Some Thoughts on Voice of Justice

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

“ It is only the pleasure that is derived by virtuous means is pleasure . All others are not only displeasures but also will earn infamy".           

- Thirukkural 

The quoted sentence from Thirukkural is the moral fabric upon which Dr. Justice A.R. Lakshmanan has woven the warp and woof of his voice of Justice . Voice of Justice is the compilation of 116 selected speeches of Dr. Justice A.R. Lakshmanan in the form of a book. It has been published by Universal Law Publishing Company, at an affordable price of Rs. 550 per volume. The book has a forword written by Dr. Manmohan Singh, Prime Minister of India followed by another forword that of then Chief Justice of India Y.K. Sabharwal. The book is extremely reader friendly, which can be chewed and tasted effortlessly. It touches on a wider range of topics which will spell- bind the reader on the author’s ability and introspection in gathering such a vast treasure of knowledge and spill it over paper without any word missing its target. The style of writing is simple and straight in a narrative format which shows for sure the grip of the author on the language. The book is a diaspora of topics ranging from constitution, law and justice, human rights, gender justice, law and science, law and environment, cyber law and IPR, criminal law, ADRL System and speedy justice, Human resource and dispute resolution, taxation , spiritualism, academic enlightenment, men and matters, modern India and miscellanies. It all shows that the author is not only a Judge eminent but also a philanthrophist par excellence.

Dr. Justice AR. Lakshmanan, the former Supreme Court Judge had bagged many an award for his outstanding performances and Social out looks. He was the winner of Shiromani Vikas award, Vijay shree award and For the sake of Honour award. He was born in Sivaganga District of Tamil Nadu . He was attracted to Tamil Literature from his childhood. It made him  study Thevaram and Thiruvasagam. He was an ardent follower of Thirukkural. The taste for literature grew further and further when he went into his College studies. When he was elevated as High Court Judge he had great opportunity to work in Tamil Nadu, Kerala , Rajasthan and Andhra Pradesh. During such period ranging from 1990 to 2000 he had delivered lectures on various subjects. The number of speeches would be more than 400. Out of them, 116 have been chosen and written in the form of a book which is Voice of Justice.

Voice of Justice, the catch phrase which is the title of the book has a philosophical touch in it. Voice of justice had been raised and heard from the early days of history. It was well articulated from those days after mankind had learnt civilization. They were recorded by the great men of history. These men were called sages in India, Seers in other countries, teachers in some other parts of the world and saints in some. Generally they are venerated by the term philosophers. The term philosophy means love of wisdom. While knowledge makes man know things, wisdom helps him to understand them. This is the raison detre given by the author in a nut shell to choose the title which shows his love for philosophy.

In the article about constitution, the author declares that it is a collective declaration of the determination of the people of a nation, to live in an orderly fashion for the common good and well being of the whole nation. In another article about the subordinate Judiciary the author emphasises that judicial education and training are not synonymous though they aim at the objectives of judicial competence and efficiency . Education is more concerned with the knowledge and sensitivity, whereas, training involves skills and attitude and professionalism. The two reinforce each other in judicial performance.

On the topic of human rights the author outlines the sketches of constitutional rights, child and Human rights, women and Human rights, prisoners and Human rights , HIV-AIDS and Human rights, refugees and Human rights, and various other challenges to the human rights. The author concludes the topic with the caution that the world is caught up in economic liberalization and global market syndrome. Increasing awareness in the affluent countries for better comforts for their citizens would necessarily result in depriving the human rights in other countries. The more emphasis on the practice of human rights results in equally forceful opposite reaction and there are more and more violation of human rights. But there need not be scope for pessimism, for an honest appraisal of human rights practices would go a long way for giving effect to international treaty or convention rights as well as human rights in the constitution.

Apart from mind boggling legal and social topics, the author has some personal memories and spiritual revelations to ponder over . In the part men and matters, the author describes his reminiscences and relations about some eminent personalities like Justice V.R. Krishna Iyer, Dr. M.A. Chidambaram, Dr. M. Chenna Reddy, Justice B.P. Beri etc. In a short but clean article the author memoirs Justice Krishna Iyer as an institution personified. The author laments that Justice Iyer sans praise and flattery, yet, he borrows the words of William Pitt the younger to quote on Justice Iyer. The author takes the reader for a short break from temporal subjects and leads him into some empirical area of spiritualism. The author has a penchant for Narayaneeyam, Krishna Jayanthi and on the whole for a life in harmony with nature. He concludes one article with the enchanting hymn from Braha daranyako panishad to emulate the mind with right vision and thinking.

The book concludes with the short article on law and Terrorism . It touches on the gruesome assassinations of Mahatma Gandhi, Indira Gandhi and Rajiv Gandhi. The book ends with the deep thought pause of the author like a ripple in a pond. “ The mounting incidents of terrorism called a unified approach and uncompromising measures to tackle it. It requires both domestic as well as international organisations. It has to be dealt with in a concerted manner, by addressing all its dimensions, including smuggling and trafficking in drugs and arms. The paramount objective after all is the security and integrity of a nation that believes in live and let live”.

The author in his articles expresses the firm view that nothing can replace hard work in achieving greatness in any walk of life. The key to success, according to him is hard work and erudite scholarship. He believes that it is only systematic learning that helps one to achieve erudite scholarship. Like the great Scientist Albert Einstein who said “that it is the character that makes a good scientist”, the author also believes that it is the character that makes a good Judge besides knowledge and wisdom. The book is a worth while one, which sheds light on the voice of multitude of the author. Its contents really are surprise a la-carte which ensembles the vision for a bright India. The words of Francis Bacon are apt to focus on the book.

“Some books are to be tasted, others to be swallowed , and some few to be chewed and digested”. 

Law Relating to Maritime Wrecks in India

(By V.M. Syam Kumar, Advocate, High Court of Kerala, Ernakulam)

With the onset of monsoon shipping casualties have increased along the Indian coast line. At least a dozen ships have capsized along the west coast of India this year. Most of them have been registered either in India or in a ‘flag of convenience country’ were the registration requirements are less stringent. These accidents have brought to fore many questions regarding standards for registration of vessels and the urgent need for stringent enforcement of such standards. It has also brought to light the inadequacy of the existing legal provisions in India pertaining to the responsibility and liability for maritime wrecks and their removal.

The problems from wrecks are three fold. First, and depending on its location, a wreck may constitute a hazard to navigation, potentially endangering other vessels and their crews; second, and of equal concern, depending on the nature of the cargo, is the potential for a wreck to cause substantial damage to the marine and coastal environments; and third, in an age where goods and services are becoming increasingly expensive, is the issue of the costs involved in the marking and removal of hazardous wrecks. 

Indian law with respect to wreck is laid down in Part XIII of the Merchant Shipping Act, 1958. Provisions therein have been substantially borrowed from the English statute with some minor changes so as to suit the local requirements. The parent legislation as it now stands in UK deals with the subject more elaborately as could be seen from Part IX of the English Merchant Shipping Act, 1995. 

The International community being convinced of the need for a uniform set of international rules and procedures to ensure prompt and effective removal of wrecks and payment of compensation for the costs incurred for the same, under the auspices of the International Maritime Organization recently convened and adopted an international convention on wreck removal in Nairobi, Kenya. The Nairobi International Convention on the Removal of Wrecks, 2007, (hereinafter referred to as the ‘Convention’) is expected to fill the vacuum in international maritime law with respect to wrecks and their removal. The convention is not yet in force and will be open to signature from November 2007. 

With a long and ecologically fragile coast line bordering international navigation routes and the recent increase in shipping causalities, it high time that Indian statutes dealing with Wrecks are appropriately amended so as to meet the felt necessities of the time. 

This article critically examines the law relating to Wrecks as it stands now in India and compares the same with the recent international developments in the field. 

The Indian Merchant Shipping Act, 1958 defines ‘wreck’ in an inclusive manner so as to take in both ‘goods’ and ‘vessels’ [Sec.2 (58)]. The definition from its very wording cannot be construed as exhaustive as to what constitutes a wreck.  But it mandates that for being treated as a wreck, goods or vessels, are to be found either in the ‘sea’ or in ‘tidal waters’ or on ‘shores’. The term ‘sea’ has not been defined in the Act and hence will have to be understood as envisaged in the Indian Maritime Zones Act. Since the Act does not have extraterritorial application the same will not be applicable to the wrecks in the high sea along the Indian Coast. So ‘sea’ has to be understood as the 12 nautical mile territorial sea measured from the base lines. The term ‘Tidal waters’ has been defined in the Act to mean any part of the sea and any part of a river within ebb and flow of the tide at ordinary spring tides and not being a harbour [Sec.2 (49)]. Interestingly, after having specifically laid down that wreck has to be either in the ‘sea’ or in ‘tidal waters’ or on ‘shores’ Part XIII of the Act dealing with wreck and salvage brings in the concept of ‘Coast’ to denote the territorial limits wherein a wreck can be situated. ‘Coast’ has been defined in an inclusive manner to include the coasts of creeks and tidal rivers [Sec.391]. Thus the territorial limits where a wreck can be located as per the Act are the ‘sea’ or ‘tidal waters’ or on ‘shores’ or in the ‘Coast’. Use of these different terms some of which overlap to a certain extent and some which has been deliberately left ambiguous, creates confusion as to the exact territorial ambit of the provisions. 

Under the Convention, the territorial limits within which the state can take measures for removal of wreck has been specifically demarcated and termed as the ‘Convention area’ which takes in the whole of the Exclusive Economic Zone i.e., 200 nautical miles from base lines. Such a precise adoption of the area of operation appears to be beneficial and clears off much confusion created by synonymous and ambiguous terms. At the same time it is relevant to note that while the Convention only envisages parts of the sea or the ocean as areas of operation relevant for handling wrecks, the Act by mentioning ‘shores’ also takes care of those wrecks or parts of it that floats and are washed off on to the land along the coast. 

The term ‘goods’ has been left nebulous and the Act has not attempted to qualify or confine it to maritime property. So it has to be construed in the wide sense as used in the common parlance. But as to constitute a wreck under the Act, goods have to be those that had been cast into the sea which then sinks and remains under water, or which have been cast or fallen into the sea and remains floating on the surface, which are sunk in the sea but are attached to a floating object in order that they may be found again or those which have been thrown away or abandoned. 

The term ‘vessel’, under the Act includes any ship, boat, sailing vessel or other description of vessel used in navigation [Sec.2 (55)] which has been abandoned without hope or intention of recovery. Thus abandonment is a prerequisite for a vessel to be treated as a wreck. This leaves a question whether a vessel that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the vessel in danger are not already being taken can be termed as a wreck under the Indian law. The insistence on total abandonment without even a hope or intention of recovery clearly shows that a stranded vessel or a vessel that is reasonably expected to sink cannot be termed as a Wreck under the Act. This is a conundrum which has serious practical implications as was recently witnessed in the incident leading to the capsizing of the vessel MV Maria near the Port of Cochin close to the international shipping channel. The definition of Wreck under the Convention includes a stranded vessel and “a ship that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the ship or any property in danger are not already being taken”. The said definition effectively overcomes the difficulty with respect to stranded vessels which still remains unattended to in the Indian law.  

The Act after defining Wreck and related concepts proceeds to elaborate on norms governing the handling of Wreck in Part XIII which also deals with salvage. This coupling of wreck with salvage is prima facie understandable in so far as in maritime law wreck and salvage have always been dealt with and treated as interrelated concepts and as hence fit to be considered together. But the problems underlying such clubbing come to the fore on a deeper appreciation of the provisions of the Act.

Recognizing the fact that wreck is a property of importance which requires to be dealt with systematically and which by its very nature tend to remain res nullis in view of the liabilities that would arise out of the same, the Act provides that the Central Government may appoint a receiver to receive and take possession of the wreck and to perform such duties as envisaged in the Act [Sec.391]. This provision ensures that wreck does not remain unaccounted for or as res nullis and the mischief arising there from is handled by an authority specifically constituted for the said purpose. Apparently for administrative convenience, the receiver thus appointed has been empowered to delegate his powers to any person if so required (S. 391 (2)).

From the said provision it is apparent that the receiver of wreck, is an authority appointed  for different areas as specified in the notification and is a regular official and is not appointed at the time of happening of a maritime causality or upon the formation of a Wreck. The said functions are performed by a concerned officer of the Mercantile Marine Department (MMD) from the local MMD station.

The Act taking cue from the English legislation mandates that the Receiver of wreck within whose limits the place is situated shall upon request from the Master of the vessel stranded or in distress and upon being acquainted with the circumstances forthwith proceed to the place and upon arrival shall take command of the situation and take steps for the preservation of the vessel, its cargo and equipment and the lives of the persons on board. For the said purpose he has the right to take command of all persons present, to assign such duties and such directions to each person as he thinks fit [Sec.392].

It is relevant to note that a vessel in distress and which has been taken command of by a receiver is not a ‘Wreck’ in the sense it has been defined in the Act.  Under the Act for a vessel to be a wreck it has to be abandoned without hope or intention of recovery. It would be erroneous to say that when a request is made by a Master of the vessel in distress to a receiver to intervene and help, the same has to be treated as an abandonment of the vessel without hope or intention of recovery and hence a wreck. So there has to be a positive act of abandonment so as to constitute a Wreck and to empower the receiver to meddle with the same, without which, the service rendered by the receiver to a vessel in distress at the most could only be treated as a salvage act, which may or may not entitle him to claim salvage contribution.

The statute also confers on the receiver certain powers incidental to and necessary for effective performance of his duties like power to pass over adjoining land for the purpose of rendering assistance (S. 393), power to suppress plunder and disorder by force (S. 394), power to investigate into relevant aspects leading to the wreck like the occasion for wrecking (S. 406), power to make immediate sale of wreck (S. 398), power to move the Magistrate for issuance of search warrant where wreck is concealed (S. 401) etc. elaborations whereof may not be relevant for the purpose of the this article.

When a foreign vessel is rendered a wreck along the Indian coast threatening the navigation as well as the coastal environment, the situation throws up numerous legal issues which the law as it stands now is ill equipped to deal with. As seen hereinabove, under the Act so as to constitute a wreck there has to be valid abandonment. A decision to abandon a vessel by its Master as the representative of the owner will be a well thought out decision and after once having abandoned, the owner would be reluctant to claim the wreck in so far as expenses for removal will overweigh the value of the received wreck. So the vessel in many cases will remain unclaimed wreck and if it is a threat the task of removal might fall on the shoulders of the costal state. Hence the need for a legal apparatus for compulsory removal of wreck. 

The Act mandates that any person finding and taking possession of a wreck shall as soon as practicable, if he is the owner of the wreck give notice thereof to the receiver stating the distinguishing marks  and if he is not the owner deliver the same to the receiver [Sec.395]. Though certain penalties are laid down in the Act for violating the notice requirement, fine of a paltry sum of 1000 rupees is not adequate to meet the consequences arising from a wreck or even twice the value of the wreck for that matter might prove inadequate (S.436 (117 to 120(b)).

With reference to the claims of the owner of the wreck, the statute mandates that if the owner is able to establish his claim over the wreck to the satisfaction of the receiver within one year of the wreck coming into the possession of the receiver, he shall be entitled to have the wreck or the proceeds thereof delivered to him upon his paying the salvage and other charges (S. 399 (1)). Obviously the receiver's satisfaction has to be objectively arrived at after due process of law and complying with the principles of natural justice.  

In the case of a foreign vessel if its wreck or cargos are found on or near the Indian coast or are brought to any Indian port, in the absence of the master/owner, the statute mandates that the consular officer of the country in which the vessel is registered or the cargo owners belong, shall be deemed to be the agent of the owner with respect to the custody and disposal of the articles (S.399 (2)). If the owner of the wreck does not appear and claim the balance of the proceeds within one year from the date of sale, the said balance shall become the property of the Central Government (S.399 (3)).  These provisions also fail to address the larger question of compulsory wreck removal from navigable waters.

The scope and applicability of the period of limitation laid down in S. 399 was considered by the High Court of Judicature at Mumbai in State Bank of India v. Official Liquidator (AIR 1995 Bom. 219). It was held by the Hon’ble Court that even though S.399 provides for a period of limitation within which an owner can set up his claim, since the said provision is conspicuously absent in Sec. 398, limitation provided in Sec. 399 cannot be imported into Sec. 398. It was also held that Sec.399 which applies to the owner of a ship or a wreck cannot be made applicable to a mortgagee.  

Certain acts with respect to Wrecks like boarding or attempt to board a vessel which has been wrecked, standard or is in distress without the permission of the Master, detrimentally interfering with the saving of any vessel in distress or wreck, secrete any wreck or obliterate any marks thereon or wrongfully carrying away or remove any part of any wreck have been specifically prohibited by the statute (S. 400)).

In the English statute, the provisions regarding vessels in distress has been separately dealt with from the provisions relating to Wreck. Hence the confusion created by Secs. 2 (55) and 392 of the Indian Act over what constitutes a Wreck has been overcome to certain extent. Moreover, Secs. 241 to 244 of the English Act provided a more clear and specific regime regarding unclaimed wrecks than the Indian Statue.  A provision akin to Sec. 241 of the English Act which in unequivocal terms vests all unclaimed wrecks in the Crown is not seen in the Indian Act. 

Recent incidents have shown that Indian law regarding wreck requires a through appraisal and redrafting. In so far as the Nairobi International Convention on the Removal of Wrecks, 2007 has been adopted by International Maritime Organization after detailed discussions, if India decides to have a restatement of its law relating to wrecks, it would be fruitful to look beyond the English Act into the provisions of the said Convention. 

The Convention on the Removal of Wrecks, 2007 provides a detailed frame work for dealing with wrecks. The Convention defines a wreck-related hazard as a “danger or impediment to navigation” or a condition or threat that “may reasonably be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests of one or more states.” Articles in the convention cover - reporting and locating ships and wrecks - covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; and action by the coastal State to locate the ship or wreck;  criteria for determining the hazard posed by wrecks, including depth of water above the wreck, proximity of shipping routes, traffic density and frequency, type of traffic and vulnerability of port facilities. Environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil are also included; measures to facilitate the removal of wrecks, including rights and obligations to remove hazardous ships and wrecks - which sets out when the ship owner is responsible for removing the wreck and when a State may intervene - liability of the owner for the costs of locating, marking and removing ships and wrecks - the registered ship owner is required to maintain compulsory insurance or other financial security to cover liability under the convention; and settlement of disputes. 

The 2007 Convention thus makes the ship owners financially liable and require them to take out insurance or provide other financial security to cover the costs of wreck removal. It provides States with a right of direct action against insurers. It enables states parties voluntarily to extend the convention’s scope to their territorial seas. The convention will provide a legal basis for the states to remove from their exclusive economic zones wrecks that may pose a hazard to navigation or to marine and coastal environment. 

At a time when shipping causalities have considerably decreased across the globe, it is alarming that the same are on increase along the Indian coast. This point to the poor implementation of legal norms relating to seaworthiness of vessels in India. To make matters worse the lacunae in the Indian law relating to the handling and removal of Wrecks is permitting the perpetrators of illegality to go scot-free and the public exchequer is burdened with the task of meeting the huge expenses for wreck removal. 

It is high time that India adopts a new legislation comprehensively dealing with the handling and disposal of maritime wrecks or appropriately amends the Indian Merchant Shipping Act taking note of recent international developments in the field as also the norms evolved by other maritime nations.

Compensation for the Victims or their Dependents

(By Justice M.M. Pareed Pillay, Former Chief Justice, High Court of Kerala)

In our country, victims are often left to their fate. Nobody bothers about them. There are very many organisations vying with each other to look after the ex-convicts. Though there are so many organisations who clamour for the betterment of the conditions in jails, there is no corresponding plea raised by any organisation to look after the welfare of the victims or their families. In most of the cases, victims belong to the very poor strata of the society. Whereas the accused is sent to the jail where he gets opportunities for training in some avocations and gets wages and remissions in punishment, there is hardly anyone who cares for the conditions of the widows and dependents of the victims.

In the Western countries reparation of the victims of an offence has gained greater importance and attention. It is high time for us to ponder about the problems of victims and their dependents in our country. Except for a provision in the Cr.P.C. to allocate the fine imposed on the accused to the victims, nothing concrete has taken shape so far as reparation. 

Much more attention is really necessary for the victims or their families as often crime rate is higher in the lower strata of our society. When a person who is the sole bread winner of his family is murdered, his widows and children are left in the lurch without anybody bothering about their fate. When a person is maimed or when a person sustains grevious injury and is incapacitated there is no association or organisation to look after them. In our country, there are after care associations who look after the ex-convicts. It is really distressing to note that there is no such association to take care of the needs of the victims or their families. State is there to initiate legal action against the culprits. Duty of the State should not end with launching of legal action. Merely because culprits are punished, the victims or their families are not in any way benefited as often the sole bread winner has been killed, maimed or incapacitated due to the assault by the accused. In the case of a person who is the sole bread winner of the family being killed by another, it should be the duty of the State to look after atleast the bare necessities of his family. Some sort of insurance scheme has to be thought of in this line. It is true that Cr.P.C. provides for imposing fines. Cr.P.C. also provides for giving the fine collected to the victim. But that provision is hardly the answer to the problem. Our Courts have only very reluctantly applied the above provision. Such provision hardly touches the fringe of the problem. In most of the cases accused may not have the financial resources to pay the fine and he may be forced to suffer the default sentence. In other words, the above provisions in the Cr.P.C. would not be the real answer to the enormous economic problem confronted by the victims or their dependents. At any rate, if the Courts invoke the above provision to the benefit of the victims, it would go a long way atleast to alleviate the miseries of the victims or their families to some magnitude.

Mere punishment of the offender may exhaust the primary functions of the criminal law. But, it is not the total fulfillment of the role of the law. The injured party does not always get adequate reliefs from Civil Courts. In view of the exorbitant rate of court fees he is unable to lay any claim for compensation. In the criminal law he often takes a back seat. Very often after giving his evidence, he has to merely watch the offended majesty of public justice being satisfied by conviction and sentence. Hardlydoes he get compensation, or even his expenses. It is true that he can have recourse to the Civil Courts to reclaim his property or for compensation. Where the victim who is the sole bread winner dies due to brutal assault, the dependents should not be driven to utter despair and chill penury. 

During the evolution of criminal jurisprudence, the idea of reparation of the victims occupied a major place in most legal systems. The punitive and criminal aspect of the wrong became gradually recognised. It was unfortunate that the civil or the reparation aspects were relegated to secondary importance. Criminal Courts are concerned mainly with the punitive aspect. Recently, compensation aspect has regained importance. Even then, it has not attained its due importance in our social and administrative set up. 

Generally speaking, compensation of victims of a crime has three fold ramifications. Firstly, State should take upon itself the responsibility in atleast certain class of cases, to compensate the victims. Secondly, the offender can be sentenced to pay fine by way of punishment for the offence and out of that fine, compensation can be awarded to victims. This principle finds recognition in the Criminal Procedure Code. S.357 Cr.P.C. provides for defraying expenses properly incurred in the prosecution and for payment of compensation for any loss or injury caused by the offence. Thirdly, the Court while punishing the offender can direct him to pay compensation to the victim or his relatives. Thus, Court can make amends to the victims or their relatives of the damage done by the offence. 

If necessary, accused can be directed to pay compensation to the victim of a crime when the accused is found guilty and convicted and sentenced. The above mode may invite objection, principally on the ground that criminal trial might be converted into a protracted enquiry into matters of civil nature. Even if criminal trial is slightly protracted it would serve a great purpose and hence the above apprehension is not very much justified.

In some European countries, provision is made for payment of compensation to the victim of the crime in the criminal proceedings itself. In France, along with the criminal prosecution, the injured party can move for compensation. The motivating factor is that, as far as possible, the injured party should be put back into the position which he occupied before the offence had taken place. Damages are awarded to cover not only the loss actually sustained, but also potential loss or loss of profit consequential upon the injury. Remedies other than the award of damages are also envisaged such as the restitution of stolen property. If the injured person is to institute civil proceedings separately for compensation in lieu of damages caused to him, it would cause delay and huge expenses especially in view of the exorbitant rate of Court fees prevailing in our country. Rather than leaving him to take recourse to civil action for appropriate reliefs, it would be highly beneficial to him if the criminal courts award adequate compensation on assessing the facts and circumstances of each case. 

Under the German Code of Criminal Procedure, the injured person or his heir may, in the criminal proceedings, assert against the accused a claim involving property rights arising out of the offence. To enable such a person to prefer such claims, the law provides that the injured party should be notified of the filing of the criminal proceedings. The claim can be made by oral or written motion and has the same effect as bringing an action in civil litigation. The injured party or his representative is entitled to participate in the main trial.

In Russia, one of the punishments for the crime in the criminal code is imposition of the duty to make amends for the harm caused.

We find in our country large number of victims or their dependents, are driven to starvation and economic difficulties as often the bread winner of the family is killed or maimed or physically incapacitated. The families of the victims and also the victims themselves as the case may be really require financial help and assistance to a large measure.

To alleviate their miseries it is high time that along with punishing the offenders, we must think of awarding adequate compensation to the victims or their dependents. Serious attention is necessary for statutory recognition of the fate of the hapless victims or their relatives. Just like after care homes for the ex/convicts, we must have voluntary associations or societies to look after the welfare of the victims and their families. Dependents and widows of the victims who are killed can be given vocational training by voluntary organisations before State launches appropriate schemes for their betterment. To conclude, immediate attention for the poor lot of the victim and their dependents is the urgent need of the day.

Section 24 Cr.P.C. — Time to re-cast ?

(By P. Rajan, Advocate, Thalasserry)

S. 24 of the Code of Criminal Procedure, 1973, after the insertion of 1978 amendment, speaks of the appointment of Public Prosecutors, for conducting cases on behalf of the Central and State Government, before the High Court and District Courts. Prosecutors to represent the State Government, before the High Court are to be appointed by the concerned Government after consultation with High Court, as envisaged under sub-s. (1) of S. 24 and to represent the State before the Lower Courts, in Sub Court also from the panel of names of persons, prepared by the District Magistrate (District Collector), in consultation with the Sessions Judge. Requisite eligibility like period of practice etc. are detailed in the succeeding sub-sections of S. 24 of the Code.

The Government, especially State Government happens to be a party in good number of legal proceedings before any High Court, so also before the Subordinate Courts as the present statistic reveals and if the litigation becomes two or three tier affair, before Apex Court also. As the prevailing practice of appointment of Public Prosecutors reveals, consultation with the High Court and inviting panel of lawyers from the District Magistrate is a ritualistic exercise, doing only lip service to the provision of the Code. Choosing of pleaders, without adequate experience and proven ability rarely lead to insufficient preparation and representation before the Courts -- Ultimate result, Government remains to be at the receiving end, taking flak from different corners. This is evident, in recent times, with regard to important matters, relating to environment, education, revenue and what not as Kerala is concerned. Prime concern being the welfare of the State, the polity stands to suffer due to any laxity in handling of matters, for the State. Realising this sad State of affairs, the State Government is up in arms against erring State Pleaders by enactment of necessary statute, to realise the loss incurred by the State from the concerned counsel, due to his/her callousness in conduct of cases. As a welcome measure to fortify this decision, axe fell on an Asst.Public Prosecutor recently and action against one or two is on the anvil due to patent dereliction, as the print media reports, even though they are permanent Government servants. Realising monetary loss, sustained by the exchequer from erred counsel, in all probability will be a cumber-some process due to varying reasons, soothing and sparing the rod by the same hand, in the present scenario is a tough task, unless determined to curb with an iron hand.

It is no secret, whenever ministry changes anywhere, frenzied rush of wishful aspirants is a sad sight, to unseat and get seated by lawyers as prosecutors and final selection even pave way for litigation by selected and dejected coddle the needy seems to be the policy, though never should be prosecuting agency of the state and prosecutors play pivotal role in Courts so as to safeguard the interest of the State. Laxity leads to loss of great magnitude, no doubt in different forms. Of late, even in Sessions trials, request to Government and Writ Petitions before High Court are not rare to get suitable lawyer instead of the prosecutor in charge of the case. Reasons are several- justifiable too, often. Lack of faith overrides, luxury of getting a pleader of one’s choice. Justice K.T.Thomas (as he then was) rendered a land­mark judgment, while considering a party’s request for private pleader and of the manner of appointment of Public Prosecutor-- 'consultative process envisaged in S.24(3) Cr.P.C. cannot be made a mere formality. A District Magistrate is obliged to consult the Sessions Judge because it is the Sessions Judge who has better opportunities to assess the merits and capabilities of an advocate’ -- 1992 (2) KLT 958. This dictum no doubt is more in breach than in practice. Industrious counsel are many, as prosecutors and their grit makes the opposite side vanquished but rebuke and remarks, adverse from the bench, rarely even, is to be avoided by the Government. Few take the plunge thinking the stream as shallow, result being, it becomes murky, water turns muddy. Periodic reviews in such cases may be long and effective but on analysing, it is apparent, remedies are short.

Ill-drafted and half-baked enactments invite judicial scrutiny--hapless are the pleaders then. Striking down such rule or law is the only option; to avoid this, service of pleaders is a fruitful step to make those enactments good laws. Despite getting positive verdict; but on inadmissible evidence; state approaches the appellate forum to correct the irregularity, before the indictee moves, shows the worth of the pleader, happens on another side of the globe only.

Service of State pleaders is yeomen, not only to the State-also to Courts even. This solemn duty should not be undermined. Persons bestowed with all the demanding abilities are the right choice, selection never be on extraneous reasons. Court being the right Judge to Judge a lawyer, Govt. Pleaders are to be appointed by the High Courts in consultation with the District Judges. Once a prosecutor, need not be a prosecutor always. Amendments to S.24 of the Code of Criminal Procedure in this regard are worth considering -- Better late than never.

Has justice been imported ?

(By B.V. Balakrishnan, Advocate, Ernakulam)

The decision in State of Kerala v. Aboobaker reported in 2007 (3) KLT 1032 evokes curious reading. The relevant facts as revealed from the report is extracted below for easy reference.

“5.  First respondent entered service as L.D.Clerk in the Revenue Department on 27.2.1984. On completion of 10 years of service in the L.D.Cadre in Ernakulam District he was granted first time bound higher grade promotion on 27.2.1994 and thereafter he was promoted as U.D.Clerk as per order dated 14.5.1996. In the final seniority list of U.D.C. /V.O. published by the Secretary, Board of Revenue (L.R.), first respondent was assigned U.D.Cadre with retrospective effect from 23.3.1991 since he had acquired the necessary test qualification for promotion to U.D.Clerk. On the basis of that he applied for 2nd time bound higher grade on completion of 8 years of service in the first promoted post of U.D.Clerk with effect from 23.3.1999. Same was rejected by the District Collector stating that time bound higher grade is intended to give relief to those who actually stagnate in the post without promotion. It was submitted that notional period of promotion cannot be treated as qualifying service in sanctioning time bound higher grade. First Government Order which dealt with the grant of benefit of Higher Grade is G.O. (M.S.) No.439/79/GAD dated 1.8.1979 which is extracted hereunder for easy reference”.

          xxx                   xxx                xxx

The relevant portion of the G.O.(P) No.3000/98/Fin. dated 25.11.1998 as extracted from the report is also reproduced below:

“5(i) (a) Ratio/percentage based on Higher Grade

The existing ratio/Higher Grade and the improved ratio to the various categories are indicated at the appropriate places under each department. The newly introduced ratio/ improved ratio promotion will have effect from the date of this order.

b) Time bound Higher Grade promotion scheme:-

(1) The existing time bound higher Grade promotion scheme and the grades to be assigned on revision of pay scales under scheme will be modified, as specified in the table 1st and 2nd below, with effect from the date of order.

(2) Employees who remain in their entry post on scale of pay ranging from Rs. 2610-3680 to Rs. 4600-7125.00 will be granted three higher grades on completion of the period of qualifying service in their post as follows with scale of pay indicated in Table 1.

    (i) The first higher grade on completion of 10 years service in the entry post.

   (ii) The 2nd higher grade on completion of either 8 years of service in the first promoted post or a total service of 18 years in the entry post and the first regular promotion post/ time bound higher grade together whichever is earlier”.

As it is felt that the following portion from the above G.O. also needs to be referred here, the same is also reproduced below:

“(4) The second higher grade as mentioned under Table I and II above will be available to all those who may get their first promotion even in a shorter span than 10 years’ by the operation of any of the existing norms for such promotions”.

On appreciation of the facts one has to ask the question as to why a retrospective notional promotion was assigned to the incumbent. Is it because the Government had particular interest in the welfare of the person or is it because he was denied a legitimate promotion which he was entitled to with effect from that date ? On all probability, the answer would be that he was entitled to the post of U.D.Clerk with effect from that date; but for reasons better known to the appointing authority and not divulged to him he was denied the benefit. That was denied to him not by a positive action but by a passive inaction. From the narration of facts it has to be inferred that a situation arose that entailed the conferment of retrospective notional promotion as U.D.C. w.e.f. 23.3.1991, the details of which are conspicuously absent therein, except a statement regarding his acquisition of test qualification required for promotion to the post of U.D.C. But it goes without saying that acquisition of test qualification alone will not confer any right on one, unless there is a vacancy to accommodate the incumbent. Even if there is a vacancy and the incumbent is test qualified, still no right is acquired to get a promotion unless a junior is promoted, overlooking the seniority. That being so, the conferment of retrospective notional promotion has to be considered as a remedial action to set right an error committed by the employer.

When he came to know of the situation, he made a request for the second time bound higher grade. The request was rejected. Being aggrieved he approached the Hon. Court by a Writ Petition. The learned single Judge allowed the petition. The instant case is the Writ Appeal against the order of the single Judge. The single Judge relied on Ibrahim’s case (2003 (1) KLT 534).

In the instant case their Lordship observed thus:

“6. We are of the view, period of retrospective notional promotion cannot be reckoned as qualifying service for the purpose of time bound Higher Grade. Grant of time bound higher grade is only a benefit granted by the Govt. so as to remove the frustration of those employees who remain or stagnate in a particular post. Government Orders, in our view do not give benefit to those who are given retrospective notional promotion and such benefit is available only to those who actually remain or stagnate in a particular post. Applying the above mentioned principle petitioner in the case is not entitled to get second higher grade with w.e.f. 14.3.1999 as claimed by him reckoning his notional date of promotion from 25.3.1991. Facts would show that the petitioner has entered service as L.D.Clerk on 27.2.1984. He was granted time bound Higher grade promotion on completion of 10 years of service on 27.2.1994. Petitioner was promoted as U.D. Clerk vide order dated 14.5.1996. Petitioner had not stagnated in that post. Later he was assigned the date of promotion as U.D.Clerk on 25.3.1991. Petitioner says that he is entitled to second higher grade on completion of 8 years from 25.3.1991. In our view he is entitled to get 2nd higher grade promotion only on completion of 8 years of service in the first promotion post since he had not stagnated in that post. Ibrahim’s case was decided based on different facts and situation, where on facts he has stagnated in the sense that he was denied promotion as A.M.V.I. and only by virtue of a court order he was restored the benefit and hence the reasoning adopted in the case would not apply to this case. Learned Government Pleader submitted that the Government has granted the benefit to few persons on the strength of the decision on Ibrahim’s case and those orders are under review and petitioner cannot claim benefit of those orders which are under review. Government would act in accordance with the declaration granted by this Court. Writ Appeal is therefore allowed and the judgement of the learned Single Judge is set aside”.

It is felt that a question arises here. If Ibrahim had stagnated in the sense that he was denied promotion as A.M.V.I. how can it be said that the respondent in the instant case had not stagnated as he was denied promotion as U.D.Clerk.?

With due respect to their lordships it has to be mentioned that I could see only one difference between the two cases viz. in Ibrahim’s case there was stagnation even though he had not performed the duties attached to that of A.M.V.I., which are obviously different from those in the previous post while in the instant case there was stagnation even though he had not performed the duties attached to the post of U.D.Clerk, which are not at all different from those of L.D.Clerk. If that be so, it has to be conceded that the incumbent in the instant case is more entitled to the benefit than the incumbent in Ibrahim’s case. This is so because he was discharging the functions of U.D.Clerk on the guise of those of L.D.Clerk the two of which are not at all different. In Ibrahim’s case there was no such discharge of functions in disguise.

At this juncture a reference has to be made to the Apex Court's decision in State of Kerala v. Bhaskaran Pillai reported in 2007 (3) KLT 711 (SC ). The relevant portion there from is re-produced below.

“3. Learned Counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent, when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Palru Ramakrishnan Nair & Ors. v. Union of India & Anr. (1989) 2 SCC 541), Virender Kumar, G.M, Northern Railways V. Avinash Chandra Chanda & Ors. (1990) 3 SCC 472), State of Haryana & Ors. v. O.P.Gupta & Ors. (1996) 7 SCC 533), AK. Soumini v. State Bank of Travancore & Anr. (2004 (1) KLT 1022 (SC)  and Union of India & Anr. v. Tarsem Lal and Ors. (2006) 10 SCC 145). As against this, the learned counsel for the respondent has invited our attention to the decision given by this Court in Union of India & Ors. v. K.V. Janaki Raman & Ors. (1991) 4 SCC 109 ) State of A.P. .v. K.V.L. Narishma Rao & Ors. (1999) 4 SCC 181), Vasantha Rao v. Union of India & Ors. (1993 Supp. SCC 324) and State of U.P. & Anr. v. Vinod Kumar Srivasthava (2006  SCC 621). We have considered the decision cited on behalf of both the sides. So far as the situation with regard to the monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facts which have to be considered. Some time in a case of departmental enquiry of a criminal case, it depends on the authority to grant full back wages on 50% of back wages, looking to the nature of delinquency involved in the matter or in criminal cases, were the incumbent was being acquitted by giving benefit of doubt or full acquittal. Some times in the matter, when a person is superceded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date a person junior to him was appointed, in that case, the court may grant some times full benefits with retrospective effect and sometimes it may not. Particularly when the administration wrongly denied his due, then in that case he should be given full benefits including monetary benefits, subject to there being any change in law or some other supervening factors. However it is very difficult to set down any hard and fast rule. The principle no work, no pay cannot be accepted as a rule of thumb. There are exceptions here courts have granted monetary benefits also”. 

Although the question raised in that case, is whether one is entitled to the monetary benefit during the period of retrospective promotion, the reasoning is felt equally applicable to the question of qualifying service for time bound higher grade with reference to retrospective notional promotion.

Can the employer take refuge in a state of affairs created by his own wrong, in order to deprive an employee of his legitimate claim which was denied by the said wrong at the due time is, in my opinion, the precise question involved in this issue. If the answer is yes, then what the employer has done is right, If the answer is no, then the employer has done injustice to the employee. The Division Bench accepted the former view, while Single Bench accepted the latter. The facts of this case would show that the person was qualified to be promoted to the post of U.D clerk w.e.f. 25.3.1991. It appears that there was vacancy to accommodate him. Yet he was not promoted. By this inaction of the employer the employee is prevented from discharging the function of U.D. Clerk w.e.f 25.5 1991. Now the employer claims the benefit of his own wrong and contents that the employee has not actually performed the duties attached to the post of U.D.C. This becomes all the more conspicuous when perused in the light of the admitted fact that the nature of duties of L.D.C. and U.D.C. is not at all distinct and different. The very fact that the employee was promoted to the post of U.D.C. in the year 1996 and he was assigned retrospective notional promotion with effect from 25.3.1991 shows that the employer was correcting a mistake committed by him.

In this connection, it has to be said that the ultimate aim of the entire system of administration of justice is to impart justice and not to permit the executive to deny justice to the deserving, on interpretation of law which is only a means to the end - justice. Based on the above discussion, I request the legal fraternity to look into and think over the different views taken by their Lordships in the instant case and those taken by his Lordship in Ibrahim’s case.