By Joseph Thattacherry, Advocate, Changanacherry
The Mischievous S.27, the Mischief of the Police and the Misery of the Suspects
(Joseph Thattacherry, Advocate, Changanacherry)
There is an old saying that a prostitute can be believed to some extent but not a police man to that extent. Whether the saying is true, or not, the Parliament in its wisdom has enacted S. 25 and S.26 of the Evidence Act by which confession made to a Police Officer or confession made while in the custody of a Police Officer is inadmissible in evidence. Those sections were enacted out of distrust of the Police and the reasonable apprehension that the extensive powers they enjoy would be misused if confessions made to them by the accused persons are made admissible in evidence. The purpose of the restriction imposed is to protect the person accused of a crime from third degree treatment. But as a proviso to those sections is enacted as S. 27, by which, when a fact is deposed to as discovered i n consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information as relates distinctly to the fact thereby discovered, is made admissible. The only justification for its admissibility is the guarantee of the information being true owing to the consequent discovery. At the same time under S. 24 of the Act, a confession made by an accused person is irrelevant if the making of the confession is caused by any inducement, threat or promise proceeding from a person in authority. As per S. 164 Cr. PC a magistrate before recording a confession has to caution the accused against making such confession and he shall not record it unless upon questioning, he has reason to believe that it is made voluntarily. But strangely no such prosecution or test of voluntariness is not a requirement for the admissibility in evidence of a disclosure statement before the police. An accused does not normally make a disclosure statement before the Police, lead them to the place of concealment and make the recovery of any weapon or stolen article as the case may be, voluntarily.
The malady is that in applying S. 27, Courts are not to look into the voluntariness or otherwise of the disclosure statement and discovery. However, bad and cruel the means employed in obtaining the information may be, in our country S. 27 of the Evidence Act authorises the Court to ignore those means and to act on the information, if recovery is made in consequence thereof. The case law as it stands now, is that even if the panch witnesses turn hostile, courts can act upon the uncorborated testimony of the investigating officer if it is found convincing. No doubt it is easy for an investigating officer to depose convincingly regarding the simple fact of information and recovery, however false and fake they may be.
By the passing of time, in our country corruption from top to bottom has become rampant. Day by day news is coming forth about swindlig of the exchequer by higher ups to the tune of crores of rupees. Supreme Court' s intervention on the functioning and investigation of the CBI is necessitated, along with rubuke and admonition of its chiefs. Our morale and honesty have gone down to a pitiable low. In this context, just imagine about our Police Officers who are under paid. No wonder if they happen to be susceptible to corruption. Use of S. 27 of the Act may not be that safe in their hands.
Neither in America nor in England we find a similar provision as we have in S. 27. In America confessions are admitted only if there is clear evidence that no undue influence, threat or inducement is brought to bear upon the accused. There, the prosecution cannot use a confession, unless certain stringent conditions and safeguards are fulfilled. They include right to counsel during the interrogation and warning to the suspect or accused of his right to counsel. The Supreme Court has held, as reported in 1994 Crl. LJ 1981 that the accused has a right to have some one, his friend or relative, informed of his arrest, and place of detention and also to consult privately with a lawyer. It was also held that it shall be the duty of the Magistrate to satisfy himself that these requirements have been complied with. But the pity is that, very seldom an accused gets such privileges in the custody of Police. Again in arecent decision of the Supreme Court reported in 1995 Crl. LJ 3992, the court set aside the conviction and sentence of an accused in a murder case, on the ground that the disclosure statement and the recovery memo did not bear the signature or the thumb impression of the accused. But that decision of the apex Court is of no avail to the accused so long as they are at the clemency of the Police, while in their custody and have no option but to affix the signature or give the thumb impression wherever and whenever so ordered by the Police.
This author had a very interesting experience in respect of recovery under S. 27 of the Evidence Act effected by the Police of Chingavanam, within the jurisdiction of JFMC Changanacherry. Two suspects were arrested and crime 193/92 was registered against them under S. 41 (l)(d)and S. 102 of Cr. P.C. On interrogation they have alleged to have confessed before the police mat they have committed theft of several articles from 13 different places within the limits of that Police Station. 13 separate crime cases were registered against them. Allegedly, they lead the investigating Officer to 13 different places far apart. 13 Recovery mahazars and 13 sezure mahazars were seen prepared by the selfsame investigating officer on 15.6.1996 within the span of 7.30 hours. In the meanwhile, S. 161 statements of several witnesses in the cases were also been recorded. And strangely the accused were produced before Court at 5 PM on that very same day. Interestingly 3 recovery mahazars are seen recorded on that same day, same hour and same minute viz. on 15.6.92 at3.30 PM at different places, in C.C. 740/ 92, CC 754/92 and CC 372/93 before the JFMC Changanacherry. Indeed it is quiet impossible. Accused are acquitted. That is only one among the many examples of the menance of S.27.
It is high time, to seriously consider whether S. 27 should not be expunged from the Evidence Act. Our Evidence Act is more than a century old. In spite of several criticisms from several quarters and by various High Courts S. 27 remains in the statute book, even now. As long as it remains in the statute the victims generally are the poor and downtrodden. Hence, it is respectfully submitted that steps has to be taken to delete S. 27 from the Evidence Act, at the earliest.
The Satanic Angel
By T.G. John, Advocate, Thrissur
The Satanic Angel
(By T.G. John, Advocate, Thrissur)
Dr. Neema Sultana Begum, M.B.B.S. was a very brilliant student of the King George Medical College, Lucknow. She had secured the coveted Empress Victoria Readership (Research Scholarship) of the College for three years and was doing research work in forensic medicines and toxicology under the guidance of Dr. Goutam, Professor of the same College. She was extremely beautiful and vivacious and had even featured as a Beauty Queen in many of the beauty contests in the hill stations of northern India, like Mussorie, Nainital and Simla combining in herself western beauty and oriental charm. She hailed from a highly cultured and aristocratic Muslim family of Lucknow. Her father Mirza Afzal Beg was an I.C.S. Official who met with a motor accident and was killed on the spot. Since then Neema, who was about 23, her widowed mother Salima, who was about 40 years old, and her brother Mirsafar, who was studying for B.A., in the local college had been living in their ancestral house, Mir Manzil, in Lucknow.
Dr. Mohanlal Gautam, M.D., F.R.C.S. (Edinburgh), Neema's Guide in research, was one of the brilliant men on the staff of King George's Medical College, Lucknow. Though his special subject was Pathology, he was supreme in others fields also. His reputation as a general practitioner was great and he had a large number of rich patients who paid him enormous fees. He used to attend to his students and their family members and also genuinely poor people at their homes without any fees at all. He was a tall and extremely handsome man with glistening eyes and a short aquiline nose and was about 38 years old. All his students liked him. His family consisted of his wife and two small children. A loving husband, he lived with his family in a fine bungalow attached to the college.
And then things began to happen! It is strange that young, attractive and talented girls are drawn towards elderly men despite the handicap of their being already married and having children. Gradually Neema got enamoured of the tall and handsome Dr. Gautam nearly twice her age and father of two children with a pretty and devoted wife. She was being irrevocably drawn towards the cold lustre and invisible magnetism of his brilliant and superb manhood. She also wondered why she who could stun any young man with a mere twinkle or her eye, could not move this stalid Adonis of a man who was utterly insensate to her charms.
She was determined for her catch. She took every opportunity to talk to him about her studies, the social conditions of the city and finally a probe into his family life. But Dr. Gautam never exceeded his limits as a Guide and Professor in his talks to her. And then one day on her request he took Neema to his residence and introduced her to his wife and children. Neema begged Dr. Gautam to make a return visit to her residence which Dr. Gautam did out of sheer courtesy. He was introduced to Neema's mother and thereafter Dr. Gautam made frequent visits to Neema's residence. Meanwhile, Neema's nerves were getting frittered and she was almost on the brink of insanity consumed by unrequited love. And one day casting aside all decency and decorum, Neema asked her mother whether she would mind if Neema married Dr. Gautam. Her mother replied that she would have her blessings but added that it was impossible and unthinkable as he was a family man and a Brahmin and was treating her as a grown up daughter. "That is my business mother, you may leave it to me", she replied.
And then on the next visit of Dr. Gautam, when Neema's mother was absent in the house, things got hot. Dr. Gautam was on the point of going away when he found her mother was not present. And then Neema went into a sudden outburst of passion. 'Don't you think that I am far more beautiful than your wife - would you marry me?" Neema burst into tears and was sobbing heavily.
Dr. Gautam was so stunned by this sudden and unexpected outburst of passion. However, he slowly gathered his wits and numbled that it was utterly unthinkable, he being a married man with a devoted wife and a Brahmin too and his feelings towards, her could be no more than that of a father or brother.
Neema was frantic and persistent and then put her second alternative 'You are a rich man, Dr. Gautam, you can hire out another bungalow and keep me there: hundreds of big people are doing it nowadays! Upon this Dr. Gautam flared up like gunpowder and retorted "I thought that with all your faults you were a good girl. But now I find that you are a strumpet!"
Strumpet! The words had an electrifying effect on Neema. She flushed crimson and with a snarling and disdainful gesture she got up and disappeared. Dr. Goutam stepped out of Mir Manzil into broad day light and thereon into his car.
Next day and for many other days Neema was absent in her college for her research work. One evening Dr. Gautam had a special messenger from Neema. To make a visit to her and diagnose her illness and treat her. Dr. Gautam went to Neema's house after finishing his work in the college and that night Dr. Gautam did not return to his residence!
Next morning there was banner headlines in Lucknow newspapers "Dr. Gautam short dead by a girl student! Assailant arrested!". The student was none other than Neema, his research student. The post-mortem examination of the dead body revealed that Dr. Gautam had been killed by a short fired at point blank range from a 12 bore shotgun using buckshot (LG) ammunition. Five of the six LG catridges were recovered from inside the dead body. The sixth was recovered from near the place where the dead body was lying. Death must have been practically instantaneous.
In the police station Neema made a confession - that she loved Dr. Gautam with all her heart; but at least on one occasion he scorned her as a strumpet which overwhelmed her feelings so that she wanted to end her life. But before that she wanted to finish Dr. Gautam who rejected her in such a contemptuous way. Later on when she was produced before the Magistrate, she replied "on advise". She made a statement that she was innocent and that she did not know to use a fire-arm and the gun in her house was used by her father before his death. And also that the dead body was planted in her house by some of the enemies of Dr. Gautam who had done the crime. That Dr. Gautam wanted to marry her and she was not willing for such an alliance!
In the Sessions Court the prosecution proved that contrary to the allegations of Neema, she was an expert in handling firearms. In fact, the licence for the Westley Richards Short gun had been transferred to her by her father before his death and that prior to the incident she had bought 20 Eley-Kynoch-Buck-Shot catridges for the gun from the local ammunition shop. But why did she kill him? The defence made a suggestion that perhaps Neema was showing her guns to Dr. Gautam when an accidental discharge might have killed him. This hypothesis was negatived by the fact that the gun had barrels 33 inches long and it was quite impossible for Dr. Gautam to receive the discharge from the barrel on his chest due to an accidental tripping of the trigger. Two of the neighbors of Neema testified that at about 11 P.M. on that fateful night they had heard the report of gun shot from her house and the piercing cry of a man in agony. One of them had informed the police by telephone.
Neema was convicted by the Sessions Judge for the murder of Dr. Gautam, but instead of awarding the capital sentence, sentenced her to life imprisonment. The High Court on appeal confirmed the conviction, but reduced it to 10 years as in its opinion, the motive for the murder could not be clearly proved by the prosecution.
By T.G. John, Advocate, Thrissur
On Mercy-Killing !
(By T.G. John, Advocate, Thrissur)
Fifty year old William Chanslor was a prominent attorney of Texas (U.S.A.) and was the President of the City's Trial Lawyers Association. He prepared his briefs well, had good forensic talents and had an amiable nature. In 1979 however he had a cruel blow- his pretty wife, 42 year old Susanne had a paralysing stroke and her suffering had a strange impact on him.
It was at this time that his legal research took him to a five volume set of books "How to Kill" written by John A. Minnery. In the book Minnery counselled on everything from the use of clubs to home made atomic weapons, wiring a urinal to accomplish swift electrocution, portable drills that can easily penetrate skulls, spines or heart muscles. Minnery advised killers to keep their crimes simple and stated that clobbering a victim over the head with a typewriter usually proved very effective. He also dealt with varying methods of poisoning. Morality played little part in Minnery's text but he claimed that the book was designed as an investigative aid to police officers and military personnel.
After reading the volumes, the Texas lawyer, got some 'ideas'. He had a bizarre plot to kill his wife by poisoning 'to end her agony'. He contracted the author of the book at his Ontario home. Between October and March of that year the two men had half a dozen telephone conversations about poison. Chanslor first enquired about killing animals and then revealed that his intended victim was human - 42 years old and partially paralysed and moving in a wheelchair.
When Chanslor asked Minnery to procure poison for him, Minnery went to the police. Chanslor and Minnery finally met in April at the Toranto Air port where Chanslor was introduced to another 'expert' on poisons - who was actually a policeman named Keith Simmons posing as a man with access to poisons. During an hour long conversation in the Air port lounge, taped and photographed by the Canadian Police, Chanslor detailed his mission. When asked whether the victim would co-operate by committing suicide Chanslor lamented "It is an impossibility......I am stick of waiting for this bitch is really getting on my nerves".
After discussing several poisons and rejecting them - because they leave traces - the men decided on ricin, a toxin more powerful than cobra venom; it is extremely rare and produces a slow convulsive death. It is also virtually impossible to detect: Minnery assured Chanslor that an autopsy would attribute the death only to a stroke, heart attack or uremic failure. Chanslor also said that he planned to give the poison to the victim at bed time and inquired how long he should wait before calling his neighbors for help -'Eight to ten hour's was Minnery's ready reply.
Two weeks later, P.C. Symmons who was posing as another poison expert, delivered to Chanslor a yellow capsule (which actually contained only some Vitamin B) along with a surgical mask, gloves and Tweezers to ensure that Chanslor did not touch or inhale the 'poison' at the time of administration! In the presence of Minnery, Chanslor paid the police constable 2000 dollars for the help. Fully satisfied with his plan, Chanslor stepped into his 1981 - Lincoln. And then it happened-the police surrounded the car and arrested him.
At the trial, the accused did not dispute the facts, only their interpretation- arguing that mercy, not murder, was on Chanslors' mind. The Jury however took only three hours to return its verdict. Susanne, the wife of Chanslor, took the stand and pleaded that her husband need not be sent to prison- 'I can't live without him' she wept. Her mercy mission had some effect. The jury rejected the prosecution's recommendation for 16 to 20 years in prison and awarded a sentence of only three years making him eligible for parole in one year.
By P. Jacob Varghese, Advocate, CAT
1998 (1) KLT 88 Journal - "Abolish C.A.T. - Sooner the Better"
Only to be Ignored
(By Advocate P. Jacob Varghese, President, Central Administrative Tribunal Advocates Association)
In 1998 (1) KLT 88, an Article has been published severely critical of Central Administrative Tribunals in general, and the Ernakulam Bench of the Tribunal in particular. The Article is full of inconsistencies, wrong facts and gives a totally false picture about the working of Central Administrative Tribunal throughout India. The Author, who, to the best of my knowledge, has never stepped, into the Central Administrative Tribunal, Ernakulam has taken up on himself, the task of passing judgment, on the functioning of Central Administrative Tribunals in general and the Ernakulam Bench in particular. The Article has to be viewed as an exercise in wrecking vengeance against the members of the Tribunal. The mystery aspect of the article is that a person who is not practicing in the Central Administrative Tribunal claims to have a lot of information about the working of the Tribunal conveniently at his disposal so that he could misrepresent the facts at his will and pleasure.
The author is incapable of appreciating the work done by the Central Administrative Tribunal and particularly its Ernakulam Bench. The congenial atmosphere which was developed at the Bar and the Bench due to the harmonious inter-action between the Members of the Bar, the Central Government Standing Counsels and the Members of the Bench is truly remarkable. Cases are disposed off within the shortest time available due to the co-operation of the Bar. The grievance of the litigants are looked into with a highly judicial, open and liberal approach. The Tribunal is result/effect oriented as regards the problems facing Central Government Employees and positive decisions are rendered, which gives instant and effective relief to the litigating staff of Central Government Offices.
To my knowledge there is no case pending more than two years before the Central Administrative Tribunal particularly Ernakulam Bench. The statement that the Tribunal may take 5 years for disposal of a case and the High Court may take another 5 years, exposes the sad ignorance of the Author not only about the day to day functioning of the Tribunal, but also regarding functioning of the Hon'ble High Court.
The haste with which the article has been written is evident from the several mistakes which were been committed by the Author. The Author's contentions that one more step has been added to litigation is flawed by mis-spelling the word 'tier' as 'tyre'. The jurisdiction of the Hon'ble High Court in dealing with matters ordered by the Tribunal is strictly supervisory and not appellate and hence no new tier has been added as claimed by the Author. It is not surprising that money spent in dispensing justice appears to the author as sheer waste since the author has evidently no experience in handling any matter before Central Administrative Tribunal. In one breath the Author takes the position that there is very little work before Central Administrative Tribunals since "Port Trust Employees" and other "P.S.U. Employees" have chosen not to go before the Central Administrative Tribunal and even the aggrieved litigants would prefer to steer clear of the Central Administrative Tribunal, and immediately in the next breath the Author states that there is more than enough judicial and administrative work for the Tribunal resulting in heavy arrears. The Author is not a Practising Advocate before the Central Administrative Tribunals. It is worth inquiring as to where he got information that the Chairman was not available to hear the Cabinet Secretary's case. Again it seems highly irresponsible on the part of the Author to criticize the quality of the decision by the Central Administrative Tribunal in the Cabinet Secretary's case without any analysis of the decision and indicating in any manner as to how he comes to the conclusion that the decision was inferior in quality.
If the author had properly understood the decision of the Honourable Supreme Court in Chandrakumar's case AIR 1997 SC 1125, certainly he would not have ventured with such skimpy article. The Honourable Supreme Court found in Chandrakumar's case that the system of review through Administrative Tribunals is indispensable. This review through the Tribunals represents the voice of the people of India, after long debates and discussions on the floor of the Parliament, enacted under the Central Administrative Tribunal Act, 1985.
It is contemptuous to attack the Central Administrative Tribunal in vague and ambiguous terms knowing well that the Tribunal has no machinery to give an effective rebuttal. The author has evidently not considered the fact that his insulting remarks against the Tribunal are also equally insulting to the Law Officers and Advocates appearing before the Tribunal whose association I represent. The Central Administrative Tribunal Advocate Association records its strong protest against the tone and content of the aforesaid article and 1998 (1) KLT 88 Journal is only to be ignored.
By P.N. Arun, Advocate, Research Scholar
Government Sanction for Investigation - Is it an Anomaly in the Vigilance Set up of Kerala
(By Advocate P.N. Arun, Research Scholar, Department of Law, University of Kerala, Trivandrum)
G.O. (P) No.65/92/Vig. dated 12th May, 1992 provides for the set up, working and procedure of investigation and enquiries by the Vigilance Department (at present . known as the Vigilance and Anticorruption Bureau). The Department is the main anticorruption agency investigating cases relating to corruption and misconduct by Government servants and public servants in the State of Kerala.
Paragraph 4 (ii) of the above referred G.O. states: "The Vigilance Department should not initiate enquiries suo motu even when a complaint is made in person or in a signed petition. The Vigilance Department should invariably report such complaints promptly to Government in Vigilance Department, which will issue necessary instructions in the matter".
Therefore, even when specific information relating to the commission of an offence under the Prevention of Corruption Act, 1988 is laid before an officer of the Department, who is authorised to investigate such offences, he is prohibited from registering the FIR and commencing the investigation. Offences under Ss.7 to 13 of the Act can be investigated by officers of specified ranks (according to S.17 of the Prevention of Corruption Act, 1988) without the orders of a Magistrate. Thus the statutory right of the Police to carry out an investigation as per Chapter XII of the Criminal Procedure Code is curtailed by this executive order.
Paragraph 4(iii) states: "The Director of Vigilance Investigation shall initiate a preliminary enquiry in matters referred to him for enquiry. He may himself order a detailed enquiry, when he is satisfied that there is scope for a detailed enquiry". Paragraph 8 states when a case will be registered. "If at any stage during the preliminary enquiry conducted by the Vigilance Department there are reasonable ground to believe that the accused Government servant has committed an offence under the Prevention of Corruption Act, the preliminary enquiry will be stopped at that stage and a crime case registered and investigated after obtaining sanction from the Director of Vigilance Investigation". Thus, even preliminary enquiry into a complaint can be made only when the Government refers the matter to the Director of Vigilance Investigation.
The practice of conducting preliminary enquiry and then registering F.I. R. is sought to be justified on the basis of the Supreme Court decision in Sirajuddin v. State of Madras, AIR 1971 SC 520. Therein it was held that before the public servant is charged with acts of dishonesty which amount to serious misdemeanour or misconduct and a first information is laid against him, there should be some suitable preliminary enquiry into the allegation by a responsible officer. After 5.4.1997, the practice of the Vigilance Department is to conduct a Vigilance Enquiry (VE) after a 'confidential verification' of the allegation referred by Government to Director of Vigilance Investigation.
Even if the requirement of preliminary enquiry or confidential verification is accepted, it escapes reason as to why Government permission or reference is needed to commence such an enquiry. In Vineet Narain v. Union of India, (1998) 1 SCC 222 the Single Directive No.47(3) issued to the C.B.I., by various Ministries/Departments requiring prior sanction before initiating an enquiry or registering a case against certain categories of civil servants (decision making level officers) was struck down. The Court said. "In the absence of any statutory requirement of prior permission or sanction far investigation, it cannot be imposed as a condition precedent for initiation of the investigation....."(at P.262). Though the ‘Superintendence' of the C.B.I. vested in the Central Government (by virtue of Delhi Special Police Establishment Act, 1946) that would not include within it the control of the initiation and the actual process of investigation.
The process of investigation including its initiation is to be governed by the statutory provisions of the Criminal Procedure Code in the absence of special statutes to the contrary. The Vigilance Department (VACB) is also bound by the same law. This is admitted m Paragraph 4(i) of G.O. (P) 65/92. Nevertheless the G.O. is even more drastic in its violation of statutory provisions than the quashed Single Directive, in as much as it imposes a blanket ban on initiation of enquiries against all categories of Government servants and public servants without prior sanction. Will G.O. (P) 65/92 stands the test of law?