The Victim's Right of Appeal and its Statutory Anomalies

(By John S. Ralph, Advocate, Kochi)

When  does  an  appeal lie ?

In criminal matters appeal lies only as provided by the Cr.P.C . Chapter XXIX that starts with Section 372 says “No appeal lies unless otherwise provided.” Appeal is a statutory right. In the era of trials by jury, appeal was a luxury. The post constitutional changes made it a statutory right.

But revision is a discretion. Reading of Section 403 Cr.P.C makes it clear by declaring that as a matter of right none of the parties can say that he may be heard either personally or through a pleader.

Maintenance of public tranquility by preventing crimes and punishing the delinquents is the duty of the State being imparted through the criminal justice rendering system. Hence an appeal against acquittal is a prerogative of the State.

Is  the  State’s  privilege  taken  away ?

By the amendment in Cr.P.C dated 31.12.2009, a proviso has been added to Section 372 Cr.P.C wherein the victim is given a right of appeal to the court to which an appeal lies from a conviction. Before the amendment, all appeals against acquittals have to come to High Court under Section 378 Cr.P.C

The right to move an appeal against acquittal was reserved to the State since it is the sponsor of the prosecution in the trial court. It is presumed that the accused is innocent until the contrary is proved. An acquittal fortifies this presumption and that is why the right to appeal was reserved with the State and not to the victim. But at the same time it does not mean that the victim has no right at all, the remedy lies in revision.

The  difference  between  appeal  and  revision

Though the powers of revision are more or less concurrent with that of an appeal, the revisional court has no power to reverse an order of acquittal and to convict the accused. If it feels so, it can only remand the matter to the trial court for a further inquiry or retrial as mentioned in Section 386(a). The power to find him guilty and pass sentence, mentioned in the last limb of the same section, is taken away by the operation of Section 401(3) Cr.P.C. Needless to say, in such cases the accused will get a fresh chance to defend.

This limitation of the High Court in disturbing an acquittal while entertaining a revision is clearly stated in Section 401(3) Cr.P.C. while dealing with the powers of revision :

"Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.” 

In India, auterfois convict is a constitutional right under Art.20(2). But not auterfois acquit. But it is a statutory right coming under Section 300 Cr.P.C).

In the new amendment the victim can approach the appellate court in appeal. And the appellate court can reverse the finding and convict the accused.

Will  the  new  right  operate  retrospectively ?

The aforesaid right of the victim has created a new right to the victim with a corresponding liability to the accused. Hence it cannot operate retrospectively. An offence committed before 31.12.2009 has to be treated separately from one committed after that. In the former case on the date of offence the victim had no right of appeal and if he comes through the door of revision, the accused will get the chance of a further trial in which he can answer the incriminating things that prompted the revisional court to order a retrial. But at the same time had it been an appeal by the State Government against the acquittal the same court (High Court) could have convicted the accused.

Logically it may not sound correct. But in a rule of law, country like that of India, logic is replaced by rules of the statute and rules of specific exclusions. When the statute says that “there is no right of appeal to the victim and that the revisional court cannot reverse an order of an acquittal and convict” the logical correctness of the same is beyond discussion and is restricted by statutory guidelines. And this is also for the reason that in order to send a person to prison by curtailing his personal liberty, there should be a clear “procedure prescribed by law” as mentioned in Article 21 of the Constitution of India.

The  legitimate  expectation  of  a  delinquent  and  the  protection  under  Article 21

After the amendment, against the order of an acquittal passed by the trial court, the victim can prefer an appeal either to Sessions Court or to the High Court as the case may be depending upon the forum to which an appeal would have been preferred against conviction. So if the date of offence is before 31.12.2009, it cannot be said that the victim has a right of appeal if the order of acquittal is passed after that date since on the date of commission of the offence, there was no right of appeal for the victim.

One cannot assume that the accused had a threat of getting a conviction, on the strength of a subsequent amendment, on an appeal not preferred by the State and decided by the highest forum of the State that is the High Court. In such cases i.e., before 31.12.2009, on the date of offence he had a right of another trial before getting a conviction in case the revision was filed by the victim. This is a matter of right and liability. So it cannot go retrospectively with a prejudicial effect on the accused and his golden presumption of innocence. It will also violate the constitutional protection under Article 21 since there was no procedure established by law for enabling the victim to prefer an appeal against acquittal and bringing a conviction for the accused. 

Now the  courts  are  mechanically  entertaining  appeals  from  the  victims irrespective of the date of commission of offence. This is not correct since it adversely affects the right of the accused and hence cannot operate retrospectively.

The  Statutory  anomalies

A careful reading of newly added proviso to 372 will show that it is badly drafted. The words occurring therein “and such appeal shall lie to the court to which an appeal “ordinarily lies” against the order of conviction against such court” is confusing at times.

As per section 374 Cr.P.C a person convicted by an Assistant Sessions Judge for a period of more than seven years has to go in appeal to the High Court. But where the sentence is for a term less than seven years, the appeal goes to the Sessions Court. So, as far as a trial before an Assistant Sessions Judge is concerned, there is no court to which an appeal lies “ordinarily”. It depends upon the term of sentence passed on conviction. Hence when the matter ends in acquittal, the forum for appeal cannot be ascertained. The new enactment is silent on the forum to which an appeal lies against an order of acquittal passed by an Assistant Sessions Judge. One cannot assume that since it is also a Sessions Court, the appeal goes to the High Court. As per Section 10 Cr.P.C, an Assistant Sessions Court is a “Subordinate Court” to Sessions Court. (Though the word used therein is “judge” it is to be read as a synonym for “court”) And prudence compels an appeal to the Sessions Court since that is the lowest forum to be approached first. The statute must clarify the same.

Two  Appeals  from  the  same  judgment  of  acquittal !!

Even after the new amendment, the right of appeal by the State is not deleted from the statute and hence the possibility of two appeals, one by the victim and the other by the State also cannot be ruled out. It is not a matter of ignorance of the pendency of the other appeal. A point not raised by the State can be raised by the victim in the appeal preferred by him and vice versa. It is true that both these appeals can be heard by the High Court. But since the State Government’s right of appeal lies to the High Court alone, it can only go there in appeal. But at the same time the victim has to go to the Sessions Court since an appeal “ordinarily” lies to that court from a conviction as provided in the newly added proviso to Section 372. This anomaly cannot be cured.

To  which  court  lies  the  appeal  against  conviction ?

If the Sessions Court reverses the finding of an acquittal and passes an order of conviction the accused will get an opportunity of appeal to the High Court. But if it is the High Court that reverses the finding and passes a conviction, the accused will not have a right to appeal u/S.379 Cr.P.C except in cases where the sentence passed is more than 10 years. There are offences in the Penal Code which carries such punishments but is triable by the Magistrate Court. In such offences, the forum of appeal against an acquittal assumes importance to the accused. If it is before the Sessions Court, an appeal lies to the High Court. But if it is before the High Court and the sentence is less than 10 years, no appeal lies to the Supreme Court as a matter of right.

Barring these anomalies the right of the victim to file an appeal against conviction is a pacifier to the victim and they need not be at the mercy of the prosecutors who has to recommend an appeal against an acquittal.

Conclusion

A.  The new right of appeal by the victim should arise only with regard to the offences committed after 31.12.2009. In other cases, the victim’s right should lie in revision.

B.  The statute must clarify the forum of appeal in cases of acquittal passed by the Assistant Sessions Court since it has no court to which an appeal against conviction lies “ordinarily”.

C.  The statute must clarify the procedure to be followed in cases of simultaneous appeals preferred by the victim and the State Government.

111th Amendment To The Constitution of India -- A Step In The

Right Direction to Revamp the Co-operatives

(By R. Muralidharan, Deputy Registrar (Planning & Legal), 

Co-operative  Department, Puducherry)

The 28th December 2011 is certainly a red letter day in the annals of the co-operative movement as the Parliament passed the crucial Constitution (111th Amendment) Bill to insulate about six lakh co-operative societies from political and government interference and to strengthen the co-operative movement. The amendment will grant citizens a fundamental right to form co-operative societies and allow for voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.

The first step came in the form of the Constitution (106th Amendment) Bill, 2006 and it was referred to the Parliamentary Standing Committee on Agriculture for examination and report. The Standing Committee solicited the considered views of the State Government and Union Territories as co-operation is a State subject. After considering the views, the Constitution (111th Amendment) Bill, 2009 was introduced in the Lok Sabha by the Minister for Agriculture on 30th November 2009. The Bill was referred to the Department related Standing Committee on Agriculture (Chairperson: Shri Basudeb Acharia). The Bill was approved by the Lok Sabha and was passed by the Rajya Sabha on 28th December 2011. The 111th Amendment is certainly an improvement over the 106th Amendment Bill, as it has considered the views expressed by the States and Union Territories. The amendment is inserted as Part IX B of the Constitution (after Part IX A - The Municipalities) and to contain Articles 243 ZH to 243 ZT. Art 243 ZH contains definitions.

The object of the amendment, as set out in the objects and reasons, may be stated thus “The co-operative sector, over the years, has made significant contribution to various sectors of national economy and has achieved voluminous growth. However, it has shown weaknesses in safeguarding the interests of the members and fulfilment of objects for which these institutions were organised. There have been instances where elections have been postponed indefinitely and nominated office bearers or administrators remaining in-charge of these institutions for a long time. This reduces the accountability of the management of co-operative societies to their members. Inadequate professionalism in management in many of the co-operative institutions has led to poor services and low productivity. Co-operatives need to run on well established democratic principles and elections held on time and in a free and fair manner. Therefore, there is a need to initiate fundamental reforms to revitalize these institutions in order to ensure their contribution in the economic development of the country and to serve the interests of members and public at large and also to ensure their autonomy, democratic functioning and professional management.”

It states further “With a view to bring the necessary reforms, it is proposed to incorporate a new Part in the Constitution so as to provide for certain provisions covering the vital aspects of working of co-operative societies like democratic, autonomous and professional functioning. A new article is also proposed to be inserted in Part IV of the Constitution (Directive Principles of State Policy) for the States to endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The proposed new Part in the Constitution, inter alia, seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law, laying down the following matters, namely: -

(a) provisions for incorporation, regulation and winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning;

(b) specifying the maximum number of directors of a co-operative society to be not exceeding twenty-one members;

(c) providing for a fixed term of five years from the date of election in respect of the elected members of the board and its office bearers;

(d) providing for a maximum time limit of six months during which a board of directors of co-operative society could be kept under supersession or suspension;

(e) providing for independent professional audit;

(f) providing for right of information to the members of the co-operative societies;

(g) empowering the State Governments to obtain periodic reports of activities and accounts of co-operative societies;

(h) providing for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the board of every co-operative society, which have individuals as members from such categories;

(i) providing for offences relating to co-operative societies and penalties in respect of such offences.”

Embodiment  of  the  Amendment

A new Directive Principles of State Policy states that the “State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.”

The State legislature shall specify the number of members of the board of directors of a co-operative society. The number is limited to 21. The term of the board is for a period of five years. The term of the office bearers shall be coterminous with the term of the board. On every board of a co-operative society, one seat shall be reserved for a person who is a Scheduled Caste or Schedule Tribe and two seats shall be reserved for women. The board may fill a casual vacancy on the board by nomination from the same class of members if the term of office of the board is less than half of its original term.

The election of members to the board must be conducted before the expiry of the previous one. The superintendence, direction and control of the preparation of electoral roll and conduct of election shall vest with the authority, as provided by the State.

The State legislature shall make provisions for co-opting any person having experience in the field of banking, management, finance or specialization in a field related to a particular co-operative society as members of the board. A maximum of two people can be co-opted to the board. The number of such co-opted members, not exceeding two, shall be in addition to 21, specified above. The co-opted member would not have the right to vote in any election of the co-operative society or be eligible for election as Chairman, President, Vice-Chairman or Vice-President.

The board of a co-operative society can be superseded in case of (a) persistent default; (b) negligence in the performance of its duties; (c) commission of any act prejudicial to the interest of the co-operative society or its members; (d) there is a stalemate in the constitution or function of the board; or (e) the general body has failed to conduct the elections as per the required procedure.

A board cannot be superseded or suspended for more than six months. However, a society carrying on banking business may be superseded or kept under suspension for a maximum period of one year.  In case a board has been superseded, the administrator appointed to manage the affairs of such a co-operative society shall arrange for conducting elections within the specified time period. The board of a co-operative society which does not have any shareholding or guarantee or loan or financial assistance from the government cannot be superseded.

The provisions of the Banking Regulations Act, 1949 will be applicable to banking co-operative societies.

The State is to make provisions for maintenance of accounts and conduct of audit of co-operative societies. It shall lay down the minimum qualifications of auditors or audit firms. The auditor is the appointed by the general body of the societies from the panel approved by the State. The accounts shall be audited within six months from the close of financial year. The audit report of the apex societies shall be laid before the State Legislature.

The co-operative society shall conduct the annual general body meeting with six months from the close of the financial year. The State shall also make provisions to ensure participation of members in the management of societies, providing minimum attendance of meetings and utilizing the services of the societies. The State shall impart co-operative education and training to members. Specified reports are to be filed on the important activities of the societies within six months from the closure of the financial year.

The State Legislature may define the offences and penalties related to co-operative societies. An offence would be committed if (a) a co-operative society files a false return, (b) wilfully disobeys any summon or requisition issued under the State Act, (c) any employer who, without sufficient cause, does not pay to the co-operative society the amount deducted from an employee within a period of 14 days, (d) any officer who wilfully does not hand over custody of books, accounts or cash of a co-operative society to an authorized person, and (e) any person who adopts corrupt practices before, during or after the election of board members or office bearers.

Any provision inconsistent to the provisions of the 111th Amendment shall continue to be in force until amended or repealed by the State Legislature or until expiration of one year from such commencement, whichever is less.

States  to  Act

To achieve the objectives of the amendment the ball shall be kept rolling by the State Legislature and a duty is cast on the following dimensions.

•  Make provisions for incorporation, regulation and winding of co-operative societies.

•  Provide reservation of one seat for SC/ST and two seats for the women in the board.

•  Co-option of experts in the board.

•  Make laws for superintendence, control and conduct of election on the authority.

•  To lay down the conditions of service of the administrator.

•  Make provisions on maintenance of accounts by co-operative societies, lay down minimum
   qualifications 
   of the auditors/audit firms and prepare panel of auditors/audit firms.

•  To provide access to every member to the books, information and accounts of societies.

•  To ensure participation of members in the management of the societies, minimum attendance in the 
    meeting and utilization of minimum level of services of the societies by the members.

•  Impart co-operative education and training to members.

•  Make provisions for offences and penalties.

•  Make law in consistent with the provisions of the 111th Amendment in a time bound manner.

The new Goods and Service Tax (GST) Law

(By Dale P. Kurian, Advocate, High Court of Kerala, Ernakulam) 

The proposed Goods and Service Tax (GST) is to replace several taxation streams under Direct and Indirect taxation regimes. To name a few - Central Excise duties, Service tax, Countervailing Duty under the Customs Act, Value Added Tax, Central Sales tax, Luxury tax, Entertainment tax and Entry tax. The new enactment takes care of all by way of tax levies on sale of goods and rendition of services.

1. Introduction

Tax base of Goods and Service Tax (GST) would be very wide and would comprehensively extend over all goods and services up to the point of the end consumer. The Goods and Service Tax is to have two components:

1) Central Goods and Service tax (CGST) -levied by the Centre; and

2) State Goods and Service tax (SGST) -levied by the States.

The basic features of law, e.g., chargeability, definition of taxable event, taxable person (assessee), exigible transaction (incidence of levy), basis of classification etc., would be alike for both CGST and the SGST. In other words, the basis of levy of tax would be the same for both the CGST and the SGST, thereby wiping out all the disputes currently taken up by Value Added Tax authorities and Service Tax authorities, to tax a single transaction.

2. GST Legislation

After carefully reading the Finance Minister Mr. Pranab Mukherjee’s Budget speech of 2009-2010 and first discussion paper of the Empowered Committee, one can perceive that there would be one enactment for levy of central tax, i.e., CGST, and one enactment for levy of state tax i.e., SGST for each State. Therefore, there would be multiple tax statutes in India for levy of one GST. This could again bring in the same complications to the GST tax structure that had existed in the Value Added Tax (VAT) structure.

3. Taxes That Would Be Foregone

The GST would replace all the major indirect taxes that presently rule in India. Central Taxes that would be subsumed under the GST are :

a) Central Excise Duty - Levied under Excise Act, 1944;

b) Central Sales Tax (CST) - Levied under Central Sales Tax Act, 1956;

c)  Additional Excise Duties - Levied under the Excise Act, 1944;

d)  Excise Duty levied under the Medicinal and Toiletries Preparation Act - Levied under  Medicinal and Toiletries Preparation Act, 1944;

e)  Service Tax - Levied under Chapter V of Finance Act, 1944; (i.e., Service Tax Law)

f)   Additional Customs Duty Commonly known as Counterveiling Duty - Levied under  Customs Act, 1962;

g)  Special Additional Duty of Customs - 4 per cent - Levied under Customs Act, 1962;

h)  Surcharge - Levied under on any of above taxes or any other surcharges; and

i)  Cess - Levied upon any of above taxes or on surcharges.

Following State taxes and levies would go submerged:

a)  Value Added Tax (VAT)

b)  Entertainment tax levied by the local bodies

c)  Luxury tax 

d)  Taxes on lottery, betting and gambling

e)  State Cesses and Surcharges, in so far as they relate to supply of goods and services -  Levied over and upon any of above taxes or any other cesses and surcharges; and

f)  Entry tax not in lieu of Octroi - Levied by any State in India.

All the taxes listed above would be consolidated under the new GST regime, thereby, reducing compliance costs of taxpayers and administrative overheads of the Government. However, there are few other indirect taxes that may or may not get subsumed under the GST regime as there is no consensus among State themselves or between the Centre and States, like -

1) Purchase Tax: States themselves are of the opinion that purchase tax should be subsumed within the GST framework and no exception should be given to any State to continue the levy of purchase tax. However, few States are getting substantial revenue from the purchase tax and, therefore, they are of the view that it should not be subsumed under the GST. There is intra-State dispute on this issue. Even the Centre is of the opinion that purchase tax is to be subsumed under GST regime.

2) Stamp Duty: It is recommended that the stamp duty would be phased out over a period of 3 years. Initially, rate of stamp duty in all States should be restricted to 4 per cent. In year 2, stamp duty is to be reduced to 2 per cent and, finally, in the year 3, stamp duty should be completely wiped out and subsumed under the GST regime.

3) Vehicle Tax: The Empowered Committee of the State Finance Ministers is silent on the issue of inclusion or exclusion of the vehicle taxes levied by the State. However, the tax on vehicles levied by the State Governments could be subsumed in the GST as recommended in the report of Thirteenth Finance Commission.

4) Electricity Duty: The Empowered Committee is silent over the issue of inclusion or exclusion of the electricity duty. However, electricity duty levied by the State Governments could be subsumed in the GST as recommended in the report of Thirteenth Finance Commission.

4. Tax  Rates

Until now, there has been no official announcement regarding the GST rate for India. There are disputes among the State and Centre regarding fixation of the GST rate.

Proposed rates of GST in various reports and new items

In the current scenario, there is hardly any indication towards the proposed tax rates; however, the GST can be expected to be around 16 per cent to 18 per cent.

5. Levy

The GST would be levied on the value of goods and services transacted. Valuation provision would be common for both the CGST as well as the SGST. There is no specific information on this issue in any of the reports except that provisions would be simpler and more transparent. 

6. Inter-State  Transactions

The Centre would levy Inter-State Goods and Service Tax (IGST), which would be the CGST plus the SGST on all inter-State transactions of taxable goods and services. The inter-State sellers will pay the IGST on value addition after adjusting available credit of the IGST, the CGST, and the SGST on their purchases.

Illustration:

Mr. A manufactures goods. He bought goods for Rs. 56,000 and incurred expenses of 

Rs. 74,000. These manufactured goods were sold inter-state at Rs. 1,45,000 plus applicable GST. Rate of SGST and CGST is 7 per cent and 5 per cent respectively. Compute GST payable:

Solution:

* IGST (12%) = Cost (5%)+SGST(7%)

7.  Tax  Credit

Credit would be admissible in respect of both the components of the GST, i.e., the CGST and the SGST. The CGST and the SGST are to be treated separately for the purpose of tax credit. The scheme of tax credit would be:

a) Taxes paid against the CGST shall be allowed to be taken as input tax credit for the SGST and could be utilize only against the payment of the CGST.

b) Taxes paid against the SGST shall be allowed to be taken as input tax credit for the SGST and could be utilized only against the payment of the SGST.

Cross utilization of input tax credit between the CGST and the SGST would not be allowed except under the IGST model.

Thus, the tax base of Goods and Service tax (GST) would be very wide and would comprehensively extend over all goods and services up to the end user level, saving time and money for both the parties - the tax payer as well as the state through lesser compliance time and lower compliance costs.

The Kerala Police Act - 2011 Who will Police the Police?

(P. Rajan, Advocate, Thalassery)

The Kerala Police Act -2011 came into force with effect from 03-01-2011 in the State after repealing the earlier Act of 1960. The New Act is necessitated as per the direction of the Supreme Court, reasonings rendered by the National Human Rights Commission, besides the recommendations of the Bureau of the Police Research and Development, to promulgate a model Police Act. The old Act of 1960 was an abridged one compared to the present Act, but the reason for concern is that the new Act taken shape after much deliberations and missives is effective, and sufficient to achieve the intended aim, in the hands of the law enforcing agency.

The new Act empowers the Police to act with more powers regarding minor and major offences when committed in their presence. Under the repealed Act, the application of Ss. 47 and 51 was rampant, relating to trespass willfully done in public places; the other of riotous or indecent behavior from similar places. Police were resorting to these provisions with or without considering the legal requirements needed to invoke these provisions. The present Act also has got many provisions to maintain law and order. Similar to the provision envisaged in the Abkari Act, S.15(c), identical provision is incorporated in the Police Act regarding rioting after intoxication. Other violations of law and order from public places are detailed in Ss.118,119 and 120; also speak of the Police power to detect and charge sheet certain offenders, for acts done mainly from public places.

The definition given to complaint in the present Act also is novel, apart from written or oral, even gestures and signals constitute complaints. Police are empowered to enter into private places but shall be accounted, considering the custom and privacy. Information providers are eligible for reward as shown in the section mentioning about duties and responsibilities of police officers. Criminal justice miscellaneous expense fund is to be maintained, in order to meet expenses incurred during investigation by the Police.

There are several circulars also for efficient and better policing. Weekly station work review, custodial facility, method of investigation of matters received under S.156(3) Cr.P.C. from the Magistrate Court are specifically stipulated also. Police Act with new penal provisions permits police to take action, with regard to many offences earlier being taken under other penal statutes. Careful observance to avoid harassment to the public; wrath of legal forums by ignorance or feigned ignorance, of the prosecuting side; should not be lost sight of.

Even a cursory look at the Act would reveal that if proper application of the Act by trained hands with strict adherence to the sections is done, the Kerala Police Act will prove to be worth the wait. Routine awareness camps by senior officers, their supervisory steps, will to a larger extent, help the local level police force to improve the law and order situation. In the old Act legal action against police excesses was permissible u/S.64(3) and even limitation period was relaxed by the apex court ruling, which is not incorporated in the present Act to check frivolous legal actions.

The Act of 2011 is comprehensive in content, formulated for easy application. Instead of resorting to other laws with procedural formalities, police are bestowed with ample powers under this Act to address situations relating to law and order primarly. The purpose of the new police Act is to ensure rule of law with due transparency by professional skill of dedicated police force. Let the police itself police the administration to make it enlightened and efficient, to prove it to be second to none.

Epithet- Senior Adv. Sri. T.P.K. Nambiar’s revelation of putting the cap of his ‘blue pencil’ on it forever has saddened many (2011(1) KLT Page 1). Nearly six decades of ardent association of Mr. Nambiar with the profession has made him to say things not soothing always but not harsh either. Degradation he witnessed at ‘higher’ and ‘lower’ levels is not irredeemable, one can hope. His prose, must have ruffled many a feather but they should be light hearted enough to take criticism in their stride and forget not; the famous quote -

‘I may not agree with what you say, but I will defend to the last, your right to say it’ - Voltaire.