An Open Letter to the Members of Legal Fraternity and General Public on the Recent Incidents Pertaining to the Issues Created By Some Media Personnel

(By Executive Committee, Kerala High Court Advocates Association)

Kerala High Court Advocates Association (the Association) and its members are deeply pained by the false propaganda and malicious attack on the legal fraternity in general and on the advocates practicing before the High Court of Kerala in particular, by the media in the recent past. Exaggerated half-truths and false news is being published in news channels, websites, newspapers etc. in a pre-planned manner to tarnish the image of legal fraternity and judiciary by some media personnel. Attempt to prevent unleashing of such false propaganda led to the recent impasse with media. Apart from taking stern action on such unscrupulous elements, it is also necessary to set guidelines to avoid such incidents in the future. Members of legal fraternity and the general public need to know about the whole truth behind the recent incidents. It is with this view; this open letter[1] is written.

Events that led to the recent impasse:

1. On 14.07.2016, at about 7:30 p.m. one Advocate, who then was a Government Pleader attached to the High Court of Kerala was arrested by the police and was taken into custody on allegation of attempting to molest a woman in public road. Within no time, he being taken into custody, flash News appeared in several news channels and on next day all newspapers carried the said news with prominence, after publishing name of the said advocate, with specific reference to his status as a Government Pleader in the High Court.

2. It may be noted that Section 31(3)[2] of the Kerala Police Act, 2011 (the Police Act) forbids the publication of photographs of accused in print and visual media, unless permitted by the State Police Chief. Such publication is also illegal and unjustifiable[3]. In blatant violation of such safeguards for the protection of the rights of privacy and fair trial of the accused, the media launched an uncharitable attack on the said Advocate, by giving hyperbolic emphasis to the fact that he was a Government Pleader of the High Court, in such a manner so as to bring disrepute to the whole community of lawyers, and Government Pleaders in particular.

3. The unsavory zeal with which media was carrying out the scathing report, with the blessings of the Police team, will make any prudent person to detect foul play in the matter. Be that as it may, his rights guaranteed under the Law for fair trial and presumption of innocence were being impinged upon due to the unbridled media trail and character assassination carried out.

4. On 15.07.2016, since the action of police appears to be motivated, this Association brought the fact to the attention of Advocate General and further requested him to take necessary action against the errant police officials for making the propaganda with a view to avoid such incidents in future[4]. Meanwhile, the said advocate was granted bail by the Magistrate Court.

5. On 16.07.2016, the de facto complainant in the said incident made statement under Section 164 Cr.P.C. The said statement was leaked and widely published through media. The act of leaking the confidential statement given by the victim to the Magistrate under Section 164 of the Cr.P.C. is a blatant violation of law. The publication of the said statement, which is not furnished even to the accused until filing of the final report, is a very grave violation of law committed by the media with the active connivance of Police. The timing of the publication was also very relevant, as it is seemingly done with the intention to prejudice the judicial proceedings in relation to the petition filed by the said Advocate seeking to quash the F.I.R., which was to be considered by the High Court on the next day.

6. Taking into account such circumstances, the Association passed a resolution on 18.07.2016, condemning the grave dereliction of duty committed by the Police in handling the case, and also the media excesses in relation to the reporting of proceedings. The said resolution was passed ‘unanimously’. It was also resolved that a march would be held by lawyers on the next day (19.07.2016) to the Central Police Station, at 1.10 p.m. to symbolically convey the protest of lawyers. But the decision to hold the march was later cancelled, upon knowing that the petition filed by the said Advocate seeking to quash the F.I.R. was under the consideration of Hon’ble High Court. Hence, in deference to the pending judicial proceeding, the decision to hold protest march was cancelled on 19.07.2016.

7. On 19.07.2016 false reports appeared in media regarding the said resolution passed on 18.07.2016. It was reported by ‘Deccan Chronicle’ daily that the resolution was not passed due to ‘rift’ in the Association. The said report is a blatant lie, and amounts to deliberate misrepresentation. When the reporter who made the report in ‘Deccan Chronicle’, visited High Court, certain lawyers sought clarification from him regarding the wrong report made by him about the resolution. Said reporter upon realizing his mistake apologized to the office bearers of the Association. ‘Deccan Chronicle’ later corrected the report on 20.07.2016, and clarified the mistake, with an apology to the reader [5].

8. In this context, at 3 p.m. (on 19.07.2016) the Association called for a press conference to explain the stand of Association to dispel the misinformation circulating in media. But the said press conference was boycotted by the media personnel. Immediately thereafter by 3.30 p.m., the Secretary and the Vice President of the Association went to the media room so as to clear their misunderstanding. At that time it was informed by the media personnel that they are not ready for any discussion. By 4 p.m. representatives of the Association and media met the Hon’ble Acting Chief Justice, and in that meeting the Hon’ble Acting Chief Justice asked the Registrar General to work out an amicable solution. It is also painful to note that even outside the chamber of the Hon’ble Acting Chief Justice, the media personnel abused the office bearers of the Association by calling them “Criminals in Black Coat”. Immediately after the said meeting, the media personnel went back to the ‘Media Room’ and held a closed door meeting for an hour. Thereafter at about 5.00 p.m. around 10-15 media personnel, cordoned by police men, conducted a protest march towards the Kerala High Court Advocates Golden Jubilee Chamber Complex after holding defamatory placards and shouting defamatory slogans. During this protest march, stones were pelted on the advocates who were standing in the Chamber. One Advocate, who was standing in front of the chamber premise was grievously injured by pelting of stones, Mobile phone of another Advocate (who was video graphing the protest march of media personnel) was also snatched away by the media personnel. In this context it may be noted that the area within 100 meter radius from High Court building has been treated/’declared as a high security zone, and all sorts of gatherings, protest marches, demonstrations etc are banned/not allowed to enter the area. Moreover, media persons have no right to enter the premises of Chamber complex of K.H.C.A.A., and such entry amounts to trespass. But the media personnel carried out the protest march with the active connivance, support and escort of police officials. The S.I. of Police attached to the Central Police Station and other officers, policemen under him were extending all support to the media personnel for carrying out their illegal designs. The media persons trespassed into the chamber premises, and hurled stones at lawyers, and showered abuses at them.

9. Immediately thereafter, at about 6 p.m. (on 19.07.2016), the members of Executive Committee of the Association met the Registrar General, appraised the situation, and at that point of time, he assured that the media room (where the media personnel hatched conspiracy to use criminal force against advocates) will be closed, so as to avoid further law and order situations. It is relevant to state that the media room which was provided for healthy and truthful dissemination of news has now turned out to be place for criminal and unscrupulous elements.

10. On 20.07.2016 the Director General of Police met office bearers of the Association at Guest House Ernakulum and ordered an enquiry into the incident that happened before the Chamber Complex on 19.07.2016. Mr.P.N.Unnirajan, District Police Chief (Ernakulam, Rural) was entrusted with the enquiry. These developments (i.e., regarding closure of media room and ordering of enquiry) were brought to the attention of members of the Association in the General Body meeting that was held at 1.00 p.m. At about 2.00 p.m. it came to the notice of the members of the Association that the media room (that was assured by the Registrar General to be closed) was opened and the same was occupied by three lady reporters. After asking them to vacate the room, it was closed. By 2.30 p.m. about 20 media personnel formed an unlawful assembly and again conducted a protest march to the High Court premises. Even during this time, about 50 policemen were present in the scene. The media personnel sat in front of the Gate No. 3 of the High Court after blocking entry to the High Court as well as obstructing traffic through public road in front of the High Court and started to shout provocative slogans. It may be noted that the High Court was in session during the said time, and with scant regard to the process of law, the media persons gheraoed the High Court. At the risk of reiteration, it is stated that the said area is a high security zone, where demonstrations and gatherings are banned/Inot allowed. The Police, instead of removing the obstruction made by media persons, were lending a protective shield to them, in grave dereliction of their duties. The placards held and slogans shouted by them were insulting to the entire legal community. The shouting of slogan and blocking entry to the High Court through its Gate No.3 lasted for about 2 to 21/2 hours. It is heartening to note that even in this charged atmosphere, no advocate tried to precipitate the issue and members of the Association were maintaining utmost restraint. During this time, office bearers of the Association contacted Registrar General and superior police officers and requested them to take necessary steps to remove the protesters. Even though, the protest march in front of the High Court, blocking of entry to High Court, and shouting slogan just in front of the High Court are prohibited/not allowed, however no effective steps were taken by the authorities including the City Police Commissioner, to remove the errant media personnel. At about 4:30 p.m., one Advocate who proceeded to his office in a motorbike, through a way made by the police, was brutally attacked by the media personnel. He suffered grave injuries in his face, and was under treatment at Specialists Hospital, Ernakulam North. This act of taking out scooter (that too with the help of policemen) was twisted and was reported by the media as an attempt by lawyers to kill the protesting journalists by running a vehicle over them. Such was the level of malice and ill-will amongst the media persons to tarnish the legal fraternity. Moreover, several advocates were physically attacked by the media personnel during this time.

11. When the said Advocate was physically attacked and manhandled, some members of the Association protested and questioned the media personnel and at that time the police charged the advocates. In the police lathi charge eight Advocates sustained injuries, and also three Advocate Clerks were also seriously injured. In this context it may also be noted that no media personnel sustained any injury in connection with this incident before the High Court of Kerala.

12. The Extraordinary General Body Meeting of the Association held at 6.30 p.m. decided to abstain from court proceedings on 21.07.2016 and to protest against the lathi charge and attacks by media men. The said meeting reiterates the demand to close down media room. In this context it may be noted that the protest of Advocates and members of the Association has nothing to do with the criminal complaint/case filed against the above said Advocate/Government Pleader and the said issue is separate. Protest of Advocates started with false reporting of news (that there is rift in the Association) and the subsequent belligerent stand taken by certain media personnel.

13. On 21.07.2016. about 1000 members of the Association assembled in the High Court and in the General Body Meeting of the Association unanimously decided to again submit the demands before the Hon’ble Acting Chief Justice. It is relevant to note that majority of the Senior Advocates and other leaders of the Bar attended the meeting. On the same day, extending solidarity to the decision of the Association, several Bar Associations in the State of Kerala also abstained from court proceedings. In connection with some unfortunate incident that occurred in the Thiruvananthapuram district court premises, some advocates were injured. In this regard, at 6 p.m. the Association further decided to abstain from work on 22.07.2016.

14. It may further be noted that, the above narrated being the true incident that occurred in the High Court between 14.07.2016 and 21.07.2016, the media coordinately unleashed false propaganda by painting advocates (as a whole) in bad colour, highlighting false narrative of the incidents, publishing/broadcasting false news etc. Some newspapers even went to the extent of coining new terminologies such as “Vakkil Kalapam” (Revolt by Advocates), “Karutha Kottitta Kapalikars” (Black Robed Goons) etc. and thereby tarnishing the image of advocate community. The news items published/broadcasted by them are exaggerated half-truths and highly partial. This brought the advocates at large in bad light in the eye of public.

15. The media continued their false propaganda and misreporting intensely. They even had the audacity to make a false report that the Supreme Court of India directed the High Court to open the media room. Firstly, there was no such direction from the Supreme Court, and the report was a blatant lie. Moreover, it is a fundamental legal principle that Supreme Court has no administrative control over the functioning of High Courts, both being Constitutional Courts. However, such a report was carried by the media, with the malicious intention of misleading public.[6] Also, the media carried reports to the effect “two senior advocates, “Justice” P.N. Ravindran and “Justice” P.R. Ramachandra Menon, were visiting Trivandrum District Court to study the situation”. The media termed two senior sitting judges of this Hon’ble Court as “Senior Advocates”, despite prefixing their name with “Justice”. These reports are pointers to the abysmal level of legal ignorance amongst media persons, and the careless attitude shown by them while making reports on court proceedings. Hence, the need for ensuring minimum standards for accrediting legal correspondents by High Court assumes relevance in the light of such ludicrous reports.

16. It may be noted that the unfortunate incidents happened due to the aggression and provocation of media persons. The media persons were the aggressors, and the police did nothing to contain their aggression. In such circumstances, the Advocates had to resort to reasonable use of force to protect them. Such use of force was merely reactionary, and was absolutely necessary to preserve the dignity and self-respect of the profession, and also to save the judicial institution from the affront launched by media persons. However, the media only reported the reaction made by lawyers, deliberately suppressing the fact that the media persons initiated the whole trouble by launching aggression and provocation on lawyers, and also by conducting unlawful assembly in front of the High Court. It may be noted that the Association had video graphed the incident that occurred in and around Gate No.3 of the High Court on 2.07.2016 and this video[7] will make it evident that the media persons were the real aggressors.

17. It is also to be noted that media persons have been enjoying undue liberties and privileges in the High Court for long. They claim it as a right to access the chambers’ of Hon’ble Judges and steno-pools for obtaining copies of judgments, even before they are signed and certified by the respective Judges. It is also an unfortunate fact that a few Judges have been indulging media persons unduly and excessively, with the intention of grabbing limelight. These circumstances cultivated a false feeling of superiority and wrong sense of entitlement amongst media persons. It is to be noted that Advocates are the Officers of Court, and are an essential part of the judiciary; whereas, media is not a component of the judicial institution. However, the conduct and attitude evidenced by media persons was as if they were running the institution. That has caused a lot of grievance amongst the lawyers’ community. There have been several instances, wherein lawyers had to face embarrassment and loss of face in front of their clients, when the clients gather news about judgments in their cases from media, and the lawyer is at a loss to understand or explain the judgment as either the judgment was not pronounced in open court but reserved for order or certified copy of judgment was yet to be issued. The reports made by media after obtaining short hand versions of judgments are most often misleading and erroneous. The tendency of media persons to report oral observations and remarks made by judges during the course of hearing have also done a lot of damage to the institution. Taking into account these factors, it is necessary to formulate a code of conduct for regulating the reporting of court proceedings. Also, media persons should not be allowed any access to chambers of Judges, and the pool of stenographers for obtaining judgments before they are officially signed and certified for release by the concerned Judges are pronounced in open court. The media persons should not be given any higher rights or privileges than ordinary citizen and granting such rights or privileges will go against the interests of the Judiciary.

18. The Association is not against media persons visiting High Court premises, and reporting court proceedings in a correct and genuine manner, without embellishments and misinformation. However, we are against opening of ‘media-room’ to the media persons as the said facility was being used for unlawful purposes. It was in the said media room that the conspiracy to assault and attack lawyers was hatched. It is also understood that outsiders, who are not strictly concerned with legal reporting, visit and assemble in media room, and loiter around there. So, the media room was being used in an illegal and undisciplined manner, not consistent with the dignity and honour of the judicial institutions. Apart from that, in view of the aspects detailed hereinafter, such a facility is unnecessary. The same space can be used for better purposes.

19. In the above context, the Executive Committee of the Association had requested the Hon’ble Acting Chief Justice, as per ‘Factual Report and request for action’ submitted before His Lordship on 08.08.2016 to take following steps:

A. Re: Ask the media to tender apology and make the truth known to public:

According to ‘Norms of Journalistic Conduct’ formulated by the Press Council of India[8], “...the fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner. To this end, the Press is expected to conduct itself in keeping with certain norms of professionalism, universally recognized...” Further, per Norm[9] 12(a)(iii), the Press is prevented from “scandalizing the court or the judiciary as a whole.” In utter contempt to this cardinal principles; the media (both print and electronic) indulged in wide distorted and one sided reporting of the events that occurred between 14.07.2016 and 21.07.2016. To remove the doubts that created by the media about advocates in the mind of public, they are to be compelled to tender apology for making false news about the members of the legal fraternity and also to publish/broadcast the true sequence of events as stated above.

B. Re: Providing Copy of Judgments:

In the year 2005, a Division Bench of the High Court of Kerala had dictated judgment in Joseph v. S.I. of Police[10] in open Court. Even while dictation was going on; “news” started appearing in the media. In that context, this Hon’ble Court made the following observations:

“...191. We were again disturbed that almost all the daily newspapers today have carried reports about the contents of this judgment, which is not even complete now. Our judgment bears the date of today. Evil is that a report on its contents was published by media yesterday and today morning. It is true that after hearing almost for long two months and bearing all the materials with much clarity in our minds, we thought of delivering our judgment with the able assistance of the counsel and in their presence forthwith. Moreover, it is the duty of the Court to deliver the judgment as quickly as possible so that the parties will get the fruit of their appeal right from the mouth of the Court itself at once. A pronouncement can be called a judgment only when the last word is pronounced and a date is given to that pronouncement. Until then, it is possible that certain observations or conclusions in one or two segments already dictated earlier may be modified. Moreover, in a Division Bench, it is also possible that the opinion expressed by one Judge need not always be accepted by the other Judge, who may form a different opinion. A judgment of a Division Bench will be conclusive only when its delivery is complete and the other Judge sitting in the Court concurs with the view so expressed by such delivery by the other. Until then, it cannot be termed as a judgment. It is not proper, we feel, for the responsible media people to serve half-baked judgment to the public and in case any mistake occurred in the dictation is corrected later, it will create again a chaos as to what prompted the Court to deviate from the mistaken portion, which has been published by the media as the verdict of the Court.

192. Therefore, it is high time, to caution the media, both print and electronic, that the proceedings in Court must be published with much care and restraint and only after ascertaining the truth and not from any truncated or partial version. The sublimity of the Court process must be imbibed by the reporter when he makes the report. No harm will occur in such circumstances, if the publication is delayed by a day. It will not affect anybody’s right to information which means the right to receive correct and true information. Report on a document like the judgment shall be based on its complete contents. It cannot be reduced to the type of report on a public speech or address. We hope that the media and the public will take this observation in its true spirit. We do not in any way mean to curb the free press in their activity. What is required is only a responsibility with some amount of restraint to deliver the true information to the public, so far as the Court proceedings, which the people of the country consider with high esteem, are concerned and not to cause embarrassment to Courts...”

It is to be made clear to the media that they are having no right under the Constitution of India or under any law for the time being in force to have right to access to draft or unsigned copy of a judgment. As a matter of fact (even a litigant or his advocate) is not having any right to obtain draft copy of the judgment. Right to have copy of judgment/order will accrue only after a Judge finally approves it by affixing his signature. Since this being the position, the media personnel cannot be permitted to have access to copy of judgment, before a Judge affixes his signature.

Now since the High Court is computerised, the media personnel could collect the judgment directly from the Public Relations room as soon as, the Hon’ble judge(s) signs the same. As such necessary steps are required to take to upload softcopy of the judgment in the internal computer system, so as to enable everybody to obtain copy of the same from the front office, as soon as the Hon’ble Judge signs it and to restrain the media reporters from wandering around the chambers’ or steno pool in search of draft judgments and stop the media practice to publish draft judgments.

C. Re: Restricting access of media personnel to chamber’s of Private Secretaries of Hon’ble Judges and Steno Pool:

Media in India has no higher constitutional status than the ordinary citizen. Media derives its right (remember, a derivative right) from the right to freedom of speech and expression available to a citizen under Article 19(1)(a). Privy Council[11] held that “the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go, so also may the journalist, but apart from the statute law, his privilege is no other and no higher...No privilege attaches to his position...”. Right of media remains the same in post-independence India and the Supreme Court[12] held that “...being only a right flowing from freedom of speech and expression, the liberty of the Press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the Press as such, that is to say, as distinct from the freedom of the citizen...”

As such Association is of the unanimous opinion that the irresponsible behavior of the media personnel to roam around the Judges’ Chambers’ or the steno pool needs to be controlled as no such right is available to them. It has also come to the notice of the Association that media reporters are obtaining free/white copy of judgments/orders directly from the chambers of private secretaries of Hon’ble Judges and even from the steno pool. For the reasons stated above, there are no professional reasons for them to do so and since copy of judgment is available from the PRO room, there is no need for journalist to move around the chambers. Hence it is requested that the access of media personnel to chamber’s of Private Secretaries of Hon’ble Judges and Steno Pool may be restricted. Moreover, leaking of the contents of draft judgment and publishing it in newspapers, even before the Judge signs the judgment/order, is illegal and not in the interest of justice, judiciary and rule of law. There are many instances whereby news items were published/broadcasted through media about the judgment even before the litigant/their advocate could gain knowledge about the same or obtain certified copy of the judgments. There are also incidents where the litigants, after learning about the judgments from the media, asking for judgments to advocate and even at this time, the advocates did not know the fate of the cases in which they were appearing either through the internal computer system or through pronouncement in open court.

Similarly, it is also not unknown that some of the media reporters are seeking explanation or clarification directly from the Judge on the judgments. Compelling a Judge to speak about his judgment is also not in the good interest of justice and that of the High Court. As such it is requested to ensure that the judgments alone should speak and not Judges.

D. Re: ensuring fair and accurate reporting:

Candour of communication is vital to ensure that the judicial process is free and fair and that the litigants, through their counsel, get a full opportunity to place their point of view before the Court. Equally, questions by Judges are designed to evoke response from the counsel to address doubts as may arise in the course of a hearing. It is a fundamental principle of the Anglo-Saxon jurisprudence that Judges speak through their judgments and not through questions addressed to the counsel in the course of submission.

But it has also come to the notice of the members of the Association that the reporting of court proceedings, many times results in unnecessary public debate based on the oral observations made by Hon’ble Judges during course of arguments. Such public debates, many a times, are unconnected with truth. This actually amounts to misleading the public. This mainly occurred due to the reporting by incompetent reporters. As such, it was requested to take necessary steps to ensure fair and accurate reporting.

E.Re: Media Room:

The media room was provided at a time when there was no much technological advancement. Now that online and other facilities are in vogue, the necessity of Media room is not warranted, so also the media room which was provided for healthy and truthful dissemination of news has now turned out to be place for criminal and unscrupulous elements. To the best of our knowledge, no media room is provided by any of the High Courts or even by the Supreme Court. If an arrangement, as suggested above, to make available copy of judgments, without any delay, through the front office is provided, there is no need for media reporters to roam around the chambers or steno pool. Hence, it is requested that to close down the media room and to allot that space for better purposes like providing working space for Lady Advocate clerks’ or waiting room for litigants who come for mediation. More importantly, the incidents as stated about are now subject matter of Judicial Enquiry and till the report comes, decision to open media room is to be deferred. Even if any space has to be provided, it could be provided outside the High Court building. This will help to avoid any unpleasant situations in future.

F. Re: taking disciplinary action against errant Officials:

The above narrated events would show that the incident occurred between 14.07.2016 and 22.07.2016 is due to the biased and irresponsible attitude of police officials, where by media personnel were permitted to conduct protest march in front of the High Court on 19.07.2016 and 20.07.2016. The willful inaction of the police officials in not removing the media persons who blocked Gate No. 3 of High Court on 20.07.2016 for 2 to 21/2 hours is unpardonable. Stern action has to be taken against these errant police officials. It is also to be enquired as to whether there are any latches or dereliction of duty on the part of Registrar concerned and Security Officer of the High Court as no effective steps were taken to avert the protest or remove the protestors within reasonable time. Stern action has to be taken against these officials also, if so required.

Finale:

In the light of baseless news spread through sections of media that there is a media ban in the High Court, the Hon’ble High Court as per Press Note bearing No. A1-76183/2007 dated 30.07.2016, clarified that “...there is no ban imposed on the Journalists from attending and reporting Court Proceedings...” It is reiterated that there is no ban imposed on media on any ‘fair and accurate’ reporting of judgments and courts proceedings in the High Court of Kerala. The Association can only hope that the journalists reporting High Court matter would adopt high standard in their professional pursuits and adopt ‘true, correct and responsible’ reporting.

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Foot Note

1. This open letter is prepared based on the ‘Factual Report and request for action’ submitted before Hon’ble Mr.Justice Mohan M.Shantanagoudar, Acting Chief Justice, High Court of Kerala on 08.08.2016 by the Kerala High Court Advocates Association.

2. Section 31(3) - No persons in custody shall be paraded or allowed to be photographed and no press conference shall be conducted without permission of State Police Chief for the purpose of publishing the same in the news paper or in any visual media.

3. See A.K.Gopalan v. Noordeen (1969 KLT 676 (SC) = (1969) 2 SCC 734) wherein it is held that ‘publication made after arrest of a person could be contempt if it was prejudicial to the suspect or accused’. See also Manu Sharma v. State (NCT of Delhi) ((2010) 6 SCC 1), paragraphs 295 to 302 and S.Kushboo v. Kaniammal (2010 (2) KLT SN 39 (C.No.46) SC = (2010) 5 SCC 600), paragraph 53.

4. As per letter submitted by Kerala High Court Advocates Association before the Advocate General on 15.07.2016

5. The corrected report is available at http://www.deccanchronicle.com/nation/in-other-news/200716/kerala-high-court-no-to-stav-proceedings-in-sexual-abuse-case.htmn. The last paragraph of report is relevant in the present context.

6. Said report is accessible at (http://english.mathrubhumi.com/news/india/sc-directive-to-open-media-room-at-kerala-high-court-english-news-1.1222058).

7. Copy of the video is available with the Association. Copies of CD made out of this video were already given to all District Bar Associations in the State of Kerala.

8. Press Council of India NORMS OF JOURNALISTIC CONDUCT (2010) available at http://presscouncil.nic.in/OldWebsite/NORMS-2010.pdf

9. Ibid.

10. Joseph v. S.I. of Police (2005 (2) KLT 269), paragraph 190 -195. Though the this judgment was set aside by the Hon’ble Supreme Court, on facts, in State of Kerala v. Joseph 2013 (1) KLT 546(SC), the quoted observations are relevant.

11. Arnold v. King Emperor (AIR 1914 PC 116).

12. M.S.M Sharma v. Krishna Sinha (AIR 1959 SC 395). See also, M.Nagaraj v. Union of India (2006) 8 SCC 212, paragraph 20.

Tenancy Issues in Implementation of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

(By Dr. P. Syamjith, Chief Manager (Law), State Bank of India)

“No organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions”

                               ABRAHAM LINCOLN, First Inaugural Address, Mar.4, 1861

The SARFAESI Act was introduced as a comprehensive Act to resolve the issues in resolution of the debts of the Banks and to enable the Banks to recover their dues from the default borrowers without approaching the court of law. However, over the period of time, the tenancy related issues have gained momentum and put formidable challenges in successful implementation of the provisions of the Act. In this context, the pertinent question need to be answered is whether the provisions of the SARFAESI Act shall be subject to the State tenancy laws or not ?

The rights of the tenants of the property which has been taken over possession by the Authorised Officer of the Bank have come up for consideration before the Hon’ble High Court of Madras in Indian Bank v. Nippon Enterprises and Ors.[1].

In the aforesaid case, aggrieved by the action of the Authorised Officer, the tenant of the mortgaged property filed W.P.No.17337 of 2009 seeking for an order prohibiting the bank from taking possession of the property. After hearing both the parties, the Hon’ble High Court held that the bank cannot take physical possession from the tenant protected under the TN Rent Control Act by invoking the provisions of Sections 13(4) and 14 of the SARFAESI Act, in the event the tenant is in bona fide occupation. Hence, in case of bona fide tenant, the Bank can take possession of the property only after completing the proceedings under the Rent Control Act.

In another case, the Madras High Court examined the extent of bar on jurisdiction of civil courts and held[2] that S.34 of SARFAESI Act does not bar a suit by a tenant seeking injunction that his possession should not be disbursed except by due process of law- what is barred is only injunction against proceedings under the Act.

However, Hon’ble Allahabad High Court has taken a different view in Kailash Pati Asthana v. A.O., S.B.I. & Ors.[3] and held that the right of tenant under local law is overridden by SARFAESI Act. The High Court was of the view that the right of tenant flows from right of landlord and is subject to right of landlord. The remedy available to the petitioner is to approach DRT under S.17 of SARFAESI Act. The similar stand was reiterated by the Hon’ble High Court in another case i.e.,Ratan Kumar & Ors. v. S.B.I. & Ors.[4] and held that the High Court in writ jurisdiction shall not adjudicate claim of the petitioner regarding creation of tenancy rights prior to mortgage. The High Court observed that the ends of justice would be served in giving liberty to file appeal to the borrower under S.17 of the SARFAESI Act.

The Mumbai High Court has given a different dimension to this issue by holding in Union Bank of India v. State of Maharashtra[5] that any dispute raised regarding the secured assets of any kind, cannot be gone into by the District Magistrate while exercising power under Section 14 and the aggrieved person is required to approach the competent forum for redressal of his grievance in respect of the secured assets. It does not clothe the District Magistrate with power to undertake any adjudication in respect of any dispute between the parties regarding the secured assets.

While various High Courts held divergent views on tenancy issues, ultimately, the matter came before the Hon’ble Supreme Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Co.Ltd & Ors.[6]. The Hon’ble Supreme Court settled the following issues in this landmark case:-

1. When action is sought to be taken by the secured creditor under S.13 of SARFAESI Act or by the Chief Metropolitan Magistrate (C.J.M.) or District Magistrate (D.M.) under S.14 of SARFAESI Act, the Court or the authority in Rent Control Act can’t grant injunction to prevent such action by the secured creditor or by the C.M.M. or D.M.

2. If any of the tenants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he doesn’t produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the C.M.M. or D.M. as the case may be will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.

3. The C.M.M. or D.M. will consider the claims of the appellants that they were in possession of the secured asset under a lease made prior to the creation of the mortgage and decide the applications under S.14 in accordance with this judgment and any other law that may be relevant after giving opportunity of hearing to the appellants and the secured creditors.

4. So long as mortgage-deed did not prohibit a mortgagor from making a lease of the mortgaged property and so long as the lease satisfies the requirements of S. 65A(2) of 1882 Act, a lease made by a borrower as a mortgagor would not only be valid but was also binding on the secured creditor as a mortgagee.

5. There was no provision in S.13 of 2002 Act that a lease in respect of a secured asset should stand determined when the secured creditor decides to take the measures mentioned in S.13 of 2002 Act - Without the determination of a valid lease, the possession of lessee was lawful and such lawful possession of a lessee had to be protected by all Courts and Tribunals.

6. If Metropolitan Magistrate or District Magistrate was satisfied that there was a valid lease created before the mortgage or there was a valid lease created after the mortgage in accordance with the requirements of S. 65A of 1882 Act and that the lease was not determined in accordance with the provisions of S. 111 of 1882 Act, he could not pass an order for delivering possession of the secured asset to the secured creditor - But in case he comes to the conclusion that there was in fact no valid lease made either before creation of the mortgage or after creation of the mortgage satisfying the requirements of S.65A of 1882 Act or that even though there was a valid lease, the lease stands determined in accordance with S.111 of 1882 Act, he could pass an order for delivering possession of secured asset to the secured creditor. The decision of Metropolitan Magistrate or District Magistrate could be challenged before the H.C. under Arts. 226 and 227 of Constitution by any aggrieved party and if such a challenge was made, H.C. could examine the decision of Metropolitan Magistrate or District Magistrate, as the case might be, in accordance with the settled principles of law.

7. Even if Debt Recovery Tribunal comes to conclusion that any of the measures referred to in S.13(4) of 2002 Act taken by secured creditor were not in accordance with the provisions of 2002 Act, it could not restore possession of the secured asset to the lessee. Thus, there was no remedy available u/S.17 of 2002 Act to the lessee to protect his lawful possession under a valid lease.

Subsequent to the decision in Harshad Govardhan case, the Hon’ble Supreme Court again revisited the tenancy related issue in Vishal N. Kalsaria v. Bank of India & Ors.[7] The Hon’ble Court clarified that the judgment rendered in the case of Harshad Govardhan Sondagar cannot be understood to have held that the provisions of the SARFAESI Act override the provisions of the Rent Control Act and that the Banks are at liberty to evict the tenants residing in the tenanted premises which have been offered as collateral securities for loans on which default has been done by the debtor/landlord.

However, the Hon’ble Court added that as far as the creation of leasehold rights after the property has been mortgaged to the bank is concerned, the consent of the creditor needs to be taken. The tenancy created after mortgaging the property must necessarily be registered under the provisions of the Registration Act and the Stamp Act. It is a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. A non obstante clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act.

Review of the aforesaid judgments, reveals the fact that various judgments have given a different treatment of tenancy issues vis-a-vis the SARFAESI Act. While the decision in Harshad Govardhan empowered the Chief Metropolitan Magistrate or District Magistrate to adjudicate the tenancy rights over the property taken possession under the provisions of the SARFAESI Act, the decision in Vishal N. Kalsaria emphasized that SARFAESI Act can’t override the Rent Control Act and tenancy issues need to be settled under the respective State Tenancy Act.

In order to settle the contrary judicial views on tenancy rights, the Central Government has now proposed to amend in Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In terms of the proposed amendment, where any person, claims any tenancy or any other right upon the property over which the security interest has been created for the secured debt, the Debts Recovery Tribunal shall have the jurisdiction to examine such claims and pass such orders as it deems appropriate. So the amendments proposed by the Central Government will empower the Debt Recovery Tribunal to adjudicate the issues pertaining to the tenancy rights. The proposed enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016, has been passed by both Houses of Parliament and now the bill is waiting for the assent of the President to become an Act. Hope, once the proposed amendments become law, there will be finality on the tenancy issues, making the way for the successful implementation of the SARFAESI Act.

----------------------------------------------------------------------------------------------------------------

Foot Note

1. Authorised Officer/Assistant General Manager v. Nippon Enterprises South represented by Its Partner Mr.Chetan Acharya and Ors.W.P.Nos.1,2, 23850 and 27432 of 2010 reported in MANU/TN/0484/2011

2. S.B.I. Pallipalayam Branch v. Gopal @ Gopalan & Anr. (2009 (1) CTC 449).

3. Kailash Pati Asthana v. A.O., S.B.I. & Ors. (2012 (1) D.R.T.C.1 (All)).

4. Ratan Kumar & Ors. v. S.B.I. & Ors. (2013 (1) D.R.T.C 761 (All.).

5. Union Bank of India v. State of Maharashtra (AIR 2010 Bom.150).

6. Harshad Govardhan Sondagar v. International Assets Reconstruction Co.Ltd & Ors., Criminal Appeal No.736/14 S.L.P (Crl.) No.1666/12 reported in  2014 (3) KLT 357.

7. Vishal N. Kalsaria v. Bank of India & Ors. (SLP (Crl.) No.8060 of 2015) reported in 2016 (1) KLT 623: AIR 2016 530 (SC).

Admissibility of Electronic Records Under Indian Law - Has the Law Been Explained Properly Yet?

(By S. Abdul Khader Kunju, Asst. Public Prosecutor, Peermade)

The proof of contents of documents under the Indian Evidence Act (the Act, for short) has ever been a controversial subject for adjudication. If it is in the realm of secondary evidence, the intensity of the controversy will be escalated. The advancement of computer systems and its capacity to contain oodles of information, and its vulnerability towards manipulations has led most of the Legislatures round the world to point their eyes of law also to the field of electronic documents, wherein the information is embedded in digital form, which cannot be seen without using required equipment. The law relating to the electronic document governs its retrieval, production and the certification. As far as the law respecting the ‘contents of document’, in general perspective, is concerned, we have exhortative discussions like the one came in Suresh, C.V. v. Tobin & Anr. (2013 (1) KLT 293 = ILR 2013 (1) Ker.30) by the High Court of Kerala. But with respect to the electronic documents and its admissibility, we are short of impressive precedents.

In India, Section 61 of the Act permits to prove the contents of the document either by primary or the by the secondary evidence. Primary evidence is the production of the original document itself (Section 62). The scheme of the Act is the proof of contents of documents by the production of its original, secondary evidence is the exception and that is permissible in certain circumstances (Sections 64 & 65 of the Act). The admissibility of electronic record is governed by Sections 65A and 65B of the Act. Section 65A provides for the proof of electronic records. Section 65B (1) is the provision, which makes the electronic records admissible. Sub-section (1) of Section 65B says:-

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this Section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (underlined for emphasis)

In fact Section 65B is a provision which deems that the prints out of original electronic records to be documents (as within the meaning of Section 64 and the same would neither primary nor secondary) and makes it to be admissible without complying with the rules as to the admissibility of secondary evidence contained in Section 65 and Section 66 of the Act. Thus the computer prints out, CDs, Pen drives etc. become ‘documents’ within the meaning of Section 65B. From this sub-section it is clear that, unless the conditions are satisfied the electronic records cannot become documents. But, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media also possess the qualification of document as required under Section 3 of the Act (interpretation clause) even without the aid of the deeming clause contained in Section 65B (1). When the electronic records are already within the purview of document, then why Section 65B has to deem to consider such outputs to be documents. This aspect is ambiguous. Again it is puzzling when it comes to Section 59 of the Act, which says that, through oral evidence any fact may be proved except those of the contents of documents or electronic records. Here also electronic records are separately dealt with. Why Section 59 makes a division if electronic records are documents within the meaning of Section 3 or Section 65B (1)?

However, take it as granted that, unless the conditions of Section 65B (2) are satisfied the electronic records cannot become documents. Those conditions are:-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities

.

And, if the information and the computer in question are of such a nature as mentioned in Section 65B(2) of the Act, to make the deemed document (computer output) admissible, it shall be certified by the person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) with the specifications mentioned in Section 65B (4), which is as hereunder:-

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

The legal position being as above, the Supreme Court of India, in State (N.C.T. of Delhi) v. Navjot Sandhu alias Afsan Guru ((2005) 11 SCC 600) has held that :-

“Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65.”

Thereafter, several High Courts and lower courts (with few exceptions like A.M. Perumal v. Star Tours and Travels (India) Ltd. and Anr. (2010 (3) KLT SN 15 (C.No.18 = 2010 Cri LJ 3732) by the High Court of Kerala, wherein no reference was made to Afsan Guru) had been following the same till, (after nine years) the Supreme Court has overruled the above proposition in Anvar P.V. v. P.K. Basheer (2014 (4) KLT 104 (SC) = AIR 2015 SC 180), in which it was held as:-

“...the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible...”

Later, the Supreme Court in Tomaso Bruno v. State of U.P. (2015 (1) KLT SN 84 (C.No.104) SC = 2015(1) SCALE 498) reiterated the scope of Section 65B.

Even though, 16 years have been elapsed since the enactment of Section 65B of the Act (Ins. by Act 21 of 2000, Sec.92 and Sch.II (w.e.f. 17.10.2000), the scope of this Section has not been explained by any court succinctly so far, it seems. In Afsan Guru, the ambit of law was not discussed. In A.M. Perumal, the High Court of Kerala had maintained that certificate under Section 65B was essential to an electronic document (held correctly, but during the existence of the law declared in Afsan Guru to the contrary, and without adverting to that). In Anvar the law was applied without much discussion. The Court came to the decision that the certificate was mandatory for the admissibility of those CDs without coming to a conclusion as to whether the CDs (said to be electronic records) were electronic records within the meaning of Section 65B of the Act. The electronic records involved in Anvar’s case were some Video CDs containing the election propaganda announcements, interviews, and public meetings alleged to have been made by the respondent’s side, which were originally recorded in mobile phones and movie cameras, and the same were transferred to computers, and by using the said computers as devises for data transferring, the CDs were produced. The CDs so produced were marked before the court as evidence, without being produced the originals. The Supreme Court judgment in Anvar P.V is silent about the fact concerning the exact nature of those electronic records, but the judgment of the High Court of Kerala gives the details of the contents as well as the evolvement of those CDs (http://indiankanoon.org/doc/158713057). As endorsed by the Court from the argument of the counsel for the petitioner, it is clear that “the evidence is that the witnesses recorded the speeches, songs and announcements either in their cell phones or in the case of PW38 in a digital camera and what is produced is only the CDs and when the primary evidence is the original recorded in camera, cell phone or the respective computers in which they were transferred and then made the CDs and as the primary evidence is not produced” (Para 67 of the judgment of the High Court).

While overruling the law declared in Afsan Guru, the Supreme Court said:

“The Appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.”

The above CDs are Electronic Records within the meaning of Section 2(1)(t) of the Information Technology Act (the IT Act), as amended in 2008, which “means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”, but still the question remains to be answered is whether those are documents within the meaning of Section 65B of the Act.

The reasons, for thinking that the law was not properly explained, emerge mainly from the doubt that whether the CDs produced by a computer by transferring the data contained in a mobile phone or digital camera are to be certified, where the computer in question is not used regularly for the purpose of feeding or processing the data? If so, is every electronic data produced by the computer to be certified? From Section 65B(2) of the Act it is clear that all the conditions necessarily are to be available. Presence of some of the conditions is not enough. The conditions are of the nature that the computer in question should have been periodically used for storing or processing the information for the purpose of any activities regularly carried by the person having the lawful control over that computer. Here regular processing of the information assumes importance. As the processing is carried out regularly, the instrument (hard discs, server etc.), in which the original document resides, would contain gigantic volume of data. In such situation the production of the original will not be practical. Here is the scope of producing the copy as secondary evidence, but with strict authenticity. Form this, what is clear is that the information, which is processed occasionally or for specific purpose is not covered in Section 65B of the Act. The word ‘derived’ used for the data/information produced in the output, in Section 65B (2) gives some more clarity, which hints that the original is otherwise rests in the computer only, since regularly fed into it. The word meaning of ‘derive’ is ‘to obtain or receive from a source, which denotes that, something is to take from the source where it resides. For instance the call data of the details of the phone calls, legally intercepted phone calls, accounts regularly fed into/stored in computer etc. It may be possible to view the original on the computer monitor; but the production thereof might be difficult in some situations. eg. If the original of a bank record is residing in a server situated beyond India, the production thereof will be impossible. The purpose behind the Section 65B of the Act is to authorize the admissibility of such electronic records without being produced the original. Unless the way in which the authorizing certificate is issued by the person having the legal custody of the computer, the authenticity will not be proper. This is a statutory certificate. The documents merely copied from one medium to another medium and produced before the court as secondary evidence could be authorized in terms of general law (Section 65), which ensures the accuracy of the data/document as if it were done in the mechanical process. In this case no statutory certificate is prescribed by law. In Anvar’s case the difficulty was, though the originals might have been produced, the same were not produced. Here, the computer was used only for the purpose of making the CDs, to contain the information recorded in and transferred from either mobile phones or digital cameras. The original information was initially put in to either the cameras or phones during the recording time, and those devises may also be considered as computer, if its function is according to Section 2(1)(i) of Information Technology Act. If that be the case, the certificate of S.65B of the Act also should have been necessary for the outputs produced from the cameras and phones. This aspect also was not discussed in Anvar as to whether the digital cameras and mobile phones could be treated as computers. In Anvar’s case, even though the Supreme Court has mentioned that the electronic record is to be supported by the certificate under Section 65B of the Act which adduced as secondary evidence), to which the conditions laid down in sub-section (2) thereof are applied, the overall reading of the decision is making an impression that all the electronic documents are to be supported by such certificate when produced as secondary evidence, whether or not the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer. In Anvar’s case, it is not discussed, whether the computer in question was regularly used to store or process information or had used only for the purpose of copying the contents of the information captured in mobile phones and digital cameras. What is clear from the fact is that the computer in question was used only as a devise to transfer data from one medium to another. So the question is, was it necessary to have a certificate for the CDs produced in Anvar’s case for admitting those as secondary evidence?

In Tomaso Bruno the Supreme Court said the following:-

“The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act.” (emphasis added)

Tomaso Brunohas made the understanding of the law little more difficult. In this case the Court says that the secondary evidence can also be led under Section 65 of the Evidence Act. Now, one more question arises. Can the evidence on electronic records be led other than by way of Section 65B. The method of Section 65B itself is analogous to secondary evidence and already the Apex Court in Anvar held that this Section is a complete Code and any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. This makes clear that the secondary evidence regarding the documents purporting to be an electronic document cannot be given. In other words, Section 65 is not applicable in the matter of electronic records. Secondary evidence of documents will become necessary in some circumstances, which are covered under Section 65 (a) to (g). Those situations may arise in the matter of electronic records also. There is no answer for this situation either in reported decisions or in the enacted law. Hence, both the enacted law and the precedential law on this subject are incapable of imparting exact knowledge about the subject.

Of course, the law declared in Afsan Guru was liable to be overruled being opposed to Section 65B of the Act (a special provision prevailing over general law), but the doubts are, should it have been done in Anvar’s case wherein secondary evidence could have been possible, and does Anvar or Tomaso Bruno give proper position of law relating to the electronic records. Or, should we have to still look forward for an inspiring discussion of law on this subject by the Apex Court, to come later.

About Arrest and Medical Examination of a Suspect for Drunkenness

(Joseph Thattacherry, B.Sc, B.L, Advocate, Changanacherry)

Liquor shops selling different varieties of beverages are sprouting like mushrooms throughout Kerala. Spurious arrack is available even in pen shops at very low price. The number of persons frequenting liquor shops are increasing by leaps and bounds. No wonder cases u/s. 51 (a) of the Kerala Police Act are swelling in courts. So a discussion on the following point seems relevant and appropriate.

1. Can police arrest without warrant a person suspected of having committed an offence u/s 51(a) of the KP. Act?

2. Has the medical officer any authority to examine a person for inebriety if he is not brought under arrest, and without a request of a police officer not below the rank of a Sub-Inspector.

3. Can the court enter a finding that a person is under the influence of drink without blood and urine test and if so under what circumstance?

Under Art.20(3) of the constitution no person accused of an offence shall be, compelled to give evidence against himself. To prick a person with a needle in order to extract blood from him without his consent, is an offence under the Penal Code. In order to overcome these difficulties, by the Amendment Act 2 of 1974 of Cr. P.C, S.53 was newly introduced. That section being an exception to the general law, it is well settled that it has to be strictly complied with. For better appreciation, S.53(1) of Cr. P.C. is extracted below:

S.53(1). When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as Is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

It is clear, that unless a suspected person is arrested and produced before a medical practitioner, who satisfies the required qualification prescribed in the explanation to S.53(2), with a requisition from a police officer not below the rank of a sub-inspector, the medical practitioner has no authority to examine the person of the suspect. An examination if conducted without satisfying the above 2 pre-conditions viz. arrest and requisition from proper person, the examination if conducted is illegal and the certificate if any issued is ab initio void and hence inadmissible in evidence.

An offence under 8.51(a) of the K.P. Act is punishable only with imprisonment which may extend to one month and with fine which may extend to Rs.200/-. It comes under the classification of offence against other laws, under schedule II to Cr. P.C. As punishment for the above offence is imprisonment for less than 3 years only, it is not a cognizable offence as per that schedule and hence a police officer has no authority to arrest without warrant a person suspected of having committed an offence u/s.51(a). Any police officer is empowered to arrest without a warrant any person accused of an offence u/s.48 of the K.P. Act even though the punishment prescribed therein is only imprisonment not exceeding 3 months and fine. As such an authority to arrest is conspicuously absent and consciously omitted in S.51(a),the only irresistible conclusion is that a police officer has no authority to arrest without a warrant a person suspected of the commission of such an offence. Support for the above view can be had from a recent decision of the Madras High Court reported in 1991 Crl. L.J. 2416. It was a rape case. Potency test of the accused was found necessary for investigation. The accused was, under S.438 Cr. P.C. released on bail in the event of arrest. So it was contended on behalf of the accused that S.53 contemplates subjecting a person arrested alone for medical examination. The court accepted the contention that only a person arrested could be examined u/s 53 Cr. P.C, but held that a person released on bail is still considered to be detained in the constructive custody of the court through his sureties. It also held that he is notionally in the custody of the court and hence continues to be person arrested as a charge of commission of an offence and hence he could be examined. However it is clear from the above decision that in order to invoke powers under S.53 Cr. P.C. the accused should be a person arrested whether still under custody or released on bail and under the constructive custody of the court. Offence punishable u/s.51(a) of the K.P. Act being only a non-cognizable offence, the police could not arrest the suspect without warrant. So he shall not be subjected to medical examination, unless he is arrested under a warrant issued by a competent court.

Section 54 Cr. P.C which is newly introduced, gives a valuable right to the accused to request the magistrate to direct the examination of the body of the accused by a medical practitioner if it will afford evidence which will disprove the commission by him of any offence or which will establish the commission by other person of any offence against his body. That is a statutory right intentionally given to the suspected person for his benefit. But in order to avail of the benefit under the sections the suspect should be a person arrested, because the section begins with the words "when a person who is arrested whether on charge or otherwise". So a person accused of an offence u/s.51(a) of the K.P. Act, because he is not arrested and produced before Magistrate, he loses his right to challenge the correctness of the drunkenness certificate issued by a medical practitioner, as directed by the Magistrate, at his request. Similar right to prove his innocence by challenging the result of examination by the public analyst is given to the accused in a food adulteration case, by sending the sample of food for analysis to the Central Food Laboratory. So Section 54 Cr. P.C. a valuable right intended for the benefit of the accused will become otiose so long as he is not arrested. Hence the necessity for arrest. Thus it is abundantly clear that unless a person is arrested in execution of a warrant of arrest, S.53 and 54 Cr. P.C. have no application in a case u/s 51(a) of K.P. Act and the medical practitioner has no authority to conduct an examination of the person.

The second pre-condition is usually ignored in the sense that in vast majority of cases the request for examination is made by head constables. The legislature in its window, thought it dangerous or unwise or unhealthy to leave it to him and fancy of a police officer below the rank of a Sub-Inspector of Police to make the request. It is the subjective satisfaction of a superior police officer of the existence of a prima facie case of inebriety against the suspect, that the legislature wants and nothing short of that. It is to protect and safeguard the interest of citizens from unnecessary harassment and prosecution that, the above pre-condition was introduced and it has to be strictly complied with. So unless the request comes from an officer not below the rank of a Sub-Inspector, the medical practitioner gets no jurisdiction to examine a suspected person brought before him.

The next question for consideration is whether a blood and urine test is necessary to prove that, one is under the influence of drink. A ruling of the Division Bench reported in 1991 (2) KLT 570 deals with the point. It only says that neither the section nor the decision of the Supreme Court yields the inference that a charge of drunkenness cannot be found unless blood or urine is examined and that the considerations indicated by the statute are relevant considerations in determining the issue. It does not say that those considerations are conclusive proof of the fact in issue. It only says that courts shall not insist upon blood or urine test if the charge of drunkenness is proved otherwise by clinical examination as specified in the rule under the K.P. Act. That rule prescribes a particular form for the "certificate of drunkenness" after conducting all the examinations enumerated therein. If the results of all those examinations turn positive the court may reach a conclusive that drunkenness is proved. Invariably in all the drunkenness certificates issued by medical practitioners some columns may be left blank, some findings normal some partially impaired or lost and some positive. To the last query, whether urine and blood taken and preserved for chemical examination, their answer is not taken either because of non-co-operation of the accused or because of lack of facilities". That exactly is one of the reasons which persuaded their Lordships in the above case to hold that urine or blood test is not essential to find a charge of drunkenness, because in para.6 of the judgment it was observed, "If the state of law is such that a conviction cannot be entered except on the basis of the tests indicated by the learned judge then any accused who refuses to subject himself to the tests can evade the process of law. That is what the accused in this case did". It appears that the last clause in S.53 Cr. P.C. viz. "and to use such force as is reasonably necessary for that purpose" was not brought to the notice of their Lordships. So long as the statute empowers the medical practitioner to seek the assistance of any number of persons over and above the police officers who escort the accused to use necessary force it is not difficult to take sample of urine or blood. Hence that reasoning appears to be not sound.

Coming back to the clinical observations only as proof of drunkenness the apex court in 1972 SCC (Cvl) 178 observed "unsteady gait is often caused by nervousness and smell by itself is not conclusive of drunkenness". The rule under the K.P. Act is a true copy of the scheme of medical examination contained in "The Drinking Driver", a revised report of the Special Committee of British Medical Association. In para.2 of the report it is stated "The doctor should examine the suspected person thoroughly and keep full notes. He should also exclude any pathological condition which may stimulate or exaggerate alcoholic intoxication as, apart from odour of breath there is no single symptom or sign due to consumption of alcohol which may not also be found in some pathological states". The chief pathological conditions which stimulate alcoholic intoxication are enumerated therein. Here no medical officer produces before court his notes prepared at the time of examination of the suspected person along with the certificate. Even the handwriting (N.M.W) is not produced. When in the certificate several faculties are shown as partially impaired and partially lost and there is no evidence on record as to the degree of impairment or percentage of loss of such faculties, how could the court enter a finding that the examinee was under the influence of drink. Is the subjective satisfaction of the doctor alone sufficient for conviction u/s.51(a)? Should not the judicial officer be satisfied and should he not get sufficient materials for the exercise of his judicial discretion so as to come to a conclusion of his own. So unless it is conclusively proved to the satisfaction of the court that a person was under the influence of drink it is not safe to convict a person and put him in prison.

When urine or blood test at the laboratory is a sure and conclusive proof for intoxication and the degree of intoxication, one fails to understand why the Division Bench does not insist upon it. N.J. Modi in his treatise on Medical Jurisprudence and Toxicology, twentieth edition says "Evens and Jones had shown that the concentration of alcohol in urine is so precise that it gives an accurate indication of the minimum quantity of alcohol consumed." Modi further says that for better accuracy two samples of urine are taken at about 15 minutes interval to avoid possible error. Examination of urine for determination of alcohol is more advantageous than that of blood in as much as the alcohol concentration in urine is more constant than in the blood. Besides, it is much easier to obtain a sample of urine than that of blood for examination. Again Modi says that absence of alcohol in urine definitely rules not drunkenness and the amount of alcohol found gives a definite idea of the amount ingested by the person. If the urine is collected in two or three clean and sterile bottles with a preservative and opportunity given to the suspected person to get it examined at some other better equipped laboratory then the one where in it was tested u/s.54 Cr. P.C. justice could be meted out and justice will seem to be done. Under the Bombay Prohibition Act 1949 and Bombay Prohibition Medical Examination Blood Test Rules 1959 made under the above Act it is necessary that the accused should be medically examined and his blood be collected for being tested for determining the percentage of alcohol therein. So with utmost respect to their Lordships it is submitted that the ruling reported in 1991 (2) KLT 570 needs reconsideration. For a conviction u/s.51(a) of the K.P. Act sentence of imprisonment without proof beyond doubt of drunkenness will be too hard.

The menace caused to the society owing to disorderly behaviour under the influence of drink is insignificant when compared to the menace of increasing road accidents caused by drunken drivers. In all western countries if a driver of vehicle is suspected of having consumed alcohol in excess of the prescribed limit the police conduct breath test by blowing balloon and charge them if found guilty. Here also driving or attempting to drive a motor vehicle under the influence of drink or drug is made an offence. But since there is no facility for breath test, or some other device for quick test such drivers go up and down the roads fearlessly under the very nose of police officers. Road accidents are alarmingly on the increase and in most cases the accidents are due to drunken driving. So it is high time the government should take urgent steps to remedy the evil by roadside examination of drivers for drunkenness and further subject those found positive to clinical and urine or blood test, and by charging those found guilty.

A Critical Note on S.5 of the Kerala Buildings (Lease & Rent Control) Act, 1965

(E.K. Ramakrishnan, Advocate, Payyannur)

Section 5 of the Kerala Buildings (Lease & Rent Control) Act 1965 empowers the Rent Control Court to fix the fair rent of the tenanted building. It is vividly stated in the latter portion of S.5(i) that "the fixation of the fair rent shall be after holding such enquiry as the rent control court thinks fit". But at the same time S.5(2) confines the role of the rent controller by saying that "in fixing the fair rent, the court shall take into consideration the property or house tax register of the local authority within whose area the building is situated". Since clear guidelines are laid down in S.5(2), what is the scope of the enquiry contemplated in S.5(i)?

True, the Kerala Buildings (Lease & Rent Control) Act, 1965 is a legislation intended for the benefit of the tenants i.e. regulation of allotment of houses, fixation of fair rent, prevention of unreasonable eviction of tenants etc. So while exercising the powers under this Act, the paramount consideration should be the interests of the tenants, based on the principle of social justice.

Fair rent is not defined in the Act. But S.5(2) and (3) are the guidelines to determine the fair rent of a building. Is it fair to determine the fair rent wholly relying on the property tax or house tax fixed by the local authority?

Being a judicial body, the finding/order of the rent control court should be based on merits, by relying on the cogent and concrete evidence available before it. But while fixing the fair rent of a building, the rent control court is prevented from applying its judicial conscience due to the restrictions imposed by S.5(2) of the Act. In short it has been constrained to do some arithmetical calculations. Is it wrong to consider the investment made by the building owner for constructing the building for fixing fair rent? No doubt, the location of the building, the condition of the building, the access to it, the amenities provided in it etc. are very important for fixing the rent of a building. In Arunachalam Pillai v. Natarajan (1968 KLJ 614), the importance of the above factors are dealt with.

Similarly in Devassy v. Joseph (1969 KLT 541) also, his lordship Justice V.R. Krishna Iyer (as he then was) held that, "among other relevant facts the court may have due regard to the cost of construction and maintenance, the taxes and rates payable by the landlord and so on" for fixing fair rent. But in the same ruling it was held that the fair rent should not exceed by more than 15% the monthly rental forming the basis of house tax computation. The concept behind this ruling was that rents are liable to be enhanced not due to the scarcity of rented buildings, but because of natural causes affecting rents. But the 15% enhancement suggested in the section is not always sufficient to cover" those natural causes affecting rents".

Rule 4 of the Kerala Panchayat (Building Tax) Rules, 1963 deals with the determination of annual rental value of a building and R.5 of the above rules empowers the executive authority to summon the owner or occupier of the building to furnish returns of the rent payable for the building, the cost of erecting the building and measurement of the land etc. in order to assess the building tax. Similar provisions (S.100 and corresponding rules) are incorporated in the Kerala Municipalities Act, 1960 also. Unfortunately our local authorities are based on imaginary figures somehow estimated by technically unqualified staffs. Even if the provisions are strictly complied with, in order to evade excess tax burden, some fabricated returns will be submitted by the building owners. The ultimate result would be the preparation of a wrong building tax register. By virtue of S.5 of the Kerala Buildings (L & R) Act, the rent control court has been constrained to rely wholly on this illogic and fallacious building tax registers being maintained by local authorities, without applying its independent judicial mind. So the "failure of the system" affects the judiciary also.

The rent of a building as well as the judicial proceeding for fixation of rent should be fair. In a pending petition under S.5, the parties to the petition can easily speculate the maximum extent of rent to be fixed by the rent control court as fair rent. This is against the very spirit of judicial system.

Being a judicial proceeding, the fixation of fair rent should be based on the merits of each case. The investment made for constructing the building should be a vital factor for determining fair rent. This can be assessed by invoking the powers under Order 26 Rule 9 of CPC.

The precious time of judiciary is not intended for doing some arithmetical calculations based on the illogic building tax register. So it is better either to relieve the rent control court from the duty of fixing rent or to suitably amend S.5, thereby empowering the rent control court to fix the fair rent in a reasonable and effective manner.