VRK- The Legendary Icon

My humble endeavour in this article is to highlight a couple of observations (not much popularised) made by late Justice V. R. Krisha Iyer (VRK). Although born at Palakkad, he had domiciled in Thalassery (formerly Tellicherry) where he started practice of law. Thalassery is in Kannur District in the erstwhile North Malabar area of the State of Kerala and was part of the Madras Presidency prior to the formation of the State of Kerala. It is believed that the Korappuzha River is the demarcating boundary between the North Malabar and South Malabar. Justice Iyer was a pathfinder of modern forensic research. Besides being a conceptualist with a flowery language and semantic acrobatics at his command, he was an innovator in the art of curial dynamism. This Colossus, has proved that the pen is indeed a fearsome weapon mightier than the sword if handled by those who know how to use it and that the same quill can also be a salutary prophylactic and a soothing curative. I had the privilege of listening to the speech by Justice Iyer from the auditorium of the Tata Institute of Social Sciences, Mumbai. The living legend was at that time a sitting Judge of the Honourable Supreme Court of India. The title of the speech was “The pathology and prognosis of criminology in India”. I could not preserve the text of the speech since the paper on which the typewritten original was cyclostyled was of such an inferior quality that it perished in my custody decades before Justice Krishna Iyer bid farewell to this world. I am cutting short my digression here and trying to focus on Justice Iyer’s landmark observations which have, however, failed to catch the desired attention of the Bench and the Bar and also the larger fraternity of law.

A. JUSTICE IYER ON THE ANTI-CORRUPTION LAW

i) ( A trap to catch a corrupt public servant need not necessarily be laid by the police. Here the trap was laid by an Executive Magistrate. It was a prosecution under the Prevention of Corruption Act, 1947 )

In paragraph 7 of Raghubir Singh v. State of Haryana – (1974) 4 SCC 560 = AIR 1974 SC 1516, Justice Krishna Iyer, speaking for a three Judges Bench observed as follows :-

“There is nothing in S. 5A preventing an Executive Magistrate or other public officer laying a trap to catch an allegedly corrupt official. The ruling in State of Bihar v. Basawan Singh, 1959 SCR 195 : AIR 1958 SC 500 : 1958 CriLJ 976 by implication upholds this position. In fact in the current crisis of rampant corruption polluting the public services -- so the public mind demoralisingly believes -- the need for superior officers vigilantly organising Operation Anti Corruption cannot be discouraged by legalisms. For the present case it is enough to say that no violation of law nor serious prejudice has been made out (vide Rishbud v. State of Delhi, 1955 (1) SCR 1150 : AIR 1955 SC 196 : 1955 CriLJ 526)”.

ii) ( Res ipsa loquitur can be applied in cases where the statutory presumption is not available. Eventhough the prosecution there was under Section 5(1)(d) of the Prevention of Corruption Act, 1947, the same principles can be applied to a prosecution under Section 13(1)(d) of the Prevention of Corruption Act, 1988 )

In paragraph 11 of Raghubir Singh v. State of Haryana – (1974) 4 SCC 560 = AIR 1974 SC 1516, the Dhronacharya of Indian Judiciary rendering the verdict for the three Judges Bench held as follows :-

“The last submission turns on the presumption under S.4 of the Act. The contention of counsel for the appellant that the presumption available under S.4 of the Act cannot be raised in the present case since the charge is under S.5(1)(d), read with S.5(2), is apparently attractive. But we may notice that even if the statutory presumption is unavailable, courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master like the accused has in his hand a marked currency note made over to him by a passenger whose bedding has been detained by him for which no credible explanation is forthcoming, and he is caught red handed with the note, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances”.

iii) ( Laying a trap prior to the registration of an FIR may not be part of investigation ).

In paragraph 7 of Raghubir Singh v. State of Haryana – (1974) 4 SCC 560 = AIR 1974 SC 1516, the Indian superstar of curial craftsmanship, observed as follows :-

“Moreover, while laying a trap by a police officer may be a step in investigation if a case has already been registered in a police station pursuant to which the trap is set, it cannot be part of investigation where the exercise is only to find out whether an offence is going to be committed. Hira Lal ( 1970 (3) SCC 933 : AIR 1970 SC 356 : 1971 CriLJ 290 ) hardly rescues the accused”.

The above observation is in tune with the legal proposition enunciated in Mohindro v. State of Punjab & Others - (2001) 9 SCC 581 and Shashikant v. C.B.I. And Others (2007) 1 SCC 630 wherein it is held that the registration of a crime (FIR) is the sine qua non for the commencement of investigation. Of course, the above proposition may have no application to a chance detection in which a police officer, whether empowered or not, stumbles upon the offender in flagrante delicto.

NOTE BY VRK, THE AUTHOR: It is submitted that the proposition that registration of a crime is the sine qua non for the commencement of investigation, may be the ordinary rule. But there can be extra-ordinary situations where detection of the offence may be a “chance detection” falling under the ambit of the word “otherwise” occurring in Section 157 Cr.P.C. and whatever steps taken by the detecting officer prior to the formal registration of a crime, may also tantamount to “investigation” as was envisaged in the three-Judge Bench of the Supreme Court in State of U. P. v. Bhagwant Kishore Joshi AIR 1964 SC 221 – K. Subba Rao, Raghubar Dayal, J. R. Mudholkar – JJ. This was followed by Justice K. T. Thomas as he then was of the Kerala High Court in Chandrababu v. Sub Inspector of Police 1988 (2) KLT 529.

B. ON THE ROMANTIC ESCAPADE OF A PEDAGOGUE

( Read the inimitable style of Justice Iyer describing the offence committed by a male teacher when he found a female teacher alone in the teachers’ room )

“A pedagogue, past middle age, in a fit of foolish romance, dashed towards a fellow teacher of the female sex finding her accidentally alone in a room on a Saturday afternoon, shortly after the classes had dispersed earlier than usual, turned her face towards his and planted a fleeting kiss on her cheek (or lips?) as she was trying to make a cup of ovaltine; and when the offended lady screamed, the randy offender ran away. This, in brief, is the judicial finding concurrently made in affirmation of the prosecution version……………………………......………………………...”. “The learned Magistrate imposed a punishment of three months’ simple imprisonment.”……………………………………………......

…………………………………………………………………………………………………...

“ 7. What then are the circumstances of the crime? It is true that the moral lapse implied in the damp intrusion into dissenting female lips, even if performed in comparative privacy and abandoned hurriedly on vocal remonstrance by the damsel in distress is also a legal offence under the Penal Code. But let us observe some features which have a bearing on the punishment. A person who osculates a fellow teacher yielding to a tempting opportunity but withdraws from his erotic impropriety in an instant deserves less condign punishment than a venereal brute who threatens violence when the indecent assault is met with female resistance. A first offender who presses a sudden kiss from inside a room is different from a randy ruffian who persists in molesting a lady even in public. These are plus points for the accused. But a man of fifty has less excuse than a youth in his twenties, a violation of a married woman like pw 1 is more vicious than of a maiden. More than all, school premises, unlike evening parks or cabaret dance halls, are not the arena for the Romeo and Juliet game or prurient exercises. They are hallowed spots where young minds need wholesome nurturing of character and teachers will do well to remember that practice is better than precept. Lascivious overtures by teachers spoil these tender buds, these tiny kids, hopefully sent by trusting parents. The dialogue that followed shortly after the libidinous act suggests that the accused, instead of begging for pardon repentantly, repudiated his act nonchalantly when questioned by other teachers a conduct which goes against him. A severe public admonition will make him a better man, reflecting over his offence. All things considered, a psycho physical sentence will produce the desired change in the accused, I hope the question is whether under the Criminal Procedure Code, the Court can impose a substantive term of imprisonment and super add an admonition. S.562-IA of the Criminal Procedure Code covers certain categories of offences only and any admonition under that Section is not permissible in cases of other offences. In the present case, the conviction is under S.354 I. P. C. punishable with 2 years of imprisonment and, therefore, covered by the admonitory provision. However, S.562-IA directs that in cases where extenuatory circumstances are present, a mere admonition in substitution of a punishment may be awarded, but narrowly interpreted, it does not in terms contemplate a reduction in the punishment by the appellate court and the award of a reproof on top of it. Nevertheless the words 'instead of sentencing him to any punishment' have to be liberally construed; and 'any punishment' in the context may cover 'any portion thereof. In my view, the language of S.562-IA read with S.561A is flexible and elastic enough to empower the High Court to reduce, for the ends of justice, the sentence awarded by the courts below and in lieu of that reduced portion of or cut back on punishment, admonish the offender. A public censure by the court may make a moral impact on him which the mere harshness of incarceration may not.

8. The accused was convicted on 13-11-1969 and has been in jail down to date i. e. 18-12-1969. I regard the period undergone as sufficient in the circumstances of the case but censure the offender publicly for what he has done with a warning to him not to persist in the criminal path but to turn a new leaf. The accused will be set at liberty.

9. The deprivation of his job may well be a punishment on his family and dependants, if any. Whether the teacher, for this deviation, will lose his job is more than I need consider here. I leave it to the authorities concerned to view the matter in the proper spirit and according to the mandates contained in the relevant Kerala Education Rules.

For administration of the admonition the case will be posted to 19-12-1969 on which date the prisoner will be directed to be produced in Court if he is not released today”.

C. ON THE NEED FOR RECONCILIATION OF A REPTURED MARRAGE

( Justice Iyer is advocating the desideratum that the attempt of every Judge should be to unite rather than separate the discordant marital partners ).

In V. K. Gupta v. Smt. Nirmala Gupta – (1979) 4 SCC 258, the following words of Justice Iyer are apposite :-

“This matrimonial litigation, where a husband (the petitioner) unsuccessfully tried to get a decree for divorce of his wife (the respondent) under Section 13(1)(b) of the Hindu Marriage Act, has landed in this Court as a petition for special leave to appeal. Customary accusations on both sides were made in the pleadings and evidence, but the High Court (both the Single Judge and the Division Bench) did not grant dissolution of marriage. When we heard counsel on both sides on a preliminary basis we impressed upon them the benign perspective which the Court must bring to bear upon a matrimonial cause. It is fundamental that reconciliation of a ruptured marriage is the first essay of the Judge, aided by counsel in this noble adventure. The sanctity of marriage is, in essence, the foundation of civilisation and, therefore, Court and counsel owe a duty to society to strain to the utmost to repair the snapped relations between the parties. This task becomes more insistent when an innocent off-spring of the wedding struggles in between the disputed parents. In the present case there is a child, quite young, the marriage itself being young.

2. We have had the advantage of responsive counsel on both sides who shared the spirit of our suggestion, worked on the minds of their clients and healed a wounded situation into a healthy rapprochement. What is equally noteworthy is the circumstance that the parties themselves reacted sensitively and constructively. Naturally, there was initial resistance, mistrust, apprehension and, therefore, a string of conditions in arriving at a consensus between the parties. At the end of this conciliatory journey, it was possible to reach a happy destination resulting in the resolution of the conflict between the parties and eventual restoration of the conjugal home”.

D.  THE ARBITRARY AND UNILATERAL POWER ENJOYED BY THE MUSLIM MALE TO PRONOUNCE TALAK, DEPRECATED

In paragraph 7 of Yusuf Rowthan v. Sowramman – 1970 KLT 477 = AIR 1971 Kerala 261 rendered on 24-06-1970 from the High Court of Kerala, the words of Justice Iyer seemed to be prophetic the doyen of Indian Judiciary observed as follows :-

“There has been considerable argument at the bar and precedents have been piled up by each side -- as to the meaning to be given to the expression 'failed to provide for her maintenance' and about the grounds recognised as valid for dissolution under Muslim law. Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo Anglican judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture law is largely the formalised and enforceable expression of a community's cultural norms cannot be fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The statement that the wife can buy a divorce only with the consent of or as delegated by the husband is also not wholly correct. Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce and this is a relevant enquiry to apply S.2(ix) and to construe correctly S.2(ii) of the Act”.

(Emphasis supplied by me)

Again the learned Judge continues as follows :-

“It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority to liquidate the marriage. " The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, "If they (namely, women) obey you, then do not seek a way against them"." (Quaran I V:34). The Islamic "law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eyes of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously”.

E.  AN ADVOCATE OF GENDER EQUALITY OF THE MUSLIM WOMEN IN THE MATTER OF DIVORCE

The following observations made from the High Court of Kerala in paragraphs 9 and 8 of Yusuf Rowthan v. Sowramman – 1970 KLT 477 = AIR 1971 Kerala 261, suggest the righteous indignation of Justice Iyer in the Muslim community treating Muslim women as a mere chattel meant only for satiating the sex and subjecting them to hostile discrimination:-

9.“…………………………………………………………………………………………………………………………….To sum up, the Holy Prophet found a dissolute people dealing with women as mere sex satisfying chattel and he rid Arab society of its decadent values through his doings and the Quoranic injunctions. The sanctity of family life was recognised; so was the stubborn incompatibility between the spouses as a ground for divorce; for it is intolerable to imprison such a couple in quarrelsome wedlock. While there is no rose but has a thorn if what you hold is all thorn and no rose, better throw it away. The ground is not conjugal guilt but actual repulsion”.

8. “………………………………………………………………..............Dealing with divorce, the Holy Quoran says:

"And women have rights similar to those against them in a just manner ......"

This statement, Muslim doctors of law assert, was 'a revolutionalising one' for the Arabs of those days had almost equated women with men!”

F. CONSIDERATIONS WHILE ORDERING COSTS IN A MATRIMONIAL CAUSE

What all parameters that should enter the mind of the Court while ordering costs in a matrimonial dispute, have been succinctly delineated by Justice Iyer in paragraph 21 of Yusuf Rowthan v. Sowramman – 1970 KLT 477 = AIR 1971 Kerala 261. This is what the learned Judge observed :-

“What is the proper order as to costs? A direction regarding costs does not always depend on who wins and who loses in the end. The view of the judge on the equity and the tragedy on the human side, on the moral as well as the legal merits, on the conduct of the parties before and during the litigation and other like intangible factors have play in shaping the judicial verdict regarding costs. Here, the panorama unfolds a jilted husband, an imprudent father, a youngish, peevish woman, a marriage marred by tears all these climaxed by the ex-spouses choosing fresh partners, even pendente lite, and, let us hope, living happily. Counsel agree with me that the financial burden of this litigation, which 'costs' theoretically represent, should be borne by both equally throughout so that this misalliance may end on a less unhappy note. I direct that the parties will bear their respective costs in all the courts”.

I had heard that Justice Krishna Iyer was the only Indian Judge who was quoted twice by the House of Lords in the United Kingdom. If what I heard was true, it is no exaggeration since Justice Iyer was a great Judge, philosopher, jurist and above all a man of extreme simplicity venerated by the young and old and the rich and the poor throughout the world. These are only a few of the micro curial glimpses of the great jurist. If through this article I have not done justice to the great man, the readers may kindly pardon me and accept my unconditional apologies.

The author is a former Judge, High Court of Kerala.