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.

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.

Some Case Laws Worthy of Remembrance

(By N. Subramaniam, Advocate, High Court of Kerala)

Estoppel:

Principle of Estoppel as enshrined in S. 115 Evidence Act is not applicable to Criminal Law. 1918 Mad 168 at 172 (Emperor v. Mohan Raw).

Adverse  Possession:

Submerged Land — No adverse possession is maintainable. 1902 (29) I.A.A 104 = 

ILR 29 Cal. 518 (PC) at page 535 (Secretary of State for India v. Krishnamani Gupta).

Adverse  Possession  can  be  had  against  trees:

AIR 1939 Bom. 405 (Putlaji v. Damodar) ; 2004 (2) CCC 418 (Case Law Discussed) (Kulwan T Singh v. Phulasingh) (para 14) Nasban Rights in fruit trees standing on the earth are immovable property and said can be perfected by adverse possession. (Shanta Bhai v. State of Bengal  (AIR1958 SC 32).

Adverse  Possession  against  oneself  is  possible:

ILR 29 Cal. 518 (P.C.) (page 534) = 1902 (29) I.A. 104 at 114. True owner in possession, a lessee of trespasser: Possession of such owner would be that of trespasser and after 12 years of trespasser’s title would become complete as against the true owner (Secretary of State v. Krishna Mani Gupta). Attachment will not affect continuity of adverse possession. AIR 1926 Mad 42. Renganathan Iyer v. Sreenivas Aiyangar. At page 43 column 1.

No  adverse  possession  against  a  deadman:

1986 KLT SN 7 (C.No.12) = 1986 (1) CCC 839 (KERALA HIGH COURT) (C. Subramanian Pillai v. S. Kumara Pillai para7) Sri. Varghese Kalliath J.;  AIR 1947 P.C. 19. (Bibabhatti v. Ramendra Varayan).

Adverse  possession  against  part  is  maintainable:

AIR 1924 Patna 402 at 416 (Sashibhushan v. Ramjas); AIR 1944 Nag. 20 (Nagorao v. Jageshar); AIR 1931 P.C. 180. (Naageswwara Box v. Bengal Coal Co.); AIR 1942 All. 1 (Orendra Chandra v. Bulaqiram); AIR 1925 Sind 201 at 202 (Ramszan v. Fakir Mohammed); AIR 1936 Lah. 208 (Shermohammed v. Shier Muhammed); AIR 1929 Lah. 125 (Amritsarya v. Diwan Chand); AIR 1926 Pat. 385 at 391 (Kesabji v. Sashibhushan)

Monetary  greed  overtakes  brotherly  affection:

Brotherly affection was overpowered by monetary greed.; AIR 1914 P.C. 243 (Charles Edwar Victor Seneviratne Corea v. Mohantantrigey. Iseri  Apphamy) is a case from Ceylon) quoted by Learned Judge K. Sukumaran in KUC 522 (Miathan v. Ambunhi).

Partnership:

Bribe, if given with consent of partners for achieving an object of firm and it is entered in books of accounts of the firm, even if it is illegal, it need not be excluded as an expense of the firm. Mulla on Partnership 9th Edition page 152.; 1932 All 128. (Jyoti Prasad v. H. Ardwarimal) (137.1.C. 334).

Review  in  Administrative Law:

Review in Administrative Law need not be conferred by any statute; AIR 1980 SC 1461 (R.R. Varma v. Union of India); 1988 (1) KLT 116  (Ramachandran v. State of Kerala. Para 10).

Difference  between  a  Successor  in  title  and  Successor  in  interest:

A successor-in-title succeeds on succession either testamentary or intestate. Successor-in-interest includes any right, title or estate.; 2010 AIHC 3497 (Para 28 to  30) (Vasant Miahadev Tikekar v. State of Maharashtra) 1941 FCR 72 (Re-Hindu Women’s Right to Property Act 1937).

Plea  of  Justurtiea  is  not  available  to  defendant  in  a  suit  for  injunction:

1986  KLT  390.

Easements  Act:

The owner who owns soil has ownership to sky; Surface goes with the land. Use our property so as not to damage others; 2011 (6) MLJ 544 (11 & 12) (Lakshmanan v. Ayya Swamy).; Foreign case law not binding as per Indian Constitution but has persuading effect only.;

2011 (3) KLT SN 26 (C.No.30) SC = (2011) 4 SCC 454 (Headnote V) (para 99) (Aruna Ramachandra Shanbaug v. Union of India)

Ignorance  of  law  is  not  an  excuse:-  Exception:

It is often said that everybody is presumed to know the law. But that is not a correct statement. There is no presumption in the country that everyone knows the law. It would be contrary to common sense and reason, if it were so.; AIR 1979 SC 621 at 629 para 6  (M.P. Sugar Mills. v. State of U.P.); 1846 (3) CB 706 (Common Bench rep. No. 1845-1856). (Martindale v. Falkner); AIR 1979 SC 621 is followed in AIR 1986 SC 806. (Union of India v. Godfrey Philips India & Anr. ); ILR 13 Cal 266 (Huro v. Suryamayi) is an authority for the position that where the period was exceeded by a bona fide mistake as to which court an appeal would be sufficient cause under S. 5 of Limitation Act.

Ignorance  about  gazette  publication:

Principle that everybody knows the law cannot be extended to all events especially in relation to Gazette Notification as the same has no support of any legal provision. S. 81 of Evidence Act only says that Court can presume genuineness of anything in Gazette Publication. S. 81 do not say that every citizen knows the contents of gazette publication.; ILR 1989 Kar. 920 (SB) (para 8) (Union of India v. Sterling Varnishes); ILR 1993 Karnt.1548 para .12 to 14 and 21 (Indonesian Foods (I) v. Appraiser of Certain) 

Equity  in  Taxation  Laws:

General principle is that there is no equity in taxation laws. But when it comes to appreciation of hardship of an assessee the Supreme Court was readily prepared to depart from this rule; AIR 1972 SC 126 (10) = 82 ITR 570 (10) (R.B.J. Kuthira v. I.T. Commissioner Punjab); AIR 1987 SC 522 (17) (Navab Sir Mr. Osman Ali Khan v. W.P. Commissioner)

FASLI  year  begins  from  1st  July  and  ends  on  30th  June  next  year:

AIR 1951 T.C. 177 (4) (DB) (at 178 col.2) (Heera Pillay v. Jegan Narayana);

Trial Court is also a Court of record.

AIR 1991 Mad. 323 (Vdyacharan Sukla v. T.N.Olympic Association para 56-47 page 363).

A  son  is  a  son  until  he  gets  a  wife:

A daughter is always a daughter throughout her life.; AIR 1996 SCC (L to S) 52 (Savitha Samvedi v. Union of India) quoted in ILR 2010; Kar. 1486 in para (Pushpalatha v. V. Padma)

Lease:

In India lease can be had without agreeing to pay rent.; AIR 1947 Cal. 440.(Rajendranath Manna v. Jagjiban Hansda) (This is termed as lease without consideration) (page 4,5);

Date  not  mentioned  in  a  document. 

Date is not a material part of document. It can be supplied by oral evidence; AIR 1933 Lah. 194 (Punjab National Bank Ltd. v. Mathradas); AIR 1923 Lah. 495= (1928) 98.1.C. 940 (Sheokairan v. Chirayilal); AIR 1919 P.C. 44= 53. IC 901 (Varada Pillai Jeevaratnammal). 

If  date  is  mistakenly  given,  oral  evidence  is  admissible  to  correct  the  date

19 I.C. 124.

Identity of parties, identity of properties and boundaries are terms of a document.

This is in contra distinction with payment or otherwise of consideration, handing over of possession. Descriptions which are not terms of a contract; 2013 (1) KLJ 256 = 2013 (1) KLT 293 Suresh v. Tobin.; AIR 1935 All 529; AIR 1925 PC. 25 AT 77 ; 1984 KLJ 415.

Oral Evidence challenge the nature of transaction evidenced document is not barred and oral evidence is not barred to contradict the recitals in a document.; AIR 1983 SC 20; (2009) 5 SCC 713 para 31(Vimalchand Ghevarchand v. Ramakan); (2006) 1 SCC 697 para 24 (R. Janaki Eknatha Jadoo) (2003) 6 SCC 595 (Roop Kumar v. Mohan Thedani); (2006) 6 SCC 293 (Mulasahakari Shakarana ) (para 23 to 32); AIR 1984 Orisa 62 (Mahendra Malik v. Brudaban D) (78);

Oral evidence is permissible to show that deed was created for evidence and was not intended to be acted upon AIR 1963 M.P. 210. (21) Bhuralal v. Bhiriya ; 2002 (1) KLT 864 = ILR 2002 (2) Ker.40 DB (Bhaskaran Nair v. Habeeb Mohammed) ;

Poverty is a good ground for condonation of delay.1978 Bom. 365. Para 10. Jaswanth v. Vithal.

The above information may be useful to those lawyers, especially youngsters, who are not aware of the positions and it may be help to some at some time. 

Whether Section 437A of Criminal P.C. Requires

 A Wider Interpretation

(By George Sebastian, Advocate, Ernakulam)

The Hon’ble High Court of Kerala in Sareena v. State of Kerala reported in 2013 (1) KLT 202 had occasion to consider the scope and object of Section 437A of the Code of Criminal Procedure which came into effect on 31.12.2009 by virtue of Criminal Procedure Code (Amendment Act) 2008 (Act 5 of 2009). In the said judgment, the Hon’ble High Court held that the object of the said provision is to secure the presence of the accused before the Higher Courts in cases where appeals are filed challenging the verdict of acquittal. In other words, the Hon’ble High Court held that bond under Section 437A of Cr.P.C need not be executed in cases which result in conviction.

Section 437A of Cr.P.C reads as follows:-- 437A.  Bail to require accused to appear before next Appellate Court- (1) Before conclusion of the trial and before disposal of the appeal, the court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the Higher Court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bonds shall be in force for six months.

(2) If such accused fail to appear, the bond stand forfeited and the procedure under Section 446 shall apply.

The intention of the statute is to secure the presence of the accused before the Higher Courts in case a notice is issued by the Higher Court in respect of any appeal or petition filed against the judgment of the court which requires the execution of the bond. The statute does not distinguish between cases which result in acquittal and the cases which result in conviction. Then the question to be considered is whether an appeal or any petition can be filed against the accused even in cases which result in conviction.  There are various provisions in the Code of Criminal Procedure which enable the State and the victim to challenge the judgment in appeal or revision even when the accused is convicted. As per the proviso to Section 372 of the Code of Criminal Procedure, a victim can challenge the judgment of a criminal court not only when the accused is acquitted.   As per the said proviso, the victim has a right to challenge the judgment when the accused is convicted for a lesser offence or if inadequate compensation is ordered. Likewise a victim or a de facto complainant can challenge the judgment of a criminal court in revision if the sentence is inadequate or if the judgment does not provide for payment of compensation. Under Section 377 of the Code of Criminal Procedure, the State can file an appeal if the sentence is inadequate. We often come across judgments of the criminal courts which award flee bite sentence to the accused and the accused prefer to undergo the sentence without challenging the same on account of the fact that the sentence is too low. At the same time the victim and the State may be aggrieved by the judgment and they may challenge the same. The presence of the accused has to be secured in those appeals and petitions by the victim and the State. There are instances where the Appellate Court disposing of an appeal by the accused against conviction and sentence reducing the sentence or altering the conviction to a lesser offence. The victim and the State may challenge those judgments to the extent they are aggrieved. At the same time, the accused may not challenge the same. In those situations also, the presence of the accused has to be secured before the Higher court. If the intention behind Section 437A of Cr.P.C is to secure the presence of the accused before the Higher Courts, limiting the scope of Section 437A by holding that the same is to be invoked only in cases where the accused is acquitted, the intention of the legislature will be defeated. Therefore Sareena’s case (2013 (1) KLT 202) which restricts the scope of Section 437A of Cr.P.C requires reconsideration.

International Women’s Day 

(By Chief Justice Mrs. K.K. Usha (Retd.))

8th of March every year is being observed as ‘International Women’s Day’. Year after year we conduct seminars, discussions and take fresh oath for betterment of the status of women all over the world. Women’s rights are human rights declared the Peking Conference of United Nations. But, what we find all over the world is that while there is improvement in the status of women in certain areas like education, employment and earning capacity, violence meted out against women is on the increase in an alarming scale.

‘Social, Cultural and Legal Reforms for Protecting Women’ is the topic of the seminar tomorrow.

I am of the view that legal reforms by themselves will not be of much help. That has been our experience with the existing laws enacted for the protection of women. Take the case of Dowry Prohibition Act, which came into force in July, 1961. Day in and day out its provisions are being violated and ridiculed by majority in the society to the detriment of women. The only effect of the above enactment was making special provisions for ‘dowry death’, in the Indian Penal Code, Criminal Procedure Code and the Evidence Act. While the Dowry Prohibition Officer sits at his office without any work as no complaint is being filed before him, the Revenue Divisional Officer is busy in deputing authorized officers to conduct inquests of dead bodies of women, who are victims of dowry death. There is no change in the mind set of the society even now in the matter of dowry. Young men, who declare independence from the ties of their parents, are too willing to succumb to the desire of their parents to collect dowry as much as possible from the girls’ parents at the time of their marriage. Most of the cases of violence against married women within the family arise out of the dispute regarding the quantum of dowry they brought. Perpetrators of this type of violence include both men and women in the family.

Increasing instances of violence against women and children are necessarily to be stopped. A change in the mind set of the society is what is required.

How do we go about changing the society’s mind set? It is necessary that women should be prepared to react against any type of insult or violence against them, whether in public place or within the family. We know many cases even educated women, who come to the hospital with injuries after being thrashed by their husbands or sons cook up a story of fall or hit on the wall or furniture. When violence is committed outside home also she is hesitant to complain fearing social stigma and sometimes even turning of the table against her. Unless she reacts to the injustice there will be no end to her misery.

There are many examples where protest by ordinary people against social inequities, had later led to great changes in social set up and legal rights. I can quote the case of Mrs.Rosa Parks, an ordinary African American seamstress in Alabama, whose protest against laws of segregation while travelling in the bus triggered a whole movement for civil rights.

In 1955, Mrs.Rosa Parks was returning home after work in a bus, the driver asked her to move to the back of the bus and make way for whites, as the laws of segregation required. When she refused to move, she was told by the authorities about the consequences, including prosecution. Still she was not willing to vacate her seat for the white passenger and move to the back of the bus. She was then arrested and convicted and fined $10, plus $4 as court costs. But, this episode set off a boycott of the Montgomery bus company that lasted 381 days and led to a Supreme Court decision that forced the bus company to desegregate, casting a mighty blow against Jim Crow laws that provided separate facilities for blacks and whites. Over the next five decades, Mrs.Parks became an enduring symbol of the struggle for equality. As mentioned earlier, her action triggered a whole movement for civil rights. When she died at the age of 92, her coffin was brought to Capitol and was carried by a military guard to lie in the Rotunda. This was pursuant to a concurrent resolution passed in the House of Representatives on October 27, 2005. It reads as follows:

“Resolved by the Senate (the House of Representatives concerning, That, in recognition of the historic contributions of Rosa Parks, her remains be permitted to lie in honor in the Rotunda of the Capitol from October 30 to October 31, 2005, so that the citizens of the United States may pay their last respects to this great American. The Architect of the Capitol, under the direction and supervision of the President pro tempore of the Senate and the Speaker of the House of Representatives, shall take all necessary steps for the accomplishment of that purpose.”

She became the first woman ever accorded such a tribute and just the 31st person over all since 1852, a list that includes Abraham Lincoln and nine other Presidents. At a ceremony attended by dozens of dignitaries’, President Bush and his wife laid wreaths on her coffin. Thousands of people came to pay respect.

Her coffin came to Washington after a memorial service earlier in the day at St.Paul A.M.E.Church in Montgomery, where Mrs.Parks was once a member. Hundreds attended, including Secretary of State Condoleezza Rice, the first black woman to hold that office. She said: “I can honestly say that but for Mrs. Parks, I probably would not be standing here today as Secretary of State”.

The statue of Mrs.Rosa Parks was unveiled at U.S.Capitol on 27th February 2013. President Obama attended the ceremony. The statues in the Capitol are donated by the individual States. But the tribute to Mrs. Parks was unanimously authorized by the Congress. It is treated as a national statue and the ceremony will be a national moment, an occasion to recount a watershed event in the history of United States and reaffirm their capacity to confront injustice and lift each other up.

Protest against violence to women should come from the male section of the society also. Their mothers, sisters, wives and daughters need protection. 

It is absolutely necessary to bring up our young boys by their family teaching them from young age to respect women and not to treat them as a chattel, which can be used, enjoyed and discarded according to the whims and fancies of men. It is also necessary to train the girls to make out the pit holes which the society has laid in their path against their interests and to inculcate in them a spirit to defend themselves against any insult or violence against them. Awareness programs are to be conducted regularly in schools and hostels. It is quite common that abuse of girls at home is brought out during interaction with their teachers in the school.

Another important aspect is sensitization of the authorities dealing with complaints from women who are victims of violence. Mainly the police. One of the main reasons for the women not to make complaint before the police is the treatment meted out to them in many cases. The language in which they are addressed and the manner of questioning often make them feel that they have committed a crime. This is the reason for the large gap in the number of cases reported in National survey like National Family Health Survey and the figures from the police National Crime Record  Bureau.  A decent treatment  and  a patient hearing are important.  So also there should be no delay in reaching help.

Sensitization of the judiciary is also a major factor to create a feeling of security for the vulnerable women and children in the society.

Coming to media, it plays a very important role. Many of the cases have come out into light only due to the effort of media, even though its memory is also short. Once they get a new victim they lose interest in the earlier one and further follow up is not taken.

Another drawback is politicization. The colour of the party flag of the perpetrator of violence or his status in the party is irrelevant. But unfortunately on many occasions attention from the real issue is deflected due to politicization. This should not be allowed to happen. One has to look at the issue from the point of view of the victim.

Few days back news papers reported that United States will be posthumously honouring Nirbhaya, victim of Delhi gang rape, to the prestigious International Women of Courage Award for inspiring people to fight against gender based violence. The State Department announced “For millions of Indian women, her personal ordeal, perseverance to fight for justice and her family’s continued bravery is helping to lift the stigma and vulnerability that drive violence against women”. The State Department said, “She bravely recorded two police statements while in the hospital, repeatedly called for justice against the attackers, and stated her will to survive to see justice done”. I have a mixed feeling of pride that an Indian girl is awarded the prestigious International Women of Courage Award and at the same time shame and despire in the incident, which lead to the Award and which will be recorded in history as a black blotch on the face of the much lauded culture of Indian society, where women were supposed to have been treated as Goddesses.

In January 1900 while Swami Vivekananda was lecturing about Hindu philosophy at California to an American audience one person asked him to tell them about Indian women, their customs and education and position they hold in the family. In his reply, at one place, he says the ideal woman in India is the mother, the mother first and the mother last and God is called mother.

Where are we now? From 80 year old grandmother to three months old baby girl are sexually abused by not only strangers but their own kith and kin also. We shall not tolerate this anymore. When I say we, I mean both men and women of the present day society. Let us work together.

Apart from imposing stringent punishment on the perpetrators of such crime, they should be ostracized from the society. Let Kerala, as in many other areas give leadership to create an atmosphere where women and children can lead a life with safety and dignity.