Words of Wisdom

Justice Sanjiv Khanna in Shilpa Sailesh v. Varun Sreenivasan (2023 (3) KLT SN 19 (C.No.9)
SC = 2023 KLT OnLine 1334 (SC), considering the issue regarding the power of Supreme Court under Article 142 to dissolve the marriage on the ground of its irretrievable breakdown observed that,

“In today’s context, two observations, while a court enquires into the charge of cruelty, are of some significance. First, the court should not philosophise on the modalities of married life. Secondly, whether the charge is proved or not cannot be decided by applying the principle of whether a reasonable man situated similarly will behave in a similar manner. What may be cruel to one may not matter to another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances. Cruelty is subjective, that is, it is person, background, and circumstance specific.” 

“The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end.” 

“The plenary and conscientious power conferred on this Court under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy should be understood as some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme. It should not contravene a fundamental and non-derogable principle at the core of the statute. Even in the strictest sense, it was never doubted or debated that this Court is empowered under Article 142(1) of the Constitution of India to do ‘complete justice’ without being bound by the relevant provisions of procedure, if it is satisfied that the departure from the said procedure is necessary to do ‘complete justice’ between the parties. Difference between procedural and substantive law in jurisprudential terms is contentious.”

C.J.I. Dr.D.Y.Chandrachud in Sundar @ Sundarrajan v. State by Inspector of Police (2023 KLT OnLine 1293 (SC) considering the question of commutation of death sentence held that sex of the child is not an aggravating circumstance. Disapproving the practice of Courts indulging in furthering the notion  that only a male child furthers family lineage or is able to assist the parents in old age, remarked as under,

“In terms of the aggravating circumstances that were taken note of by this Court in appeal, our attention has been drawn to the following circumstance:

“30. [...] (vii) The choice of kidnapping the particular child for ransom, was well planned and consciously motivated. The parents of the deceased had four children – three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child, has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances.”

We wish to note that the sex of the child cannot be in itself considered as an aggravating circumstance by a constitutional court. The murder of a young child is unquestionably a grievous crime and the young age of such a victim as well as the trauma that it causes for the entire family is in itself, undoubtedly, an aggravating circumstance. In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. Courts should also not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgements that courts should avoid regardless of the context.”

What is in Section 27 Evidence Act ––Recovery or Discovery?

(By Saji Koduvath, Advocate, Kottayam)

•    Should the ‘Object’ Necessarily be ‘Recovered’ (from the Concealed Place) to attract Section 27?

•    Answer – No.

Abstract

•  1. Section 27 says only as to Discovery; Not Recovery.

•  2. Section 27 – Discovery Embraces.

      •  (i) Place from where the Object Produced and

      •  (ii) Knowledge of Accused.

3. No Witnesses needed for Recording Accused’s Statement u/S.27. Contra-Observation is laid down in Boby v. State of Kerala (2023 (1) KLT 543 (SC).

Section 27 of the Evidence Act

Section 27 of the Evidence Act reads-

•  “27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

Section 27 is Not Artistically Worded

The Privy Council, in Pulukuri Kotayya v. King ­Emperor (AIR 1947 PC 67), the ‘Best Known and Most Authoritative Decision’ in this subject, as shown below, observed that the Section 27 was not artistically worded. It is because of the hard-headedness of the following words in this Section, and they raise the following questions:

• 1. “Any fact is deposed to as discovered” – Who deposed; and where?

• 2.“Fact discovered” – What are the facts embraced (or that may be attracted)?

“Any fact is deposed to as discovered“ Refers to Facts Deposed to by Police
Officer Before the Court (as Disclosed by the Accused)

• In Sunil @ Chunnan v. State of Kerala, 2019-2 Crimes 1, after quoting Section 27, Evd. Act, it was observed as under:

• “Therefore what is substantive evidence is the disclosure statement deposed to by the investigating officer in court and not what he had extracted in the seizure mahazar.”

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King ­Emperor (AIR 1947 PC 67), made it clear, as regards the concealment of a knife, as under-

“In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

Pulukuri  Kottaya – Locus Classicus (Best Known and Most Authoritative) Decision

In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh (2022 (5) KLT OnLine 1236 (SC) = AIR 2022 SC 5273), Supreme Court of India pointed out that the scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri  Kottaya v. Emperor that it has become locus classicus on this subject.

Pulukuri Kotayya v. King ­Emperor – Analysed

Pulukuri Kotayya v. King ­Emperor(AIR 1947 PC 67), on analysis, states the following -

•    It is fallacious to treat the “fact discovered” as equivalent to the object produced.

•    The fact discovered embraces the place from which the object is produced
(Note – Not ‘recovered’) and the knowledge of the accused as to this.

•    The information given must relate distinctly to this fact (place from which the object is produced and the knowledge of the accused as to this).

•    Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered.

•    Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; (because) knives were discovered many years ago.

•    (Nevertheless) it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and 

•    if the knife is proved (in Court) to have been used in the commission of the
offence, the fact discovered is very relevant.

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King ­Emperor it is clear –

•    even if the knife was discovered many years ago,

•    if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,

•    it is relevant and admissible under Section 27 Evd. Act.

How the “Discovery” under Section 27 Proved?

Section 27 substantially directs-

•    The ‘information‘ (or disclosure) from the accused that led to “discovery” may “be proved”.

How the substantial part be introduced in court is stated in the first portion of Section 27. It says-

•    What is to be proved by Section 27 is the fact deposed by the IO in court; and

•    it must be as to the discovery on ‘information’ (or disclosure) from the accused.

Pulukuri Kotayya v. King ­Emperor, says what are the facts to be deposed by the IO
and what are to be Discovered or Proved under Section 27.

They are-

(a)  place (Place of concealment of object) and

(b)knowledge (knowledge of accused as to concealment).

“Discovery” under Section 27 is to be Proved (primarily) by the Deposition of IO

• ‘Information’ (given by the accused) and the ‘fact’ (of discovery) required under Section 27 are to be proved in a court (primarily) by the deposition of the IO, before the court–

      • (a) as to the information given by the accused to him (IO) and

      • (b) as to discovery of the (i) place, (ii) object and (iii) knowledge of the accused,

• supported by-

      • (1)  disclosure statement of accused (written by IO) and

      • (2)  proof as to two tangible things –

      • (i)   place (by mahazar prepared in presence of witnesses) and

      • (ii)  object (recovery of original object or other proper evidence).

The Object Need Not be Recovered from Concealed place, under Law in India

From Pulukuri Kotayya v. King Emperor (AIR 1947 PC 67), it is clear that the words,

•    “the fact discovered embraces the place from which the object is produced” (as used in Pulukuri Kotayya v. King)

cannot be equated, always, as-

• “the fact discovered embraces the place from which the object is recovered”.

True, in most cases where Section 27 is attracted, the relevant place may be the place from which the object is recovered. Referring Pulukuri Kotayya v. King Emperor
(AIR 1947 PC 67), it is seen observed in State of Himachal Pradesh v. Jeet Singh
(AIR 1999 SC 1293), as under:

•    “It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it.”
(quoted in State of Maharashtra v. Bharat Fakira Dhiwar (AIR 2002 SC 16).

But, the proposition that the object (as such) must have been recovered from the place where the accused concealed it is against the law accepted in India. That is, there may be cases where the place of recovery of the object and the place relevant under Section 27 may be different.

It can be demonstrated by an Illustration –

•    An accused buried and hid certain material objects in a place.

•    Somehow or other (say, because of the acts of certain animal) those articles were taken out and placed in a faraway ‘public place’. The investigating officer
‘recovers’ it.

•    After arrest of the accused, thereafter, the accused reveals, to the I.O., the place the material objects were actually concealed by him.

•    The I.O. caused to make a scientific examination. It is proved (discovered) that the material objects were buried in the place, as ‘disclosed’ by the accused.

•    In such a circumstance, the fact discovered (Place, to the Knowledge of the accused) falls under Section 27 (though no material object as such, is “recovered”
from that place).

Pulukuri Kotayya v. King Emperor is Consistently Considered as the Authority

In State of Himachal Pradesh v. Jeet Singh (1999 (2) KLT SN 9 (C.No. 8) SC = AIR 1999 SC 1293), it was pointed out that the principles in Pulukuri Kotayya v. King Emperor
(AIR 1947 PC 67), was followed in-

•    K.Chinnaswamy Reddy v. State of Andhra Pradesh(1962 KLT OnLine 1167 (SC) = AIR 1962 SC 1788),

•    Jaffar Hussain Dastagir v. State of Maharashtra(1969) 2 SCC 872,

•    Earabhadrappa @ Krishnappa v. State of Karnataka,(1983) 2 SCC 330,

•     Shamshul Kanwar v. State of U.P.(1995 (1) KLT OnLine 986 (SC) = (1995) 4 SCC 430).

• State of Rajasthan v. Bhup Singh(1997) 10 SCC 675.

Pulukuri Kotayya v. King Emperor (AIR 1947 PC 67), is the most read and mot valuable decision on Section 27, Evd. Act. It is consistently considered as the authority in this subject, as revealed from the following Apex Court decisions also-

•    Boby v. State of Kerala(2023 (1) KLT 543 (SC).

•    Jafarudheen v. State of Kerala(2022 (3) KLT SN 29 (C.No.19) SC = 2022 (2) KLT OnLine 1025 (SC) = AIR 2022 SC 3627).

•     Venkatesh v. State of Karnataka (SC),2022 April, 19 = 2022 (2) KLT OnLine 1079 (SC).

•     Kusal Topo v. State of Jharkhand(2018 (3) KLT OnLine 3150 (SC) = (2019) 13 SCC 676).

•     Asar Mohammed v. State of U.P.(2018 (4) KLT OnLine 3078 (SC) = AIR 2018 SC 5264),

•    Charandas Swami v. State of Gujarat(2017 (2) KLT OnLine 2057 (SC) = AIR 2017 SC 1761).

•    Vasanth Sampath v. State of Maharashtra (2015) 1 SCC 253),

•     C.Muniappan v. State of T.N. (2010 (4) KLT SN 11 (C.No. 12) SC = AIR 2010 SC 3718).

•    Limbaji v. State of Maharashtra(AIR 2002 SC 491).

Section 27 is an Exception to Section 25 and 26

Section 27 is an exception to the two preceding sections, Sections 25 and 26. They are as to-

•    No confession made to a Police Officer shall be proved as against a person
accused of any offence (Section 25).

•    No confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person (Section 26).

Section 162 Cr.P.C. is also relevant here. It says as to-

•    No statement made by any person to a Police Officer in the course of an investigation be used for any purpose at any inquiry or trial (except for contradiction under Section 145 Evd. Act).

If “place” already known, and not exclusively in knowledge of Accused, No Section 27 Recovery

It is trite law, as shown in recent decisions of our Apex Court, Subramanya v. State of Karnataka (2022 (5) KLT OnLine 1087 (SC) = AIR 2022 SC 5110), and Boby v. State of Kerala (2023 (1) KLT 543), that Sec.27 would not be attracted if the recovery was from a place which was already known and not exclusively within the knowledge of accused.

“Any object can be ‘concealed’ in places which are open or accessible to others”

In State of Himachal Pradesh v. Jeet Singh (1999 (2) KLT SN 9 (C.No.8) SC = AIR 1999 SC 1293),it is pointed out that it may be possible to hide articles in a place ‘open or accessible to others’. It is said, “For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances.” (Quoted in -- Ibrahim Musa Chauhan v. State of Maharashtra (2013) 13 SCC 689); Lochan Shrivas v. State of Chhattisgarh (2021 (6) KLT OnLine 1091 (SC) = AIR 2022 SC 252).

Credibility of the Investigating Officer, Important

But, in several cases it is emphasised that the credibility of the evidence of the investigating officer was really important (See  Mohd. Arif @ Ashfaq v. State (NCT) of Delhi, (2011) 13 SCC 621, Himachal Pradesh Administration v. Om Prakash (1971 KLT OnLine 1078 (SC) = AIR 1972 SC 975).

Failure to Record Information of the Accused, Not Fatal

It was pointed out in Suresh Chandra Bahri v. State of Bihar (1994 (2) KLT OnLine 1123 (SC) = AIR 1994 SC 2420), that failure to record the information given by the accused and failure to examine public witnesses, are not fatal to the prosecution.

Exact Statement of the Accused must be deposed by the Police Officer

Courts in India insists (unduly?) that the exact disclosure statement of the accused should be stated by the Police Officer, in the “Recovery Mahazar” and before the court. In Subramanya v. State of Karnataka ((2022 (5) KLT OnLine 1087 (SC) = AIR 2022 SC 5110),
it is observed as under:

“83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under 
Section 27 of the Evidence Act.”

Disclosure Statement under Section 27 Need Not be in Presence of Witnesses

In Praveen Kumar v. State of Karnataka ((2003) 12 SCC 199), our Apex Court held that Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses. It reads-

• “21. Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses. Normally in cases where the evidence led by the prosecution as to a fact depends solely on the Police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus it is only a rule of prudence which makes the court to seek corroboration from independent source, in such cases while assessing the evidence of Police. But in cases where the court is satisfied that the evidence of the Police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case nothing is brought on record to show why evidence of PW-33 I.O. should be disbelieved in regard to the statement made by the accused as per Ex. P-35. Therefore, the argument that statement of the appellant as per Ex.P-35 should be rejected because the same is not made in the presence of independent witness has to be rejected.”

• Also see State of Himachal Pradesh v. Jeet Singh (1999 (2) KLT SN 9 (C.No.8) SC = AIR 1999 SC 1293).

In Nisar Khan @ Guddu v. State of Uttaranchal ((2006) 9 SCC 386), it was held that the discovery statement and the recovery memo need not bear the signature of the accused.

Subramanya v. State –Witnesses needed for Accused’s Information, Only Obiter

Subramanya v. State of Karnataka(2022 (5) KLT OnLine 1087 (SC) = AIR 2022 SC 5110), reads as under:

• “84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch­-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch­ witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” (It is quoted and followed by the Apex Court in Boby v. State of Kerala (2023 (1) KLT 543).

Note:In Praveen Kumar v. State of Karnataka ((2003) 12 SCC 199), our Apex Court held that Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses.

In any case, the observation in Subramanya v. State of Karnataka (2022 (5) KLT OnLine 1087 (SC) = AIR 2022 SC 5110) – ‘when the accused while in custody makes such statement before the two independent witnesses (panch-­witnesses)’, is only obiter; in view of the earlier observation in the judgment, which reads as under:

• “The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under
Section 27 of the Evidence Act.”

Section 27 is a Most Misused Provision

Section 27 is said to be a most misused provision.Of course, it is not a Great Indian Hypocrisy. All who handle matters in Court and Police know it.

Law Commission of India

But, the Law Commission of India has qualified it as a ‘malady’ and recommended in its 152^nd Report (Report On Custodial Crimes), dated 26.8.1994, as under:

• “If information spoken of in Section 27 is not forthcoming voluntarily, the police may have recourse to procuring the same by other means. This is not to say that in every case the information is compelled to be given. But it cannot be gainsaid that the very existence of the Section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the Section is pressed into service in situations never intended by the legislature. We are convinced that the Section needs an amendment, if not repeal, in order to completely ward off the tendency mentioned above.

• In order to meet the malady two courses are open. Section 27 may be repealed in toto and that is our first reference. But if that course is not acceptable, the minimum that can be done is to revise the Section so as to confine it to make admissible the fact discovered but not the information.

• Therefore, if the milder alternative of merely amending Section 27 (and not its total repeal) is to be adopted, we would recommend that Section 27 may be replaced by the following Section-

• ‘27. Discovery of facts at the instance of the accused – When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a Police Officer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not’.”

Supreme Court of India

In Geejaganda Somaiah v. State of Karnataka (2007 (2) KLT SN 83 (C.No.109) SC = AIR 2007 SC 1355), our Supreme Court said as follows:

•    “As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse.”

•    It is quoted in-

      •   Jafarudheen v. State of Kerala(2022 (3) KLT SN 29 (C.No.19) SC = 2022 (2) KLT   OnLine 1025 (SC) = AIR 2022 SC 3627);

      •   Mukesh v. State of Delhi (Nirbhaya Case)(2017 (2) KLT SN 81 (C.No.114) SC =
(2017) 6 SCC 1;

      •   Kusal Toppo v. State of Jharkhand (2018 (3) KLT OnLine 3150 (SC) =
(2019) 13 SCC 676).

Conclusion

Law must be specific and accurate. If not, those who enforce it may be free to handle it according to their speculation and understanding.

It is really disgraceful to continue Section 27 of the Evidence Act, in its present tough-and-rough form, without change, in spite of the observation of the Privy Council, in Pulukuri Kotayya v. King Emperor, as early as in 1947, that it was not artistically worded; and after the resounding recommendation of the Law Commission of India that Section 27 should be re-drafted.

The Empty Chair Prayer: To My Senior With Love !

(By K.Jaju Babu, Sr. Advocate)

“As I am vacating my humble but comfortable chair in my law office, I have to acknowledge with appreciation and gratitude the yeoman service rendered to me by my colleagues and staff, especially, Advocate Sri.K.Jaju Babu and my clerk of many years, Sri.S.K.Radhakrishnan Nair”…. These are the words of Hon’ble Justice K.P. Dandapani in the Full Court reference on 11th April 1996, in his reply speech, while being sworn in as an Additional Judge of the Kerala High Court. On 21st March 2023, weeping for the memory of a life gone by, we had to save him a seat, just one empty chair. And we now pray, whenever he comes down to earth to spend time with us, he may acknowledge us with the very same appreciation ! 

An era has come to an end and Senior Advocate K.P.Dandapani is no more. I was with him for nearly one and a half decades. The love and support of his beloved wife
Smt.Sumathi Dandapani was his hidden strength. I am also grateful to my encouraging wife Vijayalakshmi, who was also a part of the law firm Dandapani Associates.

Sri.K.P.Dandapani was a leading luminary of law for more than half a century.  During this period he has worn many hats and played many roles. He was the President of
Kerala High Court Advocates’ Association in the year 1995. The very next year he was elevated as an Additional Judge of Kerala High Court.  But he was transferred to Gujarat High Court and he opted not to go.   Instead he resumed practice before the High Court.  Hard work for another decade, he and Smt. Sumathi Dandapani, who had studied together and enrolled together in 1968, were designated as Senior Advocates in 2007.  Eventually, he was the Advocate General of Kerala during 2011-2016.  Yes.., Sri.K.P.Dandapani had a life so full, rich and meaningful.  He was a lawyer of unique talent and determination.
Ofcourse, he was the most special person in my life.

A former Naval NCC Captain of St.Albert’s High School, Sri.Dandapani was a disciplinedpersonality, always well dressed in white pants during court sessions.  He used to tell us about his humble beginning “I first came to the High Court in a cycle, then a scooter, later a car and still later I could build my own house.  All I am or having, I owe to my profession.”

He had qualities that no one expected and few had ever seen.  He was a multi-tasker par excellence.  His passion (to reach his goals), optimism (belief in himself), persistence (to face setbacks), creativity (original thinking), self-discipline (to avoid distractions), desire to improve (never considering himself perfect) and commitment to learning (searching for another when you have one decision in your favour), made him a Senior having unconventional ways to success.

The very next day I joined his office, I was favoured with the assistance of a
stenographer, never expected by any junior during that time.  He imposed only one restriction- don’t argue a case without full homework. And he insisted that before arguing, his junior should be thorough on facts as well as law.

He was very insightful.  He understands his client, first. Then he efficiently proceeds with the case expeditiously and fairly. He had an unmatched professional efficiency.  He used to fight for the cause of his client tirelessly for a successful outcome.  He treated every client, individual or institution valuable. His success was in giving them a feeling that he gave their case all the time and attention.  As a junior lawyer, he gave me all freedom and confidence to argue any case. He was also very particular that every junior in his office should maintain the dress code of a lawyer.  He was a great lawyer and a true friend.   His son Millu, daughter Mittu and grand-daughter Maneesha are also lawyers. And he taught me family is not always blood, it is the people in your life who want you in theirs. 

After putting up my own office in the year 1997, he chose me to defend him in two cases, with full confidence, declaring that relations have to be built on trust.  In the end, he showed us, sacrifice is  a part of life. He donated his body to medical science.  It is not something to regret.  It is something to aspire to.  He firmly believed that everything happens in accordance with a divine scheme and plan.

Sri.Dandapani’s demise is a momentous loss to the legal fraternity.  Junior like me, who had our good times with him and who loved him so much, are once again reminded of human mortality, as if we have lost a part of ourselves.

Yes, I am proud to be tagged on with Dandapani’s – always.

“for as in Adam, all die, so also in Christ, shall all be made alive.”                                                                                                                                           – Corinthians  15:22

K.P.Dandapani: Farewell to A Visionary

“A lawyer’s life is no life of cloistered ease to which you dedicate your powers. This is a life that touches your fellow men, of every angle of their being, a life that you must live in the crowd, and yet apart from it, man of the world and philosopher by turns”.    –– Benjamin N. Cardozo

Those who have known an effervescent, distinguished lawyer K.P.Dandapani will vouch that his life meets all of the above. From Bar to Bench and again from Bench to Bar and then as the Advocate General for the State, his life as a lawyer has touched upon people from all walks of life furthering the count of pre-eminence in the society. His sad demise might have left an immediate vacuum in the legal fraternity, however just as wise words never die, the hues of his persona will outlive his memories.

Born to V.K.Padmanabhan and N.K.Narayani in the year 1946, his formal schooling was from St. Albert’s High School and graduation from St. Albert’s College, Ernakulam. His tryst with law begins as he joins the Government Law College, Ernakulam and on being enrolled as a lawyer in the year 1968, it was nothing short of beginning of a new era. After a very brief stint as a junior lawyer under the benevolent guidance of Senior Advocate, late S.Easwara Iyer as reminiscence by K.P.Dandapani himself, in the year 1972 he commenced his independent practice. His wife Adv.Sumathi Dandapani joined him and why not, it added colours to his dream of becoming a successful lawyer.

As perceived by many anything he touched was successful, however, one should not lose sight of the fact that it was nothing but his hard work which had brought all the
accolades. From limited resource to being resourceful, and having no influential back-grounds he had to stand on his own feet, of course a bane to the banal arguments of nepotism. Merit being an acquired asset and as a strong willed person he made his own way.

Apart from being dynamic and energetic he had the added qualities of wit, humour and tact essential for a lawyer. An ardent sports, movie enthusiast he was very much fond of music and gardening. The lawyer’s emblem which is widely in use was the result of his creative stings. His cartoon drawings found place in popular Malayalam daily Malayala Manorama with which he had the longest association both as a legal reporter and legal adviser cum counsel.

K.P.Dandapani’s resolve to attain knowledge and his interest in reading and reporting judgments has occasioned him to be a legal reporter in Kerala Law Times during the period 1980-82. His cordial relations with the publication which started with an acquaintance with the founder editor of Kerala Law Times Adv.M.C.Mathew, continued with the then Chief Editor Siby Mathew and was maintained till the end.

His humanness and ever caring nature made him popular not only among the bar but also in the Bench. He proved his mettle as a skilled organiser and a competent
leader while steering as the President of the Kerala Advocates Association. His major contributions includes the efforts in materialising a Display Board for the lawyers.

His legal acumen and proficiency in law which sprawled over a vast variety of subjects like constitution, civil, criminal, company had finally culminated in his Judgeship in the year 1996. Though he was appointed as Judge of Kerala High Court he relinquished his Judgeship after three months and returned to his true calling - the bar.

Adv K.P. Dandapani along with his wife Adv.Sumathi Dandapani was conferred senior designation in the year 2006. He was the legal advisor and standing counsel of many companies and establishments,including Power Grid Corporation of India Ltd., Leela Group of Companies, NIT Kozhikode, Greater Cochin Development Authority, Thangal Kunju Musaliar College of Engineering, Kollam, Malabar Christian College, Kozhikode, and KITEX Group of Companies.

In 2011, Chief Minister Oommen Chandy (as he was then) appointed Adv.K.P. Dandapanias the Advocate-General for the State of Kerala. During the spell of five years as AG his knowledge of law exemplified in all levels and as the eminent American lawyer W.R. Ruddle quotes “learning begets courage and self-confidence can only be founded on knowledge. This courage is not the courage of a prize fighter, nor of the bully, but is the courage that will tackle every problem or question presented, investigate it, find out the whys and wherefores, the ins and outs, then placing features as well as those that are disagreeable and then stand by your guns.” True to the above words he stood by his guns when there was controversy about the stand he took inMullaperiyar’s case about the water holding capacity of the dam which was perceived to be in apparent conflict with that of the State Government.

One of the remarkable achievements in his legal career spanning over more than five decades would be the Italian Marine’s case (2012) wherein two fisherman was shot dead by the marines of the Italian ship “Enrica Lexie”. The case was seen as having huge international ramifications and there was immense pressure on the UDF Government at that time to engage senior SC lawyers. It was the Chief Minister’s undying faith in his A.G. that the case was entrusted to him and he not only won the case and was also instrumental in securing one crore compensation to the victims’ families.

As reminded by the words of eminent lawyer K.Krishnaswamy Aiyar (Madras High Court) “a sine qua non for success is that you must put forth infinite industry”. Without doubt industrious he was and laborious through each brief and if tested with the words of Lord Atkin “one thing that was essential was the capacity for hard and regular work and that nobody had ever risen in legal profession by doing a few hours work here and there when the mood came upon him”, one could highlight that his life itself resounds the message that “industry is fortune’s right hand”.

With the bugle salute and State honours as he finally lay rest, his mortal remains stay as a study material for the budding medical professionals of the Medical College, Kalamassery. A courageous and conscious decision taken during his lifetime depicts one of the layers of his personality that he beheld. As his saga of greatness continues, may his bereaving family, his beloved wife Senior Adv.Sumathi Dandapani (Kerala High Court), his son Adv. Millu Dandapani (Kerala High Court), his daughter Mittu (Lawyer, Sydney, Australia) and grand-daughter Maneesha (Lawyer) find peace and solace.

                                                                          –– From the Editor’s Desk, KLT

Unstamped Documents –Should the Court Sit Silent,

if Marking Unopposed; and Question it Afterwards

(By Saji Koduvath, Advocate, Kottayam)

Introspection

The following forceful propositions stand paradoxical and incongruent.

● 1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under S.35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.

● 2. Under S.36 of the Indian Stamp Act, the court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection, or marked by mistake (overlooking the insufficiency of stamp).

It is yet to be resolved-

● Whether the court should sit silent and mark the document if it is not opposed, or whether the court should not allow to mark an insufficiently stamped document even if no objection is raised by the opposite side; and

● Whether the court should raise its eye-brows after marking it unopposed, and thereafter send the document for impounding, if so needed.

Instruments Not Duly Stamped, Inadmissible

Section 35, Indian Stamp Act reads as under:

● “35. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

● Provided …..

Unstamped Document Cannot be Looked at Even for any Collateral Purpose

Privy Council in Ram Rattan v. Parma Nath (AIR 1946 PC 51), held that Section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan (2013 (4) KLT SN 78 (C.No.70) SC) the Apex Court observed as under:

● “From a plain reading of the aforesaid provision (S.35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, thetrial court rightly held the same to be inadmissible in evidence.”

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015 (4) KLT Suppl.30 (SC), the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e., sale between the plaintiff and defendant or its terms. It is held as under:

● “In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e., severancy of title, nature of possession of various shares but not for the primary purpose i.e., division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence,if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and (sic?) get the document impounded and the trial court is at liberty to mark Exts.B-21 and B-22 for collateral purpose subject to proof and relevance.”

Section 49 of the Registration Act expressly states admissibility of unregistered documents  in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna v. Suchi Khanna (2008-10 ADJ 426 = 2009-75 All LR 34 = 2009-1 AWC 929).

The Apex Court in K.B.Saha & Sons Private Ltd. v. Development Consultant (2008 (2) KLT OnLine 1164 (SC), has laid down the principle in respect of the collateral purpose.

● “From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

1.   A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.

2.   Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

3.   A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4.   A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5.   If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

● 33. Examination and impounding of instruments —(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

● (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:

● Provided ….”

Section 36 of the Stamp Act – Once Admitted shall NOT be called in Question

Section 36 of the Indian Stamp Act provides as under:

● “36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.

Note: Section 61 of the Indian Stamp Act reads as under:

● 61. Revision of certain decisions of Courts regarding the sufficiency of stamps — (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.

● (2) … (3) …. (4) …..

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

The Apex Court held in Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC), as under:

● “Where a question as to the admissibility of a document is raisedon the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.

● The Court has to judicially determine the matter as soon as the document is tenderedin evidence andbefore it is marked as an exhibit in the case.…

● Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.

● Such an order is not one of those judicial orderswhich are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Objection be raised when Document Tendered

Our Apex Court held in Sirikonda Madhava Rao v. N.Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) and Shyamal Kumar Roy v. Sushil Kumar Agarwal (2006 (4) KLT OnLine 1148 (SC) that after marking a document unopposed, it is not open to the parties, or even the court, to re-examine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit. It is said by the Supreme Court –

● “Once a document has been admitted in evidence, such admissioncannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to re-examine the order or issue.”

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah (AIR 1973 A.P.342), and several other decisions it was held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it had been admitted in evidence it could not have been, afterwards, withdrawn. See also:

●    Pankajakshan Nair v. Shylaja(2017 (1) KLT SN 75 (C.No.85).         

●    Dundappa v. Subhash Bhimagouda Patil(2017 3 AIR (Kar.) (R) 570).

●    Savithramma R.C. v. Vijaya Bank(AIR 2015 Kar.175).

●    Jayalakshmamma v. Radhika(2015 4 Kar. L.J. 545).

●    K.Amarnath v. Smt.Puttamma(ILR 1999 Kar.4634).

●    Nanda Behera v. Akhsaya Kumar Behera(2017 AIR (CC) 1893).

Paradoxical and Incongruent Propositions

The following forceful propositions stand paradoxical and incongruent to each other-

1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Section 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.

2.The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Section 36 of the Indian Stamp Act.

The Karnataka High Court held in Smt.Savithramma R.C v. M/s. Vijaya Bank (AIR 2015 Kar.175), as under:

● “The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits.This, however, does come in the way of the court discharging the statutory duty contemplated under Section 33 of the Act. …..

● From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.

● If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35**of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.

● It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording
ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.” (quoted in Sri.R.Suresh v. Smt.Chandramma (Kar.) 7 Dec., 2017).

Unstamped Documents - Should the Court Sit Silent and Question Afterwards

Though Smt.Savithramma R.C. v. M/s.Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

● “The Court should not depend on objections of the other Counselbefore considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act
casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.”

Therefore, it is not definite-

●    whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document, or

●    whether the court should sit silent and mark the document if it is not opposed, or

●    whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Section 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera (2017 AIR (CC) 1893), relying on Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao (2015 (4) KLT Suppl.30 (SC), as under:

● “Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

Is Impounding “Totally Different“ from Admissibility

Section 36 of the stamp Act deals with and bar questioning ‘admission of instrument‘, alone.That interdiction or bar applies to the courts also. As pointed out earlier, our Apex Court held in Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC).

Karnataka High Court (N.Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015),authoritatively held relying on Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC)  = AIR 1961 SC 1655), that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage. It further observed (obiter) by the Karnataka High Court that the impounding the document was “totally different” from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

In principle, no doubt, what is said by the Karnataka High Court is fully legally acceptable. But, it can be argued that the above proposition requires evaluation on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana(1961 KLT OnLine 1291 (SC) = which reads as under:

● “Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Should an opportunity be given to Cure Defect, by Paying Deficit Stamp Duty?

In Kalaivani @ Devasena v. J.Ramu (2010 (1) CTC 27), it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

● “It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp Act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

Conclusion

It is not at all fair to say that if the court inadvertently marked a document or it failed to object marking, the document will stand good in favour of the party who tendered the document.

Foot Notes:

*    Corresponding to Section 35, Indian Stamp Act.                                                                 

**   Corresponding to Section 36, Indian Stamp Act.