities such as Moot Courts, clinical programs and internships.

Responsibilities that could be shared by a Law Clerk

In the Supreme Court, a Law Clerk's function is more academic in nature since the work is largely research oriented. Each Judge has his own style of functioning and the clerk will be asked to work accordingly. Hence, the assignments and nature of work of each law clerk depends upon the concerned Judge. Normally the law clerk conducts legal research, prepare case notes/summaries, drafts and edits judgments and prepares speeches for the Judge. In an ideal circumstance a law clerk discharges the following functions:

Perform legal research:

The most constructive function of a law clerk is to conduct legal research for the Judge. Library research, surfing the Internet and searching legal databases helps the Judge to save considerable time in the decision making process. It also improves the quality of judgments, which is backed by valuable research data. This is necessary because lawyers may only cite authorities to advance 'their' case. The law clerk then places up-to-date case law and other allied legal literature before the Judge. Quite often a Judge tends to entertain a different thought on the matter than that what the lawyers argued. But he may not find time to spend in libraries to search for the relevant book/journal or to browse the net or database for the apt material. Even if they ask the librarian to provide books, the apt authorities may not be placed due to lack of communication with the Judge. This is because a librarian will never take the liberty to ask a Judge as to 'what he is thinking'. Contrary to this law clerk could ask the Judge, ascertain more details of the line of thinking and place the most relevant material for consideration. Based on this law clerk prepares research notes for the Judge on the assigned area. Similarly the Judge can share his views with a law clerk about a case in hand. A Law Clerk could also air his ideas during such discussion. This secluded discussion at a post-hearing stage streamlines the research and shapes the outline of judgment. On many occasions these discussions and subsequently provided research materials will help the Judge to have a new look on the matter in hand.

Now a day, the Courts are confronted with increasingly multifarious and challenging issues that requires exhaustive research with new tools. The information available on the Internet and journals will be gathered by the law clerk for the Judge to address new issues. It is also to be noted that in most cases layers are hired by individuals, government agencies, and business entities to provide them with counsel and to advocate their position. This results in a situation where each party is bound to place authorities favouring their side. The need for Courts to be provided with independent and up to date material for arriving at a conclusion is thus, manifest. Law Clerks can be of invaluable assistance to Judges in procuring such materials.

Drafting Judgments:

One may question the idea of allowing a law clerk to draft judgments. This is mainly due to the skepticism about the system of judicial clerkship. However, law clerks are often called upon to do this task. When a Judge is confident enough and pleased with a Law Clerk's progress, he may ask the clerk to prepare draft opinions. Normally, the law clerk sits in Court at the time of hearing and takes notes on the case. Later with additional research he prepares a rough outline of the proposed opinion and discusses the case with the Judge. The Judge expresses his views on the matter and approves or suggests modifications to the skeletal opinion. The law clerk then prepares the first rough draft of the judgment. The judge peruses it and may suggest further changes. It is quite likely that the Judge may ask the clerk to scrap the draft and work on a totally different line. Sometimes the Judge himself will give the content of the proposed opinion and will ask the clerk to draft it. Or the Judge asks the clerk to draft the initial portion of the judgment i.e., narration of facts, issues involved and the submissions advanced by the counsels. Later, the Judge himself will answer the issues. In other cases the Judges may prepare part of the opinion and ask the law clerk to prepare a rough draft of the remainder. In some instances the Judge may ask the Law Clerk to prepare detailed notes on the necessary aspects of the law for the purposes of utilizing the same while drafting judgments. Similarly the law clerks could be asked to take care of drafting interim orders or directions on petitions after taking instructions from the Judge. In all these situations the law clerk prepares draft or notes for finalization by the Judge. However, the ultimate opinion is that of the Judge and no law clerk will have a say in such matters. What the law clerk is doing is only to assist the Judge to express his opinion by carrying out his direction, thereby saving the Judge's time. Obviously, the Judge himself will lay down law.

Finalizing drafts:

Often Judges themselves dictate the judgment in open Court or in their chambers. In such cases the law clerk's duty is to edit the draft, realign the sentences, check clerical mistakes, cross check facts and citations etc. As all of us know editing is boring, especially one's own work. The law clerk performs this job and also provides additional research back up while finalizing drafts. In any event the law clerk could check all citations, both for accuracy and substance, and proofread the final opinion before placing the draft for the Judge's approval.

Assisting the Judge at oral arguments:

Presently in the Supreme Court there are miscellaneous days (Mondays and Fridays). At least sixty fresh matters will then be listed before each Judge. It is difficult to go through each and every file. Trained law clerks prepare notes on each file or at least in few. Similarly in High Court it would be very helpful for the Judges to have assistance in handling admissions matters. Many times we find that the Judge may not get enough time to study new admission papers as the bundles will be placed before them only on the previous evening. At this stage if the Judge wants to look up a position of law or to find a case law, the Law Clerk provides the necessary assistance. They also provide Judges with oral opinions and written memoranda of law on a broad range of legal topics, review pleadings, and prepare case summaries. Depending on the needs of the Judge, a law clerk may be asked to perform an exhaustive research of all relevant sources before hearing a matter, or to find a quick answer during the course of hearing. Similarly the law clerk could be asked to prepare 'bench-memos' on final hearing matters. Bench memos would be highly useful in Indian Courts, as we do not have a time limit for oral submissions as in American Courts. Memos will help the Judge to have a better grip over the case even at pre-hearing stage. It will help to cut short the discussion of unimportant issues during final hearing or could ask the lawyer for elaborating submissions on a point of law that needs much deliberation.

Preparing speeches and other academic work:

All aspects condensed and terse delivery from a Judge. Of late most organizers of functions expect the written test of speech for publication. On any moderate calculation, to prepare the text of a thirty-minute speech requires half-a-day. The Judge with his busy schedule may not get time to do the necessary research and to prepare the text of a speech. Even if he finds time to do so, it will tax other works. Accordingly the Judge could discuss the context of such speech and the ideas that he wants to convey with his law clerk who will then prepare a draft for the speech. Similarly, research is necessary to deliver a lecture or to present a paper before an academic forum/seminar or to write an article. In such situations foot notes and bibliography needs to be added to the text. A Judge may not get time to do this time consuming jobs. Law Clerks may also assist Judges in preparing scholarly works, and other presentations on law-related topics. Similarly the task of writing reviews, prefaces for books, messages for functions, preparing background papers/notes for conferences, etcetera could be delegated to the law clerk. Again it must be noted that finalizing any such work is always the Judge's priority.

To be a good friend:

The relationship between Judges and their law clerks is an intensely personal collaborative effort with loyalty and co-dependence that are unparallel in any other setting. Personal relationship with the Judge is an important aspect in clerkship. More than being a 'staff' of the Judge, a clerk is a 'family member'. To be all this he should be a good companion for the Judge to talk or to share light moments. This is because a Judge may not find a good friend to be with him always. And it is not possible for a Judge to be so. But is it not a nice idea to have someone with to watch a cricket match or admire a stage performance? And a young law clerk, who will only be at the age of Judge's child, could be that 'someone'.

The Value of Judicial Clerkship

In addition to being a key credential for any future career in law, a judicial clerkship is itself a valuable life experience. Clerkship offers a unique opportunity to view and participate in the work of a Judge's chamber. It will help the clerk to gain a perspective on how Judges make decisions and how the system of justice operates. It is also once-in-a lifetime prospect to gain first-hand knowledge of current legal issues and to contribute to the law through the Judge's decision making and opinion writing. In the courtroom as well, the exposure to numerous lawyers' oral and written litigation styles, both good and bad, will help the clerk to develop his own perspective towards law and litigation.

The clerkship enhances one's research, writing and analytical skills. The name of "his" Judge will stay with the clerk for the rest of his life. Ultimately, the law clerk will gain a lifelong mentor who will take an interest and assist in the development of his future. There are few professional relationships that are more intimate than that between a Judge and his or her law clerk. Other than the Judge's Secretary, the law clerk spends the most time with the Judge during the workday. Many clerks are fortunate to have a Judge who spends time teaching and guiding them as part of this special relationship. Given this closeness and professional 'grooming' by the Judge for the benefit of his or her law clerks, Judges seek to keep individuals with whom they can develop a pleasant rapport. The opportunity to experience and undergo clerkship will provide young law graduates with the chance not only to view, but also to become an integral part of the inner workings of the judiciary. Clerks who win the confidence of their Judges find that their opinions are regularly sought on the proper handling and disposition of matters that come before the Court.

Exploring the Possibility of appointing law Clerks in our High Court:

To the best of author's knowledge, no High Courts employ Law Clerks in India. But it is worth to experiment clerkship in our High Court considering the increasing workload of Judges. The work of a law clerk depends upon the Judge with whom he works. In all situations the clerks could be asked to prepare notes on each file that comes up for admission or final hearing. Similarly research papers could be prepared for the Judge on necessary topics that requires detailed study for the purpose of writing judgments. Law clerks could also take argument notes, check the facts of cases, cross check the citations, search for more case laws and other legal literature, proofread the drafts, prepare the drafts of interim orders etc. All this will considerably help the Judge to save much time.

Proposed Method of Selection:The Law Clerks will normally be appointed for a temporary period of one year. The selection of Law Clerks in High Court could be done in the lines of the system followed in the Supreme Court of India. The National Law Schools and selected Law Schools in our State could be asked to submit a panel of their best students, both graduated and post graduated. The clerks may be short listed from that panel based on their class rank, quality of publications and other writings, research abilities, performance in Moot Courts, involvement in extra curricular activities, references from teachers etcetera. The individual Judge may then interview the short listed candidates before selection. On an experimental basis, five or six graduates could be initially selected to assist few Judges. A short training may also be given to such candidates. After obtaining a first hand experience by keeping such Law Clerks for a year, the Judges themselves could decide on the future of clerkship. Remuneration and other terms of appointment could be easily worked out on administrative side. Considering the prestige and immense value of clerkship, young graduates would definitely welcome clerkship as a notional extension of legal education.

Clerkship is intentionally recognized as a valuable factor that immensely improves the justice delivery system by providing valuable assistance to Judges. The system has stood the tests of time in American Courts. It is effectively functioning in many other countries and with international judicial bodies. Its trial in the Supreme Court of India has amply proved its value. With the immense improvement in field of legal education over the past fifteen years, Judges in Kerala would have no dearth of graduates to appoint as effective Law Clerks.

___________________________________________________________________

*Author earlier served as Law Clerk-cum-Research Assistant in the Supreme Court of India between 2002-04 with Hon'ble Mr. Justice S. Rajendra Babu - former Chief Justice of India.

1. ENVISIONING JUSTICE IN THE 21ST CENTURY (Keynote address delivered by Justice R.C. Lahoti, the Hon'ble Chief Justice of India at the Conference of the Chief Ministers of States and Chief Justices of High Courts, Vigyan Bhavan, New Delhi on September 18,2004). See 2004 (3) KLT Journal page 70 to 75

2. A Different Diversity: Judge Thomas Brennan on Reforming the Supreme Court law Clerk Selection Process; full text available at www.cooley.edu/Faculty/bernnan.htm(last visited on 23-02-2005)

THE TSUNAMI AND THE LAW

(By Advocate P.B. Sahasranaman)

The theme of the World Environment Day for 2004 is "Wanted! Seas and Oceans -- Dead or Alive?" It stresses the need for the protection of sea and oceans.

Smt. Indira Gandhi, the then Prime Minister of India (1981), had written a letter to all the Coastal States to impose a ban for construction activities within 500 meters of High Tide Line. The intention was to prevent all kinds of unnatural development. Industrial pollution and dumping of waste shall be totally prohibited in this environmentally sensitive area, according to her. Thereafter working groups were established so as to prepare environmental guidelines for the development of beaches and coastal areas and the environmental guidelines, which has ultimately lead to the legislation of Coastal Regulation Zone notification (CRZ).

The implementation of CRZ has been difficult even though the Supreme Court directed its strict implementation. But every attempt was made to defeat the very purpose of the legislation obviously due to lack of place. Resorts, commercial constructions, large scale reclamations were made by people. Though the notification restrains the land reclamation, a (1996 (1) KLT 718) verdict of the Court, says that only such land reclamation as would disturb the natural course of sea water should fall within the area of prohibition? The Court also found fault with the petitioner who had not produced any material to show that the proposed land to be reclaimed would fall within the natural course of sea water. Of course, this proposition has been doubted by another Court and referred to a larger Bench. The Court permitted reclamation so as to benefit the islanders to construct bridges.

CRZ restrains the construction of buildings in the landward side of the existing road/ structures. A (1997 (2) KLJ 153) pathway, was declared as a road for the purpose of making constructions in violation of CRZ.

When the mining activity was challenged the (O.P. No. 2507 of 1997, dated 20th July, 1998) KHC has held as it is a rare mineral not available outside the CRZ area there is no violation. At the same time the Court directed the authorities to take steps to conduct a comprehensive environmental impact assessment of the area by a national institute of repute. Even though the judgment was pronounced on 20th July, 1998, the study is yet to be conducted.

How much reclamation we have done after the enactment? Is it more than the land which we have lost, by the catastrophic event that took place on 26th Dec. 2004. How many persons have been benefited by the constructions made in violation of the CRZ? Does it more than the lakhs of people who died?

Lack of proper implementation of the Coastal Regulation Zone is the result of this calamitous disaster. Impose heavy fines on the violators of the Coastal Protection laws and use the money to help the poor who have suffered due to the entry of disastrous waves. Provide justice to the nature. Otherwise the nature will take its own contempt measures in the form of Tsunami and other forms of disasters. Remember that the Gods own country has to be protected by the Gods own people. "Parasurama" has used his axe to create Kerala and not to destroy it. No Court can stay the further proceeding of the Tsunami. Remember the old saying that if you are cruel to the nature the nature will be cruel to you.

"Is Status of An Appeal Eclipsed by The Application to Condone The Delay"

A Study In The Light of The Interpretation of O.XLI, R.3A.

(By Thampi V.S, Advocate, Kollam)

I have got an occasion to read an explanatory note of a learned senior advocate P.Chandrasekhar, Ernakulam, which is published in KLT 2005 Part-3, under the head note. "Is an order dismissing an appeal as time barred an appealable decree". In this remark the concerned advocate has very clearly noticed the difference occurred in the decisions of Supreme Court in Shyam Sundar Sarma 's case [2005(1) KLT 198 (SC] and Pradeep Kumar's case [2000 (3) KLT .598 (SC].

In Shyam Sundar Sarma's case the S.C. rested on the decision passed by the Full Bench of Kerala H.C. in Thampi's case (1987(2) KLT 848) and held that dismissal of an appeal consequent to the rejection of the application to condone the delay is a decision on the appeal and it amounts to a decree to which an appeal u/s 100 of C.P.C. can be maintainable.

But in Pradeep Kumar's case the S.C. held that the Appellate Court does not get jurisdiction to entertain the appeal until the application to condone the delay is granted. Here the S.C. further held that an appeal filed out of time unaccompanied by an application to condone the delay cannot be dismissed at the threshold. It should be considered as a curable defect by filing an application at a later stage. In fact Pradeep Kumar's case does not appear to have been brought to the notice of the Bench which rendered the decision in Shyam Sundar Sarma's case.

Here I would like to share some of my views regarding the provision of 0.41, R. 3 A of C.P.C. R - 3 A clearly speaks about the application for condonation of delay. This provision is enacted into the statute in 1977 and it has nothing to do with the memorandum of appeal though the provision states that the appeal shall be accompanied by an application to condone the delay. This was affirmed by the S.C. in Pradeep Kumar's case stating that an appeal filed out of time unaccompanied by an application to condone the delay cannot be dismissed at the threshold. It should be considered as a curable defect by filing an application at a later stage. Before entering into the provision of R.3A we should understand the situation prior to 1977. Before that most of the application to condone the delay were filed u/S. 5 of the Limitation Act. S. 5 of the Limitation Act does not provide for a separate application for condoning the delay in presenting the appeal. It is an application filed along with the memorandum of appeal, hence the application filed u/S. 5 of the Limitation Act does not have a separate status. So we should understand the situation which prompted the legislature to enact R.3 A when there is a provision already in existence for condoning the delay under Limitation Act.

The provision of 0.41, R.3A added by the 1977 amendment to the C.P.C. reads as under: -

Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under R. 11 or R. 13, as the case may be.

(3) Where an application has been made under sub-r.(1) the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear the appeal.

Interpretation of 0.41, R.3A:-

The insertion of word "shall" in all the three sub rule's clearly reveals the intention of the legislature to consider R.3 A as a mandatory one. This was high lighted by the Karnataka H.C. in Nagappa's case (AIR 1986 Kar. 199) and also affirmed by the S.C. in Pradeep Kumar's case [2000(3) KLT 598 (SC)].

In Nagappa's case it was held that a combined reading of sub r.(1) and (2) of R.3A makes it manifest that the purpose of requiring the filing of an application for condonation of delay under sub-r.(1) along with a time barred appeal is mandatory in the sense that the appellant cannot, without such application being decided insist upon the court to hear his time barred appeal. That was the very purpose sought to be achieved by insertion of sub-r.(1) and (2) of R.3 A becomes clear from the legislative history.

A clear perusal of the above mentioned provision helps us to identify the difference of two words used by the legislature in sub-r.(1), i.e., one is "presented" and another is "preferring". These two words used entirely in two different stages, one is used in the stage of filing the appeal beyond time and another is used in the stage of filing the appeal within time.

Let us analyse the two stages:-

First Stage:- Filing the appeal beyond time

R.3A sub r.(l) starts with "when an appeal is presented after the expiry-----------. Here theword "presented" is used to denote the stage of filing the appeal beyond time. The word "presented" in ordinary sense means "an offer" or "give". This means the appeal presented beyond time along with an application to condone the delay is an offer put forward for the consideration of the court and the court can either accept it or reject the offer, but only after the granting of the application to condone the delay. This means here the memorandum of appeal is in limbo. Hence the memorandum of appeal presented along with the application to condone the delay does not get its status as it is filed within time. In other words until the application to condone the delay is allowed the court has no jurisdiction to consider the appeal memorandum. Moreover when an appeal is filed within time or beyond the court should proceed to R. 11 of 0.41 in order to admit or dismiss the appeal, but when an appeal is filed beyond time the court could not proceed to R. 11, because the way to R. 11 is eclipsed by R.3 A and the court has to wait till the eclipse is removed by granting an application to condone the delay. And once the eclipse is removed the way of the court to proceed to R. 11 is clear and the court can decide the fate of the memorandum of appeal.

Second Stage - Filing the appeal within time

The last portion of sub-r.(1) of R.3 A concludes "-----------------for not preferring the appealwithin such period". Here the word "preferring" in ordinary sense means "submitting". If the memorandum of appeal is filed within time the question of application for condoning the delay does not arise. Hence the memorandum of appeal directly comes to the consideration of the court and it get its status ab initio. Thus when an appeal is filed within time R.3A will not come into operation, but once the appeal is filed beyond time R.3 A will come into operation and it has its own status. So in order to realize that an application field under R.3A has its own status the Legislature has deliberately used the word "presented" in the first stage and "preferring" in the second stage.

Moreover in sub-r.(2) of R.3A the Legislature unequivocally expressed its intention through the words, "that the application shall be determined finally". This means an order passed under R.3A shall have all the ingredients of a decree defined u/S.2(2) of C.P.C. and which is an appealable one. This also shows clearly that the Legislature has intended to provide a separate status to an application filed under R.3A and thereby decide it finally.

Further down in sub-r.(3) the Legislature has used the word "appeal proposed to be filed". This means that an appeal is put forward for the consideration of the court and not filed. Hence the Legislature has indubitably held that the execution of a decree shall not be stayed until the court decides to hear the appeal after admission of appeal under R. 11. Thus it is implied from the above mentioned point that the application filed under R.3A is a separate one having its own status and the court has no jurisdiction to entertain the memorandum of appeal filed beyond time until the eclipse is removed.

The Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (59 LA. 283) held "there is no definition of appeal in the C.P.C, but their lordships have no doubt that any application by a party to an Appellate Court asking it to set aside or revise a decision of a subordinate court is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent.”

In Mela Ram's case (1956 SCR 166) the S.C. held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This question was again considered by the Full Bench of Kerala H.C. in Thambi v. Mathew's case (1987 (2) KLT 848) and held "that an appeal presented out of time was nevertheless an appeal in the eye of law for all purpose and an order dismissing the appeal was a decree and that could be the subject of a second appeal". Here absolutely one could not agree with the K.H.C's view. It is true that an appeal presented out of time is an appeal, but the court could not entertain the appeal memorandum till the application to condone the delay is allowed. If this is the situation then how the court can pass a decree on an appeal without considering the appeal memorandum and without hearing the appellant under R.11. Under what circumstances the Hon'ble H.C. has held that the dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to a decree. In my view the dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to an order of dismissal for default as it is clearly stated in S.2(2)(b) of C.P.C. that "decree shall not include any order of dismissal for default". Likewise there is no doubt that an appeal preferred within time and an appeal presented beyond time has some difference in the eye of law. This difference is clearly noticed by the Legislature in R.3A, discussed above. In order to clarify this difference the Legislature has stated that an appeal presented beyond time shall be accompanied by an application to condone the delay and the court shall not make an order for the stay of execution of the decree appealed till the court decides to hear the appeal after admitting it u/R.l1. If the Legislature does not really want to make any difference between an appeal filed within time or beyond time then why two different words are used in two different stages of R.3A, sub-r.(l). This clearly shows the intention of the Legislature not to consider the appeal preferred within time and the appeal presented beyond time are same.

The Kerala H.C. again held "that the dismissal of an appeal consequent to the rejection of an application to condone the delay amount to a decree against which a second appeal is maintainable". Here also we couldn't agree with the view of the Kerala H.C, because when an appeal is preferred within time 0.41, R.l 1 will directly come into operation and the court can hear the appeal on admission and if there is no sufficient ground to prefer an appeal the court can dismiss the appeal in the admission stage itself u/R.ll. But if an appeal is presented beyond time the provision of R. 11 will come into operation only after R.3A, hence without complying R.3 A the court cannot exercise its power u/R. 11. So without admitting an appeal u/R.11 how the court could dismiss the appeal ? More over the dismissal of an appeal consequent to the rejection of an application to condone the delay does not have any ingredients of a decree defined u/S. 2(2) of C.P.C, and it will not become a subject of second appeal, because as per S.100 of C.P.C. second appeal lies only when the case involves a substantial question of law.

Hence the decision of Kerala High Court in Thampi's case is some how undigestive and the decision of Supreme Court in Shyam Sundar Sarma 's case which exclusively rested upon the decision of Kerala High Court in Thampi's case needs corrigendum from the judicial fraternity.

In this aspect the following questions needs consideration

1) Is dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to a decree ?

2) Whether dismissal of an appeal consequent to the rejection of an application to condone the delay is a subject matter of second appeal u/S 100 of C.P.C. ?

3) Is dismissal of an appeal consequent to the rejection of an application to condone the delay involves any substantial question of law ?

GLORIOUS RIGHT TO SILENCE

(By P.R. Balachandran, Retd. District Judge)

"Can a system afford to concede to an indictee the right not to actively assist the adjudicator in the attempt to discover truth", asks R. Basant, J. in Abdul Nazar v. Dileepkumar, 2004 (3) KLT 264 at 267, and provides the answer too but in the form of a few more questions. It is a thought provoking question. All those who had occasion to try criminal cases would have felt at sometime or other the "disappointment about the inadequate tools in the truth discovery process". We must certainly be able to evolve a better system to suit the realities of the situation in India today. What is surprising is that our law makers do not seem to have, even after half a century of becoming a sovereign democratic republic, made a genuine attempt in that direction.

Is it not time for a change? In this context, I think, we can consider borrowing the French system of criminal Justice and adopt with suitable changes. In that system, the procureor (public prosecutor), brings a crime to the notice of the 'enquete', which is a Court of a Magistrate meant for investigating and finding out evidence against the accused in collaboration with the police. All evidence is scrutinized and assessed under some kind of inquisitional system and witnesses are also questioned. The Judge combines the functions of a prosecutor and Magistrate to discover the truth with the aid of the police and other connected agencies. He may call witnesses and ask them to give whatever information they have about the offence in question. The 'enquete' may open mail and tap telephone wires. If there is any divergence between the testimony of two witnesses, the Judge d'instruction as he is called, may call them for a confrontation and after a detailed examination try to arrive at the truth. After the Judge d'instruction is satisfied that there exists a clear case against the accused and the accused is the real offender, he sends the case to the Court. In case he finds otherwise the accused goes free.

In Court, the trial proceeds on the assumption that the accused is guilty till he is found innocent. This may be a little shocking to us but this presumption need not disturb our sense of justice since a thorough trial or investigation has been done by an independent body, unlike the unilateral investigation of the police and mechanical transmission by the Committal Court prevalent now. At the trial, the accused gets enough opportunity to prove his innocence but he cannot afford to keep silent and must necessarily explain his conduct or reveal his version of the incident and other relevant circumstances. S. 106 of the Indian Evidence Act recognizes this responsibility to prove the fact within his knowledge.

The advantage of this system is that it provides a more independent and reliable method of investigation and the Trial Court need not be confined to the evidence adduced before it. The Judge may not have to feel helpless as now, when the witnesses are won over or turn hostile for other reasons. The result, invariably is the acquittal of the accused even in sensational cases. Rarely it is realized by the press or the public that it is not the fault of the Judge.

We have brilliant and experienced lawyers and Judges and if this provokes a meaningful debate on the subject, the purpose of this note is served.