Whether Section 148 of The N.I. Act Has Any Application In Pending Appeal

(A Study through the recent decisions of Supreme Court)

(By Thampi.V.S., Advocate, Kollam)

The writer here named above is one of the counsel who had lost the benefit of this amendment. I am sharing hereby some of my thoughts in the light of recent Supreme Court decisions.

Before we go to the decisions, it will be meaningful to see the legislative history before the amendment of this provision.

HISTORY

“The Negotiable Instruments Act 1881 (the Act) was enacted to define and amend the law relating to promissory notes, bills of exchange and cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques, due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realize the value of the cheque. Such delay compromises the sanctity of cheque transaction. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.

Now it is necessary to see the amended provision.

Section 148 -- Power of Appellate Court to order payment pending appeal against conviction

(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial court:

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant.

(3) The appellate court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the complainant”.

Recently a two judge bench of the S.C. comprised by Justice M.R.Shah and A.S Bopanna, held in Surinder Singh Deswal @ Col. S.S.Deswal & Ors. v. Virender Gandhi, reported in (2019 (2) KLT 985 (SC)) that S.148 as amended shall be applicable in respect of appeals against the order of conviction and sentence, even in a case where criminal complaints were filed prior to Amendment Act No.20/2018 i.e., prior to 01.09.18.

Before analyzing this decision it is necessary to see the basis or the root cause for making such a decision. In the said decision S.C. disposed off a batch of criminal appeals challenged a common judgment and order passed by the Punjab and Haryana High Court. In the last sentence of the 10th para of the said decision S.C. stated that “in view of the above and for the reasons stated herein above, impugned judgment and order passed by the High Court (P&H) does not call for any interference”. Moreover in the 12th para of the said decision S.C. further stated that “in view of the above and for the reasons stated above, we see no reason to interfere with the impugned common judgment and order passed by the High Court (P&H) dismissing the revision applications confirming the order passed by the 1st appellate court directing the appellants to deposit 25% of the amount of fine or compensation pending appeals”. These two statements clearly shows the intention of the Supreme Court not to interfere in the common order passed by the Punjab and Haryana High Court. This means Supreme Court has accepted the finding in that common judgment as such.

Now we can see the finding of Justice Mahabir Singh Sindhu of Punjab and Haryana High Court, who passed the common order challenged before the S.C.

Finding of Justice Mahabir Singh Sindhu

“A co-ordinate bench of this court in C.R.R.No.9872 of 2018 titled as M/s.Ginni Garments & Anr. v. M/s. Sethi Garments (2019 (2) KLT OnLine 3101 (P. & H.)) along with other connected matters, decided on 04.04.19, after taking into consideration the provision of Section 143A and Section 148 of the Amendment Act 2018 held as under:-

xxxxxx Having heard the learned Counsel for the parties and perusing the documents on record it is clear that the dispute between the parties is relating to the applicability of Section 143A and Section 148 of the Act introduced vide Amendment dtd: 02.08.2018 to the cases which were already pending at the stage of the trial or to the appeals arising from such trials, whether filed before or after the enforcement of the above said provisions. xxxxxx Since the provision for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provisions introduced vide S.148 of the Act which relates only to recovery of amount partly as interim measure has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter.

This court does not find any substance in argument of learned counsel for the petitioners that since the object and reasons for introducing the amendment relate to giving benefit to the complainant and do not relate to the procedure of the appeal, therefore it cannot be treated to be a procedural step. As is noted above irrespective of the object and reasons of the Act, the bare language of the provisions only authorizes the court to pass an interim order which is only in modification of the procedure of recovery which already existed in the general provisions of law relating to recovery of fine or compensation. Hence, for obvious reasons, the rationale qua objects and reasons of the Act, which is applicable at the stage of trial; cannot be imported to the stage of appeal. As mentioned above, at the stage of trial the provision of S.143A of the Act has created a new obligation against the accused, which was not contemplated by the existing law and which created a substantive liability upon him, whereas the provision of Section 148 of the Act only re-iterated; and to some extent modified in favour of the appellant, the procedure of recovery already existing in the statute book. Still further, this court does not find any force in the argument of the learned counsels for the appellants that Appellate Court could not have made the suspension of sentence of the petitioners conditional upon deposit of amount of interim compensation as ordered by the Appellate Court. It deserves to be noted that even suspension of sentence is in the judicial discretion of the Appellate Court. If the Appellate Court makes such judicial discretion subject to a statutory provision relating to deposit of interim compensation, then no fault could be found with such exercise of discretion. Moreover such a course of action even forms part of procedure prescribed under Section 424 of Cr.P.C., through relating to a different type of suspension of sentence. But it shows that if the Appellate Court makes suspension of sentence subject to payment of statutory interim compensation or fine then such an order is in commensurance with the statutory provisions contained in Cr.P.C. and the intention of the legislatures as contained in Section 148 of the Act.

xxxxxx In view of the above, the point involved in the present cases has already been decided and the same is squarely covered by the judgment rendered in M/s. Ginni Garments and another v. M/s.Sethi Garments. Consequently this court has no option except to dismiss all the petitions”.

This was the finding of Justice Mahabir Singh Sindhu. In this case a batch of petitions (33 petitions) are decided in which some of the petitions are challenged the orders passed by the trial court under Section 143A petitions and the rest of the petitions are challenged the orders passed by the Appellate Court under Section 148 petitions. In this case all the petitions filed u/S.148 are filed after the Amendment Act came into force, hence the application of S.148 to pending appeal or appeal filed prior to the Amendment Act does not arise for consideration in this case. But Justice Mahabir Singh Sindhu disposed the above said batch of petitions by relying upon the judgment passed by the Division Bench of that Court in M/s. Ginni Garments & Anr. v. Sethi Garments (2019 (2) KLT OnLine 3101 (P. & H.),

So, for further clarification of finding of Justice Mahabir Singh Sindhu, we have to see the relevant portion of the Judgment of the division bench in M/s. Ginnni Garments (supra) case.

Finding in M/s. Ginni Garments case

xxxxxx “Although the provisions of S.143A of the Act cannot be applied to the pending trials/however, this court finds that the situation regarding S.148 of the Act is drastically different. As observed above, this provision also has to be read in conjunction with the relevant provisions of Cr.P.C. Further this court also finds substance in the argument of the learned counsel for the respondent that although “Right to Appeal” per se is a substantive right, file and prosecute appeal only in accordance with any particular provisions. The right to appeal being a statutory right, has to be availed only within the parameters provided by the said provision. Therefore if any provision relating to dealing with the appeal by the appellate court is altered, the said provision has to be treated as a procedural provision only. Considering the provision of S.148 of the Act, this court finds substance in the argument that the said provision does not in any way affect the substantive right of the accused, to defend himself or to prosecute his appeal. The provision categorically provides that in case the accused/appellant is acquitted by the Appellate Court, then the amount awarded by the appellate court shall be returned to him by the complainant along with interest. It is no way affect the defence or the prosecution of appeal by the appellant, rather it is a beneficial provision for the appellant/accused. Hence it has to be held that provision of S.148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter”.

This was the base case relied upon by Justice Mahabir Singh Sindhu, while disposing the Surinder Singh case then. When the matter came before the Supreme Court, Supreme Court accepted the decision of Justice Mahabir Singh Sindhu and stated as follows: “By the amendment in S.148 of the N.I. Act it cannot be said that any vested right of appeal of the accused has been taken away or affected. Therefore the submission on behalf of the appellants (accused) that amendment in S.148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 01.09.2018 shall not be made applicable has no substance and cannot be accepted”.

Here Supreme Court made it clear that the amendment u/S.148 of N.I Act does not take away or affect any vested right of appeal of the accused. This clearly throws light on the intention of the Supreme Court that the amendment u/S.148 is not substantive in nature but it is purely procedural in nature. Moreover Supreme Court said in that decision, that the submission of the appellant (accused) has no substance and cannot be accepted. Now we can see what was the submission made by the appellant (accused). The appellant submitted that the amendment in S.148 of N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 01.09.18. If we check the submission of the appellant so closely we can see that his submission is that S.148 has no retrospective application and more particularly in those cases where complaints filed prior to the amendment. If we scrutinize this point we can see that there may be two kind of appeals (only for the purpose of understanding). One is, appeal filed prior to the amendment (pending appeal) and another is appeal filed after the amendment. Both these appeals may arise in a complaint filed prior to the amendment i.e., 01.09.2018. Can we expect that Supreme Court has not aware about these two situations which may arise in a complaint filed prior to the amendment. No, Supreme Court was well aware about these two situation that’s why Supreme Court has stated that “even in a case where the criminal complaints for the offence under S.138 of N.I. Act were filed prior to Amendment Act No. 20/2018 i.e., prior to 01.09.18 S.148 is applicable”. This clearly includes both the pending appeal as well as post amendment appeal. Not only this, Supreme Court has never made any indication in that decision that S.148 is not applicable to pending appeal. This means that what is not prohibited is presumed to be permitted.

But here in Abu-Faizal v. State of Kerala (2019 (4) KLT OnLine 3062) Justice Mary Joseph heavily relied upon the contention of the learned Senior Counsel on behalf of the appellant (accused) that the amendment brought into N.I. Act being effective only from 01/09/18, cannot have retrospective operation to Crl. Appeals filed prior to that date. On relying that contention the Hon’ble Justice ordered that “in view of the patent illegality involved in the order, notice to respondent is dispensed with”. In the eye of law, no doubt, this order is purely illegal since it violates the principle of natural justice of the poor complainant who had spend considerable time and resources in court proceedings for the past 7 years. Can we say, that, this was the intention of the legislature while making such amendment. For answering this question, we have to study S.148 of N.I.Act more closely. Look at the heading itself.

“Power of Appellate Court to order payment pending appeal against conviction”.

Firstly the heading itself shows the power of the appellate court to pass order regarding payment in pending appeal against conviction. If Parliament had intention that this provision should apply only to those appeals filed after the amendment then the word “pending” can be avoided so as to appear like “power of Appellate Court to order payment in appeal against conviction”. But here Parliament deliberately used the word “pending appeal” which means the benefit of this provision should also go to the pending appeals.

Secondly the S.148(1) starts with “Notwithstanding anything contained in Cr.P.C. ..........................This is a non obstante clause. The word non obstante clause is defined in P. Ramanatha Aiyar’s Concise Law Dictionary as “it is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment”. This means the contrary provisions in Cr.P.C. is excluded.

Thirdly, there is no indication that when this power is to be exercised that means, this power can be exercised at any time. What is not prohibited is presumed to be permitted can be applied here.

Fourthly Sub-clause (3) in S.148 clearly state that the Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal. This clearly shows that during the pendency of the appeal the court may direct the release of the amount deposited by the appellant. Take a moment that the appellate court had not exercised its power u/S.148 while suspending the sentence. Can we say that the complainant, who appeared subsequently cannot invoke the benefit of this provision since the appellate court had already suspended the sentence. Then it will be a nugatory of this beneficial provision. Absolutely, this will not be the intention of the legislature.

Lastly, this provision is a beneficial provision for the accused also. No prejudice will cause to the accused.

By the above mentioned points we can see the intention of the legislature behind its enactment, that it should be applied to pending appeals also.

Moreover a two Judge bench of the Supreme Court headed by Justice U.U.Lalit and Vineeth Saran subsequently held in Raja v. Tejraj Surana (2019 (3) KLT 634 (SC)) that S.148 has retrospective in operation while S.143A has prospective in operation.

While deciding this case, S.C. culled out certain principles settled by S.C. with regard to the ambit and scope of an Amending Act and its retrospective operation as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, where as a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

In Raja v. Tejraj Surana case S.C. held “that S.143A is prospective in operation since it imposes new obligation or liability upon the accused before his guilt is being ascertained. But S.148 of N.I.Act stands on a different footing while comparing with S.143A. S.148 applies only post conviction stage, where the accused is already found guilty and liable for payment. This liability is not a fresh liability or burden. It is his duty to pay. If he has failed to pay that amount; the consequential recovery of that amount can be made through the modality of S.421 or S.357 of Cr.P.C. That’s why the legislature has not provided in S.148 a provision which is similar to sub-section (5) of S.143A of the Act, because S.421 or S.357 of the Code which applies post conviction stage are adequate to take care of such requirements. In that sense S.148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by S.143A of the Act”. This was the finding of Supreme Court in Raja v. Tejraj Surana case.

In Tejraj Surana case Supreme Court further stated that:- we must refer a decision of this court in Employee’s State Insurance Corporation v. Dwaraka Nath Bhargwa (1997 (2) KLT Online 1120 (SC) = (1997) 7 SCC 131) where provision of S.45B was inserted in Employees State Insurance Act 1948 with effect from 28.01.1968 was held to be procedural in nature and that it could have retrospective application. Said S.45B is as under:-

“45B.-- Recovery of contributions: Any contribution payable under this Act may be recovered as an arrear of land revenue”.

In this case the issue was whether the modality of recovery so prescribed in said Section 45B could be involved in respect of amounts which had become payable on 27.01.1967 and 24.01.1968 i.e., before said S.45B was inserted in the statute Book. While holding that the arrears could be recovered as arrears of land revenue, it was observed, “it is not in dispute and cannot be disputed that the contributions in question had remained payable all throughout and were not paid by the respondent”. Like that, the amendment in S.148 is procedural in nature and the liability or obligation or burden imposed by S.148 is in post conviction stage, hence it is not a liability or burden imposed upon the accused as like that of in S.143A. Thus we can come to the conclusion that S.148 is applicable not only to appeals filed after the amendment but also to pending appeals.

Abu Faizal v. State of Kerala (2019 (4) KLT OnLine 3062) a one sided verdict

In Abu Faizal v. State of Kerala (2019 (4) KLT OnLine 3062), Justice Mary Joseph in para 19 of the said decision pointed out that “the power under S.148 is meant to be invoked when the appeal is preferred or to say more specifically prior to passing of an order suspending the execution of sentence under S.389(1) of Cr.P.C, her lordship further stated that, the application preferred by either party to the appeal beyond that time shall not be entertained by the Appellate Court in view of sub-section (2) and (3) and proviso thereunder”.

This view of her lordship is not proper. I am disagreeing with this view on three grounds.

Firstly, it is a one sided verdict. This case was filed on 29.08.2019 and disposed on the very next day i.e., 30.08.2019 without issuing notice to the opposite side. It is a sheer violation of the principles of natural justice (Audi Alteram Partem). On this ground itself the applicability of this verdict can be questioned.

Secondly, No doubt, S.C. has stated in Surinder Singh’s case that the power under S.148 can be invoked by the appellate court either on application filed by the original complainant or even on an application filed by the Appellant - accused under S. 389 of Cr.P.C. to suspend the sentence. Take a moment that, if the Appellate Court failed to invoke the power u/S.148 at the time of suspending the execution of sentence by any other reason, complainant can file application for invoking the power of the Appellate Court u/S.148, because a complainant will appear before the appellate court only after the admission of Appeal and suspension of the execution of the sentence. If we take her lordships view for the sake of discussion, “that the power under S.148 is meant to be invoked when the appeal is preferred or to say more specifically prior to passing of an order suspending the execution of sentence under S. 389(1) of Cr.P.C”, the poor complainant will lose the benefit of this provision, is it was the intention of the legislature at the time of making the amendment.

Thirdly, legislature made this provision as a non obstante clause with a view to give an overriding effect over the provisions of Cr.P.C. in case of conflict. Moreover no specific time or stage is mentioned in S.148 for its application. If the legislature itself has not made any specific time or stage for its application then, how her lordship can fix or interpret that the power u/S.148 shall be invoked prior to passing of an order suspending the execution of sentence under S.389(1) of Cr.P.C. This is against the observation made by the S.C. in Surinder Singh’s case.

Fact situation in Abu Faizal’s case

It is true that Abu Faizal’s case is posted for Judgment but re-opened. After re-opening the officer who re-opened the case got transferred to another district and a new officer came to consider the case. Here the situation changed and the case which is posted for judgment taken for fresh hearing. At that time only, the complainant filed S.148 petition considering the further delay that may occur in the changed circumstances. This situation was not noted by the counsel who appeared in Abu Faizal’s case for accused and thus misled her lordship Mary Joseph to think and observe that the appeal is at the fag end of trial or pronouncement of judgment and in case the accused is acquitted no purpose will be served by directing the accused to deposit any sum. This was not misunderstood but misrepresented by the counsel appeared for the accused and it is exhaustive in a case where notice is discarded to the opposite party. This case is one of the best example, how easy courts can be misled by counsels.

Supreme court has never stated that S.148 has application in complaints filed to launch prosecution u/S.142 N.I. Act prior to 01.09.2018, which are pending consideration of courts, but stated it is applicable even in case where the criminal complaints for the offence under S.138 of the N.I. Act were filed prior to amendment Act i.e., prior to 01.09.18.

So, by this discussion we can see that in State of Punjab and Haryana S.148 has application in pending appeals, but in State of Kerala it has no application in pending appeal, because of the reported decision in Abu Faizal’s case. A decision passed by the Supreme Court has two applications in two different states, is this was the real intention of the legislature. A corrigendum is highly required from the judiciary in this regard, otherwise, who knows, how many complainants in pending appeals will lose the benefit of S.148 by the verdict in Abu Faizal’s case.

No Forum Shopping

(By R. Muralidharan, Puducherry Civil Service Officer (Retd.), Director, Catalyst
                                                                                              [The Training People]

Forum shopping is a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favorable judgment. It is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. While forum shopping has not been given an exclusive explanation in India, the Indian judiciary through its observation has assisted in streamlining this concept in the country’s legal system. First of all, the practice of forum shopping is not permitted by Indian law. The judiciary has repeatedly criticized the practice and called it an abuse of law. A plaintiff cannot be allowed the ‘choice of forum’ and any attempt by them to go ‘forum shopping’ should be pulverized strictly.

Appeal and Revision under Co-operative Law

The term appealin legal parlance means ‘taking or carrying of a cause from a lower court or authority to higher court or authority for the purpose of rehearing and re-examination of legal issues for a fresh and final decision or disposal’. If the right of appeal is not provided to the affected or aggrieved party to the issue or dispute, it is quite possible that the decision making authority designated, established or created might decide the case arbitrarily, illegally and irrationally. Therefore, with a view to put checks on the proper exercise of power, the appeal provision is provided under law.

If the disputed or questionable decisions taken, orders passed, approval granted, etc., are by persons authorized by the Registrar of Co-operative Societies, then the appeal on the above mentioned subjects has to be preferred to the Registrar. On the other hand, if the said orders, decisions, etc., are passed by Registrar himself, then the matter has to be appealed to the Government.

Revision,in general sense refers to the act of undertaking re-look or re-examination or reconsideration of matters, subject, records, etc., with the intention to ensure correctness through improvement or amendment. Revision under co-operative law refers to the power vested upon the Registrar or Government to legally call for official records from their subordinate officers, committee of management, officers of the society, etc., and examine the same to ensure or satisfy the correctness, regularity, legality or propriety of decisions taken or orders passed by the said subordinate officers or authorities.

In almost all State Co-operative Societies Acts two appellate forums are available, viz., Co-operative Tribunal and Government. The Tribunal is headed by a judicial officer. There is a complete demarcation of issues which are to be referred to the Tribunal and to the Government. Revisional power is exercised by the Registrar and the Government in respect of proceedings for which appeal to Tribunal is not provided.

Appeal/Revision to the High Court

The person aggrieved by the decision of the Tribunal or the Government has his remedy before the High Court under Article 226 (writ jurisdiction) or under Article 227 (civil revision petition).

Now the moot question is whether the aggrieved person is at liberty to invoke either Article 226 or Article 227 to assail the decision of the Tribunal or authority or is there any inbuilt restriction/limitation on its jurisdiction. In the absence of any demarcation, will it not amount to forum shopping (see the prologue for its lexicon)?

Scope, powers and difference between Article 226 and Article 227

Article 226 empowers the High Courts to issue, to any person or authority, including the Government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces).

The first and foremost difference between the two articles is that proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.

Under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted: (i) without jurisdiction, by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have, or has failed to exercise a jurisdiction which it does have, or the jurisdiction though available is being exercised by the court in a manner not permitted by law, and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

The jurisdiction of 226 and 227 is vast and has to be exercised sparingly. It can be exercised to correct errors of jurisdiction, but not to upset pure findings of the fact, which is within the domain of an appellate court only. This is where the power of revision comes into picture. The purpose of revision is to enable the revision court to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the inferior criminal court. The jurisdiction of Article 226 cannot be used as a Revision or Appeal court as the rejection of the order by the subordinate court does not arise the question of violation of fundamental right when the alternate remedy of appeal is available to the aggrieved.

Is there a choice of remedy?

When the order of the Co-operative Tribunal, dismissing the appeal filed by the petitioner was impugned before the High Court of Madras in T.Rengarajan v. V. Ramachandran, Enquiry Officer, Pudukottai & Ors. (2018 (4) KLT OnLine 3126 (Mad.) = C.R.P.(MD).No.609 of 2017 dated 11.10.2018), the respondents maintained that against surcharge proceedings usually Writ Petitions are filed and not Civil Revision Petitions. It is a fact that questioning the orders passed by the Co-operative Tribunals in appeals filed against the orders of surcharge under Section 87 of the Tamil Nadu Co-operative Societies Act, Writ Petitions as well as Civil Revision Petitions are filed by the aggrieved parties. The Court observed that the aggrieved has no choice of remedy and the maintainability of Civil Revision Petition has to be decided first.

In Annamalai Mudaliar v. Unknown (1952 KLT OnLine 814 (Mad.) = (1952) 65 L.W.1229),it was held that a civil revision petition under Article 227 of the Constitution of India would lie against an appellate order passed by the Co-operative Tribunal in respect of surcharge proceedings under the Madras Co-operative Societies Act. Therefore, in the very nature of things, it is only the jurisdiction under Article 227 that is to be invoked and not the writ jurisdiction under Article 226. This conclusion is further fortified by a decision of the Supreme Court in Himalayan Co-operative Group Housing Society v. Balwan Singh (2015 (3) KLT Suppl.162 (SC) = (2015) 7 SCC 373).The issue that was framed by the Supreme Court was on the jurisdiction of the Court while dealing with the petition filed under Articles 226 and 227 of the Constitution of India. The Court observed that a Writ of Certiorari under Article 226 though directed against the orders of an inferior Court would be distinct and separate from the challenge to an order of an inferior Court under Article 227. The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall within the purview of the scope of the supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked.

On the above premised reason, the Court held that the order passed by the Co-operative Tribunal disposing of an appeal under Section 152(1)(a) of the Act against the surcharge proceedings under Section 87 will be exclusively amenable to the revisional jurisdiction under Article 227 and a Writ Petition under Article 226 will not be maintainable.

The Division Bench of Patna High Court in the case of Vijayanand Puri v. Deorani Devi & Anr.reported in (2019 (4) KLT OnLine 3142 (Pat.) = 2019 SCC OnLine Patna 1808
observed that the law has concretized that there are manifold differences between
Articles 226 and 227 of the Constitution of India and one of the parameters to test whether an order has been passed under Articles 226 or 227 is that under Article 226, a High Court can annul or quash an order or proceeding but under Article 227, a High Court can, apart from annulling a proceeding in question, can also lay down the boundaries within which the inferior court is supposed to exercise its jurisdiction in order to rectify any error of law and fact apparent on the face of the record. 

If the judgment under appeal falls squarely within four corners of Article 227 of the Constitution of India, it goes without saying that intra-Court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226 of the Constitution of India, although Article 227 of the Constitution of India is also mentioned, and principally, the judgment appealed against falls under Article 226 of the Constitution of India, appeal would be maintainable.

A writ of certiorari to correct a judicial order is not permissible and therefore does not stand the scrutiny of procedural law.

In E.S. Sundara Mahalingam v. The Special Tribunal for Co-operative Cases (District Judge), Tirunelveli & Ors. (2019 (4) KLT OnLine 3143 (Mad.) = W.A.No.4021 of 2019 dated
22.11.2019), the appellant was unsuccessful before the learned single Judge in challenging an order of surcharge passed against him by the Co-operative Tribunal. When the judgment of the learned single Judge was taken on appeal before the Division Bench, the Division Bench applied the ratio in Vijayanand Puri v. Deorani Devi and another [supra].

The fact remains that the decision that was under challenge before the learned single Judge was admittedly that of a Tribunal. The jurisdiction of the Court therefore which could be exercised was under Article 227 of the Constitution and the petition could have been treated to be that under Article 227 only. But the aforesaid issue does not appear to have been dealt with by the learned single Judge. Since the Writ Petition filed under any caption whatsoever, was against the order of the Tribunal, it is the learned single Judge who could and should have treated the petition under Article 227 of the Constitution of India. The Writ Appeal against the jurisdiction exercised under Article 227 would not be maintainable.

Upshot

An analysis of the above judgments would lead to the following propositions:

l An order passed by the Co-operative Tribunal disposing an appeal is amenable to the revisional jurisdiction under Article 227 of the Constitution.

l Such an order cannot be challenged invoking writ jurisdiction under Article 226.

l An order passed by the Registrar or the Government or any other authorities can be assailed under Article 226.

l If a Civil Revision Petition under Article 227 is filed, there cannot be any further intra-Court appeal. The appeal would be only before the Supreme Court.

l There is no choice of remedy to the litigant and hence there is no forum shopping.

Criminal Liability of Medical Professionals

Is there any Need for A Revamp?

(By Soumya James, Advocate, High Court of Kerala)

We havea lot of laws in our country to regulate the medical field. However when we conduct a deep analysis of the existing laws, we can clearly understand that these laws are not at all competent to control and regulate the medical malpractices and unethical activities committed by certain medical practitioners. Therefore it is essential to revamp the law relating to medical offences and fixation of criminal liability for the violators in this field. Following are some of the reasons which pointed the necessity for a relook into the law relating to medicine.

1. Different standards for the same offence:

Our Judiciary, while applying the provisions of I.P.C. in determining the criminal liability of accused in respect of the same offence, provides a special treatment to medical professionals. The Apex Court laid down the following principle while dealing with the criminal liability of accused for rash and negligent acts. A doctor is not criminally responsible for a patient’s death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the state. Not only that here the degree of negligence required is that it should be gross, and neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. Therefore the court must be very cautious of imputation of a criminal negligence to a medical professional who act in the course of his profession¹.

In Suresh Gupta v. Government of NCT, Delhi ², the Supreme Court held that, “Between civil and criminal liability of a Doctor for causing the death of his patients, the court had a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor”³. However this was the view of the single judge which was doubted by the two judges bench of

Supreme Court, in Cr.Appeals (144-145 of 2004) which assigned the following reasons for the disagreement with the above view:

•    Negligence or recklessness being gross is not a requirement of S.304 In many case particularly in Gupta’s case, the court observed that “For fixing criminal liability on a doctor or surgeon the standard of negligence required to be proved should be so high as can be described as gross negligence or recklessness.......mere inadvertence or some degree of want of care and caution might create a civil liability and if the view taken in Suresh Guptas case is to be followed then the word gross shall have to be read into S.304 A of I.P.C. for fixing criminal liability on a doctor. Such an approach cannot be countenanced.

•    Different standards cannot be applied to doctors and others. In all cases coming under S.304 A, the court has the obligation to confirm whether the impugned act was a rash or negligent one before fixing a criminal liability on the accused. In the case of doctors, the court is extending a special treatment for them in such cases by introducing a new degree of rashness or negligence. This would definitely be a violence committed to the plain and unambiguous language of S.304A.

Later, the matter was referred to larger bench. There the Supreme Court after an elaborate discussion of English and Indian judgments summed up the law on criminal negligence as follows:

•   Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. The essential components of negligence are three: duty, breach and resulting damage.

•  Doctors must be treated differently. It observed that negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer a rashness or negligence on the part of a professional, particularly in the case of a doctor, additional considerations must apply.

•  Bolam’s test is applicable in India;

•  Gross negligence alone comes under the purview of Criminal negligence;

•  Therefore gross has to be read into section 304-A I.P.C. i.e., though the word has not been used in section 304-A, the expression rash or negligent act has to be read as qualified by the word grossly.

•  Res ipso Loquitorhas a limited application in trial on a charge of criminal negligence. According to the view of SC, it is only a rule of evidence and operates in the domain of civil law especially in cases of torts and helps in determining the onus of proof in actions related to negligence. It cannot be pressed in service for determining the per se liability for negligence within the domain of criminal law.

However the SC till now in any case did not provide a common standard for identifying gross negligence from an ordinary negligence. Even today there is uncertainty to determine and distinguish a gross negligence from a mere lack of care, skill or attention. In Guptas case the court held that “this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extent to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence”.

The intensity or gravity of negligence shall be the prime factor for determining it as a crime punishable under criminal law. Therefore whether a medical negligence amounts to crime or not is a question of fact in each case for the jury. In order to identify the existence of criminality in a medical negligence, the court usually follow various test and use many epithets such as culpable, clear, gross, wicked, complete etc.

These issues were decided by the Supreme Court in Jacob Mathew v.State of Punjab⁴. In this case the court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressures in performing their duties. It also provides certain guide lines to deal the matter until a comprehensive law is framed by the government. The court itself had the opinion that the offences committed by medical professional are distinct from the ordinary offences. Therefore it requires special attention.

Burden of proof in Criminal negligence: In case of criminal negligence, the burden of proof is on the complainant. So if a patient alleges malpractice in medical, the law will require a higher standard of evidence to support it. But to an ordinary man or a patient, it becomes very difficult to determine the exact damage and the causal relation between injury and the fault of the doctor. The prosecution has to submit the evidence in support of medical negligence from the part of doctor. To an ordinary man the medical field is unexpected and unpredictable. Therefore the prosecution may not be able to prove guilty of doctors beyond reasonable doubt. The admissibility of evidence is based on Bolam test i.e. it requires the opinion of the experts of some competent medical professionals. Here the problem is that no doctor makes an opinion about the other doctor in such a way that it affects his reputation in the profession except in some rare cases. A comprehensive law should be made to protect the rights of patients against the unpredicted medical malpractices by the doctors. All the above analysis pointed out the need for a comprehensive penal law to regulate the medical offences.

2. Is there any need to amend I.P.C.?

In India I.P.C. is considered as the substantive criminal law. Though it has amended its main structure has continued intact till now. It is an admirable compilation of substantive law because most of its provisions are as suitable today as they were when they were formulated. But the social and economic structure of India has changed to such a large extend that in many respects the code does not truly fulfills the needs of the present day. Though it consist of all major crimes such as offences against person, property and state, it is too adequate to deal with the criminal tendencies in the field of medicine. The medical offences what we can call it as one of the white collar crimes is distinct from the ordinary offences. We cannot blindly apply the provisions in the I.P.C. to punish a medical professional because the situation under which a medical offence is committed by him is truly different from an offence committed by an ordinary person. The I.P.C. 1860 is too adequate to deal with the medical offences. Therefore a law defining the medical offences and the procedures to regulate and control such offences must be enacted and such law must be harmoniously constructed with the provisions of I.P.C. The provisions of IPC dealing with medical offences should also be amended in such a way as to enhance punishment to the blame worthy medical professionals and thereby providing justice to the patient and their relatives and to prevent unnecessary and frivolous petitions against ethical doctors.

3. Criminal liability of Quacks:

India being the 2^nd largest population of the world has an obligation to ensure adequate health care facilities to all its citizens. In India we have mainly four varieties of medical profession⁵ such as

• Allopathic: This method of treatment outsmarted other methods because it can provide relief in emergencies.

• Homeopathic: The Homeopaths insisted that though these method of treatment is time taking, they cure the disease permanently by rooting out the cause.

• Ayurvedic: Ayurvedic medicines are being used from time immemorial. It was developed and practiced in India from Vedic days. The curative values of Ayurvedic medicines are enormous. However Ayurvedic system passed through a dull period when allopathic treatment showed remarkable achievement.

• Unani (Hekimi). These medicines are somewhat similar to Ayurvedic medicines and are few in numbers. There has not been any effort to modernize these medicines. Still it is a fact that it has a big potentiality to play a vital role to fight diseases.

Due to the remarkable achievement and quick relief attained by allopathic medicines made the common people to opt allopathic treatments instead of other areas of medicines. But the problem is that the modern medical facilities are available only in the urban areas and in India, 70% of the population is living in the rural areas. The specialists and consultants are always wanted to practice in the urban areas because the people in these areas can afford the high costs of professional fees, medicines and facilities. Rural areas are inhabited mostly by the farmers and their economic capacity could not permit them to afford such a high cost medical services. Therefore they used those medical facilities which they can afford. This led to an emergence of a system of treatment in the rural areas which is offered by the quacks. They do not have the medical degrees either in the allopathic or Ayurvedic stream. They developed the idea of medicines from the prescription of doctors for a number of common diseases. They are easily approachable to villagers and the prices charged by them are very low. They even visit the patients at their homes. Therefore obtaining medical services at the door steps of the persons in need at low prices increases the popularity of quacks in the rural areas. There are cases when the medicines given by quacks caused severe consequences but the villagers accepted it as bad luck and treat quacks as their ‘doctors’ and ‘family physicians’. The doctors practicing homeopathy, Ayurvedic or Unani system of medicine especially in the rural areas are also started practicing Allopathic for their monetary gains. This has serious repercussions. The courts have also taken a serious note of this and ruled that if a person practice medicine without possessing the requisite qualifications or the enrollment under the medical council act, he becomes liable to be punished with imprisonment and fine. The court also added that since the law requires him to practice in a particular system of medicine, he is under a statutory duty not to enter in the field of other systems. According to the Supreme Court, a person who does not have knowledge of a particular system of medicine but practices in that system is a quack.⁶

Not only that in our country we have several other private practitioners who are not having any formal qualifications such as herbalists, tantriks, hakims, vaidyas and others. They are very popular among poor and illiterate people in the rural areas. Lack of education and general awareness among the common people in the rural areas and non availability of adequate medical services are the main reasons for the flourishing of quacks in the rural areas of our country. These culpable persons must be handled with heavy punishment. The Apex court in D.K.Joshi v. State of U.P. & Ors.⁷directed the district magistrates and chief medical officers of all the districts in UP to identify and take appropriate action against all persons practicing medicine without appropriate recognized qualifications. Therefore it is essential to amend the Indian penal laws in such a way to provide deterrent punishments for the quacks that are under the guise of fake degrees resort to rash and negligent act resulting in the death of innocent patients.

4. Role of medical council in protecting the interest of victims:

In India, the right to practice in allopathic, homeopathic, Ayurvedic, Unani and other systems of medicines are regulated by Central and State legislation. The prominent Central acts are as follows:

•   Indian Medical Council Act 1956

•   Dentist Act 1948

•   The Indian Medicine Central Council Act 1970

•   The Homeopathy Central Council Act 1973

•   The Pharmacy Act 1948

•   The Indian Nursing Council Act 1947 etc.

These legislative enactments provides for the setting up of Medical councils at national and state levels and empower them with the powers of to lay down minimum standards for medical education, enrolment of doctors and also regulate their professional conduct by formulating the code of medical ethics.

Indian medical councils act was enacted in 1956 mainly for the purpose of reconstitution of medical council of India, the maintenance of a medical register for India and matters incidental thereto. A detailed examination of the various provisions contained in the medical council of India act reveals that though the act has made provisions for the regulation of doctors, hospitals and nursing homes, it is silent with regard to the protection of the interests of the persons who have suffered any negligence or deficiency in the service rendered by members of the medical profession. The medical council of India provided for the setting up of state medical councils for the regulation of the conduct of medical professionals. The joint study undertaken by the Indian law institute and VOICE reveals that in many of the states these councils are not effective and have failed to serve their purpose⁸

If a complaint is made against a doctor or medical professional for professional misconduct, the general procedure is that the Medical Council of India forwards the complaint to the concerned State Medical Council for necessary action. If the complainant is not satisfied with the decision of the state council, he is advised to approach the concerned state government. In general, the doctors being the local members of concerned medical councils will be in a position to influence the state councils, resulting in grave injustice to the complainants. To tackle these types of injustices, suitable amendments must be made to empower the medical council with the powers to take disciplinary action to redress the grievances of the complainants.

5. Need for a legal frame work in clinical trials:

Due to new and highly advancements in science and technology, everything seems easier. The invention of more efficient painkillers, new discovery to prevent obesity, highly advanced research and findings in the area of stem cell, cloning alternate reproductive techniques etc. keeps us beaming at the wonderful discoveries of science. The process behind the success of above said scientific developments includes many trials, errors, rejections and other issues. This entire process from the very beginning is termed as ‘clinical trial’. The clinical trial is now the 2^nd leading industry in the world. But behind most of the clinical trials, there may be unethical inhuman horrible medical experimentations which are beyond the expectation of a common man.

Today in the modern era in spite of conducting experiments in the animals, the scientific researchers in the medicine and bio related aspects exploiting human subjects for making a breakthrough in the medicine. Behind all these miraculous achievements, there is a horrible past, present and probably future invents which are highly unethical, illegal and against morality and human values⁹

Even though there are strict rules and regulatory documents both at the national and the international level such as Nuremberg code, declaration of Helsinki, there exist some overambitious professionals who are having no ethical values. They treat other human beings as merely subjects for their professional achievement. The emerging of such professional will hold the human life at stake.

India has long been identified as a major resource centre for conducting clinical trials and data management services because of its large patient population, well trainees and enthusiastic and foreign educated investigators and significantly lower cost.¹⁰ Volunteer enrollment is also very high as people believe that participation in research trials could offer them access to quality health care and medicines, which otherwise would not be affordable. The result is that the subjects are compliant and keenly attend all study visits.¹¹

A major threat India faces in this area is its low literacy levels, which has always kept the regulators skeptical about the possibility of the volunteers being not adequately informed about the risks they are undertaking. However compliance to International Conference on Harmonization - Good Clinical Practice (ICH - GCP Norms), trained investigators, a growing population of experienced monitors and exposure to international protocols seem to provide some relief to such issues.

The legislative framework governing medical researchers in India are as follows:

•    Drugs and cosmetics act 1940

•    Drugs and cosmetics (II Amendment) Rules, 2005

•    ICMR Guidelines, DBT Guidelines

•    Medical Council of India Act 1956 (Amended in the year 2002)

•    Central Council for Indian Medicine Act 1970

•    Guidelines for Exchange of Biological Material ( MOH Order 1997)

•    Right to Information Act 2005

•    The Constitution of India

•    The Bio medical research on human subjects( regulation, control and safeguards) Acts, rules and codes of ethics of professional bodies regulating the practice of medicine in India such as the medical council of India, Department of Ayurveda, Yoga, Unani, Siddha and Homeopathy (AYUSH) Bill- 2005.

Apart from these regulations, The Indian Council of Medical Research or the ICMR which was established with a view to foster a research culture, improve and develop infrastructure and foster community support plays a significant role in controlling clinical trials in India. The Drugs and Cosmetics Act and the Medical Council of India Act states that all clinical trials in India should follow the ICMR Guidelines of 2000. The ICMR has a mechanism of review for its own institutions.

Today India is one of the hottest destinations for global clinical trials¹². At the same time we cannot deny the fact that our country has witnessed several gross violations of human rights and ethical values while conducting trial on volunteers enrolled in studies. For eg: In 1999, in a government run regional cancer centre at Trivandrum, an experimental drug tetraglycinyl nor-dihydro- guaiaretic acid was administered on some patients without obtaining their consent. Though there was an established treatment for their condition, they were not informed that they were taking part in an experiment or that they were being denied the established treatment.

Similarly in 2002, the Pharma giant Norva Nordisk conducted multi centre phase III clinical trials of a diabetes drug even before receiving the result of the animal studies. The study report found that the drug ragaglitazaar caused urinary bladder tumors in rats, and this should have been known before the drug went for phase I trials. The trials were conducted on 650 people from North America, 200 from Latin America, 100 from Australia/ New Zealand, 800 from the European Union and 200 from non EU Europe and 550 from Asia.

In 2003, Mumbai based sun pharmaceutical industries Ltd. Launched a promotional cum research programmes by getting private doctors to prescribe the anti cancer drug Letrozole to more than 400 women as a fertility drug for ovulation induction. The company then publicized the doctors, reports to other doctors as “research” using their network of medical representatives. The drug was prescribed despite the fact that it was known to be toxic to embryos.

Therefore to rely simply on minimum standards of non binding and vague medical ethics is not enough to combat the present situations. In order to address the key issues and challenges in this area, India should evolve various effective policies and ensure implementation in legislative, intellectual property rights structure and regulatory issues.

6. Need to protect medical professionals from false or frivolous cases:

There are reveal that false and frivolous cases have been filed against medical professionals. This tendency should be discouraged because this may create a fear in the mind of doctors/medical professionals that they may be harassed by police or by the law courts particularly in medico legal cases which inhibits them in handling of such cases. The judiciary and police therefore avoid summoning medical professionals for interrogation, unless it is absolutely necessary. Therefore it is essential to evolve certain guidelines and sensitize the police and medical professionals about the judgment of the Apex Court.

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Foot Notes:

1.   Legal Framework for Health Care in lndia (S.K.Verma, SC Sriyastava, Syed Sadiq Ahamed Jilani), Lexis Nexis (A Division of Reed Elsevier India Pvt. Ltd),New Delhi, Year 2002. pp.69.

2.   2004 (3) KLT 14 (SC) = (2004) 6 SCC 422.

3.   Suresh Gupta v. Government of N.C.T. of Delhi & Anr. (2004 (3) KLT 14 (SC) = AIR 2004 SC 4091 = (2004) 6 SCC 422).

4.  2005 (3) KLT 965 (SC) = AIR 2005 SC 3180.

5.   LAW AND MEDICINE; Dr. NANDITA ADHIKARI; Central Law Publications; 3rd Edition, 2012; pp.31-33.

6.   Poonam Verma v. Ashwin Patel & Ors.(1996 (2) KLT SN 2 (C.No.3) SC= (1996) 4 SCC 332.

7.  (2000) 5 SCC 80.

8.   Legal Framework for Health Care in lndia (S.K.Verma, SC Srivastava, Syed Sadiq Ahamed Jilani), Lexis Nexis (A Division of Reed Elsevier India Pvt. Ltd.), New Delhi, Year 2002. pp.166.

9.   Medical Crime - The Horrors of the Horrors written by Dr.enozia vakil and medically reviewed by Dr.Nithin Jayan available at www.mediindia.net>patient>patientsinfo

10.  Clinical trials in India: Ethical concerns ; Patralekha Chatterjee reports in the Bulletin of the World Health Organization. http://www.who.int/bulletin/volumes/86/8/08_010808/en/

11.  Clinical trial regulation in India: The Reality by Deepak.M .B. www.legalservicesindia. com/article/clinical-trial-regulation-in-India-678-1.html.

12.  How ethical are clinical trials in India? By P. Sree Sudha http://www.indianlawjournal.org/archives/volume2/issue_3/article_by_sreesudha.html

Supreme Court Directions Vis-a-Vis Stay Orders –
Inscrutably Paradoxical

(By S.K.Premraj Menon, Advocate, High Court of Kerala)

a. Stay orders by Courts, often blamed for slowing down the judicial process, since 28.03.2018, comes with a six-month shelf-life, pursuant to the Apex Court verdict in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation (2018 (2) KLT 158 (SC) = AIR 2018 SC 2039)(hereinafter referred to as the ‘Asian Resurfacingcase’) – a case which principally dealt with a corruption matter. This direction now revives tens of thousands of cases stalled for years on one ground or the other. The three Judge bench speaking through His Lordship Justice A.K.Goel, unambiguously declared that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from the date of its judgment, unless in an exceptional case by a speaking order such stay is extended. It was inter aliaheld that in cases where stay is granted in future, the same will end on expiry of six months from the date of such order, unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.It was also ordered that a copy of the said judgment was to be sent to all High Courts for necessary action. This judgment was concurred by His Lordship Justice R.F.Nariman. This declaration/direction assumes much significance, as it practically invalidates every order that is passed by the High Courts including those in exercise of its powers under Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code, 1973, by sheer efflux of time. The legality of such a direction and the Constitutional concerns that arise are earnestly endeavoured to be deliberated. It would not be out of place to mention that in Fazalullah Khan v. M.Akbar Contractor & Ors.

(2019 (3) KLT 823 (SC) = 2019 Supreme (SC) 921) the Supreme Court went on to hold that the six months’ shelf-life of stay orders mentioned judgment in Asian Resurfacingcase would not apply to the Supreme Court. In the said case, interim stay was granted to a tenant facing eviction proceedings in March 2009. The tenant filed an appeal as the revisional Court sought to proceed with the matter on the ground that on expiry of six months as held in Asian Resurfacingcase, the interim order was no longer in force.

b. Our Constitution uses both the phrases ‘Court subordinate to’ in Articles 134(1)(b)and 228 as well as ‘subordinate Courts’ in Articles 230(2)(b), 231(2)(b) and 235. The Supreme Court - the highest Court in our country, though has the appellate jurisdiction not only over High Courts but also over other Courts and Tribunals, quite interestingly, they are not declared to be subordinate to it. As one could make out, they are inferior to it but not subordinate to it. Article 227 invests each High Court with superintendence over ‘all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction’.
Article 228 empowers every High Court to withdraw a case pending in ‘a Court subordinate to it’ involving a question as to the interpretation of the Constitution. Chapter V of the Constitution bears the heading ‘The High Courts in the States’ and Chapter VI ‘Subordinate Courts’. The very fact that the Constitution uses the two phrases in different contexts shows that they are not synonymous. The phrase ‘Subordinate Courts’ is used in the sense of Courts inferior to the High Court.

c. Different elements are involved in the relationships ‘inferiority’, ‘subordination’, ‘amenability to the appellate jurisdiction’ and ‘amenability to the supervisory jurisdiction’. Though there may be some overlapping, one could be said to be synonymous with any other or with any two or three put together. All these phrases convey different notions, though there may be some overlying. There are elements existent in each, which are missing from the others. At least two depend upon statutory authority and there are statutory provisions creating the third, viz. subordination.

d. In our Constitutional framework, the Supreme Court vide Article 129 as well as the High Courts vide Article 215 are Courts of record. The High Court is not a Court subordinate to the Supreme Court, except for the appellate powers conferred on the latter vide Articles 132, 133 and 134. In fact, if we have a closer look at the Constitution, the power of the High Courts are much wider than the Supreme Court, as it not only exercises powers to issue writs for infractions of all legal rights, but also is invested with the power of superintendence over all subordinate Courts and Tribunals. Such a power of superintendence is conspicuously absent for the Supreme Court, which though being the highest Constitutional Court, must be deemed to be never intended by the founding fathers of our Constitution to supervise subordinate Courts or the High Courts.

e. The form of oath or affirmation to be made by a Judge of a High Court as in the Third Schedule to our Constitution is that he would duly and faithfully perform his duties to the best of his ability, knowledge and judgment, without fear or favour, affection or ill-will, upholding the Constitution and the laws. One thing is clear from the form of oath viz., conclusions contained in his judgment must be based on his judgment and not on judgment of some others. Of course, he has to apply the laws of India and one of the laws of India is contained in Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Going by the same, except when there is a judgment of the Supreme Court declaring the law to be applied, High Court Judges must use their own judgment even if they consider various decisions before forming their judgment. Or else that would be a contravention of the oath taken under Article 219 of the Constitution of India. The principle of the independence of the judiciary is enshrined in the oath taken by Judges and that principle cannot be overridden by any other principle.

f. The powers of the Supreme Court vis-a-visthe High Courts was considered at great length in Tirupati Balaji Developers Pvt. Ltd v. State of Bihar(2004 (2) KLT SN 79 (C.No. 96) SC = (2004) 5 SCC 1)wherein it was held that High Court is not a Court subordinate to the Supreme Court and that judicial powers vested in the High Court is much wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. It was also held that the High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate Courts and Tribunals whereas the Supreme Court has not been conferred with any power of superintendence. His Lordship Justice R.C.Lahoti went on to affirm that if the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother as there were a few provisions which give an edge, and assign a superior place in the hierarchy, to the Supreme Court over High Courts, especially the appellate jurisdiction in all civil and criminal matters, which makes the Supreme Court, the highest and the ultimate Court of appeal as well as the final interpreter of the law. It was observed that the Union judiciary and the State judiciary are undoubtedly independent of each other except for a few areas relating to jurisdiction. It was further held that the Supreme Court, exercising its appellate jurisdiction, even when called upon to issue directions which is not only its privilege as appellate forum but often a necessity for meeting the demands of justice and effective exercise of appellate power, it cautiously abstains from issuing any ‘directions’ as such and rather uses the alternative and polite expressions like ‘we request the High Court’, ‘the High Court is expected to’, ‘we trust and hope that the High Court
will/shall’, spelled out by courtesy and the respect and regards which the Supreme Court has and must have for High Courts and that this practice has developed and gained ground as tradition.

g. It is in this particular backdrop, the directions issued in Asian Resurfacingcase needs to be surveyed. Interim orders of the High Court could certainly be interfered with by the Supreme Court, but only in exercise of its appellate power. The High Court, being a Constitutional Court and a Court of record, cannot be limited in its exercise of power by imposing any limits or restrictions, unless the Supreme Court interprets a statute or the Constitution and prescribes it as a matter of law. That was not the one which has happened while issuing the general directions in Asian Resurfacingcase. If the power to invalidate an order of the High Court merely by efflux of time inheres in the Supreme Court, can it then direct that no interim orders could be granted without its consent or that the High Court must not grant any interim orders at all or that all final orders should be passed in a manner that the Supreme Court directs? The directions issued in Asian Resurfacingcase can never be in exercise of the appellate power of the Supreme Court as they do not concern the case in question. They are general directions to the High Courts to deal and determine cases in a particular manner. In my limited knowledge and considering the Constitutional structure, I feel that there is no power for the Supreme Court, either in our Constitution or under any other laws to issue such general directions to the High Courts. In Madan Mohan v. State of Rajasthan(2018 (1) KLT SN 38 (C.No. 52) SC =
AIR 2017 SC 5848), the Supreme Court held that no superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court. As much as this dictum applies to High Courts, it applies to the Supreme Court as well.

h. We need to advert to the fact that in 1976, vide the 42nd Amendment of our Constitution, vide the then Articles 226(4) and (5), the powers of the High Court were taken away for granting ex parte interim relief to the petitioner except in exceptional cases required under the circumstances and the reasons to be recorded therefor. Vide the 44th Amendment during 1978, Article 226(3) was introduced, whereby, in case ex parte interim order by way of injunction or stay or in any manner has been granted, without furnishing to such party, copies of such petition and all documents in support of the plea for the interim orders and without giving such party an opportunity of being heard, if any application is made to the High Court for vacating such interim orders and after furnishing a copy of such application to the party in whose favour such order has been made or the concerned counsel, the High Court shall dispose of the application within a period of two weeks from the date on which the application is received in the High Court or the copy of such application is so furnished to other side, whichever is later or where the High Court is closed on the last day of that period, on the next day afterwards on which the High Court is open and if such application is not so disposed of, the interim order shall on expiry of that period or as the case may be, on the expiry of the next day stand vacated. Article 226(3) was so ordained, obviously was with an intention that ex parteinterim orders by way of injunction or stay in proceedings under Article 226 of the Constitution passed against the party by the High Court should not operate to the prejudice of that party for an indefinite period of time. The object and intention of the Parliament behind this amendment needs to be borne in mind while construing the provision. The Parliament has noticed large number of cases where ex parteorders of stay or injunction are obtained by parties without furnishing copies of the petition and stay applications thus denying grant of opportunity to the opposite parties of hearing and such ex parteorders continue to remain in operation to the prejudice of the adversary for an indefinite period of time as the stay matters do not receive consideration by the High Court within a reasonable period of time. True, there are multitudes of cases in the High Courts all over India which calls for invocation of Article 226(3). One cannot be oblivious of the fact that Article 226(3) of the Constitution of India is not being strictly adhered to by any of our High Courts and for that purpose, there are no guidelines or regulations for listing such applications, within the prescribed timeframe. In Maniben Virabhai v. District Development Officer(1996 (1) KLT OnLine 938 (Guj.) = 1996 (2) GCD 1), the Gujarat High Court went on to observe that in view of the provisions of Article 226 (3), it must flow as consequential duty on the Registry by way of rule or administrative circular to deal with such applications separately and it is the duty of the Registry and it must also be expected by the party who has obtained ex parteorder that such applications are listed before the Court within a period of two weeks from the date copy is served upon the party in whose favour the ex partead-interim order has been passed. Article 226(3) itself castes duty upon the Court to dispose of such application either way within a period of two weeks. The Court cannot dispose of the application unless the same is listed before the Court and therefore, the party moving application for vacating order, the party which has obtained the ex partead-interim order and the Registry have to see that the matter is brought before the Court within the time prescribed under Article 226(3). Whether the parties take care or not, at least the Registry has to see that the matter comes up before the Court and it is shown on the board within a period of two weeks. Once the matter is shown in the board and the party seeks time and the ex partead-interim order is extended further, that will be a different matter altogether. Because in that case with the consent of the parties the matter is adjourned and the order may be continued by the Court. But the Registry has to classify such application for vacating ex partead-interim orders separately under Article 226(3) so as to serve the object sought to be achieved by Article 226(3) of the Constitution rather than defeating the same by not listing the case in time.It appears that the directions in theAsian Resurfacingcase has not considered the timeframe spelt out in Article 226(3) as it applies to all pending cases where stay against proceedings of a civil or criminal trial is operating. In scores of cases, civil and criminal, Article 226 is being indiscriminately invoked and stay orders too are being obtained. Vide this judicial legislation in the Asian Resurfacingcase, is it be assumed that the timeframe in Article 226(3) stands enlarged? That is yet another issue.

i. If stayed cases, which are in large number, are revived for hearing, will they not cause a docket explosion and thus lead to more delay in dispensing justice? If that be so, does the directions curb the delay which was sought to be addressed? The High Courts are already overburdened. With only handful of Judges at present, the High Courts would be required to deal a major chunk of its precious judicial time to pass the reasoned orders for extending the interim orders earlier granted.

j. With all boundless respect for the Supreme Court to the greatest possible extent,
I honestly feel that issuance of general directions in Asian Resurfacingcase is legally and constitutionally indecorous, requiring rapid rectification. Would not abiding directions
vis-à-visthe extension or revival of stay orders be asking the High Court Judges to be false to their oaths? As Prince Hamlet asked, ‘to be or not to be, that is the question’.

Dissenting Note on Gopalakrishnan @ Dileep v. State of Kerala,
Reported in 2019 (4) KLT 853 (SC)

(By Sajeer H., Section Officer, Law Department,Government Secretariat,                                Thiruvananthapuram)

The crux of the case is that the appellant is a well known and popular cine artist and the de facto complainant (victim) is also on the same field in Malayalam film industry. It is alleged that the appellant maintained enmity towards the victim, believing that she is to be responsible for the breakdown of his wedlock. To retaliate, he allegedly conspired with the first accused to abduct the victim, for the purpose of sexuallyabusing her and to record the acts of sexual abuse and thereby black mail her by using the video graphed materials. In consequence of the above conspiracy, the first accused allegedly solicited the assistance of other accused. On 17.2.2017, while the victim was proceeding in a car along through the National Highway, she was intercepted by the accused and they abducted her to Ernakulum and on the way she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone. Painfully, the victim was abandoned thereafter and the accused were hidden in shadows. The data in the mobile phone was allegedly transferred by the first accused to a memory card. In the meanwhile, the incident was reported by the victim to the Nedumbassery police on the same day and they registered a Crime and commenced their investigation. On getting information about the registration of the crime, the first accused entrusted the memory card to a lawyer, who later produced it before the Judicial Magistrate. The appellant was arrested in the course of investigation, on a specific allegation that he had masterminded the entire crime and had hatched the criminal conspiracy with A1, who accomplished it with the aid of other accused. Investigation claimed to have unearthed materials to link appellant with the first accused. The offences were under Sections 120A, 120B, 342, 354, 354B, 366, 376D, 506(i), 201, 212 and 34 I.P.C. and Sections 66E and Section 67A of the I.T. Act. However, the mobile phone, which was used for recording the sexual abuse, could not be recovered in the course of investigation.

Pursuant to the filing of the final report, cognizance was taken and committal proceedings commenced by the Judicial First Class Magistrate. Pursuant to the summons, appellant and other accused appeared and they were furnished with the records relied on by the prosecution. The appellant raised an objection that, the memory card relied on by the prosecution was a crucial document, but a copy of it was not furnished to him. He accordingly filed a petition for a direction to the prosecution to hand over him a cloned copy of the video footage of the memory card and the transcript of human voice. In the meanwhile, the appellant was permitted to watch the video footage in the presence of his counsel and Magistrate. But he filed another petition, wherein he was stated that he needed a thorough examination of the contents of the memory card. He sought a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio contents in the same format, as obtained in the memory card and the transcript of human voices, both male and female recorded in it. But the same was rejected. Against which he preferred an appeal before the Honourable Supreme Court.

By partly allowing the appeal Honourable Supreme Court held that, 

Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised, in that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL, after analyzing the cloned copy of the subject memory card/Pen drive, shall be kept confidential and shall not be allowed to be accessed by any other agencyor person except the concerned accused or his authorized representative until the conclusion of the trial.

We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.

Needless to mention that, the appellant before us or the other accused are not claiming any expertise, much less capability of understanding forensic analysis of the cloned copy of the contents of the memory card/pen drive. They may have to eventually depend on some expert agency. In our opinion, the accused who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen drive produced before the trial court by the prosecution on which the prosecution would rely during trail ,are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

It is evidently clear that the appellant purposefully and intentionally used the name and identity of the victim throughout his appeal memorandum. The same was timely opposed by the State and the counsel appearing for the intervenor (the victim). The appellant counter blasted the same by saying that F.I.R., 161 Statements, 164 Statements, mahazer would also include the name of the victim and hence he had a qualified right to mention the name and identity of the victim in his appeal memorandum. By rejecting the argument of the respondents, the Honourable Court held that “the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code and the charge sheet/police report filed before the Magistrate”.

But in reality what Section 228A(1) of the Indian Penal Code says is that,

Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376A, Section 376B,
Section 376C or Section 376D is alleged or found to have been committed shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publi­cation of the name or any matter which may make known the identity of the victim if such printing or publication is, (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation,.....

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.                                 (underline supplied)

On going through the above section, it is ample clear that the mentioning of name and identity of the victim clearly come under the penal ambit of Section 228A(3) of IPC. Mentioning the name and Identity on F.I.R., 161 Statements and 164 statements by the prosecution are not offensive but are statutory for the purpose of proving the case of prosecution. But that may not be a ground for the accused, to disclose the name or identity of the victim in a proceeding before a court of law. Therefore the mentioning of name and identity of the victim in the appeal memorandum was intentional and purposeful and benefit ought not to have been given to the appellant, which it may lead detrimental to the interest of the victim.

It is pertinent to note that, the appellant alone approached the Honourable Apex Court for allowing and permitting him to obtain cloned copy of video, which was alleged to be taken by the accused. By allowing the same the benefit was also extended by the court to all other accused also. But the trial court by denying the application, says that “in order to uphold the esteem, decency, chastity and reputation of the victim and also in the public interest the prayer could not be allowed”. If it is to be presumed that the intention of the appellant may be fair and if he approached with clean hands, then, why the other accused who were allegedly and actively participated in the incident were permitted to watch the video which they had taken by, with a sadist mind.

Some of the relevant questions in this aspect are, whether the contents of memory card/pen drive produced with the police report can be treated as document?, covered under Section 3 of the Indian Evidence Act and defined under Section 29 of the Indian Penal Code and if so, whether it is permissible to the accused to claim copy of it?, whether the cloned copy of the memory card can be denied to the accused on the ground of infringement of privacy, dignity, decency, honour and chastity of the victim?.

The accused, other than the appellant herein, actually participated in the physical and sexual assault over the victim and thereby video graphed the entire thing. The accused were known criminals and theirs acts were not spontaneous but a preplanned one. All incidents were done for the appellant, who was the alleged mastermind of all the incidents. The material used for the commission of the crime was the mobile phone and after the incident the videos taken by the accused on the mobile phone were copied by the accused into a memory card. They alleged to be entrusted it to a legal practitioner, who in turn produced the same before the jurisdictional magistrate. Though the mobile phone wasn’t yet recovered, the same can be treated as a material object and the contents therein cannot be treated as documents. Because it was the end result of a crime as held by the Honourable High Court.

In addition to the grant of supply of cloned copy of image to the accused, the court had given certain directions to the magistrate. It allows the accused to obtain a second expert opinion from an independent agency, say, Central Forensic Science Laboratory .The court also directed the magistrate to provide an opportunity to the accused to obtain a second expert report from an independent agency, say, Central Forensic Science Laboratory regarding the authenticity of the videos and its contents. It also directed the Magistrate to provide an opportunity to the accused to view and inspect the video along with his counsel and an IT Professional of his choice. It is the IT Professional who will make queries about the authenticity and the contents of the video before the Central Forensic Science Laboratory and they are bound to answer the same. It can be said that these directions are not in accordance with the fair trial, but an overtake on the fundamental right guaranteed under Article 21 of the Constitution of India.

It is also directed that the inspection of the report of the CFSL is to be, only open to the accused and not to any other person including the prosecution also. Now the question is after these decision, which relevant thing will remain for the prosecution to reach the accused. The only link in between the prosecution and the defense is the report of the State Forensic Science Lab, which covered all area of the video and copied the same in to pen drive by using the most modern equipments having like that of the Central Forensic Science Laboratory But the same remained inoperative as a new report was called for. Hence the report of the State Forensic Science Laboratory has only value of a skeleton in the graveyard.

It is relevant to move to Chapter eighteen of the Criminal Procedure Code. Wherein Section 226 reads that when the accused appears or brought before the court in pursuance of a commitment of the case the prosecutor shall open the case and describe the charge brought  against the accused, Section 227 reads that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf  the judge considers that   not sufficient ground   for proceeding against the accused then he shall discharge the accused. If it presume that the accused has commissioned the offence it shall frame the charge against the accused. Section 231 of the Code reads that on the date so fixed the Judge shall proceed to take all evidence as may be produced by the prosecution. If it finds no ground for proceeding against the accused it shall acquit the accused. Or otherwise it shall call upon the defense to adduce the evidence. On going through these sections and Chapter XVIII of the Code in entirety, it can be seen that the right of the defense to adduce evidence comes only after adducing evidence of the prosecution and not before the prosecution. The decision of the Honourable Court had laid down a procedure that without awaiting the stage of pre trial steps, defense side can take up and adduce evidence by deviating from the statutory mandate of the Code. Definitely it may a precedent in every case having connected or incidental subject matter.

The case in hand may also be a precedent in all cases having the charge of sexual violence and cyber crimes having the background of or materials tendered on memory card or pen drive, the accused may claim for the copy of the same, before taking evidence of the prosecution, on the guise of right to have a free trail.

Another matter is that, the sadist accused in this case committed the brutal crime against a poor, innocent, helpless lady on 17.02.2017 at night and she was abandoned on the way after midnight. The accused allegedly copied the video from his mobile to a memory card and allegedly entrusted the same to their counsel. The counsel submitted the same before the Magistrate on the same day. On going through these facts in detail, one can see that there will be every chance for tampering, editing and alteration of the video before it reached the court.

Neither the appellant nor any accused had a case that the details in the memory card were forged one and they had not done the act as pictures in the memory card. Without considering these aspects the Honourable Court had given benefit to the accused for watching their videos again and again.

As far as the rape case is concerned the statement of the victim is sufficient for presuming that the rape was committed against her. In State of Himachal Pradesh v. Raghubir Singh (1993 (1) KLT OnLine 1029 (SC) = (1993) 2 SCC 622) Honourable Supreme Court held that evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which mitigate her veracity. On going through catena of decisions of the Honourable Supreme Court it can be seen that corroboration of the prosecutrix is not necessary on the cases of rape and its end in acquittal may be on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence.

Section 114-A of the Indian Evidence Act states that, in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause(g) or sub-­section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in heir evidence before the Court that she did not consent, the Court shall presume that she did not consent. This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. On a journey through all these decisions by comparing with the case in hand the memory card details alone is not a sufficient ground for escaping sanction from the accused from a court of law.

Rape is an aggression on the mind, body, reputation, morality, decency, dignity, honour, privacy and chastity of poor helpless women. A large number of women still fail to report rapes to the police, because, they fear of embarrassing and insensitive treatment by the doctors, the law enforcement personnel and the cross-examining defense counsels. In Bodhisattwa Gautam v. Subhra Chakraborty (1996 (1) KLT OnLine 912 (SC) = (1996) 1 SCC 490) our Apex Court held that, Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature. The justice dispensing, in these cases, should be considered the emotional and physical plight of the victims also. Therefore the decision in P.Gopalakrishnan@ Dileep v. State of Kerala is not a good law.