Death and After – Some Reference to Justice V.R.Krishna Iyer

(By P.B. Sahasranaman, Advocate, High Court of Kerala)

The Book of Justice by A.S.P.AYYAR, titled “25 years of Civilian” is one of the books   which inspired  Justice V.R.Krishna Iyer. The books states about a Judge in Berhampur who had sentenced an innocent man to death and he was duly executed.  The Judge had sentenced a man to death for murder, though the man had protested that he was at Chicacole, miles away from the scene of murder, at the time he was alleged to have committed the murder, and thus could never have committed the murder. Thereafter on that night he appeared before the convicting Judge and told him that it is you who have committed the murder and not I. If you go and look up the records in the Sub-Collector’s office Chicacole, you would find that in a mahazar and I have been noted as having been present there that day. The conscientious Judge, an Englishman, took his car and went to Chicacole.The next day the Judge searched for the records over again and found that there was an unimpeachable record to prove that the alleged guilt and execution of the accused was all false. The Judge having executed an innocent man shot himself dead. Justice V.R.Krishna Iyer always refers to this incident in many articles.

After the death of his wife Justice Krishna Iyer,in July 1974 at Milwaukee (US), he returned to India. He changed his residence from 2, Teen Murti Marg to 7 ,Motilal Marg. On the first anniversary day, wife of Justice A.C.Gupta who was staying in 2, Teen Murthi came to meet him. She looked at the photograph of Sarada Krishna Iyer hanging on the wall and told him that she met Mrs. Gupta on last night. Mrs. Iyer told her to meet him on tomorrow and tell him to take medical care about his eye sight problem. She told Justice Iyer that she came to convey the message. Justice Krishna Iyer wondered how the problem of eye-sight which only she and he knows.

In another incident Justice Krishna Iyer was driving the car during night. It hit against a road divider. On the next day when all the Judges assembled in the Court, Justice Gupta came to him and asked him whether Justice Iyer used to drive car. Justice Iyer replied rarely. Asked him why are you looking so worried ? His reply was amazing. Yesterday Mrs. Krishna Iyer met his wife and mentioned to her about the car accident. She pressed her to convey to him that he should never drive himself. He stopped driving car thereafter.

The ancient Roman poet Ovid once said : “There is a deity within us who breathes fire by which we are animated”. Justice Devan Ramachandran of Kerala High Court, while referring the above referred to Justice V.R.Krishna Iyer who was his father’s guru. Justice Devan Ramachandran felt the presence of Justice Krishna Iyer, during his reference speech made, more than any other day and that gives him great exultation.

Today Justice V.R.Krishna Iyer is not with us. But his presence is felt in many Judgments and Articles. There is always life after death.

Life Story

(By Babu Prakash.V.K., Secretary, Kerala Legislative Assembly,Thiruvananthapuram)

I live in the age of bewilderment.

My country’s Constitution

Preaches gender equality

But, my religion

Preaches other way round.

Life and it’s events

teach me, life is a story

A cycle of unpredictable story

in which everything is a contradiction.

But, the pity is that

All those old stories

Collapse and no new story

has yet emerged to replace them.

Without a new story

My life cycle goes on

Listening and repeating

The old story.

I am terribly bored.....

Judges and Crows

A strange thing happened

the other day evening.

As usual, I was returning home

after my evening walk.

Bought some eggs,

milk and a meat puff

for my talking cat.

When I turned to

the stadium road

a crow flew down and

sat on the hand rail

by the side of the foot path.

It twisted its head and

looked at me.

A sort of familiar look

with a sardonic smile, perhaps.

I too smiled and walked on

The crow did not move

when I walked past him.

When I walked ahead

it again flew and perched

in front of me,

a little away.

It made a soft crow

when I reached near

as if asking me something.

I smiled and went ahead.

Again, it flew and

landed in front of me.

I thought, it was

aiming at the puff.

But no, it did not care

for the packet in my hand.

The crow followed me

till I reached home.

When I  closed the

front door and looked

the crow was there

with its anxious look

on its placid face.

My talking cat came

and asked greedily

for the puff.

I told him about

the crow and its behaviour.

We both came

and looked out.

Alas, the crow has vanished.

While grinding his teeth

on the tasty puff

the cat exalted,

‘’ The crow is a

reborn judge who is dead.

The judge knew you

that’s why the crow,

the new incarnation

followed you.

The crow judge wanted to

talk to you about his past.’’

I asked the cat,

“Will all dead judges

be reborn as crows.’’?

The cat said,

‘’Mostly, judges will be

reborn as crows,

for, you judged others

throughout your career.

The curse of those

you judged fell on you

to be reborn as crows’’.

The cat stopped his prediction.

I became tongue tied.

Could not sleep that night.

In the late dreams

a crow disturbed

with it’s baritone voice.......

Meaning of ‘Ex-Parte’and
“The Protection of Women from Domestic Violence Act”

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

We are living in a society wherein women are being harassed verbally, sexually, physically, economically and emotionally by men even at home. Government has enacted various enactments to protect the women from being so harassed. One among such law is ‘The Protection of Women from Domestic Violence Act’ in short D.V. Act. Through the said Act certain rights are being allocated to women from being harassed by men at home. The reliefs which are introduced through the Act are described in Sections 18,19,20,21 & 22 of the Act. Though jurisdiction is conferred on Magistrate to grant all the reliefs they are of civil nature in fact.

The Act provides ‘interim’ orders as well as ‘ex-parte’orders under Section 23 of the Act. In this context it is desirable to look into what is ‘interim’ and what is ‘ex-parte’. The word interim has its meaning in the word itself. The word ex-parteshows the status of a respondent in the proceedings. It has a legal meaning. What is that legal meaning?

The word ex parteis alien to criminal law and criminal court except in few circumstances. After a thorough search through various enactments I could find three enactments wherein criminal courts have the power to set the respondent ex-parteand to pass injunction orders. They are Section 125 Cr.P.C., The Muslim Women (Protection of Rights on Divorce) Rules and Prohibition of Child marriage Act. D.V. Act is the fourth one. In any of the said enactments including D.V. Act the word ‘ex-parte’has not been defined. Hence to find out the meaning of ‘ex-parte’we have to refer C.P.C. wherein setting the respondent/defendant ‘ex-parte’is usual. But the word ‘ex-parte’has not been defined exactly in C.P.C., Civil Rules of Practice or any other civil statutes also. Then we have to look into the C.P.C. itself for ascertaining under what circumstance the opposite party can, be set ‘ex-parte’and what is the meaning of ex parteorder.

Order IX Rule 6(1)(a) of C.P.C. says that a defendant can be set ‘ex-parte’only if he failed to appear even after getting summons or notice in original suits or petitions. Order 41 Rule 14 r/w r.17(2], O.42 R.1 and O.43 R.2 also says that the opposite parties can be set ‘ex-parte’only if they fail to appear after getting summons in appeal, revision and review respectively. Thus the provisions of C.P.C. do not enable generally to pronounce an order without issuing notice to the defendant. But the civil courts are granting injunction and like orders at the institution of suit itself before issuing notice to the defendant. Such orders are being issued as enabled under O.39 R.3 C.P.C., a special provision, which enables the Civil Court to pass interim orders even before issuing notice to the opposite party, if the reliefs prayed for are found to be urgent and immediate.

The very same procedure is prescribed in the earlier said criminal laws also i.e., Cr.P.C.125(2) proviso enables Criminal Court to set the respondent ex-parteonly after issuing notice and the notice is served on him. Rule 4 of Muslim Women (Protection of Rights on Divorce) Rules enables Criminal Court to set the respondent ex parteonly after issuing notice and the notice is served onhim. The Prohibition of Child Marriage Act 2006 does not contain any provision to set the respondent ex-parte. But Section 13(1) r/w 13(6) of the said Act insists a previous notice to the respondent before granting any order. All the aforesaid provisions enable Criminal Court to pronounce restraining orders and directing orders only after notice to the respondent. There is no provision which enables a court to avoid sending notice like O.39 Rule 3 C.P.C. in the aforesaid Acts. All the aforesaid provisions and enactments would make it clear that an opposite party to a legal proceeding can be set ‘ex-parte’only after issuing notice/summons to him and on his failure to appear in response to that notice/summons.

Now read Section 23 of the D.V.Act again. The Section is headed as ‘Power to grant interim and ‘ex-parte’orders’. Though ‘interim’ and ‘ex parte’are headed together in one section both are described distinctly and separately under different sub-sections i.e., interim orders are described under Section 23(1) and ‘ex-parte’orders are described under Section 23(2). From S.23(1) & 23(2) it can be seen that both kind of orders are distinct and different. Interim order does not mean ‘ex-parte’order and ‘ex-parte’order does not mean interim orders.

Interim order, as said above, creates no doubt on its meaning. One who filed an application seeking any relief under the Act can seek those reliefs on interim basis also by virtue of S.3(1) i.e., she need not wait to get an order until her petition is disposed of finally. That does not mean that she is entitled to get the order without serving any notice to the opposite party. The procedure to be adopted before granting interim order is prescribed in Rule 12(3) of the D.V.Rules. As per Rule 12(3) interim order can be granted only after service of notice and hearing the petitioner and respondent or both. For ready reference the said rule is extracted below.

Rule 12:- Means of service of notices.

Rule 12(1) ***

Rule 12(2)***

Rule 12(3). On a statement on the date fixed for the appearance of the respondent, or a report of the person authorized to serve the notices under the Act, that service has been effected appropriate orders shall be passed by the court on any pending application for interim relief, after hearing the complainant or the respondent, or both.

So, interim order does not mean an order to grant before and without serving notice to the opposite party. At the same time D.V.Act envisages the requirement of passing interim orders at the earliest. That is why Section 13(1) of D.V. Act stipulates a condition to serve the notice to the respondent within a maximum period of two days and Section 12(4) stipulates to post the case on the 3^rd day for considering the application.

Then what does the word ‘ex-parte’under Section 23(2) mean? It is so simple to assume that if an opposite party fails to appear after getting summons/notice the case can be disposed off as if the respondent is ‘ex-parte’. That alone is meant by Section 23(2). That sub-section also prescribes that no evidence is required to be taken to allow the petition in such a circumstance; instead an affidavit alone is necessary. So Section 23(2) only means that the Magistrate has the power to set the respondent ex parteand to pass ‘ex-parte’order like civil courts. By incorporation of Section 23(2) the legislature had only intended to provide power to set the respondent ex-parteand to pronounce ‘ex-parte’orders also as in the case of civil proceedings. The legislature must have foreseen that a respondent may keep away from court though notice is served on him under the guise that it is only a criminal court and no ‘ex-parte’order will be granted by criminal court, if the criminal court is not granted with power to set the respondent ex-parte. To avoid such a situation the legislature had given power to criminal court to grant ex-parteorders to the aggrieved.

But from the inception of the enactment the courts as well as lawyers took Section 23(1) & 23(2) together and have interpreted themselves that the court can grant interim orders without issuing notice to the opposite party like interim injunction applications filed before a Civil Court. The common heading of Section 23 may be the reason for that. Is that interpretation correct? Sub-section (2) of Section 23 only says that court can pass ‘ex-parte’order by providing reliefs under Section 18, 19, 20, 21, 22 of the Act. It does not mean that an order can be passed without serving notice to the opposite party. If the other enactments and C.P.C. are borne in mind one cannot say that ‘ex-parte’order means order without issuing notice to the opposite party. Instead, it should mean that an order passed by the court Since no such provision is available in the D.V. Act like O.39 Rule 3 C.P.C. no Magistrate Court can invoke such powers and pass interim orders before issuing notice. By the non inclusion of a provision like O.39 R.3 in the D.V. Act and the inclusion of Rule 12(3) in the D.V. Rules, it can be safely said that the legislature never intended to provide power to Magistrate Courts to pass orders without noticeto the respondents.

One more aspect to consider is the inclusion of Section 148(A) in C.P.C. in the year 1976 through an amendment. It provides rights to the expected opposite parties to file caveat and thereby to avoid circumstance of passing orders without notice to them. So, in C.P.C. O.39 R.3 is available to the proposed petitioners and Section 148(A) is available to the proposed opposite parties for safe guarding their respective interests. When D.V. Act does not contain such provisions, we cannot say that D.V. Act intents to provide any reliefs without notice to the opposite parties.

Further it is very clear from Section 28 of D.V.Act that the procedure to be followed is Cr.P.C. and not C.P.C. So under no circumstance O.39 Rule 3 C.P.C. cannot be invoked by a Criminal Court while trying an application under D.V. Act.

Apart from all the provisions it is desirable to consider the relationship between the parties in proceedings under D.V.Act. They are parties to a marriage who lives or lived together in domestic relation under the same roof which is called shared house. The reliefs which are provided in the Act may curtail the rights of the respondent who is another member of the same family. If such reliefs are granted without hearing him, that may destroy the various other civil rights of such respondent. It is not simple as that of granting an injunction order by the Civil Court against the stranger who has no right over the property or subject matter. The reliefs provided in D.V. Act are meant to restrain or direct another family member to do or not to do a particular thing. When providing such reliefs the legislature must be more careful and that care is reflected by the non inclusion of provision like Order 39 Rule 3 C.P.C. in the D.V.Act.

Therefore I doubt the power of the Magistrate Court in granting interim orders without and before issuing notice to the respondents. What I said above, seems to be correct a direction be given to all concerned by the authority concerned to remove the cloud and confusion.

Can A Judgment be Invalidated

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

The answer can only be in emphatic affirmative in view of the march of law on the point from Madan Gopal Kabra, Karnataka (1954)  to (2018) 6 SCC 213.

The Supreme Court, in West Ramnad Electric Distribution Co. v. State of Madras (AIR 1962 SC 1753), has made it clear, as follows:

“The infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est. That being so, if the Legislature can validate actions taken under one class of void legislation, there is no reason why it cannot exercise its legislative power to validate actions taken under the other class of void legislation. Hence, it is not correct to say that where the contravention of fundamental rights is concerned, the Legislature cannot pass a law retrospectively validating actions taken under a law which was void because it contravened fundamental rights.”

In holding so the Court followed its own earlier decisions in Sunder Ramaier (1958) and Deepchand (1959). In S.S.Bola v. B.D.Sardana ((1997) 8 SCC 522) the functions of the judiciary and the legislature were adumbrated with exactitude in the following words;

“The function of the judiciary is to interpret the law and to adjudicate the rights of the parties in accordance with the law made by the legislature. When a particular Rule or the Act is interpreted by a court of law in a specified manner and the law making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged as in the present case on the ground that the legislature has usurped the judicial power.  In such a case the Court has a delicate function to examine the new set of laws enacted by the Legislature and to find out whether in fact the legislature has exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislature has altered and changed the character of the legislation which ultimately may render the judicial decision ineffective.The legislature can always render a judicial decision ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. What is really prohibited is that the legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution merely declare a decision of a court of law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial power.  Undoubtedly under the scheme of the Constitution the legislature does not possess the same.”

See however, the word of caution in State of Tamil Nadu v. Shyam Sunder (2011 (3) KLT Suppl. 4 (SC) = (2011) 8 SCC 737).

“The legislature could change the basis on which a decision was given by the Court and, thus, change the law in general, which would affect a class of persons and events at large.  However, it cannot set aside an individual decision inter parties and affect their rights and liabilities alone. A judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can reframe the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.”

See also Ishwar Dutt v. Land Acquisition Collector (2005 (4) KLT SN 66 (C.No. 91) SC = (2005) 7 SCC 190:-

“A Writ of Mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of a validating statute is brought into force.”

The Supreme Court has declared that a disqualification arising from a judgment can be removed by legislature. See Kanta Kathuria v. Manak Chand (1969 KLT SN 38 (C.No. 76)
SC = AIR 1970 SC 694:

“By enacting the impugned Act the appellant’s disqualification has been removed and the 1951 Act is, so to say made to speak with another voice.  But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951 Act may be different but this is because the facts on which it operates have by valid law been given a different grab.”

This was recently reiterated in State of Karnataka v. Karnataka Pawn Brokers Association (2008 (2) KLT SN 24 (C.No.32) SC = 2018 (2) KLT OnLine 2032 (SC) = (2018) 6 SCC 363) in the following words:

“On analysis of the relevant judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect.  However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment.  If this is done, the same does not amount to statutory overruling.”

“A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. The Legislature cannot, by way of introducing an amendment, overturn a judicial pronouncement and declare it to be a wrong or a nullity.  What the Legislature can do is to amend the provisions of the statute to remove the basis of the judgment.”

What doubt therefore, can there be whether the legislature can step in to express the mandate of the people, by enacting a new law in the place of an invalidated law in response to the aspirations of the people. This power cannot any longer be disputed as in a democracy it is the will of the people that is paramount and is supreme and even the courts act subordinate to it.  There therefore, cannot be any doubt that even a judgment can be altered by bringing in appropriate amendment even retrospectively, which in turn in some cases may have the effect of even nullifying judicial pronouncements.

The attempt to overturn a judgment, no doubt, has been frowned upon in cases where the Legislature lacks competence. For instance,  the cases relating to Kaveri Water Dispute and the Karuna Medical Case from Kerala.

The Supreme Court of United States however, has been circumspect on the power of the Legislature to upset the judgment of the Supreme Court (See Plant v. Spendthrift (1995 115 SC 1447) and PRA Dusadh v. R (1944 FCR 61).

In fact in India an amendment to the Constitution was made to efface out the judgment of the Allahabad High Court declaring the election of a political leader void on the ground of corrupt practice (See AIR 1975 SC 229). It is part of the history of our country that the judgments of a constitutional court in the Bank Nationalization case and the Privy Purse case were set at naught by subsequent legislations.

Indubitably people’s wishes can be taken note of and should be taken care of by the Legislature in the event it felt that legislation is needed and it can act even retrospectively.

How then could it be argued that a Legislature representing the will of the people in a democracy is utterly helpless in the event the Court steps in to invalidate a law? They sound jejune and puerile.

Amendment Arbitrary?

(By P. Rajan, Advocate, Thalassery)

The recent amendment (Act No.20/2018), insertions to Sections 143 and 148 of the Negotiable Instruments Act seem to be a shot in the arm for the complainants, relating to prosecutions under Section 138 of the N.I. Act. The age old Act is of great use mainly to the business world with a view to enhance the credibility for acceptance of cheques. By the advent of 1988 Negotiable Instruments Laws Amendment Act, resulted in far reaching changes, resultantly easy and time bound legal recourses before magistrate courts. This change paved way for prosecutions basing on bounced cheques, those being valid instruments within the purview of the Act, as defined specifically earlier also.

Across the country when steady rise of complaints under Section 138 of N.I. Act has happened, different High Courts have to take different views on vital legal issues, in short without uniformity and even the Apex Court has to reconsider the dictum already made, persuaded to reconsider even jurisdictional aspect of place of lodging of the complaint. Divergent views of the High Courts, became routine. To address the grievances of the aggrieved at the earliest, amendments by way of Act No.55/2002 has been made making important changes like acceptance of affidavit instead of complainant’s testimony, bank’s slip to evidence reason for return of the cheque, offence made compoundable (Sections 145 to 147). Not a mode of tinkering but doubt-free overhauling, in effect has taken place.

The amendment of 2018 now in existence, stipulates interim compensation to the complainant at different stages as envisaged under Section 143 A of the amended Act, provision is also made about repayment of the interim compensation already received by the complainant with interest on acquittal of the drawer within sixty days or on further extension of time and steps for recovery contemplated as though the same is like fine amount--succinct are the provisions by way of amendments.

Section 138 as it now stands empowers the appellate Court considering appeal against conviction of cases under Section 138 of the Act to deposit not less than 20% of the fine or compensation amount awarded by the trial court. This deposit is in addition to the interim compensation paid under S.143A during the pendency of the matter at the trial stage.

Payment as interim compensation or money deposit during the appellate stage in a prosecution under S.138 of the N.I. Act appears to be penal besides prelim because ultimately the verdict goes in favour of the Accused/Appellant, realisation of the amount already deposited and withdrawn by the Complainant/Respondent would be a cumbersome process considering the assets or means of the complainant. It is no gainsaying that persons filing complaints basing on cheques for hefty sums may even be holders or on the strength of power of attorney, financial soundness of such individuals the courts being unaware, unlike prosecutions lodged by financial institutions controlled by the Government or similar authorised bodies, on acquittal, getting back the amount received by such complainants may meet with the plea of penury. It is paradoxical that under civil law Order XXXVIII mandates even for attachment before judgement is to be ordered, judicial satisfaction by affidavit or otherwise is pre-requisite. It goes without saying that even ordering security for appearance under Rule 1 of the said order is discretionary and any non­compliance of the steps specified therein make the attachment void. The purport of such a provision is to give relief to the plaintiff by avoiding obstruction or delay of execution of any decree that may be passed. It is a measure of assurance favouring the plaintiff to get the decree benefits.

By the perfunctory amendments regarding deposit of portion of the cheque amount or part of the compensation during the subsequent stage of the proceeding before the appellate court appears to be unreasonable, in a way penalising the indictee before finality of the proceeding. These provisions deserve relook by the law makers because saddling penalty, term what may, deposit of cash or portion of the amount due basing on the cheque, considering the fundamental principles of criminal law is violative of natural justice, courts are compelled to be presumptive of the prosecution plea, even before the plea of the drawer of the cheque is considered.