Supreme Court and Amendments to the Constitution

(By Justice K.T. Thomas, Former Judge of the Supreme Court of India)

There are reports in the media that the Supreme Court and the Union Government are now engaged in arriving at a solution to diffuse the impasse created as sequel to the five Judge bench verdict which over turned the Constitution 99th Amendment (called ‘the NJAC judgment’). I felt earlier that with the culmination of the marathon exercise involved in Kesavananda Bharathi (1973) 4 SCC 225) the Indian Constitution will ever remain unimpaired. It was a great solace to the Indian citizen that no Parliament in future can destroy the basic features of the Constitution of India. But the majority verdict in the NJAC case (2015 (4) KLT SN 121 (C.No.154) SC - Supreme Court Advocates-on-Record Association v. Union of India) has portended the dangerous extent to which the sword of Kesavananda Bharathi could be swung by semantic exercises even against seemingly harmless mechanism provided by the Constitution using the amending power for appointing the Judges.

The majority judgment in NJAC case administered a warning that even three judges are enough to chop down any amendment of the Constitution disliked by the judges of the Supreme Court, no matter such amending law had the backing of the entire Parliament and the entire federal units of the Republic of India. Parliament’s constituent power is shown to be powerless in adopting an alternative mechanism to the collegium system, which was, in fact, created by the judges themselves through two judgments, and which is, indisputably, riddled with serious flaws. The perils highlighted by Justice Kurian Joseph are almost a testimonial pointing to the nadir to which the collegium system has plummeted over the years. Yet, learned judge joined the other three judges to strike down the Amendment on the premise that independence of the judiciary is safe in the collegium system but will be destroyed by the new alternative adumbrated in the Amendment.

The silver lining discernable from all the separate judgments is the finding that independence of the judiciary is a basic structure of our Constitution. But on the question whether the Amendment has destroyed it, one of the judges (Justice Chelameswar) advanced strong reasons to hold that it has not, while the rest found it has. The result is the revival of the flawed system.

When pointed out that the Amendment secured near hundred per cent support from the Parliament and from the entire federal units as has been envisaged in the Constitution, the majority judges held that all that is not enough to protect the Amendment. I have no dissent over that approach provided the Supreme Court could discover through the judicial review that the Amendment destroys the basic structure of the Constitution. Unfortunately, no effort was made to chisel down/expand/restrict the dangerous potentialities of the Amendment, even assuming that it did have. It would have been judicial statesmanship to show creativity by protecting the Amendment instead of whipping the weapon of destruction, a la judicial invalidation.

It is an enigma why the Five-Judge Bench did not refer this momentous issue to be decided by a much larger bench, at least larger than the bench that created the collegium system, so that the Supreme Court could re-evaluate the judge made mechanism. From media reports I learned that a plea was raised by the Bar for adopting such a course, and the bench observed that the plea would be considered later. Of course, if the Amendments were upheld, it would be a different matter; but when it appeared to the judges otherwise, it was only proper that such an issue of great immense importance ought to have been decided by a larger bench.

The reasoning shown by the majority judges that the presence of even a single member of the executive would erode all the independence of the judiciary is far from convincing. Examples of constitutional institutions like Election Commission, Comptroller and Auditor General and the Parliament created instrumentality. Vigilance Commission, are also meant to be independent, but the fact that they are appointed by the executive alone was not counted by the Constitution makers as capable of impairing the independence of those institutions. The reasoning that EC and CAG, etc., are different from judiciary is quite unimpressive, to say the least. The question whether such instrumentalities, too, could function independently in spite of the executive role in their appointment was not addressed by the judges in the majority. Independence of judiciary is in the sphere of functional performance, as its requirement is in the post appointment years. Protection provided for judges, as for removal, payment of salary, etc., are also provided for the other institutions, such as EC and CAG.

Majority opinions adversely viewed the presence of two members of the civil society mainly on two grounds: First is the concept of “eminent persons” was not defined; second, the concurrent view of any two persons could effectively veto the majority opinion. But both reasoning is untenable.

At any rate, the reasons offered in the majority opinions are too fragile and tenuous to overturn the constitutional provisions. We should not overlook the reality that unity of two persons in the NJAC could only have prevented the selection of a person from becoming a judge. Such a unity cannot enable an ill-suited person for appointment. Is it not a safety measure to prevent an unfit person from reaching the Supreme Court Bench, even at the risk of its maximum demerit that a suitable person is not being selected? Similarly, the presence of one executive representative, none other than the Union Cabinet Minister for Law, should have been welcomed wholeheartedly, particularly when the role of the executive in the selection of judges in all other democratic countries is of a much higher dimension.

Nevertheless, what should not have happened has happened. We can learn a lesson for future. Is it safe for parliamentary democracy to persist with the power of even a unity of just three judges striking down a constitutional provision on the premise that it violates the ratio of Kesavananda Bharathi case.

I wish to make a suggestion for consideration. Whenever it appears to the Supreme Court in future that the validity of any Constitutional provision requires to be decided on the touchstone of basic structure doctrine, the same shall be decided by a bench of at least the size which decided Kesavananda Bharathi case. This can be achieved through amendment of the relevant Rule by the Supreme Court itself in the exercise of its powers under Article 145(2) of the Constitution of India.

Need for Sanction before Passing an Order for Investigation
under Section 156(3) of the Criminal Procedure Code, 1973

(By Justice U.L. Bhat (Former Chief Justice, High Court of Madhya Pradesh and  Gauhati  High  Court))

Chapter XII of the Code of the Criminal Procedure Code, 1973 (for short, the Code) deals with information to the police and their powers to investigate. The Chapter deals, so to say, with A to Z of first information given to the police (in cognizable or non-cognizable cases), and police investigation leading to final report under Section 173 of the Code. Section 156 specifically deals with police officer’s power to investigate cognizable cases. A Station House Officer can investigate any cognizable case arising within the local jurisdiction of his police station (sub-section (1)). His jurisdiction is co-terminus with the jurisdiction of the local Criminal Court as indicated in Chapter XIII of the Code. Under sub-section (3) of Section 156, any Magistrate empowered under Section 190 may order such an investigation as mentioned in sub- section (1) of Section 156. Section 190, in turn empowers any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2) of Section 190 to take cognizance of any offence. Thus the Magistrate referred to in Section 190, can direct police investigation under Section 156(3) of the Code. This power under Section 156(3) is a special power conferred on the Magistrates while their ordinary power is indicated in the provisions in Chapter XV of the Code (Section 200 to Section 203). Commencement of proceedings before Magistrate is covered by Chapter XVI of the Code, commencing with Section 204. Incidentally the first step is to issue process to the accused; but that is only in case where the Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding. In the absence of any such sufficient ground, the private complaint filed under Chapter XV is required to be dismissed under Section 203 of the Code.

2. It is important to bear in mind the difference between “information” or “first information” given to police followed by F.I.R. under Section 154 in Chapter XII of the Code finally leading to the report of the police officer on completion of investigation into the case registered under the F.I.R. on the one hand and a “complaint’ or a “private complaint” as defined in Section 2(d) of the Code and dealt with in Chapter XV of the Code (heading is “Complaints to Magistrate”) on the other hand. Both the final report in the case of “information” to the police and the conclusion of the Magistrate in the case of a complaint to Court are required to be dealt with under Chapter XVI of the Code dealing with “commencement of proceedings before Magistrate.” Procedure for trial is indicated in the subsequent Chapters of the Code.

3. In this connection provisions of Chapter XV assume some importance. This Chapter relates to private complaints (see definition of “complaint “ in Section 2(d) of the Code) filed directly in Court as distinct from “information” furnished to police under Section 154 of the Code leading to registration of an F.I.R. The requirement of Section 200 is that a Magistrate who is deciding to take cognizance on a complaint is to examine upon oath the complainant and the witnesses present, if any, and to reduce to writing the substance of such examination. The statements so recorded are required to be signed by the complainant and the witnesses respectively as also by the Magistrate. Section 200 has two provisos which have not much relevance for the purpose of the present discussion. Section 202 deals with postponement of issue of process to the accused which is the requirement of Section 204 in Chapter XVI of the Code. The purport of Section 202, in so far as it is relevant for the present purpose, is that the Magistrate may postpone the issue of process and either (a) enquire into the case himself, or (b) direct an investigation to be made by a police officer or such other person as the Magistrate thinks fit. Such enquiry or investigation is to be directed for the purpose of deciding whether or not there is sufficient ground for proceeding. The rest of Section 202 is not relevant for the present purpose. If on consideration of all the materials referred to in Section 200 and 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, briefly recording his reasons for doing so. If, on the contrary, from such materials, the Magistrate taking cognizance is of the opinion that there is sufficient ground for proceeding, he shall issue a summons /warrant whichever is appropriate in the given case. The remaining Sections in Chapter XVI refer to the further requirements/proceedings. Proceedings for Trial etc. are prescribed in the later chapters.

4. Section 202(1) of the Code makes it clear that even after recording the statement of the complainant and witnesses present, the Magistrate is empowered to conduct an enquiry himself or to direct police or other investigation. Section 202 does not provide for such a police investigation at any stage before taking cognizance. Sections 200 to 203 are applicable only if the Magistrate takes cognizance. Power of a Magistrate to order Police investigation without or before taking cognizance of the cognizable offence in a given case can be traced only to Section 156(3) of the Code and such power is not in any way referable to Chapter XV of the Code.

5. The heading of Chapter XII is “Information to the Police and their powers to investigate”. Such information to the Police relating to cognizable cases is dealt with in Section 154. Information has to be recorded, read over to the informer and signed by him. The substance of the information shall be entered in the F.I.R. Book and the General Diary of the Police Station. The Station House Officer’s power to investigate the case is traceable to Section 156(1) of the Code. The heading of Section 156 is “Police Officers Power to investigate cognizable case”. Sub-section (1) grants the Station House Officer power to investigate the case (if within his territorial jurisdiction), without an order of the Magistrate concerned. This plenary power is clearly distinguishable from the power he may derive by virtue of a specific direction which may be issued by a competent Magistrate under Section 202 in Chapter XV of the Code. Such a direction can be issued by a Magistrate only on a private complaint filed in Court and only after examination of the complainant and witnesses present under Section 200 of the Code.

6. Sub-section (3) of Section 156 of the Code reads thus:-

“Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.”

“Investigation as above mentioned” is the one contemplated in Section 156(1), namely, investigation of a cognizable case. This power of a Magistrate is totally different in its nature from the power contemplated in Section 203 of the Code. The power under Section 156(3) is specific power conferred on jurisdictional Magistrate to order Police investigation independent of Chapter XV and without following the procedure prescribed by Section 200 of the Code. Power under Section 202 is to be exercised only if the Magistrate feels the need for such investigation for the purpose of deciding whether or not there is sufficient ground for proceeding, that is, for issuing process under Section 204 (Chapter XVI) of the Code.

7. There is a purpose underlying the distinct power under Section 156(3) of the Code vesting in a Magistrate to order investigation by the SHO of a Police Station without following the procedure under Section 200 of the Code. The purpose is to provide for a situation where the Magistrate concludes that he should not take cognizance of an offence alleged in a compliant filed in his Court and that following the requirements of Section 200 etc., would be a tortuous process which might result in wasting the valuable time of the Court or the enquiry may require exercise by the Police of their power to locate, trace out and question witnesses, conduct searches of offices, residences and hotels and evidence to be collected may be voluminous and the process is likely to be time consuming. In such cases, the Magistrate, instead of taking cognizance of an offence under Section 190(1)(i) in Chapter XIV of the Code, (which shall be a prelude to following Section 200 and 202 of Code), may, without taking such cognizance, directly invoke Section 156(3) of the Code and order investigation by the police. The above is not exhaustive of situations calling for invocation of the power under Section 156(3) of the Code.

8. Section 19(1) of the Prevention of the Corruption Act, 1988 mandates that no court shall take cognizance of an offence punishable under Sections 7,10,11,13 and 15 of the Act alleged to have been committed by a public servant, except with the previous sanction of Central Government, State Government or appropriate authority mentioned in Section 19(1)(a, b and c) respectively. In order words, no Court can take cognizance of any one of the above offences without the prior sanction of the appropriate government or authority. Assuming that accused is a public servant and the offence alleged falls within the scope of the Sections of the P.C. Act referred to in Section 19(1) of the P.C. Act, cognizance under Section 190(1)(a) of the Code can be taken only if sanction had been obtained earlier. Without taking cognizance or if it is impossible to take cognizance for want of sanction, no Court can act under Section 190(1)(a) or  Section 200 and 202 of the Code.

9. It, therefore, become necessary to understand the true meaning of the expression “Taking Cognizance”, which act alone requires sanction. Dictionary meaning of “Cognizance” is “knowledge or notice, judicial or private”. The above meaning must be considered in the light of the answer to the question “take cognizance for what purpose?” In the context of Court proceedings, the answer could only “be take notice for the purpose of doing an act which logically and lawfully follows the mental state of taking cognizance.” When a complaint is filed before a criminal Court, the question of taking cognizance of the offence disclosed in the complaint arises only and solely for the purpose of treating it as a regular criminal case and for following the procedure indicated in Chapter XVI. (Sections 200 to 204 and so on). Taking cognizance of an offence must be followed by judicial action under the above provisions. Section 156 of the Code, occurring in Chapter XII, is the statutory provision relating to power of police officers to investigate cognizable offences. Sub-section (1) of Section 156 declares the power of any station house officer to investigate such an offence. This is statutory power vested in such officers with reference to information received at the police station of the commission of cognizable offence within the limits of the station. Sub-section (3) of Section 156 states that “any Magistrate empowered under Section 190 may order such an investigation as above mentioned”. This special power is granted to such Magistrates, obviously to deal with complaints filed in Court in which the Magistrates do not proceed to take cognizance of the offence involved and feel the need to straight away order police investigation.

10. An order to be passed under Section 156(3) of the Code is not an order which could be passed after the Court takes cognizance of an offence as required under Section 200 of the Code. That is an order which could be lawfully passed before or instead of invoking Section 200 of the Code. As such previous sanction of the appropriate authority is not required for passing an order for police investigation under Section 156(3) of the Code. Passing of an order for police investigation under Section 202 of the Code is conditional on observing the requirements of Section 200, which is conditional on the Court taking cognizance of the offence, which is conditional on the previous grant of sanction by the appropriate authority. It explains the vesting of the different types of power in the Court.

11. The question of the need for sanction before an order for police investigation under Section 156(3) of the Code could be passed was decided in the early days of our Republic in the decision of a three- Judge bench of the Supreme Court in R.R. Chari v. State of U.P. (AIR 1951 SC 207). The Supreme Court quoted with approval the following dictum laid down by Justice Das Gupta of Calcutta High Court in Superintendent and Remembrancer of Legal affairs, W.B. v. Abani Kumar Banerjee (AIR 1950 Cal 437)-

“It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, -proceeding under Section 200, and thereafter sending it for enquiry and or report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”        (emphasis applied)

12. It has to be noticed that the above dictum by Justice Das Gupta of the Calcutta High Court was adopted by the three Judge Bench decision of the Supreme Court. No bench superior to a three  Judge Bench of Supreme Court has differed from the above dictum. In Gopal Das Sindhi v. State of Assam (AIR 1961 SC 986), another three Judge bench of Supreme Court has reiterated the dictum of the earlier bench. So also did Lakshminarayana Reddy & Ors v. V. Narayana Reddy & Ors (AIR 1976 SC 1672), Jamuna Singh v. Bhadai Sah (AIR 1964 SC 1541) and Tula Ram v. Kishore Singh ((1977) 4 SCC 459).

13. There is a two Judge bench decision of Supreme Court Anil Kumar & Ors v. Aiyyappa & Ors. (2013 (4) KLT 125 (SC) = (2013) 10 SCC 705) which took the view that “cognizance” means taking “notice” for any purpose and a Court is precluded from taking notice of a complaint or exercising jurisdiction in respect of offences requiring sanction for ‘taking cognizance’ and hence no order under Section 156(3) of the Code can be passed without prior sanction as taking “notice” is inevitable in such a case. Anil Kumar & Ors did not refer to the earlier larger bench decisions or the coequal bench decisions and this crucial circumstance renders such a decision per incuriam.

A Passage to the Calicut Court

(By K.V. Narayana Menon , Advocate, Calicut)

Going down memory lane I came across one of the most unforgettable moments in my professional career. It concerns one lawyer’s amazing mission to the local court, which exalted the nobility and dignity of the profession to a high point of professional ideals. It all happened in the District and Sessions Court, Kozhikode more than half a century ago.

Strolling through the corridors of the court buildings a flash news filtered out in the Calicut Courts premises that K.V.S. is coming to the District Court next Saturday.

I knew that K.V.S. was the acronym for K.V.Suryanarayana Iyer, then practising in the Kerala High Court. He was the doyen of the Calicut Bar before he was selected as the first Advocate General of the Kerala State. He holds the unparalleled record of being the President of the Calicut Bar Association for seventeen terms.

The news was true. K.V.S.was appearing for the appellant in a matter of high stakes in a Civil Miscellaneous Appeal before the District Court.

Law apprentices , junior lawyers and even seniors had occupied the second and the third rows of the District Court on the day fixed for the case , long before the Duffadar announced ‘silence please’ in his crude booming voice, (unlike the soft announcement of the umpire in the Wimbledon finals ‘quiet please’).

The District Court was virtually overflowing like the Brabourne Stadium in Bombay (as it then was) witnessing the India v. West Indies test, led by Garfield Sobers !

The floor of the District Court was of polished wood, echoing the thudding of the shoes. To share a public secret, the court hall was the dance hall of the European elite of yester years. Painted on the wall above the seat of the Judge was the logo “Fiat Justitia Ruat Coelum” which translates as “Justice shall be done though the heavens fall”. I had managed to occupy the second row with great difficulty just behind the cynosure of all eyes, K.V.S. His personal portable and foldable table was set up before him, which itself was a curiosity for all of us. Today most courts have small lecterns of different shapes and sizes contributed by the Bar Associations.

As the Judge came up the steps from his chambers, the multitude stood up in respectful silence and as soon as he occupied his chair, there was a rustle of silken gowns as the counsels also sat down. After the calling work, the Civil Miscellaneous appeal of K.V.S. was taken up as the first case, as a well deserved recognition of the status of the senior counsel, considered as the first among equals. Lean, tall, with a close crop of silvery hair, counsel was impeccably dressed, the senior gown partly covering the senior jacket (which might be mistaken for a waist coat because of its peculiar shape) though it was the height of summer in the city of the Zamorins. The argument advanced from a scholarly and systematic analysis of the principles of the law governing the grant of an injunction, delved deep into the factual matrix and concluded with an impassioned plea for vacating the injunction granted by the Trial Court. Like Sobers at the crease, K.V.S. showed his excellence in the field of law. He was effortless and flawless.

My mind wandered way back to 1886 when F.H.Wilkinson presided over the District Court of South Malabar [which came to be Calicut, later] sitting on the same chair. He was also the First President of the 130 years old Calicut Bar Association (then known as Wilkinson Law Library). The coincidence and contrast in K.V.S., who was the Past President of the Association for nearly two decades arguing, facing the same chair where the first President of the Calicut Bar Association sat was strikingly beautiful. This ends to underline that there is no indelible line dividing the Bar and the Bench.

On the opposite side it was P.N.Krishnankutty Achan from Palghat. Comparatively young, energetic with neatly combed and glistening black hair, a dusky complexion and a chiseled face, Achan had won the case in the lower court by his pleasing, pleasant and yet powerful presentation. Polite and with an endearingly bashful smile Achan had also won the hearts of all the lawyers in the Calicut courts even at his maiden appearance in the Sub Court.

Achan’s reply in resonant voice reverberated in the four walls of the District Court. In short the performance from both sides was exemplary. The crowning moment of the professional excellence and courtesy came when K.V.Suryananrayana Iyer who must have won innumerable battles in his long career, after a formal reply to some of the factual details, openly paid encomiums to Krishnankutty Achan for his masterly performance. This was a demonstration of the nobility of the profession, humility of those who are truly great, and an unforgettable encouragement to the Junior section of the bar to which, I then belonged.

For me the astonishing aspect of the episode was the generous encomiums showered on a junior lawyer on the opposite side in the last part of his reply by KVS. The Nawab of Palghat no doubt richly deserved the encomiums.

When K.V.S. showered encomiums on a young lawyer like Achan for his splendid performance, it was as momentous an event as Sir Donald Bradman paying warm tributes to Sachin Tendulkar. An amazing mission of a lawyer was completed when the two lawyers shook hands before they left the court house. I was thrilled to applaud at that moment, when the nobility of the profession was thus upheld. I share that excitement with the new generation of lawyers even after 55 years.

The High Court Library – A Thing of the Past !

(By  Bechu  Kurian  Thomas, Senior  Advocate,  High  Court  of  Kerala)

Ram Mohan Palace, was built in 1935, overlooking the backwaters with a private boat Jetty. The Palace was built as the Viceregal Guest House. History records that Ram Mohan Palace was used as a Military Hospital during World War II and later as the Secretariat of the State of Cochin till 1949. In 1949, it became the seat of the High Court of Travancore – Cochin State. After the State of Kerala was formed in 1956, under the States Re-Organization Act 1956, High Court of Kerala had its seat in Ernakulam and functioned in the Ram Mohan Palace. It is also recorded that after construction of this baronial mansion, it became quite enchanting, that, an entrance fee of Rs.1/- had to be charged for restricting the endless flow of visitors to the building. 

On my first visit to the Ram Mohan Palace, way back in 1985, to witness the swearing in ceremony of a Judge, I was awestruck not only by the procession of well groomed black robed gentlemen escorted by colourfully attired maze bearing men walking towards ‘Court Hall No.7’ but also by the sheer grandeur of the Ram Mohan Palace. While watching the ceremonial procession, I was attracted to an imposing edifice, situated near ‘Court Hall No.7’ and almost at the Centre of the Palace buildings. A peek into that edifice, I was amazed at the plethora of books arranged. I could not gather the courage, then, to take a stride inside, for in those days, books were an anathema to me.

Years later, on my first visit to the High Court of Kerala as a novice in the black robed profession, I entered that magnificent edifice which bore an insignificant wooden board containing an even insignificant word. ‘Library’, written at the entrance. The imposing edifice, contrary to the diminutive board that identified the structure, housed one of the most important organs of the temple of justice – The Kerala High Court Library.

From the Halsbury’s Laws of England to Corpus Juris Secondum, from Law Journals of a small State like Rangoon to that of the Privy Council, from Statutes of 1800’s to the most latest, the High Court Library contained an abundance of books.

Learning the letter of law became a thing of joy inside the library. There was not a single day in my early days at the High Court, without traversing the narrow corridors of the library, made even narrower by the rows of shelves arranged one after the other. The smell of books mixed with the stench of dust, though irritating at times, were generally inspiring. Sitting at a nook of the Library on odd shaped ladder cum chair, gave a strange feeling. To climb the stairs to the third floor of the library, though daunting, was nevertheless invigorating. Amidst the time spent on research, the junior lawyers had the opportunity to even eavesdrop into the conversation of the giants of the profession happening at the ‘round table’ on the ground floor. The table adjoining the ‘round table’ gave an opportunity to the raw junior Advocates to sit beside those giants who, used to discuss anything and everything under the Sun. I have looked with awe the likes of S. Narayanan Potti, P. Sukumaran Nair, PNK Achan, TRG Warriyer, K.C. John, T.P.Kelu Nambiar and many others doyens of yester years sharing a lighter moment around the round table and even discuss inspiring legal points.

Access to journals, texts and other authorities were extremely easy. The manner in which the books were arranged, the aesthetics of the building and the easy access to the books, I felt, created a passion in every junior Advocate to read. The very sight of the High Court Library situated in the Centre of the Court Complex generated an eagerness to read in every Advocate who set his foot there. G.K. Chesterton, the English Author, Poet and Philosopher once remarked that “There is a great deal of difference between an eager man who wants to read a book and a tired man who wants a book to read”. I am certain that the High Court Library had a great role to play in creating eagerness in those doyens of the Bar of yester years as it would have instilled in them an eagerness to read. Of course I am wary of the fact that, reading, in times of digital era and digital content is changing. Still, the sight of books and its availability is no less invigorating. For most, the sound of turning the pages of a book and its stench creates a passion to read, much more than swiping a finger across a ‘tablet’ or dragging a ‘mouse’ down.

Change has been the buzzword all over the World. Change is also intended positively. Unfortunately change has visited Ram Mohan Palace in the last two decades but with a negative impact. The Palace which overlooked the backwater has lost its scenic beauty with the backwaters being pushed back due to land reclamation and odd-shaped concrete structures blocking its view. The private Boat Jetty of Ram Mohan Palace has changed into an entry to the tarred road in front and not a droplet of water is visible from any part of the Ram Mohan Palace. The seat of Justice of the State also shifted from the baronial mansion to an eight storied structure. With glass and steel mixed with bricks, the new building cannot boast of any Architectural theme, to house the highest Court of the State. Though the structure and the arrangement of Court halls spread over eight floors are disappointing more disheartening is the library in the new High Court buildings.

From a magnificent library in the Ram Mohan Palace, the High Court Library was shifted to a ‘small’ room in the new Complex that too in an insignificant part of the building. The High Court library lost its glamour. Access for lawyers to the books became restricted. Has this been the reason for the downward trend in the legal prowess of lawyers - I wonder. It is a pity that when the new 8 storied structure was designed, there was no provision for housing the High Court Library. Restricted accessibility for the lawyers to the text books also creates hurdles in stirring the legal instincts and developing the legal aptitude.

The design flaw and lack of planning and vision in the High Court building has provided only a very restricted space to accommodate the books and hence the books are kept in different areas and rooms. Lawyers have access only to one of the rooms of the Library and books from the other rooms can be obtained only after a request is given to the librarian who will then send a staff to fetch the book. However courteous and helpful the staff in the library are, still there is no better joy for an avid reader than to rummage through the books on the shelves of a library and select the relevant one. The old Library provided such pleasures too for the Advocates, while the present Library deprives even that. It is a sad plight for the great library. The number of black robed members of the noble profession visiting the High Court Library is dwindling down drastically. The Kerala High Court Library is slowly becoming a thing of the past !

Yet Another Instance of Conflicting Verdict

(By V. Ramkumar, Former Judge, High Court of Kerala)

If a Judge is of opinion that the interpretation of a legal provision by another Judge in a reported verdict, is erroneous, then, in the absence of a binding precedent to the contrary either by a larger Bench or by a Superior Court, judicial discipline demands that he refers it to a Division Bench through the proper channel. Instead of adopting that course, if the second Judge considers himself to be intelligent enough to tread a different path, it is the system which suffers. That is precisely what happened in the case of Rule 26 of the Criminal Rules of Practice, 1982 (Kerala) which reads as follows:-

“26.Complaints against Police Officers not to be referred to the Police:--
A complaint against a Police Officer shall not be referred to by a Magistrate under Section 202 of the Code to any person other than a Magistrate subordinate to him”.

2. In the first place, after the integration of the Magistracy in this State with effect from 1.1.1992 whereby the Courts of the Magistrates of the Second Class were abolished and there exist only the Courts of the Judicial Magistrates of First Class, besides the Courts of the Chief Judicial Magistrates. There is no Magistrate Subordinate to the Judicial Magistrate of the First Class in the State of Kerala from 1.1.1992 onwards. Hence, Rule 26 may have to be amended suitably.

3. That apart, interpreting the very same rule as it stands now, way back in the year 1998, Justice P.V.Narayanan Nambiar held that the principle behind Rule 26 is that Police Officers who conduct an inquiry will be very slow in finding fault with their colleagues or subordinates and the apprehension in the mind of the complainant that he will not get justice will still be there no matter whether the inquiry is conducted by the officer-in-charge of the Police Station or by a superior Police Officer. The views of the other High Courts in this behalf were also noticed by the learned Judge. (Vide Jessy Jacob v. State of Kerala (1998 (2) KLT 554). No doubt, in that case the complaint was forwarded to the Police under Section 202 Cr.P.C. Taking cue from Jessy Jacob (supra) Justice K. Padmanabhan Nair held in Superintendent of Police, C.B.I. v. State of Kerala (2005 (3) KLT 823) that although at first blush Rule 26 would seem to apply only in cases where the Magistrate proceeds under Section 202 Cr.P.C., the principle thereunder is also applicable to a complaint forwarded to the Police under Section 156(3) Cr.P.C. at the pre-cognizance stage. (See paragraphs 17 and 19 of the reported decision).

4. Now another learned Judge of the Kerala High Court in Balachandran v. State of Kerala (2015 (4) KLT 907) has held that the interdict under Rule 26 is applicable only in the matter of investigation by the Police under Section 202 Cr.P.C. and is inapplicable to an investigation under Section 156(3) Cr.P.C. The learned Judge has hastened to add that the reasons which weighed with him were not brought to the notice of the learned Judge who decided Superintendent of Police, C.B.I. v. High Court of Kerala (supra). The learned Judge has observed as follows:

“The report filed after completing the investigation under S. 202 of the Code forms part and parcel of the proceedings under S. 202 of the Code. Therefore, the complainant will be having no option to exclude the materials collected during the course of investigation by the police under S. 202 of the Code. Therefore, there will be apprehension in the mind of the complainant that the investigation conducted by the Police will not result in collection of materials against a Police Officer correctly. On the other hand, in the case of an investigation under S.156(3) of the Code, the Police is having the power to file final report under S.173(2) of the Code. Even if a refer report is filed under S.173(2) of the Code, the remedies of the complainant to proceed further will not be exhausted. The complainant can file a protest complaint or to seek the assistance of the Court for further investigation under S.173(8) of the Code. In other words, even after filing the final report by the Police, the complainant is having options to get his grievance redressed through the Court of law. However, in the case of investigation under S.202 of the Code, the remedies of the complainant will be foreclosed, as the materials collected during the course of investigation will form part of the enquiry under S.202 of the Code. The Court is also not empowered to go back to the pre-cognizance stage, even if a report negating the case of the complainant is submitted by the Police Officer to save his colleague or subordinate, as S.202 of the Code applies at post-cognizance stage. Therefore, even the powers of the Court will be restricted once a report is received under S.202 of the Code, as the direction for investigation under Section 202 of the Code is for the purpose of determining “existence of sufficient ground to proceed”. That may be the reason why Rule Committee of the High Court decided to incorporate R.26 in the Rules that a complaint against a Police Officer shall not be referred to by a Magistrate under S.202 of the Code to any person other than a Magistrate subordinate to him. The Rules Committee of the High Court was well aware of the two provisions empowering the Magistrate to forward the complaint to the Police for Investigation, which are Ss.156(3) and 202(1) of the Code. Even then, the Rules Committee excluded S.156(3) of the Code from the purview of R.26 of the Rules. The said exclusion seems to be not accidental or due to oversight, but was deliberate. Since the provisions of R. 26 exclude S.156(3) of the Code from the purview of R. 26, the powers conferred by the Statute on the Magistrate under S. 156(3) of the Code cannot be taken away under the said Rule. It is true that the heading of R. 26 is a little confusing. However, the provisions of R.26 are clear and unambiguous that the said provisions are applicable only to the investigation by the Police under S.202(1) of the Code. When the provisions are clear and unambiguous, no other interpretation is permissible. Therefore, if any restriction is imposed, in the absence of any provision in the rules, on the powers of the Magistrate under S.156(3) of the Code, that will tantamount to curtailing the powers conferred by the Statute without any sanction of law, which is impermissible. The above aspects were not brought to the notice of the learned Judge when Superintendent of Police, C.B.I. v. State of Kerala (supra) was decided and consequently, the learned Judge had no occasion to go through the said aspects”.                 (emphasis supplied by the author)

5. In my humble view, the above reasons are hardly sufficient for taking a different view since there is no verdict either by a larger Bench or by a Superior Court taking a contrary view. The three-Judge Bench of the Apex Court in Ramdev Food Products Pvt.Ltd. v. State of Gujarat (2015 (2) KLT SN 65 (C.No.77) SC =AIR 2015 SC 1742), relied on by the learned Judge has not decided this issue regarding the desirability of forwarding to the Police under Section 156(3) Cr.P.C. a complaint in which a police officer is an accused person. I fail to understand the role of any Rule Committee of the High Court deciding to incorporate Rule 26 in the Criminal Rules of Practice. The Rule Committee constituted under Section 122 Cr.P.C. is to recommend to the High Court to amend the Schedule to C.P.C. The said Rule Committee has no power to frame or amend the Criminal Rules of Practice. The said Committee is called the Rule Committee and not the “Rules Committee”. It is understood that there is a Rules Committee in the High Court in relation to the High Court Service Rules. But this author is not aware of any Rules Committee for recommending amendments to the Criminal Rules of Practice.

6. It is only a rule of prudence that in cases where a Police Officer is an accused, the matter is not ordinarily forwarded to the Police under Section 156 (3) Cr.P.C. at the pre-cognizance stage or under Section 202 Cr.P.C. at the post cognizance stage in view of the possible clannish or departmental bias. In such cases it would be better if the Magistrate takes cognizance and himself conducts an inquiry under Section 202 Cr.P.C. The Cr.P.C. does not prohibit the forwarding of such complaints to the Police for investigation either under Section 156(3) Cr.P.C. or under Section 202 Cr. P.C. The interdict against forwarding such complaints to the Police is only in the aforesaid Rule occurring in the Criminal Rules of Practice framed by the High Court. Essentially much depends upon the apprehension of the complainant in case his complaint were to be forwarded to the police either under Section 156 (3) or under Section 202(1) Cr.P.C. The Magistrate is the best Judge in that behalf. If one of the accused in the complaint is a police constable attached to some remote police station not within the jurisdiction of the Magistrate and the Magistrate considers that the officer-in-charge of the Police Station within whose territorial limits the alleged occurrence took place, will fairly conduct an impartial investigation and the complainant also does not entertain any apprehension in forwarding the complaint to the Police, nothing prevents the Magistrate from forwarding the complaint to the officer-in-charge of the Police Station. In fact, in Balachandran’s case (supra) the Magistrate had forwarded the complaint to the Station House Officer under Section 156(3) Cr.P.C. and the latter had charge-sheeted the sole accused who was a police officer. It was the accused Police Officer who approached the High Court challenging the investigation by the SHO by placing reliance upon Rule 26. In my view the learned Judge rightly rejected his contentions. All that was necessary in that case was to say that Rule 26 was a provision for safeguarding the possible apprehension of the complainant and not the accused. But instead, the learned Judge strayed into unnecessary fields to hold that Superintendent of C.B.I. v. State of Kerala did not take into consideration the aspects which were highlighted by the learned Judge. In that process, two conflicting views regarding the applicability of Rule 26 have come into existence resulting in confusion in the world of stare decisis.

7. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with this end in view i.e., to achieve consistency in judicial pronouncements that Courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by Courts, then there will be chaos in the administration of justice. (Vide Govt. of A.P. v. A.P. Jaiswal (2001) 1 SCC 748 = AIR 2001 SC 499); Supreme Court Advocates Association v. Union of India (1993) 4 SCC 441 = AIR 1994 SC 768); Indra Sawhney v. Union of India (1992 Supp. (3) SCC 217= AIR 1993 SC 477); G.C. Gupta v. N.K.Pandey ((1988) 1 SCC 316=AIR 1988 SC 654). No Bench of the High Court can comment on the functioning of a co-ordinate Bench of the same Court, much less, sit in judgment as an appellate Court over its decision. That which could not be done directly could also not be done indirectly. Otherwise, a party aggrieved by an order passed by one Bench of the High Court would be tempted to attempt to get the matter re-opened before another Bench and there would not be any end to such attempts. Besides, it may not be consistent with judicial discipline which must be maintained by Courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary. (Vikramajit Singh v. State of M.P. (1992 Supp. (3) SCC 62 = AIR 1992 SC 474).

8. Any attempt to distinguish a previous judgment on the ground that there was no elaborate discussion and, therefore, no reasons are discernible, is clearly violative of judicial discipline. (Vide Special Deputy Collector (LA) v. N.Vasudeva Rao ( AIR 2008 SC 944).

The resultant position is that we have one reported decision which says that the embargo under Rule 26 is applicable while forwarding a complaint for investigation both under Section 156(3) Cr.P.C. as well as under Section 202 Cr.P.C. and another reported decision which says that the interdict under Rule 26 applies only while forwarding the complaint under Section 202 Cr.P.C. and it is not applicable while forwarding the complaint under Section 156 (3) Cr.P.C. Can the option to distinguish between the two interpretations and to adopt the appropriate decision be left to the legal practitioners and the Courts dealing with the matter ?