'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

(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.

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

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 ofthe 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.

THE STORY BEHIND THE ANATOMY ACT

V.A. Abdul Azeez, B.A., B.L., Legal Assistant, Kerala Law Secretariat

In the judicial annals of Scotland the trial that created the greatest sensation is that of Burk and Hare. The case created world-wide interest by reason of the complicated atrocity of the crimes and the importance of the legal principles involved. When the deadful tale was first unfolded public feeling was worked up to the highest pitch of excitement.

The Scots regarded with superstitious veneration, the mortal remains of their kindred. The natural repugnance to dissection of the human body combined with religious sentiment remained for centuries a barrier for anatomical research. Edinburgh grave-yards appeared more as zoological gardens as the graves were barred and grated as a protection against human wolves. Complaints of rifled graves were frequent. The lawful supply of dead bodies was wholly inadequate to meet the growing needs of Medical Schools. The punishments for exhumation though severe could not counter the equally inexorable laws of supply and demand. On 9th March 1742, the body of a country gentleman which was buried in the West Kirkyard was discovered on the dissection table of a Surgeon. The news spread like wild fire and in the evening, an angry mob attacked the house of Dr. Martin and the other Surgeons of the locality.

x           x          x          x          x

William Burk, born in 1792 in Ireland emigrated to Scotland in 1818. He had already a wife and six children in Ireland, but he fell in love with one Helen Dougal, a prostitute, and lived like man and wife. They were running a lodging house in the West Port. In the autumn, they wrought at the harvesting near Penicuik and on returning to town made acquaintance with a Mr., & Mrs. Hare.On 29th November 1827, an old army pensioner died in this lodging house. Burk was genuinely grieved over this, because the old man owed him £ 5 and there was no possibility to realize the amount from him. Hare appeared on the scene as an angel of wisdom and whispered something to his comrade. Burk was very much pleased with Hare. They took out the corpse and concealed it in the bed and put banners bark from behind the house into the coffin, covered with a sheet and carried it away for interment. When it was «-dark, they engaged a porter to carry the body to the Surgeons Square. They were introduced to Dr. Knox. The Doctor appeared to be very much pleased with them and gave £ 7-10 s. The doctor did not ask them how they obtained the body, but he said that he would be glad to see them again when they had any other body to dispose of. These words worked powerfully on the cupidity of the two miscreants. Here was a royal road to success and wealth. But folks did not die often enough. After long waiting, Burk and his friend conceived the notion that it was unnecessary to await the co-operation of nature. Their idea was that feeble, friendless wanderers would serve their purpose. So they began to prowl about the town on the lookout for persons with whom the firm was likely to do business.

Early in the spring of 1828, a woman from Gilmerton came to Hare’s house as a nightly lodger. She and Hare became merry and drank together. She became very sick and vomited. She was lying on her back and quite insensible from drink and Hare clapped his hand on her mouth and nose and Burk laid himself across her body in order to prevent her from making any disturbance. She never stirred. They took her out of bed, undressed her and put her into a tea chest. In the evening, a porter came and took the chest to the Surgeons Square. They were given £ 10. This time Dr. Knox smiled at them to cheer them.

Next was an Englishman from Chesire, a lodger of Burk. They murdered him in the same manner as the other sold to Dr. Knox for £ 10.

Now the business was flourishing. Then came to this Lodge Mary Peterson, a young and beautiful prostitute. She was smothered to death by Burk and Hare after entertaining her with drinks. She was only four hours dead till she . was in Dr. Knox’s dissecting table. She was a handsome figure, well-shaped in body and limbs. Dr. Knox and his disciples were struck by her beauty and brought a painter to have a look at her. Her body was preserved for three months in whisky and during this period a portrait of it was painted.

The ease and success attending these operations convinced Burk and his friend that they had solved the irksome problem of making a living. They dressed better and pretended to, be big businessmen.

One morning, Burk saw two policemen dragging a drunken woman to a nearby station. Burk was shocked by the roughness of these officers and politely told them that she is a distant relation of his and would take care of her. The policemen were happy to entrust the old woman to the care of Burk. That evening, the poor old woman was freed from all earthly penalties and lay quiet on a dissection table of Dr. Knox. Over and above the moral benefit accruing from the performance of a kind action, Burk was richer by £ 10.

For nine months the firm of Burk and Hare carried on their trade with success murdering nearly 16 persons, but their last speculation miscarried and their affairs were in the hands of the public prosecutor.

Hare turned an approver and Mrs. Hare was released on 19th January 1829, She was recognized and was soon in the centre of a hostile crowd. She was pelted mercilessly with mud and stones by an angry crowd. At last the policemen with great difficulty rescued her.

Burk was hanged on 27th January 1829. One of the densest crowds ever witnessed on the streets of Edinburgh collected to witness the execution of Burk. Every window and house top from which a glimpse of the criminal could be obtained was occupied. The public paid 5 to 20 shillings to obtain a seat near windows commanding a full view of the scaffold.

The body of Burk was exhibited on the black marble slab of the anatomical theatre. All day long a continuous steam of sight-seers flowed through the chamber as was calculated sixty per minute, giving a total of 30,000 persons.

The fullest measure of poetic justice attended Burk’s dissolution. He died as did his sixteen victims by suffocation. His body also became a subject for the advancement of science, under the anatomist’s knife.

Today in the central hall of the Anatomy Museum of the Edinburgh University, the skeleton of a human being is suspended in a show case in a conspicuous place. There is note at the bottom of the case, ‘William Burk, the murderer’, skeleton of a scoundrel who was hanged on 27th January 1829.

This without any precedent in the annals of crime amounts to the realization of a nursery tale. This is also the first instance of murder alleged to have been perpetrated with the aforethought purpose and internet of selling the murdered body as a subject for dissection to anatomists.