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2003 DIGILAW 481 (KER)

Geetha Panickar v. Lagi Easo Mathew

2003-07-28

R.BASANT

body2003
Judgment :- Can a notice given to an Advocate appearing for the respondent in a criminal proceedings pending before a subordinate Court be reckoned as sufficient notice on such respondent of the proceedings initiated before this Court to quash such proceedings? This is the crucial question which arises for consideration in this Crl.M.C. now. 2. First of all, a reference to the relevant facts. The petitioner in this case faces indictment in a prosecution under Sec.138 of the N.I. Act. That prosecution is initiated by the respondent herein by filing a private complaint. She has filed this application requesting this Court to invoke its powers under Sec.482 of the Cr. P.C. to quash the criminal prosecution initiated against her. The criminal complaint was filed as early as in 1999 and is registered as C.C.No.649/99 before the lower court. This Crl.M.C. was filed on 29/11/2000. When this case came up for hearing on 30/11/2000, urgent notice before admission was ordered in the Crl.M.C. and an interim stay was ordered staying all further proceeding in the C.C. Months and years have rolled by. The stay has been extended form to time. But the proceedings still remain defective for the reason that the respondent/complainant has not yet been served. 3. It indeed is surprising that the respondent has not so far entered appearance. It is reasonable to assume that he must be aware of the stay, as the learned Magistrate has not evidently proceeded further with the case after the interim stay was granted on 30/11/2000. I am at a loss to understand why the respondent, who is represented by a counsel before the Magistrate's Court which is only a stones throw away from this Court, has not so far entered appearance. 4. This is not a situation peculiar to this case. Experience shows that the main bulk of pending petitions under Sec.482 of the Cr.P.C. to quash the criminal proceedings, in which orders of stay have been granted, continue to be pending before this court for want of service of notice on the respondent/complainant. Precious time of this Court is being wasted unnecessarily in passing orders of extension of stay from time to time as service on the respondent in the main petition is not complete. 5. Cannot this unfortunate state of affairs be remedied? Precious time of this Court is being wasted unnecessarily in passing orders of extension of stay from time to time as service on the respondent in the main petition is not complete. 5. Cannot this unfortunate state of affairs be remedied? Does not the law enable this Court to put its foot down and prevent such gross abuse and wastage of time of this Court. Notices issued to the respondent/complainant from time to time or seen returned unserved for various reasons. Cannot this Court direct notice to be served on the Counsel who is continuing to appeal before the Subordinate' Court in the very same proceedings which is sought to be quashed in Sec.482 proceedings before this court. 6. If that cannot be done lawfully, there is something seriously wrong with the law. I am unable to persuade myself to throw my hands up in desperation and repeat this wasteful and meaningless exercise of ordering notice to the respondent directly knowing fully well that he, in the very same matter, from which the proceedings before this Court arises, is represented by a counsel before the subordinate Court. 7. Fundamental issues have to be tackled. What is the purpose of a notice? Hearing the adversary before an order against him is passed is the culture of our system. No person can be visited with an adverse order unless he is given an opportunity to make himself heard-to raise his objections against the grant of the orders sought. There is no magic behind the concept of issuing notice. The purpose of issuing notice is simply to ensure that no man is condemned unheard. He has the right to get an opportunity to be heard. This right of opportunity to be heard is zealously protected by the system of laws under which we function. Let us be very clear of the purpose of notice. The purpose is only to ensure that the rule of audi alteram partem is observed. It is not a fetish or an empty ritual. 8. Rules there are as to how a notice is to be served. Rigid adherence to the rules will be unnecessary if the conscience of the court is satisfied that the adversary has had an effective opportunity of being heard by the court. Right of notice and hearing is not an empty ritual at all. 8. Rules there are as to how a notice is to be served. Rigid adherence to the rules will be unnecessary if the conscience of the court is satisfied that the adversary has had an effective opportunity of being heard by the court. Right of notice and hearing is not an empty ritual at all. Issue of a notice is an act to achieve a purpose. Ritualistic and rigid insistence on compliance with the stipulations under the statute and rules may not be necessary if the conscience of the court is satisfied that sufficient notice has been issued to/received by the adversary in the proceedings. 9. Now to the specific rules. In the Kerala High Court Act, there is no specific stipulation regarding issue of notice. The Act also does not contain a stipulation that rules can be framed under the Act relating to the issue of notice. Rules of the High Court of Kerala have been framed in 1971. The preamble to the Rules shows that the rules are framed "by virtue of the powers conferred by Article 225 of the Constitution of India, S.122 of the Code of Civil Procedure, 1908 and all other powers enabling in this behalf." The Rules have 18 chapters with schedules and forms attached to it. Chapter IV refers to 'service of Notices'. It contains Rules 51 to 68. There is nothing in these Rules to indicate that these rules refer only to civil proceedings or to proceedings other than criminal cases alone. We have another chapter dealing with criminal cases. Chapter XIII contains Rules 172 to 187. The heading of the chapter is 'criminal cases'. 10. Rule 174 in chapter XIII appears to be of crucial significance. I extract the rule below: "174. Personal notice in the absence of Advocate. -- Notices in criminal cases shall be served on the parties personally unless they are represented by an Advocate in which case notice shall be given to such Advocate: Provided that, when an admitting a criminal appeal of revision petition presented by an Advocate, the court directs notice to issue to a party to show cause against enhancement of sentence, notice shall be served on the appellant or petitioner in person. Provided further that if service of notice cannot by the exercise of due diligence, be effected as provided above, the serving officer shall affix one of the duplicates of the notice to some conspicuous part of the house or homestead in which the person on whom the notice has to be served ordinarily resides; and thereupon the court, after making such inquires as it thinks fit, may either declare that the notice has been duly served or order fresh service in such manner as it considers proper." (Emphasis supplied) 11. It is crucial that no summons need be issued by this court in criminal cases to the parties. The provisions of the Cr. P.C. relating to service of summons in chapter VI-A are obviously not intended to be applied rigidly. The normal rule is that notices in criminal cases shall be served on the parties personally. The rule makers carved out an exception, if the parties are represented by an Advocate, it is enough if notice is given to such Advocate. 12. Is the respondent/complainant in this case represented by an Advocate for the purpose of issuing of notice? This appears to be the crucial question. I have read and re-read the rule. There is no stipulation, express or implied that the Advocate must be one who is appearing for the respondent before the High court. If a party has already appeared in a criminal case before this court, there cannot normally be any question of serving any notice on such party again. It is enough if the party is 'represented by an Advocate'. Is the respondent here in represented by an Advocate? Certainly, he is. He is represented by an Advocate in the proceedings before the lower court from which the present proceedings arise. The present proceedings, I repeat, is to quash the very same proceedings, which the respondent has initiated before the learned Magistrate. I am of opinion that the word "Advocate" in the expression 'represented by an Advocate' would and must certainly include the advocate appearing for the respondents before the court below in the same proceedings which is sought to be quashed in this proceedings before the High Court. Ascribing any narrower or constricted meaning to the expression 'represented by an Advocate' will, according to me, be doing violence to the purpose to be achieved by issuing notice. Ascribing any narrower or constricted meaning to the expression 'represented by an Advocate' will, according to me, be doing violence to the purpose to be achieved by issuing notice. It would also be an interpretation, which does not take into account the consequences and the evident advantage which could be derived by the system by accepting the liberal and wider interpretation. 13. As the question is of crucial significance and importance, all counsel appearing before this court were given opportunity to make their submissions on this aspect. Whoever was willing and could contribute was heard. I have had the advantage of a complete and thorough discussion at the Bar. I place on record my appreciation of the valuable assistance rendered by various counsel. 14. It is contended that the court would then be making use of the Advocates as process servers of the court. I am of opinion that even if it be, there is no harm involved. Advocates are certainly the officers of the court. If their services are utilized by the court to achieve the interests of expedition and to serve the interests of their own clients by avoiding unnecessary wastage of time and expenses, I am unable to see anything wrong or objectionable in the court, utilizing the services of its own officers-Advocates, to achieve such a sublime purpose. 15. The Advocate may have difficulty in contacting his client. It may not hence be possible for the Advocate to take notice and convey the same promptly to his party. I fail to understand this argument. The Advocate is certainly bound to take notice on behalf of his client in the pending proceedings before the court below. At least on that aspect there is no dispute or quarrel. The learned counsel cannot obviously say that he cannot receive notice from the court concerned in a pending proceedings in which he continues to appear for his client on the ground that it would be inconvenient or difficult to inform his client. If that be the position, I fail to understand how reception of a notice from a superior court on behalf of the party in respect of the matter in which the counsel continues to appear for such party can work out prejudice, hardship or inconvenience to the counsel. 16. The Advocate may be exposed to unnecessary risk, it is contended. If that be the position, I fail to understand how reception of a notice from a superior court on behalf of the party in respect of the matter in which the counsel continues to appear for such party can work out prejudice, hardship or inconvenience to the counsel. 16. The Advocate may be exposed to unnecessary risk, it is contended. If it is the court before which he has filed vakalath he can appear personally and secure the interests of his client. But when the proceedings are pending before another court, it would become difficult and impossible for such counsel to appear. No one expects the counsel to appear personally before the High Court on receipt of a notice. All that is expected of the counsel is to pass on the information to the party of the pendency of the proceedings. It is for the party to choose to appear, not to appear, engage the same counsel or engage any other. It is enough if the counsel conveys information to the party. If the counsel does not do that, that would certainly be a breach of an obligation under the engagement. Appropriate consequences may follow. This alleged inconvenience/difficulty of the counsel to inform the client does not at all persuade me to accept an interpretation that the expression “represented by an Advocate” cannot include an Advocate for the party appearing before the subordinate court in the same matter, which is sought to be quashed before this Court. 17. It is then contended that Rule 59 of the Rules of the High Court of Kerala specifically deals with a situation where a party is represented by an Advocate before the subordinate court. I extract Rule 59 below: "59 services of notice on the pleader in the subordinate Court. -(1) In an application from a preliminary decree or in any appeal, or other proceeding instituted in the High Court before the disposal of the main proceeding in the Subordinate Court, notice may be served on the pleader who represents the party in the proceeding in the Subordinate Court and such service shall be deemed to be sufficient service on the party who is represented by such pleader. Where a party is not represented by a pleader in the main proceeding, notice shall be served on the party direct. Where a party is not represented by a pleader in the main proceeding, notice shall be served on the party direct. (2) Where the pleader on record for a party declines to receive such notice, the case shall be posted before Court for orders." 18. It is contended that Rule 59, which appears in Chapter IV, can have no application to criminal cases which are dealt with exclusively in Chapter XIII. It is contended that criminal cases are governed exclusively by chapter XIII and hence Sec.59 which appears in chapter IV and the other provisions of chapter IV can have no application to criminal cases. The Rule makers did not want Rule 59 to apply to criminal cases. Hence Rule 174 cannot be given such a wider and liberal interpretation, it is urged. 19. I am of opinion that this reasoning is fundamentally defective. Chapter IV dealing with 'service of Notices' does not at all, according to me, exclude the application of the provisions to criminal cases. The provisions of chapter IV, I must assume, do apply to all cases- civil, criminal, election etc. There is nothing in the language of the Rules which can limit the application of chapter IV to civil cases only or which can exclude their application to criminal cases. Chapter XIII is not a complete code in itself and for the due implementation of the provisions of chapter XIII one has necessarily got to fall back on the provisions of chapter IV. In this view of the matter, Rule 59 does as much apply to criminal cases as they do to other categories of cases. Rule 59 does not, in these circumstances, stand against issue of notice to the counsel for the respondent. Instead, it eminently supports the interpretation that notice can be given to the counsel appearing before the subordinate court. 20. This Court, of late, has been following the practice of issuing notice to the respondent under registered post with acknowledgment due and simultaneously directive service on the counsel appearing before the court below. I am of opinion, on an anxious consideration of all the relevant stipulations under the statute and rules, that there is nothing, which must persuade, this Court to change the practice. In an appropriate case even the issue of a registered notice can be dispensed with. 21. I am of opinion, on an anxious consideration of all the relevant stipulations under the statute and rules, that there is nothing, which must persuade, this Court to change the practice. In an appropriate case even the issue of a registered notice can be dispensed with. 21. The following conclusions do hence emerge: (i) The expression 'represented by an Advocate' in Rule 174 takes within its sweep an Advocate for the party (respondent herein) who appears before the court below in the same (main) proceedings that is sought to be quashed in the proceedings before this Court. (ii) Rule 59 in Chapter IV of the Rules of the High Court of Kerala, 1971 does also support the conclusion that notice can be given to the counsel appearing for the respondent before the court below in the main proceedings and such service shall be reckoned as sufficient service. (iii)The Advocate, who receives notice in such proceedings is bound to inform his client of the pendency of the proceedings before this Court and of the need to appear before such court personally or through pleader on the appointed date. 22. In these circumstances, I direct that notice be issued to the counsel for the respondent who continues to appear for him before the court below in the main proceedings. Such notice shall specify the number of the proceedings and the date of posting, if any. Such notice shall be served personally on the counsel by the petitioner/his agent/counsel with a copy of the Crl.M.C. filed by the petitioner. 23. Call on 1/9/2003 for report regarding service as directed above.