Precedents on Precedents; Choice between Conflicting Ratios of

Equal Strength;An Area of Precedential Chaos

(By Nizam Azeez Sait, Advocate, Alappuzha)

 

Introduction

 

In Jurisprudence, Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. Article 141 of the Constitution of India reads as below:

 

“The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

 

But as regards the application of Precedents of the High Courts there is no direct Constitutional provision as Article 141. A three Judges Bench of the Supreme Court considered the question in M/s. East India Commercial Co. Ltd. Calcutta & Anr. v. Collector of Customs, Calcutta (AIR 1962 SC 1893), the Court referred Articles 215, 226 and 227 of the Constitution and held as below:

 

“It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence.”

 

Judgments of Courts of law are not computer out puts ensuring consistency and absolute precision, but they are the products of human thoughts based on the given set of facts and the interpretation of the applicable law. Generally our Superior courts have been incumbent by erudite and scholarly Judges (Both Pre and Post Collegium eras), whose thoughts go great heights and result in fascinatingly sound verdicts, of course aided by able lawyers. Unlike Preprogrammed Computers, such human thoughts trek new terrains in interpreting the law and are capable of coming out with ideal innovative rulings/declarations of law in furtherance of justice as the situations demand. Therefore on many areas of Law we have doubtlessly authoritative judgments of Superior Courts with remarkable clarity and acceptability, which in addition to resolving the dispute between the parties in that case, also serve as beacon lights or precedents for the Subordinate Courts on subsequent similar issues. But Law is an immensely vast canvass and there are lots of blurred areas in it, both Statutory and Precedential. Legislature cannot conceive and directly provide for all the practical exigencies that may arise in future. Language of statutes has its limitations, hence at times it fails to convey with clarity the intention of the Legislature giving rise to ambiguity. Justice is an abstract concept and it can become Judge centric. Hence instances are countless when equally learned and competent Judges of the Superior Courts tend to put entirely different interpretation on the same provisions of law. There are also instances when the same Judge takes different views on the same question in different cases, mostly because of better wisdom of the future day and rarely even due to forgetfulness of the earlier judgment. Absolute objectivity in court rulings will remain a dream only.

 

Benjamin Cardozo explains this phenomenon as below:

 

“It is said to be the product of the Judge’s philosophy, his logic, his understanding of history, social reality, his sense of right and his perceptions of justice” (The Nature of the Judicial Process)

 

I would add one more attribute to the above, i.e., the persuasive caliber of the Lawyers appearing in the case. The ways in which cases are presented by the lawyers greatly influence the verdicts and the quality of judgments. Referring the heights to which the art of advocacy rose in the landmark Kesavananda Bharati case, it is often said that the legendry lawyer Nani Palkivala saved the Indian Constitution.  In this regard Justice Hans Raj Khanna said in his book ‘Neither Roses Nor Thorns’, as under:

 

“The height of eloquence to which Palkivala rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court.”

 

Justice Khanna also said:

 

“The Judges in fact, shine with reflected glory, for their judgments verily reflect the industry of the counsel appearing before them.”

 

Conflicts Within a Bench

 

In the landmark ‘Basic Structure case’ (Kesavananda Bharati v.State of Kerala (AIR 1973 SC 1461)), which upheld the general power to amend but put an embargo on the amendment powers of the Parliament to alter the Basic Structure of the Constitution, the Supreme Court was split from the middle and the case was decided by a narrowest majority of 7: 6.  All the 13 Judges wrote their own Separate Judgments. The famous dissenting Judgment rendered by Justice Khanna in the otherwise infamous Habeas Corpus case (Addl. District Magistrate v. Shivakanth Shukla (AIR 1976 SC 1207) presents a classical instance of righteous dissenting judgment where a selfless Judge lost Chief Justiceship of India for deciding a case fearlessly according to his conscience. To the displeasure of the Government of the day Justice Khanna held that:

 

 …….Art.21 cannot be considered to be the sole repository of the right to life and personal liberty, even in the absence of Art.21 in the Constitution, the State has got no power to deprive a person of his life or personal liberty without the authority of law and that is the essential postulate and basic assumption of the rule of law in every civilised society…

 

Khanna J. quoted Chief Justice Hughes in the concluding part of his dissenting Judgment as under:

 

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed.”

 

In this case the error was in fact erased by the Parliament itself by the 44th Constitutional Amendment which curtailed the power of the President to suspend Article 21 during the Emergency.  We have seen dissenting judgments in many other important verdicts also.

 

Conflicts  Between  Benches

 

Now there is no dispute that a larger bench decision will prevail over a smaller bench decision. But the conflicting judgments on a particular point by co-equal benches cause enormous difficulty to lower court Judges who are bound by the ratio of the law enunciated by the superior Courts. In the absence of Constitutional or Statutory guidance in this regard, the precedents and practice have not been uniform and consistent. There have been three mutually repugnant streams of judgments/precedents on this very important and oft recurring question of law. One view is that in case of conflict between two judgments, later decision should be followed; another view says that decision earlier in point of time should be followed; yet another view is that the Court should follow the decision which is more accurate and better in point of law, whether it be earlier or later. This Article is an attempt to analyse the above three tier conflict of precedents on the issue. The above views are examined below.     

 

Some of the  Judgments Expressing the View that Subordinate Courts are Bound to follow the earlier precedent.

 

Sundeep Kumar Bafna v. State of Maharashtra & Anr.(K. S. Radhakrishnan; Vikramajit Sen, JJ.) (2014 (2) KLT 809 (SC) = AIR 2014 SC 1745).

 

 In this recent case, the question before the 2 Judges Bench of the Supreme Court was whether the High Court could consider an application for permission to surrender before the court and for regular bail under Section 439 of Cr.P.C. The single bench of the Bombay High Court had rejected the application and held as under:

 

“the Appellant is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under S.167 of Cr.P.C. by the Magistrate and that order cannot be passed at the High Court level.”

 

The Two Judges Bench of the Supreme Court set aside the above order of the High Court inter alia relying on Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559) (3 Judge Bench), wherein Krishna Iyer, J. speaking for the Bench observed that:

 

 “He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.”

 

Another 3 Judges bench, Directorate of Enforcement  v. Deepak Mahajan (AIR 1994 SC 1775) ; later to  ‘Niranjan Singh’ observed as under:

 

“Thus the Code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms.”

 

In ‘Sundeep Kumar Bafna’ the Division Bench of 2 Judges held:

 

“If the third sentence of para 48 is discordant to Niranjan Singh, the view of the co-ordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court.”

 

The bench further stated as under:

 

“It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”

 

An Analysis of the Correctness of ‘Sundeep Kumar Bafna’

 

There has been a traditional practice, since a long time, in the High Courts and the Supreme Court to the effect that when a smaller bench notices conflicting ratios of co-equal larger benches, having direct bearing on the issue before that bench, it refers the matter to its immediate larger bench or places the matter before the Chief Justice with a plea to constitute a sufficiently larger bench in order to have an authoritative pronouncement  to resolve the inconsistency between coequal benches. In this regard it was held as early as in 1961, by a 4 Judges bench of the Supreme Court in Jaisri Sahu v.Dubey (1961 KLT SN 9 (C.No. 18) (SC) = AIR 1962 SC 83), as follows:

 

 “ Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench….The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full bench.”

 

In, Delhi Development Authority v. Ashok Kumar Bahel  (AIR 2002 SC 2940) ; also, the Supreme Court emphasized the need to refer the case to a larger bench when conflicting views of co-ordinate benches are noticed, the court observed as under:-

 

 “ Inconsistency and contradiction in the orders passed by the same Court on the same point regarding the same scheme cannot be allowed to be continued or perpetuated…. It is a cardinal principle of rule of law that inconsistency and contradiction in the orders has to be avoided at all costs to bring about a certainty in the mind of the subordinate courts and the litigant public. This principle would stand violated in case two binding principles on the same point of the same Court are allowed to operate simultaneously.”

 

It is also to be noted that now it is well settled that a 2 Judges bench cannot directly refer a case to the Constitutional Bench of 5 Judges but it can only refer the case to a three Judges bench or place the matter before the Chief Justice. See, Pradip Chandra Parija & Ors.v. Pramod Chandra Patnaik & Ors. (2002 (1) KLT SN 29 (C.No. 34) SC = AIR 2002 SC 296), Hansoli Devi  (2003 (1) KLT SN 31 (C.No. 43) SC = (2002) 7 SCC 273) and also Central Board of Dawoodi Bohra - Community & Anr. v. State of Maharashtra & Anr. (2005 (1) KLT 486 (SC)  =  AIR 2005 SC 752), where in it is held as under;

 

“ A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration.”

 

See also the Full Bench Decision of High Court of Kerala in Peter v. Sara  (2006 (4) KLT 219 (F.B.)), which exhaustively dealt with the importance of adherence to precedents and the scope and limitations of the power of reference. In this case the Full Bench observed:

 

“..where a precedent is not followed and another decision rendered, in view of the conflicting position, the legal antinomy must be resolved by a Division Bench, Full Bench, Larger Bench, as the case may be, where one view would have to be formally overruled.”

 

It can be said that the above proposition/principle pointed out in ‘Jaisri Sahu’ has by its long recognition and adherence definitely metamorphosed into a rule of compelling stare decisis and the said practice have been  followed in the High Courts and the Supreme Court for more than 5 decades now.

 

With due respect, it is submitted that, in ‘Sundeep Kumar Bafna’ inspite of having such an established option of reference, the Division Bench of 2 Judges took upon itself to decide the correctness of a 3 Judges bench in ‘Deepak Mahajan’ and concluded that as regards the discordance of the third sentence of the  para 48 in ‘Deepak Mahajan’ with ‘Niranjan Singh’ the earlier vintage must prevail, which is ‘Niranjan Singh’.

 

It is submitted that the proposition laid down in ‘Niranjan’ is  correct and uncomplicated and is more appealing over the proposition  in ‘Deepak Mahajan’ that ‘mandatorily arrest should precede judicial custody’ on the basis of discussions on the powers of arrest of Magistrate under S.44 of Cr.P.C. It is doubtful whether S. 44 confers general power of arrest to a Magistrate at the pre- cognizance stage (crime stage) except when the offence is committed in his immediate presence. But the larger question is whether a division bench of 2 Judges by itself could declare a 3 Judges bench decision as per incuriam and of no precedential consequence, inview of a contrary 3 Judges decision which is earlier in time. The situation would be different when a Division Bench finds a larger bench’s decision as per incuriam of a statutory provision or of the decision of a further larger bench. In view of the above discussion, it is respectfully submitted that the Learned Judges in ‘Bafna’ missed to take note of the above well established proposition enunciated in a 4 Judges bench in ‘Jaisri Sahu’(supra) and the course adopted by the 2 Judges bench is not in accordance with the conventional principles of judicial discipline.  Therefore, with due respect, it could very well be concluded that the decision in ‘Bafna’ holding that ‘earlier vintage must prevail’ by adjudging the inter se legalities of two larger (3 Judges) coordinate bench decisions, itself suffers from the vice  of per incuriam of earlier larger bench decisions and is not in accordance with the settled ethos of Judicial discipline.

 

In ‘Bafna’ the two Judges Bench relied on the following passage in the Constitutional Bench decision in  Union of India v. Raghubir Singh  (1989 (2) KLT 168 (SC) = (1989) 2 SCC 754.

 

“What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a Superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.…”

 

There is no doubt that a Division Bench is bound by the law laid down by an earlier Division Bench decision of the same strength, when such decision is brought to its notice. But it cannot be said that the above passage in ‘Raghubir Singh’ covers a situation where the earlier decision evades notice of a co-equal Bench hearing the same question and a contrary decision is given without reference to the earlier decision and as laying down a proposition that in such a case of existence of conflicting judgments, only the earlier one would prevail. It is submitted that such an issue did not at all arise before the Court in ‘Raghubir Singh’ and was never addressed or decided.

 

It needs no reiteration that “a decision is an authority for what it decides and not what can logically be deduced therefrom.”

 

In the subsequent part of the very same paragraph in ‘Raghubir Singh’ it is stated as follows, which the learned Judges in ‘Bafna’ missed to take note of:

 

“This Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. etc. v. State of Gujarat & Ors. ((1975) 1 SCC 11), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other.”

 

In ‘Acharaya Maharajshri’ (5 Judges Bench), it was contended that some observations in Khajamian Wakf Estates’ case (5 Judges Bench) (AIR 1971 SC 161) are inconsistent with Rustom Cavasjee Cooper’s case, popularly known as the Bank Nationalisation case(7 Judges Bench), the Court held:

 

“It is difficult to accept the submission that the views expressed in Khajamian Wakf Estates’ case,   are contrary to Rustom Cavasjee Cooper’s case. Apart from that this Bench cannot pass upon the correctness or otherwise of the views expressed in Khajamian Wakf Estates’ case. Besides, we do not even think that the submission is well founded even to merit reconsideration of the Khajamian Wakf Estates’ case.”

 

In view of the above discussions, it is submitted that the preposition put forth in ‘Bafna’ that ‘the earlier vintage must prevail’ cannot be considered as a binding precedent as it was rendered ‘per incuriam’ of the larger bench decisions. Moreover in ‘Bafna’ the matter was inadequately considered, it appears that the other point of views (later judgment proposition or matching authority proposition) were neither raised nor argued or considered, hence not even much persuasive value can be ascribed  to the observation in ‘Bafna.’

In this context it is apposite to mention that the Kerala High Court in Raman Gopi & Anr. v. Kunju Raman Uthaman  (2011 (4) KLT 458 (F.B.)), after referring to some Supreme Court Judgments, observed as under

 

“The caution expressed by the Apex Court in various cases mentioned above, that the High Court cannot refuse to follow a binding decision of the Apex Court, is important in this context. The application of the rule of sub silentio and that of per incuriam should be guarded….”

 

The above caution is in such sharp language that any Judge would think many times and some would possibly hesitate to decide that a judgment of the Superior Court is per incuriam. Judges may even attempt to resort to other means like “distinguishing” the judgment to avoid the use of the phrase ‘per incuriam’. There is no doubt that the Judgments of the Superior Courts are entitled to utmost respect and the subordinate Court should keep themselves with in the limits of judicial discipline and decorum and cannot critisise Superior Courts. But it is also the judicial duty of a Judge to say so when a Judgment of the Superior Court is plainly found to be per incuriam and decide the case before him accordingly.

 

Ganga C. v. Lakshmi Ammal  & Anr.(R. Basant, J.) (Kerala High Court), (2008 (2) KLT 306):-

 

In this case the issue before Justice R. Basant, was as under;

 

“Are the Criminal Courts jurisdictionally competent to impose a sentence of imprisonment in default of a direction to pay compensation under S. 357(3) Cr.P.C.?

 

After referring to the principles of victimology implicit in Section 357(3) Cr.P.C. and a threadbare analysis as to what ought to be the correct law, the Court favoured the view in Harikrishnan v. Sukhbir Singh & Ors. (AIR 1988 SC 2127), holding that a sentence of imprisonment in default of a direction to pay compensation under S. 357(3) Cr.P.C. is permissible. The Court also held that the contrary view in ‘Ettappadan Ahammedkutty v. E. P. Abdullakoya & Anr. (2008 (1) KLT 851 (SC)  was per incuriam and not binding and laid down the following proposition: 

 

“If any smaller or co-ordinate bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger or co-ordinate bench and a conflict… exists such later decision has no binding sway and must be reckoned as rendered per incuriam. Such decisionsper incuriam cannot be followed. Subordinate Courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriam decision of the smaller or co-ordinate bench.” 

 

In coming to the said conclusion the court relied on some general observations of the Supreme Court, including the one in Mamaleshwar Prasad v Kanhaiya Lal (Dead) (AIR 1975 SC 907),  where Justice V.R. Krishna Iyer, as a passing reference observed as follows:

 

“Certainty of the law, consistency of rulings and comity of courts all flowering from the same principle converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.”

 

With due respect, it is submitted that the above passing passage or any of the Judgments of the Supreme Court referred in ‘Ganga’, cannot be taken as laying down the proposition that in case of conflict between co-equal benches the earlier one will prevail.

 

Jabalpur Bus Operators Association & Ors. v. State of M.P. & Anr. (2003 (2) KLT SN 110 (C.No. 141) M.P. (F.B.) = AIR 2003 M.P.81);  A Full Bench of Madhya Pradesh High Court, comprising of 5 Judges elaborately dealt with the issue and laid down as follows;

 

“In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding.…No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts.”

 

It is submitted that the above view is hypertechnical. Choosing between two conflicting ratios of equal strength of the Superior Courts for the purpose of dispensing justice at the grass root level, per se, would not militate against the hierarchical supremacy of superior Courts.

 

Some of the  Judgments Expressing the View that the Decision Later in Point of Time, Will Prevail Over the Earlier One

 

Joseph v. Special Tahsildar (2001 (1) KLT 958 (F.B.) A. V. Savant; C.J., K. S. Radhakrishnan; R. Rajendra Babu, JJ:-

 

The case related to the requirement of proof of protest under the 2nd proviso of  S.31(2) of the Land Acquisition Act 1894. In Writ Appeal No. 599 of 1994,Special Tahsildar, Land Acquisition v. Kariyamparambil Raghavan, a Division Bench of the High Court referred  the decisions of the Apex Court in Wardington Lyngdoh v. Collector, Mawkyrwat (AIR 1995 SC 2340) and Land Acquisition Officer v. Shivabai (1997) 9 SCC 710) and came to the conclusion that oral protest was necessary before the claimant could make an application under S.18 of the Act and on the basis of lack of proof of such protest, dismissed the claim. Whereas another Division Bench in Kannan v. Land Acquisition Officer  (1999 (2) KLT 643), preferred to rely upon the earlier decision of the Apex Court in Ajit Singh v. State of Punjab (1994) 4 SCC 67) and took a liberal view and allowed the claim. In view of the above conflict of views, case was referred to Full Bench and the main question involved in the reference was as follows:

 

“Can an oral protest be inferred to have been made merely because, subsequently, an application for reference has been made under S.18 of the Act?”

 

The Court after an independent analysis of the Provisions and also a survey of case laws held that the observation in para 5 in Ajit Singh’s case viz  “5...........Inasmuch as the appellants have filed an application for reference under S.18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation”, can neither be construed as the ratio or even an obiter in that case.”  To come to such a conclusion the court relied on the various observations of the Supreme as reiterated in United India Insurance Co. Ltd. v. Alavi ((1998 (1) KLT 951 (F.B.))  viz.

 

“…a decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution” (Delhi Transport Corporation v. D. T. C. Mazdoor Congress ((1991) Supp. SCC 600)

 

“Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent….A conclusion without reference to relevant provision of law is weaker than even casual observation”.       (State of U.P. v. Synthetics & Chemicals Ltd (1991)  4 SCC 139).

 

Then the Court incidentally expressed the view that the later decision must prevail over the earlier decision in a situation where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. The Court also referred to the following decisions inorder to prefer ‘Wardington’ and ‘Shivabai’ over ‘Ajit Singh’

 

(i) In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari  (AIR 1980 Bom. 341), a Division Bench of the Bombay High Court was dealing with a similar question under Art.141. It was held that in case of a clear conflict between two decisions of the Apex Court of equal number of Judges, the later decision would be binding on the High Court.

 

(ii) In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd.(AIR 1980 Karnt. 92) (F.B.) a Full Bench of five learned Judges of the Karnataka High Court held that if two decisions of the Apex Court on a question of law cannot be reconciled and one of them was by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by the High Courts and other Courts. However, if both such Benches of the Apex Court consists of equal number of Judges, the later of the two decision should be followed by the High Courts and other Courts. This opinion of the Full Bench is to be found in para 12 at page 95.

 

Strangely the Court also relied on the diametrically opposite proposition laid down by S.S.Sandhawalia, C.J. in the Full Bench decision in Amar Singh Yadav v. Shanti Devi
(AIR 1987 Patna 191 (F.B.)) to prefer ‘Wardington’ and ‘Shivabai’ over ‘Ajit Singh’. The Court in ‘Joseph’ observed as follows;

 

“(iii) In Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)), a Full Bench of the Patna High Court held that where there is a direct conflict between two decisions of the Apex Court rendered by Benches of equal strength, the High Court must follow that judgment which appears to it to state the law more elaborately and accurately. The said observations are to be found in para 24 of the judgment at page 201.”

 

Raman Gopi & Anr. v. Kunju Raman Uthaman (2011 (4) KLT 458 (F.B.) (3 Judges Bench) :-

 

The question involved in the case was whether ‘merger’ will apply for deciding the limitation period for filing Execution Petition, when the petition for condonation of delay is dismissed and consequentially appeal is also dismissed.

 

In Chandi Prasad v. Jagdish Prasad  (2004 (3) KLT 654 (SC)  = (2004) 8 SCC 724 ), Supreme Court observed as follows:

 

“However, when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply.”

 

Whereas in Shyam Sunder Sarma v. Pannalal Jaiswal ( 2005 (1) KLT  198  (SC) = AIR 2005 SC 226),  the Supreme Court expressed a contrary view as quoted below:

 

“An appeal registered under R.9 of O.41 of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is never the less a decision in the appeal.”

 

In ‘Raman Gopi’ the Court held:

 

“Therefore, the conflicting decisions rendered in Chandi Prasad’s case and Shyam Sunder Sarma’s case, are by co-equal Benches. What shall be the principle to be followed by this Court and the subordinate Courts in such circumstances is the question that has arisen for consideration herein, especially in the light of Art.141 of the Constitution of India.

 

In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench of this Court inJoseph v. Special Tahsildar (supra) wherein it was held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Apex Court, the decision later in time will be binding.”

 

The Court also cited the following Judgments which expressed the view that in case of such conflict the later decision will prevail, viz, Gujarat Housing Board, Ahmedabad v. Nagajibhai (AIR 1986 Guj. 81(F.B.),Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur & Ors.(AIR 1981 All. 300) (Allahabad High Court), Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. (AIR 1980 Karnt.92(F.B.), Deputy Commissioner v. Anandan (1987 (1) KLT 192);   Krishnan Namboodiri’s case  (1992 (2) KLT 803). etc

 

Analysis of ‘Joseph’ and ‘Raman Gopi’

 

In ‘Raman Gopi’, the court extensively dealt with the ancillary aspects which have a bearing on the main issue, viz, the distinction between ‘ratio’ and ‘obiter’ and what constitute a binding precedent, the expression ‘law declared’ under Art.141, doctrines of  “sub silentio” and “per incuriam”, Principle of ‘stare decisis’ and the circumstance under which the Superior Courts could overrule its own decisions etc. etc. and in the process surveyed through innumerable Judgments of the Supreme Court and High Courts. It is submitted that the Judgment in ‘Raman Gopi’ is a very worthy single point referencer on all the above aspects. But regarding the main issue, even though an argument was raised by the Counsel, that the subordinate courts would have the freedom to choose the judgment which it considers to be better in point of law and a few Judgments of other High Courts were cited in support, it appears from the tenor of the judgment that the Court did not go in to the intrinsic merit of such a contention but on coming across the bald observation in the co-equal bench (three Judges) in ‘Joseph’(supra) perfunctorily endorsed the view that the later decision will prevail. In ‘Raman Gopi’ the Court observed:

 

“In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958(F.B.)”

 

But a close reading of ‘Joseph’ would show that the main point on which it preferred  ‘Wardington’  and ‘Shivabai’ cases over ‘Ajit Singh’ is on the analysis of the provisions of the Land Acquisition Act 1894 and on the finding that the observation in ‘Ajit Singh’ was not a ‘ratio’ as referred above. The Bench in ‘Joseph’ observed as under:

 

“..to say that making of an application under S.18(1) is, by itself, enough evidence to hold that protest must have been lodged at the time of receiving the payment is, in our view, wholly impermissible in the scheme of S.31 and 18. We are, therefore, unable to agree with the broad proposition stated by the Division Bench of this Court in Kannan’s case as indicated above.”

 

In coming to the conclusion that ‘Ajith Singh’ is not binding, the court as an ancillary/second reason, observed that ‘later decision will prevail’, but the court also relied on the diametrically opposite proposition laid down by S.S. Sandhawalia, C. J. in the Full Bench decision in Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)) as yet another reason. In this circumstance it is submitted that the precedential status of the observation that ‘later decision will prevail’ is in serious jeopardy as it cannot stand together with the proposition in‘Amar Singh’, which confers option to choose from the conflicting judgments, though both the propositions supported the ultimate decision in ‘Joseph.’

 

It is submitted that the observation in ‘Joseph’ that the ‘later decision will prevail’ cannot be considered as laying down an authoritative precedent in view of the circumstances mentioned above. 

 

In this context it is worth referring to the following observation of Delvin J., in Behrens v. Pertraman Mills((1957 (2) QB 25):

 

 “If the Judge gives two reasons for his decisions, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second. But the practice of making judicial observation obiter is also well established. A Judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of the precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is the matter which Judge himself is alone capable of deciding, and any Judge who comes after him must ascertain which course he has adopted from the language used and not by consulting his own preference.”

 

The plea that ‘Joseph’ requires reconsideration was rejected in ‘Raman Gopi’, in this regard it was observed as under;

 

 “….the learned counsel is not right in submitting that in all cases where a co- equal Bench did not notice an earlier decision of another Bench, it will be per incuriam and hence need not be followed by the High Courts and Subordinate Courts. That is not the only test laid down by the Apex Court in various decisions, we have discussed above. Therefore, we do not find any reason to refer the matter to a larger Bench.”

 

It is submitted that, neither ‘Joseph’ nor ‘Raman Gopi’ gave any reasons for holding that the ratio in the later decision will/must prevail, except stating that some other High Courts have held so. It has to be realized that mechanical adherence to later decision will hinder the cause of justice in many cases and the issue needs to be revisited by a larger bench. 

 

Some  of  the  Judgments  Expressing  the  View  that  Subordinate  Courts  Would  Have the  Option  to  Choose  the  One  Which is  Better  in  Point  of  Law.

(Matching  Authority Proposition)

 

Indo Swiss Time Limited v. Umrao And Ors. (AIR 1981 P. & H. 213 (F.B.)):- The question involved in this case before the Full Bench of Punjab & Haryana High Court was whether a company for whose benefit land is acquired under the provisions of the Land Acquisition Act, 1894, can be impleaded as a party in the Court of the District Judge in a reference preferredunder Section 18 of the Act. The court considered the apparent conflict of views of the co-equal benches of the Supreme Court in this regard.

 

In Himalayan Tiles and Marbles (P) Ltd. case (AIR 1980 SC 1118), the Supreme Court had observed as under;

 

“…since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation.”

 

Whereas in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel ((1970) 1 SCWR 183), the Supreme Court negating the locus standi of the Municipal Corporation, held that the Municipal Corporation for whose benefit the land had been acquired could not maintain an appeal in the Supreme Court against the judgment of the High Court.

 

In view of the above, the Full Bench of the High Court considered the principles to be followed on the question of choice between the conflicting views of the co-equal benches of the Apex Court. Chief Justice S. Sandhawalia, held as below:

 

“ Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles, it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant.”

 

In coming to the above conclusion the Chief Justice inter alia relied on a few High English Authorities including,Hampton v. Holman ((1877) 5 Ch D 183(Jessel M. R), Miles v. Jarvis (1883) 24 Ch D 633, (Kay, J) and Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718.

 

Further the Chief Justice quoted with high regard and approval the view of the great constitutional visionary Sri. H.M Seervai, as under:

 

“Even though it is perhaps unconventional to quote a living authority, it deserves recalling that Mr. Seervai in his latest edition of his authoritative work in the Constitutional Law of India has opined as follows :- “*** But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and to subordinate Courts. It is submitted that in such circumstances the correct thing is to follow that judgment which appears to the court to state the law accurately or more accurately than the other conflicting judgments.”

 

The Chief Justice also observed:

 

“I am keenly aware of the great difficulty of making a choice between the decisions of a Superior Court when they are in direct conflict with each other. However, when such divergence arises and the litigants’ fortune depends thereon the issue cannot possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a Superior Court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgment.”

 

The Chief Justice after elaborate deliberations came to the conclusion that‘Himalayan Tiles and Marbles (P) Ltd’ was better in law and followed it over ‘Municipal Corporation of the City of Ahmedabad’. The other 2 Judges in the bench fully agreed with the principles laid down by the Chief Justice on the question of choice between conflicting views. But applying the above very same principle, in dissent to the Chief Justice both the Pusine Judges held that ‘Municipal Corporation of the City of Ahmedabad’ is better in law and favoured it, over ‘Himalayan Tiles and Marbles (P) Ltd’.

 

 Amar Singh Yadav And Anr. v. Shanti Devi & Ors  (AIR 1987 Pat 191):- After a few years question identical to the one in ‘Indo Swiss Time Limited’ (supra) arose before the Patna High Court,  Justice S. Sandhawalia was then the Chief Justice of the Patna High Court. The Judgment of the Full Bench was delivered by the Chief Justice. The Principles enunciated in ‘Indo Swiss Time Limited’ were reiterated.  Both the Pusine Judges in the bench this time fully concurred with the Chief Justice and held that ‘Himalayan Tiles and Marbles (P) Ltd’ was better in law. Chief Justice S.Sandhawalia, also dealt with and assailed the majority view in the above referred ‘Govindnaik G. Kalaghatigi’ as under;

 

“ I am not unaware that in Govindnaik G. Kalaghatigi v. West Patent Press Company Limited (AIR 1980 Karnt. 92 (F.B.)), a narrowly divided Full Bench has taken the view, by majority of three : two, that in such a situation, the later of the two decisions should be followed. A perusal of the judgment would, however, show that, in fact, there were two questions firmly posed before the Full Bench — firstly that where there was a conflict of two decisions of the Supreme Court of unequal Benches, which one is to be followed and, secondly, when these decisions are of co-equal Benches, then which decision is to be followed. It seems somewhat patent that the majority view adverted to the first of the two questions alone, and, there does not appear to be any discussion whatsoever on the second question. The minority decision, however, while agreeing with the majority view on the first question, adverted to the second question and considered the matter in detail, concluding as follows : — “.....It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time.”

 

With great respect, I am inclined to wholly agree with the aforesaid view of the minority and it bears repetition that the majority view does not seem to have even adverted to this question in essence.”

 

Chandran v. Excise Inspector(K. T. Thomas, J.)  (1989 (2) KLT 845) :-  In this case the question posed before Justice Thomas was whether a criminal appeal (which is otherwise ripe for hearing) be dismissed for default or for non-prosecution? In Ram Naresh Yadav v. State of Bihar (AIR 1987 SC 1500), a bench of two Judges had observed that “the court can dismiss the appeal for non-prosecution and enforce discipline” whereas, in Shayam Deo v. State of Bihar (AIR 1971 SC 1606) another bench of two Judges adverted to the provisions of the Code of Criminal Procedure and laid down the law in the following lines:

 

“..a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or should consider the appeal on merits and pass final orders.”

 

Justice Thomas, held that the observation in ‘Ram Naresh Yadav’ is not a ‘ratio’ and cannot be held to be a ‘Declaration of Law’. Further on the question of choice between conflicting decisions of the Supreme Court, quoted extensively from the above ‘Amar Singh’ with utmost appreciation and approved the view that in case of conflict, the decision better in point of law should be followed. 

 

A. M. Bholanath Karmakar & Ors. v. Madanmohan Karmakar & Ors.(AIR 1988 Cal. 1, (F.B.) The court observed:

 

“….view appears to us to be in perfect consonance with what our ancient Jurist Narada declared Dharmashastra Virodhe To Yuktiyukta Vidhe Smrita—that is, when the Dharmashastras or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed.

 

Where there are contrary decisions of the Supreme Court rendered by Benches of equal strength, the High Court, in theory, being bound by each one, is, in effect, bound by none and is not necessarily obliged to follow the latter in point of time, but may follow the one which, according to it, is better in point of law.”

 

The court further cited the following reasons in support of the above proposition: “It is true that if there are two contrary legislations enacted by the same Legislature, the later would impliedly repeal the earlier and would be the binding law. But we do not think that this legislative anology would at all be apposite and can help us in solving the question before us because the very same Legislature can always repeal or alter its own law, even impliedly, while over-ruling being an act of superior jurisdiction, one Bench can not overrule expressly or by implication, a decision of a co-equal Bench. It is also true that the view that when there are conflicting decisions rendered by co-ordinate authorities, the later decision would govern us, would be conducive to certainty in the field of law. But the same certainty would also be achieved if it is also ruled that the later Bench being not competent to overrule the earlier decision of a co-ordinate Bench, the earlier decision would still continue to be the good law….We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court in Atmaram, the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate jurisdiction.”

 

Though the court gave cogent reasons as above for favouring the proposition of ‘option to choose’ but ultimately left the question open to be decided on a more suitable occasion where such a question would squarely fall for determination.

 

 Madras High Court in R. Rama Subbarayalu v. Rengammal (AIR 1962 Mad 450(F.B.), observed:

 

  ‘where the conflict is between two decisions pronounced by a Bench consisting of the same number of Judges, and the subordinate Court after a careful examination of the decisions came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one’.

 

 Nagpur High Court in D.D. Bilimoria v.Central Bank(AIR1943 Nag. 340)observed:

 

 ‘the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other.’

 

Madhya Pradesh High Court in Smt. Kalabai Choubey & Ors. v. Rajabahadur Yadav & Anr. (AIR 2002 M.P. 8) and RajastanHigh Court in Jaipur v. M/s. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi (AIR 1990 Raj. 120), have also taken similar views, conferring option to choose from the conflicting ratios the one which the court considers to be better in point of law.

 

Atma Ram v. State of Punjab(S. R. Das, C. J. I. ; N. H. Bhagwati; B. P. Sinha; K. Subba Rao; K.N. Wanchoo, JJ.) AIR 1959 SC 519) :- In this case the Constitutional Bench of the Supreme Court was called upon to examine the constitutionality of the provisions of the Punjab Security of Land Tenure Act . The Apex Court noticed conflict of views of two Full Bench Decisions of the Punjab High Court as regards the interpretation of the word ‘estate’ in Art. 31 A of the Constitution as to whether it will include portion of the estate also (Application of the Maxim “the greater contains the less” -’Omne majus continent in se minus’). The Supreme Court while endorsing the view that Art.31A of the Constitution applied equally to portion of the estates also, observed as under:

 

“…. The later Full Bench case referred to above was decided by three Judges, including Bhandari C. J., who agreed with the judgment of the Court delivered by Grover J. Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength.Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon their.In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question has not indicated his own reasons for changing his view.”

 

It is often rightly reiterated that: “An obiter cannot take the place of the ratio and Judges are not oracles”, “observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute” and that “It is not a portable task to extract a sentence here and there from a judgment and to build upon it.”

 

Still it is submitted that, the above underlined observation, rendered by the bench comprising a battery of 5 most eminent Judges of the Supreme Court, indicating their view that the subordinate courts would have option to choose from the conflicting judgments of co-equal benches, though not the ‘ratio’ of the case, would carry serious persuasive value in supporting the school which favours option to choose between conflicting judgments of co-equal benches.  

 

Evaluation – An Attempt to Arrive at the Correct Law

 

In Young v. Bristol Aeroplane Co. Ltd. (1944) 1 K.B. 718), the Court of Appeal held: “..the court is unquestionably entitled to choose between the two conflicting decisions.” After analyzing English law in this regard in general and the ruling in Young v. Bristol in particular, Prof. Fitzjerald in the International classic work-‘Salmond on Jurisprudence’ (twelfth edition, Indian reprint, Page 27), opined as under:

 

“The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.  Where authorities of equal standing are irreconcilable in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a some what bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

 

It appears that in America, as it is in India, there are different view points on the issue, predominant view being the one which confers the option to choose the ‘ratio’ which is better in point of law (See Corpus Juris Secundum 2005 Edition Vol. 21 P 200)

 

When there is no direct statutory prescription on a matter, the thoughts and views based on justice, equity and good conscience of the great legal brains/luminaries, serve as search lights to remove the darkness. In this sense the above said reasoned views of Prof. Fitzjerald and Sri. H.M Seervai should command great weight.

 

The High Courts and the subordinate courts do not have the option to refer the matter to the larger bench of the Supreme Court to resolve the inconsistency, which the smaller benches of the Supreme Court only would have. And it is not practically possible for every litigant to approach the Supreme Court in pursuit of deserved justice, owing to money, time and other constraints. It is submitted that mechanical adherence to earlier or later Judgment to attain uniformity would hamper dispensation of justice at the grass root court level and is not justifiable. Artificial and strict technicalities that hamper justice would serve no useful purpose. To quote Justice V.R. Krishna Iyer: “Courts are to do Justice and not to wreak the end product of technicalities”.

 

It is submitted that the above referred detailed and convincing reasons spelled out in Indo Swiss Time Limited (supra), Amar Singh Yadav(supra), A. M. Bholanath Karmakar (supra) etc., in support of the view that the subordinate courts would have the option to choose the judgment of the superior court which is better in point of law, out weighs the reasons given for theories favouring mechanical adherence to the earlier or later judgment. The said view would facilitate rendering of justice at the grass root court level in maximum cases.   

 

It is submitted that when two ‘ratios’ of equal strength of the superior courts stand side by side conflicting with each other, merits of the ‘ratios’ alone should be the criterion for opting one over the other and not the mere fortuitous circumstance of the time and date on which they were rendered, otherwise, it would be at the cost of Justice.

 

Conclusion

 

 In view of the discussions above it is submitted that:

 

1. The observation in ‘Sundeep Kumar Bafna’ that ‘the earlier vintage must prevail’ when there are conflicting views of co-ordinate benches, cannot be considered as a binding precedent.

 

2. ‘Raman Gopi’ requires reconsideration by a larger Bench.

 

But the best solution to bring an end to the divergent views and the resultant confusion would be to add rational explanations in Article 141 by an amendment of the Constitution. When Art.141 was framed, the Constitution makers might have contemplated that different Benches of the Supreme Court would always speak with one voice, on the same issue, which has not been the case. It is submitted that Law Commission should look into such an important matter and come up with credible recommendations.

 

Tailpiece

 

The recurrence of conflicting judgments persuaded Veteran Constitution Lawyer Fali S.Nariman to suggest that two Judge Bench Judgments shall not be within the purview of precedents under Art. 141 of the Constitution.  His words, while delivering the Inaugural lecture of the Lecture Series organised by the Supreme Court Bar Association, in the presence of the Chief Justice, are quoted below:

 

“Let us be frank — the law laid down in Bench decisions of two judges is quite often hopelessly inconsistent with some other Bench decision of two judges; and precious judicial time is wasted in the High Courts and in the Supreme Court trying to reconcile them….I am all for a three-Judge Bench hearing all matters in the highest Court.…. If benches of two judges must hear SLPs, the order pronounced must never be reckoned as laying down any law — but this only the Supreme Court can say.”

 

It is submitted that the mischief caused by the inconsistent judgments of the Superior Courts is minor compared to the wholesome purpose served by the precedents laid down by the single and two Judge Benches of the Superior Courts, as a whole, in guiding the subordinate Judiciary by settling the law and thereby advancing the cause of Justice. 

 

“House shall not be set on fire to kill the rat in it.”

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.

  

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.

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”.