Saturday, 24 June 2017

No Disrespect in Addressing Chief Justice of India as ‘Mr Chief Justice’

Addressing a judge in the court as "my lord", "your lordship" or "your honour" has been a matter of divided opinion many a time, not only in the Bar or Bench, but also in the Supreme Court (SC) too. However, the issue remains as such for long as it is, with absolutely no change.  

During the hearing of a Public Interest Litigation (PIL) Petition filed in 2013 by a 75 year old advocate Shiv Sagar Tiwari stating that addressing the judge as "my lord or your lordship" in courts was a relic of colonial era and a sign of slavery and pleading that the practice should be banned, the SC bench consisting of Justices H L Dattu and S A Bobde has made it clear that they do not insist on such an exclusive mode of addressing and what is required is nothing but a respectable way of addressing the Judge.

The court clarified it in unequivocal terms that one can address a judge ‘Sir’, ‘your honour’, ‘your lordship’ or ‘my lord’ as the Bar prefers to, as they are some of the appropriate terms that express due respect.  The court however declined to ban the use of those terms and issue a direction to the courts not to address the judges in such a traditional manner as pleaded for. The Bench thereon placed the contentious issue before the Bar itself stating that it is for the Bar to choose the appropriate term such as ‘Sir’, ‘Your Lordship’ or ‘Your Honour’ to address the judge.

In the year 2006, the Bar Council of India passed a resolution that nobody would address the court in India as 'my lord' and 'your lordship'. In fact the resolution was an exercise in excess of BCI’s power. The resolution did not evoke any response and the advocates continued to address judges as in the past partly out of entrenched habit and partly out of fear of falling in disfavour with the judges. In 2006, Justice Chandru of Madras High Court asked lawyers to not address him 'my lord', quoting the 2006 Bar Council resolution.

However on 12th March 1973, a full court of the Supreme Court, after considering remarks from almost all the Chief Justices of the High Court on the mode of addressing the court, held that the Chief Justice of the SC may be addressed by the Bar as ‘Mr Justice’ or ‘Mr Chief Justice’ as the case may be and the form of addressing the Court would be ‘this Honourable Court’. ( Please see 2014 KLT Journal 50 : it carries a copy of the letter dated 19th April 1973 of the then Chief Justice of India addressed to the then Chief Justices of Kerala High Court on this issue) It was also agreed that where in the course of arguments it becomes difficult to address a judge as ‘Mr Justice’, the presiding judge may be address just as ‘Sir’.  The court then decided to introduce the new mode of address from 1st May 1973 in consultation with the Bar Associations. Similar decisions were taken in relation to the Subordinate Courts too. However the advocates continue to address the judges in the same way they have been addressing them since the beginning of the court system in India.

The Bench is ready to change but the Bar is not. The Bar has to set a new standard for legal interaction between the Bench and the Bar. The ball is now in the Bar’s court. It is the duty of the Bar to take the matter forward if it wants to end this inherited colonial practice and start a new mode of addressing which goes well with our democratic tradition in our court rooms.







Wednesday, 21 June 2017

Limited Possibility of Amending a Criminal Complaint

A civil suit, as everyone knows, can be amended as per the provisions of law but the criminal law code provides absolutely no provision for amending a criminal complaint. However the Supreme Court and some of the High Courts have read down the criminal law in some cases in such a way it allows formal amendment of criminal complaints to a certain extent.

In S R Sukumar Vs Sunad Reghuram ( Crl A No 844 of 2015) the Supreme Court held that if the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such an amendment no prejudice could be caused to the other side, the court can permit amendment of a criminal petition despite the fact that there is absolutely no enabling provision in the law code. However the court added that if the amendment is related to an incurable infirmity or it cannot be corrected by a formal amendment or if there is likelihood of the amendment being prejudicial to the other side, then the court shall not permit such an amendment in the criminal complaint.

Taking the same reasoning forward, the Supreme Court later on 18th April 2016  in  Kunnapa Reddy @ Nookaa Shanka Balaji Vs Kunnapa Reddy Swarna Kumari held that the petition of a complaint under Domestic Violence Act can be amended and court is not powerless to allow such an amendment application. But the court cautioned that the amendment should be allowed only sparingly and with utmost caution under limited circumstances. The court held that one of the circumstances where such an amendment is to be allowed is to avoid multiplicity of the proceedings. The verdict says, “What we are emphasising is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated”.

Similarly, the Madras High Court in Chinnappaiyan Reddy Vs Chinnathayee, held on 3rd February 2010 that a petition for amendment of a quasi -­ civil complaint filed under Section 125 CrPC is maintainable. If the amendment sought for would not change the nature and character of the suit or proceedings the same can be allowed.

Subsequently in Mr. Amol Shripal Sheth vs M/S. Hari Om Trading Co. & Ors decided on 3/10/2012, the Bombay High Court held that the magistrate has incidental and ancillary power to allow an amendment to a petition of criminal nature filed under Section 138 of the Negotiable Instruments Act.


In short, even though amendment to a criminal complaint is not permitted by criminal law in India, the case laws allow limited and non-serious amendments so as to prevent unintended perversity in justice and reduce unnecessary multiplicity of court proceedings.
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NB: The article originally appeared at http://www.lawyersclubindia.com/articles/Limited-Possibility-of-Amending-a-Criminal-Complaint-8241.asp

Tuesday, 13 June 2017

The Issue of Defending a Client known to be Guilty

by K Rajasekharan
Advocate, Thirssur Bar

Criminal defence advocates, defending the accused persons who have been considered by the people to be guilty in heinous crimes, are at the receiving end many a time. The public at large, a section of lawyers and even some Bar Councils have a view that the defendants suspecting to be guilty does not deserve to have the service of a defence lawyer at all.  Both in Kasab’s case and in Nirbhaya case the advocate’s body took a resolution not to defend the accused ones.  In fact the proponents of this view, guided by some misconceptions about judicial niceties, fail to recognise that the court is dealing with nothing but the legal guilt rather than the factual guilt in a trial.

A State Brief’s reluctance to defend an appellant

In an interesting incident, when a State Brief in Kerala - appointed for an appellant to prosecute a Criminal Revision Petition filed by him against his conviction and sentence under Section 302 of Indian Penal code (IPC) - sent a letter to the concerned Section of the High Court of Kerala stating that he had difficulty in conducting the case “by telling lies in the court” on his finding no merit on the side of the accused, the Division Bench of the Court issued an order - 2015(2) KLT 964 – stating that the State Brief was neither expected to tell the court about the falsity or otherwise of the allegation against the accused nor was it a duty of a lawyer to tell lies before the court while defending the accused. 

The court however made it clear in the verdict that a lawyer appearing for an accused is duty bound to present the case for and on behalf of the accused with reference to the materials on record and he need not and should not tell lies in the court.  The counsel is expected to bring to the court the facts which will go to the benefit of the accused. An advocate shall fearlessly uphold the interest of his client and shall not withdraw from his engagement for advocacy without sufficient cause. He should bear on the interest of his client by all fair and honorable means without regard to any unpleasant consequences to himself. He shall defend a person accused of a crime regardless of his opinion as to the guilt of the accused bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence as per law.

The defence lawyer’s job is not to know or decide the guilt of the accused but to defend the accused vigorously with true facts and valid reasons. It is his/her duty to defend by all fair means his client against the charges that are presented by the prosecution and nothing more.

Advocate need not foreknow defendant’s guilt  

In civil case, it is good for the defence advocate to learn everything that the client knows about the entire set of events leading to the case. The more he knows the better he can strategise the arguments. He must know too much to deal with the other side’s move. In criminal case, it is good for the prosecution to know everything relating to the crime from his witnesses to prove his case beyond a reasonable doubt.

However the defence advocate in a criminal case does not have to prove anything except the weak points of the prosecution that strives to prove the guilt beyond a reasonable doubt. Therefore the defence advocate should never ask the accused to tell him whether he/she is guilty in regard to the crime before defending it.

Don’t ask the accused whether he did the crime

If a client tells he/she is guilty and the advocate considers it as true it may not be possible for the advocate to argue in court that he is innocent. Defending someone who is known to be guilty is not a right thing for an advocate to do because in such an event he has to tell the court untruths knowing that the facts in the case are quite different from what he argues.  He cannot call him to give evidence which he knows to be false and he would become a party to his perjury.

The defence advocate, like the prosecution, has a professional duty to not mislead the court. If the defence advocate asks the defendant a particular question suggestive of a particular answer already knowing that the truth is quite different, it will be tantamount to misleading the court. If the advocate believes the client is guilty he cannot be effective at the hearing of the case because the duality between his duty to tell the court truth and the need to tell lies to save his client linger on him. So a defence lawyer should neither ask nor give chance for the accused to tell whether he/she is guilty or not. Therefore in order not to mislead the court and to retain enough freedom to test the prosecution evidence, the best approach for the defence advocate is to keep away from knowing beforehand whether the accused has really done the alleged act or not.

On the other hand, the defence lawyer should use the facts before him/her to put on the best defence possible and leave the question of deciding the guilt of the accused to the judge. It is the duty of the court to determine the guilt based on the testimony of the prosecution. Defence advocate’s job is nothing but to expose the weakness of the prosecution which needs to keep the standard of proof beyond a reasonable doubt. The defence advocate however needs to know in detail the defendants version of the story from the accused in regard to everything surrounding the crime, except whether he actually did the crime or not, so as to attack and undermine the prosecution strategies. Therefore the defence advocate in the first client interview itself should tell the client that he does not want the defendant to tell him whether he has done the crime or not.

Defendant has a range of possibilities

In fact, the defence advocate can raise a range of strategies in challenging the prosecutor’s version of the case if he can keep off from knowing the client’s guilt. In our criminal system it is up to the prosecution to prove the case and the defence has no job to disprove it but to pick holes in the version of the prosecution. If the picking of holes works well the defendant will be set free even on the basis of the befit of doubt. Therefore a defence advocate should not ask what he does not need to know during his client interview so as to avoid the accused blurting out dangerous facts.

In the client interview, it is fair for the defence advocate to weigh the information relating to the case and tell the client whether there is probability for the prosecution to prove the offence or not so as for the defendant to make up his mind whether to plead guilty if he/she did the crime. Quite contrary some of the accused may plead guilty as they don’t have enough time, tenacity and resources to contest the case or to get some favours in regard to the punishment from the court.  On the other hand people may plead not guilty because either they have not done the crime or they have nothing to lose except winning somehow.

Conclusion

In our adversarial system of criminal prosecution a defendant - irrespective of the nature of his/her crime - needs to be represented by an advocate.

A case must have arguments from both sides so that the judge can see the issue from both angles. Such a system may work well only when both sides are represented. Therefore every criminal, however heinous his crime is, needs to be defended by a professional lawyer to ensure the high standard of proof - beyond a reasonable doubt - which our criminal system has set in. 


NB : The article was originally published by Lawyers Club India site at http://www.lawyersclubindia.com/articles/The-Issue-of-Defending-a-Client-known-to-be-Guilty-8226.asp

Friday, 9 June 2017

Exercise of Discretion by Courts in Deciding Bail Applications

When an allegation of a cognizable case crops up against a person, for any genuine or other reason, before the police for necessary legal action, the Station House Officer (SHO) is duty bound to register the First Information Report (FIR). Thereon the police, in a ritualistic manner as being done over the years, would arrest him/her and put in lock-up. The detention may continue for many years before the case is finally decided by the court. Later when the bail application for his/her release is moved before the court the judge will refuse to grant him/her bail in yet another ritualistic response. Denial of bail is an easy option for the magistrate in not getting into unnecessary allegation or trouble. The magistrate ignores the fact that the granting or denial of bail is to be exercised with utmost care and caution by applying pristine discretion, unequivocally granted to him by Section 78 read with 81 of the Criminal Procedure Code (CrPC).

Bail basically is the temporary release of a person from the legal custody by making an undertaking by him that he shall submit himself to the court and its judgment at the right time whenever required.
Indian criminal law classifies offences into two types - bailable and non-bailable - as per the first schedule of the CrPC. All serious offences are non-bailable in nature. This article deals exclusively with granting or refusing bail in the non-bailable offences. If an accused in a non-cognizable case is arrested or detained by the police without a warrant he/she has got the privilege (not the right) to be granted bail at the discretion of the court. Even though bail in a non-bailable offence is a matter of pure discretion it is not to be used in an arbitrary, vague or fanciful manner. It should be exercised based on sound discretion laid down by the statutes and case laws. If the order is arbitrary or capricious in nature, the appeal court can reverse it under its power of superintendence and revision. Judicial discretion in granting or refusing bail should be exercised by carefully balancing the right of liberty of the accused guaranteed by Article 21 of the Constitution and the general security of the society at large.

In our country, bail is an integral part of socially sensitive judicial process. It is the duty of a magistrate to admit the accused to bail unless there are compelling grounds to believe that the accused would not appear before the court to take the trial or judgment later. The basic reason for putting the accused in jail in general is to ensure his/her availability for trial and to take punishment. Therefore while deciding a bail application by the magistrate the granting of bail is imperative unless it is very dangerous to do so.

After 60/90 days of judicial custody of the accused for the purpose of investigation, the accused will have the statutory right to be released on bail. If an application for bail is made after 90 days even if the police report is not submitted due to some delay, the accused has every right to be granted bail. This provision puts pressure on the police to complete investigation within a reasonable time stipulated in the Code. The period of investigation comes to an end once the police report is submitted and then the question of granting bail becomes quite reasonable.

If there is no substantive ground to believe that the accused had involved in the offence, he/she shall be released on bail under section 436 of the CrPC. If there are grounds for further inquiry into his/her guilt, then also he/she can be released on bail under section 446A pending such inquiry. However the reasons for his/her release should be recorded by the magistrate. If the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence such a person shall be released on bail, unless the magistrate directs otherwise. The purpose of this section is to avoid hardship to the accused when the judicial proceedings are unduly prolonged. However, the magistrate can grant bail only when the accused is believed to be not guilty of a crime which entails punishment of death or life term. In judicial proceedings of other offences, the magistrate is endowed with unfettered discretion, but devoid of arbitrariness, in exercising the power to grant or refuse bail. The court, in exercising the above said discretionary power, should be guided by some legal doctrines or principles.

One should not forget that the precise objective of pre-trial detention is to make the accused available for trial and judgment but not to punish him/her. The law on bail favours granting of bail as the default action. A well settled judicial dictum says bail is the rule; refusal is the exception, but there exist some laws like NDPS which were carved out without following the legal dictum laid down in State of Punjab Vs Baldev Singh 1999.

The SC says the judicial officer while considering bail application should discreetly examine the following circumstances:

  • ·         the enormity of charge
  • ·         the nature of the accusation
  • ·         the scrutiny of punishment which the conviction may entail
  • ·         the nature of evidence in support of the accusation
  • ·         the danger of accused being absconding
  • ·         the protracted nature of the trial
  • ·         the  danger of witness  being tampered with
  • ·         the opportunity to the accused for the preparation of his/her case
  • ·         the health, age and sex of the accused
  • ·         the nature and gravity of the circumstances of the offence
  • ·         the position and status of the accused in the society
  • ·         the probability of accused committing more offences
  • ·         the interest of society in general 

The above given list is not an exhaustive one indicating all the factors governing the grant or refusal of bail. The previous conviction of the accused and the likelihood of repetition of the offences by him are also to be considered while taking a decision on bail. The collateral consideration that the accused is poor has no much value as a criterion. Granting bail basing on the remarks of the public prosecutor is tantamount to non-exercise of judicial discretion and held as improper by the apex court.

A refusal of bail by a lower court does not preclude one from filing another application with more detailed materials and circumstances before a higher court. But filing an application to a subordinate court after the application being rejected by a higher court is unacceptable. While granting or refusing the bail, the reasons considered for discretionary exercise must be recorded for making them known to others. While considering bail the detailed examination or analysis of evidence or merit of the case is to be avoided by the officer/court. If the offence is punishable with death or life term, the accused shall not be released on bail except when the accused is a child, woman or sick person. The High Court has concurrent jurisdiction with the Sessions Court to grant bail under Section 439 of the CrPC.  Therefore, it is considered desirable to move the lower court first, except in exceptional circumstances. If so the High Court can amend, add or abrogate the bail order of the lower court, if necessary.

Recently in Hussain & another v Union of India (Crl A Nos. 509 and 511 of 2017) the Supreme Court directed all High Courts to instruct Subordinate Courts under their jurisdiction to dispose of bail applications normally within one week. Similarly the High Court has been asked to ensure that the bail applications filed before them are to be decided within one month.

In short, bail in a non-bailable offence is to be exercised with great caution and discretion and such exercise should be devoid of the vice of arbitrariness. The pre-trial detention which is necessary in some cases should not be allowed to become a serious threat to the personal liberty of a citizen. 

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Friday, 2 June 2017

On Dealing with Malicious Prosecution

K Rajasekharan
Advocate, Thrissur Bar


Malicious cases are on the increase. The educated and rich sections of society such cases are being used as an easy tool to bring someone down. One reason for this the emergence of many poorly drafted women laws enacted for the noble purpose of ending atrocities against women. Many of the cases relating to marriage and family matters are frivolous ones narrating noting but fairy tales. Males are also not reluctant in filing such cases to win somehow. Some of the males involve woman and use sexual harassment as an easy tool to settle old scores on others. Therefore it is necessary for anyone to know how one can effectively deal with malicious cases which he may be slapped with at times.
Malicious Prosecution here refers to the practice of filing of any civil or criminal cases that has neither any substantive value nor for getting any genuine relief but intended to injure the defendant or bring him to a negotiating table or to set an old score out of some egoistic clashes. In other words, malicious prosecution is the institution of unnecessary case against another without any probable cause and is an abuse of the process of the court. When such a case is ordered in favour of the defendant the defendant gets the right to initiate civil of criminal case against the original plaintiff for either punishing him or seeking civil damages. Filing a malicious case against a person with no genuine cause or to put him/her on hassles is an absolute abuse of the judicial process. It has to be dealt with seriously by the society, particularly in the context of exponential increase in the number of such cases.

The basic ingredients of a malicious case are:-

  • ·         The original case must have ended in clear acquittal of the defendant
  • ·         The case should have been on genuine grounds  or any just cause
  • ·         The case must have been pursued mainly for injuring the other.


In fact the prosecutors and the law enforcement officials have immunity from unnecessary prosecution while engaging in their official duties but if anybody can prove that the prosecutor or law enforcers have acted in excess of their normal scope of authority they cannot claim such immunity. In such a case they would also come under the charge of malicious prosecution and consequent punishment of civil and criminal nature. If a person can prove that he/she has suffered monetary loss such as lost wages, loss of employment, advocate fee paid etc in the course of any malicious prosecution against him he may be awarded the actual cost.

One can file a case against malicious prosecution not only against the prosecutor or the police, but also against the person who had set the criminal action in motion by registering the First Information Statement before the police or filing a complaint before the magistrate.

Malicious prosecution is a crime under section 211 of the Indian Penal Code (IPC) and is closely connected to the section 499 of the IPC, another crime of defamation.  Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. What the section 211 of IPC says is that if anyone institutes a criminal proceeding intended to cause injury to any person knowing that there is no lawful ground, he shall be punished with jail term of either description for two years or with fine. If proceeding is for an offence chargeable with death or life term or for seven years the punishment shall be for 7 years. The crime is a non-cognisable one, triable by magistrate or sessions judge as the case be.  

Similarly the Section 499 states whoever by words makes any imputation concerning any person intending to harm the reputation of a person is said to defame that person. The section 500 of the IPC provides for punishment for defamation.  

The person prosecuting someone for filing a malicious case must establish that the accused had intention to cause injury - section 44 of the IPC defines the term “injury” - to the reputation or property. Injury, as per the definition, means any harm caused to any person in body, mind, reputation or property. It must also be proved beyond doubt that the accused had knowledge of the fact that no just cause exists for filing the original case.  

However, if the allegation made in the case is true or conveys a caution to the society it does not fall within the ambit of defamation.   Either the inability of a complainant in the original case to prove the charges or the falling of his/her the evidence short of required standard in trial is not a valid ground to prove malice. The acquittal of a person on some technical grounds is not a valid ground for anyone to file a case against the petitioner for malicious prosecution. A statement of oath falsely supporting the prosecution case against an accused or a statement to the police, do not fall within the meaning of section 211 of the IPC. What is really required is to clearly prove the malice, injury and culpable nature of the prosecution in the original case in order to file a case against petitioner of a malicious case.

NB: This write up was originally published on Lawyers Club India site at http://www.lawyersclubindia.com/articles/On-Dealing-with-Malicious-Prosecution-8200.asp

Monday, 29 May 2017

Justice Karnan Episode Foregrounds the Need for Holistic Judicial Reforms


by K Rajasekharan
Advocate, Thrissur Bar


Leaving aside the flamboyant drama surrounding the issue what Justice Karnan episode foregrounds is the urgent need to save Indian judiciary from its multiple organ failure through a set of holistic and integrated judicial reforms.
The need to set up a credible statutory mechanism to choose right kind of professionals to the judicial posts and an effective system to investigate charges of misdemeanor, corruption and unfairness of judges, are the top priority items that need immediate attention. The episode took an ugly turn as judges on both sides of the tussle have no majesty or maturity required for the positions they hold. Time and again Justice Karnan evinced that he is an unsuitable person for a majestic judicial post. The other side, which made the issue so ridiculous with unnecessary emotional outbursts at times, also deserves ridicule.
Select right persons as judges
Unless right individuals with proper knowledge, ethics and sagacity are chosen for the position of judges endowed with high responsibility, it would practically be impossible for our country to keep the judicial system running intact. Everybody including the Supreme Court (SC) admitted the flaws of the collegium system and the impropriety in its system of selection of judges but the judiciary preferred to retain it with all its flaws and ignored every proposal put forward to replace it with a comparatively saner, more accountable and more transparent institutionalised mode of selection of judges. The demand for judicial accountability is long standing but remains sidelined or almost neglected.
The judges, who have been selected through collegeum with no much merit, show instances of misbehavior or deviant behavior which neither the judiciary can accommodate nor the people at large can withstand them for long. If the selection does not bring right incumbents to the bench it is impossible for the system to tame and keep them in tact without indulging in corruption or other maladies, while keeping them insulated from any kind of external control or pressure so as to ensure their independence.
The Justice Karnan issue originated from Justice Karnan’s allegations of corruption which he said to have come across in his close vicinity. The allegation, after a series of instances of intemperate behavior from both sides, was counter balanced by initiating contempt of court proceedings against him by setting up a seven judge bench. The reason for Justice Karnan’s punishment is not spelt out clearly but a sentence was issued without framing charge, trial and conviction so as to make it difficult for Karnan to defend the case as Indian criminal jurisprudence stipulates. How an allegation of corruption turn into a contempt of court case is not yet clear to many observers.
No disciplinary provision except impeachment
Indian Constitution or the statutes do not prescribe any punishment for judges except their removal though impeachment.
Impeachment is more a political action than a legal action or a way of punishment. In effect, the constitution is unreasonably or unequally favourable towards SC and HC judges. The judges are therefore liable to fall prey to corruption and misbehavior and they need to be subjected to some sort of penal action for their misdemeanors without compromising on insulating them from outside influences for maintaining their judicial independence.
The Article 124(4) of the Constitution stands against proven misbehavior, bribery and crimes involving moral turpitude of Judges and the substantive procedure for impeachment of them in case they involve those vices. Similarly Judges (Inquiry) Act 1968 provides for the procedural formalities of investigation and inquiry. In fact, the Judges (Inquiry) Act, a law without much teeth, has failed miserably in its purpose of disciplining judges. Since no successful impeachment could be done in the last seven decades, punitive action against judges is almost non-existent in India.
In 2006 a legislative bill titled Judge (Inquiry) Bill 2006 was formulated based on 195th report of the law commission of India and introduced in the Lok Sabha on 19th December. Later in 2008 another Judges (Inquiry) Amendment bill was introduced for establishing a National Judicial Council to inquire into allegation of misbehavior or incapacity but it was not pushed forward. In December 2010, the Judicial Standard s & Accountability Bill 2010 was introduced in Parliament to lay down judicial standards, to provide for accountability of judges and to establish expedient mechanism for investigation into complaints and misbehavior of judges of the SC &HC. But now no such reform is in consideration.
Therefore in order to regain public confidence in judiciary, credible statutory machanism for investigating the charges against the judges is an utmost necessary right now. The only mechanism now exists for enquiring allegation against Supreme Court and High Court judges is a three member committee of seniour judges, with no statutory power, constituted by the Chief Justice of India(CJI). The committee can do nearly nothing except requesting the judges to resign, even if charges are examined and found correct. Some accede to the request but some do not. Corruption, sexual extravaganza and other kinds of misbehavior of judges come up so frequently as complaints.
Corruption in Indian judiciary
In 2001, S P Baruchia, then Chief Justice of India, lamented that 20 per cent of the judges bring the entire judiciary into disrepute. Since then, at least eight high court judges had charges leveled against them, two of them faced removal and two resigned. Later Senior Advocate Shanti Bhushan as a party to implead in a contempt of court proceedings against his son Senior Advocate Prasanth Bhushan said to have stated that eight of the previous sixteen Chief Justices were corrupt and the names were handed over to the court in a sealed cover which has not been opened so far. Justice S H Kapadia, former CJI, was of the opinion that the judges should have not only constitutional morality but also ethical morality, as well.
Dealing with erring judges
In criminal offences against judges, the police can register an FIR but only after getting permission from the Chief Justice of India/Chief Justice (CJ) of the respective High Court (HC). No special protection as of now exists for them except the requirement of the above said permission. But fighting a criminal case against a judge is a tough task. In Provident Fund Scam case, Justice K G Balakrishann did not give permission to register an FIR for two years. Justice Nirmal Yadav who was later charge sheeted for a criminal case known as cash at judge’s door scam for the first time in Indian judicial history and found to be fit to proceed with prosecution, by a there judge bench panel was transferred by Justice K G Balakrishnan on the last day of her retirement, after absolving her of the charges leveled against her. No action was later taken against her.
A judge can be removed only on proven misbehaviour but the scope of the term “misbehaviour “has not been defined in a well accepted manner. The judicial actions of judges are protected by the Judges (Protection) Act. In exercise of discretion in judicial functions by judges, no court nor any authority can interfere and restrict anything forming part of his judicial functions The exercise of judicial functions include the ruling of judges on issues of law and issues of fact, exercise of discretion at various occasions in trial, ruling on maintenance, alimony and sentence imposed, etc. Such an exercise of statutory authority or any bonafide action of a judge does not come under restrictive action by any authority.
Defining judicial misconduct
On judicial misconduct of judges, it is possible for a disciplinary authority to exercise some control. Such cases of misconduct broadly includes:-

  • inappropriate court room behavior,
  • failure to maintain decorum,
  • rude or abusive behaviour,
  • failure to dispose of court business subjecting to improper or illegal influence  interfering with attorney–client relationship,
  • displaying obvious bias etc. Lack of punctuality in observing court hours,
  • keeping away from work without leave,
  • reserving judgments against established norms,
  • jumping cause list and manipulating it,
  • adjournment for no reasons,
  • seeking cheap popularity trough media,
  • issuing absurd orders, etc.

The above listed are some of the examples of judicial misconduct but it is not an exhaustive list.
Filing a Complaint against a Subordinate Judge
Anyone can file a complaint for taking disciplinary action against a subordinate judge before the Registrar (Subordinate Judiciary), of the High Court. The complaint should accompany a sworn in affidavit and verifiable materials to substantiate the allegation as per the existing procedure.
On receipt of the complaint the Registrar will bring it before the Chief Justice and the Judge-in-charge of the district and seek an explanation from the accused Judge before taking a decision on the complaint. If the explanation is satisfactory no action is taken and the complaint will be closed. Otherwise action will be taken by a resolution of the administrative committee of the court in exercise of powers conferred on it under Article 235 of the Constitution. The High Court has to protect the judicial officers from motivated complaints but it cannot ignore any dishonest performance of a judicial member.
Similarly a complaint against a staff member can also be filed before the Registrar for appropriate action.
Complaint against SC & HC Judges
The SC has established an in-house procedure to take remedial action against Judges accused of misconduct and impropriety of the SC and HC.
A complaint against the judge can be examined by the Chief Justice, if directly presented before him. If the complaint is of a serious nature, he should seek the judge’s explanation. If no further action is needed on the file it will be closed. If a deeper probe is needed, the complaint will have to be sent to CJI with the response of the accused judge and he Chief Justice’s comments. If CJI finds the need for a deeper probe it will be referred to a committee of two Chief Justices and a Judge of the High Court to conduct an enquiry.
If the Committee finds reasons for his/her removal it would request the judge to resign or retire. Or else, the CJI will ask the Chief Justice not to give any work and put the matter before the Prime Minister to initiate impeachment process.
If CJI directly receives a complaint against a high court judge he should send it to the Chief Justice of that high court for further comments. On getting the comments, the CJI either closes the file if it is a frivolous one or take appropriate action as outlined above if it is of some substance.
Even though this practice does not have sound statutory backing, it will work somehow to some extent in restraining some of the errant judges but not all.

Conclusion
In short, Indian laws put almost no restraint on judges so as to insulate them from external influence and facilitate their independent judicial decision making but the recent incidents suggest that some of the judges produced by the improperly crafted collegeum system do not reflect the decency, decorum and majesty needed for such a majestic position. Therefore what is required right now in the context of Justice Karnan episode is make selection of judges foolproof and to establish a system for punishing or weeding out the wrong ones among the judges. Otherwise issues like this will crop up so frequently and the disease will spread contagiously damaging the entire judicial system.
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NB : The article is originally published by the Lawyers India Club site. Click here to view the article.

Tuesday, 23 May 2017

Arrest of an Accused: Not a must in every Cognisable Case

by K Rajasekharan
Advocate, Thrissur Bar


The issue that this article discusses is whether registration of a First Information Report (FIR) against an accused needs to be followed by his/her imminent arrest.

Nowadays, when an allegation of committing a cognizable offence comes up against a person - particularly a celebrity - there will be a public outcry for his/her arrest even though such an arrest is unwarranted in accordance with criminal jurisprudence or its practice.  Unnecessary arrests and unjustified pre-trial detention pose grave threat to many citizens accused of committing cognizable criminal offences.

The five member constitutional bench of the Supreme Court in Lalithkumari case categorically stated that the arrest of a person is not directly linked to the registration of FIR. The verdict states both are entirely different concepts operating under different parameters and if a police officer misuses his power of arrest, he can be tried and punished under Section 166 of the Indian Penal Code. Therefore a police officer should apply his mind independently while taking a decision on arresting anyone.  He should ignore the vociferous public outcry for arrest that goes just against what is stated in the statue book. Arrest and detention of the accused in custody is treated by people in general as a procedural punishment for the accused.

Indian laws on arrest, pre-trial detention and charge framing are in shambles or irreparable disorder. Those laws are of colonial origin. The Law Commission of India in its 177th report, by citing the statistics provided in the Third Report of the National Police Commission, points out that sixty percent of the arrests were unnecessary or unjustified. A major section of jail inmates were those unnecessarily arrested. Due to procedural tangles some of them are forced to languish in jail for long even without knowing the charge on which they were arrested - as charge framing by the court takes place pretty long after the arrest.

In a cognizable offence, the laws provide the police officer enough legal authority to arrest an accused and put him in lock up. Lodging an FIR - based on a credible information or reasonable suspicion founded on some definite fact in regard to the commission of a cognisable offence - is a must for arrest. But arrest is a discretionary power for the police officer to excericse. That needs to be exercised only when sufficient justification exists. However when an FIR is filed, the police usually spring up into action and arrest the accused unless the arrest is put on hold by political influence or by money in an unholy manner. The power to arrest is a lucrative source of money for the police. An arrest cannot be done without registering an FIR.  In fact, a mere allegation must end up in registering an FIR against the accused but not in his/her arrest. A police officer is not bound to arrest an accused even if he has committed a cognizable offence and an FIR is lodged. The Criminal Procedure Code (CrPC) does not per se provide the police officer an unqualified authority to arrest an accused. That means an accused has committed a cognizable offence is not a reasonable ground for making an arrest. In Arnesh Kumar V State of Bihar & another, the Supreme Court said, “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so”. 

Arrest is in fact an encroachment on the freedom and liberty of the person so arrested. It infringes his fundamental right granted by the constitution which can be restricted only in a limited manner. Therefore the power of arrest is to be exercised only with great caution and suspicion but not on vague surmises. Investigation can proceed without arrest if an FIR is registered. It is a problem that the power to arrest is with the Police and the power to frame the charge rests with the magistrate at a later stage, unlike as in the UK where both are done by the police itself. Arrest is the formal taking of a person to lock up. It is being done to prevent the accused from tampering evidence, induce threat to the witnesses and keeping away from court proceedings when required. These things can be solved by enforcing some conditions on the accused. In arrest, the police officer is not expected to act in a mechanical manner. Some tangible proof must exist about the commission of an offence, when a police officer initiates arrest of an accused. Due diligence must be exercised by the police officer when putting an accused under arrest. In the UK the Police are to pay damages if their exercise of power in regard to the arrest is wrong whereas in India the CrPC encourages wrongful or false arrests. The police can remand an accused in custody for 90 days without filing a charge report and the court can keep him in jail almost indefinitely. In spite of all this there is no restraint on police in India in regard to arrest.

The statutory provision that authorizes a police officer to arrest an accused is Section 41 of the CrPC. The term “may arrest “used in the section denotes that the power of arrest is discretionary. Arrest of a person can cause incalculable harm to his reputation which he has built up over the years. Therefore, except in heinous offences and in unnecessary circumstances, arrest must as far as be avoided.

Unduly long pre-trial detention occurs in many criminal cases. The accused have to languish in jail for long. Some of them will be found not guilty and set free at the end. Magistrates have a due role in such a state of affairs. An accused, who has been arrested by Police, can be detained in prison beyond 24 hours only with the authorisation of the court.  Therefore the Supreme Court in Arnesh Kumar V State of Bihar & another cautions the magistrates that the power to authorize detention is a solemn function and needs to be exercised with great care and caution. But many of the subordinate court verdicts show that the courts do not exercise the function with the seriousness it deserves. In many cases the detention is authorised by the magistrate in a routine, casual and cavalier manner.

In short, when any piece of information disclosing the commission of a cognizable offence reaches a police officer no discretion is left to him except registering an FIR. But in the case of exercising the power of arrest, the officer must apply his mind and decide whether the person accused need to be arrested or not. Even if an FIR is lodged arrest is not a prerequisite. In Lalithakumari case, the Supreme Court unequivocally declared the parameters of registering an FIR removing every trace of doubt. Similarly a verdict from the Supreme Court for re-examining the laws relating to arrest is urgently needed. Unnecessary arrests and pre-trial detention in many a case go against the constitution and the rule of law itself.
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NB:- The article originally appears on Lawyers Club India site. Click here to view it.

Sunday, 14 May 2017

Need for Strengthening Subordinate Judiciary

by K Rajasekharan 
Advocate, Thirssur Bar

Strengthening subordinate judiciary – consisting of district and below level courts – is a much needed but grossly neglected reform. It has the potential to address the ever increasing problems of backlog and delay in justice dispensation and make the judiciary far more productive. A well functioning judiciary is a sine-qua-non for sustainable economic growth, investor confidence building and the overall human well being.

Subordinate courts are the courts where ordinary citizens literally interact with Indian judiciary with issues crucial to their life, liberty and property. The strength of Indian judiciary depends mostly on the strength of such lower courts which conduct the crucial chunks of judicial proceedings such as witness deposition, evidence taking, primary arguments and first level adjudication. If lower judiciary deals with cases seriously and comes up with proper adjudication based on valid law and legal principles, nobody would spend time and money on appeals, revisions and similar petitions unnecessarily as no higher court could alter or amend such foolproof verdicts. However the status of such courts is quite disappointing due to a plethora of reasons some of which the judiciary can itself address but some others it needs support from outside.

Judiciary as a whole and subordinate judiciary in particular is endued with archaic and cumbersome procedures which devour its foundation itself. Such procedures cripple judiciary and take away its efficiency. Even though the principles of fairness and transparency underlying such procedural laws are still valid, the procedures have made the justice dispensation at the grassroots delay ridden, dilatory and counter-productive.

Take for example; a plaint under section 26 of the Civil Procedure Code (CPC) cannot proceed unless a challenge of valuation is decided. It can be again challenged in revision under section 115 of CPC. The First Appeal under section 41 CPC, Second Appeal under section 115 CPC and revision by the High Court under section 115 CPC, are other provisions that can be used to delay adjudication. Judicial interference by invoking Article 226 or 227 is as well possible for the parties in the case. The Supreme Court can interfere as per any of the articles coming under Chapter IV of the Constitution. Special Leave Petition (SLP) under Article 136 of the Constitution is a grossly misused provision.  Even a cheque case under Section 138 of the Negotiable Instruments Act can be adjudicated at four levels including SLP in the apex court. That means an ingenious advocate gets a plethora of ritualistic judicial procedures coming well within the legal framework to delay cases. We can no longer afford to stick on to the justice delaying procedural perfections when the mounting backlog of cases and the inordinate delay in adjudication crumble our judiciary. Statistics shows there are 60260 cases pending before the Supreme Court, 38.68 lakh cases in High Courts and 3 crore cases altogether in the entire judiciary altogether.

In fact, eighty percent of the backlog of cases is in the lower judiciary which runs short of 23 percent of judges in sanctioned posts. The subordinate judiciary is working under severe deficiency of 5,018 court rooms. The existing 15,540 court halls are not enough to cater to the sanctioned strength of 20,558 Judicial Officers as on 31 December, 2015 which shows that there was a deficiency of 5018 court rooms then. There is also a shortage of 41775 staff members in the lower judiciary. Since neither the Centre nor the States have any direct role in filling the vacancies of subordinate judges the prime responsibility for the lapses in addressing this much deliberated problem of shortage of subordinate judges rests with the judiciary. The inordinate delay in filling up vacancies of judicial officers should not be allowed to continue.

There is a widespread criticism that laws and legal principles have no much application in lower judiciary. The binding legal principles enunciated by the superior courts do not find a place in the proceedings of the lower courts. In the past, many of the prudent judgments of the lower court judges were upheld by the Privy Council. This shows that when lower judiciary adheres to merit and meticulousness in handling cases, the higher courts cannot upturn such verdicts. If the subordinate judiciary is well equipped with competent persons and its decisions go well in tune with jurisprudence many of the appellate and revision cases would not arise at all. Therefore an efficient and well-equipped subordinate judiciary, competent to deliver legally prudent judgments, can reduce the number of cases in appellate and revisionary jurisdictions, which in turn avoid the imminent collapse of the judiciary.

Appointment of judges of competence, caliber and integrity at the district and below level by establishing an All India Judicial Service (AIJS) is an easy way out in improving the quality of lower judiciary. Caste, creed or religion should get no decisive role in appointment. Recruitment of meritorious judges is more important than the recruitment of greater number of judges. An incumbent judge must have some prior bar experience but no bar experience is prescribed in selection of Munisif-Magistrates in Kerala.  A young, fresh law graduate with no much experience in nuances of procedural conundrums in the court can pass the selection test and become a judicial officer who in turn decides crucial issues pertaining to citizens. Even the year long pre-service training at the time of induction is not sufficient to equip a fresh ill-experienced, law graduate into a capable judicial officer of substance. Therefore legal practice as an advocate should be a requirement in the selection of subordinate judges. The Munisif-Magistrate selection in Kerala in 2013 and the District Judge selection in 2017 met with allegations about nepotism, patronage and favouritism. Quite unfortunately, the administrative side of the high court invariably comes on side of the controversy. The judiciary that exists for enforcing rule of law everywhere else is not keen enough to enforce rule of law in selection of its officers.

The Advocates, as officers of the court, have a great role to play in judicial proceedings but a large section of them do not rise up to the role they are expected to play. Many lawyers with work concentration have more interest in talking fresh briefs than attending old ones. The practice of filing multiple appeals and revisions, numerous interim and interlocutory applications, adjourning cases indiscriminately for no serious reasons by lawyers, and such other practices, gradually weaken the judicial process, cause undue delay in case dispensation, and unduly enhance the cost to litigants. Indian judicial system has become more advocate centric than litigant centric nowadays. Seeking adjournments has become an art in advocacy. Judges, who are not firm on rules or assertive in attitude, grant adjournments on flimsiest of grounds. Repetitious, time consuming argument is another delaying mechanism. Some lawyers prefer long winded and prolix arguments with no substantive points. Similarly, many of the judges prefer writing judgments of unnecessarily length. The multiple interpretations they offer quite often offer unscrupulous lawyers to use the judgment to their advantage at the appellate levels.

In criminal cases, the strength of adjudication depends mostly on the efficacy of investigation and evidence collection. Deficiency in the police machinery is a common problem in almost every criminal case nowadays. The police need to be set free from extraneous shackles of pressures including that of the political masters. The investigation and prosecution wings should remain separate, but complementary in case handling. Independent police functioning is quite essential for the judiciary to handle adjudication effectively. Extra-legal methods are dominantly being pursued by both police and prosecution wings to achieve results in many cases, particularly in politically prominent ones.

The appointment of public prosecutors and other law officers need to be done based on merit rather than on the basis of patronage as being done now, so as to make the criminal proceedings fair, proper and unbiased.

We now live in a dense jungle of laws, many of them are outdated and not in tune with our times. Neglect in reforming laws also makes the judicial functioning difficult. The existence of a plethora of poorly crafted laws and their varied interpretations make it difficult for anyone to know the right legal perspective in an issue. It would be difficult for the judges or lawyers to keep abreast of the changes every enactment of law brings forth in the legal sphere.

The strength of judges is a decisive element in the performance of the court. But that is not the sole criterion in determining the quality of the institution. Judges play a primary role in court and case management. The quality of the judiciary revolves round the merit of the judges and the qualitative input/support the bench receives from all around.

The contrasting interpretations in similar issue by the higher judiciary quite often pose endless troubles to lower judiciary in finding the right perspective on an issue from diverse ones. This inconsistency makes adjudication a gamble in which the stratagem of lawyers and incompetence of the judges play a crucial part.

To vitalize judiciary, the stays and endless adjournments should be firmly curbed. Frivolous appeals must be minimized by enforcing rules and procedures strictly. Long winding arguments and pretty long argument-notes should be discouraged. There should be broadly fixed time limit for arguments. Adjournments on personal grounds, except for illness, should not be allowed. The ongoing practice of filing any number of interim and interlocutory applications in civil courts should come to an end. No appeal or interlocutory applications should be allowed except in issues that cannot be dealt with in the final orders. The filing of written arguments must be enforced.

In short, the problems that make lower judiciary vulnerable and weak are litigation explosion, increase in legislations, increasing election petitions/cheque cases/etc, inadequacy of judges, non-merit of judges, inadequacy of staff members, insufficiency of infrastructure in courts, wrong priorities in disposal of cases, hastily made imperfect legislations, absence of talented lawyers, ignorance of statutes/procedures among stakeholders, shoddy police work, and inept prosecution. They need immediate attention and curing. No doubt, strengthening lower judiciary is far more important than introducing Court of Appeals in between the High Court and the Supreme Court or establishing more Benches of the Supreme Court in different parts of the country.

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N B :- This article was originally published by the Lawyers Club India site. Click here to view the article.