Recovery v. Discovery & 1979 K.L.T 642
(Published in 1980 KLT)
By V.K. Sathyavan Nair, Advocate, Kottayam.
29/06/2018
Recovery v. Discovery & 1979 K.L.T. 642
V.K. Sathyavan Nair, Advocate, Kottayam
Reformative suggestions, often lack realism. But the desire of the Bench to change the law springs out from legal reality and anxiety to do justice. An experienced judge is the fittest person to comment upon the failure of justice resulting from the application of certain provision of Statute or particular branch of law. It is not because of the official position, but for other reasons. There may be occasions where a Judge is compelled to take a decision that he knows to be unjust, under the weight of authority. The court has to solve so many difficult riders that may come before it arising out of the application of the law and from experience the court may be able to suggest what the law should be. But unfortunately such suggestions are very rarely given due consideration by the legislature. A close relationship between the courts and the legislature is necessary for effective law reform. G. W. Paton in his Text book of Juriprudence has stated that the judicial complaint is often buried in the reports and no action follows. In many countries the Judges are empowered as a body to make suggestions for the reform of the law, but for various reasons few changes can be ascribed to this source. If there is lacking a channel between the courts and the legislature, there may also be little co-operation between the legislature and a law revision committee.
Frequently we came across with, such reformative suggestions in reported cases. Recently our Kerala high Court has expressed its view and recommended, the deletion of S. 27 of the Evidence Act. (See. 1979 KLT. 337 and 1979 KLT. 642). The court has also given its reasoning for taking such a view. The decision reported in 1979 KLT. 642 is commendable in another respect also. The court has unhesitatingly undone the practice hitherto followed by the criminal courts in allowing indiscriminately the request by the police for the custody of the accused for the purpose of effecting recovery of the material objects. It is only fair and just to turn down such requests especially when the accused says that he has no information to be passed into the police in connection with the crime. The court did, and rightly too, give more weight to the principles under which a citizen's liberty is safeguarded than to the sub-telities of procedural rules.
'Recoveries' are usually coverted into 'discoveries' by the Police misusing S. 27 of the Evidence Act. Our courts have over and again deprecated "such practices. To the investigating agency the words 'recovery' and discovery are synonymous. The word 'discovered' in S. 27 is used in a peculiar sense. Discovery is the act of finding upon search something, the existence or the locality of which was unknown till then. The fact discovered must be discovered in the sense that the proof of the existence of that fact no longer rests on the credibility of the accused's statement, but rests on the credibility of the witnesses who depose to the existence of that fact. It has been held in a number of cases that the fact discovered must be such as the police had not previously discovered from other sources and that there must be a discovery in the sense that the knowledge of the existance of the fact was first of all derived from the information given by the accused. There is no discovery when the articles are not recovered from any hidden place and when in the normal course of investigation the investigating agency is bound to see them and take them in possession without the accused making any statement. In several cases there is really no discovery as in the case where the investigator recovers the thing first and then records a statement connecting the accused with the fact found out. There may be also cases of planting the articles of crime fpr availing the benefit of S. 27.
It is true that in spite of the several safeguards contained in S. 27, the provision is often misused by the investigating agency for supplying evidence. As our High Court has observed an artificial S. 27 recovery' taints the entire investigation. The court has further observed that it is only rarely that an accused person voluntarily gives information about such weapons.
The Judgment concludes with the following remarks. The blatant manner in which the investigating officer has made the request to the Chief Judicial Magistrate to make available the petitioner to custody of the Police for the purpose of an "effective recovery" speaks eloquently in favour of deletion of this section from Statute".
Certainly, the legislature should take note of the complaint of the judiciary and its desire to change the law by deleting S. 27 of Evidence Act. However, the evils of unfair and oppressive investigation is not confined to a particular Section alone.
The Evidence Act, is nothing but English Law of Evidence reduced to the form of express propositions. There are, of course some modifications rendered necessary by the peculiar circumstances of India. The English Law of Evidence is almost wholly Judge-made Law. The Evidence Act was drawn up chiefly from Taylor on 'Evidence'. S. 27 corresponds to paragraph 902 of his treatise and the introduction of the Section in the Evidence Act was an attempt to apply the English law of Evidence about information unduly obtained from a prisoner to information given by an accused while in the custody of a Police officer. Ss. 25 and 26 of the Evidence Act are peculiar to our country. The history of the Rules containing the law of confession would, no doubt, reveal the anxiety of the legislature in laying down stringent safeguards in the interest of accused persons against the malpractices of Police officers extending even to positive torture. The Indian Penal Code provided two special sections (330 and 331) directed against such malpractices. If the law does fail to protect jealously the prisoners against becoming the victim of their own delusions, or the machinations of others, the entire law of confession has to be overhauled in a reasonable and systamtic manner to cope with the changing times. Adequate safeguards can be provided including the right to counsel during interrogation and warnings to the suspect or accused of his right to counsel and to remain silent. Further, if the peculiar circumstances and the conduct of the police existed in our country at the time of drafting the Evidence Act, a centuary ago, had not been changed, no object will be achieved by changing the law alone. A thorough reorientation of the procedure of investigation is the only remedy.
'Amicus' Missed the Bus!
(Published in 1980 KLT)
By N. Dharmadan, Senior Advocate, High Court of Kerala
29/06/2018
'Amicus' Missed the Bus!
(By N. Dharmadan, B.Sc., M.L.)
Normally when a court of justice is in doubt in a matter of law any counsel in whom the court has high esteem will be called upon to help the court. The counsel undertakes the job out of regard for the court and endeavors to present the best. Invariably the court gives glowing tributes to the amicus curiae for the performance at the end of the case. But the 'Amicus' appeared in Kerala Law Times does not deserve it. (refer to Article by 'Amicus' in 1980 K.LT 67 Journal). He has not endeavoured to present the best. The performance of the 'Amicus' appears to be haphazard and incomplete.
The ruling given by Mr. Justice Khalid in Manuel v. Thomas reported in 1980 KLT. 283 was branded by 'Amicus' as a "patent nullity having no legal existence or binding force". Had he attempted an exhaustive study on the subject I am sure he would not have come to this conclusion.
The facts of the case in which 'Amicus' appeared' are simple. In an appeal to be disposed of by a Division Bench, pending before the High Court, the respondent took objection regarding the court fee paid by the appellant and that matter came up before the single judge in the ordinary course. After hearing all parties concerned, including the government pleader, the court passed order, finding that court fees already paid by the appellant is not correct, granting sufficient time for payment of proper court fee. This is a case squarely coming within S. 149 read with CI. (2) of S. 107 and Order 7 Rule 11 CPC. and the judge has. ample power to pass such orders (AIR. 1951 All. 64 (F. B.) AIR. 1977 Punjab 248).
The main plank of the argument of 'Amicus' to attack this judgment is that S. 11 of the Kerala Court Fees and Suit Valuation Act 1959 applies in this case and the learned judge failed to advert to it. According to him "no judge has jurisdiction to take it up and determine it outside of S. 11 of the Court Fees Act in the High Court." He also argues that the view of the learned judge that the disputed court fee question is an interlocutory matter"appears to be clearly incorrect".
The disputed court fee question in a pending appeal can only be a matter incidental and ancillary to the main appeal and any pronouncement in respect of the same can only have the character of an interlocutory order. One cannot treat the court fee question in a pending appeal and the subject matter therein as two separate unconnected matters to be dealt with independently. Without considering the subject matter and valuing the same according to law nobody can take a correct decision regarding the proper court fee payable in respect of the same. The Supreme Court has repeatedly said that court's duty is not to exaggrate the efficacy of procedural or other defects. ((1976) 3 SCC. 607) The duty of the courts is to take a pragmatic view of the matter and do justice to the parties. There is no justification for any technical pleas for defeating just claims of citizen ((1979) 1 SLR. 757 (SC))
A more fundamental flaw committed by the 'Amicus' in this matter is with regard to his argument based on S 11 of the Kerala Court-fees and Suit Valuation Act. On a plain reading of the section it is very clear that this section has no application in a pending appeal. That section applies only when a 'suit' has been filed before the High Court and a difference arises between the ta'xing officer and the party regarding the proper court fee to be paid it can be decided by the taxing officer or if he thinks that the question is of general importance it can be referred to the Chief Justice or such judge of the High Court as the Chief Justice shall appoint In this case that stage is over and there is no difference between the taxing officer of the High Court and the party so as to attract the provisions of S. 11 of the Act Here the difference is between the parties in the pending appeal and it will have to be decided by the Judge of the High Court and the Civil Procedure Code, provides for the same. Even if there is no provision the judge can deal with the matter for there is a catena of decisions both of the Prevy Council (1942 PC. 189) and Supreme Court (1962 SC. 527) to the effect that High Court has also inherent power to deal with any matters which are not specifically provided for in the statute in the. interest of justice. The High Court has very wide powers to enlarge time for payment of proper court fees.(1960 AP. 590) To say that the High Court has no power to deal with questions of deficit court fees in a pending appeal is very strange and rather astonishing.
Admitting for argument sake that the entire reasoning of 'Amicus' is correct the pertinent question to be asked is whether the decision of the single judge of the High Court on a matter involving deficit court fee without observing the procedural formality or without authority of law is a nullity having no legal existence at all and can be ignored?
This is answered and dealt with in clear terms by H.W.R. Wade in the following passage (Administrative Law by Wade 4th Edn. Page 287)
"In one class of cases there is a long-standing doctrine that collateral challenge is not to be allowed; where there is some unknown flaw in the appointment or authority of some officer or judge. The acts of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The J logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so. In such a case he is called an officer or judge de facto, as opposed to an officer or judge de jure "
This principle has a long history and it has been applied by House of Lords as early as in 1851.(Scadding V. Lorant. (1851) 3 HLC. 418) though the courts in England were taking a different view for some time recently they have changed this trend. The prevailing view is that unless and untill a determination of a court or tribunal is set asideit will be good since it bears no brand of invalidity on its forehead (Page 77 Lord Denning's. The Discipline of Law)
It is true that in certain cases there is the possibility of creating a dilemma when an authority in excess or error of jurisdiction directs an illegal act. Then the question will be as to whether the citizen should suffer it until upturned in a legal proceeding. This is a also answered by a learned author (Rubinstein-Jurisdiction and Illegality Page 205) in the following manner. "It is not an instrument with a bit of wax and the seal of a court put on it; it is not an instrument with the signature of a person calling himself a registrar; it is not such a quantity of ink bestowed upon such a quantity of stamped paper; a sentence is a Judicial determination of a cause agitated between real parties, upon which a real interest has been settled". Even if the defects go to the root of the matter it will not knock down the order with nullity. ((1978)3 WLR.1) 'An order, although void in law, remains for many purposes effective and operative until it is challenged and its invalidity is declared by a competent body or court.(1979 K.LT. 845; 1971 KLT, 646; 1970 KLT. 430) Thus an order which is unauthorized by law is null and void, but it continues to operate against the person against whom it was made'. It remains valid and operative till it is set aside by a court or competent authority. The void decision is only voidable. According to Mr. Justice Krishna Iyer in this branch of jurisprudence there is a legal chaos and it should be avoided by evolving simpler concepts by the Legislature ((1974) 2 SCC. 121). But this decision has been severly criticised by Sri. M. P. Singh, Reader in law, University of Delhi. ((1979) 2 SCC. 1 (Journal))
So far as Kerala High Court is concerned there is no legal chaos, in this branch of jurisprudence. Three important decisions of this court on the subject have laid down the law in clear terms beyond any doubt. 'Amicus' has missed these decisions when he has stated that the decision of Mr. Justice Khalid in the above case is still born having no legal existence or binding force. He has really missed the bus led is not entitled to any glowing tribute from anybody.
'Rankling' Costs
(Published in 1980 KLT)
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
29/06/2018
'Rankling' Costs
(By T.P.K. Nambiyar, B.A., M.L., Advocate, High Court, Ernakulam)
The cause list was full. The crusaders were absent. The arena was empty. The situation rankled, the learned judges. Court peon ballyhooed. Ears were deaf. Sixteen cases went into the cist. 'Open Sesame' petitions were filed. Conditional resurrections were ordered. Propitiate the civil government by cling of coins, was the judgment. Their Lordships' order on CMP. 5911/80 in AS. 134/76 and the connected petitions reads:
"These are applications in five of the appeals dismissed by us for default on 15—4—1980. On that day, cases of 1975 and 1976 were posted in the list and in items 1 to 16 so posted, there was no appearance of counsel for appellants or petitioners as the case may be except in one case where counsel appeared to submit that the case cannot be heard by this Bench. That case was adjourned and the other cases were dismissed for default. The process of calling the names of the parties took-a fairly long time. Even then there was no representation on behalf of the defaulting parties. In similar cases for restoration that came up before us we held that in the peculiar circumstances of the case where it was the time of the court really lost in this process, the proper course would be to direct the defaulting party to pay a sum of Rs. 250/-to the State as a condition for restoration. That was because there was no appearance for the respondents at the time the cases were called for and it was not necessary to direct the defaulting party to pay costs to the other party. In these circumstances, these cases will stand restored to file on condition that in each of these cases a sum of Rs. 250/- is paid to the State within one month of this date failing which the concerned petitions will stand dismissed. In case of payment as above, the case in which payment is made will stand restored to file".
In the order on similar cases for restoration, their Lordships (Poti & Khalid JJ.) had observed: "Apart from the fact that the court was unable to dispose of the very old cases, lot of the court's time was wasted which is ofirreparable loss to the Bench and the Bar.........Considering the fact that it isthe time of the court that is wasted and the public money that is lost, we think it would be appropriate to order costs to the State though the State is not a party in these appeals".
No doubt, there was ample reason for their Lordships to feel distressed and distraught; and the 'restoration order' was, indeed, a merciful bounty.
But, I should think, with the ulmost respect, the condition imposed, namely payment of money to the non-party State, may not be justifiable.
What is this amount of Rs. 250/-? Is it a fine'? 'Fine' it can never be, for 'fine' is money exacted as a penalty for an offence, and it is a form of punishment to which offenders are liable. Then, could it be 'fee' or 'tax'. Neither. Decisions are legion on the connotation and denotation and distinction and difference between fee and tax. There is no need to dilate on this, for their Lordships have called it 'costs', and 'costs' it is. as it is awarded in a civil cause governed *by the Code of Civil Procedure. But, could costs be awarded to a person not privy or party to a proceeding. 'Costs' theoretically represent the financial burden of the parties in a litigation, is the view expressed by Krishna Iyer J. in Yousuf Rawther v. Sowramma (1971 KLT 261).
The word 'costs' is defined in the American Jurisprudence as under:
'"Costs' are statutory allowance to a party to an action for his expenses incurred in the action. They are in the nature of 'incidental damages allowed to the successful party to indemnify him against the expenses of asserting his rights in court, when the necessity for so doing was caused by the other's breach of legal duty. Otherwise defined, costs are the sums prescribed by law as charges for the services enumerated in the fee bill. They have reference only to the parties and the amounts paid by them, and only those expenditure which are by statute taxable to be included in the judgment fall within the term 'costs'"
Similar is the definition given in Corpus Juris Secundum.
Henry Campbell Black, in his Law Dictionary, has given the meaning of 'costs' as 'expenses awarded by court to prevailing party'. Osborn's Concise Law Dictionary would indicate that costs are payable on the party and party basis.
The word 'costs' is not defined in the Code of Civil Procedure. S. 35 of the Code deals with the principles governing the award of costs. But the decisions interpreting S. 35 indicate that the question of 'costs' is one between the parties to the cause Ss 35A and 35B of the Code are also sure pointers in this direction.
When an Addl. Munsiff awarded costs in 32 cases to the non-party State, the Hon'ble High Court thought it strange and it was decided on the administrative side to take the matter in suo motu revision in one case. It was done. And, Narendran J. allowed the Revision Petition, setting aside the order of the learned Munsiff directing payment of costs to the State. The decision is reported in 1978 KLT. 841 (Maniankutty v.Venkiteswarari). The learned judge has observed: "But, however fertile one's imagination may be. it is not easy to conceive that costs can be awarded to one who is not a party to the suit".
When a learned Munsiff did it, a learned Single Judge of the Hon'ble High Court pronounced it to be weedy. Now, a Division Bench of the High Court has done it; and the subordinate courts could now follow the line of this decision.
The present writer has a respectful suggestion. Let the point involved be placed before the Rule Committe, (constituted under S. 123 of the Code of Civil Procedure), which has power under S. 122 of the Code to make necessary rules. Let there be a clear rule on this aspect.
TAILPIECE: Old cases cannot make bad law.
Advocate Fees
By M. Stanley Fernandez, B.Com., D.S.S., B.L., Advocate Kochi
29/06/2018
Advocate Fees
(M. Stanley Fernandez, B. Com., D.S.S., B.L., Dist. Govt. Pleader & Public Prosecutor, Ernakulam)
Rules regarding the fees Payable to legal practioners in the High Court and in the subordinate Courts in Kerala, was framed by the High Court of Kerala with the previous approval of the Governor of Kerala in the year 1969. These rules came into force on 22nd July 1969. It is nearing eleven years since these rules have been framed. In all other walks of life, the scales of' pay and remuneration of wage earners have more than doubled during this decade. The general cost of living has also increased to a great extent. It is only just and proper, to revise the Rules regarding the Fees Payable to Advocates. The Bar Associations and the State Bar Federation should voice their opinion in support of this just cause of the lawyers of Kerala. The High Court and the State Government should sympathetically consider this matter, and suitably revise the fee Rules.
x x x
JUDGES
The Consultative Committee of Members of Parliament attached to the Ministry of law, Justice and Company Affairs have recently unanimously recommended that the Chief Justice and at least one third of the judges of a High Court should be from outside the State under its jurisdiction. The newly constituted committee meeting under the Chairmanship of the law Minister, Mr. Shiv Shankar also took the unusual course of making a formal recommendation to the Government. This is a subject in which both the members of the Bar and the Bench have to be equally concerned, and should voice their opinion in unequivocal terms, before the Government take a decision on this vital issue. One could understand, the Government appointing a few judges from outside the State. But to insist, that the Chief Justice of High Courts should be persons from outside the State is not proper. This recommendation of the parliamentary committee calls for a second thought and revision.
Incidentally one has to consider the question of pay and other emoluments being paid to High Court Judges. The rate of remuneration being paid to the members in different sectors of the Community is perhaps five to ten times that of the scales of pay that existed in the year 1950 when the Indian Constitution was brought into force fixing the pay scales of the High Court and Supreme Court Judges. A close scrutiny of the matter would reveal that the remuneration being paid to the High Court & Supreme Court Judges, remain more or less stagnant during the last 30 years. Hence before hasty legislation is made regarding the proposed service conditions of the High Court Judges it would be only just and proper that the judges of these courts are assured of a decent wage by the Government.
Criminal Law in Soviet Union
By V.A. Abdul Azeez, Advocate, Alleppey - Rtd. Additional Law Secretary
29/06/2018
CRIMINAL LAW IN SOVIET UNION
V.A. Abdul Azeez, B.A., B.L., Legal Assistant, Kerala Law Secretariat
Once it was believed that there is no legal system in U.S.S.R., the country is ruled by terror, the only principle of order being that of hierarchical subordination. This has proved to be a dangerous delusion. The iron curtain has been lifted. Delegations of lawyers flew to Moscow from India and other Asian countries. Now the fact cannot be denied that the Soviets do have a legal system based on very definite principles of law and justice.
Criminal law is a means whereby the State may act officially to exert discipline on the people. In U. S. S. R., the State is interested not only in protecting the community against wrong doers, but also in training the people to be responsible citizens. The State itself officially undertakes the responsibility of the education of its future citizens. Society is conceived to be a single great family-rather a gigantic school.
The Criminal Law of U. S. S. R. has much in common with the Western conceptions of crime and punishment. But much has been added in recent years. That is inevitable for a planned economic order. To understand a people’s law, one must also study their social background. A study of Russian literature and history will go a long way to help one to understand this background. The fundamental difference between a religious and social conception of crime is well expressed in the Novels of Dostoevsky and Tolstoy.
Socialism involves an extension of the domain of criminal law to new areas. Socialist property has to be protected Negligence and willful misconduct of State Business have to be prevented and punished. For this new economic crimes are devised to protect the State against deviations from the fundamental principles of the established order. Breaches of planning discipline are severely dealt with.
The Soviet Criminal Procedure resembles the English method in providing for a bi-lateral hearing, the right of confrontation of witnesses and judgment based on rational proofs. Parties can represent by lawyers. The option is with the party to go in appeal over the decisions of a lower court. In criminal cases, if the accused refuses to have a lawyer, the prosecution is not allowed to be represented by either. In such cases, the court itself conducts the trial. The Soviets give much importance on pre-trial investigation. In the preliminary examination, the examining. Magistrate interrogates the accused and the witnesses. The indictment is prepared only after this examination.
Verdicts are always based on relevant evidence only. The Judge plays an active part in interrogating the defendant and the witnesses on both sides. The prosecutor and the defence counsel question the witnesses. The defendant may also put questions personally at any time during the trial. Clarification of
the entire situation in the mind of the accused as well as in the records of the investigation is achieved by the preliminary investigation. The whole history of the accused is investigated including his past misconduct. The examiner will have to find answer for several questions- whether the crime took place under coercion, threat or by reason of economic strain? Was the alleged offender in a state of destitution or influenced by personal or family conditions? It is not simply the offensive act that is to be punished or exonerated, but the man himself.
The rights of the accused will be clarified to him and he will be always protected by the court from the consequences of his ignorance. The fact that the convicted person is dead does not prevent an appeal, if newly discovered circumstances can rehabilitate his reputation. Public censure and money censure are imposed as a penalty on an accused person.
A delegation of Indian lawyers who visited Russia some years back have given the working details of the Soviet legal system. There is a misconception among the people of other countries that in Soviet Union there is very little codified law and the whimsical directions of the executive generally prevail in the judgments of courts. But it is a fact that laws in Soviet Union are simple, comprehensive and codified. It is said that there are nearly 1,500 lawyers in Moscow, and in the Supreme Court there 350 lawyers. Thirty per cent of them are women. Instead of the Bar Council, they have the Collegium. For enrolment, one must get a certificate from this Collegium. Apprentice period is six months. All juniors are assured of a minimum income and it is the duty of the Collegium to look after this. Clients are at liberty to choose their own lawyers. Payments are made directly.
Cases of hooliganism are common. It generally occurs out of heavy drinks. There is a positive effort by Government to discourage drinking. Theft as an offence is very rare. Cases of divorce are numerous, but Government discourages divorce for the well-being of future generations.
A former Chief Justice of U.S.S.R. once remarked. ‘‘The important function of a Socialist State is the fundamental remarking of the conscience of the people and graft upon them higher and nobler feelings”.
In Soviet Russia, the whole man is dealt with in a Criminal procedure, just as a teacher or parent deals with a child. Soviet law is built on the foundations of a new concept not merely of society and the State, but also of man himself.