Interpretation of the Word 'Hearing'

In the light of Decision reported in 2010 (4) KLT 697 --

An effort to disagree with 2010 (4) KLT 697 

(By P. Biju Advocate, Nedumangad, Thiruvananthapuram)

In a recent decision reported in 2010 (4) KLT 697, the Hon’ble High Court had discussed about the acquittal of accused u/S. 256(1) Cr.P.C. It has been held that the accused is to be acquitted when it is posted for ‘hearing’ and not when it is posted for evidence. I beg to defer with the said finding in the light of provisions contained in Chapter XVIII to XXI of Cr.P.C. and also in the light of other decisions.

Before going into the merits of the decision and the related provisions in Cr.P.C., the meaning of the word ‘hearing’ is to be looked into. Though it has not been defined anywhere in the statute, it is a very commonly used word in all courts extending from lower courts to Apex Court. The intention of the legislature, the construction of sentence where the word ‘hearing’ appears and the circumstances under which the word ‘hearing’ was used by the legislature in a particular sentence are all to be borne in mind while we interpret the word ‘hearing’. Each word must be considered with regard to the practical context in which they are used and with regard to the scheme and purpose of the provision under consideration. A straight-jacket meaning so as to cover all situations cannot be given to a particular word. 

As far as criminal Courts are concerned there are 4 kinds of trial viz. sessions trial, warrant trial, summons trial and finally summary trial wherein the word ‘hearing’ has been used in different meanings. Ss.225 to 265 deals with various kinds of trials. From among those, Ss.227, 232, 234, 239, 244, 246, 254 and 256 carries the word ‘hearing’. The word ‘hearing’ appears in Ss.227, 232, 234 and 239 means ‘hearing of arguments’. It enables the prosecution as well as the accused of being heard and enables the court to decide something after ‘such hearing’.

But the word ‘hearing’ used in Ss.244(1) and 254(1) does not mean the hearing of arguments. It does not enable the court to decide anything after such ‘hearing’. It is used, in those sections, only in conjunctive form with the word evidence. In this contest the construction of the particular sentence in Ss.244(1) and 254(1) has much importance. ‘The magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution’ is that particular sentence. Here the conjunction in the sentence may be looked into. ‘To hear the prosecution and take all such evidence’ would only mean to take evidence. At the most it can be interpreted as to ‘hear’ the prosecution in advance regarding the mode and nature of evidence which they intents to adduce. Even if such a ‘hearing’ was had that does not enable the court to do something in consequence of such ‘hearing’ except taking evidence. It does not make any change in the procedure to be followed next. So also the word hearing used Ss.244(1) and 254(1) does not provide an opportunity to the accused of being heard. Unless both sides are heard it cannot be termed as hearing on merit. That itself is sufficient to draw that the word ‘hearing’ used in that context is not the ‘hearing’ as we understood like the other ‘hearing’ appearing in Ss.227,232, 234 and 239.

Finally the word ‘hearing’ appearing in Ss.246 (4) and 256 (1) Cr.P.C. carries another meaning than the two which is discussed above. It means only the next posting date of the case. S.246(4) reads as follows: If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-s.(3) he shall be required to state, at the commencement of the next hearing of the case or, if the magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. S.256 (1) reads as follows: if a summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the ‘hearing’ may be adjourned, the complaint does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the ‘hearing’ of the case to some other day. By using the word ‘hearing’ in both the said sections, no doubt, the legislature did not have indented to mean the ‘hearing of arguments’. It means only the next posting date of the case.

We may read the proviso to S.256 (1) at this stage. It reads as follows. Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. From this proviso it is clear that acquittal of accused is recommended only in the absence of a pleader or officer on behalf of the prosecution or the personal attendance of the complainant is necessary to proceed with the case and he is absent. No doubt the presence of the complainant is required only for adducing evidence. If the ‘hearing’ mentioned in 256(1) and 254(1) is the hearing of arguments, presence of counsel is sufficient to comply with the requirement. Even if the complainant is absent, the counsel can very well argue the case of the prosecution. There is no need to acquit the accused because of the absence of the complainant in such a situation. Only when the case is posted for taking evidence and the complainant remained absent the case cannot be proceeded with, without the presence of the complainant. Unless it is posted for evidence the absence of complainant makes no difference. It has been reported in 2008 (4) KLT 16 that the presence of the complainant can be insisted only if the progress of the case demands such appearance. So the acquittal of accused is intended and recommended only if the complainant failed to appear for evidence. As seen reported in 2005 (1) KLT 57, the proviso to S.256 gives a judicial discretion to the magistrate to form an opinion about the necessity of the personal attendance of the complainant in a given situation and then to proceed with an adjournment or to acquit the accused.

The position would become clear if we look into S.251Cr.P.C. which says that immediately on appearance of the accused the plea is to be recorded and to ask him whether he has any defence to make. Asking the accused, whether he has any defence to make at that stage does not mean that an opportunity is being given to him to adduce his evidence at that stage itself. But it has been held so in the decision discussed here. Making of defence is not adducing evidence. What he is being asked is whether he wants to contest the case or he pleads guilty. If the intention of the legislature would have been to enable the accused to seek an early disposal on whatever grounds, necessary provisions would have been incorporated like Ss.227 and 239 as is seen incorporated in session trial and warrant trial respectively. It has been reported in 2005 (1) KLT 80 that the accused has no right to take his defence by producing any document at the stage of hearing, even u/S. 239. Even if, for argument sake, it is agreed that the decision is correct to the extent that the accused in a summons trial case has an opportunity to make his defence, immediately after recording the plea u/S. 251 and the prosecution is to be heard u/S. 254(1) of such evidence, that would not make any change in the meaning of the word ‘hearing’ appearing in S.256 and the accused cannot be acquitted on the date of such ‘hearing’. It still means the next posting date on which the presence of the complainant is necessary, ie., no doubt for evidence.

The apprehension in the judgment regarding the right of the accused to bring the patent defects in the prosecution in the early stage is of no value. Because acquittal of accused u/S. 256(1) is applicable only to summons cases instituted on the basis of a private complaint and not in a case charge sheeted by the police. Before taking cognizance on a private complaint the magistrate himself is conducting a thorough enquiry u/S.202 Cr.P.C. and would take cognizance only if a prima facie case is made out. In such circumstance there is no need to enable the accused to have an early opportunity of being heard.

But the accused can very well bring the patent defects in a summons trial case instituted by the police u/S.258 Cr.P.C. As per S.258, in a summons trial case instituted otherwise than on private complaint the accused can bring home any patent defects even before the commencement of prosecution evidence or during the pendency of prosecution evidence and can claim for stoppage of further proceedings and consequential reliefs. If the legislature would have an intention to provide this opportunity to the accused in private complaints also, S.258 would have been so drafted.

It is seen from all these provisions that an abounded caution had been given by the legislature while incorporating the earlier provisions. From all these provisions it is wise to hold that an accused in a summons trial case has no option of being heard in between the recording of plea and the prosecution evidence. The next step which is provided in a summons case after recording the plea is taking evidence as stated in S.254(1).

Since these are all the meanings and interpretations which can be attributed to the word hearing, I hesitate to agree with the verdict of Hon’ble High Court of Kerala reported in 2010 (4) KLT 697. Especially when, the Hon’ble Apex Court and various other High Courts have confirmed, through numerous decisions that the acquittal of accused is justified when the complainant failed to appear for evidence. This verdict may trouble the Trial Courts in dealing with the trial of summons cases. So also it will confuse the lower courts as to when exactly the accused is to be acquitted u/S.256 (1), whether it is at the time of evidence or at any previous stage. 

If the decision reported in 2010 (4) KLT 697 is treated to be the correct law, the following would be the consequences.

1. In every summons case, either private complaint or police charge case, there must be a stage of ‘hearing’ in between the date of recording of plea and the date  of commencement of prosecution evidence which was not really intended by the legislature.

2.  Accused can be acquitted u/S.256(1) only when the case is posted for such ‘hearing’ and not thereafter.

3. The  accused  cannot be  acquitted u/S.256(1)  even  if the  complainant remained absent for a pretty long time after such ‘hearing’. Not for a long time but forever.

4. Once the complainant has appeared at the stage of such ‘hearing’ and thereafter absenting continuously, there is no provision in the Code to put an end to the case.

5. The court as well as the accused has to keep on waiting indefinitely for the complainant’s appearance and then to his evidence.

6. A fraudulent complainant can drag his case indefinitely so as to put pressure on the accused to stoop before him.

7. If the complainant could so drag the case indefinitely the accused will be denied of his right of speedy trial.

Procedure code, whether it is civil or criminal, has been enacted for fast, feasible and convenient trial of cases. We can find similar provisions in the Civil Procedure Code also, which enables the court to dismiss the suit in the absence of plaintiff for adducing evidence. The effect of such dismissal would be setting free the defendant like acquittal of accused in criminal case. These provisions, civil as well as criminal, are in fact intended to restrict the accused/defendants from being harassed by fraudulent complainants/ plaintiffs.

The object of incorporating provisions like S.256 Cr.P.C. is to avoid dragging of cases by fraudulent complainants. It is quite unfortunate to see that the above said object as well as the other relevant provisions and earlier decisions were not brought to the notice of the court by either of the counsels who appeared in the said case.

I don’t find any plausible explanation throughout the judgment for having been held that ‘hearing’ stated in S.256(1) means early hearing only. There must be a legal support for every interpretation. Hence I opine that the judgment reported in 2010 (4) KLT 697 requires reconstruction on its merit.

A Committee for the Smooth Administration of Justice is the 
Need of the Hour 

(By A.K. Sukumaran, Advocate, Calicut)

While going through the Kerala Civil Courts Act, 1957, we will come across a clear and adoring section in the Act as S.20B. I think we the lawyer's community as the engineers of polity should have a meaningful discussion about this section. I think we should discuss the possibility of such a committee as put down in the above section. So far as we have not discussed such a point in this legal journal, I am putting a humble beginning here for a meaningful discussion to achieve the goal. I think, for the smooth administration of justice a committee reflecting the feelings of Judges, Lawyers, Advocate clerks, Court staffs and the litigant public is needed.

According to S.20B of the Kerala Civil Courts Act, 1957, the Legislature intended such a committee. I am quoting the section here for my discussion.

Section 20B.,  Constitution  and  Functions  of  Committees

(1) The High Court may, constitute a committee for each civil court subordinate to it or for two or more such Courts, 

(2) The functions of the committee may include, among other things,-

   (i) the dissemination by means of publicity, advice and instruction of legal knowledge to the general public;

   (ii) The making of recommendations to the High Court or to the Government, regarding the improvement to be made to the Court buildings, amenities to be provided for the litigant public and the lawyers and other matters of a similar nature.

   (iii) The bringing to the notice of the High Court, the activities of the staff of the Court in the discharge of their duties with a view to stamp out corruption and reporting to the Government specific cases of corruption, if any, for appropriate action; and

   (iv) The provision of facilities for the closer association between the members of the Bar and the Bench in considering mattes of common concern.

(3). The Committee shall discharge such other functions as are assigned to it from time to time by the High Court.

(4). The rules regulating the constitution of committees shall be such as may be prescribed by the Government in consultation with the High Court.

From the above provisions of law the Committee shall be constituted by the Government in consultation with the High Court. So far such a demand was not raised from any quarters. According to me if such a committee is available even at a District Court level, we can avoid friction between the bench and the bar. Lawyers are officers of the Court, helping the Judge to administrate justice in a fair manner with utmost cordiality. So also the committee can give suggestions and recommendations with regard to the improvement of the Court buildings and amenities to be provided to the litigant, public and the lawyers etc. So also, as suggested by the section to a certain extent we can stamp out the corruption in this field by including Judicial staff and Advocate clerks in the committee.

I think we can have a discussion with regard to the proposed committee here to get valuable suggestions from different quarters. According to me the  Principal District Judge shall be the ex officio chairman of the committee and the Chief Judicial Magistrate the member secretary of the committee, the major Bar Association President will be one of the ex officio members of the committee. The District Collector or the Deputy Collector shall be one among the ex officio member of the committee. The Superintendent of Police/the Commissioner of Police or the Deputy Commissioner of Police shall be one of ex officio member of the committee. The Executive Engineer, P.W.D., shall be one of ex officio member of the committee. A senior member having a standing of 25 years or more from the entire Bar in the District shall be a member of the committee. According to me he/she shall be elected unanimously or by contest from the members of the Bar for a period of three years. So also a lady member having standing of more than 10 years shall also be member of the committee and she shall be selected or elected unanimously or by contest from among the members of the Bar. There shall be one member from among the Judicial staff. He/she shall be selected or elected unanimously by contest from among the judicial Staff members. And he/she shall have at least 5 years service as a Judicial Staff. One member shall be selected for the Registered Advocate Clerks unanimously or by contest for a period of three years. A member of the public or the litigant public shall be there in the committee who shall be an accredited social or political worker, who shall be nominated by the Government in consultation with the District Judge and his tenure may also last for a period of 3 years.

The tenure of the committee is for a period of 3 years from the date of its constitution and the ex officio member shall hold the post till he retains the official capacity. After that his/her successor will hold the post for the remaining period of the committee. The other members will hold their post for a period of 3 years and in the meanwhile if there is any resignation, removal, death of such a member, a successor shall be elected by the very same process by which they were elected for the remaining period of the committee. This committee shall be reconstituted for every three years. There shall be some ministerial staff and office for the functioning of the committee and it shall be accommodated at the Principle District Court Centre.

The Chairman, the Principal District Judge shall supervise and preside the meeting of the committee and he also has to supervise the election of the members of the Bar, members of the Judicial Staff and members of the Advocate Clerks. The committee shall meet at least monthly and if in urgency at any time with notice to all the members at least 3 days ahead of the meeting. The member Secretary shall co-ordinate the committee and its functions and hold the meeting by sending communications to the members. The decision of the committee shall be the majority decision of the committee. The committee shall give its report for every 6 months to the Government and to the High Court.

The committee shall function in accordance with the Rule made by the Government in consultation with the High Court and never interfere in judicial function of the Court and in any way hamper the administration of justice. It will be a counter productive.

Unwed  Mother's  Maintenence

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

A Tamilnad Family Court granted maintenance to one Patchaiammal. She claims one Velusamy married her in 1986. Velusamy claims she is not his wife. So, the matter reached before the Supreme Court. During the argument, Justice Markandey Katju, heading the Bench, told Velusamy’s counsel the following. “You spent 14 years with her. She lost her youth. You do not want to pay anything to her. She might not have been legally married to you. But you have an obligation”. The Bench appointed a senior counsel Jayant Bhushan to assist the Court. This is reported in 2010 (4) KLT 284 (SC) - Velusamy  v.  Patchaiammal). 

The philosophy of maintenance is that no dependent shall starve for food, cloth, shelter and other necessities. So, husband has to maintain his wife, father has to maintain his children and son has to maintain his parents. Law permits to maintain his illegitimate child. An unwed mother is denied maintenance. Life partner like concubine, and girl friend comes under unwed mother.

In the Indian context, there are two types of wives-legally wedded one and society accepts a woman as the wife of a man. Maintenance is not a problem to a legally wedded one. In the latter cases, various High Courts have found long company of a woman with a man equals wife and husband and granted maintenance. Law permits maintenance to illegitimate child. Why the same privilege denies to unwed mother. So, a concubine or girl friend or any other name called, deserves maintenance from her man.