Preparation of Ready, Weekly and Daily lists and the 'posting and adjournment of cases-- Instructions, issued by the High Court of Kerala.

In supersession of the existing instructions, the following instructions are issued on the above matters.

1.Ready list:- This is a running list of cases ready for hearing. A list of fresh cases that have become reado and are to be added to the list will be published every Saturday. Cases will be transferred from time to time from the Ready List to the Weekly List from which the Daily Cause Lists are prepared. Unless specially so ordered, no case will be included in the Weekly List until after the expiry of 14 clear days from its appearance in the Ready List.

2.Weekly List:- This is a running list of cases to be included in the Daily Cause Lists from day to day. A list of cases to be added to this list will be published every Friday and, unless specially so ordered, no case will be inc­luded in the Daily Cause List until after the expiry of one clear week from its appearance in the Weekly List.

The list should not be very long and should ordinarily include only such number of cases as are likely to be included in the daily lists within one month. The additions to the Weekly List will be made from the oldest cases available.

3.Daily Cause List:- This list will show the cases to be sent to the several Benches for hearing each day and will be published at 5 p.m. the previous day.

The daily list should not be very long and should ordinarily include only such number of cases, as are likely to he heard during the course of a week. The daily list should be re-arranged at the beginning of a term and at every avail­able opportunity like changes in the constitution of the benches so that the oldest cases will appear at the top of the list. When the list is arranged subject-wise, the subject under which the older cases occur should be placed at the top. If the list becomes too long, certain subjects may be held back and included in the list later when convenient.

Fresh cases added to the daily list shall ordinarily be entered at the bottom of the list. They may, however, be entered at the top of the list, if the bench has so ordered. Old and specially urgent cases entered at the bottom of a list will be pro­moted to the top of the list after the expiry of the week in which they were entered.

In cases where an outstation lawyer has been engaged, if a request is made to the Deputy Registrar, before the case has appeared in the daily cause list, for a posting to a particular day, the case will, as far as possible, be posted on that day immediately after the part-heard cases, if any.

4.Sitting Lists:- This will be published every Thursday and will show the sittings for the next week and the categories of cases which will be posted before each Bench.

5. Publication of the Lists:-Publication of the lists will be by affixture to the Notice Board of the Court. If the day on which a list is to be published falls on a holiday, the list will be published on the working day preceding the due date, or, in the case of lists other than the daily list, on the succeeding working day.

6. Leave and Adjournments:-All leave granted to counsel by the Hon'ble the Chief Justice will be subject to such general conditions as may be fixed from time to time. Under the orders now in force such leave will not apply to:

(1) Any case which has appeared in the daily cause list. (Leave will apply only to the addition of new cases and therefore will not be noted in the daily cause list);

(2) Criminal matters;

(3) Part-heard cases; and cases posted to specific dates;

(4) Cases of 1965 or earlier and Original Petitions, Writ Appeals, In­come-tax References and Tax Revision Cases of 1968 or earlier.

Requests for adjournment, or hearing out of turn, in respect of cases that have appeared in the daily cause list, should be made to the bench concerned as early as possible.                                                                                                                  No. DR. Mis. 18-/69: 31-1-1970.

EMINENT DOMAIN AND INDIAN CONSTITUTION

(N. Dharmadan, B. Sc, M. L., Advocate, Ernakulam)

The term 'Eminent Domain' is rather a literal translation of "Dominium eminens" the meaning of which simply stated is the power vested in the State to take private, property for public use. This power has been otherwise referred to as an element of sovereign or "summa Potestas". The genesis of this doctrine is ascribed to Hugo Grotius who in 1625 observed in his classical work "De Jure Bella at pads" as follows: "The property of subjects is under one eminent domain of the state so that the state or he who acts for it may use and even alienate and destroy such property not only in the case of extreme necessity in which even private persons have a right over the property of others but for ends of public utility to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that where this is done the state is bound to make good the loss to those who lose their property". As an attribute of its sovereignty every state has a power to acquire or requisition private property compulsorily for public necessity. This is an original right like the power of taxation and it is now a crucial part of constitutional law of every modern constitution. The common law of England recognized this right quite early. The crown could affect compulsory purchase or acquire property in exercise of the prerogative power & later this was made absolute by statute. In the United States of America, the Federal Govt, can take private property for public purpose on condition of payment of just compensation and similar power is also conferred on the State Governments. The taking of private property without payment of compensation by the Federal Government is forbidden under Fifth Amendment and by the State Government under the guarantee of the 'due process' clause of Fourteenth Amendment.

In India, the ambit of this doctrine was first defined in our Constitution in 1950, but later it had to be re-defined by constitutional amendments Our Constitution recognizes the power of the State to deprive a person of his property as a power distinct from other powers of deprivation of private owner of his property viz., the power of taxation and power of forfeiture etc. The general power of deprivation is exercisable subject to the condition of legal sanction and in the modern constitutional phraseology it is known as 'police power’. Therefore the power of deprivation is sub divided into two heads: (1) general power of deprivation of property, which is dealt with in Article 31 clauses (i) and (ii) deprivation in exercise of power of eminent domain contained in Articles 31 Clauses (2) to (6), 31 A, 31B and 9th Schedule to Constitution. The scope of the power of deprivation was a matter of controversy in the early years. The wide scope of the State's power dependent on the bifurcation of constitutional provisions embodied in clauses (1) and (2) of Article 31 was not very clear. Hence the Supreme Court did not accept the general power of deprivation in the first Sholapur Case AIR. 1951 SC. 41" The contention that clause (1) of Article 31 dealt with modes of deprivation of property by the State exclusive of that of "eminent domain" was rejected by the majority opinion in that case. But Das J. delivering dissent held that this interpretation of cl. (1) of Article 31 would make it redundant and would exclude the possibility of deprivation of property otherwise than by acquisition or taking possession of property. He observed that the scope of clause (1) was wider than that of clause (2) for the former enunciates the general provision that no person shall be deprived of his property save by authority of law and the latter lays down that deprivation of property can only be made under law on payment of compensation and for public purposes. This dissenting view was not again accepted by the Supreme Court in the second Sholapur case AIR 1954 SC 119. The Supreme Court reiterated the narrow view that Article 31 was a self contained provision exclusively dealing with the power of eminent domain and hence the clauses (1) and (2) could not be read mutually exclusive. They are only two components of the same concept. Clause (1) sets the first condition viz., no one would be deprived of his property by an executive action. Clause (2) makes provision for the further two conditions that deprivation of property could be exercised for public purpose and this could be brought about only subject to the condition of payment of compensation. This narrow construction of Article 31 had a damaging effect on the land reforms legislation. It over burdened the States with duty of paying just and adequate compensation even in cases in which the State neither acquired any property nor requisitioned it. Say for example there is the requirement of payment of compensation even if possession of a textile factory is taken over for the purpose of merely improving its management or even in cases where land is taken over for reclamation alone.

It is to get over these difficulties created on account of the strained structural construction of the two clauses of Article 31 that the first, fourth and seventeenth Amendments were passed in the years 1951, 1955 and 1964 respectively. Das J.'s liberal interpretation was given statutory recognition and the narrow view regarding the duty of the State for payment of compensation in all cases of subst­antial deprivation of property was abolished. Under the amended provisions the State can deprive a person of his property generally by authority of law under the police power in which case the constitutional requirement of payment of compensation cannot be insisted upon 'and also by the exercise of the power of eminent domain, i.e., the deprivation of property for some public purpose subject to statutory provision for payment or determination of compensation. The legislature fixes the quantum of the compensation or the principles governing the payment of compensation. Thus the amendments made the legislation for these purposes immune from challenge on the ground of violation of any fundamental right and also entrenched it by enlistment in the ninth-schedule. But the present position is very strange. Though the impediments before the State's right to regulate property rights for public purpose were successively removed by the first, fourth and seventeenth Amendments the latest pronouncement of the Supreme Court in the Golak Nath Case AIR. 1967 SC. 1643 has taken away the right to make a law Ninth Schedule statute in future with effect from 27th February.1967.

Fuddlled Crimination

(M. Marcus M. L., Advocate, Kottayam)

"Men only feel the smart but not the vice........."

"And certain laws by sufferers thought unjust..."

(Imitations of Horace by Alexander Pope)

The law makes provision for the admission of confession in evidence in "Criminal Proceeding" due to its anxiety to catch at the hilt of guilt. The presumption of innocence of an accused is deep rooted in law, that is why it ordains that the proof of guilt must be established "beyond the shadow of reasonable doubt" by permitted and legal means. The whole" frame work of the law of evidence is designed to ensure this legal proof.

The basis of admissibility of confession in "Criminal Proceedings" is that every person is the best guard of his own interests and therefore any statement made by a person against himself must contain truth. This is the reason why courts hold the view that a voluntary confession is best proof of guilt.

The Indian Evidence Act in S. 24 declares that a confession caused by inducement, threat or promise from person in authority and having reference to the charge against the accused is irrelevant in criminal proceedings if it "appears" to the court that the confession was precipitated in any of the aforesaid forbidden modes. The word "appears" gives the scope for judicial discretion in determining the voluntary nature of a confession. The quantum of proof evidencing inducement is lesser and it is brought forth in Re Ahmad AIR. (37) 1950 Mysore where their Lordships Ramayya and Mallappa observed: "S. 24 does not conte­mplate such strict proof as required by S. 3 for holding that a confession was caused by inducement, threat. Or promise". The same note is struck in a Calcutta Case Emperor v. Thakurdas Mala (ILR. 1943-1 Cal-467) holding "it is not necessary that it should be proved that the confession was brought about by improper inducement. It is quite sufficient if the circumstances are placed before the Court which would make it appear that the confession was so induced". These rulings are sufficient to indicate the caution with which a court would admit a confession in evidence. As a correlative of this principle the burden of proving that a confession is voluntary is saddled on the prosecution. S. 164 Clause 3 of the "Code of Criminal Procedure" while prescribing the mode of recording confession by a Magistrate makes it imperative that the Magistrate should have ''reason to believe" that the accused made the confession voluntarily. This prin­ciple is expressed by saying "it is only when an accused person speaks with animus confident that his utterance becomes a confession" page 152, Principles and Digest of the Law of Evidence by M. Monir. The Indian Penal Code while defining "reason to believe" says "a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise".

Various types of inducements used to eke out confessional statements are mentioned in the books but we are concerned with the specific case of inducement caused by supply of intoxicants to the accused and it is difficult to hold the view that a drunken confession could be admitted in evidence even if the liquor was administered to the accused without reference to the charge, Taylor in his "A Treatise on the Law of Evidence" 2nd Edition at Page 595 mentions the case of R. v. Spilsbury—7c—P.187 saying that a confession is admissible even if the prisoner is made drunk since the administration of liquor may not have any reference to the charge. In this connection it is pertinent to refer to "A treatise on the System of Evidence in Trials at Common law" Vol. I by Prof. Wig more at Page 922 where he observes "notice here, first that a confession in the language of Lord Hale is a conviction or in Sergant Hawkin's phrase "the highest conviction that can be made".

I do not think that we can with propriety make any discrimination between cases of liquor inducement made with or without reference to the charge. The modern development in mental science has revealed that the pronounced effect of alcohol is the lifting of the curtain of inhibition in man so much so his voluntary act of inhibiting a thing is struck at the root. In this circumstance how can we say that the confession of a drunk accused is voluntary simply because the inducement of drink was made without reference to the charge. It follows therefore that we cannot fix any hard and fast rule on the point. "Roscoe's Criminal Evidence" 15th Edition Page 41 treating of inducement of a temporal nature reveals "on this point there are but few authorities". Sexton in 1882 said "if you will give me a glass of gin I will tell you all about it" and the glass of gin was given to him. He then made the confession which Best J. refused to admit in evidence. Thus the pivot of a confessional statement is its voluntariness which is well illustrated by Phipson in his work on Evidence 8th Edition Page 249 explaining the principle to the effect that the voluntary act of confessing a crime is a "willful' act. When we examine the willfulness in the confession of a drunken accused we appreciate the fallacy of the strict interpretation of law on confession with the legal quibble that liquor offered to an accused without reference to the charge against him is productive of a blemish less confession. It may be mentioned that all other modes of inducement do allow the accused to use his intelligence to succumb to it or not but inducement by liquor stands on a different footing since liquor banished the reason of the accused. Let us cast an eye on Muslim Law on this matter. Principles of Mohammedan Jurisprudence by Abdur Rahim Page 362 reads "an admission must however be unconditional and it must be voluntary so that if obtained by coercion it is not binding nor if made in jest". I am more concerned with the terminal portion of the lines quoted. The drunken accused may even speak in a tone of jest and the Magistrate might not feel it as planted emotion. He may not find visible facial expression of fear in the accused but none-the-less the accused is incapacitated by the drink to appreciate what he speakes and its real consequence since his inhibition is wiped away by alcohol.

"The General Hindu Jurisprudence^” (Tagore Law Lecturers) by Priyanath Sen treating of the adjectival law on Page 373 observes 'A decision obtained by fraud, or force is liable to be vacated on proof that it was so obtained so also a litigation against a person not in sound state of mind by reason of intoxica­tion is void and is to be annulled."

To conclude it suffices to say that the state of law regarding inducement by liquor to confess as it exists today is liable to destroy the safety of an accused in a criminal trial lam of the opinion that legislative interference should take place to enable the medical examination of an accused including his blood test to appraise the quantum of alcohol in him with reference to his liquor tolerance prior to the recording of his confession by a Magistrate. This will avert unknowing injustice at the hands of judicial officers and at the same time give more moral support to a conviction by him. This will be a practical devise ensuring the safety of the prisoner at the dock and stability of judicial integrity. That is why Prof. G. D. Nokes of the University of London says "an admission must be a conscious act and if it is not it will have very little weight. The effect of anesthetics and drugs remain to be decided in England" 'An Introduction to Evidence' 2nd Edition Page 262.

The curt utterance of Justice Harlan Stone "The law itself is on trial in every case as well as the cause before it" (Barness and Teetters in their "New Horizons in Criminology") is most applicable to this state of Law of Evidence touching inducement of a temporal nature leading to confession of guilt, by the drunken accused 

JUDICIAL TAXATION WHETHER JUSTIFIABLE.

(S.Sasthankutty Pillai B- A., B. L., Advocate, Nagercoi)

1. Taxation byway of Court fee is being levied from parties throughout the world. But it is a matter to be seriously considered whether such taxation is justifiable and whether it should be continued.

2. Indian Union is considered to be one of the progressive States in the world. But in no part of the world such high fees are being levied as in India and in the Madras State the highest fee is being levied than in any other part of India Though the principle is that all fiscal statutes should be strictly construed and in cases of doubts and ambiguities interpretation should be in favour of the subject, in actual practice we find the other way Some courts assume the role of a taxing officer and try to exact as much as possible from the party. To set aside an adverse order on court fee by taking it in revision it will cost the party a very large sum, which in certain cases will be more than the amount that he may have to pay as ordered by the court.

3 The idea of taxing the litigant public to deal justice is against all notions of justice and that in a democrats; State It is the primary and the foremost of the duties of a State to administer justice to the parties and that without any remuneration. Generally the aggrieved party comes to court with a complaint, that he is wronged, that injustice has been done to him and that he should get redress through court. But the State makes a bargain and says, "pay our dues, then we will hear you." The party is in difficulties and he must undergo further trouble in raising the necessary funds for payment to the State. The aggrieved party is not always in affluent circumstances. Demanding Court fee from him is nothing but exploitation of his difficulties or to put it mildly it is doing business in litigation. The State should not be doing business in the administration of justice. Dealing out justice is a sacred duty imposed on the State. Otherwise there is no "difference between the State and the trader who sells commodities to his customers for ready cash payment. The trader hands over some concrete material to his customer in exchange for the price paid. But what do the litigants get in Courts of justice? It can be said that they get declarations and decrees. By the mere payment of institution fee the party does not get justice. The entire burden of proof and the conduct of the litigation is on him. The presentation of plaint in accordance with law, production of records, examination of witnesses, engaging a pleader for the conduct of the case, to argue it and place the matter before court are all his work. He has to incur further expenses for getting copies of Court records, for battas for the issue of commissions and several other innumerable payments. If no evidence is produced or if the evidence produced is inadmissibe the party looses his case, though his claim may be true in fact. For getting a decision that the party has not proved his case or that he has not conducted the case efficiently so as to bring conviction to the court he has to pay the stipulated dues and meet all other expenses. In our courts we get only legal justice; justice according to law and legal evidence. Courts of law have no responsibility in the decision of cases according to truth. Courts of law have their own limitations, the law of Limitation, the Evidence Act and the Procedure Codes and other enactments, control the courts. With these limitations they can give only such justice. Decision in accordance with truth in many cases is a mere chance. Very often the intelligent and powerful win and the weak and the poor loose. Dr. Rajendra Prasad in his article in "Young India" has observed as follows: "litigation has come to be regarded and rightly so as a sort of gambling; however true your cause, however true your case, you cannot be sure of winning it", See Extract of the article in Justice P. N. Rama-swamy's Magisterial and Police Guide, Volume I, page 201.

4. The levy of Court fee and other charges from the litigant public is of recent origin, after the British rule began in India. Under the Hindu Kings, a suitor was not required to bring his action in a court of justice by the precious payment of a duty in the shape of stamps as court fee just as one has to do at the present day, nor was any procees fee levied from him. The King entertained all complaints and enquired them. The King's attendant performed the duties of the peon and the process server. The Hindu Sovereigns regarded it his paramount duty to administer justice without any idea of remuneration. From the texts of the ancient Hindu Law-Givers such as Manu, Naradha, Yejnvalkva and Vishnu we find that no court fee was levied, but the defeated party had to pay a sum by way of fine to the successful party and out of that a portion was paid to the sovereign. During the Mohamedan rule prior to and subsequent to the Mughal period the administration of justice by the State was free. The local authorities and the Kazies of the provinces were entrusted with the administration of justice. Appeals were provided to the Chief Kazy. The parties can also get justice direct from the Emperor in person for which the Emperor had fixed certain days in a week. But aggrieved parties were never charged with any tax for giving them justice. History tells us that during Moghal period there were other taxes illegal and improper according to modern ideas such as the poll tax. But administration of justice was free and considered to be one of the primary duties of a sovereign.

5. In the early period of the British supremacy in India there was no tax on litigation. But subsequently on the pretext that frivolous and vexatious litigation should be controlled, the British Government began enacting laws imposing tax on the litigant. In Madras, court fee was first levied as per Regulation III of 1782, in Bengal court fee was first levied as per Regulation XXXVIII of 1795; in Bombay it was introduced in 1802; in the Native State of Travancore it was first introduced as per Regulation I of 1010 M. E. Before that, the State was defraying all the expenses of the judicial establishment in consonance with the accepted idea that it is the duty of the State to administer justice to the subjects free of cost.

6 .Levy of court fee is sought to be justified on the ground that the expenses incurred for the establishment of law courts, its maintenance and up-keep should be realised from the litigants who seek its help. That the object of the court fee Act is to levy fees for the services rendered by courts and public officers is expressed in some of the decisions of our High Courts. See I. L.R. 32 Madras 305 at page 311. But levy of Court fee by the State in exchange for justice is strongly condemned by jurists like Bentham. According to Bentham it is the primary duty of the State which is responsible for all the litigations to decide it without taxing the party. There are contrary views also. Another ground urged for its justification is that this is one of the sources of income to the general finance of the State. The observation of justice Manu k in 49 Indian Cases 442 at page 449 is to this effect. But this view is uniformly condemned as unjust. When the Court Fee Bill was first introduced in the Indian Legislative Council, the eminent jurist Maine strongly condemned the policy of taxing litigants for the benefit of the general finance of the State. Chief Justice Leach, of the Madras High Court in his farewell address to the Madras Bar, on the eve of his retirement has observed, that making of profit by administering justice cannot be justified on any ground

7. Every State is incurring a good deal of expenditure on the judicial establishment. But that is no justification for imposing any tax on the unfortunate litigant public. Litigants who come to courts are generally in difficulties and to tax such people is cruel. For meeting the expenses of the State in connection with the administration of justice, the State must look to the general finance and not to the litigant. There are innumerable sources of income to the State and new sources are being tapped day by day Innumerable taxes unknown to ancient society are being collected today. These taxes hit each and every individual in the State including the litigant. But from whatever source the revenue is taken, the State as the sovereign body is bound to dispense justice and refrain from taxing the unfortunate section of the public who happen to be litigants.

6. There are a few provisions in the Civil Procedure Code which exempt poor parties from payment of institution fees. Order XXXTII C. P. C exempts pauper plaintiffs from payment of court fee on plaint; and Order XLIV exempts pauper appellants from payment of court fees on appeals: but pauper plaintiffs and appellants have to meet all other expenses. Order 33 and 44 C. P. C. are only a postponement of the payment of fees; it will be realised by the State from the patties.

9. It is high tine for the public to agitate and the authorities to consider the removal of all tax so litigations, by repealing the Court Fees Act, as early as possible

HER HOARY MAJESTY-- THE LAW

(T. G. John, Advocate, Trichur)

Law it is said, is a very proud and jealous mistress. While she sweeps aside with a jerk and a caution those romping, roving and rapacious Don Juans and Casanovas who oggle ravenously at her, she is bountiful and nurtures with due alacrity those who approach her in the right royal way. Here is a domain not for bally ragging rapscallions but for the gentle and the bashful who woo her ardently with a song in their hearts. She is never pugnacious but always pulsates with cherubic enthusiasm scintillating an' aura of peace and goodwill wherever she goes. Her creed -- to set right wrongs done to others. And today while she ruminates over the past chiliads of years, she can only smile with some reticence even at King Solomon in all his glory attempting to solve a complicated question of disputed parentage by a 'simple and sure' child-cutting farce, as only a faddish fantasy of yesterday.

There is however one solitary instance which looms large before us where Her Majesty played a double game with one of her most passionate and illustrious suitors. Himself a bad and despicable character, his very name gives a jolt to the whole of humanity even today. In a mad endeavour to save the Majesty of Law, he had to 'wash his hands' without water. The man is Pontius Pilate, Pontius Pilate was a great jurist. He was a bad character but he knew the law of the land. "Lord Shaw of Dunfermline, in a remarkable study of the Trial of Jesus Christ, has sketched how the Sanhedrin flouted the Jewish traditions of a fair trial, since embodied in the Talmud. Under that law-as in ours-an accused person could not be condemned out of his own mouth. But this salutory safeguard was ignored and Jesus was questioned by his accusers and on his answers they pronounced him guilty-when he was no. However the Sanhe­drin could not pass sentence of death and they remitted the case to Pilate, the Roman Governor. Pilate had a bad record but he knew his law. He saw that the trial was riddled with irregularities illegal arrest, trial by night and inadmissible evidence. All that was obnoxious to the Hebrew Law and jurisprudence-of Rome. A defiant mob was at his gates, clamouring for the blood of Jesus, but Pilate had no hesitations whatsoever. He quashed the proceedings. At that moment he upheld the Majesty of Law and vindicated the right of the subject to its protection" (Naga Rajan -- Norton Endowment Lecture).

The rest of the story is briefly told. Jesus Christ on the crucifix pleaded for a general amnesty for all those who were involved in his trial and crucifixion because, they 'knew not what they were doing'. In quashing the proceedings and at the same time "washing his hands" and leaving Jesus to an infuriated mob it could never be said that Pilate did not know the full implication of what he was doing. That is why pious Christians even today believe that Pilate was never a beneficiary of the general amnesty pleaded for by Jesus on the Cross. The great sequel is that Pontius Pilate lost heaven because he was a great jurist.