--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

by Dom Martin

The stress of human existence has, essentially, plagued survival with two chronic necessities: Hospitals and Courts of Law. While hospitals function to extend life, courts exist to dispense justice, and in certain cases, to terminate life.

In essence, therefore, courts may be kindly looked upon as medical institutions where judges and advocates are the learned interns, and litigants the obliging out-patients. As for the criminally guilty, these -- after being branded as in-patients -- get shipped to jail in containers made of hardened steel instead of in civic ambulances. But unlike hospitals -- where known diseases are treated with proven medications -- a court of law enjoys wider power insofar as admitting and treating legal injuries.

Take for instance, the case of the beloved politician whose head is going through the contortions of brain tumor. If said politician were to be admitted for surgery, and discharged with the tumor still intact and his entire brain mistakenly removed, he would -- for all intents and purposes -- be beyond any medical hope.

But with the aid of a legal cranium, said politician could go to court and get the value of his brain monetarily assessed and compensated for in terms of its present liability to his esteemed constituents. On the other hand, the advocate for the defendant could successfully argue that in view of the fact that the subject tumor was itself much larger than the subject brain, no negligence, therefore, ought to be imputable to the defendant.

The Curse

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 suitably indicate that that cost-free curse did indeed possess a lacerating sting!

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

Notwithstanding the above, and although my trustworthy ears have 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. The matter arose following an article titled, "Palpable Hoax", which was published in the issue of the Times of India, dated March 26, 1978:

PALPABLE HOAX

 

"Dom Martin is a young and unknown painter from Goa who

claims not only to be listed in several international directories but also to be a doctor of philosophy, of letters and of science, as also knight of the royal order of Piast!

Cymroza art gallery on Bhulabhai Desai Road, which shows his work

devoted to the subject of "Humanity -1 Biography)" till Monday, thus shares the responsibility of promoting a palpable hoax and this is most

surprising.

In retrospect, it is even more surprising that Mr. K.H. Ara of the Artists'

Centre, who once took the lead in unmasking a similar fraud in the city's

art world, was the first to promote Martin first at a show in his Centre.

Art galleries owe a duty to the public. While they have all the freedom to house bad art - as in the current case - they should not become a party to purveying fraudulent information about the artists they shelter."

 

And considering that that my matter is still grinding on after fourteen years . . . would seem to monumentally suggest that I must have been cursed rather irrevocably!

The case of King Tutankhamen comes to mind. King Tutankhamen reigned from about 1334 to 1325 B.C., during the Eighteenth Dynasty of the New Kingdom, which was one of the most glorious periods of Egypt's long and distinguished history. Gossip, at the time, had it that a curse would befall upon anyone who violated a pharaoh's resting place. And as gossip would have it, those who were closely associated with the recent discovery of King Tutankhamen's tomb and treasures, were accordingly accursed, and each died from mysterious circumstances.

In the instant matter, while the dead on either side of Deman Tujer Poddom died of natural causes, the living appear to have been affected on a karmic scale, i.e., depending on the degree of their association or disassociation with the aforesaid Deman.

In brief, the instant prima facie matter took an unprecedented ten years, two months, and two days before it was concluded in the Court of the Judicial Magistrate First Class (Court 'C'), Panjim, Goa. Some nine different judges presided over the matter, and of an estimated 64 dates scheduled for hearings, 37 went for adjournments without any hearing. Court 'C' on its part, was cumulatively without a magistrate for some 3-1/2 years.

 

Furthermore, 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, "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.

 

Case 171/C/1978

It all began on the morning of June 28, 1978, when my learned advocate deputed his junior to escort me to the court of the Judicial Magistrate First Class, Panjim, Goa. And as the learned Junior bustled his way through the traffic of office-goers, I was left scurrying behind! In the grip of his right hand -- rolled like a baton -- was my criminal complaint. It was duly filed and registered as Criminal Case No. 171/C/1978.

Our relative momentum was a clear manifestation that time was of the essence. The prima facie injury I had sustained, had to be expeditiously addressed and redressed within 6 months, in accordance with the tenets contained in the Code of Criminal Procedures.

In defamation cases, the injury is primarily to the head. I was advised, no bandage would be necessary. I was further advised, at all material times, never argue with the opposing advocate. And at all immaterial times, to maintain my cool. I assured my learned advocates that I would. I further assured them that as an artist, I had formed the habit of using my head as a palette rather than as a firearm.

And as the months droned by, I began -- like any authentic layman -- to address a volley of questions: Now that Magistrate Sundarajan has been transferred and there is no Magistrate in Court 'C', how much longer will the accuse take to make their mandatory first appearance in court? How much will this prima facie matter cost me in unanticipated fees, calories and nerves? How many years does it typically take before the almighty gavel quells the ecstasy or anguish brought on by the gavels of the lower courts in the hierarchy...?

Of course, I had to realize that an advocate does not go about carrying a crystal ball in his pocket. His legal omniscience is limited by the judge's omnipotence, and the opposing party's convenience insofar as participating in the grueling marathon for the realization of justice. Therefore, under the circumstances, the best any advocate can do is to recommend or prescribe to his clients the wonder drug 'patience'.

Thus, when the accused finally made their appearance some nine months from the date summons were first issued -- and then too, disappeared about as rapidly as they appeared -- I just reached for that aforementioned wonder drug. And whenever there would be an adjournment for want of time, or for want of a judge, or for want of the accused, I would go about doubling the dose. But when adjournments began becoming a contagion, I started feeling the side-effects of that wonder drug.

Sensing I needed a change of prescription, I looked in the direction of New Delhi and addressed my symptoms. New Delhi responded by giving the judicial arm a booster shot. An 'Order' was penned by Magistrate D.R. Kenkre, and the accused were charge-sheeted on June 13, 1985 -- i.e., 6 years, 11 months and 13 days from the day the complaint was filed -- under Section 500, 502 and 502 of the Indian Penal Code.

To my lay mind, I thought the trial was over. I was advised that it wasn't, and congratulated nevertheless for winning the first round. I was confused. You mean, after seven years of grilling and drilling the complainant and his elderly witnesses, and dissecting the material evidence, this prima facie trial is not yet over?

 

No Sir!

 

You mean, we have to go through another rehearsal? An encore?

 

Yes Sir!

My learned advocate then took the time to advise me that the circumstances for the double trial was because the accused had filed an application requesting the case to be tried as a warrant case instead of as a summons case. The purpose of the first trial (Trial before Charge), is to put the burden of leading the evidence on the complainant. On the basis of the complainant successfully leading the evidence, the Court then takes cognizance of the offense and frames charges.

The purpose of the second trial (Trial after Charge), is to give the accused another opportunity to put the complainant (and whatever is left or become of his witnesses), through the judicial grinder, in an attempt to lead evidence to the contrary. Or, to wriggle out of the charges.

Winning the first round, almost certainly assures the complainant a victory in the second round. And winning the second round, almost forever seals the guilt of the accused beyond any reasonable doubt. Or so it is said, or written or advised.

On the heartening note, however -- and pursuant to instructions from New Delhi to expedite the case -- the second round began like a firing squad. I was given nine days within which to round myself from sunny California and be present in court for further cross!

At the appointed day, my advocate filed an application seeking condonation for my absence. His application was denied. Fortunately, the advocate for the accused had also come forth with an application. His application prayed for an adjournment on the ground that he was "getting pain in the leg". In view of the "pain in the leg", the court was pleased to give his leg and my legs a month's reprieve.

 

The Conviction

On April 1, 1986, the prosecution rested its case and closing arguments were scheduled. As fate would have it, Magistrate D.R. Kenkre only had the occasion to listen to the arguments of the prosecution before getting transferred. He was succeeded by Magistrate Tavora, who -- matter of fact speaking -- fared better. He had the occasion to listen to the closing arguments of both parties before getting transferred as well. The matter than came up before Magistrate Salkar, who began by officiating a couple of adjournments to the opposing advocate, and altogether thereafter, declined to take up the matter.

In the course of these magisterial shuntings, I discontinued the wonder drug 'patience' and went on the non-prescriptive drug 'impatience'. Unfortunately, relief seemed entrapped well within the realm of reasonable doubt. I began developing bi-lingual headaches. Not knowing any better, I sat down to once again address my symptoms to New Delhi, chiefly stating, Justice appears to be delayed to the point of insinuating its denial.

New Delhi made a swift prognosis of the situation, and Magistrate S.S. Samant was appointed in Court 'C. Within a month, arguments of both parties were heard and judgement delivered on August 31, 1988. The accused were found guilty beyond any reasonable doubt, and sentenced to 7 days simple imprisonment and a fine of Rs. 200.00 each.

 

Don't Worry

In the Court of the Judicial Magistrate First Class, I was advised that my prima facie case of criminal libel would stand even if the handmade Mandovi bridge were to go tumbling down into the river. And I stood my ground for ten years, two months, and two days.

In the Court of the District & Sessions Judge, I was fortuitously advised that my sore feet would no longer be needed to be present as the Mandovi Bridge had already collapsed. I was further advised: "Don't worry". That two-worded scriptum sounded like a divine prescription, resident as I am in a place where socialized medicine does not exist, and health insurance costs one arm in premium payments and the other arm in attorney fees.

And thus, several new moons merrily went by since: a) the appellants-accused filed their appeal petition; b) a new District Court judge was scheduled to succeed the Presiding one, and c) I was advised, Don't Worry. And not wanting to orbit my mind in the realm of judicial anxieties, I resorted to cogitating on what the former Vice President and ex-Chief Justice of India, Hon'ble Mr. Justice M. Hidayatullah, had once professed: ".....murdering a man's reputation by libel may be compared to murdering a man's person....."..

In consonance with the above, it occurred to me that in cases of criminal libel -- although the complainant is not clinically dead -- nevertheless, he could be fluttering about like a chicken with its head cut off. Or laying about like the biblical Lazarus, in a modified state of extinction, awaiting vindication.

In further consonance, it occurred to me that if the prescribed remedy in prima facie injuries are withheld or protracted for over ten years -- as in the instant case -- them it gives probable cause for rigor mortis to set in. And for that matter, a complainant might seemingly well be due for an autopsy in the time he gets dragged into the appellate courts, or is perforced to go in prusuit of that seemingly elusive remedy.

 

From that lex-medicus perspective, it was at least comforting to know that when the appeal-petition of the appellants-accused did finally come up, that it was going to be before Dr. Eurico Santana de Silva, the then newly appointed Judge of the District & Sessions Court. And as Deman Tujer Poddom would have it for me, I was given 48-hours notice by mail to show cause why the petition of the appellants-accused should not be allowed.

 

 

The Acquittal

 

It was a moment of crisis, and one in which my "Don't worry" advocate -- for professional reasons -- also declined to represent me. Left legally gownless for the first time -- and that too, at a point on the globe diagonally opposite to where the District Court is situated -- I had one of two choices. Either allow the panic of the decade to overcome me with rigor mortis, or swiftly tailor my own gown. I opted for the latter, and for the first time began comprehending what the Scottish writer and Physician Dr. John Arbuthnot had professed in 1712: "Law is a bottomless pit".

In any event, after the traditional rounds of adjournments prayed for and accrued by the learned advocate for the appellants-accused, the matter in the District Court was, on September 20, 1989, adjourned for judgement without date. And when, by the February 1990 full moon no date for judgement was as yet set, nor any indication given as to when such a date might be set, I had another relapse. This time, I contracted the neurological virus called 'despair'. Casting my eyes heavenward, I once again addressed my insufferable symptoms to New Delhi, basically stating:

"Ongoing adjournments and delays that appear to be the prevailing order of events, tending to interfere with, or obstructing, or tending to obstruct the administration of justice; or giving, or tending to give the impression that the Court is a forum for adjournments rather than justice -- such adjournments having first resulted in protracting Judgement by over ten years, and now seeming to enumerate a similar precedence in the District Court, where the matter has been in a state of judicial limbo for nearly 18 months."

New Delhi responded with lightning and thunder. Judgement was delivered on March 7, 1990. The appellants-accused were acquitted, and this time, the burden fell on me to take the District Court's gavel to task. And as Deman Tujer Poddom would again have it for me, 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, Panjim, Goa.

As such -- and aside from going into the merits of the case -- I would, as a lay man, now be required to show to the Presiding Justice of the High Court exactly how one of his companion Justices had manifestly erred. Accordingly -- after legal consultations -- I shipped the preliminary paperwork and followed it up with a 98-page written submissions.

But as Deman Tujer Poddom would once again doom it for me -- and just when I thought I had all the answers -- the intrinsic question in the matter was dramatically changed at the instance of a technical objection sounded by the learned counsel for the respondents-accused. As such, 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 for the layman's hearse.

continued

This article appeared in the issue of O Herald dated May 24, 1992