CORPSES CANNOT WALK

(T.G. John, Advocate, Trichur)

Appearing and disappearing with bewildering rapidity, the facts of the Bhowal sanyasi case (Bibhabati v. Ramendra Narayan- AIR. 1947 P.C. 19) have the disjointed quality of a surrealist movie. It has all the thrills and twists of a fictional whodunit-all the dramatic portents of a melodrama; it is a true life story of mystery, crime, love and adventure. It will seem that a dead man has walked out of his funeral pyre-a sequence which can only be imagined as a product of trite fiction of the class of Marie Corelli’s immortal work ‘Vendetta’. But still that was what really happened on that fateful night at Darjeeling in the year 1909.

Raja Bajendra Narayan Roy, the Zemindar of Bhowal,, one of the largest landed proprietors of East Bengal died on 26-4-1901. The family was regarded as the premier Hindu Zemindar family of Dacca and the annual rent-roll of the estate was about six lakhs of rupees. The Raja was survived by his widow, three sons and three daughters. Ramendra Narayan Roy was his second son.The three sons were mentioned in order of seniority as Bara Kumar, Me jo Kumar and Choto Kumar.

Though born with silver spoons in their mouth, the three Kumars neglected their studies in such a way that though placed under the tutelage of the best educationists; they never got beyond their Bengali and English alphabets. The Kumars were busy otherwise. They were thriving in other fields; at the age of 18, when his father died, Ramendra Narayan-the hero of our story-was a confirmed debauchee visiting prostitutes and haunting low dens of vice. In 1902 he married Bibhabati, a beautiful girl of 13. Even after his marriage, he kept on sowing wild oats and at some date subsequent to 1905 the second Kumar had gummatous ulcers on or about both the elbows and on his legs, being the tertiary stage of syphillis.

Bhibabati had a brother Satya Babu who was studying for law about the year 1908. He was a very cunning man and he proposed to the second Kumar the idea for visit to Darjeeling. Ramendra set out to Darjeeling with a party consisting of Satyababu, his wife Bhibhabati, a retinue of servants and a doctor. Sixteen days after reaching Darjeeling, Ramendra fell ill and on May 8, 1909, he died a little before midnight. The body lay in the house ‘the entire night and was cremated the next morning’. On 10th May, Bhibabati with the rest of the party left Darjeeling for Jaidobpur where shohadher ordinary residence until April 1911, where she left for Calcutta to live there permanently with her mother and brother Satyendra. She began to enjoy her widow’s estate in the undivided one third share of the Bhowal estate, which her husband the second Kumar had owned, and she recovered the proceeds amounting to Rs 30000, of a life policy taken out by the second Kumar, the necessary certificates of death having been provided. By 1919, Bhibabati had received about nineteen lakhs of rupees from the estate. In 1910, the first Kumar died and in 1913 the third Kumar also died, all due to dissipation and fast living. The Bhowal family waspractically extinct. And then things began to happenDecember - 1920: One cold morning in December an unusually lean sanyasi alighted at the usually crowded railway station of Dacca. He was later found sitting on the Buckland Bund on the river. There he sat nightand day, rain or shine, for nearly four months till April 5, 1921. But for a loin cloth, he was naked He had a fairly long beard and his hair fell behind his back, matted into a mass of cords reaching down to his knees, his body besmeared with ashes from head to foot. Buckland Bund was a public walk on the margin of a river where people promenade morning and evening for pleasure or health. All were struck by the close resemblance of this ascetic with the second Kumar of Bhowal. He was later taken to Jaidebpur where all his tenants and his relatives after close scrutiny, deliberation and questioning were finally convinced that he was none other than the second Kumar of Bhowal,-Bhibabati through her brother Satya Babu resisted and maintained that the sanyasi was only a pretender... On April 24, 1930 the second Kumar instituted a suit for declaration that he is Kumar Ramendra Narayan Roy, the second son of the late Rajah Narayan Roy of Bhowal and that his possession should be confirmed in respect of the one third share of the properties described in the schedule, or if from the evidence and under the circumstances plaintiff’s possession thereof should not be established,then possession thereof should be given to him. He further asked for injunctions against obstruction to his possession. Bhibabati contested denying inter alia the identity of the plaintiff with Kumar Pamendra Narayan Roy. The rest of the story could be pieced out from the large volume of evidence which was forthcoming in this case. The defence maintained that the second Kumar died shortly before midnight and that the following morning his body was cremated with the usual rites at the new sasan at Darjeeling. The plaintiff admitted that there was a funeral procession and cremation on the morning of 9th of May but maintained that the body so cremated was not of the second Kumar; his case being that the second Kumar was taken for dead at about dusk between seven and eight 0’ clock in the evening of 8th of May, that arrangements were at once made for cremation, that the body was taken in funeral procession to the old sasan and placed in position for cremation, when a violent storm and rain caused the party to take shelter, and that on their return after the rain had abated the body was no longer there, that thereafter another body was procured and was the subject of the procession and cremation, the following morning. The plaintiff’s further case was that while the funeral party were sheltering fr6m the storm, he was found to be still alive by four sanyasis who were nearby and had heard certain sounds from the sasan and who released him and took him away, looked after him and took him with them in their wanderings, that when he had recovered from an unconscious state, he had lost all memory of who he was, where he came from and of past events. Some eleven years later he recalled that he came from Dacca, and that was how he took up a position on Buckland Bund on the margin of the river Buriganga at Dacca.

Before the First additional District Judge of Dacca, the trial lasted for 608 days. 1042 witnesses testified for the second Kumar and 433 for the defence. On 24-8-1936 the Judgment of the court was delivered which ran into 532 foolscap pages-the limit of judicial endurance! T he plaintiff was declared to be the second Kumar and entitled to an undivided one third share in the properties in suit. The appeal from the trial court’s decree was heard by a special bench of the Calcutta High Court consisting of Costello, Biswas and Lodge JJ. (Lodge J. dissenting) and was dismissed confirming the trial court’s decree. The appeal from the Calcutta High Court to the Privy Council was heard by Lord Thankerton, Lord Du Parcq and Sir Madhavan Nair. Mr. D N. Pritt appeared for the respondent. On 13th of July 1946 Lord Thankerton advised his majesty that the decision of the High Court should be affirmed.

Strangely enough on 3-8-1946 four days after the Privy Council judgment, the second Kumar died at Calcutta. There was a funeral procession; there was a funeral pyre; there was cremation; and it really did rain on that day. But on that fateful day he could never walk out of the funeral pyre as he did previously; and no sanyasi came to his rescue. Corpses cannot walk.

The flames of the pyre became longer than long and with one violent crackle of the skull, the curtain was finally rung down on one of the strangest sagas of human history once more flaunting the fact that truth is always stranger than fiction.

Judicial Over - Speed

(T.P.K. Nambiar, B.A.,M.L., Advocate, High Court, Ernakulam)

"Justice delayed is justice denied". "Justice hurried is justice buried". In between the two lies dispensation of true justice. "Justice is sweetest when it is freshest". "Justice hustled is justice muzzled." In between the two lies the correct administration of justice. I should think no explanation is necessary to elaborate the obvious.

Speedy justice is desirable; but speed is not synonimous with hurry. Speed is brother to despatch. But hurry is twin-brother to haste. It was truly said by Charles Caleb Colton that no two things differ more than hurry and despatch; hurry is the mark of a weak mind; despatch of a strong one. Nothing is more vulgar than haste. Benjamin Franklin realised that great haste makes great waste. Moliere put the same idea in a different form: "Unreasonable haste is the direct road to error". And over-speed is unreasonable haste.

It is very much in the news these days that the Hon'ble High Court has issued administrative instructions to the subordinate courts to do speedy justice, The subordinate courts are directed to do devotion to what is called, the 'list system'. Why, there is a judicial pronouncement on this aspect. His Lordship Mr. Justice Khalid has observed in Antony v. Rita (1980 KLT. 203): "The subordinate judiciary has to dispose of cases in accordance with the directions of the High Court. There is a list system prevalent in this State for the subordinate judiciary to adhere to. If appeals listed for hearing are not disposed of in time, the judge will have to offer explanation to its higher authorities; if the explanation is unsatisfactory he can incur their wrath also". (Of course, on the facts of that case, His Lordship found that sufficient indulgence was shown by the learned subordinate judge to the appellant's counsel to prepare and argue the case and therefore there was no impropriety in what the learned subordinate judge had done)

But the very same learned Judge (Justice Khalid) had occasion to come across another case in which a learned District Judge had shown great haste in disposing of two appeals before him. His Lordship observed (in the judgment in SA. No. 1029 of 1979): "The common judgment is highly unsatisfactory. The judgment does not contain the statement of facts; the point for consideration; nor a discussion about the points that fell for consideration with the learned judge". The appeals had been dismissed by the learned District Judge saying that "there is a lot of confusion". His Lordship Mr. Justice Khalid observed: "It is the duty of the appellate court to resolve the confusion and dispute with the aid and assistance of the counsel appearing before it. This duty has not been discharged by the court below". The judgments and decrees of the learned District Judge were set aside and the appeals were remitted back to him for fresh disposal after considering all the points at issue between the parties. This was directed to be done on or before a particular date. The appeals went back. The learned District Judge disposed them of by remanding the suits to the trial court. This was of course done within the time stipulated! Therefore the result of the hasty disposal of two appeals by the learned District Judge was, two Second Appeals before the Hon’ble High Court, two remanded first appeals before the learned District Judge and two suits before the trial court. And the parties to the proceedings stand where they were at the start of the litigation. "Quickly got, Quickly lost", as the Yiddish Proverb goes.

The present writer could supply more illustrations of such disposals in the name of the 'list system'. A commissioner reported that the property involved in a suit for injunction was in the possession of the defendant. There-Tore the plaintiff filed an application for amendment of the plaint seeking relief of recovery of possession on title. A learned Munsiff dismissed the application; and one of the grounds for such dismissal was, (as boldly and specifically stated in the order), that he had directions from the learned District Judge to dispose of the suit itself within a specific date and if the amendment were to be allowed he would not be able to comply with the directions. He was afraid he would incur the wrath of the learned District Judge!

One of my advocate friends told me the other day only that he had fallen ill on the day of the posting of a particular appeal in which he was appearing for the appellant before a subordinate court; he filed an application for adjournment supported by a medical certificate. The application was rejected and the appeal was dismissed for default, for the appeal was a listed one and the learned subordinate judge possibly thought that if the appeal "listed for hearing is not disposed of in time, he will have to offer explanations to his higher authorities; and if the explanation is unsatisfactory he would incur their wrath also".

Mr. Justice V. Ramaswamy of the Madras High Court is reported to have said that "the problem of delay; in the disposal of cases and the piling of arrears in courts could be solved to some extent by instituting a prize scheme or by giving out-of-turn promotions or advance increments to those judicial officers who disposed of maximum number of cases". (See 'The Hindu', dated 28—5—1980). Judicial officers would vie with each other for bagging the prize or promotion or increments by disposing of cases in the manner illustrated above.

It is well to remember with Koran : "Haste is of the devil". The path of judicial driving is not even. There are procedural humps, bumps, crossroads, culverts and hair-pin bends on the way. Therefore drive carefully; be steady; avoid mishaps and save time; and reach the destination sure and safe.

"Slow and steady wins the race", is the great lesson taught by the story of the hare and the tortoise.

It is not the number of cases disposed of that matters. It is the manner of disposal that is significant. Justice speaks not through statistics, but through satisfaction. Statistics and justice are strange brothers; they are frequently not even on speaking terms.

RETIREMENT OF MR. JUSTICE G. KUMARA PILLAI

In the retirement of Mr. Justice Kumara Pillai, the judiciary of Kerala loses one of its distinguished and most popular Judges. Endowed with deep legal learning and high judicial qualities, he was discharging his duties conscientiously with independence and considerable credit unswayed by personalities and unaffected by public opinion. His judgment of men and matters was sound and shrewd. His talents and erudition are borne out by his numerous judgments on all branches of law without distinction. As a Judge he marked himself with independent and clear thinking and clarity of vision. His incisiveness of intellect helped him to grasp easily and quickly, any complicated case whether civil, criminal, or revenue. He was a fine gentleman in every sense of the term. He possessed in abundant measure affable and amiable manners, and a lovable nature. Always cheerful and serene he was by nature simple and sociable. In his personal manners he was most unassuming and he endeared himself to everyone with wdiom he came into contact by his dignity, nobility of bearing and lively conversation. He was zealous to maintain the dignity of the Bar and to promote its interests. His services, as Chairman of the Income-tax Appellate Tribunal, Member of Agricultural Income-tax Appellate Tribunal, Chairman of Parlia­mentary Election Tribunal and as Commission of Enquiry on many occasions, have been valuable and laudable to the appreciation of all. He carries with him the ..esteem, affection, respect and unstinted appreciation of the Bar and the public. We wish him all happiness, health and prosperity.

Retirement of Mr. Justice Varadaraja Iyengar

On Friday, the 3rd April 1959, the Bench and the Bar bidding farewell to the retiring Judge, Mr. Varadaraja Iyengar eulogised his work as a judge and his manifold qualities which endeared him to his colleagues and the members of the legal profession. All the Judges of the High Court were present at the function which was held in the Chief Justice’s Court room. It was crowded to its fullest capacity. On behalf of the Bar, Advocate General Sri. K.V. Suriyanarayana Ayyar, and the President of the Advocates’ Association, Mr. T.N. Subramonia Ayyar, spoke about the valuable services, varied talents and superb qualities of Mr. Justice Varadaraja Iyengar the Chief Justice on behalf of the Bench, associated him with the expressions of the speakers and paid glowing tributes to the retiring Judge.

Mr. Justice Varadaraja Iyengar, who was the doyen of the Bar at the time of his appointment, proved himself to be a distinguished and popular Judge. The pages of the law reports bear eloquent witness to his untiring industry, his deep learning and his brilliant powers of analysis. Combined with a quick grasp of facts, he possesses a remarkable power of driving straight to the real point at issue in a case. His judgments are concise, devoid of irrelevances and characterized by a robust common sense. His shifting of the facts is marvelous, the interpretation of the law is simply superb, and when the two fused together the product thereof is a perfection He has by the masterly judgments and weighty pronouncements enriched the case-law of the country. He discharged his duties without fear or favour. His judgment in Susan v. State, 1955 K.L.T. 901 is remarkable and outstanding tor his spirit of independence and erudition. He observed “that whenever there is transgression by the executive, let it not be forgotten that it will be pulled up by this court”.

He possessed an amiable disposition, an innate dignity of manner and an equable temperament. His patience and uniform courtesy made him a a lovable personality. His generous humanity won for him the respect and confidence of the profession and the general public. Of him it may be said that he has left behind him no ill-will, no bitterness, but only the happy and sweet recollections of a lovable and learned Judge

May the Almighty vouch him a long life, good health, and happiness prosperity and ail-round bliss in the years that are to come.

HUMANISATION OF CRIMINAL LAW IN YUGOSLAVIA

The Federal Executive Council has adopted the bill on amendments and supplements to the Criminal Code which foresees major amendments in the penal system and generally a humanization of the criminal law. One of the most essential changes is the abolition of the penalty of life imprisonment which will be replaced by a penalty of 20 years rigorous imprisonment. The bill also provides that death sentence can be pronounced in very grave cases. Till now death sentence has not been pronounced only on pregnant women and in future it will not be pronounced on persons below 21 years of age. Persons who have committed the gravest offence against the people, state or armed forces are not in question.

Persons who have been punished with rigorous imprisonment or imprisonment will after 11 months of constant work in a reformatory be allowed to a leave of 14 days during one year, reimbursement for work done, one day off a week, free health and social protection etc. It is also planned to acquit the convicted person if he has served one-third of his prison term instead of a half as has been the case so far.

Major changes have also been made with regard to minors. The bill provides that persons up to 14 years of age cannot be punished but only educational measures be undertaken against them. Minors aged 14 to 18 years are divided into two categories. Only educational measures can be applied on younger minors aged 14 to 16 years; the court can pronounce punishment on minors aged 16 to 18 years only if they have committed a criminal offence for which a penalty of at least 5 years of rigorous imprisonment is foreseen this being only in cases when it is considered that it would not be justified to apply educational measures.