My First Appearance

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

I  find myself with something to tell you at the age of 82 (pushing),  from my ‘antique collection’. Let me tell you of a biginner’s luck, a story within a tale. Let me tell you of a Judge who did not maul a raw junior Advocate; of a Judge who never suffered from shoot-out phobia;  of a Judge who never was a repellant of junior Lawyers; of a Judge who was not a whip-cracking adventurer; of a Judge who never indulged in harsh response to counsel’s arguments; who never was a “finger-happy’ Judge, who never issued a gag order on the advocate; who never allowed any ‘special protocol’ audience to any lawyer.

I was enrolled as Advocate, in the High Court of Judicature at Madras, on the 19th day of July 1954, before the Division Bench,  comprising the Hon’ble Mr .Justice P.V.Rajamannar, Chief Justice, (under whose tenure as Chief Justice, the Madras High Court’s foot-print expanded),  and the Hon’ble Mr.Justice N.Rajagopala Aiyangar, later, Judge of the Supreme Court of India.

On the evening of that day, my Senior, Advocate Sri. Ayilliath Achuthan Nambiar, entrusted me with a case file of a Civil Miscellaneous Appeal, and said: 

“This C.M.A. is posted for admission hearing tomorrow before Mr. Justice N.Somasundaram. You appear, You may study the facts of the case. But don’t you worry. You may not have to argue on merit. When the case is called, stand up and submit:

“My Lord, this appeal is against an order of remand”. That’s all.  It will be admitted,  and notice and interim stay ordered. You may not find any difficulty”.

Was it that simple to my complicated and confused mind and shivering frame at that stage. To my Senior, a lawyer with a price band, advocasy was like piano to Beethoven.    My Senior further explained and told me that in those days,  in the Madras High Court,  all CMAs, under S.104 read with O.43 R.1 (u), of the Code of Civil Procedure, were automatically admitted and stay ordered.  I understood the point, but could not unshackle the inner paradox.

I studied the brief in the night. The simple facts and features of the case looked simple and straight-forward.  Moreover, it was not necessary, according to my Senior, to narrate them at the admission stage. But the second part was difficult;  that is,  to remember to say: “My Lord, this appeal is against an order of remand”. I repeated it several times almost the whole night, to reduce it to a cilche. I felt like preparing for a quiz Olympiad. The C.M.A. was my first sleep-depriving brief.

The next day:

I was seated in the front row of Court VI. I felt as though I was waiting to ascend  Mount M.K. Nambiar. The C.M.A. was item number 13 in the Cause List for admission.  I was afraid of No.13,  just as I was of Friday and the black cat. Our office para-legal assistant Sri.Krishnan, experienced, efficient and intelligent, was standing behind me. By the time ten items were over, my mouth was becoming drier and drier, and I felt,   if I were to stand up, my legs would be tottering. I felt like living dangerously. I was wondering why I chose to be a lawyer.

From behind me, Sri.Krishnan said: “This is our case”. I stood up, feeling as if the ground beneath my feet was ablaze, and said:  ‘My Lord, this appeal is against an order of remand’. Mr. Justice Somasundaram: “Remand ?,  you said. Yes. Notice and interim stay”.    That was my big moment; my first tryst with advocacy, which, my Senior used to say, is wireless connectivity.

What a stupendous success. I came out of the court hall with Sri.Krishnan. Outside, Sri.Krishnan told me:  “Good. But, thank God, the Judge did not hear you fully.    The Judge only heard the last word  ‘remand’, because no other word was audible to him. But, I heard you say:  “My Lord, this order is against an appeal of remand”. Don’t you worry. I shall not disclose this to the Senior”.

Thus ended the bits and pieces of my first advocacy. The order in the CMA was a great escape for me.

This aged lawyer still continues, not for pride alone;  he still enjoys the colours of his sound. He remembers this day that age. In those days there was quality co-operation between the Bench and the Bar. The Bar and the Bench represented all virtues. The legal profession was not an out-post of judiciary. In that age, there was no import of the so-called ‘enriched advocacy’; advocacy was not commercial gold dust. In those days, there was no privileged devotees of Judges; and advocacy was not shajan on stringe. Everybody knew that the greatest idols were made of clay. Today, every lawyer holds a glass half-full only. Nobody remembers that advocacy is an open-book examination, not memorised essays. A lawyer today is an Internet Explorer. I hold the view that class-room black-board is far better than desktop, laptop, or cell-top culture. A lawyer today adopts sandwich method of advocacy. These are days of ‘missile’ advocacy, by brief-harvesting lawyers.   Nobody seems to realise that advocacy is not  ‘Vodafone ta ka dhi mi “.

This writer continues, from beginner, feeling as above, to ‘day trader’,  as now, feeling pride that he holds certificates of Graduation arid Post-Graduation,  in Arts and Law,  signed by no less a person than Vice-chancellor (of the then University of Madras) Dr.Arcot Lakshmanaswamy Mudaliar, and had the privilege of appearing before that great Chief Justice, Chief Justice Sri.P.V.Rajamannar,  of the High Court of Judicate at Madras. With this huge ago, and contentment that I have done more than expected, and got more than expected, I live on, not caring to know ‘how old is too old’, and how safe is the next generation legal profession. Why not I enjoy a holiday everyday. Would anybody tell me ‘how much is too much’; and could I, a lawyer,  have a life beyond labels. 

The Full Bench Decision in Southern Structurals Ltd. v. K.S.E. Board, 

2008 (1) KLT 105 (F.B.) So far as it overrules Afcon’s case,

 2007 (1) KLT 196 Requires Reconsideration

(By K.L. Varghese, Advocate, Ernakulam)

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2007 (1) KLT 196) a learned single Judge of our High Court (Hon’ble Mr. Justice R.Basant) had occasion to consider the question “does the law, even after the introduction of amended S.89 into the Code of Civil Procedure permit, tolerate or enable the court to compulsorily refer the parties to arbitration even without their consent and against  their volition?”. The answer was in the affirmative, of course with a caution against indiscreet references. 

The judgment running about 75 paragraphs spanning 32 pages of KLT, though dictated in the open court, was after argument on number of days and lot of research on a point without much of precedents.   Before narrating the facts and expressing own opinion, the learned Judge in para. 2 had put in black and white thus, “When the question was raised initially ……...,  it was considered ridiculous and blasphemous that the court can even think of having such a  power.  Having heard the counsel in detail, I am satisfied that the question deserves to be considered in depth”.   The encomium expressed in the penultimate paragraph of the judgment makes out that the learned Judge had applied his mind. Moulding ten contentions out of the many scattered ones presented and with an analytical study of the subject with reference to two Law Commission reports, Justice Malimath Committee report and almost century old reference from Mustill & Boyd on Commercial Arbitration referring to Common Law Procedure Act then in force in England apart from the decisions of the Supreme Court and our High Court then available and considering the background compelling the Parliament to amend Civil Procedure Code and reincorporate S.89 into C.P.C. and so on, would definitely evince that it was after much deliberations at the Bench and  loud thinking, the learned Judge has come to his conclusion. However, the matter has been taken to the Supreme Court and is now pending consideration in S.L.P. (C) No. 760 of 2007. In the meanwhile, the said decision was referred to in Southern Structurals Ltd. v. K.S.E. Board (2008 (1) KLT 105 (F.B.)) before the Full Bench probing into the question whether “a Writ Petition can be maintained to enforce arbitration without arbitration clause”, notwithstanding the fact that the decision in Afcon’s case is purely on the scope of S.89 of C.P.C. and the question raised was “whether S.89 does permit, tolerate or enable the court to compulsorily refer the parties to arbitration even without their consent and against their volition”.  The Full Bench has overruled the decision in Afcon’s case. In all sense of humility I should say, a glance at the Full Bench decision shows that regarding Afcon’s case there was no proper deliberations before the Court on the point and it seems, the Court  was not aware that the said decision had been pending consideration by the Supreme Court.  

When I read the notification of the Civil Procedure (Alternative Dispute Resolution) Rules, 2008 which appears in 2008 (2) KLT Kerala Statutes P. 17. I thought, I have to share my views with others, since I strongly feel that the Full Bench decision, so far as it overrules Afcon’s case, requires reconsideration.

In R.5 of the Civil Procedure (Alternative Dispute Resolution)  Rules, 2008, with regard to the procedure for reference by the court to the different modes of settlement, under sub-rules (f) and (g) arbitration is considered as one of the modes of settlement of the disputes. Sub-rule (f) stipulates that ‘where there are more than two sets of parties having diverse interests and some of them opt and agree to resolve the dispute between them by arbitration ……….  they shall apply to the court within 30 days of the direction  under cl.(b) of R.3 (where under court has to formulate the terms of settlement, give them to the parties to submit their observations and reformulate the terms of a possible settlement and direct the parties to opt for one of the modes of settlement of disputes outside the Court)  and court shall, within 30 days refer the matter for settlement in the manner agreed by the parties’, if the court is of opinion that it is possible.  Sub-r.(g) which follows and has much significance is extracted hereunder which is self speaking:

“(g) Where there is no consensus among the parties as to the mode of settlement, the court shall, after affording to the parties an opportunity of hearing, persuade the parties to arrive at a consensus as to the mode of settlement and if the parties are not able to arrive at a consensus as to the mode of settlement, consider whether the matter can be referred for decision by arbitration, if one of the parties is willing for settlement by arbitration as provided under cl.(f) above”.    (emphasis supplied)

Coming back to Afcon’s case, not much of intellectual exercise is required to understand that the pith and substance of the decision is in tune with the spirit of sub-rr.(f) and (g) of R.5 of Civil Procedure (Alternative Dispute Resolution) Rules, 2008.

True, there can be divergent opinions as to whether the decision of the Single Bench is correct or the Full Bench is correct, but the fact remains, unless Full Bench decision is reversed so far as it overrules Afcon’s case or clarified, courts will find it difficult to exercise the power under sub-r.(g) of R.5 of Civil Procedure (ADR) Rules, 2008.  

The reasons compelling me to think in this line are the following:

1. I fail to understand why Afcon’s case was quoted by the learned counsel for the petitioner (that too apparently a designated senior counsel) before the Full Bench to support his contention. How the reasonings rendered by the learned Single Judge relating to scope of S.89 of C.P.C. and its power to compel recalcitrant party to go for arbitration in a case filed before a Civil Court under C.P.C. would lend support to Writ Petitioner to canvas the point regarding the power of the High Court under Art.226 of the Constitution remains obscure. Evidently, the Full Bench has negatived the contention relying on Travancore Devaswom Board v. Panchamy Pack (P) Ltd. (2005 (1) KLT 690 (SC)) which governs the point of law and is binding on all under Art. 141 of the Constitution.  In such circumstances there was no warrant for referring to Afcon’s case at all for support on the point in question.  Moreover, the Full Bench has expressly stated, “We are not called upon to examine the scope of S.89 of the Code of Civil Procedure in this case”. If so, how the Full Bench could hold that the said decision in Afcon’s case is no more good law also remains obscure.  Of course, Full Bench has referred to Supreme Court decision in Jagdish Chander v. Ramesh Chander & Ors. ((2007) 5 SCC 719). A glance at the said decision shows that it is only obiter. Para 10 of the said decision shows that the Apex Court was dealing with cl.16 of a partnership agreement requiring the partners to “ mutually decide the dispute” or “refer the dispute to arbitration” . Referring to  S.11 of the Arbitration and Conciliation Act, the court  said that ‘though the power under S.11 has been held to be judicial power, the proceedings relate only to appointment of Arbitral Tribunal and disputes are not before the Chief Justice and therefore S.89 C.P.C. has no application’. It is in that context Court said,

  “ ……. It should not also be overlooked that even though S.89 mandates courts to refer pending suits to any of the several alternative dispute resolution processes mentioned therein, there cannot be a reference to arbitration even under S.89 of C.P.C., unless there is a mutual consent of all parties, for such reference……” 

It may be pointed out in this context that the above said decision conflicts with another decision in Sukanya Holdings (P) Ltd. v. Jayesh Pandya & Anr. ((2003) 5 SCC 53) of a bench of equal strength which held in para.18 thus:

“In our view, S.89 C.P.C. cannot be resorted to for interpreting S.8 of the Act as it stands on a different footing and it would be applicable even in cases where there is no arbitration agreement for referring the dispute for arbitration”.          (emphasis supplied) 

Naturally it requires an authoritative pronouncement by a larger bench. Besides, the decision in Afcon’s case is pending consideration before the Apex Court. 

2.   The statement of objects and reasons for bringing out the C.P.C. Amendment Act 1999 inter alia states, “with a view to implement the 129th Report of the Law Commission of India and to make conciliation scheme effective, it is proposed to make it obligatory for the court to refer the dispute after the issues are famed for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat.  It is only after the parties fail to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall proceed further in the court in which it was filed;”  (emphasis supplied) The intention behind the amendment does not require any explanation; suffice to say, arbitration is also envisaged as an effective mechanism of ADR at par with the three other modes. 

3. Apart from the 129th and 163rd Reports of the Law Commission referred to in Afcon’s case (in para. 37), the Law Commission of India, 176th Report 2001 is also eloquent in this context which reads as under: 

“S.89 empowers the Court to refer matters to arbitration if the Court thinks that a settlement is possible.  This power under S.89 does not depend on the agreement of parties. On the other hand, the 1996 Act deals with reference to arbitration under an arbitration agreement.  As and when the provisions of S.89 come into force, the reference by the Court will be governed by the provisions of the present Act, 1996, so far as may be, as provided in S.89 itself”. (emphasis provided). The Report is self speaking. 

4. The finding of the Full Bench reading ….”Code of Civil Procedure deals with procedure matters dealing with a mechanism for enforcement of substantial rights. Procedural provision cannot be allowed to take away substantive provisions of law” ….seems to be overlooking the following salient points:

(a) It is the same C.P.C. which under S. 9 confers power on  courts to try all civil suits  subject to the restrictions under Ss. 10, 11 and the like.

(b) It is the same Code which provides substantive right to the citizen to approach the Civil Court for enforcing his rights and confers power on court to summon the opposite party and compel him to face the trial if he raises dispute to the plaint claim.

(c) It is the same Code which confers power on the court to pass judgment binding on the parties and execute the same, whether the loosing party likes it or not.

(d) It is the same Code which provides right of appeal to the aggrieved party.

(e) The same Code confers power on the court  to award interest and powers for coercive steps like injunction, attachment, arrest and detention to compel the recalcitrant party to obey the rule of the court and also empowers court to award compensation to such party if such power is occasioned to be misused and opposite party is unnecessarily troubled.

(f) It is the same Code which confers vast interim powers on the court to meet any situation while dealing with the suit,  for  ends of justice

(g) Such powers of the court binds the State and Central Government also because of the provisions of the same Code.

It is therefore clear that if the Code of Civil Procedure can confer jurisdiction on courts for the above matters there is no reason why the same code cannot confer jurisdiction upon the court to refer the parties to arbitration in fit cases even if there is no arbitration clause, as is now clear from the Rules mentioned above. In this context, it is apposite to refer to the decision of the apex court in Vareed Jacob v. Sosamma Geevarghese & Ors. (2004 (2) KLT 649 (SC)) which unambiguously states, “The Civil Procedure Code, 1908 applies to all proceedings in courts of civil jurisdiction, subject to any special or local law or any special jurisdiction under any other law for the time being in force. The main feature of the Code is its division into two parts. The main body of the Code consists of sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised”.   (emphasis supplied)

5. There is a finding by the Full Bench reading …”When a special law like the Arbitration and Conciliation Act, 1996 dealing with arbitration provides for a form of adjudication of certain matters, procedure like C.P.C. cannot make any inroad to the special statute and Court must resist the temptation to impose anything on an unwilling party especially when dispute is purely a private dispute, however strongly court feels the dispute be resolved at the earliest using alternate dispute resolution mechanism. ……………Arbitration agreement is entered into between the parties only if they mutually agree to refer the dispute for arbitration.  “Meeting of minds”, consensus of ad idem is a prerequisite factor before referring a matter to arbitration”. This observation, I am afraid, is ignoring the following aspects:

(i) There are special statutes like Co-operative Societies Act, Indian Telegraph Act, providing for arbitration (as dealt with in Afcon’s case in para 34 of KLT). Arbitration is provided under S.18(3) of the Micro, Small and Medium Enterprises Development Act, 2006 also.  The very fact that there are statutes prescribing for statutory arbitration ‘notwithstanding likes and dislikes of the parties’, for which also the Arbitration and Conciliation Act, 1996 is applicable (See S.2(4) of the Arbitration and Conciliation Act, 1996 and S.18(3) of the MSMED Act also) which shows that ‘mutual consent’ which was once considered to be a pre-requisite for arbitration, cannot now be said to be a mandatory requirement for all arbitrations.

(ii) If Micro, Small and Medium Enterprises Development Act, 2006 can confer on the Council functioning under the said Act power ‘to take up the issue for arbitration or refer it to any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act shall then apply notwithstanding likes and dislikes of the parties (also refer Asiatic Rubro Complex v. K.M.S.E.F.C., 2008 (2) KLT 264), naturally the question arises why legislature cannot confer the same power on court of law under S.89 of CPC. If that is possible under the Micro, Small and Medium Enterprises Development Act, definitely it should be possible under the provisions of C.P.C. as well. Of course I have seen decisions to the effect that the Code of Civil Procedure deals with procedural matters and not with substantive rights. However, in view of the recent pronouncement of the Supreme Court in Vareed Jacob’s case (supra), old decisions should pave way for the new one. 

(iii) Once reference is made to arbitration under S.89 the application of the provisions of C.P.C. stops there and Arbitration and Conciliation Act, 1996 takes over which is clear from S.89(2)A of C.P.C. This also shows that if ‘mutual consent’ is the criterion for arbitration, the incorporation of S.89 has no place at all in the Code (though the constitutional validity of the Act was upheld by the Supreme Court in Salem Advocate Bar Association’s case (2002 (3) KLT 920 (SC)) because such mutual consent will enable court to make a reference even without the support of S.89.   

It is in the above background sub-r.5(f) and (g) of Civil Procedure (Alternative Dispute Resolution) Rules, 2008 which apparently has the Full Court concurrence and approval of the State Government, assume importance. If it is meant that sub-r.(g) has to be enforced by the courts, the finding of the Full Bench overruling Afcon’s case has to be reconsidered.  

 I may also point out that even though S.89 was incorporated into the Code in 1999 and years have passed, how far we could utilize the machinery for resolving the disputes instead of waiting at the corridors of civil courts lamenting on the fate of the litigants who are forced to wait, everybody should think about. I am also conscious of the fact that there can be challenge against the very sub-r.(g) of R.5 on the ground that those rules run against the Full Bench decision in Southern Structural’s case (supra). All that I have to say is, it is easy to destruct but not so easy to construct as the good old saying goes. At the same time, I should also hasten to add that the age old apathy towards arbitration and arbitral awards is getting vanished because of the safeguards provided by the Arbitration and Conciliation Act, 1996.  A glance at the Act clearly indicates that unlike in the earlier Acts, importance is given to party autonomy in fixing the procedures to be followed and sufficient safeguards for the litigant to ensure a fair and speedy remedy. The statutory duty under S.11 of the Act to appoint independent and impartial arbitrator duly qualified as stipulated in the agreement, bounden duty of the arbitrator to disclose to the parties circumstances which would give rise to justifiable doubts about his independence or impartiality (S.12), challenge procedure providing sufficient safety valves under S.13,  competence of arbitral tribunal to rule on its jurisdiction (S.16), power of arbitrator for ordering interim measures for  protection of the subject matter of the dispute (S.17), duty of the arbitral tribunal to treat parties equally giving full opportunity to present their case (S.18), party autonomy to fix procedure to be followed by the arbitral tribunal  (S.19), party autonomy to fix place of arbitration and language (Ss.20 and 22), parties’ choice to insist for oral hearing or written proceedings or presentation of evidence or oral argument and duty of the arbitrators to give sufficient advance notice of hearing (S.24), steps to be adopted in case of default of a party (S.25), facility for appointment of experts (S.26) and court assistance which could be sought for in case of need of evidence from third parties (S.27),  mandatory requirement of giving speaking award unless parties agree (S.31), provisions for correction and interpretation of award or additional award (S.33) etc. would convince everybody, I hope, that there is no room for any anxiety in the arbitral proceedings or its outcome which always would facilitate quick justice, quality justice and inexpensive justice which are paramount concerns of every one.

Demand For A Bench At Trivandrum

(By Anzil Zacharia, Advocate, Pathanamthitta)

This is with reference to (i) the opinion of a former Advocate General of Kerala that the advice of Chief Justice of the High Court regarding establishment of a bench away from the principal seat of the High Court is unsurpassable (ii) the opinion of IP. Kelu Nambiar, Sr. Advocate that the view of the former Advocate General does not have the backing of any constitutional or statutory provision (vide 2008 (1) KLT Journal 57)

The Sr. Advocate further said that when the State Government expressed its opinion that there should be a permanent bench at Trivandrum it "has to persuade the Central Government to accept their view and act accordingly". His criticism of the view of the former Advocate General went to the extent of castigating him that it "is not fair and proper to venture views without properly studying the aspect concerned".

While analyzing the legal provisions of any statute it is advisable to advert to the interpretations made by the Supreme Court or even by the High Court, if available, on such provisions. No statutory provision can be understood de-hors the interpretations placed on such provision by the constitutional courts. If interpretation .has emanated from decision of the Supreme Court, its binding effect is as provided in Art. 141 of the Constitution.

In the year 2000, the Federation of Bar Associations in Karnataka approached the Supreme Court for a writ of mandamus to be issued to the Union of India for establishing a permanent bench of Karnataka High Court at a suitable place in the northern part of the State. The Supreme Court then considered the scope and ambit of S.51(2) of the States Organization Act 1956, which reads thus:-

"The President may, after consultation with the Governor of a new State and the Chief Justice of the High Court for that State, by notified order, provide for the establishment of a permanent Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith".

The Apex Court made the following observations in that case regarding the value of the opinion of the Chief Justice envisaged in the aforesaid sub section. "As the Chief Justice of the High Court concerned is the important consultee in the matter of establishment of a Bench of the High Court, he being the head of that High Court, has to form an opinion when it is required during such consultation process. Normally the Chief Justice will not be guided by any political or parochial considerations. When he gives the opinion it is the opinion of the High Court and not merely his personal opinion"

On the question whether President of India can act contrary to the opinion of the Chief Justice of the High Court, learned Judges of the Supreme Court observed thus:-

"The High Court is the best suited machinery to decide whether it is necessary and feasible to have a Bench outside the principal seat of that High Court. If the High Court does not favour such establishment, it is pernicious to dissect a High Court into different regions on the ground of political or other considerations. So it is out of the question to decide for establishment of a Bench outside the principal seat of a High Court contrary to the opinion of the Chief Justice of that High Court which has been formed after considering the views of his colleague Judges"             (underlining supplied).

Willy-nilly, the above observation has to be followed for understanding the ambit of S.51 (2) of the Sates Re-organization Act 1956.

In my opinion the statement made by the former Advocate General of Kerala was in accordance with the constitutional and statutory provisions as interpreted by the Supreme Court of India.

2007 (4) KLT 268 -- Radha Sashidharan v. State, Appellant's Reprieve Only?

(By P. Rajan, Advocate, Thalassery)

Factual Matrix: Appellant, in the case mentioned above was a nurse by profession but claimed to be and pretended as a Doctor, deliberately, knowing such representation to be false, as the facts reveal; administered penicillin injunction without any prescription and | test dose; resulted in the death of the victim, who was misled by the fraudulent claim of the 'doctor' turned nurse. The dose of medicine became fatal and final as the victim patient was concerned, who was lured by the false claim. This paved way for the crime and trial. ! The charges levelled against the appellant were U/Ss. 491, 420, 468, 471 of IPC, but the trial Court convicted the appellant U/Ss. 419 and 304 IPC only. On appeal by the indictee, the Hon'ble Kerala High Court, allowed the appeal and set aside the conviction, mainly due to the reasons stated in Paragraphs 5, 6 and 27 of the reported judgement—personation as defined U/s. 419, is not proved by the prosecution; S.328 IPC cannot be taken as a minor offence, instead of S.304, Part II I.P.C., further offence U/s. 304 is not proved, though contended by the State, as S.304 I.P.C., found to be inapplicable, on evaluating the evidence.

Legal ramifications: Prosecution unambiguously proved that the appellant was not a qualified doctor and she was only a nurse by profession. Evidence is irrefutable, as the ruling reveals, in this regard. The learned Judge, also accepted this portion of the prosecution version as the findings disclose, and further held that such false claim resulted in harm of the person and body of the deceased which amounts to cheating as contemplated U/s.420 IPC, on such facts established. But High Court, contra, held that, having not done any act of cheating by personation conviction cannot be converted to U/s. 420 I.PC, as S.222 Cr.P.C. is an embargo. Further, charge U/s. 304 IPC. also is unsustainable as death is not the direct consequence of administration of an unwholesome drug, by the appellant-thus the findings and judgment of the High Court.

True, the difference is subtle regarding intention and knowledge as needed to apply S.304 I.P.C. in certain cases, considering the facts available; but attempt begins when preparation ends, often. It is in evidence, in the case reported, that the appellant was having inept experience and her words and deeds were nothing but proof of mismatch, turned out to be misnomer. The learned Judge has not applied S.419 IPC, either; though minor an offence, compared to S.420 I.P.C, since appellant has not given a different name instead of Radha Sashidharan which is her real name. Here, it is not the name that matters but the claim she has made to lure a person for imparting medical aid. Name, bogus may play vital role in certain type of offences defined U/s. 419 I.P.C.; like an offence of forgery but here, her self-claimed status is under challenge and found against; thus name is irrelevant but the prefix is the crux, which arose for consideration. In short, name of the impersonater is immaterial; nomenclatures propagated, wooed the victim. Name given; which is real or not, ought not have been considered, as what is there in the name of a cheat, great Shakesphere, even would not have visualised, of this sort of legal eventuality, when posed similar query even prior to the introduction of the Penal Code. Name of the game of the party is fraud and nothing else, in the case decided and reversed the trial court's finding, by the High Court.

There is no controversy regarding the points proved by the prosecution, in consonance with the charges but provisions of the penal statute remained varied. Powers envisaged U/s.386 Cr.P.C. for an appellate Court which are wider; to frame proper charges, order re-trial or even can remand the matter, under demanding circumstances. S.466 Cr.P.C. is yet another provision; speaks of defective or even absence of charges which no doubt is a 'saving' provision. These provisions evidently have not been brought to the notice of the Court for proper adjudication of the matter, against the errant appellant, so also a similar case decided by the High Court- remained unnoticed (1989 (1) KLT 695-- State v. Dr. C.K.Bharathan). In this case a Doctor who only had MBBS degree, had shown in his prescription slips, two other degrees which he did not have. Though none complained about the course of treatment of the doctor, he was prosecuted U/s. 420 I.PC, since degrees other than MBBS, he did not obtain. Trial Court acquitted him stating that prosecution failed to prove the vital factor, rather negative aspect - he was not having the degrees he claimed, to have. On appeal the High Court reversed the finding and convicted the accused, doctor. Hon'ble Justice K.T. Thomas (as his Lordship then was) also observed, that deterrent sentence is warranted in such cases, to scare bogus degree holders, practicing medicine.

Apex Court, of late is certain, like no innocent man should be punished, similarly on the other hand, to see no person who committed an offence, should go scot free (AIR 2002 SC 1965), Stare of Madhya Pradesh v. Dayal Sahu (2005 (4) KLT 426 (SC)). ruled - irrelevant circumstances or mere technicalities, are no ground to order acquittal. Criminal trial is not a fairy tale —reminds the High Court in order to put on alert the trial Courts, especially when un-meritted orders are rendered. Despite these dictums and precedent, no provision in the penal statute, even S.304(A) I.PC, came to the rescue of the aggrieved, though culprits culpability is established, Non-quoting or misquoting of provision of law is of no consequence, if accusation is established, and a criminal complaint can even be oral as shown in S.190 Cr.P.C, without showing any provision of law.

Here the appellant is relieved of the indictment unless the prosecution persists the matter further. Sobbing of vanquished victim Sreeja's relatives might have short lived, but last laugh is of appellant Radha Sashidharan, which would be louder too, literally.

Solace: Defeat means Victory Postponed?