Chief Justice V.P.G. Nambiar 

Reminiscences of an old student

(By V. Bhaskaran Nambiar, Former Judge) 

Shri V.P.Gopalan Nambiar was our lecturer at the Law College, Madras and all his students, without a single exception, continued to maintain, even after they left the college, the highest regard for him. His lectures were not a mere dry narration of facts of cases or references to the pertinent laws on the subjects; but he did ‘inspire his listeners and kindle their minds’. He had a thorough grasp of the subject, analysed every aspect with mathematical precision; and he could express the same idea, without any repetition, but, in three or four distinct, different, short, simple elegant sentences, so that the students could take down their own notes in the class without missing any vital detail. Attending to his lectures, whether it was the dry Roman law or the difficult criminal law was a thrilling exercise, inculcating and developing a sense for search and study. He taught us that one should not walk through the streets wearing black coat, advocate’s band and court gown. He imbibed in us the nobility of the profession.

He was gifted with a prodigious memory of interesting and lasting account of the lives and work of very eminent men, mainly in the legal arena. He had told me that he would not venture writing about his experiences which would naturally and unwittingly become autobiographical, which he desired to avoid at any cost. Why not be autobiographical when it can be for public benefit, is my lingering doubt even now.

With his Juniors in Office

He was absolutely honest in all his dealings, and as a senior he was a hard taskmaster. He extracted from this juniors the sweat of their brows. We were about seven juniors, with him at one time, without counting the larger number of part- time juniors who gave him senior briefs in several cases very often. He took care of his juniors, guided and instructed them and stood solidly behind them, in times of any crisis. One third of the fee received by him in every case, according to Nambiar, was the junior’s share. It may be, that in some cases, the junior would have done nothing that month, to earn any junior fee; but the entitlement arose, according to Nambiar, immediately the vakalath was filed and his name was included as a junior.

Upholding the juniors’ cause

In one case, his junior Shri P.C. Balakrishna Menon [who later became a Chief Justice] was arguing a Civil Revision matter before a learned judge. The judge became unfortunately and unnecessarily angry and showered abuses on the young lawyer. The case stood adjourned the next day. Nambiar was told about the incident. Therefore he himself came to Court and in his emphatic tone, manner, and strain and in a commanding choice of expression in chaste English, forcefully and openly lodged his protest against the ‘reprehensible’ and unbecoming conduct of the judge in insulting and rebuking his junior, for no fault of the junior lawyer, and in unmistakable language chastised the judge, to the stunned disbelief of all the lawyers in court. The judge kept mum. He handed over the brief to P.C.B. Menon to continue the arguments. When Nambiar came out of Court, the then Advocate General, the accredited leader of the Bar, congratulated Nambiar for the dignified displeasure and admonition, against the unjust outburst of the judge. Pat came Nambiar’s reply the Advocate General himself should have been the first to protect the bar against the judge’s unprovoked onslaught.

Independence  at  the  Bar  and  impromptu  retorts  in  Court

I remember, once, he was arguing an appeal before a Division Bench. He had just commenced, when one of the judges asked him to read a particular document. Nambiar said that he would read the document, but a little later, at the appropriate time. The judge insisted that Nambiar should read the document first and then proceed to argue the case. Nambiar did not accede; the judge was annoyed and told Nambiar ‘ Mr. Nambiar, You should know, I have seen many Courts in many parts of the world which you can never dream of.” Nambiar coolly replied. 'That does not seem to have made any impact on your Lordship’. The arguments continued.

Two  different  Judgments  from  two  pockets  of t he  same  judge

There is yet another incident which is worth mentioning here. There was an appeal with comparatively high stakes, in which difficult questions of Hindu Law were involved. Nambiar initially entrusted that case to me for preparation and after the conference, he asked me to argue the matter also. The appeal came before a learned single Judge, a scholar in Hindu Law. After arguments on both sides were over, the Judge dictated the judgment in open Court dismissing the appeal. The fact was conveyed to Nambiar and was, in turn, communicated to the client. The very next day, the judge stated in open court that he intended to reconsider and the appeal was again posted for hearing. This information also was transmitted to the client. After the second hearing, the judge allowed the appeal, set aside the judgment of the lower court and remanded the matter to the trial court. This fact was also intimated to the client. Thereafter the judge orally directed that the appeal would be heard again. This also was communicated to the client.

The client could not make head or tail of what was happening to his case. He therefore came and met Nambiar and asked him, whether he was aware, what was happening in his office, when the same appeal was dismissed one day, allowed another day and then posted for hearing again. Nambiar told him that he was only informing what really happened in court. The client then said, ‘we have heard that almost all your civil matters are attended by two of your “wonderful” juniors, namely. P.C. Balakrishna Menon [who later became a Chief Justice] and myself [who became a Judge later.] I do not want my case to be touched by either of them’. I was a mute spectator. Nambiar flew into a rage and told the client that it was none of his business to teach him how to conduct the cases entrusted to him and asked him to leave the office.

Next day, when the appeal came up for hearing, Nambiar asked me to continue the arguments. I appeared and after hearing both sides, judgment was reserved. On the date when the judgment was to be delivered, the judge asked whether the appellant was rich? I said, ‘ No, My Lord’. The Judge said, ‘ this is an important matter, which has to be taken to the Supreme Court. If the appeal is dismissed, the appellant would not be able to approach the Supreme Court. So saying, he took one judgment from his right pocket, and signed the judgment, allowing the appeal. He then took out the other judgment from the left pocket dismissing the appeal and tore it and threw it in the waste paper basket. I believe that the respondent did not appeal to the Supreme Court. He was also poor!

This procedure seems to be backed by judgments of the highest Courts of England as would be seen from an article published several years thereafter, in 1980, by Justice Madhavan Nair, after he retired from the bench, in the journal part of the Kerala Law Times under the ‘heading ‘ About Extempore Judgments’.

One day, at about 4 P.M.when he was presiding over a Division Bench in the Chief Justice’s Court, the employees of the High Court without any prior notice, staged a lightning strike, marched through the corridor of the Chief Justice Court, shouting slogans and then squatting at the Judges’ entrance near the first court, with deep throated, deafening, slogans.

Chief Justice Nambiar did not utter one word; but stopped work and rose. It was thought by everybody that the Chief Justice had meekly surrendered to the threat and was afraid to take any action, lacking the will of an astute politician. The Chief went to his chambers, returned to the court, and resumed the sitting till the court rose at 4-30P.M as usual.

None knew, how composed he was, in spite of the volatile, hostile atmosphere all around and what the Chief Justice did for about 5 or 6 minutes when he went to his chambers; What he did in his chambers was to direct the Commissioner of Police to remove the strikers who had obstructed the course of justice and issued instructions to the Registrar to prepare a list of retired officers who could be appointed the next day. The police van came all on a sudden, took the strikers, including the large number of women strikers, to the police station. They then realised the danger of resorting to strike in the High Court and pleaded that they may be released and they were prepared to resume work the next day. They were let off and they attended office the next day without any demur. No action was taken against them for striking; but thereafter they never struck work in the High court.

On  Ragging

His judgments, mostly delivered on the bench itself, in open Court, [extempore as it were,] were remarkable pieces of legal literature. I am not mentioning about all his decisions, for that would make a law digest. But I shall just extract from one judgment on ragging.

The petitioners were charged with “ragging” of different grades and varieties, ranging from abusing in filthy and obscene language or demanding the repetition of obscene language by the freshers, to beating, manhandling and other debasing forms of behaviour. Regarding the jurisdiction of the principal to punish the students for ragging he said thus: -

‘The inherent right and the quasi- parental authority of a teacher to proceed by way of disciplinary action against a pupil under his charge has been well-recognised over the years; and we should think it is ingrained in the habits of thought and philosophy of our country.’

On the question whether there was any violation of the principles of natural justice, he said,

“It is an interesting and a sad commentary on the rules of natural justice that while the free flow of its stream is poisoned and even arrested at its fountain source itself, the cry for natural justice and about its violation should continue unabated - (Whether by the very persons who raise the cry or their sympathizers, we need not decide in the present context).”

“The proverbial fable reminds us of the cry in distress of the mute and helpless creatures in the pond on being teased by the ranks of playful youngsters, that it was all fun and frolic on the one side and humiliation, torture and suffering on the other. May be, that with the rapidly changing pattern of thought and ideas, or the evolution of the times, or change in outlook these may pass as acts of socialization, to chisel the recluse freshers and to draw them forth to mix and mingle with the stream of the corporate life in the campus. We do not cavil at the managing committee or the principal of the view they took of the incidents; and our power of correction under Article 226, does not, we are afraid, extend to correcting the said view on the facts disclosed.”

As  a  Student

Shri V.P. Gopalan Nambiar was a brilliant student at the Law College, Madras securing a First class in 1938 and standing First in the Madras University in the F.L. examination and was the recipient of the Morehead Law Scholarship. He obtained the highest marks in Hindu Law and was awarded the Sir V. Bhashyam Ayyangar Gold Medal. He became Advocate General in 1962, a Judge of the High Court of Kerala in 1965 and the Chief Justice of Kerala in 1977. I think that he was, perhaps, the only Judge nominated suo motu by the Chief Justice of India, Shri Justice Gajendragadkar.

What Shri Nambiar achieved alone, we, his juniors together shared those honours, later. Indeed a very proud achievement for a lawyer’s office, possibly unbeaten so far.

Morehead Law Scholarship        -- V.P.G.N. and Myself

Bhashyan Iyengar Gold Medal  -- V.P.G.N. and P.C.B. Menon

Chief Justice                              -- V.P.G.N --P.C.B.Menon

And V.P.Mohankumar Ag C.J.

Judge, High Court                    -- V.P.G.N, P.C.B Menon,

Myself and V.P. Mohan Kumar

Advocate General                    -- V.P.G.N. and Myself

Government Pleader                -- V.P.G.N. and Myself

I am told that Shri P.C.B. Menon wrote his answers in Hindu Law, mostly in Sanskrit quoting profusely Hindu scriptures. The Sanskrit grip got him gold medal.

Reply  speech  by  Chief  Justice  on  retirement

‘ I strode, in the Justice Cardozo style, to place our Court between the two extremes of Valorous impatience and pedestrian timidity’. The Bar has given me not merely co-operation but even encouragement in the execution of my plans. I have found rich potential at all levels of the readiness and eagerness of the younger section of the bar to step into the breach. I have derived immense benefit from the same. I have little doubt that all those younger members of the Bar will succeed in getting comfortable berths in the profession. The senior members of the Bar have treated me with tolerance and indulgence for which I express to them my sincere gratitude and thanks. First and foremost, let me acknowledge my deep debt of gratitude to the Bar.’

On 2.11. 96, 18 years after retirement he wrote to me thus: -

‘With old age creeping, with shelving of position and power, contacts loosen, affections fade and responses cease. That is particularly so in the present day individualistic society. I have been rather surprised about the many who never failed to respond to my letters and who now never respond. Isolation and seclusion appear to be the inevitable consequence.’

(Excerpts from my book ‘Life’s Likes and Dislikes’).

The Case of Hostile Witnesses

(By B.D. Harindranath, District Judge)

In the land of Mahatma Gandhi, the father of our nation, a base pogrom was let loose, ostensibly as a requital against the massacre of karsavaks in the Godhra train. The killing of Karsevks was indeed outrageous, but more appalling was the unleashing of the pogrom, as the very people who ought to have protected the innocent citizens were said to have been part of this carnage. At that time in Gujarat law and order went kaput. Arsonists burnt several persons to death. From the very beginning, the Gujarat Government was accused of being unfair in the investigation of riot cases. A charge sheet was filed against a number of accused, which included among others, M.L.As and other politicians in Gujarat. Plight of the Muslim victims was horrendous. Many were said to have suffered at the hands of the government machinery and local police. Finally, the cases ended up in the Fast Track Court set up for trying cases swiftly. Fast Track Court took a year to dismiss the case. There was a chorus of disapproval that the accused were given a free hand to bribe the witnesses. Zahira’s case is a classic example. Newspapers overflowed with reports of Zahira’s appearance in court premises escorted by B.J.P. M.L.A. Madhu Sreevasthava. The trial court did not bother to consider why so many victims including Zahlra turned hostile. Right to fair trial was violated. National Human Rights Commission approached the Hon’ble Supreme Court and requested the Apex Court to exercise its powers under Art. 142. All the cases were shifted to Mumbai where there was a special court to try the case. Zahira changed her stand again. She filed an affidavit before the Vodadara Collector asseverating that N.G.O. activist Teesta Setelwad pressurized her.

When the trial opened in Mumbai, the key witness Zahira Sheik turned hostile. She did not support the prosecution case. Her role in the whole was an eye opener for all concerned with the administration of justice. The Hon’ble Supreme Court found that Zahira Sheik had changed her stand at different stages. She departed from her former statements one after the other. Huge amount of money was involved in getting Zahira’s stand changed and the Supreme Court observed that amount involved was nearly five lakh rupees. The Supreme Court did not accept the explanation offered by Zahira and her family members. It was proved beyond doubt that she was won over by money power. In the aforementioned setting, the Hon’ble Supreme Court sentenced Zahira Sheik to undergo simple imprisonment for one year and to pay cost of Rs. 50,000/-. Her assets including bank deposits were ordered to be attached. Income tax authorities were directed to probe into the matter.

The incidence of witnesses turning hostile in high profile cases is nothing new. The Indian newspaper columns contain never-ending reports about crimes that go unpunished, from fraud and embezzlement to rape and murder and its major cause; the odium called perjury. Why does it happen? One major reason is our cavalier tolerance of perjury. The Best Bakery case was a horrendous case of communal murder during the Gujarat riots. Yet, the accused went scot-free because several witnesses resiled from their former versions of what had happened. In technical way of speaking, the witnesses turned hostile. In plain language, they told lies despite taking an oath to tell the truth, the whole truth and nothing but the truth. In Jessica Lai’s case, one witness after another turned hostile, except for an NRI who lived abroad and so could not be cowed. In the BMW case, the original facts changed unbelievably in the middle of the case because nobody feared prosecution for lying under oath. The U-turn of key witnesses in criminal cases throws up important questions related to the role of witnesses in criminal trials.

The term “hostile witness” has its origins in common law. Such a witness by wily means could “ruin the cause” of the party calling him to the witness box. Such actions hamper not only the interests of the litigating parties but also get in the way the court’s voyage to the shores of truth and justice. The “safeguard” as envisaged under the Common Law, consisted of contradicting witnesses with their former statements intended for impeaching their credit. There are penal provisions in various statutes prescribing punishments for lying under oath. Obviously, those lying under oath must be dealt with sternly but causes why they do so must also be tackled.

Indian witnesses are a besieged group. In Swaran Singh v. State of Punjab (2000) 5 SCC 68 Wadhwa J. while delivering the judgment said about the conditions of witnesses in the following words:

“the witnesses ...are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause, a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the Courts, district Courts; subordinate Courts are linked to the High Court with a computer." 

The most important aim of a criminal trial is to find out the truth. The principal objective of criminal law is to ensure that the guilty are punished. And for this purpose in prosecuting the crime the State has to obtain credible and legally sound evidence from the witnesses. To this end, witnesses are entitled to protection from intimidation, considering the crucial role played by them in the delivery of criminal justice. The victims, their family members, and the society at large have an interest to see that the guilty are punished. The right of the accused to a fair trial is a guarantee ingrained in our procedural laws. The right of the accused to get a fair trial, if misused to twist the arm of witnesses makes the trial unfair as far as the victim and the State are concerned. Court has to balance the conflicting rights of the accused to fair trial and the right of the witnesses to get protection from the miscreants who wants to thwart the course of justice. The Hon’ble Supreme Court in Zahira Habibulla Sheikh v. State of Gujarat  (2006 (2) KLT 350 (SC)) observed thus:

“Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.”

“Witnesses” as observed by Justice Wadhwa are a harassed lot and they require protection. Witnesses in the words of Bentham are the eyes and ears of the court. The accounts of incidents, perceived by the witnesses through their senses, are made known in court when witnesses depose. Events are unfolded before the court through the medium of ocular testimony of witnesses. If witnesses are not permitted to say the truth in court, trials become meaningless. Wealthy and the powerful may go scot-free after committing crimes with impunity.

Unmerited acquittal is a challenge to the society and necessarily court should make certain that the witnesses are free from fear, intimidation and they are in a position to speak the truth. To this end, there should be laws for the protection to witnesses as there are inbuilt safeguards in the procedural laws to protect the right of the accused to get fair trial. Sadly, this is just about absent in our country. The need for a comprehensive witnesses protection programme has never been felt so urgent as in the recent years. Witness protection is the process in which witnesses such as those who testify in criminal trials are protected against intimidation before their testimony or criminal retaliation after the trial. 

Witness protection in other countries: In the United Kingdom, vulnerable witnesses who are likely to be intimidated are protected and their identities are not made known to the accused. In R. v. Murphy (1989) it was held by the House of Lords that the identity of the witnesses should be kept secret not only from the accused, but also from the defence lawyer. The Court of Appeal in R. v. Lord Seville of Newdigate 1999 (4) All ER 360, overturned the decision of a Tribunal refusing to grant anonymity to soldier witness. It was observed that it would not be fair to the soldiers and their families, if their identities were exposed to the terrorists. The Courts in Australia, New Zealand, Canada, and South Africa on several occasions permitted the witnesses to give evidence behind closed doors to retain anonymity. Similarly, the Courts in United States held that the right to cross-examination is not absolute right guaranteed under the Constitution and the witnesses are entitled to get their identity kept unknown when there is fear of revenge.

Under the English law, threatening a witness from giving evidence is contempt of Court. An act of threat or revenge against a witness after he has given evidence in Court is punishable under the Criminal Justice and Public Order Act. S.51 of the Act protects a person who helps the police in the investigation of a crime.

Organized criminal gangs in the United States of America were able to run mayhem and were rarely held accountable for their misdeeds, as they were able to browbeat witnesses. The American mafia was able to threaten witnesses by imposing the Code of silence. It was largely due to the efforts of Senator Robert F. Kennedy that a comprehensive witnesses protection programme came into being in the United States of America. The federal program is called WITSEC (the Federal Witness Protection Program). Gerald Shur founded it in the late 1960s when he was in the Organized Crime and Racketeering Section of the United States Department of Justice. Witnesses Security Programme in the United State of America was authorised by the Organized Crime Control Act of 1970. The Comprehensive Crime Control Act of 1984 later amended it. Since its inception, more than 7500 witnesses and over 9500 family members entered the programme. Based on the recommendations of the U.S. Attorney General, in major criminal cases throughout the United States of America, witnesses were offered protection. The procedure involves the removal of witnesses and his and her family members from the danger area within the proximity of criminals. The U.S. Marshall’s Service relocates them in a farther place in a secure area. They get new identities, authentic documentation, housing, medical care, job training and new employment.

Under the National Witness Protection Program in Australia, the Commissioner of the Australian Federal Police provides protection and other assistance for witnesses (Section 4). Before the witness is included in the Program, he must disclose all relevant information about his obligations, details of his criminal history and details of his financial liabilities. As per Australian Witness Protection Act, 1994 the Commissioner is the sole authority empowered to decide whether to include a witness in the Program or not.

The Witness Protection Act, 1998 of South Africa provides for the establishment of an office called the Office for Witness Protection within the Department of Justice. The Director of this, office exercises control over Witness Protection Officers and Security Officers. Witnesses who are threatened can apply to the investigating officer or the Public Prosecutor for getting protection under this Act. A Witness Protection Officer scrutinizes the application and submits a report to the Director. Director has to consider the report in deciding whether the witnesses are entitled to protection or not. In almost all the European countries, there are programmes to protect threatened witnesses. Similarly, there are witness protection programmes in Singapore, Philippines etc.

Our I ndian  Experience

India sadly does not have a comprehensive witness protection programme. In 1958, the 14 report of the Law Commission made recommendation for providing adequate facilities to witnesses attending in cases in the court. Security of witnesses did not come up for consideration before the Commission. The fourth report of the National Police Commission in 1980 acknowledged the troubles undergone by witnesses while attending courts. It was in 1996 that the 154th report of the Law Commission took serious note of the difficulties of the witnesses. It was observed thus:

“Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality”.

In dealing with review of Rape Laws, 172nd report of the Law Commission suggested recording of the testimony of a minor subjected to sexual abuse at the earliest opportunity in the presence of a Judge and a child support person. Commission urged that the courts should permit the use of video-taped interview of the child or allow the child to testify by a closed circuit television and that the cross examination of the minor should be carried out by the Judge based on written questions submitted by the defence. The Commission also recommended insertion of a proviso to S.273 Cr.P.C to the effect that it should be open to the prosecution to request the court to provide a screen so that the child victim does not see the accused during the trial. Amendment of S. 273 of the Cr.P.C. was also suggested. In its 178th Report (2001), the Law Commission recommended the insertion of S.164A in the Cr.PC for recording of the statement of material witnesses in the presence of Magistrates for offences punishable with imprisonment of 10 years and more. Based on this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. Under the Terrorists and Disrupted Activities and the Prevention of Terrorists Act, 2002, the prosecution can request court to keep the address and identity of the witnesses’ secret. The court can even avoid mentioning of the name and address of the witnesses in its order or judgment. Though these provisions were incorporated primarily to prevent terrorist activities, it nevertheless served as a protection to witnesses.

Protecting Witnesses during trial:-- As early as in 1952, The Hon’ble Supreme Court upheld the provisions in Bombay Police Act, which denied permission to detinue to cross-examine the witnesses (Gurubachan Singh v. State of Bombay, AIR 1952 SC 221). In Menaka Gandhi v. Rani Jethmalani ((1979)  4 SCC 147), the Hon’ble Supreme Court observed that there must be affable atmosphere for the conduct of fair trial. This necessarily includes protection of witnesses. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Hon’ble Supreme Court upheld the validity of S.16(2) and (3) of the Terrorists and Disrupted Activities Preventions Act, 1987 which gave discretion to keep identity and address of the witnesses secret. It was also held that the right of the accused to cross-examine the prosecution witnesses was not absolute, but subject to exceptions. In Peoples Union of Civil Liberties v. Union of India, (2003 (10) Scale 967 = 2003 (1) KLT (SC)(SN) 128, Hon’ble Supreme Court upheld similar provisions contained in S. 30 of the Prevention of Terrorism Act of 2002.

In State of Punjab v. Gurmit Singh (AIR 1996 SC 1405), the Hon’ble Supreme Court observed thus:

“Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Court should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.”  (Emphasis supplied)

The Hon’ble Supreme Court also suggested that S. 273 of the Cr.P.C. should be amended suitably.

Witness protection is fundamental for the successful prosecution of offenders. Due to the violent and horrific nature of the crime, it is not surprising that victims rarely want to testify against offenders. Offenders often blackmail victims into staying silent. They may terrorize the victim’s family. Protection not only of the witnesses but also of their immediate family is a prerequisite for any modern legal system to endure. Besides witness protection programmes, casual treatment of perjury should end. Judgment in Zahira Sheik’s case has opened a new chapter in our criminal jurisprudence. Words of warning to dithering witnesses to an extent would check the problem of hostile witnesses. Courts necessarily have to be strict; there must be laws to punish witnesses who after taking the oath to tell the truth, the whole truth and nothing but the truth lie without batting their eyelids. A comprehensive witness protection programme is an absolute necessity and for that there has to be a new legislation. We can look forward to our lawmaker’s and hope that they act swiftly taking note of the gravity of the state of affairs. 

BIBLIOGRAPHY

I . Law Commission Report No. 154 on the Code of Criminal Procedure Code 1973, Vol.I, 1996.

2. Law Commission Report No. 178 on the Recommendations for amending various enactments both Civil and Criminal. December 2001.

3. United States Federal Witness Protection Programme from wikipedia the free Encyclopaedia.

4. Law Commission of India’s Consultation paper on witness protection. 

A Differing Note on 2006 (3) KLT 49

(By A.K. Radhakrishnan, Jt. Secretary, Advocate General’s Office Ernakulam)

An elaborate scheme has been enumerated under S. 320 of the Code of Criminal Procedure on how to compound the offences under the Indian Penal Code. The first table under S. 320(1) Cr.P.C stipulates the offences that can be compounded by the parties concerned without the permission of the Court whereas the 2nd table under S.320(2) describes the offences that can be compounded by the parties concerned with the permission of the Court before which prosecution for such offence is pending. It is stated in S.320(6) that a High Court or Court of Session acting in the exercise of its powers of Revision u/s 401 may allow any person to compound the offence which such person is competent to compound under this section. It is clear from S.320(6) that High Court or Sessions Court in its Revisional Power u/s 401 can compound the offences only as provided u/s 320 Cr.P.C. S.320(9) Cr.P.C creates a bar on compounding of offences in any manner otherwise than u/s. 320. It stipulates that no offence shall be compounded except as provided by the section. So, it is the legislative intent that there can be no compounding of offences violating the provisions of S.320 Cr.P.C. There is thus an elaborate Scheme for compounding of offences under S.320 Cr.P.C. 

It is in the light of the various provisions u/s. 320 Cr.P.C. as well as the decisions of the Apex Court in this regard we have to look at the decision rendered in Crl.R.P. 2566/04 reported in 2006(3) KLT 49. The Honourable High Court has held that Court can give permission to compound the offence even if they are non-compoundable, if such offence does not seriously affect the interest of the public at large. The Court allowed the Crl.R.P. and acquitted the accused of all the offences alleged against them u/s. 320(8) Cr.P.C. Thereby the Court acquitted the accused for offences punishable under S.143, 147 and 148 of I.P.C also which are non-compoundable under S.320 Cr.P.C. by considering the fact that the parties have settled the matter among themselves by permitting them to compound those offences which do not affect any one else. The above view of the Honourable Court is against the clear provisions of S. 320 Cr.P.C and the various decisions of the Apex Court in this regard. However, it is true that the fact of compromise in a non-compoundable offence could be taken into account in determining the quantum of sentence.

The Honourable High Court while disposing of the Crl.R.P has referred to the decision reported in ((2003) 4 SCC 675). But in that decision itself the Supreme Court has unmistakably stated that those offences which are not mentioned in S.320 Cr.P.C cannot be permitted to be compounded. The Division Bench of the Apex Court in that decision agreed with the proposition laid down in Surendra Nath Mohanty case ((1999) 5 SCC 238) that offences declared to be un-compoundable cannot be compounded at all even with the permission of the Court. This is what the three Judge Bench of the Supreme Court stated in 1999(5) SCC 238 :- “In our view the submission of the learned Counsel for the respondent requires to be accepted, for compounding the offences punishable under the I.P.C, a complete scheme is provided under S.320 of the Code of Criminal Procedure, 1973. Sub-s.(1) of S.320 provides that the offences mentioned in the table provided there under can be compounded by the persons mentioned in column 3 of the said table. Further, sub-s.(2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, sub-s.(9) specifically provides that “no offence shall be compounded except as provided by this Section”. In view of the aforesaid legislative mandate, only the offences which are covered by Table I or Table II as stated above can be compounded and the rest of the offences punishable under the I.P.C could not be compounded”.

In fact in ((2003) 4 SCC 675), what was considered by Supreme Court is whether High Court can by invoking the inherent power u/s 482 Cr.P.C read with Arts.226 and 227 of the Constitution quash criminal proceedings or F.I.R or Complaint alleging offences which includes non-compoundable offences for preventing abuse of the process of any Court or otherwise to secure the ends of justice. In that case on the basis of a complaint from a wife living separately, F.I.R was registered u/s 498-A/ 323 & 406 I.P.C against her husband and in-laws. Thereafter the matter was settled by the parties. But, the High Court dismissed the petition for quashing the FIR for the reason that as S.498-A and 406 I.P.C are non-compoundable, the inherent power u/s 482 Cr.P.C. cannot be invoked to by-pass the provisions of S.320 Cr.P.C. But the apex Court held that High Court in exercise of its inherent power can quash criminal proceedings or F.I.R or complaint and S.320 Cr.P.C doesn’t limit or affect the powers u/s 482 Cr.P.C. Thus it can be seen that the Supreme Court had not in that decision held that offences which are non-compoundable u/s 320 Cr.P.C. can be compounded by High Court by invoking its powers either u/s 482 Cr.P.C., or under Arts.226 and 227 of the Constitution. On the contrary, Supreme Court by way of passing reference agreed with the earlier decision of the Apex Court in ((1999) 5 SCC 238) stated above.

In Ram Lal & Anr. v. State of J. & K. reported in 1999 (1) Supreme 216 also the Apex Court held that in view of the legislative ban u/s.320(9) Cr.P.C., an offence which is non-compoundable cannot be compounded at all. Only such offences as are included in the two tables of S.320 Cr.P.C can be compounded. That was a case in which permission was sought for compounding the offence u/s. 326 I.P.C. which is non-compoundable as per S.320 Cr.P.C.

Bankat & Anr. v. State of Maharashtra (2004 (8) Supreme 338) is yet another decision of the Supreme Court to be noted in this context. In that decision also Supreme Court concurred with the decision in 1999 (1) Supreme 216 and held that the Course adopted in Ram Pujan’s case ((1973) 2 SCC 456) and Mahesh Chand’s case (1990 Supp. SCC 681) was not in accordance with law.

Thus it can be safely concluded that the Apex Court is of the firm view that no offence shall be compounded in violation of S.320(9) Cr.P.C. When the Code stipulates certain procedures for compounding of offences, compounding of offences in violation of those provisions is not allowable. It will be against the legislative mandate. Therefore, the decision reported in 2006 (3) KLT 49 requires reconsideration.