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.

A Note on 2007 (3) KLT 923 -- Shibi Francis v. State of Kerala

(By A.K. Radhakrishnan, Joint Secretary, Advocate General Office,  Kochi)

When an S.H.O (Station House Officer) fails/refuses to register a case on a complaint of cognizable offence, can the complainant straight away file a Writ Petition before the High Court under Art.226 of the Constitution seeking a direction to the Police to do so? Certainly not.

Chapter XII of the Code of Criminal Procedure deals with information to the police and their powers to investigate. The S.H.O, is bound to register a case on receipt of an information/complaint relating to the commission of a cognizable offence. This is evident from S.154(1) of the Code. The Apex Court has also undoubtedly stated so. It has been held that S.154 Cr.P.C. casts a statutory duty on Police Officer to register case where complaint discloses cognizable offence and genuineness or credibility of information is not a condition precedent for registration of case (2006 (7) Supreme 700). The Supreme Court further stated in 2001 (4) Supreme 519 that police can not refuse to register a case on receipt of cognizable offence on basis of alleged inquiry. There cannot be any enquiry without registering a criminal case. The highest court of the land also held in 2006(2) Supreme 243 that the provisions of S. 154 of the Code is mandatory and the officer concerned is duty bound to register the case on the basis of such an information disclosing cognizable offence.

But, when an S.H.O. fails in his duty to register a case on complaint of cognizable offence, what is the remedy available to the complainant? S. 154 (3) of the Code itself states thus:- “Any person aggrieved by a refusal on the part of an officer in charge of a Police Station to record the information referred to in sub-s.(1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the Police Station in relation to that offence”. It is not clear from the judgment in 2007 (3) KLT 923 whether the petitioner in W.P(C) 21411/2006 had approached the S.P. concerned before rushing to the High Court invoking its Writ Jurisdiction under Art.226 of the Constitution.

Another remedy for the aggrieved is to approach the Magistrate concerned with the complaint. The Magistrate can either take cognizance of the offence straight away under S.190 of the Code or can order investigation by police on the complaint after registering a case, under S.156(3) of the Code. Any Judicial Magistrate before taking cognizance of the offence can order investigation under S. 156(3) of the Code. In such case he is not to examine the complainant under oath (AIR 2001 SC 571). In AIR 1999 SC 3104 the Apex Court has also held that the direction of Magistrate to police under S.156(3) of the Code to register a case is not illegal. The Supreme Court further stated in 2006 (1) Supreme 6 that Judicial Magistrate before taking cognizance can order investigation under S.156(3) Cr.P.C. and can direct Police to register an F.I.R. It appears that the Writ Petitioner concerned had not approached the Magistrate concerned with her complaint of theft of the vehicle before invoking the Writ Jurisdiction of High Court on the Police refusing to register the case.

The highest court of the land has deprecated the practice of invoking the writ jurisdiction in such cases. The Hon’ble Supreme Court had occasion to consider the point in ((2004) 7 SCC 768). In that decision it was held that invocation of Writ Jurisdiction is not permissible in a criminal matter wherein police did not take action on complaint lodged with police. Further, in 2006 (3) KLT 269 (SC) the Apex Court has stated thus:-- “when the information is laid with the Police, but no action in that behalf is taken, the complainant can under S.190 R/w S.200 of the code lay the complaint before the Magistrate having the jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the Police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action he is empowered to dismiss the compliant under S.203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this court in All India Institute of Medical Science Employees Union (Reg.) through its President v. Union of India & Ors. ((1996) 11 SCC 582).  It was specifically observed that a Writ Petition in such case is not to be entertained.” See also 2006 (2) KLT 568 (SC) wherein it was observed that when the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under S.190 read with S.200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. It also observed that a Writ Petition in such case is not to be entertained.

Now, coming to the allegation in the complaint to the Police viz. theft of the vehicle, it may be noted that the Apex Court in the decision reported in ((1996) 7 SCC 212) has held that if the financier in a hire purchase agreement took possession of a vehicle from the owner on defalcating in payment of instalment to the financier, it cannot be stated that he and his aides committed the offence of theft as they haven’t committed the offence with the requisite mens rea and requisite dishonest intention. The court further held that the financier has right to resume possession of the vehicle even if the hire purchase agreement doesn’t contain a clause of redemption of possession. According to the court that clause has to be read in the agreement, So, the Apex Court has clearly stated that financier doesn’t commit theft if he takes possession of something financed by him for default.

In JT 2001 (7) SC 226 also the Supreme Court held that repossession of hire purchase agreement vehicle on default in payment of loan instalments (as per hire purchase agreement) doesn’t attract the offences under Ss.406, 420, 120-B and 379 I.P.C.

It is true that rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not of compulsion [2006(7) Supreme 311]. But it is equally true that writ petitions should not be entertained when statutory remedy is available under the Act unless exceptional circumstances are made out. [2005 (5) Supreme 731] . Any way, in view of the law laid down by the highest court of the land in the decisions aforesaid, let us hope that the Hon’ble High Court will consider the dismissal of such Writ Petitions in lumine henceforth.

Why Sunil Kumar Is Put to Jeopardy?

A Critique of 2007 (1) KLT 877 

(By Joseph Rajesh, Advocate, Adimali)

The substantial relief of maintenance provided in the procedural law for the needy, neglected and weak sections of the society is to be enforced without any fail. The benevolent provision in the adjective law is enacted to protect the unsecured and abandoned sections of the society. All orders of maintenance made under S.125 Cr.P.C. are to be obeyed and the failure would invite serious consequences. But those consequences must originate invariably from the provisions of law and any failure in observing the said provisions are certainly illegal and ultra vires.

The 2 page judgment reported in 2007 (1) KLT 877 (Sunilkumar v. Jalaja) has posed serious questions as to the procedure to be adopted and followed in enforcing the order of maintenance passed under S.125 Cr.P.C. The factual matrix given about the case is very cryptic and therefore readers are quite unable to understand the factual situation of the case in its right perspective. But it is discernible that the Writ Petition was filed challenging the order of the Family Court, Kollam issuing non bailable warrant to the writ petitioner (Ext.P2 in the Writ Petition). Before analysing the legality of the order (Ext.P2) it will be quite appropriate to ponder over the order (Ext.P1 order in the Writ Petition) passed by the Family Court, Kollam. As per Ext.P1 the Family Court (?) in the presence of the petitioner and respondent finding that no amount being paid towards maintenance sentenced the respondent for one month and issued distress warrant for realization of an amount of Rs.21,350/-. It is also discernible that the application for realization was for Rs.21,350/-which is the aggregate amount of maintenance for 84 months. So, according to me while deciding the case the Division Bench of the Hon’ble High Court was expected to answer 3 questions of prominent importance in that case. They were:-

1) Whether the application for realization of arrears in maintenance for 84 months is maintainable in law?

2) Whether Ext.P1 order suffers any serious defect in law?

3) Whether Ext.P2 order is legally sustainable?

I would very humbly make an attempt to answer the questions with the support of law relating to maintenance under S.125 Cr.P.C.

1) Whether the application for realization of arrears in maintenance for 84 months is maintainable in law? 

As I have already noticed, the factual matrix and the date of order of maintenance are not available from the reported decision. But at the same time it is very hard to presume that a petition for maintenance under S.125 Cr.P.C. was pending for 84 months (7 years) preceding to 28.2.2005 in a Family Court. It is also not reported that whether the petition was a supplemental/incidental one aggregating the total amount. If it is otherwise the application lacks merits in view of the proviso to sub-s.3 of S.125 Cr.P.C. To get the right appreciation, the relevant provision is extracted hereunder.

125. Order for maintenance of wives, children and parents.--

(1).....................................

(2)........................................

(3)........................................

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due;

Therefore it is abundantly clear that, in an application for realization of maintenance, no warrant can be issued for the recovery of the said amount unless such application is made within a period of 12 months from the date on which it becomes due. In another way, the court is powerless to enforce the order of maintenance if the application for realization is made after the lapse of 12 months from the date on which it becomes due. In the case at hand maintenance for a period of 84 months (7 years) is claimed in a single petition and the same is not permissible in law. At the risk of repetition it is stated that the reader is unable to understand from the decision that, whether there was any revision or other proceedings staying the operation of the order in force till the date of filing of such application, or the said application is a supplemental/incidental one showing the aggregate amount under various petitions. It is impermissible in law to enforce the order of maintenance for the said period of 84 months and no warrant can be issued for the entire period covered by a single petition. But the last 11 months preceding from the date of filing the petition can be calculated for the enforcement of the order and only to that extent the petition is not barred by limitation and is enforceable in law.

2) Whether Ext.P1 order suffers serious defects in law?

The Honourable High Court did not consider the illegality of Ext.P1 order passed by the Family Court, Kollam. The Family Court, Kollam did not follow the procedure laid down in sub- s.3 of S.125 Cr.P.C. The relevant provision is extracted hereunder for reference.

125. Order for maintenance of wives, children and parents.-

(1) .....................................

(2) ........................................

(3) if any person so ordered fails without sufficient cause to comply with the order, any such magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and by sentence, such persons, for the whole or any part of each months allowance, for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant , to imprisonment for a term which may extent to one month or until payment if sooner made:

. .............................................

So as per sub-s.3 of S.125 of Cr.P.C. before ordering the sentence of imprisonment the court is bound to observe two things.

a) Issue a warrant for levying the amount in the manner provided for levying fines.

b) Even after the execution of the above said warrant/s the whole or any part of each month’s maintenance is remaining as unpaid.

But unfortunately, the Family Court overlooked the said provision and straight away passed an order of sentence and issued distress warrant subsequent to it. The legislative intention is very clear from the wordings of sub-s.3 of S.125 Cr.P.C. The legislature never wanted to punish the defaulter as if it is a criminal offence but only intended to secure the payment of the amount by modes provided under S.421 Cr.P.C. and only when it is not capable of being recovered, to sentence the defaulter to one month imprisonment. Hence, the Ext.P1 order of the Family Court is made without following the procedure under S.125 (3) Cr.P.C. and the order is per se illegal and the imprisonment already undergone by the petitioner is thus not as per law. The earlier judicial pronouncements of our own High Court in Nithyanandan v. Radhamani (1980 KLT 537) and Kuttappan v. Vijayamma (2001 (3) KLT 451) renders the correct procedure. It is unfortunate that the Honourable High Court did not consider the illegality committed by the Family Court in passing Ext.P1 order. Thus in a way the Honourable High Court seconded the illegality committed by the Family Court in ordering imprisonment of the petitioner without following procedure prescribed by law. 

3) Whether Ext.P2 order is legally sustainable?

The Ext.P2 order in the Writ Petition is made on the same footings of Ext.P1 and therefore the issuance of distress warrant for a total amount of Rs.21,350/- (84 months maintenance) is needless to say unsustainable. Yet another very important aspect is that the Honourable High Court did not interpret sub-s.3 of S.125 Cr. P. C in the proper way. The Ext.P1 order of the Family Court ordering imprisonment of the Writ Petitioner is certainly not a speaking one. Whenever a person is sentenced to imprisonment, the sentencing Judge is required at least to give his reasons and specify the quantum of imprisonment. The application for realization of maintenance was for 84 months and the Family Court did not specify as to for which period of default/breach the writ petitioner is sentenced to one month imprisonment. Therefore it is deemed that he had been sentenced for the whole of 84 months breach with one month imprisonment. In that case, he cannot be sent to prison again and again for the default in payment of the same arrears. If it is allowed, the defaulter (writ petitioner) will be in prison for the rest of his lifetime and that is definitely not the scheme of Chapter IX of the Code of Criminal Procedure, 1973. But the amount remaining unpaid after the imprisonment is subject to realization and that too is subject to a period of limitation. Since the obligation to give maintenance is a continuing one, the Writ Petitioner cannot exempt or escape himself from the future payments of monthly maintenance and every such breach (monthly) would entail him a sentence of imprisonment for one month if the amount cannot be recoverable through warrant for realization. The interpretation given to the decision of the Apex Court in Shahada Khatoon v. Amjad Ali (2000 (1) KLT 696 (SC)) by the Honourable High Court does not appear to be the correct ratio in that decision. Since the obligation to pay maintenance under an order under S.125 Cr.P.C. is a continuing one; the wife/aggrieved is at liberty to approach the Magistrate for the enforcement of the order in future for non payment of future maintenance if any. Any meaning contrary or other than the above cannot, according to me, be attributable to the words in the Apex Court’s decision, “for breach or non-compliance with the order of the Magistrate, the wife can approach again for similar relief”. That is to say, it does not mean that upon application of the wife/aggrieved for realisation of arrears for which the defaulter had already undergone imprisonment, the Magistrate can again pass an order of sentence of imprisonment. In fact the Apex Court made it clear that the Magistrate cannot impose a sentence for more than one month in enforcing the order of maintenance for defaulted month and endless imprisonment until the payment cannot be ordered. The said proposition of the Apex Court’s decision was clarified by his Lordship Justice R. Basant in Sundaran v. Sumathi (2006 (3) KLT 725). The power of the Magistrate to order imprisonment for one month each for the defaulted months, provided it does not exceed 12 months in aggregate in a single execution petition was upheld in that decision.

What are the provisions regarding imprisonment for non-payment of maintenance and the period of limitation for recovery of the maintenance amount?

A person cannot escape from his liability to pay the arrears in maintenance for the reason that he already has undergone imprisonment for such arrears. But he cannot repeatedly be sentenced to imprisonment for the non-payment of the same arrears for which a sentence of imprisonment was already undergone by him. Sub-s.3 of S.125 of Cr.P.C. specifically empowers the Magistrate to issue a warrant for levy of the arrears of maintenance in the manner provided for levying fines. The warrant for levy of fines is dealt in S.421 of the Cr.P.C. S.421 provides for two types of warrants, they are:-warrant for levy of the amount by attachment and sale of movable property belonging to the defaulter and warrant to the District Collector authorizing him to realize the amount as arrears of land revenue from the movable or immovable property or both of the defaulter.

Therefore, if the mode of recovery of the arrears in maintenance amount is as per the mode of recovery of fines, the period of limitation for realization of such arrears shall necessarily be governed by the provisions of recovery of fines and consequences of its non-payment. The provisions of S.431 of Cr.P.C will be suffice to clarify any doubts regarding the same. The relevant provision is extracted hereunder for reference.

S.431. Money ordered to be paid recoverable as a fine.- Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

....................................................................

....................................................................

The period of limitation for levy of fines will be applicable to the maintenance also. To me Chapter III of the Indian Penal Code contains the right provision governing the period of limitation in such cases. S.70 of the Penal Code provides that the fine or any part thereof which remains unpaid may be levied at any time within six years after the passing of the sentence. So it can safely be concluded that the arrears in maintenance  after six years after the imprisonment is not recoverable under the Code of Criminal Procedure, 1973.

Therefore, based on the above said discussions it appears that the decision rendered by the Hon’ble High Court in Sunilkumar v. Jalaja does not lay down the correct legal position as to the recovery of arrears of maintenance under S. 125 of the Code of Criminal Procedure, 1973 and requires reconsideration. 

‘Precarious Regurgitation of Precedents’

(By John S. Ralph, Advocate, Kochi)

The correctness of the Full Bench decision of the Kerala High Court rendered in Meenakshi Satheesh v. Southern Petrochemicals Industries reported in (2007(1) KLT 890) is doubted. The Full Bench was deciding a question whether the High Court can, under Art.226 (2) of the Constitution exercise its powers beyond its territorial jurisdiction.

While concluding the judgment (in Para 10 last sentence ) it is declared that “even if the cause of action for the complaint under S.138 of the N.I.Act arose in Kerala, the Kerala High Court cannot interfere with the proceedings before a Criminal Court, outside the jurisdiction of this Court”. This observation has virtually struck down Art.226 (2) from the Constitution of India as far as the power of the Kerala High Court is concerned.

The power under Art.226 (2) has been given by the legislature for enabling the High Courts to issue writs outside their territorial jurisdiction. The said clause ends with a non obstante clause giving extra territorial power to High Courts , provided part of the cause of action arose in that State. The observation/conclusion arrived at by the Full Bench is diametrically opposed to the underlying principle or purpose of incorporating the said sub-clause.

Whether writ lies against a Subordinate Court ? The writ jurisdiction under Art.226 is wide enough to include issuance of prerogative writs against lower courts. This has been considered by the Apex Court in Surya Devi Rai v. Ram Chander Rai & Ors. reported in (2003 (3) KLT 490 (SC) which was followed in Ranjeet Singh v. Ravi Prakash (2004 (2) KLT SN 4  (C.No. 5) SC  = (2004) 3 SCC 682) and so many other decisions also.  All the powers under Art.226 is also extended to Cl. (2) of Art.226. 

A Brief Legislative History

Art.226(2) was inserted by the Fifteenth Amendment in 1963 as clause (1A) which was later renumbered as 226 (2) vide the 42nd amendment in 1976. The need for such a power came after the decision in Election Commission of India v. Saka Venkata Subba Rao ((1953) S.C.R. 1144). At that time since High Court of Punjab was having territorial jurisdiction over the Union Parliament, any writs challenging the constitutional validity of a Central Act had to be moved before the High Court of Punjab. As noted in the objects and reasons as “THIS INVOLVED  CONSIDERABLE  DIFFICULTIES  TO  THE  LITIGANTS  FROM  DISTANT PLACES.  THE  ACT  THEREFORE  AMENDED;  SO  THAT  WHEN  ANY  RELIEF  IS SOUGHT  AGAINST  SOME  ACTION  TAKEN  BY  ANY  GOVERNMENT ,  AUTHORITY  OR PERSON  THE  HIGH  COURT  WITHIN  WHOSE  JURISDICTION  THE  CAUSE  OF  ACTION ARISE  MAY  ALSO  HAVE  JURISDICTION  TO  ISSUE  APPROPRIATE  DIRECTION, ORDERS  OR  WRITS”.

So the very purpose of inserting Art.226 (2) was to have an extra territorial exercise of jurisdiction to the High Court in its writ jurisdiction. Though initially it was inserted with a view to enabling the litigants to move their own States for challenging the Central Statutes, through judicial pronouncements. Art.226 (2) has been pressed into service when part of cause of action arose in a particular State. It is in the light of these back grounds, the decision of the Full Bench has to be evaluated.

Though the matter was referred to the Full Bench on a question of law, like any other precedents, while the question was considered, the mind of the court must have weighed the facts of the case. So we have to move further back to the reference by the Division Bench. The two conflicting judgments before their lordships were Krishnakumar Menon v. Neoteric Informatique (P) Ltd. reported in (2001 (3) KLT 689) and UBC v. Govardhanam reported in (2005 (2) KLT 461).

In Krishnakumar Menon, the Division Bench observed that the extra territorial jurisdiction can be exercised only under Art. 226 (2) and not either under Art.227 or under S. 482 Cr.P.C. Since the petition was filed not under Art. 226, the party was advised to move under Art.226 on a finding that extra territorial jurisdiction can be exercised under Art.226(2).

In UBC while considering the case, the Division Bench came to a conclusion that while adjudicating a matter before it, if another High Court can exercise the powers under Art. 227, 226 and S. 482 Cr.P.C. the party has to move that court. 

While declaring that the dictum laid down in UBC is good law, the Full Bench, it seems that, was carried away by the facts of the case. The facts bereft of details of the respective cases are as follows: 

U.B.C. v. Govardhanam : The petitioners were arrayed as the accused in a case under S. 138 of N.I. Act in a Court at Tamil Nadu. The First accused was a partnership firm, having its office at Ernakulam, Kerala. Other accused are residents of Ernakulam. They moved the High Court of Kerala to quash the complaint against them. According to the petitioners, a gang of persons accompanied by a police officer from Tamil Nadu came to Kerala, trespassed into their house, forcibly took away some cheque leaves and foisted a false case by misusing those cheque leaves, and they are dragging the petitioners/accused to face a prosecution. The Writ Petition was however dismissed by the learned single Judge holding that (i) for appreciating the contention of the Writ Petitioners, evidence was needed (ii) evidence in that regard can only be taken by the Trial Court. And the Writ Appeal against the above judgment was eventually dismissed on the finding that the High Court of Tamil Nadu is the better court for the petitioners to approach since that High Court can exercise the powers under Arts. 226, 227 and 482 Cr.P.C.

Meenakshi Satheesh v. Southern Petrochemicals Industries: The petitioner therein was a partner of an unregistered partnership firm, which issued a cheque and attracted a prosecution punishable under S. 138 of the N.I Act that was instituted against her in a court at Tamil Nadu. In the Writ Petition the petitioner contended that the cheques were issued after her retirement from the partnership firm and hence the prosecution against her is not maintainable and thus she approached the Kerala High Court to quash the proceedings against her.

After considering the above facts, the Full Bench, in Para. 10 of its decision concluded that the dictum in UBC laid down the correct law. And hereby declared that if another High Court can exercise the powers more effectively, the litigant has to approach that Court. This finding of the Full Bench needs fresh consideration by a larger bench. Partly because of the fact that it is against the purpose and purport of incorporating Art.226 (2) and partly because of the fact that it overlooked the dictum laid down by the Apex Court in Om Prakash Srivastava v. Union of India & Anr.  reported in (2006 (4) KLT SN 6 (C.No.8) SC = (2006) 6 SCC 207) which categorically declared that the High Court shall not go in search whether another High Court can exercise the power more effectively or not. In that case the Delhi High Court declined to interfere in a matter relating to the Extradition Act, stating that the High Court at Allahabad can exercise the writ jurisdiction more effectively. The Apex Court remanded the matter back to the High Court by observing that since a part of cause of action arose within the territorial jurisdiction of the High Court, it has to decide the matter on merits. On this premises alone UBC and the Meenakshi Satheesh ( Full Bench decision) has to be treated as Obiter Dicta.

Another observation in Para 10 of the Full Bench to the effect that “ Even if part of the cause of action for the complaint under S.138 of the Negotiable Instruments Act arose in Kerala, the Kerala High Court cannot interfere with the proceedings before a criminal court, outside the jurisdiction of this court” is also unfounded. Though the Full Bench had referred Mosaraf Hussain Khan v. Bhageeratha Engg. Ltd. & Ors. (2006 (2) KLT 525 SC) some how it over looked the specific observations made in Para 28 and 37 of the said decision rendered by the Apex Court. In Para 28, the Apex Court had stated that,

“We have referred to the scope of jurisdiction under Arts.226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent court of law except in a proper case, further more only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Art.227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof.”

In Para 37 of the same judgment it is concluded as : 

“For the reasons aforementioned, we are of the opinion that the Kerala High Court had no jurisdiction to entertain the Writ Petition as no part of cause of action arose within its jurisdiction”.  The logical corollary of this finding of the Apex Court is that if part of cause of action arose in a State, the High Court of that State can exercise jurisdiction even against the order of a subordinate Court.

The Apex Court was following the dictums laid down in O.N.G.C. v. Utpal Kumar Basu ((1994) 4 SCC 711) and Union of India v. Adani Exports Ltd. ((2002) 1 SCC 567). This necessarily, and undoubtedly points to the legal proposition that, if part of cause of action arose in one State, the High Court of that particular State can exercise its writ jurisdiction.

The precedents laid down by the Apex Court while dealing with the power of High Court under Art.226 (2) makes it so clear that if part of cause of action had arisen in one State, the High Court of that State can exercise its writ jurisdiction. So while exercising the jurisdiction, the question is limited to that of finding whether cause of action or any part of it had arose in that particular State or not.

Cause of Action : According to Black’s Law dictionary “The cause of action is a situation or state of facts that entitles a party to maintain an action in Court or a tribunal ; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person. Stroud’s Judicial dictionary says that it is “the entire set of facts that give rise to an enforceable claim ; the phrase comprises every fact which if traverse, the plaintiff must prove in order to obtain judgment. What amounts to cause of action for the purpose of 226(2) has been elaborately considered by the Apex Court in Kusum Ingots and Alloys Ltd. v. Union of India & Anr. reported in ((2004) 6 SCC 254).

So in view of the underlying principles for incorporating Art. 226 (2) in our constitution by the legislature , the decisions in Om Prakash Srivastava v. Union of India and Mosaraf Hussain Khan v. Bhageeratha Engg. Ltd. & Ors., makes it clear that the judgment of the Full Bench needs fresh consideration lest the object and reasons for incorporating Art.226 (2) will be defeated and the Kerala High Court will be on a handicap by rendering itself inert on the Constitutional right of Prerogative writs under Art.226(2) of the Constitution of India. 

Successful Right to Information Act -- Essential Conditions

(By Aravind Menon, IInd Semester, NUALS, Kaloor,  Kochi)

Right to Information Act 2005, is the ‘jewel in the crown of a successful constitutional reform’.  It is the supreme manifestation of ‘freedom of speech and expression’ guaranteed by our Constitution. However, for a Freedom of Information Act to be a success, a right balance has to be struck between the competing interests of State and society _¹. For this a Freedom of Information Act has to have certain qualities.

1. Maximum Disclosure

Right to information basically being a human right as well as a fundamental right, legislation on freedom of information must contain provisions, so as to provide maximum disclosure, with least exemptions as possible.

2. Obligation to Publish

A successful Freedom of Information Act, will contain provisions which makes it obligatory on the part of public authorities to publish either in printed format or by resorting to digitalization of records, i.e., computerization of records as regards to all aspects encompassed by the Act. Right to Information Act 2005, Chapter II, S.4 b, makes it obligatory on the part of public authorities, to publish the particulars of organization, functions, duties etc., within 120 days from the enactment of the Act. It also made mandatory that all government sites, especially those concerned with public relation, should post only those materials, including latest decisions of the Information Commissions, which does not create unnecessary and avoidable confusion in the minds of public authorities^₂. Moreover, it must be made mandatory that all government ministries and departments should file ‘Mandatory Annual Reports’ on the implementation of the Act.

3. Promotion of Open Government

This has to be brought about by two ways. It has been often alleged that, a ‘stubborn civil service’, has every potential to make a good legislation bad. Therefore, in order to bring public administration in its grip, promotion of an ‘open system’ must be rigorously pursued. Externally, public bodies should be legally obliged to promote the goals of the Act, through public education, active campaigning by the aid of media, whose prime objective must be to make citizen know that ‘ he has got this right’.

Internally, the cloud of secrecy should be properly addressed by many ways. First of all, employees must be given training on ‘Right to Information Act’. Public authorities needs to develop an internal code on access and openness. The Act, is bound to increase administrative efficiency and there by bring public accountability. Moreover, to promote openness within this system, incentives like promotion, and other monetary allowances can be considered.

4. Limited Scope of Exemption

Right to Information Act, 2005’s , main goal is to make the activities of the government as transparent as possible. But almost every FOIA’s have got certain exemption like information regarding troop deployment, strategic and economic policies. But exemptions in the name of ‘national security’, coupled with bureaucratic conspiracy, attempts are being made to weaken this Act both in name and in substance^₃. This is happening in countries like USA, UK, India etc. This should not happen at any cost. For a successful Information Act to exist, a culture of openness should be created. Some records may be exempted, legitimately, but these exemptions should not eclipse the very purpose for which the Act came into existence. So in order to make RTI/FOIA, a success, ‘disclosure must be made the rule, rather than exception’.

5. Facilitating Access

For a RTI/FOIA, to be successful, citizen should not only be guaranteed freedom to access government information, but also he must be provided facilities to access the information. For this, the first thing to do is to simplify the application process. Application should be brief and should be legible so that even an ordinary man can understand. Vernacular language can also be used. The clubbing of E- Governance with this Act, can go a long way in helping the citizens facilitate for cheap and easy access.

6. Low Access Cost

Freedom of Information should not come at an exorbitant price. There must be provisions in an Information Act, to provide to its citizens information at low costs. In India, Right to Information Act, 2005, prescribes only ‘reasonable fees’. The Act also states that no fees will be charged form the persons who are below poverty line.

7. Open Meetings

Information can come from open meetings and discussions. Our constitution under Art.19 (1) a, guarantees to its citizens ‘freedom of speech and expression’, subject to reasonable restrictions under Art.19 (2) of the constitution . Since freedom of speech and expression comes with in the ambit of Art.19 (1) (a) of the constitution, citizen should be given an opportunity to participate in government meetings, subject to exemptions.

8. Disclosure to take Precedence

It must be made a policy, that unless and until that an ‘information’ is so vital to the security of the nation, state or any other matter, so as to create a ‘foreseeable harm’ with the parting of this information, information should not be blocked at any cost.

9. Protection to ‘Whistle-Blowers’

‘Corruption is the cancer in our society’. Corruption in the government ranks can seriously undermine a RTI/FOIA. Sometimes, information regarding these rampant corruptions will be brought to light by some brave and informed citizens who are known as ‘whistle blowers’. But there is a lack of legislation to protect ‘ whistle blowers’ in India. The tragedy of Sathyandra Kumar Dubey , an IIT engineer for having exposed corruption in the ‘Golden Quadrilateral Project’ is still fresh. For this Law Commission of India, has proposed a ‘ Protection of Whistle Blowers Act’, in the 179th report in 2001^₄. But it has not been materialized. In April 2004, pending the scrutiny of the Public Interest Disclosure (Protection of Informers) Bill, 2002, the Central Government passed a resolution authorizing the Central Vigilance Commission or disclosures of corruption or misuse of office by any Central Government employee while protecting the identity of the complainant^₅. Along with this there must be provisions in the Right to Information Act, to give protection to ‘whistle blowers’ by maintaining their privacy. Recent incident, of according protection to Kerala Civil Supplies M.D. Jacob Thomas^₆, for exposing corruption in Civil Supplies, is testimony to the fact that ‘whistleblowers’ still requires protection. The Act, must have provisions, where by the information supplied by the third parties are treated with utmost confidentiality₇.

10. Existence of a Powerful and Independent Information Commission

For an Information Act to be successful, it is necessary to place a mechanism to properly redress the grievance of the people if their requests are not properly addressed. This can be in the form of a Commission, with quasi judicial authority, independent and neutral in its constitution. Right to Information Act, 2005, has authorized to setup Information Commissions both in the Centre and in the states^₈. Chief Information Commissioner, must be person equivalent to the rank of Chief Election Commissioner in the Centre. The appointment, salaries and remuneration, removal etc, have all been made to ensure the independence and neutrality of the office. The powers of the Commission to inquire into the matters, is equivalent to the power of a Civil Court under the Code of Civil Procedure, 1908.^₉  Moreover, the provision of appeal^₁₀, is also unique. Thus a powerful and an independent Information Commission can go a long way in ensuring the people’s faith in the Act, and ultimately guaranteeing its success.

11. Penalties

S.20 of the Right to Information Act, 2005 lays down penalties for the any non-compliance on the part of public information officer, with the provisions of this section. On such an instance, the CIC or SIC, after, giving due opportunity for the officer to be heard, can impose a fine of 250/- per day not exceeding 20,000/-. Although, Information Commission can recommend appropriate disciplinary proceeding, he cannot directly take action. Although, the action taken under this section is very rare. The initiation of proceedings against, K.K. Ramani, an Additional Secretary to the Government, for denying the Marad Report to the petitioner^₁₁, has hit the headlines. If penalty is imposed, it will be the first time that an official is punished for disobeying the commission’s order to provide information sought by a citizen under the Act. This will be a welcome boost for the ardent supporters of this Act.

12. Inclusion of Public and Private Authorities

According to RTI, ‘right to information means, the right to information accessible under the Act, which is held by or under the control of any public authority ^₁₂. However, the expression ‘public authority’ includes non-government organizations substantially financed directly or indirectly by funds provided by the appropriate governments^₁₃. So information related to private body can be accessed, only in a limited way. But, in an era of liberalization and privatization, giving only limited power to authority to access information regarding the private sector, can be ‘Opening Pandora’s Box’. Right to information, flows from Art.19 (1), which is available against the whole world. Leaving Private sector outside the purview of RTI, will have serious consequences. So there must be an amendment to include the private bodies, under the S.2(j). By, bringing the private bodies under the expression ‘other authorities’, under Art.12, ‘if that private body is discharging, a public function’^₁₄, this issue can be surmounted.

13. Effective Monitoring

Right to information, is based on the constitutional guarantee of ‘Freedom of speech and expression’. For, this Act to live up to the aspiration of people, not only must it be effectively implemented, but also should be vigilantly monitored. It has been a year, since RTI, 2005 has been passed. Still, this Act hasn’t mesmerized conscience of the common masses to the extend it has envisaged. The CIC and its satellites needs to do much more, to ensure the success of this Act. The rate of filing has improved no doubt, but the rate of disposal is not proportionate^₁₅. Right to Information Act, 2005 has got various sections which entail effective monitoring like, S.25(2)^₁₆. Ignorance is detrimental to this Act’s success. Therefore, educational programme aimed to improve awareness has to be contemplated^₁₇. The example shown by Karnataka and Maharashtra in implementing RTI as a syllabus in school curriculum is a welcome move^₁₈.

Conclusion

‘Information is an antidote to corruption’. Right to Information and good governance are closely related. Transparency and accountability, responsiveness are the major facets of good governance. The Act’s main aim is to bring people close to governance, by minimizing corruption, transparency in administration as well as public accountability. Good governance is an ideal, a dream, which is hard to achieve. Right to Information Act, if implemented in its rightful spirit, will surely help to make this dream a reality.

Foot Note

1. Freedom of Information; Access to Information as a Key to Democratic Governance; by Padmaja Padman- in www.humanrightsinitiative.org/programs/rti/malaysia.pdf; accessed on 28.8.06.

2. Secrecy is dead, Long live secrecy- by Vidhya Subrahmaniam , The Hindu, August 30, 2006, Wednesday; page 13. 

3  S.8 of the RTI Act 2005 provides for exemption. Recent amendments so as to exclude ‘file noting’ from the purview of the RTI, would weaken this act. Right to Information (Amendment) Bill, 2006, Tentative Draft Bill, 19.6.2006.  In S.8 of the principal Act, in sub-section (1),- in clause (i), for the first proviso, the following shall be substituted, namely;- “Provided that the decisions of Council of Ministers and the reasons thereof shall be made public after the decision has been taken, and the matter is complete, or over”; only exemption seems to be ‘file noting’ relating to social and development sectors. See proviso to S.8 (1)(k) of the RTI (Amendment) Bill, 2006. 

4. www.lawcommissionofindia.nic.in

5. G.R.No.371/12/2002-AVD III, also see Facet of Media Law-by Madhavi Goradia Divan, 1st Edition 2006, Eastern Book Company, at page 172.