In the Interest of Surety's Liberty

(By B. Vinod, Advocate, High Court of Kerala)

“ The accused and the sureties shall not leave State of Kerala without the prior permission of the learned Magistrate”, is just another regular condition imposed/by the Honourable Mr.Justice N. K. Balakrishnan in every anticipatory bail application that is allowed.

The above condition imposed on a surety is worse than a condition to surrender his passport. 

Sureties are bound by bond to produce the accused. If the accused absconds outside Kerala, the surety is by bond required, not to travel outside Kerala. Therefore the duty cast on the surety to produce the accused has become impossible to perform. The surety cannot be fastened with the liability that he may otherwise be directed to satisfy under Section 446 of Code of Criminal Procedure.

That apart. Where the bail bond is for securing appearance of accused in a criminal case can surety’s liberty be curtailed in the manner aforementioned? Of course a surety acts voluntarily. Can criminal courts send a person to jail simply because he volunteers?

Proviso to clause 2 of Section 446 of Code of Criminal Procedure permits that if the penalty ordered, after forfeiture of the bond and after giving an opportunity to show cause why such a penalty cannot be imposed, cannot be recovered in the manner provided by the Code for recovery of fine then the surety can be imprisoned in civil jail. Penalties that a surety is a required to pay on forfeiture of bail bond is not a fine imposed under the Code. The penalty can be recovered in the manner provided under Section 421 of the Code of Criminal Procedure by attachment of sale of movable or immovable property or by authorising the District Collector to realise amount as arrears of Land Revenue. Only in cases were recovery methods fail, imprisonment in civil jail can be ordered. The detention is no doubt only executory in nature as opposed to penal detention i.e., when the penalty is recovered the person has to be released.

By Section 441(4) court can determine whether the sureties are fit or sufficient but it in no manner authorises the criminal court to restrict the basic human/fundamental right [Article 19(l)(d)]  of a citizen to travel across the country freely, at any rate, without bothering the local police and magistracy. Fundamental right can be reasonably restricted only by a competent legislation and not by conditions in a bond.

Bond of accused and sureties is mentioned in Section 441 of the Code of Criminal Procedure. Clause (1) stipulates that “ before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, shall continue so to attend until otherwise directed by the police officer or the court, as the case may be. Section 441 A would further mandate the surety to make a declaration as to the number of persons for whom he stood as surety for their release.

Fitness of a person who stand as surety cannot be assessed or determined by preventing his movement outside Kerala.

Section 445 Code of Criminal Procedure recognises deposit of such some of money in lieu of execution of bond at the description of the court or officer, except when the bond is for keeping good behaviour. These provisions of law necessarily implies that bond executed by surety is to pay such some of money as the court may direct subject to the maximum amount mentioned in the bond on the failure of an accused to appear to stand trial and receive sentence.

Conditions in an order releasing the accused on bail are directed against the accused. Section 437 (3) also permits the court to impose such other conditions as it considers necessary, in the interest of justice. No conditions curtailing the liberty of a surety can be considered to advance the interest of justice. The surety is not in conflict with law. He supports the administration of justice by promising to produce the accused to stand trial or receive sentence. The criminal justice administration shall crumble if all the accused demanded trial when summoned.

Thumb Impression: Left or Right, Doesn’t Matter

(By R.P. Remesan, Advocate, Kannur)

Illiterate persons are affixing their thumb impressions in lieu of their signatures. The society accepted it as convention and practice. The absence of specific enactments on the subject may embarrass one’s consciousness.

History of finger print begins from Marcello Malpighi (1628-1694]) an Italian anatomist and Microscopist who was regarded as the first Histologist described the patterns on the tips of fingers. Dr. Nehemiah Grew (1641-1712) discovered innumerable little ridges, of equal bigness and distance, and everywhere running parallel one with another, especially, upon the first joints of the fingers and thumb. A Czechoslovakian physiologist Jan Purkinje (1787-1869) who, in 1823 discovered nine important varieties of patterns such as; transverse curve, Central longitudinal stria, Oblique stripe, Oblique loop, Almond whorl, Spiral whorl, Ellipse, Circle and Double whorl on the palm. William Herschel (1833-1918) who was the Assistant Joint Magistrate and Collector in colonial India, recognized the value of fingerprints for identification purposes. The reasons why fingerprints are used for identification purposes are, the ridge patterns are unique and never repeated, the ridges are persistent throughout life except for permanent scarring; friction ridge patterns vary within limits which allow for classification. It is the part of history that an accused was convicted in Chicago in the year 1911 in a landmark case known as ‘science of fingerprints’ accepting the evidence of finger prints. Henry Faulds published his book ‘Dactylography’ in the year 1912. From the above facts it can be understood that the Friction Ridge Identification Process was not familiar to the enactment of General Clauses Act, 1897. A provision in the General Clauses Act attracts attention. It reads;

S.3.- “Sign” with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, “mark”, with its grammatical variation and cognate expressions."

The word signature means “One’s name as written by oneself.” (American Heritage® Dictionary of the English Language.) This may be the meaning followed by the General Clauses Act because the Act emphasis that the “mark” can be used only by the person who is unable to write his name. The dictionary meaning of “mark” is “a sign, such as a cross, made in lieu of a signature. (American Heritage® Dictionary of the English Language.)” It is important to note that the word “mark” doesn’t have a meaning “thumb impression”. So it is clear that the word “mark” in S.3 of General Clauses Act does not indicate thump impression.

While the facts remain so, Alas! the practice insist that the man should affix his left thumb impression and the woman should affix her right (thumb impression)!. Does it really have any legal or scientific support ? The answer is definite ‘No’.

The term fingerprint is used to describe a reproduction of the friction ridge arrangement present on the tips of the fingers. This arrangement of the friction ridge skin is permanent due to the underlying structure of the skin and unique because of complex physiological events, both genetic and environmental, that occur during fetal development. The corrugated skin, consisting of raised ridges and recessed furrows, assists individuals with grasping objects and gaining traction. Friction skin is composed of two main layers, an outer layer called the epidermis and an inner layer called the dermis. The epidermis has five different cell layers, whereas the dermis is one large layer consisting mainly of connective tissue and blood vessels. The epidermal ridges are supported by double rows of papillae pegs on the dermis, which can play an instrumental role in the recovery of fingerprints from deteriorating bodies. No one so far observed that left thumb of male and right thumb of female has more significance to show their identity.

Despite this, the authorities are choosing left thumb for male and right thumb for female. An example can be had in Circular No. NSDL/PI/2002/0709 and NSDL/PI/2002/0740 of National Securities Depository Ltd. It is pertinent to note that before the registering authority under the Registration Act, thumb impression of executants, whether literate or illiterate, are required to affix. Rules 30A, 54 and 57 of Kerala Registration Rules emphasis only left thumb impression and it does not discriminate thumb impressions according to sex. In the absence of any scientific significance between the left and right thumb of male and female respectively the discrimination created by custom and practice should be stopped and it is high time for legalizing the affixture of thumb in lieu of signature.

Hate the Crime, Not the Criminal

(By V.K. Babu Prakash, Chief Judicial Magistrate, Pathanamthitta)

In 2007 South Korea witnessed the criminal trial of an unusual crime committed by an out of work maths professor named Kim Myung Ho. He was sentenced to undergo five years imprisonment at last after trial by the court. After serving the sentence Kim is now out of jail. The charge levelled against Kim was that he attempted to commit murder of a Civil Judge named Park Hong Woo who delivered a judgment against Kim in a Civil Case. Kim became angry of the verdict, hence decided to scare the Judge. He bought a cross bow and went to the house of Judge Park at night. In the house of the Judge a fight ensued between Kim and Judge Park which ultimately caused an injury on the abdomen of the Judge from the projectile shot from the cross bow. At the trial the prosecution produced a blood stained shirt and undergarment claiming that those belonged to the judge to prove that Judge Park had been injured during the scuffle. The defence resisted it holding that the blood stains did not match with the blood of judge. Judge Park during the trial stated to court to show leniency to the Professor citing that he was only emotional. Judge Park went on to say that “ Hate the crime but not the man”. Nevertheless, the court found Kim guilty and reasonably punished him to undergo the sentence of five years imprisonment. Kim was interviewed by journalists from the prison. He was apparently unrepentant. He said “ Judges believe they are above the law. They are unchallenged, like gangsters, fearing none. I thought to scare the Judge”.

Thank God, such an episode is not staged in Kerala. Judges and Magistrates in Kerala earnestly pray that persons like Kim wouldn’t appear at their door steps with shot guns, dagger or sword.

He Who can Look Beyond

I see him everyday on my evening walks. He would be there near the junction waiting to cross the road. As he is blind, a boy would hold his hand and lead him to cross the road. He is around seventy five years old. One evening when I was passing through, I found him standing alone by the side of the road. Though there was a cane in his hand which he used to touch the road to feel about it, I found that he was not confident to crossing the road alone. There were so many men in and around the junction. Yet, nobody was minding or helping him. I went near and asked him what does he want ? He made a smile and told me that he wanted to cross the road to fetch a packet of milk from the shop over the other side. I said I will help him. He apologized and asked me if he is a bother. I took his hand which was bony. His fingers were long and soft. It were warm as well. I made him to cross the road and he bought a packet of milk expertly. He held my hand and I made him to recross the road. I asked him where does he stay? He pointed his finger to the near by, where I found a small house. I said I will accompany him to his house. He smiled and nodded his head. He knew the way and without any trouble he led me into the house. When we entered the courtyard a young lady came smiling and took the milk packet from him. There was a hut beside the house. He led me into the hut.  When I went in, I was really taken aback. The hut was full of paintings of all sorts. There were landscapes, images, flowers, modern and abstract sketches etc. There was a half finished new painting on an easel. All those paintings made me out that it was a master painter who made them. I asked him who painted them ? The man made a half smile and proceeded to the half finished painting. He cleverly took up the brush and paint dish and started to make strokes to finish it. I was mesmerized by his skill and craft. How fast he made every stroke which was marvelous and impressive. When he finished it I could not believe my eyes. I was spell bound by his talent. I asked him how does he do it without seeing the things and canvas. He smiled and answered in one sentence. “ Painting is the silence of thought and music of sight."  I found that genius does not need eyes to look at. Vision is seeing by the inner mind and remembering it when wanted. It was an amazing realization. When I walked out wishing him well being, a sort of serene silence was filling my mind.

A Critique of 2012 (2) KLT 769 – Krishna v. State 

(By Justice (Retd.) U.L.Bhat)

This is with reference to the judgment of a Division Bench of the High Court of Kerala, in Criminal appeal filed by Krishna alias Chandrakanth (for short, Krishna) as Crl. Appeal No. 1346 of 2007, and reported in 2012 (2) KLT 769. Appellant had been convicted for offences under Sections 302 and 394 of Indian Penal Code and duly sentenced by the sessions court. Arguments before the Bench were long drawn out. The Bench heard arguments of Sri. Blaze K. Jose and the public prosecutor. The Bench also heard Sri. M.K. Damodaran and other senior advocates. Besides, the Bench heard two advocates, Sri. Rajeev and Sri. Bechu Kurian Thomas, who were commended by the Bench for the sense of dedication and commitment shown by them in arguing the questions of law formulated by the Bench (see para 3 of the judgment).

2. Prosecution case rested entirely on evidence adduced in proof of ten circumstances (basic, primary or circumstantial facts), as seen referred to in para 66 of the judgment. The Division Bench held that nine out of the ten circumstances stood proved by the prosecution beyond reasonable doubt and these proved basic, primary or circumstantial facts were sufficient to establish the guilt of the appellant under Sections 302 and 394 I.P.C., beyond reasonable doubt.

3.  The Bench formulated seven questions of law in para.1 of the judgment. In effect and substance, the seven questions were different facets or repetitions of a single question of law, viz. whether basic, primary or circumstantial facts are required by law in force in India to be proved beyond doubt, there being no controversy on the principle that guilt of an accused for the offence alleged, that is, ingredients of the offence or actus rea or mens rea are required to be proved beyond reasonable doubt. The Bench utilized paras 2 to 55 to consider and hold ultimately that circumstances relied on are, in law, required to be proved beyond reasonable doubt by virtue of the reference to a “prudent man” in the second part of the definition of “proved” in Section 3 of the Indian Evidence Act, 1872. The Bench also sought the support of observations of Lord Denning in Bater v. Bater (obviously a matrimonial proceeding) to the effect that in criminal case the charge must be proved beyond reasonable doubt and within this standard there could be degrees of proof. So also Lord Denning indicated that in civil cases case may be proved by a preponderance of probability (not, be it noted, “balance of probability” as indicated by the Bench) and within the standard, there may be different degrees of probability (see para 27 of judgment). The other English decisions relied were also obviously matrimonial cases. The Bench also relied on a stray sentence in “India of Vedic Kalpasutras” by Ramgopal (see para. 21 of the judgment) to the effect that “the king should not punish any person in case of doubt”. This statement of Vedic Kalpasutras relates to the act of “punishing”, that is, conviction and sentence. Unfortunately the attention of the Bench was not invited by advocate Sri. Rajeev to Part V of Vol. I of “Legal and Constitutional History of India” by Justice M. Rama Jois, a recognized jurist and Sanskrit scholar. This book refers in detail to Smrithi texts which highlight the danger of drawing inferences mechanically from circumstantial evidence without corroborative evidence by presenting relevant facts. This book also indicates that sage Narada warned judges to be extremely careful in drawing inferences from circumstantial facts. The book does not refer to any principle to the effect that circumstances or circumstantial facts were required to be proved beyond reasonable doubt. What sage Narada stated is reflected in para.18 of M.G. Agarwal decided by a Constitutional Bench. Para 18 states, inter alia, that while circumstantial facts are required to be proved in the ordinary way without the doctrine of benefit of doubt being applicable in regard to proof of such facts, in the matter of drawing inference of guilt from the proved primary or basic (or circumstantial) facts, the doctrine of benefit of doubt will apply.

4.  The judgement in Krishna also reflects a labored attempt to get over M.G. Agarwal. Though in earlier part of para.18, the Constitutional Bench stated that “there is another point of law which must be considered before dealing with the evidence in the case” and stated towards the end of the para that “ it is in the light of this legal position that the evidence in the present case has to be appreciated”, the Division Bench in Krishna shockingly held that the question of the nature and extent of proof of basic or primary or circumstantial facts in criminal cases did not arise for consideration in M.G. Agarwal ! M.G. Agarwal clearly held that “in the application of evidence in respect of proof of basic or primary facts, there is no scope for the application of the doctrine of benefit of doubt”. If the question of law did arise for consideration in M.G. Agarwal, the decision is binding on all courts in India by the doctrine of precedent and Article 141 of the Constitution. The Division Bench itself noticed that M.G. Agarwal has not been doubted or disagreed with during the last five decades. Para 50 refers to five other judgments of smaller Benches of Supreme Court which followed M.G. Agarwal. Reliance on a judgment in para 51 to the effect that “circumstances” must be “fully” established has not been correctly understood by the Division Bench. The words “fully” proved does not connote proof beyond reasonable doubt. Even in civil cases, involving disputed title or money transactions, plaintiff’s case must be fully established. If title or transaction is not fully established, no civil court will grant a decree as prayed for in favour of the plantiff. The word “fully” is used in contradiction to “partly” or “partially” and not in the sense of proof beyond reasonable doubt. In any event, the decision relied, namely AIR 1952 SC 343 (3 judge Bench) has no binding precential effect in view of the later decision of Constitutional Bench.

Assuming that para 18 of M.G. Agarwal contains merely obiter dicta observations, I may state that even such dicta should command considerable respect and weight. (AIR 1959 SC 814 and AIR 1968 SC 623).

5.  Krishna indicates that the two learned Judges did not entertain the slightest doubt about the correctness of the decision in Jose (2010 (2) KLT 163 - Jose v. State of Kerala). Then why this time consuming exercise was indulged in is an aspect on which Krishna should have provided an explanation or reason. No such reason is seen stated in Krishna except what is attributed to learned counsel for the appellant (accused) that comments on Jose created doubts and confusion in the district judiciary. Jose was definitely in favour of appellant in as much as it sought to place on prosecution a higher burden of proving such facts beyond reasonable doubt. By attempting to have Jose reconsidered, learned counsel for appellant took the risk, of Krishna holding that circumstances are required to be proved only by preponderance of probability which would have made his task more onerous.

6.  The Bench in Krishna considered first in fifty paras, the question of law, held that all primary fact are required to be proved beyond reasonable doubt and thereafter considered and accepted as proved nine circumstances and found them sufficient to establish the guilt of the appellant and devoted para 56 to 93 of the judgment to come to such a conclusion. If the Division Bench had only written paras 56 to 93 in the early part of the judgement, since it found sufficient circumstances to hold appellant guilty, it would have been totally unnecessary to consider the question of law regarding the nature and extent of proof of circumstantial facts.

7. If the Division Bench merely desired to reinforce Jose, all that was necessary was a brief para referring to the conclusion in Jose and indicating that the Division Bench was bound by Jose, particularly as the Bench had no reason to disagree with Jose. If the Bench desired an authoritative pronounce to dispel all doubts and confusion the appeal or the question of law could have been referred to a larger Bench, particularly since the implication underlying submission of learned counsel for appellant could be that for some reason or the other, Jose had somehow lost its authority.

8. On an anxious application of mind and exchange of views with friends well versed in the branch of law of evidence, I reiterate the views expressed by me in my article published in Kerala Law Times on the judgment in Jose and the definition of “proved”^*. I have no hesitation to say the law purportedly laid down in Krishna is, with utmost respect, erroneous.

9.   I would also like to draw the attention of readers to some unfortunate expressions employed in Krishna. The Division Bench asserted with reference to those who had a contrary view that they better “unlearn” fundamentals (of law) which such persons had learnt erroneously! The Bench also characterized the submissions of a learned amicus curiae (on whom fulsome compliments were bestowed in para 3) as puerile (para 24). “Perile” means “silly” or “childish”. Those expressions come with ill grace from any Judge at any level and should have been avoided.

Whether Registration of A Deed of Power-of-Attorney is Necessary for

A Power-of-Attorney Who  Executes and  Presents

A Document for Registration?

(By V. Ramkumar, Former Judge, High Court of Kerala)

There is a popular misconception among many of the document writers, registering authorities, law officers of banks and many others that in every case where a document is executed and presented for registration by a power-of-attorney on the strength of a deed of power-of-attorney, such power-of-attorney cannot be permitted to present the document for registration unless the deed of power-of-attorney in his favour has been duly registered. This is on account of the mistaken impression regarding the true import of Sections 32 and 33 of the Registration Act, 1908 and the Registration Rules (Kerala). I am also given to understand that either out of genuine or pretended ignorance or with a view to extract more money and thereby exploit the service seekers, document writers and/or Sub Registrars, and at times backed by ill-conceived legal opinion, are insisting on compulsory registration of such deeds of power-of-attorney. The purpose of this humble venture is, therefore, to elucidate all concerned about the true legal position, as best as I can.

2. Sections 32 and 33 of the Registration Act read as follows:-

“32. Persons to present documents for registration - Except in the cases mentioned in (Sections 31,88 and 89), every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,-

a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

b) by the representative or assign of such a person, or

c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

33. Power-of-attorney recognizable for purposes of Section 32- (1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely:-

a) if the principal at the time of executing the power-of-attorney resides in any part of (India) in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

b) if the principal at the time aforesaid (resides in any part of India in which this Act is not in force), a power-of-attorney executed before and authenticated by any Magistrate;

c) if the principal at the time aforesaid does not reside in (India), a power of attorney executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, (Indian) Consul or Vice Consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this Section, namely :-

i.  persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

ii. persons who are in jail under civil or criminal process; and

iii.  persons exempt by law from personal appearance in Court. 

(Explanation - In this Sub-section “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897 (10 of 1897)

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power of attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. 

(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf. 

3. Section 32 thus enumerates the category of persons who are entitled to present a document for registration. The said section enjoins that except --

i) in the case of a house registration under S.31, or

ii) in the case of a document executed by Government Officers or certain public functionaries under Section 88, or

iii) in the case of certain orders, certificates or instruments sent to the registering officer and filed under Section 89.

every document to be registered under the Act, whether such registration is compulsory or optional, shall be presented at the proper registration office -

a) by the executant or a person claiming under the document,or

b) by the representative or assign of such person, or

c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated (registered) in the manner mentioned under Section 33.

4. Thus, the document can be presented for registration by the executant or his representative or assign or by the agent of the executant, representative or assign duly authorised by a power-of-attorney. But, if the document is presented for registration by an agent authorised by a deed of power-of-attorney, and falling under clause (c) of S.32, then such deed should be executed and authenticated (registered) in the manner mentioned under S.33. S.33(1)(a) inter alia says that a power-of-attorney for the purpose of S.32 will be recognized only if it is registered before the Registrar or Sub Registrar within whose district or sub district the principal resides. S.33 has application only to cases falling under S.32(c) and not to cases falling under S.32(a).

5. Confusion arises only when a power-of-attorney of the true owner of the property without executing the document merely presents the document for registration before the registering authority. S.32 only deals with the category of persons who are competent to present a document for registration. When a power-of-attorney merely presents for registration a document not executed by him but executed by his principal (the true owner), then the power-of-attorney does so only as an agent of the executant and he, therefore, falls under clause (c) of S.32 and if he is to be recognized as such power-of-attorney, the deed of power-of-attorney in his favour should be authenticated (registered) as provided under S.33(1)(a). But in a case where the true owner of the property not only authorises his power-of-attorney to present the document before the Sub Registrar for registration but also authorises him to execute the document, then such a power-of-attorney does not fall under S.32(c) but under S.32(a) and, therefore, the deed of power-of-attorney does not require authentication (registration) under S.33. This is because, by virtue of the authority given to the power-of-attorney to execute the document as well, he becomes the executant falling under S.32(a) and is, in that capacity, entitled to present the document for registration. The legal position that when a power-of-attorney executes a document as authorised by his principal, he becomes the executant himself is reinforced by Rule 65 of the Registration Rules (Kerala) which reads as follows:-

65(i). The expression “A person executing a document” shall be held to include:-

(a) Any person who becomes surety for the re-payment of a loan or the fulfilment of a contract and in that capacity affixes his signature to the document;

(b) Any person who endorses a negotiable instrument. 

(c) Any person who signs a receipt or a discharge endorsed on a document;

(d) Any person who signs a document as an executant in token of his assent to the transaction and not merely as a witness, even though he may not be described as an executant in the body of the document.

(ii) In the case of a document purporting to be executed by an attorney or by a guardian of a minor, or by a legal curator of an idiot or lunatic, such attorney or guardian or curator shall be held to be a person executing the document for the purposes of Sections 32,34,35 and 58 of the Act, but for the purposes of Section 55, the principal or minor or idiot or lunatic as well as the attorney of guardian or curator shall be considered to be executing parties.

6. The resultant position is that if the document is not executed by the power-of-attorney who merely presents the same for registration, then by virtue of S.32(c) the deed of power-of-attorney requires registration. But if, on the strength of the authority given, the document is executed by the power-of-attorney who also presents the same for registration, the deed of power-of-attorney does not require registration. This legal position is no more res integra in the light of Aishmma v. Abdul Rahiman (1993 (2) KLT 229); Rajni Tandon v. Dulal R. Ghosh Dastidar  (2009 (3) KLT 607(SC)) and the unreported judgment dated 15.6.2005 in W.P.(C) No.17097/2005 of the High Court of Kerala.

7. It has already been seen that a deed of power-of-attorney authorising the power-of-attorney holder to execute the document and also to present the same for registration, does not require registration. Such an unregistered a deed of power-of-attorney can be executed before a notary public. Where a deed of power-of-attorney containing the seal of the notary public is produced before a court of law, the court, by virtue of S.57(6) of the Evidence Act, has to take judicial notice of the seal of the notary public, and by virtue of S.85 of the Evidence Act, the court shall presume that the power-of-attorney was duly executed before the notary public. (Vide National Grindlays Bank v. World Science News  (AIR 1976 SC 263). If the person authorised by the deed of power-of-attorney to sell immovable property in Kerala, is the father, mother, wife or husband, son, daughter, brother or sister of the executant (principal) of the deed of power-of-attorney, then the stamp duty payable for the deed of power-of-attorney is a lesser amount (Rs. 300/- for each person authorised, with effect from 1.4.2010) as prescribed in Article 44(g) of the Schedule to the Kerala Stamp Act, 1959. In the case of others, the stamp duty payable by virtue of Article 44 (f) of the Schedule to the Kerala Stamp Act, is the same as is payable in the case of a conveyance for the fair value of land or for the amount of the consideration whichever is higher as provided under Articles 21 or 22 of the said Schedule.

8. Lot of harships have been caused by the incorporation of S.32A particularly the proviso thereto by the Registration and Other Related Laws (Amendment) Act, 2001. Section 32A reads as follows:-

“32 A: Compulsory affixing of photograph, etc.- Every person presenting any document at the proper registration office under Section 32 shall affix his passport size photograph and fingerprints to the document :

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document”.

The main part of the above section as such does not present any difficulty because, the owner of the property presenting the document for registration or the power-or-attorney (of the owner) presenting the document for registration cannot obviously object to the affixing of his photograph and fingerprints to the document. In fact, it is in perfect accord with the Statement of Objects and Reasons to Amending Act 48 of 2001 wherein affixing of the photographs and fingerprints of the executants alone is declared to be made compulsory. It is the proviso to the Section which creates all problems. Under the general law, a seller of immovable property alone need affix his signature to the deed of conveyance and the law does not insist on the buyer either affixing his signature to the sale deed or performing any role in the execution of the sale deed. Want of mutuality on the part of the parties to a sale deed in the matter of execution or affixing signature, cannot render the sale deed invalid as a contract. (Vide Aloka Bose v. Parmatma Devi & Ors.(2009) 2 SCC 582 and Para 16 of Vasu v. Parukutty Amma  (2012 (1) KLT 466). S.34 only envisages the appearance before the registering officer of the person executing the document or their representatives, assigns or agents and not the buyer. It is such a person who has to admit execution before the Sub Registrar as enjoined by S.35. The endorsements to be got effected by the Registering Officer under S.58(1) is also the admission of execution by such a person executing the document and in such a case his signature is also to be obtained. Even where the person admitting the execution refuses to make the above endorsement, the registering officer is obliged as per S.58(2) to register the document. The presence of the buyer before the Registering Officer may be necessary only if payment of money or delivery of goods is made in the presence of the registering officer, or if the buyer himself is presenting the document for registration as a person claiming under the document within the meaning of S.32(a).

9. In cases where the prospective seller is residing far away in the country or is abroad, it is through the instrumentality of the power-of-attorney that such seller effects sale of his property. In such contingencies, if in implementation of the proviso to S.32A the registering authorities were to insist on the affixture of the photographs and fingerprints of the buyer and seller in the document, it will virtually defeat the purpose of effecting sale through the instrumentality of a power-of-attorney. It is also not consistent with the intention expressed in the Statement of Objects and Reasons to the Amending Act. The situation is sought to be made worse by the proposed Kerala Amendment to the Registration Act in the Registration (Kerala Amendment) Bill, 2009 by inter alia making deeds of power-of-attorney other than those in favour of father, mother, wife, husband, son, daughter, brother or sister, compulsorily registrable. At least, deeds of Special Power of Attorney, should have been excluded from the purview of the proposed amendment. If the assent of the President is given to the proposed Bill which is ex facie repugnant to the Registration Act and the general law of the land, dishonest people will be tempted to circumvent the law through innovative subterfuges. While curbing of illicit land grab by terrorists and other like-minded persons through dubious methods and exploitation of the absentee landowners and poor and illiterate people by the land mafia is necessary, the measures adopted should not be such that genuine and honest sellers and buyers are put to untold hardship.