--They clipped my wings just as I was about to take-off and soar. They may have disembodied me from my cause but my spirit they can neither clip nor harness. It still soars unfettered, unrelenting -- among unseen stars, unseen affiliations . . .

-dom martin

 

DEMAN TUJER PODDOM - The Requiem

by Dom Martin
 
In the first chapter of Deman Tujer Poddom (Herald, 22/5/92), I had basically stated that the stress of human existence has plagued mankind with two chronic necessities: Hospitals and Courts of Law. And that while hospitals function to extend life, Courts exist to dispense Justice, and in certain cases, to terminate life.

I had also stated that in the erstwhile days, it was customary among Goans to resolve their socio-economic and boundary disputes by accursing the other with a lawsuit: Deman Tujer Poddom! In a sense, it was a malediction that worked to the benediction of those who couldn't otherwise afford going to Court. And the fact that there were far less lawsuits then than since, would appear to fittingly imply that that cost-free curse or malisâo. . . . did indeed possess a lacerating sting!

With liberation, however, socio-economic issues degenerated into an epidemic of lawsuits. As a result, Deman Tujer Poddom not only seems to have lost its sting, but conversely appears to grind to the benefit of defendants and the accused.

I further went on the record to state that notwithstanding the above, and although my trustworthy ears had previously never been on the receiving end of any Deman Tujer Poddom, I did, nevertheless, end up in court as the complainant in a matter of criminal libel.
     
After a gruelling first-round marathon of ten years, two months and two days — involving 9 different judges, 8 different advocates on the part of the accused, and one of the elderly accused being laid to rest — the accused were finally convicted on 31/8/88, in the Court of the Judicial Magistrate First Class, Panjim, Goa. The gavel was brought down by Magistrate R.R. Samant.
     
This was followed by several rounds of appellate proceedings, and as readers may recall, my aforesaid chapter concluded with the following para: In the High Court of Judicature, the matter — on technical considerations and other grounds pertaining to what does and does not constitute a functus officio — was pronounced dead on arrival, and is currently in the Supreme Court awaiting judicial resuscitation or the layman's hearse.
     
     
    The Requiem

However, on 24/1/95, the matter was finally laid to rest in the Supreme Court in a somber two-line obituary that read simply as under:

Earlier, in his letter of 27/5/88, the Deputy Director of the Guiness Book of World Records (British Version), Mr. Nicholas Heath-Brown, expressed profound interest in my matter — i.e., the longest pending criminal defamation trial — and stated that he had passed on the information to his external adviser who was currently working on the judicial section of the book, and that, the external advisor may wish to incorporate the circumstances of my case in the 1989 edition of the Guiness book.

In his subsequent letter of 5/7/88, Mr. Heath-Brown stated that the Guiness book does not have a category for trials in process. He further stated that he was advised that a criminal defamation "is very rare compared with civil defamation insofar as the words uttered or written must be defamatory to the point that they were likely to cause a breach of peace." In any event, he advised me to inform him of the eventual outcome so that the editors could then "look the matter afresh".

On 19/9/88, Mr. Heath-Brown was advised that the accused in the matter had finally been convicted. Mr. Heath-Brown responded, stating, that the new information had been passed on to his external advisor, and that, it would be quite some time before they would be looking for new entries for the 1990 edition, and that a response would be forthcoming.
    But as Deman Tujer Poddom would have it, in the final resolution, Mr. Heath- Brown — perhaps after being exposed to an overdose of influence from his external advisor — not only declined the inclusion of my entry, but altogether discarded the category, "Defamation Suits", from all subsequent editions of the Guiness Book of World Records.
     

 

The First Malisâo

For those not familiar with the facts and circumstances of my protracted case against the Times of India which spanned 3 decades — the matter arose following the publication of an art review in the Times of India, in which, the art critic, Mr. Dnyaneshwar Nadkarni, had referred to me, among other things, as an "unknown painter from Goa", a "palpable hoax" and a "fraud in the city's art world".

Finding the aforesaid malisâo most unwarranted, malefic and insufferable, I sought for a gentlemanly retraction. When it wasn't forthcoming, I filed a criminal suit in June of 1978 in the Court of the Judicial Magistrate First Class, Panjim, against the editor (late Girilal Jain), the printer-publisher (late T.P. Pithavala) and the art critic (Dyaneshwar Nadkarni).

Eight months later, on the day of their first appearance in Court, the accused filed an application requesting that the case be tried as a "summons" case instead of as a "warrant" case. In "summons" cases, both parties are simultaneously called upon to bring their hypodermic needles. In "warrant" cases, the complainant is called upon to create the eye of the needle. If the accused can slip through it, it is history. If not, the guilt of the accused would be written in stone!

Fair enough. After more than seven years of painstakingly tempering the metal and my mettle, I established a needle, the eye of which, I was conclusively sure, only a humpless, anorexic camel could have passed through! To Magistrate D.R. Kenkre, my needle was good enough to pass the Order framing charges, and summons were issued to the accused to undergo the decisive test.

But as Deman Tujer Poddom would have it, the test wasn't in the happening in that, consequent to passing the Order, Magistrate D.R. Kenkre was himself instructed to pack his legal satchel and head off to the Bicholim Court!

I needled New Delhi and New Delhi in turn needled the High Court in Bombay. Noticeably, there were some drops of bad blood here and there. My counsel needled me for not needling them prior to needling New Delhi. The opposing counsel were scampering about, checking the peripherals of their own needles. All this, in the footsteps of Magistrate Kenkre's reinstitution in Court C, whereupon, he issued fresh summons for the accused to appear on 18/2/86 in order to formally test the needle.

On the appointed day, counsel for the accused prayed to the court that the needle be kindly tested in chamber. The Magistrate obliged, and the accused were led into the Magistrate's chamber and indicted after a private roll-call. The stage was now set for establishing the second needle.

After laboring on it with forensic diligence and degenerating patience, I came up with the second needle the eye of which, I was presumptuously sure, only an eel could have possibly weaseled its way through. Magistrate Kenkre found the needle fit enough to call for the final showdown. But as Deman Tujer Poddom would have it, and after hearing the closing arguments of both sides, Magistrate Kenkre was himself once again directed to pack his legal satchel. This time, he was shipped all the way to Diu. And as Deman Tujer Poddom would further have it, none of the subsequent judges seemed eager enough to put my shimmering needle to the ultimate test.

Once again, I needled New Delhi, and New Delhi needled the lower courts in the hierarchy. Obviously, more drops of bad-blood, puttered here and there! Magistrate R.R. Samant was then appointed in Court C. Closing arguments were swiftly scheduled and heard, and the gavel finally brought down. Magistrate Samant found the art critic and the editor of Times of India, both guilty beyond any reasonable doubt and sentenced them to 7 days simple imprisonment, or in lieu of, to pay a fine of Rs. 200/=. (NOTE: The sentence against the printer publisher, Mr. T.P. Pithavala, was abated, as he had passed away during the pendency of the trial.)

In the Judicial hierarchy, the Trial Court (Court of the Judicial Magistrate) is generally confined to some four walls lacking both in architectural majesty and judicial awe. Indeed, the learned Magistrate is visibly seen above the rest of the melee, attempting his best to hear and be heard, and praying that his life may be spared from the emotional outrage of the hardened criminal whose life he is about to authorize for extinction!

And as he grimly commiserates with his patience in the sweltering heat and humidity of that densely populated room where the learned, the elite, the innocent, the guilty and the sundry all freely rub their backs and grievances together, he has endured to expect little or no gratitude from the public.

Returning to the instant matter and as anticipated, the accused preferred an appeal to the Trial Court's Order of Conviction. I was advised by my advocate — who had successfully defended me in the Trial Court — not to worry. I had merely to contact him in person or through my constituted attorney — no sooner I received the District Court's Notice of the Appeal by the Accused — and the rest would thereupon be taken care of. Amen! His "Don't Worry" words, undoubtedly, sounded messianic, being that I was residing more than 10,000 miles away from the District Court's megaphone!

[NOTE: For purposes of brevity and ease of reference — in particular, since both sides have had at some time or the other acted as petitioner or respondent(s) — the original reference of the 'Accused' shall be maintained hereinafter, while referring to the editor, printer-publisher and art critic of the Times of India. This author, who was the initial complainant, will be referred to in the first person.]
 
As Deman Tujer Poddom would have it, the petition of the accused remained in a state of hibernation until on or about the time Dr. Eurico Santana de Silva was appointed as the new District & Sessions Judge. Upon his assumption of office, Dr. de Silva served me with a 48-hour notice through the mail — to my Goa address — to show cause why the prayer of the accused to set aside the Trial Court's Order of Conviction should not be allowed.
 
It was a moment of mortal crisis, like being handed a live grenade with the pin pulled out! A situation where, truly speaking, if God was living next door to me in America, I might have ran to Him, and He probably would have told me that there is nothing He can do because the damn devil had absconded with the only spare grenade pin in existence, and if that wasn't excruciating enough, he was last seen scurrying about in the jungles of Bajipur! But God does not live next door, and as Deman Tujer Poddom would further have it, my Don't Worry advocate also didn't want anything further to do with me, or with defusing the grenade. His reasons for disbanding were personal, having to do with someone else's face, not mine.
     
Rather than lay like a bloated whale marooned in shallow waters without an advocate to tug me out to sea or port, I waited resolutely until the next tide came in and drifted me to a Law library. Thereupon, I came forth with my 25-page written response to the District Court's 48-hour Notice, and submitted it via my constituted attorney. This was followed by my 44-page Written Submissions, dated 1/9/89.
     

    Airy Statements

 

In my 44-page written submissions, I materially submitted that in their appeal petition, counsel for the accused had leveled down the credibility and intelligence of the Trial Court by making bold and empty accusations without bringing forth one iota of evidence by way of proof or in substantiation. Furthermore, that the accused had not come forth with a single witness, and that in their appeal brief, they simply rehashed the weak and crippled defense which the Trial Court repeatedly found to be without merit or substance.

I went on to contend that complainant's case [that's me] was duly proven in the Trial Court subsequent to establishing a prima facie case and the admittance of 15 exhibits as evidence, as well as the substantiating testimony of 5 witnesses. That 9 different judges presided over the course of the trial, and at no time was there a reasonable doubt expressed by any of them as to the guilt of the accused.

I further contended that the Trial Court's Judgement could only have been overturned under Section 564 of the Criminal Code by a strong and sufficient showing of a failure of justice, and that the accused had not made any such showing. And to explicitly personify the position of the accused, I concluded my written submissions by citing Honorable Justice Sharad Manohar's ruling in Baburao Shankarao Chavan vs. Shaikh Bibab Baban Pahelwan (1984 CLJ, 360):

A witness testifying in Court has to be awesomely wary that if he falsifies any of his statements, he will be guilty of perjury. I always wondered if a similar Damascus' sword dangles over the heads of lawyers when they make omissions, errors or misrepresentations during their oral or written submissions. After all, as humans, we have the same God-given ability to liberally air the contents of our minds via the tip of our tongues or pen.

Rightfully therefore, in his book, Professional Ethics, Justice Sundara Aiyar professed the following: "... an advocate is bound to put before the Court all facts on record which have a clear bearing on the issues in a case ...he should be guilty of absolutely no inaccuracy, not to speak of misrepresentation....".

Contrary to the above edict, the written submissions (19/7/89) of counsel for the accused abounded in a miscellany of gross-errors, omissions and misrepresentations, all of which, I had meticulously tabulated in my aforementioned written submissions of 1/9/89. For instance, while referring to "Exhibit PW1/A-4" (proof of my honorary doctorates), said counsel imputed that " . . . they are xerox copies. There is no explanation as to where are the originals nor who prepared the xerox copies . . . They are no more than scraps of paper."

And in referring to Exhibit PW1/A-6 (original issue of the Times of India, dated 26/3/78, containing the subject libel), said counsel went on to impute that ". . . . there was no evidence on record to prove that the issue of the Times of India dated 26th March 1978 had been published or distributed within the territorial jurisdiction of the Court at Panaji . . . ."

    [NOTE: In my written submissions before the High Court, I submitted that the record clearly shows that I had produced the originals of my honorary awards and doctorates along with xerox copies of same, and that after the court had examined the xerox copies against the originals, the xerox copies were then marked as Exhibit PW1/A- 4 and admitted as evidence, and the originals returned to me. Secondly, Exhibit PW1/A- 6 (original copy of the Times of India dated 26th March 1978 — was identified in Court by each of the prosecution witnesses, two of whom reside in Panjim. The irony, however, is that all Goans sitting down for their morning canji on "26th March 1978", would most surely have noticed if their prized paper was missing that day, and even more surely, would have made a memorable note of it on their pegãos!]
     
    Bad Art

As readers may recall, in the subject libel, Accused No. 1 (Dnyaneshwar Nadkarni) referred to me as a "fraud in the city's art world". He also chastised the late K.H. Ara — one of India's legendary painters — for promoting me, i.e., a "fraud in the city's art world". Throughout the course of the Trial, Accused No 1— via his counsel - —- took the stand that the certificates of honorary doctorates and other awards conferred on me are "mere scraps of paper and bogus", despite prima facie evidence to the contrary.

But as Deman Tujer Poddom would have it, 13 years later, there was a storm of controversy over the authenticity of an Ara exhibition held at the Jehangir Art Gallery, Bombay, for which paintings the "certificates of authenticity" were issued by none other than Accused No. 1, Mr. Dnyaneshwar Nadkarni.

Despite a "volley of allegations from art dealers, painters and critics" that the Nadkarni certified Aras are "fakes", or mere scraps of paper, Mr. Nadkarni continued to maintain that he "stands by his certificates", for which he was reportedly paid Rs. 10,000/= (India Today, 15/12/91).
     
    A parallel could similarly also be drawn as regards to Mr. Nadkarni's use of the words "bad art". In the subject libel, he summarily dismissed my entire exhibition as "bad art". And now, when a group of paintings which Mr. Nadkarni maintains are original "Aras" is under fire as "fakes", Mr. Nadkarni appears to side with a "Bombay-based artist" in seemingly concluding that the reason Ara's alleged works appear to be fake is that they are simply "bad" art. Alas, may the sun never arise on the day when Mr. Nadkarni may be called upon to issue certificates of authenticity for my art!
     

Pudding

Furthermore, in his Supplementary Written Submissions of 9/10/89 — which were submitted to the District Court after the matter had been adjourned for judgement — counsel for the accused inferred: "Proof of the pudding is in the eating". However, the pudding said counsel posthumously stirred and submitted, was different from the one that was stirred and tested in the Trial Court. Said counsel's version of the pudding was that Accused No.1 (the art critic) was aware that I was a "young man of 28; was not a renowned painter of India; was only a matriculate of Goa University."
 
Said counsel further went on to state that "Accused No. 1 was aware that a matriculate could not have received the Doctorate Degrees on the basis of examination . . . . Accused No. 1 was also aware that Honorary Degrees are rarely given and given only to men of high distinction . . . it was impossible that he [this author] could have been given such high distinction when more eminent persons like Laxman Pai — a Painter, Dom Moraes - a poet, or Mario Miranda - a cartoonist from Goa, had not received such distinction. Coupled with the facts that such degrees and Honour are sold by private parties, it was not difficult to draw the more than obvious inference that the complainant was parading total bogus degrees and making a false claim which was no better than a hoax on the public . . . . "

[NOTE: In my appeal submissions (dated 29/6/90) before the High Court, I submitted that ignorance is not a defense under the law for the crime of defamation, and that, it is difficult to understand how accused No. 1 — whom his counsel has referred to as an "eminent critic", — and accused No. 2, who was the editor of Times of India, — as well as the District & Sessions Judge, Dr. Eurico Santa de Silva — could all be so seemingly ignorant of such an elemental fact of knowledge that honorary doctorates are not based on completion of university courses; and that it is even more astonishing to consider how after 10 years of trial, and in the face of the material evidence on record, that such purported ignorance could be so naively asserted.]

Perhaps, on the puddingness of the above — whether a honorary Dotor is a Doctor and a honorary Doctor is not a Dotor — Mr. Rajan Narayan, editor of Herald, may have best summed it up in his editorial of 29/10/92 (The Bench and the Bar): " . . . . In Portuguese times and perhaps as a hangover from then, almost every professional, even an ordinary lawyer not to mention junior journalists are addressed as 'dotor' by citizens. It is in this context that it is all the more important to emphasize that people living in glass houses should be very careful about throwing stones".

Acquittal
 
On 7/3/90 -- notwithstanding any or all of the above, nor the fact that counsel for the accused submitted his Supplementary Written Submissions after the matter had been adjourned for Judgement, and which submissions contained additional misrepresentations as well as distorted case authorities — the District & Sessions Judge, Dr. Eurico Santana de Silva, found the eye of my twice established needle large enough to acquit the accused. In other words, the Trial Court's Order of Conviction was thus set aside. And as Deman Tujer Poddom would have it, the District Court's 'Order of Acquittal' was followed by the District Judge, Dr Eurico Santana de Silva, himself getting transferred to the High Court of Judicature in Panjim.
[NOTE: According to my late brother, Jerry, when Fr. Chico Monteiro read the outcome of the case in the morning paper, he was so distraught, that he didn't even care to attend to his daily -- most looked-forward to enthusiasm of opening the day's mail. "He is my own cousin", Fr. Chico deplored, "the best judge in the world! How is it possible?" A few days later, when Fr. Chico ran into Dr. Eurico Santana de Silva in Panjim, he (Fr. Chico) turned his face the other way!  To me, his earthly gesture symbolized divine vindication.
 
As such — and aside from going into the merits of the case — I was, as a lay man, thereupon required to show to the Presiding Justice of the High Court exactly how one of his new companion Justices had manifestly erred. Accordingly — after relying on some pro bono advice given via international phone lines — I shipped my memo of appeal (albeit, erroneously captioned as 'Revision Petition), and followed it up with my 98-page written submissions, dated 29/6/90.
        The High Court

 

In law, it is a common practice for an advocate to state that he is acting under instructions from his client, even in instances where the client literally signs with his thumb. In my circumstances, I was thumbing through the local directory looking for an advocate who would follow my instructions to the letter. Basically, I needed someone with the initials "LL.B" appearing at the end of his name, to appear on my behalf in Court, submit my 98-page written submissions, and do some sabre-rattling where needed.

In this regard, I was fortunate in procuring the services of an ad hoc attorney. I then graciously assured my ad hoc attorney that his benevolent act of kindness would someday provide him with the opportunity of having his name prestigiously inscribed in the Criminal Law Journal, or the All India Reporter. But as Deman Tujer Poddom would have it, my good-spirited ad hoc attorney, ended up getting chastised by the Justice of the High Court for acting as my "postman".

In any event, I prefaced my 98-page written submissions with the ruling made in AIR 1988 SC 1998: "It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."

Thereupon, I made a substantial showing that the impugned judgement of the District & Sessions Court was in clear contravention of Sections 385(2)(iii) and 387(2) of the Code of Criminal Procedures, inasmuch as it could be seen that the evidence in the Record had not been gone into and tested extrinsically as well as intrinsically, or that the Court arrived at an independent opinion for itself. Instead, I imputed, said Judgement read like a supplement to the written submissions of counsel for the accused, inasmuch as the learned District Judge repeated, almost verbatim, or seemingly parroted whatsoever counsel for the accused submitted and/or inferred, and was even prompted to use the same language as counsel for the accused in calling the evidence as "no more than scraps of paper" and "hearsay", in spite of these statements being totally without any evidentiary basis or controverting grounds for disproving the evidence on record.
In support of my 98-page written submissions, I cited some 40 case authorities, some of which were as current as 1987-88. I further respectfully submitted the rhetoric commonly incorporated in appellate submissions . . . . that where an appellate court acts perversely and otherwise, without giving due weight to the salient features of the case, or has taken a view which no reasonable man would take, or where the appreciation of evidence is palpably erroneous or unreasonable; or where the judgement was in favor of the party which produced no evidence; or where it deals with the case for the defense only by seeking to answer, in a somewhat desultory and disjointed manner, the arguments of the defense without saying anything about the nature of the occurrence and the prosecution case, then in such instances there is sufficient ground for a High Court to interfere, and that, it is incumbent on the High Court to interfere with the impugned judgement in its revisional jurisdiction.

 

In conclusion thereof, I quoted the wisdom imparted by the Honorable Chief Justice Y.V. Chandrachud and V.D. Tulzapurk in AIR 1983 Supreme Court 349: "If ten persons sentenced to death could be acquitted on mere assumptions, there is a fear that ten, who are not guilty, could be convicted by the same indifferent process".

 

 
The Second Malisâo

But as Deman Tujer Poddom would have it, and just when I thought I had all the answers, on 7/12/90, the newly appointed senior counsel for the accused, contended that under Section 378 of the Code, I was first required to file an application seeking special leave to appeal, and that in lieu of seeking such leave, I filed a revision petition instead. Whereupon, the Honorable Mr. Justice G.D. Kamat dismissed my petition and invited my ad hoc attorney to file an application seeking condonation of delay in filing special leave application.
 

Lex Talionis

In the primitive past, society's grievances were instantly resolved through King Hammurabi's Lex Talionis: An "Eye for An Eye". Or a "Tooth for a Tooth". And there were no Statute of Limitations insofar as when one could resolve one's grievances against the other. In other words, one could still go after the other's tooth or eye by simply exhuming his body . . . . if the situation warranted!

With the founding of the Judiciary, King Hammurabi's Lex Talionis was circuitously revamped into the Code of Civil & Criminal Procedures. Through the dictates of the Code, there was to be no more the reckless gouging of eyes or the plucking of teeth. Or the blind going after the toothless. Or the toothless going after the gumless. Instead, society's new curriculum vitae became: An Advocate for an Advocate!

Accordingly, the courtroom became the arena of jurisprudence, where advocates — not the laymen — were summoned to draw swords or shields against each other. No tangible price, however, was set on how much it would cost the layman to have an advocate successfully (or unsuccessfully) draw out his sword or shield in this arena of jurisprudence. The layman, in turn, was not barred from drawing his own homemade sword or talwar. But in so doing, he stood the risk of being hurt by his own talwar, or contemptuously overlooked!

Duty of Court

Therefore, on the matter relating to filing procedures and condonation of delays, it would perhaps be in the scholastic interests of future condoners and condonees — speaking cantonese or goanese — to enunciate the following:

In AIR 1984 SC 1469, it was held that "where the position with regard to the period of limitation in respect of appeals or revisions is confusing . . . . it is all the more necessary that whenever such appeal or revision is filed in the Registry of the High Court, the defects should be pointed out, and if the petition is barred by limitation, the registry ought to point the defect which would prompt steps for seeking condonation of delay. Without such defect being pointed out it would leave much to be desired if at the hearing the Court straightaway proceeds to dismiss the revision petition on preliminary objection relating to limitation".

 

Condonation

In my application seeking condonation of delay, I made a material showing that I had no legal representation since the conclusion of my matter in the Trial Court. Furthermore, that I was residing in America at the time I was preparing my appeal petition in the High Court. I was, therefore, genuinely relying on the pro bono advise given by my former advocate via international telephone --- on questions relating to filing procedures and time frame within which to file. I also referred to AIR 1970 Patna 89 (V 57 SC 10), stating, where a delay in filing a petition had been occasioned "due to wrong advice given by the lawyers", the delay was condoned "as the appeal contained a substantial question of law". My matter, as materially shown in my 98-page written submissions, involved more than a single substantial question of law.

In addition, I submitted the ruling in AIR 1977 SC 1328:—

"Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in appeal with a prayer for leave to entertain the appeal. It is not necessary as a matter of law that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal."

In my instance, I contended that my memo of appeal — even though erroneously captioned as 'Revision Petition' — was a composite application, containing all the facts and circumstances of the case, along with the grounds which could be urged in appeal with a prayer to entertain the appeal. I further contended that the Court — in subsequently admitting my 98-page written submissions and issuing notices to the respondents — had impliedly condoned any imputable procedural failing on my part.

These being the circumstances, I went on to question the Court on "how is it possible to request leave to file an appeal which, ipso facto, had already been filed?" This stand was concurred with by my counsel in the Supreme Court, as well as by his senior colleague, a retired High Court Judge.

Pardonnera

"Moi je serai autocrate" said Catherine the Great to her people, "c'est mon métier. Et le bon Dieu me pardonnera: c'est son métier!". Lest readers begin to think that 'I am looking Ponje, talking London', here's the translation to Catherine's line: "I shall be an autocrat: that's my trade. And the Good Lord will forgive me: that's his trade!".

Similarly, on the matter of pardonnera, the Supreme Court has time and time again lamented the fact that the proprietary wisdom of ruling in favor of substantial justice — when pitting technical considerations against cause of substantial justice — has not percolated down to all the lower courts in the hierarchy. Or to paraphrase the above: The lower courts have simply not been pardonnerian enough.

In AIR 1987 SC 1353, the following salient points were established with regard to Section 5 of the Limitation Act of 1963:

The Third

Malisâo

According to my Supreme Court counsel, the Justices found my matter both unique and complex -- even intriguing. [The intrigue —- thanks to my constituted attorney — arising from the lamentable fact that my appeal petition in the High Court was filed one day beyond time, even though my constituted attorney had received my petition well within all statutory limitations and was given specific instructions to file it upon receipt. And as Deman Tujer Poddom would further have it, my constituted attorney did not even intimate to me — at the time I was responding to the High Court's directive to file an application seeking condonation of delay — that this grievous lapse had occurred.]

The senior Justice of the Supreme Court, the Hon'ble Mr. Justice S.R. Pandian, expressed the need to hear the matter in absolute detail, but never quite found the obliging time to do so. And in his recurring absence — on medical and other grounds — his colleagues were reluctant to hear the matter.

Thirty-eight months later — at which time the Hon. Mr. Justice Pandian had retired from the Court — his companion Justices finally picked the gavel and dropped it without any further ado in a 2-line Judgement, most certainly indeed, expressing their reluctance to resuscitate my matter. My counsel in the Supreme Court also relayed to me that the Justices had orally stated that the case is "so old . . . . no greater purpose would be served by allowing the application for condonation of delay."
 
Oddly enough, when my application seeking condonation was pending in the High Court, the Honorable Justice had similarly remarked to my ad hoc attorney that the matter is too old . . . . and that I should be advised not to take it to heart. To his Lordship's prescriptive counseling, my ad hoc attorney wittingly rebutted: "My Lord, Justice must go on even if the heavens are about to fall . . . !

Indeed, I could have stood on my head in the Supreme Court and bitterly bemoaned that the record itself would show that in the case's life-span of 17+ years, the various courts and the accused and their counsel, were themselves collectively accountable for protracting the case by over 10 years. Or I could have further bemoaned that the eye of the needles I established in the Trial Court were impermeable beyond the shadow of any doubt. Or in the very least I could have piteously articulated the Supreme Court's repeated pontification to the lower courts: "When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay".
 
What good might any of this have done, other than perhaps crest my head with an irreparable blister or two! Or in consonance with the proverbial saying, "Kill two birds with one stone" -- Deman Tujer Poddom might have so timed the final outcome that the Victorian ceiling fan, rather than the heavens, would have befallen me! On the other hand, with AIDS being humanity's number one enemy, the Supreme Court might have been disinclined anyway to subject the accused to a used needle!
 

 

Lighter Moments

Between 1978 and 1985, the accused changed lawyers a total of 6 times. According to BLITZ, one lawyer had "repudiated" the brief in open court, stating that "not only did he not have instructions, but even the question of his fees had not yet been settled." His heroic act of repudiation, however, resulted in non-bailable warrants being issued against the art critic, the editor and printer-publisher of the Times of India.

At another time, when the accused appeared in court to record their statements under Section 313 of the Code, they veered past the only substandard looking bench in the court (which is otherwise given the full-regalia of an armed guard). And all was well until the Court bailiff called out the name of Accused No. 1 (the art critic) and the learned Magistrate, noting his position in relationship to the substandard bench, sternly directed him to relocate himself.
 
As the subject bench was adjacent to the curtain leading to the Magistrate's chamber, Accused No. 1 (not the editor) took it as a cue and briskly made his way through the curtain and into the Magistrate's chamber . . . . pursued of course, by the court bailiff. When he emerged back into the courtroom, a rather rattled looking Accused No. 1 enjoined his hands seeking the court's condonation for his inadvertent reckoning. No contempt was imputable, since Accused No. 1 was merely acting on the habit of having certain proceedings take place in the Magistrate's Chamber. On two earlier occasions (when charges were framed and when non-bailable warrants were issued) the proceedings — at the request of their counsel — were held in the Magistrate's chamber.

    [POSTSCRIPT: There is a saying: "Do not ask God the way to Heaven, he will show you the hardest way". Since my desperation had to do with justice being denied to the point of insinuating its denial, I looked up in the direction of New Delhi and harrowingly bemoaned: "vigilantibus, et non dormientibus, jura subveniunt" (the vigilant, and not the sleepy, are assisted by the laws). New Delhi responded with lightning and thunder, bringing down the gavels in the Trial Court and in the District & Sessions Court. But as Deman Tujer Poddom would have it, there is now a steady echo from increasingly reliable sources, on the acoustics of one of the gavels!]
     

 

Conclusion
In the days to come, I'll sometimes sadly wonder why my constituted attorney -- who happens to be my own biological brother, Alvito Martins — despite having been given specific instructions to file my petition in the High Court upon receipt, and upon having received my petition well within all statutory limitations — not only failed to comply with my instructions, but:
    a)     filed my petition beyond time,
    b)    withheld this dereliction from my knowledge until the High Court served me
            with notice to file an application seeking condonation of delay in filing; and
    c)    upon receiving my application seeking condonation for delay in filing,
            further delayed filing this crucial application by some three months!
In the months preceding his death, my late father -- who was also a constituted attorney along with my brother, Alvito -- personally saw to it that all obligations were complied with absolute due diligence and integrity. Such was his honor. Most unfortunately for me, he exited existence several months prior to the District Court's verdict. In his last letter to me -- penned two days prior to his passing and referring to the petition of the accused which at the time was still languishing on the desk of the District Judge, Dr. Eurico Santa da Silva -- my father wrote: "There's something fishy going on".

 

 

Had I not been misinformed by my former counsel, and had my brother filed my petition on time, how might the High Court and the Supreme Court have viewed the matter? Is vindication worth its name when it takes some 17+ years to tilt the Scales of Justice in favour of the righteous? Or as Napoleon put it: "There are different ways of assassinating a man - by pistol, sword, poison, or moral assassination. They are the same in their results except that the last is more cruel."

In the final reality, this gruelling marathon spanning 17+ years, has neither enhanced nor deterred my faith in the System of Justice. It has only prompted me to publicly profess a belief I conscientiously maintained: Truth is my advocate, and God is my Judge. In this context, it is all the more comforting to note that Divine Law is without any Statute of Limitations.

March 1, 1996