Additional Accused and Public Interest

(S.A. Karim, Advocate, Thiruvananthapuram)

The Criminal Procedure Code, 1973, S.319 speaks about power to proceed against other persons appearing to be guilty of offence. The relevant portion of S.319 reads -

(1) Where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed.

In our country State is the complainant in every criminal case. The State investigates the offence either through local police, Crime Branch, or the Central Bureau of Investigation, depending upon the seriousness of the offence. Offence involving beyond national boundaries, Research and Analitical Wing steps in. Offence is proved either through the aggrieved and the occurrence witnesses or circumstantial evidence. There are several other formal witnesses.

In the course of an enquiry or trial, if there is evidence against any person other than the accused, the Court adds such person as additional accused. It is purely the subjective satisfaction of the Court. Judicial wisdom permits the aggrieved to file petition and alert the Court to add any such accused in the offence. Under S.394 of the same code, if an appellant dies during the pendency of appeal, his near relative can proceed the case in case leave is granted. Similar is the position in civil cases. Similarly there is nothing wrong to permit near relatives of the aggrieved to bring the matter to the attention of the Court.

This provision is being abused by social activists and public interest litigants. Their interest is to make somebody accused for one's oblique purpose. It may be for one's fame or to tarnish other's reputation. So, there needs provision who can approach the Court to add additional accused. 

Section 43 Cr. PC-- A Provision Seldom Used

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

S.43 Cr. P.C confers power on any private person to arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender. After such arrest the arrested offender shall be made over or cause to be made over to a police officer or in the absence of a police officer take such person or cause him to be taken in the custody to the nearest police station. The provisions of the section are extra ordinary in the sense that they enable a private citizen to arrest a person in certain circumstances and therefore, the section must be construed in a manner so as not to enlarge the power of private citizen to arrest a person. Though such a provision is there in the Code which is in existence for more than a century or so, the reality is that the provision is seldom used or more precisely never used by any private citizen at all. The raison-detre is that public at large is not aware of the fact that such a right is conferred upon the private individual. The other aspect is that even if they are aware of it, still they are hesitant to use it as they are doubtful about the protection they would get if the power is exercised. Most of the common people think that power of arrest can be exercised by police only, therefore they do not believe that private citizens have power to arrest offenders. They are equally quite sure that they cannot fulfill this task even if they try as dare-devils. If a thief or pick pocket is caught at red hand by a group of people, this may be possible but individual act does not end in success at all. India is a country whose majority of people are living in village side in rustic poor background. Naturally they would be dozile and inferioror who will not come forward and exercise the power under S.43 Cr. P.C, even if offences are carried out before their naked eyes. Further, even if one dares to exercise this power upon a criminal who does a criminal act in his presence, will the private individual succeed in taking the criminal to the police station? Not at all. Will the criminal surrender to the private individual and walk with him to the police station like a sheep in a shamble?. Never possible. On the other hand the criminal would forcibly ward off the private individual with his power of private defense and gallop away from the tentacles of law. So practically speaking S.43 Cr. PC is a provision which is lying as dormant as a dead wood in the thicket of the Code.

The section is a relic of the British rule in India. It corresponds to S.59 of the old Code of 1998. When Cr. P.C. under went successive amendments in 1923,1955 and 1973 S.43 were not at all touched. The present section is in substance the same as S.59 of the repealed Code, but slight peripheral changes were made. Under the English Common law system a private citizen had a right to arrest without warrant all persons found committing or attempting to commit a felony. While the British ruled India, the English men lavishly used this section to arrest any local Indians under the guise of the provision. However, the paradox is that after Independence none of the Indian Citizens ever had exercised this power at all. The Code is going to have a tremendous change as the Amendment Act 2005 will make a sweeping change onto it. Yet, the amendment does not touch S.43 at all. Thus a useless provision made by the British to suit their convenience is still lying in the Code gazing at the private citizen like an owl in a dark night.

HAIL TRG*

(By T.P. Kelu Nambiar, Senior Advocate)

Befitting the occasion, I would remind you that books are the tools of a lawyer, and the greater their variety and perfection, the greater the help to his professional work. Charles Lamb conceived a situation of spending time in an old library of myriad books, walking amid their foliage, 'inhaling learning'. Let us 'inhale law' by turning the pages of Sri. T.R. Govinda Warrier's old books. Law books are not glossy illustrated books or coffee-table books; they are meant to be read; not to be seen only. We are fortunate to get the books of Sri. TRG, a senior citizen of the legal profession, who, as a true lawyer, studied to live.

Sri. Govinda Warrier and I studied law together; but he studied it far better than me. We were made in Madras. Brilliant all the way, throughout school and University, he was.

On Mr. Warner's ceasing to practise, I can only say: "I am kind of speechless at the moment"

TRG proved himself a representative of dignity and courage. Hard work made him a great lawyer. Several lawyers loved to hate him because he was one of the best lawyers when other; did retail business, TRG did wholesale business. He wore his personality.

Sri. TRG’s method of argument was submission and domination. He injected life into a case approaching rigor mortis, by arguing the legal questions admirably. His capacity for sequencing, separation, preparation and safeguards, is unique. He taught Judges how to listen for more than seconds. He never sat like a spare part.

I lived a hundred dreams whenever I happened to defeat Sri. TRG in a case, rarely though.

Sri. TRG was an advocate who had his answers, grips, smiles, evasions, and explanations. He proved the distinction between voice and noise in court. He proved that advocacy is neither sound of music nor sound of noise. He ignited the legal profession. He used to trouble the Court with his good length argument and reverse swing. In his hands, advocacy was more of an art than a profession.

Today, the legal profession is in poor health on-court; it is in worse shape off it.

The Kerala Bar and the Kerala High Court are verily poorer in the absence of the wonder, that is TRG. I cannot recite a better ode to a living legend.

Let us hail Sri TRG for his gesture in donating the books to our Association, and thank Advocate Sri. Ramkumar, who is instrumental therefore.

Thank you for your earnestness in listening.

*Felicitation address delivered, on 26-10-2005, at the Kerala High Court Advocates Association on the occasion of launching the donation of law books by Sri T.R. Govinda Warrier, formerly Senior Advocate.                                                                                             

The Gentleman Lawyer

(By T.P. Kelu Nambiar)

I am prepared to declare, even from the nation's grandest pulpit, that Sri. K. Sudhakaran, formerly Senior Advocate, (now ceased to practise), was the gentleman lawyer of the Kerala High Court Bar. I have known him from November 1956 onwards; and am able to draw his growth graph and construct his progress report. From a village in Kerala to the fore-front of the Kerala Bar, as Advocate-General and Senior Advocate, is no ordinary journey. Forgive my arrogant assertion that Sri. Sudhakaran was the most upstanding lawyer of his times; and his generation's premier advocate.

Sri. Sudhakaran can be considered as Advocate's Special, with his extravagant arguments and recycled contentions. He was a long-distance runner. Today we see only advocacy's abridged version.

To drive home an important point, Sri. Sudhakaran did not hesitate to repeat his verbal contentions even to the power of hundred. He taught Judges how to listen for more than seconds. He showed neither despair nor diffidence. He knew that when a lawyer argues a case he should have recourse to legal vocabulary, not spiritual vocabulary.

Sri. Sudhakaran possesses character, which is a pre-requisite for greatness. He is a gentleman of good common sense. Alert, enthusiastic and affable, with these attributes as primary assets Sri. Sudhakaran endeared himself to all, and helped himself to a slice of legal profession's history in Kerala.

Sri. Sudhakaran has a great gift for love and friendship. To him, friendship is neither a formality nor a mode; it is rather a life, as David Grayson used to say. He is so friendly that he forgets himself. His friendship is without self-interest. I have never heard him speak ill of others. Never did he associate himself with any scandal or slander club. He never amused himself with the faults, foibles, follies and reputations of his friends, because he knew that talking scandal is no evidence of one's own goodness. He is a prudent friend. He is a true friend. And a true friend is the gift of God, said Robert South.

For a lawyer, from an advocacy-watcher to 'Advocate's Special', is a long and tedious distance. And Sri. Sudhakaran covered this marathon within a record time. His retirement from legal practice is a celebration of achievement. His diary is not smudged with any controversy foot-note. If I am quizzed as to who is the most friendly lawyer, with no hesitation, I would answer: Sri. K. Sudhakaran. And, one does not seek the name of a rose.

Just Disposal Not Just, Disposal

(By K. Ramakumar, Advocate)

Article 226 of the Constitution of India, is perhaps the most popular and power-packed Article in our Great Constitution. Its amplitude and sweep are so wide that it reaches out to all areas of injustice, annihilates arbitrariness, flushes out favouratism and strikes at the sworn enemy of the Constitution - inequality. The catch all Jurisdiction is put on hold only by self imposed constraints.

“Article 226 confers on all the High Courts very vide powers in the matter of issuing writs which they never possessed before” states the Supreme Court.

The Apex Court has spoken about it in Hari Vishnu Kamat, Syed Yakub, Nagendra Nath Bora and Alka Subash Gadia to name only a few cases.

Alas, what is happening now to this magic wand of lawyers, who should thank their stars for its advent, at a time when the traditional and conventional civil litigation over land, properties Zemindaris etc. etc. was waning if not vanishing. It is that Article that sustains scores of lawyers in the country today, although the founding fathers intended it litigant friendly and not a lawyers’ paradise. Of the five Writs, Certiorari and Mandamus are big hits, the latter being the biggest hit in the Kerala High Court. See the Article “Quo Vadis Mandamus” by the veteran lawyer, Sri. T.P. Kelu Nambiar - 2001 (2) KLT 53 (Journal). As early as in 1884 Lord Justice Bowen spoke about Mandamus as follows:

“A writ of mandamus, as everybody knows, is a prerogative writ, invented for the purpose of supplying defects of justice. By Magna Carta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice. If, therefore, there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done. The proceeding, however, by mandamus, is most cumbrous and most expensive; and from time immemorial accordingly the Courts have never granted the writ of mandamus where there was another more convenient, or feasible remedy within the reach of the subject.”

However, it is no longer cumbrous and expensive as it was in 1884. “Courts have grown accustomed to awarding it more freely” as Professor Wade puts it. Everyday this writ is issued to Secretaries to Government, and of Local Bodies, to Health and Educational Authorities are regularly to Regional Transport Authorities, to do their duties and perform their powers in time – “as expeditiously as possible or at any rate within...........................” - to quote from the familiar phraseology found in judgments of Kerala High Court. Ironically the litigant has a long wait - often running into years - to obtain this great writ. A pensioner, patient in the queue of cases denied terminal benefits - read denied his very sustenance - impressed of the potency of prerogative writs yearningly await adjudication on what the Apex Court said is not a ‘bounty’ is at last ordered to approach the same authority, he pleads that denied him his rights, by a memorandum. A servant of the Government, seeking seniority, secures a mandamus – to represent to his superior to consider his case. And of course if it is not considered – “with liberty to approach the Court again”. Examples can be multiplied. Courts should frown upon proliferation of litigation, than foment it.

In this all Constitutional Court can do or should do? A Constitutional Court, should be ordinarily dreaded by desecrators of the Rule of Law. Mordacious, Mala fides should be maimed and tamed by it. Arbitrariness, the enemy of equality must be erased out. Misuse of power must be mucked out mulcting costs too. A Constitutional Court, must secure to a citizen his rights in law, and not let him lament in a lengthy representation. In other words it must do its work and just not order others to work. Recently a seventy eight year old pensioner securing a judgment to submit a representation to the very authority, who said 'No' to his rightful claim, shouted at his lawyer that his services were requisitioned not to be used in a Post Office but in the Portals of a Prerogative Writ Court.

Judicial abdication is as much injurious as judicial encroachment upon areas not ear-marked or reserved for it. The new Chief Justice of India, however, has - recently refuted the charge that judiciary is encroaching on the functions of the Legislature and the Executive in his Law Day Speech in the Supreme Court Bar Association. Official inaction or inertia is often attributed to the absence of a work culture. In the United States, snow or sun, even working wives start at seven thirty munching a sandwich for breakfast while driving to work place. In China, the old opium moping idlers have been transformed into a vibrant workforce. This :y alone still does not appear to believe in hard work.

People expect courts to make Just disposals and not Just, disposals. The former help soar up confidence in courts, while the latter spin out statistics alone.