2014(3) KLT 605 (SC) -- The Last Judgment? 

Feedback - Ground Realities - Impacts

(By K.G.Joseph, Advocate, Aluva)

1. Ever since the coming into force of N.I. Act S.138, from 1st April 1988 there has been a sigh of relief in the commercial/business world for its transactions covered by cheques in as much as a dishonest debtor/drawer of cheques will have to undergo an ordeal of criminal trial/conviction when the cheque is dishonoured due to insufficiency of fund/non arrangement of fund on getting the notice from the holder/payee and on default of payment of cheque amount by the drawer/debtor. The enactment was updated with the feedback onits implementation by means of Amendment Act of 2002 by adding/supplementing Ss.143 to S.147. The flexibility/viability of the scheme with a pragmatic approach to the commercial transactions by cheques has been smoothly going on supplemented by suitable clarifications/explanations of Hon’ble High Courts/Supreme Court especially in Bhaskaran’s case (1999 (3) KLT 440 (SC)) by a two Judge Bench with regard to jurisdiction for trial of S.138 cases under N.I. Act.

2. The implementation of this special enactment with S.138 to 147 is really a blessing enjoyed by the commercial/business world. Progressive changes have taken place in the implementation of the scheme of this special enactment in the light of the timely and appropriate rulings in the judgments of various Hon’ble High Courts/the Supreme Court for the last 26 years from 1998 keeping the offence under S.138 as “deemed offence”, out of the realm of "mens rea”- guilty mind, without involving “moral turpitude” and treating it as more ‘technical” and “strict liability offence in commercial practice”. However the latest ruling contained in the Judgment of 3 Judge Bench of the Hon’ble Supreme Court in 2014 (3) KLT 605 (SC) dated 1.8.14 ((Dashrath Rupsingh Rathod v. State of Maharashtra) is epoc making in as much as the S. 138 had been rendered “accused centric” (para 4) with retrospective effect as the drawer is to be held criminally liable only when cheque is presented and dishonoured at the accused bank. And the complaint is to be filed before the court at a place where the cheque was dishonoured which is strictly in conformity with the Cr.P.C. provisions of Criminal Law. Ample details are available in paras 11, 12 of the judgment and in unequivocal terms the Apex Court has arrived at a considered decision by discussing the entire areas of the subject of jurisdiction so far handled by the High Courts rulings/Supreme Court rulings which are elaborately referred in the Judgment. Ultimately the jurisdiction for trial of the prosecution of S.138 cases is fixed at one place, the court where the cheque is dishonoured which is predominant with I.P.C./Cr.P.C. without preference for a “deemed offence” under the special enactment regarding S.138 of N.I. Act as discussed in Bhaskaran’s case fixing 5 places for trial.

3. It seems that the business/commercial world is very much pained to conceive the new idea of jurisdiction of trial of S.138 cases at the place of dishonour in as much as the
creditors/payees have to insist for local cheques of their choice at the time of parting with their money/property/goods/service while accepting the cheque. The normal transaction based on cheques will have an adverse effect when compared to the present system of transaction covered by cheques. The cheques arehonoured when presented for payment is the general rule and dishonour of cheque is an exception to the general rule in commercial field and S.138 is a remedial measure to protect the trade/industry/commerce/business - etc. etc. from the dishonest drawers/debtors. However even on exceptional grounds when cheques are dishonoured while accepting cheques other than local cheque the impediments/hurdles being confronted by the holder/creditor will be multifarious in as much as he has no option other than filing the complaint where the cheques dishonoured and not at the place were cheque was received nor at the place where his property was delivered /received by the Drawer/Debtor who induced him by committing the offence of cheating. The business community may be reluctant to accommodate to such a situation thereby badly affecting the business at large. The quantum of adverse effects on commercial transactions due to the impact of the rulings is yet to be measured for remedial steps. There is no scope for fling a case under S.138 case even at the place of receipt of the cheques or the place of delivery of money/property/goods/service as at present. With due respect and utmost, honour to the observations in paras. 11 and 20 of the present judgment it is noted that the retrospective effect, of the ruling is also painful to the holders/creditors/payees/complainants in as much as they have to go after place to place with the returned files for refiling at proper courts incurring heavy expenses, waste of time and energy in the midst of their day-to-day business with uncertainties regarding the fate of their cases which is a fatal financial injury to them after parting with their hard earned money to the accused, apart from the inconvenience to the profession of law. According to the commercial/business world these ruling is more drawer/accused friendly than holder/payee friendly though the expediency/flexibility/reliability for the enforcement of S.138 of N.I. Act was acceptable to them irrespective of debtor/creditor in its real/ right/ genuine sense and perspective.

4. As per the Article 141 of the Indian Constitution, “law declared by Supreme Court shall be binding on all courts within the territory of India” and the rulings in the judgment is the last word on the question of trial jurisdiction or any dispute regarding this in the matter of S.138 cases. A quotation from, ever worshipful Hon’ble justice V.R. Krishna lyer is most relevant which is reproduced that "The Supreme Court is final not because it is infallible, but it is infallible because it is final”; (from the book “Nambiar Third Miscellany” by ever respectful T.P. Kelu Nambiar, Senior Advocate).

5. Having said so it is noted that paras. 27 and 31(VII) of the judgment is a silver lining with a ray of hope and relief to the aggrieved holders/payees of the cheques in which there is a detailed discussion of the process for prosecution of “anoffence committed under S.138 as a part of single transaction with the offence of cheating and dishonestly inducing delivery of property”. The following places are identified for trial

     (1)         the place where the inducement took place.

     (2)         the place where the cheque forming part of the same transaction was dishonoured.

     (3)         the place where the property which the person cheated was dishonestly induced to deliver.

     (4)         the place where the accused received such property.

To cite an example: if a Delhi Merchant comes to Kochi and gets goods from Kochi Merchant and issues his Delhi Bank cheque and if that cheque is dishonoured at Delhi Bank there is a specific case for the holder/payee of the cheques in Kochi where in he has been induced to part with his goods at Kochi as he has been cheated dishonestly and induced to deliver his goods at Kochi which the accused received at Kochi. The holder/payee in Kochi can very well file the complaint before Court at Kochi jurisdiction even though thecheque was dishonoured at Delhi. This example is equally applicable to Kochi Merchant who goes to Delhi and transacts in similar manner. As such the offence under S.138 is committed as part of a single transaction with the offence of cheating, the place of trial and jurisdiction can be the place of inducement, delivery of property receipt of property apart from the place of dishonour of cheque. The evidence to prove dishonour of cheque under S.138 offence becomes ipso facto evidence for the offence of cheating as is committed as part of a single, transaction. A special statute like N.I. Act S.138 was enacted for commercial expediency and trading facilities for speedy transactions when cheques are issued/accepted as good as money transactions except where cheques are dishonoured. The credibility and transparency of commercial transactions through cheques was well secured by N.I. Act under S.138 and there is protection to the holder/payee against dishonest drawer /debtor who gets delivery of property by inducing the payee by means of the cheque which was dishonoured. As the offenceunder S.138 is committed as a part of single transaction with the offence of cheating, the place of trial and jurisdiction can be the place of inducement, delivery of property, receipt of property, apart from the place of dishonour of cheque.

6. It is an eye opener to everybody that lakhs and lakhs of S.138 cases are pending in the various courts and filing of cases are largely on the increase all over India which bears testimony to the magnitude of this issue in the commercial world. The mindset of a holder/payee of a cheque can very well be analyzed that after having left his money/goods by accepting cheques he is compelled to go after place of the drawer’s/debtor’s Bank for filing complaint and for proceeding with prosecution. From the present situation it is gathered reliably that a Section of the Business world are reluctant to accept outside cheques resulting adversely the business of both buyers/drawers and sellers/payees. Such a trend shall not be allowed to go unnoticed by the respective authorities at appropriate level so that remedial measures are adopted to activate the situation to attain boom and not recession of the business/trade/commerce/industry of the country at large.

7. Until a revised dictum in trial jurisdiction of S.138 cases is received in appeal or otherwise, I humbly conclude this article with the following suggestions that:

(a) Fruitful/effective discussions at appropriate level especially in the legal parlour is highly warranted at this stage inrespect of the implementation of the new dictum contained in the ruling so that the trial in the special enactment of S.138 cases of N.I. Act gets its independent entity/status within the situations of exceptions contained in para 27 and para. 31 (VII) highlighting the exceptional situations discussed therein with reference to S.177, 220 (1) read with S.184 of Cr.P.C. and S.182(1) read with S.184 and 220 there of viz a viz S.138 of N.I. Act by means of filing one and the same complaint for offence of cheating and offence of under S.138 as well. Whereas it is worth noting that exceptional situations are not necessary/obligatory when the complaint for trial of the offence under S.138 is filed at the court where the cheques are dishonoured though such situations are invariably in existence in the same case ?

b) Discussions are also inevitable as offence under S. 138 is a “deemed one” by means of a legal fiction and that it may continue to get the privilege of a special enactment making its place of trial a “deemed place of trial” such as the place of origin of the transactions between the drawer/debtor and holder/payee or the place where the cheque was issued/received. This will tender the holder/payee to avail his natural justice to file the complaint at the above place (rather than going to the place of the Bank of the accused where the cheque was dishonoured without compulsorily making obligatory/necessary the offence of S.138 as part of a single transaction with the offence of cheating) as was followed before the dictum in 2014 (3) KLT 605 (SC) ensuring the special enactment of S.138 of N.I. Act as independent as any other special enactment without confining the prosecution only within the frame work of I.P.C./Cr.P.C.

The  Kerala  Buildings  (Lease  and  Rent  Control)  Act, 1965 --
 

A  Legislation  to  be  Repealed  or  Struck  Down

(By Biju Menon K., Sub Judge, Ottapalam)

The Kerala Buildings (Lease and Rent Control) Act which we conveniently call the Rent Control Act, was a unique legislation at the time of enactment in the sixties when our State was in economic, political and social turmoil. Legislature wanted sweeping changes in the social fabric to do away with the consequences of long exploitation of underprivileged masses. In came a series of legislations among which the Land Reforms Act stands out. It converted contractual tenancy of land into full ownership. The State considered such changes necessary to achieve the constitutional mandate of equality. The Rent Control Act was certainly a part of this outlook.

Before the passing of the Rent Control Act, most leases were governed by the Transfer of Property Act. As we know, the lease of a building involves dual limbs, on agreeing accommodation to be used by the tenant and the other agreeing to pay rent. Each limb is a consideration for the other, parties being given the option, subject to contract/usage to the contrary, to terminate the same by notice under Section 106 of the Act.

We have to bear in mind that it was a time when there was acute shortage of residential and non residential accommodation. The tenants, who were considered the underprivileged, needed protection from indiscriminate eviction and spiralling increase in rent.

Section 11 of the Rent Control Act, which starts with a non obstante clause, apparently aimed at excluding the operation of the Transfer of Property Act, brought in and confined stringent grounds for eviction. Over decades, the concept that the Act is a benevolent legislation intended to protect the interests of tenants got cemented. Though society kept growing, the balance of power started tilting in favour of the tenant. With restrictions on the increase of rent under the Act, income of landlords dwindled and the tenants, inspite of their increase in income and profits, refused to pay reasonable rent. Due to continued insensitivity of the State to the changed scenario, courts were forced to step in. The Hon’ble High Court struck down Ss. 5,6 and 8 of the Rent Control Act as unconstitutional and void in Issac Ninan v. State of Kerala (1995 (2) KLT 848).It was expected that the legislature will fill up the ensuing vacuum. But nothing happened till 2004 when Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767)was rendered by another Division Bench and restored S.5(1) alone empowering the Rent Control Court to fix fair rent without the restrictions in the nullified provisions. Now we have a flurry of cases praying rent to be fixed as per the guidelines given by the Division Bench.

Issac Ninan andEdger Ferusare landmark judgments which should be lauded not only for the excellent reasoning, but also for the practical approach to be followed in such situations. As law making is in the exclusive domain of the legislature, Edger Feruswas the only option available to court.

As mentioned earlier, lease is essentially a self-accepted contract, the enforcement of which rests with the parties. Determination of lease was one such matter. The Rent Control Act took away this prerogative from the landlord and imposed a set of rigid grounds for the same. It was certainly a huge  deviation   from  the  law  which  existed  till  date.  The provisions regarding fixation of fair rent will have to be considered in the light of this situation. Sections 5, 6 and 8 struck a balance between the curbs on eviction and the duty of the tenant to pay reasonable rent. But the restrictions imposed thereunder paved the way for Issac Ninan.Now we have a situation which is fine tuned for the modern society. The landlord can at least get reasonable rent proportionate to the demands of the modern day. The balance has become somewhat even.

It is the judiciary alone which has brought out this happy equation. But where is the legislature? It turned a blind eye to the hope expressed by Court to bring in a more equitable and fair legislation in place of the ultra vires provisions. Is it not time to restore freedom of contract and permit people to opt for terms of contractual tenancy? In this era of globalisation, law should not impose undue restrictions on private deals which are in the realm of contract. In this way, Section 11 of the Act is also oppressive and unconstitutional as it imposes unreasonable restrictions on the fundamental rights of citizens to hold property and/or to carry on trade, occupation or business of their choice. If Sections 5, 6, 8 and 11 of the Act are gone, then the remaining sections may not have any independent existence.

Substitution of the present Rent Control Act with similar provisions is not the solution since it will only bring in further complications. Suitable and wholesome amendments can be brought to Transfer of Property Act which still serves many purposes. The concept of State restrictions on contractual matters has become redundant. Lease and rent no longer requires absolute control. The Rent Control Act has outlived its utility. Yes, the Act needs to be repealed by the legislature or struck down.

Victim's  Right  to  Compensation

(By  Sathyashree  Priya E., Advocate,  High  Court  of  Kerala)

Rajan, a manual labourer by profession was at the prime of his youth when the incident occurred. He was the sole bread winner of his family and taking care of his aged parents and his sister and her child. Rajan was a tee totaller and a person of soft nature. One evening while he was returning from work, his brother-in-law-Kumaran inflicted a deathly blow on his neck (with a chopper he used for plucking coconuts) to wreak vengeance due to some petty quarrel and Rajan succumbed to the injuries (suffering from huge blood loss and enduring great pain). A case was registered against Kumaran and he was convicted to life imprisonment for the crime. A fine of `10,000/ was levied on Kumaran which was directed to be paid to the legal heirs of the victim, if recovered! This fine could not be recovered and had it been recovered also it would have never been an adequate compensation to the loss of life of Rajan! Then what happened to the aged parents of Rajan and his sister and child who were solely dependant on Rajan for their livelihood? Nobody knew nor nobody cared!!

This is a case, wherein, apart from the victim whose life is cut short at a young age, a family dependent on him is left behind bereft of their livelihood!!Though Rajan’s life cannot be brought back, had he died in a motor accident or railway accident or an industrial accident would things have been different for his aged dependants?!This hypothetical case is put forward to set the thought process in motion relating to compensation given to victims of crime ¹in cases of unnatural deaths and rapes by the justice delivery system .This article seeks to focus on whether a victim has a right to compensation and if so, how to get it enforced?!

Of course under Section 357 Cr.P.C. the court is empowered to award compensation² to the victims of Crime but in reality how effective is it? Is it uniformly awarded in all cases ? If not, why not? Who shall pay the compensation and what would be the amount? Since the victim is not a party to the case how shall it be recovered?

In the instant case, the accused being from a socially and economically weaker section of the society it will be a futile exercise to levy a fine on the accused so as to recompense the victim. In such instances who will take up the responsibility of compensating the victim? Is the State legally bound to compensate the victim? Has the State committed any overt act or omitted to protect the life of a citizen which the State guarantees under Article 21 of the Constitution?

Section 357 of the Cr.P.C³ has been used sparingly by the Courts and more often the victim or his dependants do not receive adequate compensation. Though it is often re-iterated by superior courts that in fixing the compensation the courts have to take into account the nature of crime, injuries suffered, justness of claim, financial capacity of the accused to pay compensation and various other factors, there are no adequate guidelines to arrive at the amount of compensation in such cases. Since it is a discretionary power vested with courts, the compensation awarded in most cases is too meager or grossly inadequate. This is also not uniformly invoked in all cases. Normally the fine is levied on the accused and the fine if collected, maybe directed to be paid to the victim or his legal heirs. Whereas in accident claims cases, Railway claim cases or Workmen’s Compensation cases the Statute (coupled with the decisions of the superior courts) provide for a better compensation regime for the victims of accidents. Compensation in all such cases is awarded in two parts. The first part being the standard compensation or conventional amount which is awarded for the mental pain and agony, loss of consortium, loss of company etc. The second part is the compensation for the pecuniary loss which has relation to dependency such as the pain and suffering, mental agony undergone by the victims. Well, in reality, these parameters remain the same whether the person loses life in an accident or a murder!!!!!!. The loss of consortium, love and affection, dependency, pain and suffering, mental agony undergone also remain the same in all cases! Human life is invaluable! In the case of death due to accidents by motor vehicles the State by statute fixes the responsibility of compensating the victims on drivers and owners of the vehicles. Similarly in Industrials deaths, the employer is held liable to compensate the victims. In Railway accidents certain amounts are fixed by the Government for loss of limbs and life caused by Railway accidents. Thus the State fixes up responsibility on the wrong doers (personal liability or vicarious liability) whereas in the cases of unnatural deaths caused by homicides the State only punishes the accused through the criminal justice system and the victims are seldom cared for. Constitution of India and in particular Article 21⁴ vests a duty upon the State to protect the life and liberty of every individual within the State, be he a citizen or otherwise. This duty enjoins the State to reparate for the loss of life caused to its citizens. State has to provide compensation to assuage the hurt, both financial as well as mental, which the surviving members of the family of the victim tend to suffer for the rest of their lives. It is perhaps recognizing this duty enjoined upon the State, as a progressive measure, the Code of Criminal Procedure 1973 as amended by The Code of Criminal Procedure (Amendment) Act 2008  (5 of 2009) and has now an added provision in the form of the Section 357-A on victims’ compensation⁵.

Compensation available under a constitutional remedy has been far more readily invoked by the Courts and amounts of a greater quantum have been granted than under Section 357(3) of the Cr.P.C. In a catena of decisions, the Supreme Court⁶ and the High Courts⁷ have reiteratedthat a victim of crime is the one who has suffered the most because of the criminal act of the convict. His family is ruined particularly in the case of death and other bodily injury and he is certainly entitled to adequate and reasonable compensation.

In the present legislative set up, from the discussions above, it can be seen that victims of Crime seem to possess a statutory right to claim compensation. The victim will have to approach the trial court in which the trial of the criminal case is conducted, requesting for compensation.Instead of establishment of the Criminal Injuries Compensation Board as directed by the Supreme Court, a different mechanism has been contemplated for disbursement of compensation to the victims of crime. As per the amended provision of the Criminal Procedure Code, on conclusion of the trial when the trial court makes a recommendation for compensation, the matter shall have to be referred to the State or District Legal Services Authority for quantification of the amount⁸. This presupposes that the victim/s will have to get themselves impleaded in the trial case and claim for compensation. But courts have hardly invoked this provision and referred the matter to Legal services Authority for fixation of compensation as provided for. Hence, it is also to be made mandatory that the Courts will have to record reasons for not awarding compensation. It is however not clear as to who will disburse the amount; whether it is the Legal Services Authority which quantified the amount or whether the matter has to reverted back to the court which sought for quantification of the same. If it is the latter, the process is really cumbersome.

The amendment also mandates that even where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation⁹. It further provides that, in order to alleviate the suffering of the victim, the State or District Legal Services Authority may order immediate first-aid facility or medical benefits to be made available free of cost to the victim or any other interim relief as the appropriate authority deems fit¹⁰. This Statutory recognition of the right to interim relief is a positive step towards recognition of the right of victims of crime. Also, the Cr. P .C. has been further amended, to provide a victim a specific right of appeal for inadequate compensation¹¹. These measures surely provides a ray of hope to victims of crime in the realm of compensation.

Recently the Kerala State has evolved a Kerala Victims Compensation Scheme, 2014¹² wherein a scheme has been laid out for compensation to victims of crime. Rule 3 of the scheme mentions about the constitution of Victim Compensation fund and rule 3(6) mentions that the fund shall be operated by the Member Secretary, K.E.L.S.A.. However in reality no such amount has been deposited so far even after a lapse of eight months!!As per the scheme, all victims of crime are entitled for compensation that may range from `20,000 to `5 lakh. For the relatives of a murder case victim, a compensation of up to  `5 lakh will be given while a victim of burns affecting less than 25% of the body will get `20,000. A rape case victim is entitled for compensation up to  `3 lakhs while a victim of dowry related violence can claim up to `2 lakhs. If the victim is aged below 14, he/she can claim 50% more than the maximum compensation amount. The scheme provides that a dependency certificate has to be obtained from the Tahsildhar (which shall be issued within 15 days of its application).It further provides for a second appeal to the Government (Home Department) from the State Legal Services Authority for rejection of his/her claim

In countries like the UK¹³, New Zealand, Australia ,the U.S. etc there is a well developed Victims Compensation Regime in place with victim support services. Hence it can be safely concluded that when a person who caused injury due to negligence or carelessness is made liable (directly or vicariously) to compensate the injured it is only just and fair to make the offendor (guilty of causing the injury with necessary ‘mens-rea’) to pay compensation to the person who has suffered the injury. In other instances when the offendor does not have the capacity to pay, the scheme formulated by the State can be invoked by the courts. Though some trial courts have started to utilize these provisions it is regretted that no such amount from the fund has been deposited with KELSA so far even after a lapse of eight months available for disbursement. Under such circumstances it is very much doubted whether the scheme will remain a paper tiger! It would be a futile exercise on the part of the Court and the Legal Services Authority to arrive at a compensation if it is not disbursed in time to the victims! It would definitely amount to erosion of faith of the common man in the justice delivery system! Hence it is also suggested that as an alternative measure the State also constitutes an insurance scheme for all its citizens for the coverage of unnatural deaths and rapes. While it is reiterated that the punishment to the offendor has to be stringent in all these cases, it is high time that a well established legal regime for compensation to the victims of heinous crimes has also to be evolved and ultimate timely justice is delivered to the victims of Crime.

FooteNotes

1Victim of Crime has been defined in S.2 of Cr.P.C as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir. However the UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines such victims. Though the said declaration is not a legally binding document, principles are laid down for reference and maintenance of high standards.

Article 1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

Article 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

2 Blood money, was, compensation paid by a murderer to the kinsfolk of the victim. The system was common among Germanic peoples before the introduction of Christianity , and a scale of payments, according to the heinousness of the crime, was fixed by laws. It was also practiced in the East and the West across civilizations . The theory of punishment for crimes was introduced much later. While the purpose of the punishment is the protection of the society, and the community’s reformation the purpose of compensation is to recompense  for injuries or damages caused to others.

3. 357 Cr.P.C. Order to pay compensation.

(1)When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied.

(a)in defraying the expenses properly incurred in the prosecution;

(b)in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c)when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

(d)when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

(2)If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

(3)When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

(4)An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5)At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

4Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

5 (1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.

6 (a) Palaniappa Gounder v. State of Tamil Naidu ((1977) 2 SCC 634, 636). In this case, the son and two daughters of the deceased filed an application before the High Court under S. 482 of the Cr.P.C, praying that the accused be directed to pay them, the dependants of the deceased, compensation to the tune of
` 40,000 for the death of their father. Finally, in the Supreme Court it was held that since S. 357 expressly confers powers on the court to compensate the heirs, there is no need for invoking or exercising the inherent powers of the court).

(b) Rudul Shah v. State of Bihar (1983) 4 SCC 141) Rudul Shah was kept in illegal detention for over 14 years after his acquittal in a murder case. In this case the Supreme Court decided to grant monetary compensation to a tune of ` 35,000/ as interim relief for violation of right to personal liberty. The court also said that this order will not preclude Rudul Shah from bringing a suit for recovery of adequate damages from the State and the officers responsible.However no reasoning was given by the Court for arriving at the specific amount.

(c) Hari Krishna & State of Haryana v. Sukhbir Singh ((1988) 4 SCC 551) the Court may order the accused to pay some amount by way of compensation to the victim which is a constructive approach to crime. The amount of compensation should be reasonable and depends upon the facts and circumstances of the case first time, for the deprivation of fundamental rights.

(d) Nilabati Behera v. State of Orissa (AIR 1993 SC1960) Court had awarded monetary compensation to the victims dependants.

(e) Baldev Singh v. State of Punjab  ((1995) 6 SCC 593) Court opted for the compensation theory instead of extending the sentences of imprisonment.

(f) Balraj Singh v. State of U.P.  (AIR 1995 SC 1935 = (1994) 4 SCC 29) Power to award compensation is not ancillary to the other sentence but in addition thereto.

(h)Delhi Domestic Working Women's Forum v. Union of India & Ors. ((1995) 1 SCC 14, JT 1994 (7) 183)
 it has been held by the Hon’ble Supreme Court that ,it is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board and that Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

 (g) D.K. Basu v. State of West Bengal ((1997) 1 SCC 416)the Supreme Court held that monetary compensation for redressal by the court is the only effective remedy to ‘apply balm to the wounds’ of the family members of the deceased victim, who may have been the bread winner of the family.

7 Uttarakhand Sangharsh Samitee v. State of U.P. (1996) 1 U.P.L.B.E.C. 461). The High Court in a historic decree awarded ` 10 lakh each to deceased victims’ families and ` 10 lakh for rape victims judging the crime equivalent to death; `5 lakh to the victims of sexual molestation; and ` 2.5 lakh to `50,000 for less serious injuries. Thus, the court while advancing the cause of human rights and giving more teeth to the constitutional guarantee for a right to live with dignity vide Article 21, declared that the court itself could award compensation in a case of human rights violation. In the instant case, the State was held vicariously responsible for the crimes committed by its officers and was directed to compensate the victims and was not protected under the doctrine of sovereign immunity wherein the State can avoid criminal liability in the name of ‘acts of State’.

 8Section 357(A)(2)Cr.P.C provides that while recommending for compensation, the courts will have to refer the case to the Legal Services Authority for quantifying the amount of compensation

9 Section 357(A)(4) of the Cr.P.C

10 Section 357(A)(6) of the Cr.P.C

11 Section 372 of the Cr.P.C.

12 G.O.(Ms.)NO.37/2014/Home dated 24th February,2014

13 In England, Criminal Injuries Compensation Act, 1995 contains a number of provisions which directly or indirectly encourage an even greater role for compensation. In New ZeaLand, the Victims’ Special Claims Tribunal hears claims from victims of crime and decides whether they are entitled to compensation. In Australia, if the person responsible for the crime is convicted the victim can apply to the court sentencing the offender for a compensation or restitution order. The Compensation or Restitution Order is additional to the sentence imposed on an offender. It may be made by a court on its own initiative, or following an application from a victim or the prosecutor. In the U.S, a crime victim is not a “party” to the case. Legal standing for victims is not automatic but must be provided by statute or court ruling. The prosecutor or some other official has the authority to seek court enforcement of the victim’s rights.

Laws to Mankind as the Sun to  Planet - III

(By Dr. K.B. Mohamedkutty,   Senior Advocate and Former Law Faculty Dean)

We have a feast of laws. They permeate the entire gamut of individual and social life. However, the people are insulated from justice of the law. Naturally there is desire for changing the law and justice system. Seeing the working of laws of his time, Carlyle (1795-1881), a great British historian and a leading force in Victorian Literature, called it a “Pig Philosophy”.  He found that in the name of law a few who are well-placed are protected and the majority who constitutes poor segment of the society is exploited.

The concept of justice nurtured and kept alive in the heart and soul of the people far exceeds what is provided in the law. For example, there is no effective law in India to curb fraud on the people in a big way. Money is obtained under false pretence without having any effective remedy for the innocent victims. The Hon’ble High Court of Kerala has highlighted the inadequacy of the law on Fraud in Shalu Menon  (2013 (4) KLT SN 45 (C.No. 39), in these words: “The time has now come, where the mischief of fraud has become so rampant, that too in a large scale in the State, to have separate legislation with penal provisions effectively curbing and meeting out punishment to those who dupe and defraud innocent public by false representation, failure to disclose information or abuse of their position.” The people are easily deceived not only in India, but in all countries. Joseph Addison remarked long ago:

 “I remember when one whole island was shaken with an earthquake some years ago; there was an impudent mountebank who sold pills which (as he told the country people) were very good against an earthquake.”

 No  time  for  Law-Making

The path of law is forgotten even by the elected law makers. They have no time to make laws. The lawlessness of legislators is a bewildering and shocking sight today. The pepper-spray attack in the Lok Sabha when Telungana Bill was introduced on 13th February 2014 witnessed an unprecedented low. Certain injured M.Ps were rushed to hospital from the Parliament, some fainted on the floor of the House inhaling the lachrymatory substance. Brandishing knife and breaking the glass window of the noble House of Democracy followed. The House was dispersed in a state of pandemonium. Often the Parliament has been reduced to a wonderland of bad politics. Arnold Toyenbee, the great historian observed: “The history of every institution furnishes examples coinciding with deterioration of quality.”

 A large number of laws have become inactive as they are covered by administrative ashes. Some of our laws suffer from drafting pitfalls as an old British jingle tells us:

“I am the Parliamentary draftsman

 I compose the country’s laws

 And half the litigation

 I am undoubtedly the cause.”

Exasperated and disappointed, Shri. V.R. Krishna Iyer, former Judge of the Supreme Court, wondered: “Why half of the litigation, half the frustration too” (AIR 1980 S.C.ll87, 1195).

A  candle  in  the  Dark

Failures notwithstanding, the people believe that their life is illumined by the law and it rescues them from a lot of troubles. There are laws which brighten the cause of social action against abuse of power and act as a force in the struggle for better life. Rumi visualises the destiny of man in such an unending struggle:

   “Angel is free because of his knowledge,

      The beast because of its ignorance,

      Between the two remaining the son of man to struggle”.

Law stood as a vanguard in man’s struggle and it has attained a great continent of experience. The law clothes the living body of the society as the skin, the largest organ, covers and protects the body. We find legal winter, summer, autumn, tempest or storm depending upon the “pressures and pulls” of social needs. In his classic work ‘Laws’ Plato says in prose more beautiful than poem that “Laws are partly formed for the sake of good men in order to instruct them how they may live on friendly terms with one another, and partly for the sake of those who refuse to be instructed whose spirit cannot be subdued, or softened or hindered from plunging into evil.”

Today, we are entangled with means of securing conditions of social life where competing interests exist. The role of law in such a situation is widely accepted both by dreamers and activists. The government may come and government may go, but law’s fundamental mission is securing justice for all. However, it is said half-humorously and half-seriously that laws are not understood by three categories— those who make them, those who implement them and those who obey them. Bentham was of the view that those who are left unpunished for violation of the law are those who administer the law. And yet there is nothing wrong in assuming that people all over the world entertain hope that wholesome legal systems must grow up and develop. Gandhiji had this dream; Jawaharlal Nehru had his vision and passion in this respect, Rabindra Nath Tagore had his intensity of perception about it which he expressed in his impactful poetic style in Gitanjali. The ordinary men and women in villages and towns of India are hopeful that they will be uplifted sooner or later. In the onward journey for the fulfillment of such aspirations the law sets up parameters in the same way as walls and fences do. We build our social walls or fences to prevent trespasses, and to secure and sustain overall prosperity through national and international development. The economic stagnation, increasing crime, corruption, red tape, failure of rule of law, evils of globalization etc., are attributable to laws’ failure. But law is not the only means for protecting social life and harmony. A large segment of moral principles is at work side by side. However, legal prescriptions do not philosophize like saints that suffering is good and that poverty ennobles man. On the other hand, law aims at removal of poverty, oppression and selfish authoritarian regime, and for establishing equality without allowing people to be degraded in social life. We find philosophical and metaphysical content and interaction in its process.

Rise  and  fall

In the past when soil, air, water, forests and other natural resources were polluted, exploited or handled by vested interests, there was no struggle against such misdeeds from the side of the people. There was no vigil over what was happening. But today legal standards in all spheres of life are insisted. Law is omnipresent like the ever-widening canopy of the sky with its endless branches regulating human behaviour, economic relations and exercise of power by the State. If we take a little piece of law, we find in it foot-steps of the past and the heart-beats of the present and the dreams of the future. Even minute change in man’s life is reflected in law which is meant for all dwellers of the earth. It is a mighty treasure if used with vision. The curse of war, poverty and all fears which consume us could be averted by the rhythm of the law.

We find, whether we like it or not, waxing and waning of the law as time goes on. It is not like the waxing and waning of the moon which follows a systemic wonderful order. The rise and fall of the law depends upon social atmosphere of the country and temperament of the people and events taking place even outside the country as the world has shrunk and distance is reduced amazingly. Today without any slip of exaggeration we can say that history of the world is nothing but the biography of legal systems. The legal system is true reflection of history of man in different parts of the world. Great thinkers expressed the view that science has no such tradition. Science is recent. According to Bertrand Russell science began to assert its presence only from the days of Galileo (1564-1642).

Change  and  Stability

 The theoreticians and reformers are rare species in contemporary India. But, there are millions of unlettered people in India who are unaware of law, and yet they trust upon it. They get its message and magnetism not only from laws enacted, but also from ethics and morality flowing from religions and other moral texts. The Bible, the Vedas and Upanishads, the edicts of Buddha, the Qur’ran etc., give excellent legal norms. The legal system of each country seems to be like a river running across different geographical regions. As time goes on, its stream increases and become more refined as it travels from source. The law has undergone change and will continue to change with varying winds of time and in this ever-changing stream permanency of law is just impossible. It develops a tendency to perish quickly and so its compiler faces the problem of it being out of date as it goes on to print. Precedents established by judiciary are overturned quickly and quietly and sometimes by overnight. Certainty is considered as its hallmark, but, chameleon-like, law undergoes change making certainty a mirage. Some of them, of course, are moribund or like dead stars, which had a shining past.

The proliferation of law leads to specialization, which means learning more and more about less and less. It is learning by compartmentalization. Knowledge is split up for detailed study. Litigants today prefer to handle their cases by experts. For every tiny little area there is specialized lawyer. Textbook writers compare law with a big tree with innumerable leaves and branches at different stages of growth and decay. It has a wide network of roots. The tree gives us fruits. It gets sustenance from far and wide through roots and leaves. It protects us from heat and sound and pollution. It spreads coolness around. Gradually over years of accumulation, timber is formed in its trunk, which is the culture that it preserves for the mankind. Every second the tree is growing. It has grown in the past and is ever-growing. And yet it appears to be inanimate for the present. The law has all the characteristics of a tree.
O.W Homes Jr., who was an eminent judge of the American Supreme Court, observed that “If your subject is law, the roads are plain to anthropology, the science of man, political economy, the theory of legislation, ethics etc.” But what is the remedy when law bungles? Plato, said in his ‘Republic’ that if philosophers were kings, laws were superfluous. He said so before he became old and moderate. However, when he wrote ‘Laws’ he was old and matured and became convinced after travelling through different countries that true philosophers were non-existent and law was necessary for justice. In Adharva Veda, ‘Time’ is depicted as a horse with one thousand eyes. Its Chariot is the Universe. The wheels of the chariot are painted with colours, ever changing. The colours, it is observed, are symbolic of changing laws.

 Visible  and  Invisible  Premises

 The question asked in the past was whether law flows from an omnipotent authority placed high above the society who commands downwards. Now, on the other hand, juristic thinking is that law spontaneously grows upwards under the “pressures and pulls of the time”. The enforcement is its visible sign, but competing interests of man and the society he lives in are its invisible premises. The attempt to satisfy unlimited human wants and desires within the limited resources gives rise to disputes. The law steps in to resolve such issues. The people are not, however, thinking about the law or its philosophical perplexities. They ask the question whether it did anything against the murky deeds of yesterday or whether it does anything against the unjust acts of today. They look at what it does, not what it means. The people want straight answer to questions of policy and politics of the law. They are concerned with the institutions and personnel who handle their affairs. The viewpoints of other disciplines and lessons from events taking place around us have a definite impact on the growth of law. The inherent nature of law is that it has to be activated for social change; it is not a self-starter. It grows with the growth and strengthens with the strength of the people and their attitude and takes within its ambit “the agony of the present and the hope of the future”. In sum, when we look at law’s ways in all nations of the world we find that they provide energy and shine, like the sun in the sky, though “by and by a cloud passes away”.

Decentralising  Environmental  Justice

(By Kaleeswaram  Raj, Advocate, Supreme Court of India and High Court of Kerala)

Ecological crisis has given a new shape to class struggle.  Like workers, dalits and women, another mass of downtrodden – a global precariat – emerged in the realm of environment. This in turn necessitated a new victimology  in the adjudicatory process.   Terry Eagleton said in another context – 

“Court rooms, like novels, blur the distinction between fact and fiction. ….The jury judge not on the facts, but between rival versions of them.  Since post modernists believe that there are no facts in any case, just interpretations, law courts neatly exemplify their view of the world”.¹

The observations apply to the environmental litigation in India.  The constitutional courts were to decide serious issues of survival merely on affidavits, which are only versions and not necessarily reflections of reality. The scientific and technological aspects of ecological litigation often made the conventional ‘Wednesbury approach’ inadequate. The courts had to travel beyond ‘pure reason’ and ‘policy’.

Special environmental courts were intended to overcome the limits of the traditional judicial approach.  The need for integrated institutional device in environmental adjudication was globally accepted.  There are 354 specialised courts/tribunals scattered over 41 countries. During 2007-2009 alone, over 130 specialised institutions came to be established, according to George Pring and Catherine Pring.² They also visualised “a paradigm shift from a purely legalistic decisional approach to one combining law with a ‘creative problem solving’ approach necessitating new legal thinking and development of new precedents, remedies and options”. The attitudinal change was reflected in the international declarations. While Stockholm (1972) emphasised the principles of conservation, Rio de Janeiro (1992) focused on “effective access to judicial and administrative process” in environmental matters.

In M.C.Mehta³ the Supreme Court called for decentralised environmental courts.  The need for such specialised courts was stressed in Indian Council for Enviro- Legal Action ⁴ and A.P.Pollution Control Board.⁵  Following these judgments, the Law Commission submitted its 186th report. That led to the National Green Tribunal (NGT) Act. The Tribunal was established on 18.10.2010. It is therefore a statutory manifestation of a judicial prescription.

Judicial activism, however, need not necessarily lead to a fault-free legislation.  An unimaginative statute may come into being for various reasons.  The Law Commission report⁶ had its limitations as abundantly reflected in the N.G.T. Act. They in turn had the effect of eradicating the participatory and representative role of the people.

Flaws in the report

The mechanical reference to other jurisdictions in Chapter IV of the Law Commission report does not carry a realistic and comparative analysis.  While giving emphasis to the technical and scientific components in environmental litigation, the report failed to acknowledge the people’s demands in a federal system with 29 States and 24 High Courts.The Commission in Chapter II of the report tells about the need for establishment of Environmental Courts in each State. However, it is not insisted while drawing the conclusions.

While taking away the jurisdiction of the High Courts and Civil Courts, it was obligatory to ensure better institutional access.  Access to justice is a constitutional promise as indicated by the Supreme Court in Salem Bar Association.⁷  Lord Woolf visualised a specialised court that travels beyond the conventional review as a ‘multi-faceted and multi skilled body’ acting as a ‘one stop shop’ without compromising the virtues of existing legal devices.  India was motivated by the Green Courts like the Land and Environmental Court in New South Wales, Australia and the New Zealand Environment Court.  In the process, however, we failed to preserve the virtues of the existing system.  The N.G.T. has only one Headquarters at Delhi and four regional benches at Bhopal, Calcutta, Pune and Chennai.   It is structurally and functionally inadequate to satisfy the people’s needs in a vast country that was met by a better network of High Courts.   Due to lack of access, thousands of grievances do not reach the adjudicatory mechanism at all. This is an unprecedented situation in the history of environmental justice in the country.   This is also antithetical to the concept of “just, quick and cheap” judicial remedy offered by the Australian Specialised Court.

The National Green Tribunal commenced to function on 4.7.2011.  According to World Wildlife Fund, 35 cases were decided by the N.G.T. in 2011 and 91 in 2012.  In 2013 the N.G.T. disposed of 154 cases.  This would be only a small fraction of the volume that would have been otherwise decided by the High Courts in the country by conventional means.  Section 29 of the N.G.T. Act prohibits the Civil Courts in the country as well from exercising original or appellate jurisdiction.  This led to a jurisdictional alteration at the grass root level. One has to acknowledge that the N.G.T. has made certain landmark interventions in a few significant issues.  But environmental democracy is tested not with respect to a few macro level sensational cases.  Its quality, on the other hand, is determined in terms of unknown litigations fought by equally unknown litigants.   

Right from the inception, the N.G.T. Act invited criticism on several counts.  The period of limitation for claiming compensation under Sections 14, 15 and 16 is even termed as ‘arbitrary’.  Section 14 is assailed for it put forward an inaccurate expression- “substantial question relating to environment”- for attracting N.G.T.’s jurisdiction. This jurisdictional dilemma remains unresolved. However, efficiency, cost effectiveness, better people’s participation and confidence, scientific and judicious prioritation of the issues, possibility for adoption of devices of alternate dispute resolution and inter disciplinary approach remain as some of the proclaimed advantages of the specialised environmental courts elsewhere.  Due to the geographic and structural limitations perpetuated by political apathy, the Indian Green Tribunal could only straggle. A relatively centralised   specialised court is a misfit for a vast country, for the majority does not enjoy the fortunes of proximity.   

Clarifications  needed

There is a need to clarify that mere involvement of environmental issues need not necessarily lead to transfer of cases from High Courts  to the NGT. Nor it should be an embargo in moving the High Court.  ‘Substantial involvement of environmental issues’ needs a pragmatic and realistic interpretation. 

 Even otherwise, the ratio in the celebrated decision in Chandrakumar⁸ is capable of resolving the issue, provided the Supreme Court clarifies the law and the High Courts  assimilate its ratio.  According to Chandrakumar, notwithstanding the establishment of the tribunals, the High Courts would still exercise their jurisdiction under Articles 226 and 227 of the Constitution.   In the Indian legal context, the High Courts are more significant by virtue of their power of judicial review.  In the words of the Supreme Court, they “possessed of a hoary past enabling them to win the confidence of the people” and this “promoted the framers of our constitution to vest (such) constitutional jurisdiction in them”.  Such power of the High Court is part of the ‘basic structure’ that cannot be altered or sacrificed.   The Tribunal takes away the jurisdiction of the High Court by following the doctrine of ‘efficacious alternate’ remedy.  However, in the absence of an express bar, adopting the ratio of Chandrakumar, the High Courts cannot be disarmed even in environmental cases. There would be hundreds of cases that could be decided on the basis of affidavits by exercising the power of judicial review. The High   Courts can also call for expert opinion, if required. The requirement in Section 14 of the N.G.T. Act– substantial question relating to environment - should be taken to mean cases involving considerable scientific/technical examination or collection of evidence or spot visit. High Courts may refer only such matters to the N.G.T.  Such a device would combine the merits of both conventional judicial review system and the specialised tribunals.  This would help effective case management.   As said by Justice Krishna Iyer, interpretive jurisprudence requires imaginative application of the law.  Section 14 of the N.G.T. Act   is no exception. 

In the Green Lagoon Resort Case⁹ the Supreme Court justified the action of the Kerala High Court which “entertained the Writ Petition taking into consideration the large public interest” and held that “the contention that the matter should have been referred to the National Green Tribunal cannot be accepted”.  The decision would, however need a clarification and elaboration in legal terms.

Other limitations

The N.G.T. has imported the unpleasant hallmark of Indian judiciary in the matter of appointments.  It is high time that the judiciary evolves a system of public notification and open process of selection and appointment of decision makers.   This would ensure equality of opportunity and fair selection.  The N.G.T. Act is so ‘cleverly’ designed that it says only about qualifications of the Chairman, Judicial Member and Expert Member and not much about the method of appointment.  Section 6 states that the Chairperson shall be appointed by the Central Government in consultation with the Chief Justice and Judicial and Technical Members to be appointed on the recommendations of the Selection Committee. Consultation and recommendations need not necessarily lead to selection of the meritorious.

Travelling court as occurring in Brazil or flying Judges as in Australia may not be suitable or even necessary in India.  However, India can learn a lot from the alternate dispute resolution systems prevailing elsewhere.  Referred mediations in Vermont Court, party paid mediations in Netherlands, volunteer mediation in Colorado are fine examples that require adaptation with necessary modifications.  Brazil’s system of environmental prosecutors with vast powers both in terms of civil and criminal laws also is an impressive model that could be emulated by the Indian N.G.T..  However, assimilation of such devices by the Indian Green Tribunal need not eradicate the fundamental virtues of a federal Constitution. 

American conservationist Terry Tempest Williams said – “To be whole.  To  be complete.  Wildness reminds us what it means to be human, what we are connected to rather than what we are separate from”.¹⁰ The principle applies to environmental adjudication as well. A green judiciary needs to be whole, complete, connected and inclusive.

Foot Note

1.   Eagleton, Terry  “The ultimate postmodern spectacle”, The Guardian, 25 May 2005.

2.   Pring, George (Rock) and Catherine (Kitty) Pring (2009):  Greening Justice (The Access Initiative).

3.   M.C. Mehta v. Union of India (1986) 2 SCC 176).

4.   Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212).

5.   A. P. Pollution Control Board v. M.V. Nayudu (2001(2) SCC 62).

6.   Law Commission of India (2003) 186th Report on Proposal to Constitute Environment Courts

7.   Salem Advocate Bar Association, Tamil Nadu v. Union of India (2005 (4) KLT SN 32 (C.No. 43) SC =AIR 2005 SC 3353).

8.   L. Chandrakumar v. Union of India ( 1997 (2) KLT SN 11 (C.No. 11) SC = AIR 1997 SC 1125).

9.   M/s Vaamika Island(Green Lagoon Resort)(2013 (3) KLT 677 (SC) = (2013) 8 SCC 760).

10. Tempest Williams, Terry - Testimony before the Senate Subcommittee on Forest & Public Lands Management regarding the Utah Public Lands Management Act of 1995. Washington, D.C. July 13, 1995.