Conjugal Aberration Needs Holistic Correction Than Punitive Measure

(By V.K. Babu Prakash, Principal Sub Judge & Secretary to the District Legal Services Authority, Thiruvananthapuram)

“She began now to comprehend that he was exactly the man who in disposition and talents, would most suit her. His understanding and temper though unlike her own, would have answered all her wishes. It was a union that must have been to the advantage of both”.

 -- Jane  Austin  in  Pride  and  Prejudice

The Law Commission of India has been recently directed by the Home Ministry of the Government of India on the basis of the observations made by the Supreme Court and various High Courts to consider whether any amendment to S.498(A) I.P.C or other measures are necessary to check the allegation of misuse of the Provision, especially by way of over implication. S.498(A) was introduced in the year 1983 with a view to protect married women from being subjected to cruelty by the husband or his relatives. The Section prescribes a punishment extending to 3 years and fine. The expression ‘cruelty’ occurring in the Section has been defined in wider terms by judicial interpretation, so as to include inflicting physical or mental harassment to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the Section. Driving a woman to commit suicide is also one of the ingredients of cruelty. The offence under S.498(A) I.P.C. is cognizable, non compoundable and non-bailable. The Provision was so far so good for quite sometime. Slowly, women began to exercise their rights indemnified by the Provision, thereby matrimonial aberration under the garb of matrimonial cruelty began to reach in the threshold of criminal courts. Time and again, women began to feel an upper hand due to the rigor of the Provision which made the offence non-bailable, non-compoundable thereby cases began to flood in the criminal Courts. Although, many of the allegations are not matrimonial cruelty connected with dowry demand or such like, nevertheless, all of them were disguised under the shadow of matrimonial cruelty coming under S.498(A) I.P.C. Thus, many a husband and his relatives have fallen victims into the rigorous teeth of the Section. The statistical reports published by the Central and State Governments from time to time bear out the fact that there is over implication of the relatives of the husbands in many cases which were found to be unjustifiable. While so, women from urban areas lavishly utilized the Provision, the women especially from the poor strata of the society living in rural areas seldom utilized the Provision, probably because of lack of awareness and motivation.

Justice Malimath’s Committee reported on the reforms of Criminal Justice System extensively considered the scope and amplitude of Ss.498(A) and 406 I.P.C. The Report recommended that the Provisions have become an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the F.I.R. without even considering the intrinsic worth of the allegations by at least making a preliminary investigation. Report further found that when the members of a family are arrested and sent to jail without the immediate prospect of bail, the chances of re-conciliation or salvage of marriage will be lost for ever. The possibility of reconciliation is always there in a marital dispute whose possibility will be ruled out when arrest and incarceration, are followed. The long protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. The pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated on the part of Police arresting the husbands and relatives and sending them to jail. Thus, the Malimath Committee found that although there is no sting in S.498(A) as such, but it is there in the Provisions of Cr.P.C making the offence non-compoundable and non-bailable. The Committee eventually recommended to make the offence bailable and compoundable. However, the pity is that the Central Government gave scant consideration for the recommendation. Now, due to successive representations from the quarters of various social organizations and strong observations of the Supreme Court and the High Courts, the Central Government is compelled to open its myopic eyes to look into the aspects as to consider whether any amendment or other measures are required of to check the alleged misuse or over implication of the offence under S.498(A) I.P.C. Keeping-in-mind the lofty social purpose behind the penal Provision and the object it wanted to achieve by avoiding the potentiality of its abuse or misuse, the following suggestions are recommended:-

1. 'The marriage is a discipline of humanity’, told long ago by Francis Bacon. Thus the aberration in the relationship of spouses cannot be treated in the manner of dealing with hard core criminals who indulge in criminal activities. Therefore, before registering F.I.R by Police for the offence under S.498(A), it is appreciable that some responsible counselors or mediators, attached with the Police Station or Legal Services Authority, with whom the Police Officer shall keep constant contact and interaction, to interact with the spouses and facilitate them to have counseling or mediation in the matter to find out suitable solutions. The mediators or counselors should find out the root cause of the dissension between the spouses and earnest endeavour shall be made to find out working methods like rehabilitation, re-conciliation, etc. Thus, instead of registering cases under Section 498(A) I.P.C, spouses may be allowed to choose suitable alternative redressal solutions which shall be worked out with the help of Legal Services Authority or other N.G.Os. Pre-litigation counseling or mediation is essential in matrimonial issues before registering F.I.R. and conducting investigation. 

2. Immediate arrest and custodial interrogation of the  husband and his relatives will not mete out justice. It  will only aggravate and aggrandize the hatred of spouses to each other. The wife will think to teach a lesson to the husband and the husband and his relatives in turn will think to retaliate. It will only make the matter worse. 

3. While arrest is made, the Police shall meticulously follow the directives of the Hon’ble Supreme Court rendered in the decision D.K. Basu v. State of West Bengal. However, police should not arrest the husband or his relatives unless it shows that he or they are going to abscond or evade the process of Law. Even if arrested they shall not be locked up. Decency and decorum should be shown. The arrestees must be brought to the Magistrate at the earliest. Police shall act as effective counselors and mediators to enable the spouses to soften the issue and find out suitable reconciliation methods. Police Officers especially, women Police Officers should be sufficiently trained in dealing with matrimonial issues. 

4. The offence under S.498(A) I.P.C shall be amended as bailable. Even if it is made bailable, it would not become counter productive. Re-conciliation steps are suitable than punitive actions in the matter. However, it must not be lost sight of the fact that the issue is emotional as well. If the counseling and re-conciliation process drag on endlessly, parties will feel drained of their interest and then the counseling and re-conciliation process would become tiresome and ineffective. Thus, the counseling and reconciliation process must end within a reasonable time. This must be kept-in-mind by the counselor and mediator. If the counseling and reconciliation process is not successful, then F.I.R can be registered.

5. It is worthwhile that the Investigating Officer who registers the F.I.R and investigates the offence under Section 498(A) shall not be the officer who shall involve in the process of counseling or mediation. It is better that he shall not interfere in the process. He must at the best be a benevolent facilitator to provide the service of a trained counselor or mediator who shall have the full discretion to work out the reconciliation process. The Police Officers shall better be the impartial observers or supervisors.

6. Friends or elders known to the spouses or professional counselors, ladies and men lawyers or retired persons and respected persons who know the spouses can render their invaluable service for the re-conciliation process. In every Police Station, it shall be kept a list of trained counselors, mediators and N.G.Os and lawyers who can do counseling and re-conciliation process in an effective manner. Their phone numbers and E Mail I.D shall also be kept up.

7. Since S. 498(A) I.P.C. is a penal Provision, the trial Magistrate need not be burdened with in the matter of conciliation and counseling. However, it is better that the woman spouse may be advised to file application under the Protection of Women from Domestic Violence Act, 2005 than registering a case under S.498(A). This is because the Provisions under the D.V. Act are allied and complimentary, enacted with a view to provide for more effective protection of rights of woman which are essentially of civil nature with mixture of penal Provisions, suitable working methods can be adopted by the Magistrate. An application under the D.V. Act can trigger the process of counseling and re-conciliation by the Magistrate. When the Magistrate is considering an application under the D.V. Act, the Police shall not arrest the husband under 498 (A) I.P.C Act as it will push spokes on the wheel of counseling process. The Magistrate shall, if necessary, order to keep the investigation of the offence under S.498(A) I.P.C at bay till the reconciliation process is completed.

8. Offence under S.498(A) I.P.C shall be made compoundable with leave of Court. This is because Legal Services Authority can do a lot in the matter, if offence under S.498(A) is made compoundable. Since S.498(A) is now non-compoundable, Legal Services Authority cannot consider the case, as Legal Services Authorities Act provides that only compoundable criminal cases shall be taken up by the Legal Services Authority. If the offence is made compoundable, Legal  Services Authority can provide the service of trained mediators and counselors.

9. Offence shall also be made bailable. However, if the husband had done physical cruelty on the wife by which she sustained grievous injury, then bail must be refused. But still, his relatives should be granted bail. In other cases, bail should be normally granted to both husband and his relatives. 

10.There must be better co-ordination between the Legal Services Authority and Police Station to cater the need of re-conciliation process in matrimonial issues. Now, if aggrieved women approach Legal Services Authority, it would provide proper guidelines in the matter, whereas, the present picture is that women of rural areas are not much aware of the existence to Legal Services Authority. Thus at the grass root level, the women of rural areas approach lawyers or Police Station than the Legal Services Authority. If awareness classes and programmes are conducted at the grass root level, especially among rural women, much results can be reaped. The rural people including women should be made aware of the existence of Legal Services Authority and it’s free services. Legal Services Authority can guide them at the pre-complaint and subsequent stage. 

11. Well-equipped and modern training facilities should be given to the mediators and counselors in the matter of matrimonial issues. Service of psychologists and sociologists is a sine qua non. Para-Legal Volunteers should be equipped with by Legal Services Authority who should visit villages and rural areas and conduct classes and awareness programmes. Cultural programmes should be conducted among rural women folks by the Social Welfare Department and Ministry of Women and Justice. The perception and awareness of rural women on matrimonial issues should be improved. They must also be helped to improve their awareness on social rights and obligations. Equally, men of rural areas should be motivated to have awareness on the ill-effects of alcoholism and help them to avoid violence and torture against women.

12. Communication and information facility should be improved in the rural areas to have easy access and contact with Legal Services Authority, Para-legal Volunteers and nearby Women Police Stations. Sufficient number of shelter homes should be provided to women who are thrown out from matrimonial homes. Adequate facilities and hygienic atmosphere should be provided at such shelter homes. Educated and socially conscious responsible woman Police personnel should be deployed in Police Stations to tackle the ticklish matrimonial issues. There must be a women cell constituted in every Police Station. They must be trained to deal with reconciliation and rehabilitation process in matrimonial issues.

If the Society does not wake up from its indifferent attitude to matrimonial issues, the high rate of divorce and offences under S.498(A) I.P.C, etc. would rock the foundation of family set up. Suitable amendment and check measures are eventually needed on S.498(A) I.P.C. The erring husbands cannot be dealt with by the iron hand of the present Provision which is only counter productive. A holistic approach is needed in the matter of matrimonial aberration. The society needs solid and healthy marital relationships than its break-ups. St. Augustin rightly stated that, “marriage is as old as world and as new as moments”.

Whether  the  Permanent  Lok  Adalat  for  Public  Utility  

Services has  Adjudicatory  Jurisdiction ?

(By D. Pappachan, Chairman, Permanent Lok Adalat, Ernakulam)

In  L.I.C. of India v. Suresh Kumar (2011(2) KLT 970 (SC), the Hon’ble Supreme Court held that the Permanent Lok Adalat has no jurisdiction to decide a case on merit even where the parties fail to arrive at a settlement of the dispute. In another decision reported in Ambika Kumary v. State of Kerala (2011(2) KLT 673) a Division Bench of the Hon’ble High Court of Kerala held that the Permanent Lok Adalat for Public Utility Services established under Section 22B of the Legal Services Authority Act, 1987 (for short ‘the LSA Act’), has adjudicatory function, when it fails to arrive at a settlement by conciliation. In fact, when the Apex Court decision is reported in another journal (2011(2) KHC 590), in the editorial head note, it is opined that the decision in Ambika Kumary’s case is ‘per incuriam’ in view of the decision in L.I.C. of India case, supra. No doubt, those who had occasion to go through these two decisions may be confused in regard to the adjudicatory jurisdiction of Permanent Lok Adalat for Public Utility Services constituted under Section 22B of the L.S.A. Act. This write-up is therefore a intended make clear the present legal position.

2. Legal Services Authorities (Amendment) Act, 2002 (37 of 2002) is incorporated as Chapter VIA in the LSA Act. Amended Section 22-C(8) of the LSA Act reads as follows:-

“Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute”.  (emphasis supplied)

That provision makes clear that the Permanent Lok Adalat can decide the lis on merit, when conciliation to arrive at a settled decision fails. This legal position is more clear from Sections 22D and 22-E(1) of the L.S.A. Act. Those sections read as follows:

22-D. Procedure of Permanent Lok Adalat - The Permanent Lok Adalat shall, while conducting conciliation proceedings or deciding a dispute on merit under this Act, be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) and the Indian Evidence Act, 1872 (1 of 1872) “.               (emphasis supplied)

22-E.(1) Award of Permanent Lok Adalat to be final - (1) Every award of the Permanent Lok Adalat under this Act made either on merit or in terms of a settlement agreement shall be final and binding on all the parties thereto and on persons claiming under them,                                    (emphasis supplied)

3. Again, as per Section 22-E(3) of the Amended Act, the award made by the Permanent Lok Adalat shall be by a majority of the persons constituting the Permanent Lok Adalat. If the award is by conciliation alone, reference to majority decision is redundant.

4.  On an earlier occasion the Hon’ble Supreme Court has considered this question in United India Insurance Co. Ltd. v. Ajay Sinha & Anr. ((2008) 7 SCC 454) and held that the Permanent Lok Adalat constituted under Chapter VIA of the LSA Act has an adjudicatory role to play. In paragraph 28 of that judgement it is observed as follows:

“Here, however, the Permanent Lok Adalat does not simply adopt the role of an arbitrator whose award could be the subject matter of challenge but also the role of an adjudicator. Parliament has given the authority to the Permanent Lok Adalat to decide the matter. It has an adjudicating role to play”                  (emphasis supplied).

The statutory provisions and the decision of the Apex Court in (2008) 7 SCC 454, are therefore clear on the point that the Permanent Lok Adalat for Public Utility Services has the adjudicatory power, when its attempt to have a settlement by conciliation fails.

5. It is true that in LIC of India v. Suresh Kumar  (2011(2) KLT 970 (SC) the Apex Court observed that the Permanent Lok Adalat has no jurisdiction to decide the case on merit. But in a latter decision handed down by the Apex Court on 4.7.11 in Civil Appeal No.4925/2011 (Inter Globe Aviation Ltd. v. N. Satchidanand  (2011 (3) KLT 295 (SC)) it is abundantly made clear that the Permanent Lok Adalat constituted under Section 22B of the LSA Act has adjudicatory function. In that judgment the earlier decision in Suresh Kumar’s case (2011(2) KLT 970 (SC)) was referred to and held that it does not relate to Permanent Lok Adalat constituted under Section 22B of the LSA Act. The observations of the Apex Court in Para 19 of the latter decision are as follows:

“We may also at this juncture refer to the confusion caused on account of the term Permanent Lok Adalat being used to describe two different types of Lok Adalats. The LSA Act refers to two types of Lok Adalats. The first is a Lok Adalat constituted under Section 19 of the Act which has no adjudicatory functions or powers and which discharges purely conciliatory functions. The second is a Permanent Lok Adalat established under Section 22B(1) of LSA Act to exercise jurisdiction in respect of public utility services, having both conciliatory and adjudicatory functions. The word Permanent Lok Adalat should refer only to Permanent Lok Adalats established under Section 22B(1) of the LSA Act and not to the Lok Adalats constituted under Section 19. However in many States, when Lok Adalats are constituted under Section 19 of LSA Act for regular or continuous sittings (as contrasted from periodical sittings), they are also called as Permanent Lok Adalats even though they do not have adjudicatory functions. In LIC of India v. Suresh Kumar (2011 (2) KLT 970 (SC)), this Court observed: “It is needless to state that Permanent Lok Adalat has no jurisdiction or authority vested in it to decide any lis, as such, between the parties even where the attempt to arrive at an agreed settlement between the parties has failed”. The said decision refers to such a ‘Permanent Lok Adalat’ organized under Section 19 of the Act and should not be confused with Permanent Lok Adalats constituted under Section 22B(1) of the Act. To avoid confusion, the State Legal Services Authorities and the High Courts may ensure that Lok Adalats other than the Permanent Lok Adalats established under Section 22B(1) of the Act in regard to public utility services are not described as Permanent Lok Adalats. One way of avoiding the confusion is to refer to the Lok Adalats constituted under Section 19 of the Act on a regular or permanent basis as ‘Continuous Lok Adalats’.

In view of the above decision of the Apex Court in Inter Globe Aviation Ltd. case (2011 (3) KLT 295 (SC)) the adjudicatory function of the Permanent Lok Adalat for Public Utility Services constituted under Section 22B of Legal Services Authority Act, 1987 is no more a controversial issue.

Escheat - Meaning - Implications - And the Law on it

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

Escheat - Term used in law for the reversion of land to its ultimate owner because there is no other heir. It is a relic of feudal times when land was granted by the King or other Lord on the condition that in certain contingencies, it escheated or came back to him. Land also escheated when the holder was attaint, the theory being that his blood being thus corrupt his heirs could not inherit. This was abolished in England in 1870. The majority of escheats fell to the Crown. Escheat through failure of heirs is still recognized by both English and Scottish law but cases of it are not frequent. It applies to India also.

2. Escheat is a species of reversion, and it is a right, which now vests in the Crown or in the State as ultimus haeres upon the failure, natural or legal, of the last tenant. Originally it was an incidence of Feudal Law whereby a fief reverted to the Lord, when the tenant died ceased without heir, in which event the land lapsed to the Lord of the manor, or to the Crown. This feudal rule has been accepted in India with this difference that the land left by an heirless tenant lapsed as bona vacantia to the State. 

(AIR 1961 Punj. 201 at 202)  (D.B.) Dhuman Singh Prem Singh v. State of Patiala) 

3. Statutory recognition has been made to the principle of escheat under Article 296 of the Constitution of India and also under Section 29 of Hindu Succession Act, 1956, Section 34 of Indian Succession Act and Sections 83 and 111 of Muhammedan Law by Mulla.

4. This principle of escheat has been recognized and judicially accepted long back in 1860 and has been followed later. This is applicable under Mithakshara Law and Dayabaga Law.

See (1860) 8 M.I.A.500 P.C. Collector of Muslipatnam v. Cavaly Venkata 

((1875) 31.I.A. 92 (P.C.) Somet v. Mirza). 

((1868) 12 M.I.A. 448 (P.C.))  Girdharilal v. Bengal Government). 

(AIR 1927 Bom.456. Narayan v. Laxman).

(AIR 1934 Cal.399 (Satishchandra v. Haridas). 

(AIR 1968 SC 954 (Ramchandra v. Man Singh) 

There is a rider attached to vesting by escheat. That rider is this.

Whoever took the property is subject to, 

(i) the claims for maintenance, trusts, charges, mortgages created by widow for legal necessity in respect of such property and 

(ii) the debts of the deceased, if any.

1860 (8) M.I.A. 500 at 527 (Collector of Muslipatnam v. Cavaly Venkita). 

1867 (11) M.I.A. 619 P.C. (Cavaly Venkita v. Collector of Muslipatnam). 

(1847(4) M.I.A. 246 at 258 P.C. (Golab Koonwar v. Collector of Banaras).

5. It has been held that, if a limited heir alienated property without legal necessity then, if there are no reversioners, the alienations could be set aside at the instance of Crown (now State) taking the property by escheat. In other words Crown (now State) has the same power that a reversionary heir would have of protecting its interests by impeaching unauthorized alienations by the limited heir. (1861) 8 M.I.A. 529 P.C. at 553  (Collector of Muslipatnam v. Cavaly Venkita) AIR 1926 Lah.673 (Kundan v. Secretary of State).

6. Where the Government claims by escheat the onus lies on the Government to show that the last proprietor died without heirs.

(1868) 10 Weekly Reporter 31 P.C. (Girdharilal v. Bengal Government) 

(AIR 1941 Ori.337 (United Provinces through Deputy Commissioner, Hardoi v.   Kanhayyalal) 

(AIR 1960 Mad. 436 (State of Madras v. Ramanatha Rao) 

(AIR 1983 SC 684 at 741 (State of Bihar v. Radhakrishna Singh) 

(AIR 1950 Cal. 473 at 474).

7. Reference can also be made to Section 29 of Hindu Succession Act, 1956 which also lays down the principle of escheat by including it in this Statute. Section 29 lays down that in case of failure of all the heirs recognized under Hindu Succession Act, on the death of owner intestate, his or her property devolves on the Government and the Government takes the property subject to all legal obligations and liabilities to which an heir would have been subject, if the property had devolved upon heir by succession. See AIR 1970 Bom.72 (Kothavale v. State of Maharashtra). The word “failure” used in the Section is indicative of fact that there must be total absence of heirs of the intestate. (AIR 1991 SC 2301 (State of Punjab v. Balwant Singh)).

8.  Following AIR 1983 SC 684 and AIR 1991 SC 2301, the Himachal Pradesh High Court has also held that the provision in Section 29 will not operate in favour of the State, if there was any legal heir of the estate ( 2001(4) CCC 421  Bhagat Ram through LRs v. Kuldip Raj.).

9. The Rajasthan High Court, in the decision reported in AIR 2006 Raj.101 Para 3 (Ramacharan v. State of Rajasthan) has held that the person who challenges the order of escheat will have to file a civil suit of competent jurisdiction for determination, as to whether such person is the legal heir of the deceased and he has to discharge the burden of proving his right, interest and title over the property escheated.

10.  An interesting question as to what would happen, if the owner leaves the Village and goes away and his property is taken possession by some other person or by the State. The PEPSU High Court in the decision (para 4) reported in (AIR 1954 PEPSU 34 Cal.35) D.B.). (Netram Surjia Ganesh v. The State through the Prime Minister of PEPSU) has held that the principle of escheat cannot be invoked.  But the State or the person who takes possession may get title to the property by adverse possession.

11. State cannot get by escheat the property acquired by a person by committing crime. (AIR 1962 All. 153 at 155-156 (para.3) State v. Jagannath).

12.  Dissolution of company holding interests as a permanent lessee. Interest vests in Government. AIR 1980 SC 575 at 578. AIR 1959 Cal.493 (498),  (Indian Timber and Plywood Corporation Ltd. v. State).

13. Section 34 of Indian Succession Act is the relevant section in relation to escheat which is similar to Section  29 of Hindu Succession Act. Section 16 of Cochin Christian Succession Act (VI of 1097 ME) and Section 32 of The Travancore Christian Succession Act relates to the rule of escheat. (N.B. Cochin and Travancore Christian Succession Acts stands repealed by Part B States Law Amendment Act 1950 giving place to Indian Succession Act). 

14.    Section 83 Mulla’s Muhammedan Law lays down the law regarding Hanafis (Sunnies) and Section 111 deals with escheat in relation to Shias’. (AIR 1926 Patna  941) (Mussammat Khursaidi v. Secretary of State) lays down that in failure of all natural heirs the estate of a deceased Shia Muhammedan escheats to the Government.

Escheat under different statutes.

1.   Article 296 of Constitution of India.

2.    Section 29 of Hindu Succession Act.

3.    Section 34 of Indian Succession Act.

4.    Sections 83 & 111 (Mulla’s Muhammedan Law).

A Short Note on Section 228 of Indian Penal Code

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

1.    Section 228 is the only Section of Indian Penal Code which deals with contempt committed against a judicial officer i.e., a court.

2.    Section 228 reads as follows : 

Intentional insult or interruption to public servant sitting in judicial proceeding. - Whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

3.   The essential ingredients of the offence under Section 228 are:

(i) Intention.

(ii) Insult or interruption to a public servant.

(iii) The public servant insulted or interrupted must have been sitting in any stage of a judicial proceeding.

(AIR 1959 SC 102  State of M.P. v. Reva Shanker).

(iv) “Public Servant” is defined in Section 21 of I.P.C.

(v) The question some times arises as to when an accused insults an Advocate, whether  offence under Section 228 is committed? Bombay High Court has answered the question in the negative. If the insult is not against the judge, but to the advocate it is not an offence under Section 228 I.P.C.   Although the advocate is part of the machinery of the administration of justice, he is not a public servant, within the meaning of expression “Public Servant” in Section 228 I.P.C.

(AIR 1966 Bom.19 (para 17) Damayanti G. Chandramani v. S. Vaney).

(vi) An advocate engaged by the customs authority or for that matter by any government official does not become a public servant just because of his engagement.

1989 Mah. L.J. 588 at 600 = 1989 Mah. LR 1437.

(vii) If a remark is not made to a court, however rude or vulgar it may be, it cannot be made subject of an offence under Section 228, even if the court happens to over hear it.

(AIR 1943 Lah. 14 at 18  Hakumatrai v. Emperor).

(viii) Insult to an advocate is not contempt.

(AIR 1945 P.C. 134  Parasuram v. Emperor).

(ix) This is what AIR 1968 Cal.249 (Sahasrangshu Kanti Acharya v. The State) at para 6 has to say on the question of applicability of Section 228 of the Indian Penal Code:

The gravamen of the offence is that the offender must do something physical, namely insult or interrupt a public servant in any stage of a judicial proceeding, but that is not enough. There is a mental part of the offender which should also be taken into consideration and that mental part is that the offender had the intention to cause the said insult or interruption. Both these elements must co-exist in order to constitute an offence under Section 228 Indian Penal Code. The fact that the court feels insulted is no reason for inferring contempt, when no insult was so intended. To put it in a short compass, the elements of an offence under Section 228 Indian Penal Code are both objective and subjective - objective in the sense that the factum of insult or interruption must be there and subjective because the same has to be accompanied by an intention on the part of the offender to commit the same  and the entire thing must take place against the back-drop of a judicial proceeding.

4. In order to bring a case within Section 228 I.P.C. and Section 480 Criminal Procedure  Code 1898, (new Section 345 of Criminal Procedure Code, 1973 it must be shown that an accused intentionally offered an insult to court.

(AIR 1933 Bom. 478 (D.B.)  Chagan Lal Iswar Das Sha v. Emperor).

5. The contempt of Court is not a matter of mere form or technicality but of substance, and the jurisdiction to punish for contempt has to be very carefully and cautiously exercised. When the offence is technical or of a slight or trivial nature the court may condone it. Even if the observation on subject-matter of a proceeding is likely to interfere with course of justice and may technically amount to contempt, Court may not interfere, if it is not satisfied that such comments were calculated to prejudice fair trial.

(AIR 1930 All. 483 at 485 = 32 Cr. LJ 78 S.A. Dange v. S.T. Sheppard).

6. In the case of proceedings for contempt of court under Section 228, record must show the nature and the stage of judicial proceeding in which, court interrupted or insulted was sitting and the nature of interruption or insult and omission to set forth particulars as required by Section 481, clause (2) Cr. P.C., (now Section 345 of  Crl. P.C. 1973). It is not merely an irregularity which could be corrected by the application of Section 537 (Section 422  Crl. P.C. 1973) but is fatal to the proceedings.

(AIR 1931 Nag. 193) =  32 Crl. LJ 1221).

7. The Magistrate must record precisely the words used by the accused so as to show the nature of the interruption or insult attributed to him.

(AIR 1921 Lah. 102  at 103 = 23 Crl. LJ 9 ).

8. Although the wording of body of charge may cover an offence under Section 228, still accused might be prejudiced when no stress is laid on an essential element in a charge under Section 228, namely, that the Court must be sitting in a judicial proceeding at the time when the insult is offered.

(AIR 1936 Nag. 275  at 276 = 38 Crl. LJ 380 = ILR (1937) Nag. 145).

9. If the offender tenders apology at the earliest moment, voluntarily, unconditional, indicative of remorse, contrition, sincerety, it can be accepted by court and proceedings can be dropped and no conviction can be had.

(1980 Crl. L.J. NOC 1 State v. Pateswari Prasad)

New Law to Curb 'Honour Killing' -- Request Pragmatic ?

(By P. Rajan, Advocate, Thalassery)

The lucid expression honour killing is coined and used by the media, of late as meticulously planned, dastardly executed murder in the name of family pride takes place, when marriage is solomnised against the wish of a family defying desired propensity, often after elopement which invite the hatred of the kindred who become prepetrators for annihilation of the young duo who tied the knot. This usage gained acceptance and approval of judicial forums too and the clannish feud and the mortified feeling of the revengeful cohort, with little respect for the law of the land, up in arms, to wreck vengance in the name of self felt family honour, indulge in crime of the highest degree which are on increase barring region and religion. Check on spurt of such crimes rather alleviation, among the regressive class is a matter of serious concern before the Law Commission, due to the fervent plea from different groups for a special enactment to bring to book and try such participants of diabolic crimes.

Any murder reason what may, is punishable u/S.302 I.P.C. with the exceptions and defences detailed in Chapter XVI of the I.P.C. and of the foregoing provisions and the maximum punishment is death sentence besides fine. Capital punishment is the extreme penalty which any murderer will get, if the case is rarest of rare; if not, life imprisonment and fine. By introducing new law to punish offenders for a specified or catagorised offence, graver sentence than what is stated above cannot be incorporated. To uphold the majesty of law, indefensibile and invaluable human right, if the crime is horrendeous and proved, death sentence though rarely awarded, is the gravest, under the Indian legal system, enshrined in the penal statute. Abolition of death sentence is even a topic of unending deliberation, as opinions for and against do the rounds at regular intervals. It is not the dearth of special law to curb such offence lead to escalation of such incidents but lack of awareness even about ensuing consequences, culminating in to gruesome murder preplanned for the sake of so called family pride. Supreme Court ruled, that honour killings too, be considered as rarest of rare cases deserving capital punishment; further observed that all persons who are planning to perpetrate, such crimes should know that gallows await them (AIR 2011 SC 1863).

Social unrest affecting social harmony and peace of the society, becomes reason to resort to serious crimes. Special law or even amendments to the available enactments may not be the right measure to achieve desired goal. Examples are decipherable basing on experiences. S.498 A  I.P.C. and the recently introduced Prevention of Women from Domestic Violence Act 2005 speak of this. Any aberration or trivial reason in marital life presently for many, pave way for resorting to prosecutions under these enactments, making the matrimonial or family relationship further reproached. Apex Court even observed that serious look on certain provisions of such enactments is warranted (AIR 2010 SC 3363) as unmerited prosecutions out number genuine ones. Section 302 I.P.C. being the provision taking in its fold any culpable homicide amounting to murder, if more rigour is needed to it, for taking in honour killing also, proper amendment giving more teeth to the law exicisting is desirable. The evil of targetted killing is also being murder, special law is no answer unless social awarness is instilled among the ignorant, and arrogent who take law into their hands, instead of abiding it. Proverbial light at the end of the tunnel being the idea behind any law when crimes increase, as social reform measures among the law-breakers to eradicate criminal acts minor or major, becoming futile. Existing law is sufficient provided its application must be by experienced and trained hands or else even improper policing will make lockup room into cadaver cell. Any special statute or amendment to existing provisions of law will lead to challange terming it as unconstitutional before the High Court or Supreme Court as such excercise is customary rather result oriented. This hurdle also makes delayed application of even amended law. Gruesome crimes deserve investigation by agencies with improccable integrity manned by persons of proven ability.

Any one can perceive the tantrums relating to much discussed comprehensive Women’s protection law and Lokpal bill before the promulgation; and aftermath is anybody’s guess on declaration, during early days at least. Let the time tested, lacunae free provisions of penal statute bring to book even the culprits of honour killing as no honour is involved in or achieved by any killing.

Too many laws and too little justice –

like too much governments and too little administration.

        -- N.A. Palkhivala