(1) Physical impossibility,

(2) Some unforeseen circumstances,

(3) Mistake of offender

(4) Voluntarily desists from further prosecution. In the above cases is the offender criminally liable ?

Concerning the first case that is where the completion of the crime has all along been physically impossible S. 511, I. P. C. shows that in India a man may be convicted. The law is not definite. The various High Courts differ from one another. Where the commission of the crime is a failure owing to unfore­seen circumstances there is such divergence of opinion that the laws of no two countries are alike. In India this differentiation is entirely overlooked. In other countries "an attempt is only punishable when the same is manifested by acts which constitute a commencement of the execution and when the consummation is hindered only by circumstances independent of the will of author''.

If the offender mistakes one thing for another and hence the successful commission of the crime cannot be effected is he liable? The Indian law will not exempt him. In all other countries excepting America the law is that he is not liable. Probably the liability in Indian Law is accounted for by the fact that it is more conducive to public safety.

Let us consider the case where the party making the attempt desists from further prosecution. Indian cases have laid that the offence is indictable and that desistance is immaterial. It has yet to be seen what solution the authorities will give for the following case.

P. with intent to commit housebreaking in B's house provides himself with implements of burglary goes to B's house and opens the door. Inside the house a severe altercation has already entered with B and two ruffians who have come there and who are now bent on killing B. P at once rushes to the rescue of B. Has P committed an attempt to house-break. P pleads that hearing the cries of distress he entered in?

The case law on the subject of attempt to commit offences are poor and even the cases on record are not now in conformity with one another. The “attempt" to commit the offence is as important as the offence itself and it is strange that the Legislature has not made ample provision for the due understanding of the meaning of the word attempt. The two illustrations appended to Section 511 are all that are given. The difficulty has been all along felt by the Judges of the various High Courts in India. Criminal liability in attempt is left to be decided according to equity, justice and good conscience and not from any provision in the Indian Penal Code.

It is earnestly hoped, that when the Indian Legislature next akes up the Criminal Law for amendment, a clear and concise definition of "attempt" be introduced in the Penal Code so that all existing difficulties my vanish and Indian Law may be brought in conformity with that of other countries of Europe and America.

LATE Mr. T. M. KRISHNA MENON

It is with profound regret that we record here the passing away of Mr. T. M. Krishna Menon on 2nd December 1958. Mr, Krishna Menon was a versatile whose varied talents, noble character and devotion to duty paved the path of his rapid and steady progress. He was a brilliant star in the constellation of the Bar of his time. His eminence as a lawyer and his intellectual capacities were duly recognized by his appointment to various high offices in the erstwhile Cochin State. His services as Government Pleader, Commissioner of Police, and Dewan Peishkar were exceptionally remarkable and extraordinarily successful. He had a brilliant and distinguished record as a District Judge and as a Judge of the Chief Court of Cochin. The Cochin Law Reports bear ample testimony to his erudition, knowledge and abilities. He was a lovable personality who had endeared himself to all his colleagues, the members of the legal profession and the general public. In his death we have lost an eminent lawyer, a learned Judge and a perfect gentleman.

We offer our sincere sympathies and heart-felt condolences to his bereaved son, Mr. Justice M. S. Menon.

Illustrious be the memory of such a great man. May his soul rest in peace

THE RULE OF LAW

(T. G- John, Advocate, Trichur)

"Let all things be done decently and in order"

—St Paul's Epistle to the Corintheans

"He who wants to govern must first learn to obey"

—Carlyle.

There is a general impression that violence is more prevalent now than ever before. Statesmen are assassinated, planes hi-jacked, ambassadors kidnapped, university professors roughed up, Piccadilly mansions invaded, post offices and Banks robbed and even religious abodes and Courts of law desecrated by unruly mobs. Threats with fist, knives, and anatomical twists have become the fashion in the so called representative assemblies of the people little wonder that the worthy representative who had to stand jeers and brickbats of the crowd at the time of election campaign repeats the same in the house vindictively.

This sort of thing has happened, before. Plane hi hackers are the modern version of pirates—or rather of buccaneers for they purport to operate for a country and a cause, not merely for personal gain. Political assassination has a history far older than Julius Caesar, and the London Eighteenth Century Mob was far more terrifying and destructive than our militant students. Highwaymen were more to be feared by the ordinary citizen than are bank robbers, and ambassadors have by no means always been treated with punctilio and courtesy. Yet there is something new and disquietening about the present day violence especially as seen by those who broadly speaking believe in and abide by the rule of law and the liberal democracy, which were in the ascendant over most of Europe from about 1918-1930, and in Britain and France a good deal longer, and in India that is Bharat, recently.

Skipping over the pages of English history we come across crucial events the signing of the Magna Charta, the Mad Parliament and a long list of fiery incidents, individuals, institutions and kings. But all these people fought for law and not against it. For nearly three hundred years from the end of the wars of religion to the beginning of the wars for political dictatorship the most powerful countries in the world that is to say the nation States of Europe and North America on the whole kept to self-imposed rules, in warfare and in their peaceful relationship. There were many transgressions but the kings and emperors did not resort to the method of Chaka of Genghis Khan. Governments which, in both internal and external affairs, try to abide by the rules of the game are constantly pained and surprised when others ignore them.

Most modern violence appears to be politically motivated. The street gangs of Negro hooligans who terrorise parts of many American cities, and some of the recent crimes in our own country are not mere thuggish but could be con­sidered only as the militant arms of some Black Power Political party. Cubans and Arabs who hi-jack planes risking the lives of hundreds of passengers do so in their imaginary or assumed role of revolutionary patriotsas do bank robbers in Brazil, bandits in Southern Africa and gunmen in Kenya. As ninety per cent of this violence is in aid of some wing of politics, it enjoys the tacit approval or at least tolerance of the Government or the about to be formed Government.

There is nothing new in people unable to get their own way by other methods, turning as a last resort of violence. In the past, however, violence was generally the resort of popular movements unable to make headway against tyranny or bureaucratic obstruction. That is" still the case in totalitarian countries such as say Czeckoslovakia. But in countries where the most sweeping changes can be brought about peacefully by convincing the majority of the people that they are necessary, violence is the resort of those who can never win an election. It used to be hoped that the twentieth century would be an age of reason. It is rot. A small but conspicuous minority of young people are the fanatics of the new world, so convinced of their righteousness and the wickedness and obduracy of those who deny it, that they are prepared to use any methods to force their views upon others—even to the extent of wrecking the whole legal system in the vague, naive hope that the new world which will emerge, more or less spontaneo­usly from the ruins, cannot be worse and may well be better than the old. John Stuart Mill once wrote that unpopular minority opinions can only obtain a hearing by studied moderation and the most cautious avoidance of unnecessary offence. Now however the mass media and the political coloring of most of our leaders ensure that any left wing opinion, however bizarre its nature and few its adher­ents, receives ample publicity if only it displays enough spectacular violence.

The year 2000 is only thirty years away and the world of the future has already begun to take shape. It is being hammered out in a series of revolutions in science, technology, communications, and educationrevolutions so explosive that they are disrupting the structure of man's Society and changing the entire hierarchy of social and moral values. Alcohol is placed on a very high pedestal. And there is the very real problem of behavioral control involved in shaping coming generations physically and mentally through manipulation of the genetic code. Some of the experts gloomily predict a society run by a small elected elite presiding over a mindless multitude kept happy by drugs and circuses!

So long as mankind shreds his fear for law and legal systems, Society, will benefit little by such scientific boosters as landing in the moon, fox-trotting round the sun or even helicoptering straight into the lap of Jehovah Himself !

BURDEN OF PROOF IN CRIMINAL CASES

(M. Marcus, M. L. Lecturer, Law College, Ernakulam)

The entire edifice of Criminal Justice is built upon the principle that an accused is presumed to be innocent until the prosecution proves the contrary "beyond the shadow of reasonable doubt". This invites serious study of burden of proof in criminal cases saddled on the prosecution. The words ''beyond the shadow of reasonable doubt" ensure the protection of the accused at a criminal trial from the caprice of the judge or the overzealous prosecutor. In a criminal trial the burden of proof of the prosecution never shifts but ''when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code or any law defining the offence is upon him and the court shall presume the absence of such circumstances".(S. 105 Indian Evidence Act 1872) There is a prevailing notion among the practitioners that when a case of the above description is under trial the burden of proof shiftsto the accused this is the direct result of the defective phraseology used in the Act. "Burden of proving the absence of such circumstances" is perilously near saying that the accused is obliged to prove his innocence. This condition is more baffling when the very penal statute says that the case of accused comes under exception or proviso exempting the accused from criminal liability.

It has been decided in England that the burden of proving the criminal act and Menes Rea lies upon the prosecution and it has been styled the "Golden thread in the web of criminal law" (Woolmington v D- P. P- (1935) A- C. 462) If S- 105 Evidence Act is strictly construed it is difficult to say that the quantum of burden of proof to be shifted to the accused is in any way less than that of the prosecution. It is true that judicial decisions have made it clear that the burden of the accused to prove the fact that his case comes under any of the exceptions to the statute is lesser though almost same as burden of plaintiff in a civil case. In other words a preponde­rance of probability" of the innocence of the accused at least to the extent of casting doubt upon the prosecution would suffice. The general rule in the interpretation of penal statute is that it should be strictly construed. It appears that S. 105 of the Indian Evidence Act when used for this purpose as it stands would compel the accused to discharge a heavy burden. Mark by, J's scathing criticisum on the "sweeping" nature of the section under consideration is pertinent ("It is doubtful whether so sweeping a rule as is contained in S 105 will be found to work well in all cases" Shiboprasad's case (3 C. L- R- 122 (126). Fields Law of Evidence Vol. V. 1967 p- 3841) The Kerala High Court has laid down that the accused need not prove 'beyond doubt his case (A. M. Kuttysankaran Nair v. Kumaran Nair and others (AIR. 1965 Ker. 161)) The ambiguous nature of this section which blurs the innocence of the accused has been seriously hinted at by Harrison, J in a case of private defence (Ahmedsher v. Emperror.). It is worthwhile to note that in a case of plea of alibi the question of accused showing that his case comes under any of the exceptions does not arise so much so S. 105 of the Evidence Act does not apply to it.(Page 3854 Field's Law of Evidence)Courts have evolved the rule that if cases of private defence spell out from the prosecution evidence then they will be sufficient to acquit the accused even if he does not plead them (Jogale Bhaigo Naik (Madras H. C.)) In the strict interpretation of S. 105 Evidence 'Act t&is leniency shown by the court seems to be unwarranted though not unjust. The Rangoon High Court in a full bench decision held that the burden placed upon the accused as per S. 105 is that of introducing evidence (Emperor v. Damapala AIR. 1937 Rang. 83 (F.B.)) The Allahabad High Court had occasion to consider the effect of plea of exception by  the  accused which plea failed and it was held that even if such plea of the accused fails, still after considering all the case including the case of the prosecution, if the court entertains a doubt the accused should be acquitted (AIR. 1941 All. 402 (F.B.)). The Bombay High Court held that the principles of English Law of evidence cannot be said to have been shut out in framing the Indian Evidence Act (Emperor v. Hasssn Ahdul Karim (Bombay 274) "The Framers of the Indian Evidence Act cannot be said to have intended to depart from the English law even though there is a material difference in the pharaseology of the Act touching burden of proof"), showing that the Act is not exhaustive. It is an indicator that the phraseology of the Indian Evidence Act S. 105 is defective and which defect would affect the decision of the real issue. The Nagpur High Court decided that the burden of proof of the prosecution and the defence are equal (Baswantrao Baijrao v. Emperror AIR.1959 Nag 66,) Mr. Justice P. N. Mukerji of the Calcutta High Court made the pronouncement that the accused should "affirmatively" establish the conditions sought by him (Nishikanta Gosh v. Calcutta Corporation 1953 CAL. 401). The word ''affirmatively" can't be thought of as meaning a lesser type of burden on the accused while the Patna view is that the accused need only show that the prima facie case exists for him and that he need not lead evidence (Naryayan Raut v- Emperror 1948 Pat. 294) The Supreme Court of India has explained the nature of the burden of proof of the accused holding that "The facts proved may not dis­charge the said burden but may affect the ingredients of the offence (K. M. Nanavati v. State of Maharashtra AIR. 1962 S. C. page 606). In this context the statement of the Law "The court shall presume the absence of such circumstances" appearing in the body of S. 105 of Indian Evidence Act needs elucidation.

The decisions cited above are sufficient to bring forth the ambiguity in S. 105 Evidence Act as far as the words "Burden of proving" are concerned. Touching the burden of proof in criminal cases Dr. Glanville Williams speaks that "The persuasive burden of proof rests on the accused" ("Criminal law "General Part, Second Edition P. 516by Dr. Glanville Williams). What the section means here is really not the burden of "proving" but the burden of introducing evidence to neutralize the prosecution evidence. It is incorrect in theory to say that the accused has any burden at all in the shape of proving his case. If it was otherwise the exceptive conditions spelled out from the prosecution evidence in cases of private defence could not have been decided in favour of the accused.

Of all branches of study, law requires precision of expression and terminological accuracy to protect the innocent and shape the sanction against the guilty and that is why Zelman Cowen and P. B. Carter say "consideration of the law relating to quantum of proof has not been entirely immune from terminological confusion of the same sort as that by which much of the discussion of cognate problems of onus of proof and presumption has been bedeviled"("Essays on the law of Evidence" Zelman Cowen and P. B. Carter (1956 edition) Chapt. IX)). The learned authors happily make a distinction between "legal burden" and "Tactical Burden", the former relating to burden of the prosecution and the latter to the preponderance of probability of the version of the accused. Treating of the wriggling concept of burden of proof they observe "of course during the trial the legal burden of proof on a particular issue may temporarily appear to have been discharged and yet later perhaps lose this appearance. So long as it has the appearance of having been discharged, the tactical burden of proof on that issue is said to have been shifted to the other ('Essays on the Law of Evidence" by Zelmam Cowen and P. B. Carter (p. 242-43)). From this it is evident that the legal burden of the prosecution never shifts to the accused, but accused has the tactical burden only to discharge. To treat two distinct legal concepts though analogous in the same way is nothing but juridical heresy. Rupert Cross in his "Evidence" 1958, observes "The practice of speaking of the shifting of the burden of proof is however quite inveterate among both judges and writers. All that can be done is to Endeavour to ascertain the different situations to which the expression is usually applied''. The discontent of Prof. Thayer an American Jurist touching this aspect is well brought out when he says "It seems impossible to approve a continuance of the present state of things under which such different ideas of great practical importance and frequent application  are indicated by this single ambiguous expression" ("Preliminary Treatise on Evidence at Common Law P. 384).

What is attempted to state is that the phraseology of S. 105 of Evidence Act is ambiguous but for the judicial decisions which are also not free from conflict and are liable to cast burden of proving the innocence of an accused upon him even though in the substantive law his case may fit in the exceptive clause.

The scope of S. 105 Evidence Act was considered by the Allahabad High Court in a recent case (Rishi Keshi Kesh Singh v. State (F.B.) AIR 1790 All. P 51) wherein the majority judgment was to the effect that in a criminal trial where the case of the accused comes within the General Exception in the Indian Penal Code if after considering the prosecution and the defence plea (including the plea of exception) the court entertains a doubt the accused is to be acquitted. It may be stated that if the plea of the exception was meant to be proved completely, then the case would stand or fall on its own merit, but the fact of tagging of the prosecution case and defence plea of Exception makes it clear that the doubtful aspects of the plea of exception are productive of a doubt on the prosecution.

Beg J. opines in the said case at P. 96 that the doubt on the exception is sufficient to earn an acquittal. His Lordship is of the view that doubt on the exception is sufficient and it is pertinent to note that the word "Reasonable"' does not appear in relation to doubt on exception, while it is mentioned in relation to the onus of proof of the prosecution. It follows there from that the doubt on the Exception though of a slender type is sufficient for an acquittal.

Another aspect worthy of consideration is that "benefit of doubt" is not defined in the Code so much so it cannot be strictly held that the doubt should be directly related to the ingredients of the offence alone. Doubt is definitely a mental state and that stage connote be located exclusively on the ingredients of the offence while there is no definite direction in the Code demanding so. When this is the state of law the demand of S. 105 Evidence Act that the court ''shall presume" absence of circumstances bringing the case within the exception seems to adversely affect the accused who as per general principles of law is presumed to be innocent- It is curious to note that judicial opinion supports the view that the quantum of proof in the shape of mere ''preponderance of probability" is sufficient to shatter this strong type of presumption of Sec. 105. In this set up the words ''shall presume" of Section 105 Evidence Act appears to be a mockery of the Act itself. As per the section the court is compelled to presume the’ “absence of circumstances". The word ''circumstances" is not defined in the Evidence Act, while the word ''Fact" is defined as including "state of things". If we equate "Fact" ''with" circumstances" then in strict rules of evidence the’ circumstances" bringing the case of the accused within the exception can be proved only by full proof and not by mere ''preponderance of probability" as held by the court. This is more important when the liability of "proving" the exception is laid on the accused as per the Evidence Act. Once it is said that a matter should be proved to neutralize the effect of ''shall presume" how can it be held that mere preponderance of probability generative of a doubt can be potent to nullify the presumption mentioned, The Supreme Court held that even if the accused does not plead self defence it is open to the court to consider such a plea if it arises from the prosecution case (Muoshi Ram v. Delhi Administration AIR. 1968 SC. 702 Page 703), When we consider this aspect of the matter the words ''shall presume" in the Sec 105 Evidence Act appears to be juggling phrase which casts shadow of guilt upon accused otherwise presumed to be innocent. S. 6 of the LP C. is very much a part of the substantive criminal law in India and Dr. Gour is of the view that it is the key to the interpretation of the whole Code. How can it be controlled by S. 105 Evidence Act which is only adjectival law framed for different matter, It appears that S. 105 Evidence Act attempts to trespass into the field meant for exclusive operation of S. 6, IPC.

In these circumstances it will be advisable to amend S. 105 Evidence Act to make it clear as to where the tactical burden of the accused lies and he may be simply directed to introduce evidence to affect the prosecution evidence and it will be in conformity with the age old principle that an accused is presumed to be innocent until otherwise proved by the prosecution.

The present condition of the section while permitting the court to pesume in a positive fashion the "absence of circumstances" bringing the case within the exception or proviso to the penal statute appears to be irreconcilable with the principles of criminal jurisprudence. In the case of an accused who has com­mitted the alleged criminal act under unsoundness of mind, the presumption in S. 105 works very harshly since even then the liability to discharge "Tactical burden" is not a less onerous one to such accused.

In view of what has been said it is suggested that an amendment of S. 105 Indian Evidence Act reading (when a person is accussd of any offence he may be entitled to introduce evidence pointing to the preponderance of probability that his case comes m any of the exceptions to the statute, or any proviso thereto, under which he is charged) will meet the ends of Justice.

CAN A MAGISTRATE ACTING UNDER S. 146 of the Cr. P CODE

TAKE POSSESSION OF THE ATTACHED PROPERTY BY

HIMSELF OR THROUGH HIS SUBORDINA1ES?

(K. Raghavan Nair, Advocate, Tirur)

It has almost become the common accepted practice in the erstwhile Malabar area of the State for Magistrates acting under S. 145 of the Cr. P. Code to attach property; in dispute and entrust it to the Village Officer for management. The question is: Is that practice warranted by law? Does the section confer any such power on the Magistrate?

2. There are indeed a catena of cases which take the view that he has such power all of which including the recent decision of our High Court reported in 1968 KLT 554 harp on the question: what else should he do? None of the decisions unfortunately goes into the scheme of the sections of the Code and try to pinpoint the conferment of power therein. There are also some decisions contra But as has been pointed out in a recent Full Bench case 1970 K.LT 611, there is no Deed to perpetuate erroneous decisions.

3. S. 145 no doubt arms a Magistrate to deal with a situation which may lead to a breach of the peace. Attachment of the property under that section is not the rule but the exception. S. 145 (4) 3rd proviso contemplates an attach­ment only in the case of an emergency, implying that in ordinary cases the very fact that as soon as a likelihood of the breach of the peace is brought to the notice of the Magistrate normalcy will prevail, it, the person who is in actual possession whether rightfully or not, will not be disturbed until the dispute is settled in the proceedings before him. The emergency contemplated in the proviso cannot be acts of violence because an order taking the property into the physical custody cannot certainly prevent it. The emergency must be with reference to the property, like forcible dispossession of the party in actual possession or transfer of possession by him to some third party eventually defeating the object of the ultimate order. In the case of the former, the Police can act even without an order of attachment; the person ultimately succeeding in the proceeding being restored to possession. And in case the person who is in actual possession transfers possession to third parties, the order of attachment can be invoked so as to effectively prevent the successful party being deprived of the fruits of the decision under S. 145 (4).

4. S. 145 (4) contemplates only a situation where it is possible to determine who was in possession on the date of the order under Sub section (1). It also contemplates only a summary proceeding lasting for a few weeks. That is why it does not make any provision for the interim management of the property. On the other hand, even during this short duration of the inquiry certain acts of husbandry may have to be done in the property and the Code by way of abund­ant caution provides for such a situation in Sub S. (8). It is interesting to note in this connection that a separate order is to be made by the Magistrate under this sub-section. If the order of attachment under the proviso above referred to is all embracing so as to enable the Magistrate to take over the management of the property it was quite .unnecessary to have made provision for a separate order under this Sub-Section.

5. S. 146 on the other hand envisages a situation which is to last a little longer and where it may be necessary to provide for long term arrangements. Here he has to attach the properties as soon as he comes to the conclusion that none of the parties to the dispute was in possession of the property or when he is unable to come to a decision and forward the records of the proceedings to the Civil Court along with his statement. The words "may attach it" in this section have to be interpreted to mean "shall attach it", as since according to the opinion of the Magistrate none of the parties to the dispute was in possession or he is unable to decide as to who was in possession on the date of the first order he has to obtain actual control. Sub-S. (2) Then provides for the appointment of a Receiver and that too only if the Magistrate thinks it fit to do so. Here again the appointment of a Receiver, even when the property is according to the opinion of the Magistrate "in medio" is not a matter of course.

6. Thus it will be seen that when a longer period of litigation was envi­saged express power was conferred by the Code for the appointment of a Receiver and when a shorter period was in view only power for proper custody of sale of articles subject to speedy and natural decay. If the word ''attach" in these Sections has the same meaningas it should have by all canons of statutory construction to include in its ambit the taking into possession of the property in dispute, then Sub S. (8) of S. 145 and Sub S. (2) of S. 146 are both redundant. Such a construction has always to be avoided and by 'a true construction of the Sections S. 146 only empowers the Magistrate to get actual control of the pro­perty. As has been pointed out by the Supreme Court in 1966 (II) SCWR. 48 (para II) where the legislature when it wanted certain things to be included in­corporated it in certain Sections but did not do so in other sections is a clear indication that the omission was willful. Here again it is interesting to note that S. 146 does not provide for any situation as is contemplated in S. 145(8). It was because S. 146 (2) was sufficient to meet such situations also.

7. This inevitably leads to the conclusion that under S. 145 the Magistrate has no power to get actual control of the property except in cases under Sub S. (8). Any order passed attaching the property and entrusting it to Village Officers is totally without jurisdiction and void. If the Courts introduce into the Section any such power by way of interpretation it will be usurping legislative functions which has always been frowned upon by Superior Courts.

8. In this connection, it may be of use to refer to S. 88 of the Code where elaborate provisions are made for the attachment of the properties of an absconder, conditions expecting to last for any uncertain time.

9. In my humble view the decision in 1968 KLT. 544 may require reconsideration.