Power of Attorney -- Some Information and Some Decisions Which May Be Useful to the Needy

 (By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam) 

William Shakespeare (1564-1616) had written in Much Ado about Nothing (1598.9.11.1) “Let every eye negotiate for itself and trust no agent.” This had a meaning then. But this verse has changed a lot, in present times. In the present complex mercantile world, due to practical considerations and also out of dire necessity the execution of a power of attorney deed has become an absolute and unavoidable necessity. The deed may be for litigation in courts, administration and management of properties, or business, sale or negotiation regarding property, for Governmental purposes and many other purposes. It is this process of getting things done through another person has given birth to the concept of agency. The legal consequence of agency is exercise of authority by one on behalf of another.

Some legal principles laid down by various courts on the subject of Power of Attorney, are hereunder mentioned, with the hope that it may useful to some lawyers, especially the beginners.

1. A deed of power of attorney is not compulsorily registerable unless it creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property of value of `100/- and above (Registration Act S.17(b). Except for the purpose of presentation and registration of documents as per S.32 of Registration Act.

AIR 2004 P. & H. 216 at 219 (Kamalesh v. Jasbir).

AIR 1979 SC 553 at 559 (Syed Abdul Khader v. Rami Reddy).

2. A Court is not bound to presume genuineness of an unregistered power of attorney and when it’s genuineness is questioned it has got to be separately proved.

AIR 1916 Cal.979 (Maheshchandra Addy v. Panchu Mudali) (1983 KLT 1013) (Damodaran Suran v. Kesavan Meenakshy)

3. But, if executed before an authority called by a Notary appointed under the Notaries Act, 1952 (by one of the persons mentioned in S.85 of Evidence Act) then,. S.85 of Evidence Act raises a presumption of genuineness in favour of such power of attorney. AIR 1984 Del.363 (Electric Construction Equipment Co. v. Juggit Electric Works, Sirsa)

2000 AIHC 2465 at 2467 (Raj.H.C.) (Sukhdev v. Bhanwarlal)

Therefore, either the power of attorney should be authenticated or registered to make it valid AIR 2005 Cal.118 (C.Renuprova Paul v. Sanyasi Charan Ghosh)

4. Court can presume that all necessary requirements for proper execution of Power of Attorney have been fulfilled.

AIR 1939 Bom.347 (Performing Right Society Ltd. v. India Morning Post Restaurant).

AIR 1976 Del. 263 (Abdul Jabbar v. 2nd Addl. District Judge).

AIR 1980 All.369 (Bombay Export - Import v. Eastern Association & Co.).

AIR 1984 Del.20.

5. There can be an agency by necessity.

1998 (2) KLT 420 (Chamnarayanan v. V.R.Krishna Iyer).

6. When power of attorney deed is executed, agency is created.

AIR 1979 SC 553 (Syed Abdul Khader v. Rami Reddy).

7. The Kerala High Court had occasion to consider the scope of Section 85 in Sainaba v. Abdurahiman Koya (1982 KLT SN 31 (C.No.48)). According to the Court, the definition of “Consular Officer” in the Citizens (Registration at Indian Consulates) Rules, 1956 makes no differentiation of Secretaries and as the plaintiff has not established that the ‘Second Secretary’ is no “Secretary’, the Court was inclined to hold that the term ‘Secretary’ in the definition includes every Secretary irrespective of his gradation or ranking. The power of attorney attested by the Second Secretary was held valid by the High Court. Notary includes notary of foreign State also.

8. Stamp duty of power of attorney is under Art.48(e) of Central Stamp Act (AIR 1968 Mad 50). (Board of Revenue Madras v. Annamalai & Co.)

The concerned Article under Kerala Stamp Act is Article 44(d).

9. Article 44 of Kerala Stamp Act 1959 has been amended by Finance Act 29/2013 (See page 29 of 2013 (4) KLT Kerala Statutes). It says that if power of attorney is in favour of named relatives `300 is to be paid as stamp duty and if it is in favour of others market value of the property to be shown for stamp duty for a power of attorney deed.

10. Even after execution of power of attorney deed, the principal can act independently and does not have to take consent of power of attorney holder.

AIR 2011 All.114 (para 8 and 9) (Chander Singh v. Mirza Anis Ahmed).

AIR 2010 SC 3132.

2013 (7) MLJ 688.

2011 (2) KLT 366 (Deb Ratan Biswas v. Most.Anand Moyi Devi) decided on 15.4.2011.

Contra :- As long as power of attorney is valid, and subsisting sale by principal is invalid.

2015 (5) MLJ 313 (M.Bama v. Dr.R.Nirupama).

However in view of the Supreme Court decision, it is only that decision which will prevail.

11. Power of attorney is necessary only in the absence of Principal. If principal is present, the agent can represent the principal without a power of attorney deed. 2000 (3) KLT 76 (Thambi v. State of Kerala) - Abkari Auction case.

12. Power of attorney holder cannot depose on behalf of the Principal about facts which are within the knowledge of principal but can depose regarding facts which are personally known to him.

13. Mere mention that power of attorney deed is irrevocable and mere mention in the title or in the body of the document that it is irrevocable does not make it irrevocable. 2003 (4) Maharashtra Journal 451 (Bares v. Municipal Council of Gr. Mumbai).

AIR 1985 A.P.30 para 2 (M.John Kotiah v. A.Divakar).

AIR 1994 Karnt.133 (para 13) (Corporation Bank Bangalore v. Lalitha H. Halla).

14. Registered power of attorney deed can be cancelled only by another registered document.

AIR 2011 All.114 (para 8, 9) follows.

AIR 2010 SC 2132 = (2010) 5 SCC 904. (Chander Singh v. Mirza Anis Ahmed).

15. A person enrolled as an Advocate cannot be permitted to appear in person as a power of attorney holder, in the absence of a vakkalath.

Brenda Barbera Francis rep. by POA G. Anand v. Adrian Mirana(2016 (3) KLT 214).

16. Registrar has power under Ss.32-33 of Registration Act to ensure that there is valid authorization in the power deed to execute and register the document presented by Power Holder.

AIR 2016 Mad.123 (paras 24 to 31) (Asset Reconstruction Co. (India) Ltd. v. I.G. Registration, Chennai).

17. Power of attorney deposes only on the basis of documents of 30 years old and not personal. His evidence can be accepted.

AIR 2016 Kar.117 (Tulsi Bai v. Puspa Bai) Relying on AIR 2005 SC 439.

19. Power holder purchasing property in his own name. Principal cannot repudicate it merely because it is for the benefit of agent.

2009 (7) MLJ 899 (paras 17 and 18) (M.Abdul Muthalip v. M.Samsudeen).

AIR 1938 Cal.373 (Narendranath v. Bimla Sundari).

But the Principal can set aside the same by paying court fees under S.40 of Court Fees Act.

Even as agent can purchase the property when he pays price to the principal on his own responsibility.

AIR 1967 SC 181 (Gorden Woodrofee & Co. v. M.A. Majjid & Co.).

19. When a power holder executed a perpetual lease for 99 years in favour of his wife for no consideration taking advantage of the absence of the principal, it is a clear case of fraud. Act of Power of Attorney does not bind the Principal.

2008 AIHC 1622 Karnt.H.C. (Vasant v. Jaya Senan) AIR 1996 SC 2754 (Bhatori v. Rampiari) 2006 AIHC 347 (P. & H.) (Harmesh Kumar v. Mayabai).

(Detailed case law cited)

20. Joint Power of Attorney - A power of attorney deed may be executed jointly by any member of persons as the principals. It may also be executed in favour of one person or a number of persons as the power of attorney or power of attorneys.

2000 AIHC 2461 (2467) (Raj.H.C.) Sukhdev v. Bhanwarilal Law of Contra to 17th Edn.Vol.page 629 also.

But it will have to be make it clear whether they can act jointly or severally and in the absence of an express provision authorizing them to act severally they will be entitled to act only jointly.

(1849) 18 LJ DB 229 (Brown v. Andley).

1890 (59) J Ch. 618. In Liverpoor Household Stores.

The above are some of the rulings of various courts in India and England. The subject is exhaustive.

The writer would be happy if this article (if read by young lawyers) if it is of some use at sometimes.

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.

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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).

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.

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.

Christians and the Family Courts

(Sebastian Champappilly, Advocate, Ernakulam)

The Law Commission of India, in its 59th Report (at Page 13) suggested that the States should think of establishing Family Courts which will give more emphasis on the settlement of matrimonial disputes by way of conciliation rather than the normal mode of trial. It may be pertinent to note at this juncture that the Law Commission was not mainly concerned with the proposal of institution of Family Courts. It was mainly examining the need for amendments required under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Obviously the 59th Report was not concerned with the Indian Divorce Act or the marriage and divorce laws applicable to Muslims and Parsis. Nor, in the circumstances can one consider this Report, a comprehensive study about the need, relevance, nature etc. of Family Courts in India. But the Government of India thought it necessary to bring in a legislation for the establishment of Family Courts, on the representations made by various Women's Organisations and individuals and the Parliament enacted the Family Courts Act, 1984. It was brought into force in Kerala from 21-10-1989 and Family Courts at Thiruvananthapuram, (for Thiruvananthapuram and Kollam Districts), Ernakulam (for Ernakulam and Thrissur Districts) and Kozhikode (for Kozhikode and Wayanad Districts) have been established on 6-6-1992.

The Family Court exercises all the jurisdiction exercisable by any District Court or any subordinate court under any law for the time being in force in respect of suits and proceedings in the nature of suits for declaration of nullity of marriages, restitution of conjugal rights, judicial separation or dissolution of marriage and such other reliefs as provided under S.7 of the Act. It also exercises powers under Chapter IX of the Code of Criminal Procedure. Therefore it can be said that the Family Court is a Civil Court of District Courts' stature when exercising jurisdiction under S.7(1) of the Act and a Criminal Court of Judicial 1st Class Magistrate's Stature when exercising jurisdiction under Chap. IX of Cr. P.C. (Munna Lal v. State of U.P. AIR 1991 All. 189).

The Act was indeed enacted with the object of promoting conciliation in, and securing speedy settlement of disputes, relating to marriage and family affairs and matters connected therewith. This Act supposedly covers the whole area of matrimonial jurisdiction. S.20 of the Act starts with a non-obstante clause, whereby provisions of the Act are given over-riding effect on all other laws for the time being in force.

But it appears that these provisions may not have any impact on the provisions contained under the Indian Divorce Act, which regulate divorce among Christians. The Family Courts are invested with only the powers of the District Courts and Courts subordinate (hereto as is clear from S.7. Therefore, it does not affect the jurisdiction of the High Courts in matters of matrimonial jurisdiction. And under the Indian Divorce Act, it is the District Courts and the High Court which have concurrent jurisdiction to deal with questions of marriage and divorce among Christians. In other words, the High Court's jurisdiction to deal with matrimonial causes of Christians is not at all affected by the provisions of the Family Courts Act. The Bombay High Court's decision in Kamal V.M. Allaudin v. Raja Shaikh (AIR 1990 Bom. 299) wherein the court which also exercises Letters Patent jurisdiction, expressed no final opinion as regards the High Court's jurisdiction in matters matrimonial to which the Indian Divorce Act and the Parsi Marriage and Divorce Act are applicable. The Court has however hastened to add that, such matter will continue to be cognisable by the High Court until jurisdiction in that respect is conferred by express statutory provision upon the Family Court. Further the Act does not contemplate transfer of proceedings instituted or entertained by the High Court itself to the Family Court. It will mean that as far as Christians are concerned a different court in the shape of Original side of the High Court will be there within the limits of its territorial jurisdiction. The Bombay High Court is therefore correct when it observes that it may seemingly appear to be incongruent after the advent of the Constitution that Communities of different religious persuasions should be required to approach different forums for obtaining similar matrimonial reliefs and that position is the result of existing laws which have not so far been consolidated. As the law stands now, the invoking of the jurisdiction either of the High Court or the District Court (Family Court) is left to the petitioner though. Since the provisions of the Family Courts Act do not take away the jurisdiction of the High Courts, in matters matrimonial, the persons professing the Christian religion are left free to choose the forum either the High Court or the Family Court for rederessal of their grievances. If one chooses the High Court, the application of the Family Courts Act could be excluded. The position emerging out of the present situation can be summed up as follows. A petition for divorce under S.10 of the Indian Divorce Act, and petitions under Ss.l8 and 19 for declaration of nullity of marriage and petition under S.23 for judicial separation and petition under S.32 for restitution of conjugal rights etc. can be filed before the High Court, inspite of the Family Courts Act, 1984.

Apart from this, the Family Court is conferred with the jurisdiction and powers of a District Judge alone, confirmation by the High Court of the decrees passed by the District Courts is however mandatory under S.17and 20 of the Indian Divorce Act. Even if a Christian gets a decree of divorce from the present Family Court, he has to seek confirmation from the High Court. Thus, the Christians are being singled out in such matters. This position becomes all the more important when we appreciate another situation. Under the last proviso to S.17 of the Indian Divorce Act, "any person" is at liberty to file a petition before the High Court for transfer of the case from the District Court to the High Court on the ground that any of the parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce. In other words, even in a case where the parties did not elect to go to the High Court, a third party can drag them to go to the High Court, on the ground of collusion and thus defeat the avowed purpose of the Family Courts Act so far as Christians are concerned.

The Family Courts Act presents another question also in the Kerala context. A decree passed by a High Court in its original jurisdiction can be executed by the court of the lowest grade under R.275 of the Civil Rules of Practice. Under S.18(1) of the Family Courts Act, that court is given power only to execute its decrees or orders. S.18(3) makes it clear that the power of the ordinary Civil Court for execution of decrees is not excluded by the Act. Therefore, as far as execution proceedings are concerned, the powers of the ordinary Civil Courts would remain unaffected. Again, under S.45 of the Indian Divorce Act, the provisions of the Code of Civil Procedure is made applicable to the proceedings under that Act. Now another question that arises is whether the execution proceedings now pending before the ordinary civil courts would get transferred to the Family Courts. Under S.8(a), of the Family Courts Act, jurisdiction of other Courts are excluded only in respect of suits or proceedings of the nature referred to in Explanation under S.7(l). Since S.7(1) or the Explanation does not deal with execution proceedings and since S.18(3) makes its clear that the powers of the ordinary Civil Court for execution still prevail, the pending execution proceedings are to be dealt with by the ordinary civil courts and this is particularly so if they arise from decrees made by the High Court in its Original jurisdiction under the Indian Divorce Act.

In short, as far as Christians are concerned, the advent of the Family Court is not going to have any impact and they are still shackled by the provisions of the obsolete law on marriage and divorce. This is again a case signifying the crying need of reform of the personal law of Christians.