The Fall of Singapore
(Published in 1980 KLT)
By T.G. John, Advocate, Thrissur
02/07/2018
The Fall of Singapore
(T.G. John, Advocate)
Captain Harekrishnan. Vasudev Kamath was a tall, dark, hefty man with rough cut and uncouth features so characteristic of demons in Indian mythology. He was an army officer of distinction belonging to the 23rd Hyderabad Regiment. The captain was in charge of a machine gun section and was on active service during world War II and his regiment was always in readiness to be sent to any of the theatres of War particularly Burma and Malaya Peninsula. Though he was a hard task master, his refined manners and kind behaviour towards his subordinates endeared him greatly towards them.
Captain Kamath was stationed in Delhi living in the military hutments in the Khyber pass area. He was having family quarters and was living with his wife Susheela. Though dark and short, Susheela was beautiful with gleaming eyes, a luxurious abundance of black hair, a narrow waist and full hips. Her delicately curved lips, finely poised small chin gave her a charming expression which made her very popularjn the entire army establishment and social circles. Inspite of all her accomplishments, Susheela was always conscious of her dark skin particularly so in the constant presence of fair skinned and tall Punjabi girls of the locality. Amongst the other members of the captain's household were his Andhra servant cum cook Velu and his Kashmiri Sikh driver Avtar Singh. The army authorities had placed the services of Avtar Singh entirely at the disposal of Captain Kamath as his orderly and driver. Nevertheless Avtar was a regular soldier in the army liable to be called on active service.
Avtar Singh was a Kashmiri Sikh tall exceedingly fair in complexion and remarkably handsome in appearance with chestnut brown hair, moustache and beard. After joining the army, he had discarded his turban.
When evenings came, Susheela did not know what to do with time. Usually Kamath will be in his office even upto 9 P.M. She would sometimes go for evening walks, taking the dogs with her. But she found it inconvenient to take the Alsatian because of its quarrelsome temperament. Then she thought of going on long drives in evenings in her Hillman minx Saloon and there was Avtar Singh ready to oblige her During such outings, Avtar used to regale her with witty anecdotes though in broken English. Very soon Susheela too, picked up enough Hindustani and sometimes found Avtar in his elements telling about his escapades, his memoirs about Kashmir etc. The attraction between them made a steady gallop and at the end of about three months, it was very often observed that during the long evening drives that Susheela was sitting by the side Avtar Singh! The utter monotomy of her life made her crave for love and affection which she was not getting because of the continued neglect of her husband.
World War II was in full swing. In the eastern theatre, the Japanese had invaded the Malaya Peninsula from Siam and Singapore had fallen. Captain Kamath and Avtar Singh made sudden departure to the Burma front. Susheela was left alone in the Army Headquarters and passed very anxious times. She daiiy scanned the casuality list and was shocked beyond measure when one day she found the name of Havildar Avtar Singh among those seriously wounded. She was however happy because Avtar had been brought to the Military hospital at Delhi cantonment. Susheela visited him daily at the hospital and by her loving care and concern and the efficient medical aid from the hospital Avtar Singh recovered completely in a month's time Her attachment to Avtar Singh was complete, romance blossomed into more progressive escapades.
War on the Burmese front continued for over a year. One fine morning in August 1944. Captain Kamath returned to Delhi. He was shocked when he found that his quarters were locked and deserted. Neighbours told him that Susheela was in the house till the end of July, when one night she, disappeared, thereafter to be never seen and that after a few days the servant Velu also went away leaving the key with a neighbour. Captain Kamath entered the house and found that most of Susheela's personal belongings had been taken away!
One cold night in mid December on the Mall Road near Khyber Pass Army Quarters an unidentified body of a man was found. Evidently he had been killed by gunshots. A kirpan was lying near the dead body When the police arrived on the scene, they found tyre impressions of a car very near the dead body. The post mortem report revealed that the three bullets clustered together in single file and the ballistic expert opined that the clustering could only be achieved by firing with a machine gun at short range. The investigation proceeded and the Police finally identified the dead body as that of Havildar Avtar Singh of 23rd Hyderabad Machine gun battalion. Further enquiries by police revealed the romantic association of Captain Kamath's wife Susheela with Avtar.
The Police connected this possible clue to Captain Kamath being a possible assasin with the permission of the Army authorities, Captain Kamath was arrested on suspicion. He was charged with the murder of Avtar Singh and committed to the Sessions. When the Police went to the house of Avtar Singh at Riasi, they found Susheela living as the wife of deceased. She refused to talk and when the police again went there with a warrant for her arrest, she had already committed suicide by setting fire to her clothes and the wooden house in which she was living had been reduced to ashes!
In the dock, Captain Kamath made a clean breast of the entire matter. That he had authentic reports of the unholy relationship between Avtar and Susheela. Kamath said that he knew Avtar Singh was seriously wounded in the Burma Front but he had no knowledge that he had survived. Before his return many had seen Susheela in the company of Avtar Singh. On enquiry he learned that Susheela had eloped with the Kashmiri Avtar. One evening by sheer chance he saw Avtar Singh buying sarees in a shop at Chandini Chowk. He followed him in his jeep. At the khyber Pass Bus stop Avtar stopped. Kamath also stopped his jeep. On seeing Kamath, Avtar drew his kirpan and attacked Kamath but Kamath drew out his automatic from its holster and at point blank range touched the trigger. Three rounds burst out and Avtar lay crumpled dead.
Kamath's story was corroborated by a number of witnesses The Sessions Judge considering all the evidence found him not guilty of the charge of murder and acquitted him.
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.
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.
'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.
Sound v. Silence
(Published in 1980 KLT)
By T.M. Abdulla, Advocate, Tellicherry
29/06/2018
Sound v. Silence
In lighter vein
(T.M. Abdullah, Advocate, Tellicherry)
Two types of Judges (with respect). One: a light-weight, free, pleasant, informal, resisting out speaking but rarely succeeding, given to querying to understand, discoverable and therefore landing in trouble with a transfer application, not a stickler to procedural dots and dashes;—this is sounding type. The other: a heavy-weight, reserved, formal, successfully suppressing outspeaking, unpredictable and undiscoverable, morose and sometimes full of a feeling of 'supreme within the four walls of the court'—this is silent type. The first type is lovable; the second, fearable.
"No adjournment, you see, I must explain to High Court. You know we have our difficulties. You must co-operate with us."
So saying he disarms the lawyers.
"NO NO NO ADJOURNMENT" gryffly saying he resiles into silence, keeps by, takes up other papers, will not let you know when he will revert to it. You have to signal to the BC to know what has happened to it. He either signals back to bear up for some time or he also keeps mum. Then it is the faithful duty of the Junior to sit tight and know the fate which come minutes before the court rising. All this could be avoided with a little touch of light-weight.
"Do "you know where you are standing and whom you are addressing?" The question is flung at one who was practising when his honour was a little 'tot' waddling naked at home.
"I am sorry, your honour, if I have in any way offended your honour". A wise lawyer will submit with a bow.
The 'law & order' type of a young lawyer will react otherwise. This is 'supreme within the four walls' facet.
"I am supposed not to know. You must assist me. We both are officers of the court" sounds the light-weight.
"I know all that. You need not teach me" is the style of the heavy-weight.
"I am no arbiter of your quarrels. Have them in full and then argue your case" is a touch of humour of the light-weight.
"I will report to the Bar Council your behaviour in court. DO YOU UNDERSTAND?" is the 'masterly' way of the heavy-weight.
'He was a school master in previous birth' a hushed remark of a member of the 'Gossip Group'.
"Please don’t make noise; I am disturbed" observes the heavy-weight.
'Let him go to a burial ground for silence' whispers aside in absolute hush, one of the 'L & O' youngsters.
"I have read the papers Tell me what...why...how etc" showers searching questions, the sounding one The 'silent valley' of a heavy-weight will not let anything escape the mouth but keep glum and deliver the goods with high blood pressure.
A pleasantly respectful and respectable atmosphere congenial to the dignity of the honourable office and the decorum of the noble profession is ideal; all agree.