A Critique to Valsala : 2012 (4) KLT 760

 (By S.R.K.Prathap, Advocate, High Court of Kerala, Ernakulam)

1. Introduction

Registration of F.I.R. under section 154 ₁ of the Criminal Procedure Code, on a complaint revealing no cognizable offence will have serious consequence on the personal life, liberty and dignity of the citizens of the State. The proposition of law declared in Valsala (Valsala v. State of Kerala - 2012 (4) KLT 760) confers wide powers on the police to register an F.I.R. even in case, no cognizable offence is revealed in the complaint/F.I. Statement. The registration of First Information Report on receipt of a complaint revealing cognizable offence without preliminary investigation and application of mind into the correctness of the allegation itself was held not good by the Honourable Supreme Court in a number of decisions. It is mostly for the reason that a person, who is named in an F.I.R. as an accused, suffers social stigma. If an innocent person is falsely implicated, he suffers not only from loss of reputation but also mental tension and his personal liberty gets seriously impaired. After Maneka Gandhi’s case ((1978)1 SCC 248.), the proposition that the law which deprives a person of his personal liberty must be reasonable, both from the stand point of substantive aspect as well as procedural aspect is now firmly established in our constitutional law. For registering an F.I.R., the complaint should disclose a cognizable offence as per the procedure prescribed in section 154 of the Criminal Procedure Code and as has been held in catena of decisions of the Superior courts (Manoj v.State of Madhya Pradesh(1999) 3 SCC 715),Abzauddin Ansary v. State of West Bengal ((1997) 2 Crimes 53(Cal.) (D.B.)).).Therefore Section 154 Cr.P.C. has to be read in conformity with constitutional principles and dilution of section 154 Cr.P.C. may result in deprivation of constitutional rights. In construing a statutory provision, the first and the foremost rule of construction is the literal interpretation. If the provision is unambiguous and the legislative intent is clear, the courts need not go into other rules for interpretation of statutes ((1973)1 SCC 212, para 22). On this backdrop the correctness of the above decision need to be looked into.

2.   Evaluation of judicial decisions on the need to disclose cognizable offence for Registering F.I.R..

The need to disclose a cognizable offence for registration of F.I.R. has been unequivocally and consistently been maintained by the Honourable Supreme Court. In Ramesh Kumari v. State(2007 (3) KLT 1028 (SC) = (2006) 2 SCC 677) the Honourable Supreme Court had held that “whenever cognizable offence is disclosed the police officials are bound to register the same and in case it is not done, directions to register the same can be given.” Similarly in Aleque Padamsee v.Union of India(2007 6 scc 171), while dealing with inaction of the SHO to register an F.I.R. Honourable Supreme Court held that “whenever any information is received by the police about the alleged commission of offence which is a cognizable one, there is a duty to register the F.I.R.” In Damodar v. State of Rajastan ((2004)12 SCC 336.) it was observed as follows." In order to constitute an F.I.R. the information must reveal commission of act which is a cognizable offence.”Though the interpretation of section 154 was not directly in issue, the Honourable Supreme Court in Binay Kumar Singh v. State of Bihar ((1997)1SCC 283, para. 9.) held as follows: “ It is evidently a cryptic information and is hardly sufficient for discerning the commission of any cognizable offence there from. Under Section 154 of the Code, the information must unmistakably relate to the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall be signed by its maker.The next requirement is that the substance thereof shall be entered in a book kept in the police station in such form as the State Government has prescribed. First information report (F.I.R.) has to be prepared and it shall be forwarded to the magistrate who is empowered to take cognizance of such offence upon such report. The officer in charge of a police station is not obliged to prepare F.I.R. on any nebulous information received from somebody who does not disclose any authentic knowledge about commission of the cognizable offence. It is open to the officer-in-charge to collect more information containing details about the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation thereto.” The same was followed in State of Haryana v. Bhajan Lal (1992 Supp(1)SCC 335, Para 33.) and inPrakash Singh Badal v. State of Punjab ((2007) 1 SCC 1). Here also need for revealing a cognizable offence has been reiterated. The immediate impact of registration of an F.I.R. on a citizen is the loss of reputation, impairment of personal liberty resulting in mental anguish and therefore the act of police officer in registering an F.I.R. must be informed by reason and it can be only where there is a prima facie case against the named accused. (2012 (1) KLT SN 129 (C. No. 139) SC = (2012) 4 SCC 1, para 61.)

3. Need for preliminary investigation on disclosing a cognizable offence

Even the right of the Police to register an F.I.R. based on a complaint disclosing the cognizable offence is under Judicial Scrutiny. The question under scrutiny is whether police officer can exercise any discretion to refuse registration of F.I.R. or can resort to preliminary investigation to find out, the first information sought to be registered had any substance or not. The Honourable Supreme Court in Rajinder Singh Katoch v. Chandigarh Admn(2007 (4) KLT 877 (SC) = (2007)10 SCC 69.) after taking note of Ramesh Kumari (2006 (2) KLT 404 (SC) = (2006) SCC 677.) held that “ We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such a statutory duty has been found in the police officer. But, as indicated hereinbefore, in an appropriate case, the police officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not.” In a case, where a compliant revealing cognizable offence has been filed with ulterior motive, the Honourable Supreme Court has justified a preliminary investigation before registering an F.I.R..The Honourable Supreme Court has spoken about need for preliminary investigation before registering an F.I.R., where a public servant is charged with acts of dishonesty amounting to serious misdemeanour (AIR 1964 SC 221, (1970) 1 SCC 595.).Presently arguments are coming up that the directions empowering the registration of F.I.R. on disclosing the cognizable offence itself is without considering the impact of Article 21 on Section 154 of Cr.P.C. After Menaka Gandhi case((1978) 1 SCC 248.) the Honourable Supreme Court has applied Article 21 to several provisions relating to criminal law. It is also being argued that in the light of Article 21, provisions of Section 154 of Cr.P.C. must be read down to mean that before registering an F.I.R., the Station House Officer must have a prima facie satisfaction that there is commission of cognizable offence as registration of an F.I.R. leads to serious consequences for the person named as accused and for this purpose, the requirement of preliminary enquiry can be spelt out in Section 154 and can be said to be implicit within the provisions of Section 154 of Cr.P.C. The Honourable Supreme Court while considering Lalita Kumar v. State of U.P.(2012 (1) KLT SN 129 (C.No. 139) SC = (2012) 4 SCC 1.) referred the matter to a Constitution Bench considering the great public importance and the divergent opinions expressed in large number of decisions.

 4. Remedy when Police abuses powers vested under Section 154 Cr.P.C.

The registration of an F.I.R. under Section 154 of Cr.P.C. is an administrative act of a police officer. Every administrative act must be based on application of mind, scrutiny and verification of the facts. No administrative act can ever be a mechanical one. This is the requirement of rule of law. The scheme of the Act is that after the police officer records an F.I.R. under Section 154 Cr.P.C., he has to proceed to investigate under Section 156 Cr.P.C. and while investigating the police officer has power to arrest. What is required to be noted is that for the purpose of arresting the accused, the police officer must have a reasonable ground to believe that the accused is involved in the commission of a cognizable offence. If Sections 41 and 154 Cr.P.C. are read together, it is clear that before registering an F.I.R. under Section 154 the police officer must form an opinion based on the information disclosed that there is a prima facie case against the accused. If he does not form such an opinion based on materials disclosed and still proceeds to record an F.I.R., he would be guilty of an arbitrary action. The Article 21 requires that no one shall be deprived of his life and personal liberty except by procedure established by law and this procedure must be reasonable, fair and just. If the procedure is not reasonable, fair and just, the Court will immediately spring into action and run to the rescue of the citizen(Francis C. Mullin v, Administrator, Union Territory of Delhi(1981) 1 SCC 608 (paras 4 and 5).). The scope of interference has been a subject of judicial scrutiny and the Honourable Supreme Court issued detailed guidelines in the following cases. InR.P.Kapur v. State of Punjab (AIR 1960 SC 866 , Para 6.) the Honourable Court summarized some categories of cases where inherent power under Section 482 Cr.P.C. can and should be exercised to quash the proceedings.

i. Where it manifestly appears that there is a legal bar against the institution or continuance. Absence of requisite sanction may for instance furnish cases under this category.

ii. Where the allegation in the First Information Report or complaint taken at its face value and accepted in their entirely do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is matter merely looking at the complaint or the First Information Report to decide whether the offence is disclosed or not.

The Court further observed that in such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of criminal court to be issued against accused person. In State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335.) the Honourable Supreme Court illustrated the categories of cases to be interfered with under Section 482 after discussing catena of decisions on this point.

i. Where the allegation made in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.

ii. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

iii. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

iv. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a magistrate as contemplated under Section 155(2) of the Code.

v.    Where the allegation made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused.

vi.   Where there is express legal bar engrafted in any of the provisions of the Code or the act concerned to the institution and continuance of the proceedings.

vii.  Where is criminal proceedings is manifestly attended with mala fide and where the proceedings is maliciously instituted with an ulterior motive of wreaking vengeance on the accused and with a view to spite him due to private or personal grudge.

These are the land mark decisions along with hundreds of other judgments following the dictum laid down above(2010 (4) KLT SN 41(C.No.46) SC; 2011(2)KLT SN22(C.No.30)SC; 2011(2) KLT SN59(C.No.78) SC;           2011(2) KLT SN113(C.No.136) SC.). Justice Fazal Ali explained the position of law in Pratibha Rani v. Suraj Kumar ((1985) 2 SCC 370.) as follows : “It is well settled by long course of decisions of this court that for the purpose of exercising its power under Section 482 Criminal Procedure Code to quash a F.I.R. or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations”. In State of Bihar v. Murad Ali Khan (1988 (2) KLT SN 72 (C.No. 108) SC = (1988) 4 SCC 655.), Justice Venkatachaliah while reversing the judgment of the Honourable High Court speaking for the bench stated that the jurisdiction under Section 482 has to be exercised sparingly and with circumspection and in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegation in the complaint are likely to be established by evidence or not. In State of U.P. v. V.R.K. Srivasatava ((1989) 4 SCC 59.), the Honourable Supreme Court ruled that if the allegations made in the F.I.R. taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of

such F.I.R. should be quashed. The above judgments have been tagged to the show the consistent policy of the Superior Courts. In Renjith Abraham v. State of Kerala (2002 (2) KLT SN 92 (C.No. 109).), learned single Judge of this Honourable High Court held as follows. "On going through the allegations, if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, court will not be justified in quashing the proceedings. On the other hand, if the allegations do not constitute any offence as alleged, the court will have to quash the proceedings in order to prevent abuse of process of the court”. In a case where Magistrate took cognizance in a private compliant against Chairman and few senior officials of Mahararastra State Electricity Board under Section 406 I.P.C. for refusing to return the amount deposited by the complainants, the Honourable Supreme Court reversed the order of the High Court and quashed the criminal proceedings by holding that there is no pleading of personal entrustment against the person arrayed as accused and it was observed as follows "In the absence of any such specific averment demonstrating the role of the accused in the commission of the offence, we find it difficult to hold that the complaint, even ex facie, discloses the commission of an offence by the appellant under Section S. 409 I.P.C, punishable under S. 406 I.P.C (Asoke Basak v.. State of Maharashtra (SC) -- 2010 (4) KLT SN 41 (C.No. 46) SC = 2010-10-3,BCR(CRI)-2011-1-436). The judgments reiterate the principle that court can exercise its inherent jurisdiction of quashing criminal proceedings whenever allegation made in the F.I.R. do not constitute an offence. It is also being advised that the power under Section 482 has to be exercised with great care, reasonably and judiciously. This Hon'ble Court had on various occasions quashed F.I.R. and further proceedings on the ground that allegations even if taken at its face value and accepted in their entirely do not constitute the alleged offence. Reading of Valsala v.State of Kerala makes clear that the material relied on by the Sub Inspector of Police for registering F.I.R. has not revealed any criminal offence against the petitioner. It does not speak about any entrustment to the petitioner to attract Section 406 I.P.C. The appreciation of case diary by the Honourable Court does not indicate any preliminary investigation before registering F.I.R. against the Public Servant. Therefore, it appears that dictum laid down in Valsala is not in consonance with consistent view taken by the Honourable Supreme Court.

5. Conclusion

The analogy was drawn, placing registration of F.I.R. in case of loss of passport, credit card etc., with non-receipt of R.C. Book. It appears that certain crucial aspects were not brought to notice of the Honourable Court prompting the court to draw such an analogy inconsistent with procedures and practise being followed by the Station House Officers. I had the privilege to come across the procedure being adopted by the S.H.O.’S in case of loss of credit card, pass port etc. The police in the ordinary course will register F.I.R. only in case the complaint reveals some cognizable offence like theft or other penal offences. Otherwise, complaint will be entered into the petition register kept at the station and a receipt will be issued pointing out receipt of a petition on the subject. An inquiry will be conducted without F.I.R. and a report will be given to the petitioner if sought for. The police report thus issued will settle his grievances for the purpose of duplicate passport/credit card etc., in most of the cases.

Similarly, analogy drawn to classify registration of F.I.R. in man missing(Section 57 of the Police Act 2011 gives statutory recognition for registration of F.I.R. in man missing cases.), suicide and death under suspicious circumstances(Section 174 Cr.P.C. prescribes the procedure to be followed.) etc, with non-delivery of Registration Certificate of a Motor Vehicle, also requires reconsideration. In man missing cases, no cognizable offence can be revealed before investigation. The purpose of registration of F.I.R. in man missing cases is to enable the police to conduct search in accordance with the procedure prescribed in Cr.P.C. Many man missing cases on investigation may turn into serious offences involving wrongful confinement, abduction, kidnapping, murder etc., affecting basic human rights. Similar is the situation in cases under Section 174 Cr.P.C. The proceedings under section 174, F.I.R. will be forwarded only to the executive magistrate and only on detecting cognizable offence; the F.I.R. with additional report will reach a Judicial First Class Magistrate Court. Moreover, F.I.R. is not registered against any particular person to deprive of his life and personal liberty. In respect of all other situations including non delivery of postal article, complainant is at liberty to allege cognizable offences in his complaint to the police. If the complainant chooses not to raise a cognizable offence, the Police is not entitled to register F.I.R, without preliminary investigation and application of mind in view of the declaration of law by the Honourable Supreme Court in catena of decisions.

The exemptions were permitted with a great purpose, directly related to human life, dignity, personal liberty and generalising the same may give room for the executive to abuse the purpose of Section 154 Cr.P.C. The exemptions for practical purpose, which got judicial and statutory recognition, were a step towards protection of human rights, life and dignity.

In view of the above discussions, my humble view is that the legal propositions laid down in Valsala may not go in consonance with principles laid down by the Honourable Supreme Court.

1. Section 154. Information in cognizable cases.  (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2)A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. 

The Proposal to Remove Jurisprudence from the 

Syllabus for the LL.B. Degree

(By K. Jagadeesachandran Nair, Advocate,High Court of Kerala) 

Any and every amendment or alteration cannot be considered as an improvement or change for the better. The syllabus for the law degree is being constantly altered and it is said with a view to improvement for the better. If so it is good. No doubt about it. But is it not worthwhile to look at it critically once in a while. In older days the syllabus consisted also of Roman Law, Ancient Law and Real property, I am told now all those have been relegated to the dust bin. To understand the development of the law from early times it would have been useful to learn the subjects mentioned. But if the time saved by the change is utilized in better and more useful ways it can be justified. But the latest proposal is to abandon the study of jurisprudence altogether from next academic year onwards. I am of the view that it does not add luster to the powers that be, nor does it help to enhance the prestige of the law degree awarded by the Indian Universities. It is well known that jurisprudence is the science and the philosophy of the law and is fundamental to the resolution of disputed questions of theory in law. The law of persons, the law of things, the law of property, the  law of procedure, the justice delivery system all these are built on the bed rock of jurisprudence and to discard it by the student of law would really cripple his development as a jurist and as a well equipped lawyer. It will be like seeing the foliage and mistaking it for the tree. The flower and the fruit and the seed and how the seed sprouts into the tree all these must be essential for a true knowledge as to how the tree will be in life. The mammal will have to be distinguished from those which are not, invertebrates and vertebrates have to be distinguished. All this is made possible only by knowing the basic science and philosophy behind it. To forget the substance and mistake it for the form is not proper. In all vexed questions I think a reference to the basic jurisprudence will become necessary for the lawyer and the judge. The constitutional lawyer goes to the principles such as separation of powers, sovereignty and its limit, extra territorial sovereignty, judicial review and its boundaries, natural justice and its limits. All these in my humble opinion calls for a study of jurisprudence and is not peripheral or a mere study of the statute by itself. The want of proper knowledge of jurisprudence and the philosophy of the existing law by the law makers and legislators have created and are creating anomalies and difficult situations in recent amendments and alterations of the law. Legislation encroaches on judicial sphere and of course there are extra territorial encroachments by the judiciary into legislative arena.  All these are basically questions for solution based on jurisprudence. The syllabus is decided by the Bar Council of India. It was only a short while ago that elections to the Kerala Bar Council was set aside by the apex court for various hitherto unheard of corrupt practices and illegalities in the election. If the elected members of the Bar Council of India find it that some expert advice is necessary on the question of syllabus is it not better to take advice from experts in the field of teaching and from academicians and senior lawyers and jurists in all walks of life and of course last but not least important from experienced members of the judiciary. At least knowledge must be welcome from any quarters. Light must always be welcomed. Lack of experience for the elected members of the Bar Council of India ought not to cause   havoc and jeopardize the standards and reputation of the Indian Law degree among the English speaking world following British jurisprudence such as the Commonwealth countries. Too much thought on the subject will not be waste of time. If it will be of any effect for a mature consideration of the subject. I for myself feel that study of jurisprudence cannot be left out from the legal curriculum except at the cost of real deterioration of standards. 

By making law degree a basic degree instead of a post graduate study as it was, the standard of the law student is greatly reduced to the high school level. And by tampering with the syllabus the quality of the degree also is to be progressively diluted. In former times only graduates could join Law College and so the standard of the student was that of a university graduate and law was only a post graduate study as all professional courses were so at a time including medicine and engineering. I think, at first engineering was made an under graduate study and then medicine and lastly law. I do not propose to enter an arena where educational experts have to say.  But I feel it was all wrong. A professional course student must be a man of the world and should not be just like a high school student. To condense professional courses and to compress it to short durations may have its advantages but the disadvantages have also to be seen. To reduce the standard of the Indian Law degree and leave real study of the basic of law to post graduate students in law is an innovation. I am not able to digest the idea that anything and everything new is good. A discerning mind is necessary to distinguish between the essentially good and the not so too good ideas of change. I have  gone through the  essay by G.S. Sharma in the seminar  on Legal Education in India held under the auspices of the  Poone University and published in 1973 where  he wanted to dilute the course in jurisprudence for LL.B. degree  as elementary and advanced study in jurisprudence for LL.M. Now the latest proposal is to abandon the study of jurisprudence by law students for the degree altogether. A progressive deterioration in standard is not advantageous to the students of law in the profession or for continuing study in India or abroad. Jurisprudence and evidence are difficult subjects for study. Does it mean both can be avoided? I think the benefit of the study and the knowledge of jurisprudence for a lawyer cannot be over emphasized. Throughout my career I have found it immensely useful for study and analysis of every branch of the law in depth and in its application to facts and situations I find it useful. I do not think this experience is mine only or that others equally experienced are not here. But they are keeping mum and so I speak aloud. Anybody can if so inclined disabuse me if I am seriously mistaken in my argument for retaining jurisprudence in the syllabus for the LL.B. I think some action or serious talk is urgent and if correction is required it has to be done before it is too late. A stitch in time will save nine.

Language of the High Court -- Linguistic Chauvinism or  
Pragmatic Commonsense?

(By Adarsh Kumar, Advocate, High Court of Kerala)

The idea of language being the hallmark of cultural rootedness is a widespread one. For a few examples, the Greeks called all non-Greek speakers barbarians, the French are only at home where French is spoken and the English consider the ability to speak another language a blemish.

The two principal incentives toward learning a language — any language are intellectual and economic. The same applies to the legal field as well. Due to the spread of English as the predominant language of international business as well as its role as a legal language within the European Union, legal English is now a global phenomenon and is a certainly a phenomenon to stay in India.

It is almost an historical axiom that no nation has ever successfully imposed its own language on a conquered people by force. Languages have always been accepted by a conquered people only when they have realised that to do so would benefit them, intellectually and materially. And the case of conquerors accepting the language of a subjugated people is not uncommon. The Mongols, who periodically invaded and subjugated China, inevitably ended by becoming, in speech as in other aspects, as much, if not more, Chinese than the Chinese themselves. On the same lines, the premise that since ‘English’ is the language of the imperial past, ‘Malayalam’ should be artificially superimposed as an effective substitute to English qua the courts especially the High Court, is both theoretically fallacious and practically dangerous.

Outrage is the flavour of the season. And Kerala’s more than the ‘good old vanilla’ as always. There’s more and more. The problem here is adulteration. It’s the same with facts. It appears that in view of the recent protests for making Malayalam as the language of all courts in Kerala, an assurance was given by Cultural Affairs Minister K.C. Joseph that steps will be started in this Assembly session for the enactment of a comprehensive legislation for the fulfillment of the same. It further appears that the protesters were also given the assurance to complete all the formalities for the legislation before the next assembly session. This article attempts to unravel a point of view shared by a dwindling number of scholars and public men in India today; a decidedly unpopular stand in these days of fierce linguistic positioning in the public arena.

The threat to the working of societal-legal processes in India lies not in replacing English with Malayalam as the language of the court, but in replacing English, at this belated juncture of passage of more than 60 years from the birth of independent India, with any of the Indian languages. The real threat lies in the direction of the pervasive and obdurate linguistic chauvinism which is out to oust the English language and to replace it overnight, with languages which are woefully ill-equipped for the task of imparting jurisprudential values on the basis of abstract notions of justice in the manner the English system of justice does. I doubt seriously whether any constitutional or other act or fiat will change that substantially.

In any event of the matter, under the present constitutional scheme, the said proposal of a comprehensive legislation seems wildly unrealistic and questionable. Part XVII which is the relevant part in so far as Official Language of the Union including language to be used in the Supreme Court and High Courts is concerned came into force on January 26, 1950, which day has been referred as the day of commencement of the Constitution of India. After coming into force of the Constitution of India the provisions of the Constitution shall prevail and all provisions of any existing or subsequent law in so far as they are inconsistent with the provisions of the Constitution of India will have no application whatsoever.

Therefore, when Part XVII of the Constitution of India came into force on January 26, 1950, and its Chapter III and more so its Article 348 provides for the use of language to be used in the Supreme Court and High Courts, the State Legislative Assembly is not competent to frame legislation(s) and/or rules that are repugnant to the same . In view of the factual position that Article 348 of the Constitution which starts with non-obstante Clause became applicable and all the proceedings in the Supreme Court and High Courts could only be in the English language unless so far as the High Court of the State is concerned, the Governor of the State with the previous consent of the President authorises under Article 348(2) of the Constitution of India the use of the local language. But in view of the proviso to Clause (2) of Article 348 of the Constitution of India nothing in that Clause shall apply to any judgment, decree or order passed or made by such High Court.

The proviso reads as follows:

“As from the appointed day or any day thereafter the Governor of a State may with the previous consent of the President authorise the use of Hindi or the Official language of the State, in addition to the English language, for the purposes of any judgment, decree or order passed or made by the High Court for that State and where any judgment decree or order is passed or made in any such language (other than the English language) it shall be accompanied by a translation to the same in the English language issued under the authority of the High Court.”

The proviso to Clause (2) of Article 348 of the Constitution of India therefore envisages the use of local language only “in addition” to English and not otherwise. Merely because the order of the Governor issued with the previous consent of the President enables the optional use of the local language in addition to English language for the purpose of judgment, decree or order passed or made by the High Court, it cannot be presumed under any stretch of imagination that there could ever be a State legislation mandating the same or purportedly enabling the manner of exercise of the said procedure for that matter.

Under the said proviso, it is not the duty of the Bench which give a judgment, decree or order in the local language to translate the judgment, decree or order in English and all that is required is that if judgment, decree or order is passed or made in the local language, it shall be accompanied by the translation of the same in English language issued under the authority of the High Court. It would then be the duty of the High Court on its administrative side to create a translation department with qualified persons and the High Court would then have to authorise its officer to authenticate the translations.

To my mind, in the event that the said function of translation were to be entrusted to a translation machinery invoking the said proviso, the understanding of law laid down by the ‘local-language’ High Courts (phrase invented for convenience) would be a tedious and complex semantic process of comparing and evaluating the accuracy of the translation with the original. This would inevitably lead to the possibility of the other High Courts refraining from referring to and relying upon the judgments of the ‘local-language’ High Court on account of the possibility of inaccurateness of the authenticated translations of the judgments vis-a-vis the actual judgments. A judicial system where translators as opposed to judges in the exercise of their judicial function interprets and elucidates the meaning and the legal nuances of words used in a judgment, would furthermore be fatal to the sheer centrality of the notion of ‘certainty’ in law and strike at the very root of the single integrated judicial structure coupled with the system of judicial precedent that we have established in our country.

It would be a pity if the finest milestones of Indian judicial creativity like the judgment in Keshavananda Bharati v. State of Kerala ((1973) 4 SCC 225) expressed through notions like ‘ basic structure’ were to be lost in translation. If judgments, decrees and orders are to be written in the local language and if it were to be the function of the High Court judges to translate the same; then the overburdening of the higher judiciary will have attained even more gargantuan proportions on account of the duplication of the work involved in the said exercise and the ever-increasing overload of cases. The same may consequently throw the system in a state of complete disarray and perhaps lead to its complete collapse.

In all analysis, the Bar and the Bench recognises and accepts English as the most convenient and most widely understood medium for legal communication and understanding law. It is further noteworthy that in the age of increased super-specialization in legal learning, opening of legal services markets and practice of law, there will be an increased use of technical terminology and doing away with our familiarity in legal English will only wean away the potential young lawyers from entering the legal profession in Kerala at a time when youngsters sans a legal pedigree are particularly disinclined to enter the profession. If the bar is singularly and exclusively gerontocratic, it becomes a legend of fiction in no time and sans the legal fraternity, to make an exaggerated ‘ad absurdum’ analogy, we may perhaps in no time return to the bullock cart age of ‘Durbari justice’.

Until what is written in Malayalam (whether original creations or translations) has more to offer intellectually than English in terms of its jurisprudential treasure, the Bar and Bench would still subscribe to English as the language of legal communication and understanding in all respects and the artificial superimposition of Malayalam from atop would at best be nothing, but a miscued exercise in redundancy. The carrot clearly works better than the stick.

Adieu to an Erudite Judge

(By P.Rajan, Advocate, Thalassery)

Mr.Justice M. Sasidharan Nambiar of Kerala High Court has demitted office after a long career as Judicial Officer, spanning nearly three decades in varying capacities, from the primary rung of judicial ladder as Munsiff to the pinnacle of the State Judiciary. Mr.Nambiar started his practice in the courts of his native place, tutelage under a veteran civil lawyer. He proved his inclination and commitment to the profession at the early stage itself; but thought of change of turf and appeared for judicial service test and became the topper and joined service as Munsiff in 1982. From that subordinate post of judicial service, by passage of time needless to say he served as Sub Judge, District Judge; also on the administrative side in the High Court before getting elevation as High Court Judge.

A stickler to professional integrity, strict in procedural adherence and rules, are some of the qualities he has held dearer. He is candid that a judge should be of absolute commitment and inflexible rectitude. His ability to write judgments on different subjects of law is evident on perusal of the judgments reported, mainly. Not a man of pomposity nor a morose judge, remained away from media glare often. His verdicts are right blend of law and facts; descriptive too, not laconic. It is true that all his judgments which invited public attention; have not become final but never carried the tag ‘per incurium’ when considered by the higher forums nor could say improper or illegal even on dissent. During the final stage of his career even, as the senior member of the Division Bench his performance was exemplary even by curing defects done by trial judges without causing delay in disposal, by avoiding prejudice to the parties. See the time taken for pronouncing the judgment after trial as the Special Judge, Kottayam, in the Suryanelli case, which is under much fresh revelations and a lot of deliberations not only in the legal circles now. He is aware that to prove the commitment of a judge to lofty heights sans perceived tedium, absolute hard work is needed and there is no substitute for that. Judges robe is not a mantle of glitter and authority only, he is aware. Former Chief Justice of India, Kapadia J. made a hard to believe disclosure during his retirement speech before the Supreme Court Bar Association, that in his 22 years career as a judge he has never taken a single day’s leave. In the group of such responsible judges there are many in the southern tip of the nation too. When another former Chief Justice of India made a startling disclosure from the Kerala soil transgressing institutional discipline by labeling 20 percent of judicial officers as corrupt; the shock and anguish reverberated in the State too at amazing levels but judges like Nambiar could share the distress in hushed voice, in selected circles only then. As opportunity came, Judges V. Ramkumar and R. Basanth of the Kerala High Court in very many words expressed their displeasure about the then patriarch’s patent breach of restraint. Author of this restraintless statement Justice Y.K.Sabharwal when demitted office, within no time his kin were accused of land grab and Delhi Media circulated this news with due prominence. Another former Judge of Supreme Court of India Mrs.Rumapal once said, one of the well kept secrets of the Indian Judiciary is the selection of High Court Judges directly from the Bar. Steps are afoot as enactment is in the offing to unravel this secret, one could hope that without percentage level able candidates will adorn the seats of justice.

Friend in power is a friend lost, may be true to few but Justice M. Sasidharan Nambiar is known for his humility and pleasant manners. Few rotten apples may not make an orchard bad but this adage is inapplicable to judiciary. Let the probity and earnest efforts for rendering justice shown by Mr.Nambiar in his endeavour be emulated and followed by the younger breed.

History of the Kerala High Court commences from Ram Mohan Palace to the present landmark edifice; declares about the services of scores of judges of inviolable principles and values. People who get their reputation by holding high office will be forgotten when they demit office. Judges who like Pompeia be well and truly above suspicion. Every big success has a small beginning, true to Mr.Nambiar also. Retirement is predestined and unavoidable. Impeccable integrity and absolute honesty coupled with matching acumen of justice M. Sasidharan Nambiar are always worth remembering; as judiciary has also become easy target of recurring criticism.

Analysis on Discretion/Exemption Under Section 205/313 Cr.P.C. 

Vis-a-Vis Negotiable Instruments Act  Section 138

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

1. This article on offence under Section 138 of N.I. Act aims at highlighting the ground level feed back meant for an exposure regarditig its enforcement in respect of an enactment which was intented for ensuring the credibility/reliability of cheques in the commercial activities of the country. The enactment came into force from 1-4-89. The wide spread impression in the commercial world has been that offence of “Dishonour of cheque ranks par with such crimes as fraud, forgery, breach of trust, criminal misappropriation and embezzlement”. This impression has been prevailed upon and its enforcement was efficiently and effectively carried on and was appreciated by all concerned supplemented/supported/enlightened/by case laws/interpretations/verdicts by High Court/Supreme Court by making the offence as a “deemed” one out of the realm of “mens rea”, “without involving moral turpitude”, “technical offence” and “strict liability offence in commercial practice” in the category of “innocent crime”

"legal injury”. The administration of its justice has been going on well till 4.9.2008 when the trend of 138 cases on certain cardinal issues has gone to the opposite direction with the advent of “rules of guidelines” from the Hon’ble Kerala High Court on the decision of Jain Babu’s case 2008 (4) KLT 16 (Basant, J.) with new interpretation taking away the discretionary provision contained in Cr.P.C. Section 205/313 in the matter of allowing exemption for personal attendance of the accused even for bail/questioning with the result that exemption became compulsory without discretion. The period from 4.9.08 to 12.1.2011 when the High Court guidelines were in force the statutory provision of 205/313 were eclipsed  in Kerala for N.I. Act 138 cases allowing bail to the accused dispensing with his personal appearance. The Apex Court in its outstanding verdict in T.G.N. Kumar v. State of Kerala (2011 (1) KLT 362 (SC)) struck down the above HC ruling containing general guidelines declaring it “inconsistent with the languages of sections 205/313 of the Code: 

2. The status quo before the “guidelines” has been restored empowering the Magistrates to exercise their discretionary power envisaged under section 205/313 Cr.P.C. and there was a sigh of relief every where as the presence of accused will be ensured by the court as was the situation before the guidelines came into force. The message contained in para 17 of the Supreme Court Rulings are highly noteworthy in the fallowing comments “the Courts should avoid the temptation to become authoritarian. We have been coming across several instances wherein their anxiety to do justice, the courts have gone overboard which results in injustice, rather than justice..............”. The lost charismatic image of the enactment N.I. Act has been regained by means of the above SC verdict though there is a real feeling in certain quarters that the shadow of the nullified High Court Guidelines still persists occasionally while considering the 205 petitions for dispensing with the personal attendance of the accused in 138 cases. But now in fact the Magistrate courts have no compulsion and by virtue of statutory discretion allowed by the Code they can very well ensure a fair/judicious disposal of the petition for exemption as per the procedure followed earlier to the guidelines. The effort of this writer is to highlight the necessity of upholding the sanctity of statutory provisions in its letter and spirit while administering justice in 138 cases since law being “the body of principles recognized and applied by the State in the administration of justice” (SALMOND). In the present trend of administration of justice in respect of Section 138 N.I. Act it may be looked into whether an accused gets exemption under 205/313 sparingly/ on unavoidable grounds or automatically/mechanically as a matter of course.

3. At this juncture it will be of much use to go through some interesting aspects regarding “discretion”/ “exemption” in the administration of justice. Looking to the section 205(1) Cr.P.C. “Magistrate “may” dispense with personal attendance of the accused” as also 313(a) and (b) proviso the word “may” appears not “shall”. Hence in the above two clauses the word ‘’may” has got importance/relevance which confers discretion to the Magistrates. The dictionary meaning of the word “may” is seen as expresses possibility, probability, opportunity, chance, wish etc.. and it is clear that statute prescribes it only as obligatory, optional, discretionary. There is no logical defects such as ambiguity, inconsistency or omission since the letter of the enactment used in Cr.P.C. is “may” and its interpretation is to be literlegis”. By a perusal of the Legal Dictionary the word “discretion” means “the faculty of deciding in accordance with the circumstances and what seems just, right and reasonable in the particular case” and the word “Exemption” means freedom from liability, immunity etc, A glance to a book “Kerala High Court on words and phrase”. “Discretion” in its ordinary meaning signifies “unrestricted exercise” of choice or will, freedom to act according to one’s own judgment, unrestrained exercise of will, the liberty or power of acting without control other than one’s own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to dictates of their own judgment and conscience uncontrolled by the judgment or conscience of others (2008 (2) KLT 327 (SC)/DCR 2009(1) 290). In Webster’s Dictionary the meaning of “exempt” is given as “to force or permit it to be free from any burden, promise or duty to which other are subject; to grant immunity to. Similar is the meaning attached to the word “exempt” in Oxford  Dictionary as free from any obligation  (1996 (1) KLT 199). The meaning of word “discretion” as per Dictionary of Law” Pitsman Publishing “a right to act in certain circumstances and within given limits and principles on the basis of one’s judgment and conscience” - “discretion” -- judicial “the power, residing in the court, of deciding a question where latitude of judgment is allowed. A discretionary remedy is, therefore one which may or may not be granted”. In the words of his Lordship -Arijith Pasayath, J. (2013 (1) KLT Journal Page 24 - From Quotable Quotes) the word “discretion” standing single unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste, evidently therefore a discretion cannot be arbitrary but a result of judicial thinking”. Discussions by the Apex Court on “discretion”  is  available  in  Keya  Mukherjee  v.  Magma  Leasing  Limited  (2008 (2) KLT 327 (SC)/DCR 2009(1) 290) wherein it is stated that the “pragmatic and humanistic approach in regard to special exigencies in the matter of exemption requiring the accused to satisfy the court that he is unable to reach the venue of the court except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some other hardship etc. etc.”. In Sabi Biswas v. State of Bangal (DCR 2009 (1) 349) Calcutta High Court ruled to the effect that exceptional and exigent circumstances on identifiable facts and circumstances are necessary for dispensing with personal attendance. “Eventhough an accused has been permitted to be represented by pleader under 205 of Cr.P.C. he has no right to ask Magistrate to exempt exempt him from personal appearance on examination under section 313 and examination of accused under 313 through pleader is not the spirit of law”. Of course in summons cases the court has ample powers to dispense with personal attendance of the accused and it may also dispense with his examination under clause (b) of Section 313(1) Cr.P.C. Notes on discretion/exemption are also available in 2001 (3) KLT 307 (SC) (K.T. Thomas J.) where there are “particular situations” existed and “it is within the powers of Magistrate in his judicial discretion to dispense with the personal appearance of the accused”.

4. The position is well settled that the personal attendance is the soul and spirit of the provisions of the Cr.P.C. 205/313 and to achieve this, exemption is sparingly allowed rattier than mechanically/by routine without “harassment” to the accused and “Prejudice” to the complainant by avoiding delay for trial as dictated by the Supreme Court; The accused by getting money from complainant and giving cheque without repayment even on personal request by the complainants/after receipt of notice and entrusting the case to the counsel on getting summons/warrant from the court avoiding appearance before court even for bail/questioning has become the order of the day especially after the general guidelines prevailed. This attitude of the accused still continues occasionally and it requires change by means of less exemption and more attendance to be enforced fairly and judiciously. This will enable the meeting point between accused and complainant paving way for early settlement of dispute for which complaint under 138 is filed. It is pertinent to keep constitutional mandate under Article 141 of the constitution that “the law declared by Supreme Court shall be binding on all courts within the territory of India”. The petition for exemption from personal appearance of accused under 205 petition is to be based on the dictum “permanent exemption cannot usurp the requirements of obtaining bail”.

5. The accused may not be tempted to take undue advantage of provision of law of exemption if the discretion is effectively/strictly exercised in accordance with the parameters prescribed by the code/rulings of the Apex Court. The fundamental spirit of section 205/313 making the presence of accused obligatory for answering questions from courts are to be ensured by insisting his personal attendance. Delegation of this process to the counsel of the accused may sometimes, end in prejudice to the complainant in as much as chances of settling the matter will be remote as the accused never meets the complainant after creating the legally enforceable debts between them. Bulk of the cases coming before the courts will be settled by following an attitude for less exemption and more attendance resulting in less delay for trial/speedy settlement. Though there is at present the system of “Adalath” as a meeting place, the trickster accused never care for attending adalath as he is otherwise free from attendance under 205/313. In the entire annals of 138 cases since its very inception from 1989 it is a fact that the settled cases outnumber the contested cases because of the attitude/ approach by the Court and the Bar with the result that the intention of the legislature is achieved both for the benefit of the debtor/ drawer and creditor/holder of cheque. A situation to ensure the presence of the accused to give chances for the settlement of disputes will benefit equally to the complainant and accused. This will be a desirable situation to be achieved by enforcing strict, fair and judicious exercise of discretion with the result that there will be less number of petitions for exemption and more number of personal attendance of accused for bail before the court. The effort may be to find grounds for ensuring the personal attendance of the accused rather than finding reasons for dispensing with the attendance of the accused while considering the 205 petitions. If there is situation that it is not easy for the accused to avoid personal attendance for bail there will be an attitude from his side to make a balance between the consequences of his facing the rigour of prosecution and availing the benefit of settling the case by negotiation even before bail/after bail. An accused with a genuine desire for settling cases will be getting an opportunity for the same. 

6. It is a fact that personal attendance before court is a reality and exemption for its absence is a contingency. Reality exists always but its absence exists on the happening of certain contingent event which is not always real. Personal attendance is the general rule and dispensing with personal attendance is the exemption to the general rule. Exemption is allowed on discretion which may be exercised judiciously, fairly, strictly. However in the present trend of the situation it is to be ascertained whether dispensing with the attendance has become the general rule and attendance of the accused has become an exception. The spirit of the rule of exemption and discretion may be safeguarded in the matter of 138 cases in order to uphold the purpose of the enactment. Accordingly insisting personal attendance in the court is a desirable situation so that dispensing with personal attendance under 205 petitions are minimized. If this attitude is prevailed the practice of the accused resorting to section 205 petitions will be discouraged with the result that there will be more personal attendance for taking bail than at present. An attitudinal change is the need of the hour from all concerned. In this Electronic Age I may pray that there will not be “E-BAIL” system (if such system comes) and “ONLINE” petition under 205 Cr.P.C. to dispense with personal attendance of accused; such a fear is the result of the situation prevailed under “general guidelines” in the matter of bail dispensing with the personal attendance in 138 cases. From the analysis of the prevailing situations supported by general opinion from the legal parlour there is an inference that in order to protect the Honour and Respect of the existing judicial system an approach with strict, fair, and judicious exercise of discretionary powers is a condition precedent to avoid/minimize petition under 205 with unnecessary/lame excuses for non appearance of accused.

7. Having reinstated the discretionary powers of the Magistrates after nullifying the “guidelines” in Jain Babu’s case I am tempted to quote the words of Senior Advocate ever respectful T.P. Kelu Nambiar “the High Court is neither final nor infallible” and from worshipful Justice V.R. Krishna Iyer “The Supreme Court is final not because it is infallible, but it is infallible, because it is final (Both from the book “Nambiar Third Miscellany”. A quotation from an Apex Court dictum is relevant :- “It is said that all power is trust and with greater power comes greater responsibility”. ((2009) 10 SCC 664). I am concluding this analysis with a humble submission to the law administering authorities that with greater discretionary powers the parameters enumerated for its fair and judicious exercise strictly in dispensing with personal attendance of the accused is most desirable in order to save an enactment especially made to punish the delinquent/ trickster/debtor/ Drawers of cheque and to protect the innocent/gentle/ creditor/Holders of cheques in the commercial world.