In My View, George v. State of Kerala (2015 (3) KLT 219)
Does Not Lay Down The Correct Law

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

The Facts Leading to the Acquittal

The case which came up for consideration before the Hon’ble High Court of Kerala, was an appeal against the conviction entered and sentence passed against the appellant (a U.D.Clerk in the Town Employment Exchange, Pala) by the Enquiry Commissioner and Special Judge, Thrissur (“Special Judge” fort short) for offences under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“P.C. Act” for short) and Sections 409, 465, 471 and 477-A of the Indian Penal Code, 1860 (“I.P.C.” for short).

2. The case of the prosecution was that on 23.1.1990 and on 15.1.1991 the accused/appellant while working as a U.D.Clerk in the aforesaid office had misappropriated a total amount of `4080/- by committing criminal breach of trust, using forged documents and by falsification of accounts.

3. The accused was found guilty of all the offences charged and appropriate sentence was also imposed on him by the Special Judge. It was the said conviction which was assailed by the accused in the appeal filed before the Hon’ble High Court of Kerala.

4. Accepting the arguments of the accused/appellant the learned Judge, as far as I could comprehend, held as follows:-

i) The prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences (Section 465 and 471 I.P.C.) and also for the reason that the trial court did not exercise its power of condoning the delay under Section 473 Cr.P.C. before taking cognizance. (Judgment – para 17).

ii) The prosecution should fail for want of prosecution sanction under Section 197 Cr.P.C. in relation to the offences under the I.P.C., namely, Sections 409, 465, 471 and 477-A because the power given to the Director of Employment to remove the appellant from his office is only as an agent or delegate of the Government and therefore the appellant must be deemed to be removable only by or with the sanction of the Government. (Judgment – paras 24,25 and 27)

iii) The prosecution is bad for not obtaining proper prosecution sanction by the authority competent to grant sanction under Section 19 of the P.C.Act since the authority delegated as the sanctioning authority by the Governor was the Secretary of Vigilance Department and not the Director of Employment although the said Director is the appointing authority as well as the authority competent to remove the accused from his office. (Judgment – paras. 24,25 and 27).

iv) The decision in George v. State of Kerala (2004 (2) KLT 369)in the Writ Petition filed by the appellant challenging the want of prosecution sanction under S.197 Cr.P.C., has been rendered disregarding the legal and constitutional provisions and is without jurisdiction and a nullity besides being per incurium and is therefore, not binding. (Judgment – paras 20,21,24,25 and 26).

v) The inordinate delay in the investigation and the illegality in the investigation coupled with the rigmarole of trial have violated the appellants’ fundamental right to get a fair trial guaranteed by Article 21 of the Constitution of India. (Judgment – paras 28 and 29).

The conviction entered and the sentence passed by the Special Judge was accordingly set aside and the appellant/accused was acquitted of all the offences charged against him.

MY COMMENTS

5. The bar of limitation alleged. The bar of limitation and that too only for offences punishable with imprisonment upto 3 years, was introduced for the first time only in the present Cr.P.C. None of the earlier Codes of Criminal Procedure contained any such provision. The general rule of criminal justice is that “ a crime never dies”. This is reflected in the maxim “ nullum tempus aut locus occurrit regi” (Lapse of time is no bar to the Crown in proceeding against offenders). This is because a criminal offence is considered as a wrong against the State and the society eventhough it has been committed against an individual. It is by way of an exception to the above rule that the law of limitation was, for the first time, introduced in the present Cr.P.C. but only for relatively minor offences. The justification is that no person should be kept under continuous apprehension that he can be prosecuted at “any time” for “any crime” irrespective of the nature or seriousness of the offence. (Vide Japani Sahoo v. Chandrasekhar Mohanty (2007 (3) KLT 760 (SC) = (2007) l7 SCC 394 = AIR 2007 SC 2762).

In the case on hand, the offences with which the accused/appellant was charged, were Section 409 I.P.C. (punishable with imprisonment for life or imprisonment for 10 years and fine); Section 465 I.P.C. (punishable with imprisonment upto 2 years); Section 471 I.P.C. (punishable with imprisonment upto 2 years) and Section 477-A I.P.C. (punishable with imprisonment for 7 years) and Section 13(1)(c) read with Section 13(2) of the P.C. Act (punishable at the relevant time with imprisonment upto 7 years) - By vurtue of sub-s. (3) of S. 468 Cr.P.C. the period of limitation, in relation to offences which may be tried together (as in this case), is to be determined with reference to the offence which is punishable with the most severe punishment. In the present case, the offence under Section 409 I.P.C. is the one which is punishable with the most severe punishment which is imprisonment for life or imprisonment for 10 years and fine. Under Section 468 Cr.P.C. read with Section 469 Cr.P.C. the maximum period of limitation is only 3 years from the date of commission of the offence for offences punishable with imprisonment not exceeding 3 years. If so, by virtue of the inclusion of the offence under Section 409 I.P.C. which is punishable with the most severe punishment far exceeding 3 years, there cannot be any limitation for any of the offences which are tried jointly with the offence under Section 409 I.P.C. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297); Radhakrishnan P.R. & Anr. v. State of Kerala & Anr. – 2012 (3) KLT 88; Rameshwar v. Rajeshwar Prasad Sahu – 2010 Crl. L.J. 361; Bhart Lal v. Top Singh (1995 Crl. L.J. 3545); Harman Singh v. Everest Construction Co. (2004 Crl. L.J. 4178); Sri. Balaji Traders v. State (1990 Crl. LJ 332); Raman Gowda v. The Registrar (Vigilance), High Court of Karnataka (2006 Crl. L.J. 1839). What the Court has to examine is the nature of the offence which the accused was charged with and not the nature of the offence for which the accused is eventually convicted. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297).This is something analogous to Section 155(4) Cr.P.C. where a case involving non-cognizable offences along with at least one cognizable offence, is to be treated as a cognizable case for the purpose of investigation. In fact, it was after observing correctly towards the end of paragraph 8 of the verdict in question to the effect that if the offence alleged against the accused is punishable with imprisonment exceeding 3 years, there is no period of limitation for the prosecution, that the learned Judge fell into an error by concluding in paragraph 17 as under:-

 “Therefore, I am of the view that the prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences and also for the reason that the Trial Court did not exercise its power under S.473 Cr.P.C. before taking cognizance.”

Such a conclusion was legally impermissible.

Absence of prosecution sanction under Section 197 Cr.P.C.

6. With regard to the offences under Sections 409, 465, 471 and 477A I.P.C., the learned Judge has concluded in paragraph 27 of the verdict in question that absence of a prosecution sanction under Section 197 Cr.P.C. is fatal. Admittedly, the accused /appellant is a public servant. The question of obtaining prosecution sanction will arise only if such public servant of the nature referred to in Section 197(1) Cr.P.C. committed the offences while acting or purporting to act in the discharge of his official duty. There is a whole line of precedential authority to the effect that committing the aforementioned offences cannot constitute acts done in the performance of the official duty of a public servant. In State of H.P. v. M.P.Gupta 2004 (1) KLT SN 43 (C.No. 56) SC = (2004) 2 SCC 349 = AIR 2004 SC 730, it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under Section 467, 468 and 471 IPC and, therefore, there was no need for any sanction to prosecute the public servant. Again it has been held that sanction for prosecuting a public servant for offences punishable under Sections 409 and 468 I.P.C. is not required since those offences cannot be committed in discharge of official duty. (Vide State of U.P. v. Paras Nath Singh (2009 (3) KLT Suppl. 999 (SC) = (2009) 6 SCC 372) – 3 Judges; Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1 = AIR 2007 SC 1275; Bholu Ram v. State of Punjab (2008 (4) KLT SN 51 (C.No. 47) SC = (2008) 9 SCC 140).If so, no prosecution sanction under Section 197 Cr.P.C. is required to be obtained for prosecuting a public servant for the aforementioned offences. (Here the humble personal view of this author is that it is only when the public servant exceeds his lawful authority and commits an offence that the question of prosecuting him for such offences will arise and it is only for such prosecution that the sanction of the authority competent to grant sanction, is required. VidePadmarajan C.V. v. Government of Kerala & Ors. 2009 (1) KLT Suppl. 1 = ILR 2009 (1) Ker.36 – para 12.But personal views of mortals like the author should definitely yield to the authority of binding judicial precedents, particularly of the Apex Court by the force of Article 141 of the Constitution of India).If so, the absence of sanction to prosecute the accused for the I.P.C. offences, was not fatal.

The accused public servant whether removable from his office by or with the
sanction of the Government ?

7. If sanction to prosecute the appellant under Section 197 Cr.P.C. with regard to the I.P.C. offences is not necessary at all, then the further question as to whether he is removable from office by or with the sanction of the Government, is purely academic. But with regard to the offence under Section 13(1)(c) of the P.C. Act, this question is relevant since clause (b) of Setion 19(1) P.C. Act is somewhat pari materia with clause (b) of Section 197(1) Cr.P.C. The verdict in question has devoted much space for evaluating the argument of the accused in this behalf. In paragraph 24 (at page 237 of the KLT) of the judgment, the learned Judge has found that the appointing authority of the appellant who is a Government servant, is the Director of Employment. The discussion proceeds to hold that as per the delegation made under Rule 9 of the Kerala Civil Services (Classification, Control and Appeal) Rules falling under Section 3 of the Public Services Act which in turn is subservient to Article 309 of the Constitution of India, the Director of Employment is the appointing authority of the appellant. It is further found that the accused is removable from his office also by the said Director. It was the very same Director who issued Ext. P64 order of sanction under Section 19 of the P.C. Act. The Director who issued the sanction order was examined as PW 20 also. If so, can it be said that the appellant is removable from office by the Government or with the sanction of the Government? Who else, other than the Director, is the authority competent to grant the prosecution sanction under Section 19(1)(b) of P.C. Act.? When the appellant is not removable from office by or with the sanction of the Government, but instead is removable from office only by the Director of Employment, there was no need for prosecution sanction under Section 197 Cr.P.C. Both Section 197 Cr.P.C. as well as Section 19 of the P.C. Act, draw a line between public servants of various classes. When some lower authority is by law, or rule or order, empowered to remove a public servant, then such public servant cannot be said to be one removable by or with the sanction of the Government. (Vide Nirendra Natha Sarkar v. State of Assam (1985) Crl. LJ . Noc 21 (Gau.) ; Sakuntala Bai v. Venkatakrishna Reddy– 1952 Crl. L.J. 1295 (Mad.); Pichai Pillai v. Balasundara Mudaly (AIR 1935 Mad. 442= 58 Mad. 787).

The following passage in the judgment in question occurring towards the bottom of page 236 and the beginning of page 237(of KLT) indicates the reasoning put forward on behalf of the appellant and upheld by the learned Judge:

“The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts; provided those rules conform to the principles of judicial procedure. It is therefore clear that the words “State Government” does not mean the Governor himself, but includes his delegates either under a valid law or under Article 154(1) read with 166(3) of the Constitution of India. Learned counsel therefore contended that as per the ratio in the above decision (Gullapalli Nageswara Rao & Ors. v A.P.State Road Transport Corporation & Anr. (AIR 1959 SC 308), a Government employee removable by the Governor or his delegates as per the above said provisions will come within the definition of the Government servant removable by the Government for the purpose of Section 197(1) Cr.P.C. The contention raised by the Counsel is legally sound and therefore I am inclined to accept it.”

With due respect, it was precisely such an identical contention which was repelled by the Federal Court way back in the year 1943 in Afzalur Rahman and Others v. Emperor – AIR 1943 F.C. 18while dealing with the Section 197 of the Code of Criminal Procedure, 1898, which corresponds to S.197 Cr.P.C. The Federal Court, in this connection, took judicial notice of the fact that Section 197, in one form or the other, had appeared in successive Codes of Criminal Procedure for more than 70 years then and hence the provision should be interpreted in the light of certain well known features of the administrative system prevailing in India. Adverting inter alia to the verdict of the Madras High Court in Pichai Pillai v. Balasundara Mudali (AIR 1935 Mad. 442),the Federal Court observed that rules and regulations had been framed by the provincial Governments dividing the superior and subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. The Federal Court further observed that such rules and regulations had all along provided that certain superior class of officers can be dismissed only by or with the sanction of the local Government and it is to this class of officers that the Legislature intended to limit the protection given by Section 197.

The Federal Court consciously refrained from applying the maxim “ Qui facit per alium facit per se” ( a person who acts through another acts himself) in such situations. Once this distinction is understood, there will be no warrant for an argument of the type advanced before the learned Judge without adequate research. In Nagraj v. State of Mysore (AIR 1964 SC 269)it was argued before a three-Judge Bench of the Supreme Court that the accused Sub Inspector of Police could be dismissed from service only by the State Government and, therefore, sanction under Section 197 Cr.P.C. was necessary for his prosecution for the offences purported to have been committed in the discharge of his duty. The said argument did not find favour with the Supreme Court which held that since an Inspector General of Police could dismiss a Sub Inspector of Police, the latter could not be said to be a public servant not removable from his office save by or with the sanction of the Government so as to insist that sanction of the State Government was necessary for prosecuting the Sub Inspector even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty. To the same effect is the decision of the Punjab and Haryana High Court in Sant Kumar v. State of Punjab (2003 Crl. L.J. 2949).Such being the legal position, the contention urged and upheld in this behalf, was wholly unsustainable.

Whether the delegated authority competent to grant prosecution sanction is the Director of Employment or the Secretary, Vigilance Department?

8. In paragraph 24 of the judgment in question reference is made to the submission by the appellants’ counsel that the power under Section 197(1) (b) Cr.P.C. was delegated to the Secretary, Vigilance Department by the Governor under Article 166 of the Constitution of India. No order to that effect appears to have been produced before the Hon’ble High Court. From the aforementioned submission, the learned Judge would straightaway conclude that PW20 (the Director of Employment) was, therefore, not authorised to grant sanction under Section 197 Cr.P.C. as a delegate of the Governor as on the date of Ext. P64 sanction order. The judgment is not clear whether the appellants’ argument was that with the empowerment of the Secretary, Vigilance Department, under Section 197(1)(b) Cr.P.C. by the Governor, the Director of Employment was stripped of his power to grant prosecution sanction. It has already been seen that sanction for prosecuting the appellant under Section 197 Cr.P.C. was not necessary. With regard to the offence under Section 13(1)(c) and punishable under Section 13(2) of the P.C. Act, prosecution sanction has been granted by the Director under Section 19 of the P.C. Act. Since the appellant was not removable from office by or with the sanction of the Government within the meaning of Section 19(1)(b) of the P.C. Act, it was sufficient that the prosecution sanction was granted by the Director as provided under Section 19(1)(c) of P.C. Act.

9. Now, the further question is whether it was the Director of Employment or the Secretary of Vigilance Department, who was competent to grant sanction under Section 19(1) (c) of the P.C. Act. The appellant’s argument that it was the Secretary of Vigilance Department who was the authority competent to grant prosecution sanction under Section 19 of P.C. Act, presumably stems from G.O.(Ms) 169/94/GAD dated 23-4-1994 as per which the Vigilance Department was inter alia invested with the power of issuing orders sanctioning prosecution of a public servant under the Cr.P.C. and the P.C. Act. Corresponding amendment to the duties and functions of the Vigilance Department which is Serial No. XXXVI in the First Schedule to the Rules of Business of the Government of Kerala framed by the Governor under Article 166(2) and (3) of the Constitution of India, was incorporated as Item 8 at page 69 of the said Rules. The above investiture is only with regard to those public servants who are removable by or with the sanction of the Government. In fact, at present it is the Vigilance Secretary and not the Administrative Secretary concerned, who is issuing orders of prosecution sanction both under Section 197 Cr.P.C. and Section 19 of the P.C. Act in relation to public servants who are removable by or with the sanction of the Government. This has nothing to do with the issuance of prosecution sanction under Section 19(1)(c) of the P.C. Act regarding public servants like the appellant who are not liable to be removed from office by or with the sanction of the Government. Hence the prosecution sanction given by the Director of Employment is perfectly valid.

The impact of the Writ Petition and appeal filed by the accused

10. After the Special Judge took cognizance of the aforementioned offences, the accused/appellant filed a Writ Petition (O.P.No. 10181 of 1999) before the Hon’ble High Court of Kerala seeking to quash the F.I.R. on the ground that since he is a public servant not removable from office save by or with the sanction of the Government, sanction to prosecute him under Section 197 Cr.P.C. was a condition precedent for prosecuting him. Mr. Justice J.B. Koshy after a detailed analysis of the legal provisions as well as the case law on the point held that the appointing authority of the accused was the Director of Employment and the accused was liable to be removed from his post also by the same officer under the Civil Services (Classification, Control and Appeal) Rules and, therefore, the accused is not a public servant not removable from his office save by or with the sanction of the Government within the meaning of Section 197 Cr.P.C. Consequently, it was held that Section 197 Cr.P.C. was not attracted so as to warrant a sanction to prosecute the accused under that section. The Writ Petition was dismissed on 21.3.2000. Aggrieved by the decision of the learned Single Judge, the accused/appellant filed a Writ Appeal (W.A.No. 925 of 2000) before the Hon’ble High Court. The Division Bench speaking through Mr. Justice K.A. Abdul Gafoor affirmed the view taken by the learned Single Judge and dismissed the Writ Appeal on 13.2.2004. The decision of the Division Bench has been reported in George v. State of Kerala (2004 (2) KLT 369).

The accused /appellant having assailed the prosecution proceedings against him on the ground of absence of prosecution sanction under Section 197(1)(b) Cr.P.C. and want of proper sanction under Section 19(1)(b) of the P.C.Act and having suffered an adverse verdict at the hands of the Hon’ble Judges who were well versed in service law as well, was estopped from turning round and assailing those verdicts as illegal and passed without jurisdiction and rendered per incurium. Strangely enough, with a view to circumvent the above adverse verdicts, the accused/appellant who contended that the principles of res judicata and constructive res judicata are not applicable to criminal proceedings, placed reliance upon Ashok Leyland’s caseto contend that a jurisdictional question, if wrongly decided, would not attract the principles of res judicata. If, committing the specified offences under the IPC is not part of the official duty of a public servant so as to warrant prosecution sanction under Section 197 Cr.P.C. and if the said provision is not attracted also for the reason that the accused is not removable from his office by or with the sanction of the Government, where is the question of any jurisdictional error in the adverse verdicts suffered by the accused so as to avoid those verdicts?. The attempt made by the accused to place reliance upon the decision of the Constitution Bench in Gullapalli Nageshwara Rao’scase to contend for the position that the Governor through his delegates can also perform such quasi judicial acts, was also wholly misplaced. Granting or refusing prosecution sanction is an administrative act and not a quasi judicial one. Hence the order granting or refusing sanction is a mere executive order. (Vide State of Maharashtra v. P.P. Sharma ((1992) Supp (1) SCC 222); A. Veeraswamy v. Union of India ((1991) 3 SCC 655); State of Maharashtra v. Ishwar Piraji Kalpatri ((1996) 1 SCC 542); T.M. Jacob v. State of Kerala (1999 (2) KLT 161).When the final verdict in the Writ Petition filed by the accused went against him, he thought it convenient to disown the verdict and collaterally attack the same.

Delay affecting the constitutional rights of the Appellant

11. One of the contentions raised and upheld under this head is that as against Section 17(c) of the P.C. Act which mandates that the investigation of the case shall be conducted by a Police Officer of the rank of a Dy.S.P., the investigation was conducted by PWS 27 and 28 both of whom were of the rank of Inspector of Police and no order authorising them to conduct the investigation was produced. According to the appellant besides the above illegality, the long drawn out investigation with unjustifiable delay has affected the right of the appellant to get a fair trial. The aforesaid illegality alleged by the appellant could not have been countenanced in view of the settled legal position that any infirmity in the investigation cannot affect the jurisdiction of the Court to take cognizance of the case and proceed to trial unless the objection in that regard was raised at the earliest opportunity. To put it differently, any defect or illegality in the investigation, however serious, has no direct bearing on the cognizance of the case or its trial. (Vide H.N. Rishbud v. State of Delhi (AIR 1955 SC 196); Mobarik Ali Ahmed v. State of Bombay – (AIR 1957 SC 857); Din Dayal Sharma v. State of U.P. (AIR 1959 SC 831); E.G. Barsay v. State of Bombay (AIR 1961 SC 1762); Munna Lal v. State of U.P. (AIR 1964 SC 28); State of A.P. v. N. Venugopal (AIR 1964 SC 33); M.C. Sulkunte v. State of Mysore (AIR 1971 SC 508); State of A.P. v. P.V. Narayana (AIR 1970 SC 811); Khandu Sonu Dhobi v. State of Maharashtra (AIR 1972 SC 958); A.C.Sharma v. Delhi Administration (AIR 1973 SC 913); Durga Dass v. State of H.P. (AIR 1973 SC 1379); Nanak Chand v. State of H.P (AIR 1974 SC 765). The appellant not only did not raise any objection in this regard at the earliest opportunity but also did not voice his grievance in this regard in the Writ Petition and Writ Appeal filed by him after the Special Judge had taken cognizance of the offence.

12. The appellant who had moved the High Court in the year 1999 and who was assailing the alleged illegality of absence of prosecution sanction until his Writ Appeal was dismissed by the High Court on 13-2-2004, cannot be heard to say that the delay in the trial had infringed his fundamental right of fair or speedy trial. He alone is responsible for the delay, if any.

13. In paragraph 29 of the verdict in question there is an omnibus statement that the oral and documentary evidence do not establish the guilt of the appellant. What exactly is the evidence has not been discussed. There is no re-appreciation of evidence attempted by the Court of first appeal. It is further stated that the evidence, if analysed correctly, would show that the appellant cannot be blamed singly for the shortage of cash found out on inspection The learned Judge does not appear to have been taken through the oral and documentary evidence for a re-appraisal. In such circumstances, the following observation of the Apex Court in State of H.P. v. Tara Dutt (AIR 2000 SC 297) is most apposite:-

“ It has no doubt been indicated in the penultimate paragraph of the impugned judgment that even on merits the offence under Sections 417 and 465 I.P.C. has not been established but that was only a causal observation without application of mind and without consideration of the facts on record on the basis of which the learned Special Judge convicted the two respondents of the offence under Sections 417 and 465 of the Indian Penal Code.”

My Conclusion

14. Based on the judicial interpretation given to Section 197 Cr.P.C. and Section 19 of the P.C. Act the following propositions of law can be considered to be well settled:-

(i) Unlike Section 19 of the P.C. Act, Section 197 Cr.P.C. contemplates prosecution sanction only by the State or Central Governments, as the case may be, if the other conditions of the said section are attracted and that too only in the case of a State or Central Government employee (other than a member of the Forces) answering the definition of “public servant”. Under Section 19(1)(c) prosecution sanction is necessary even in the case of a non-Government public servant and such sanction is to be granted by the authority competent to remove such public servant from his office.

(ii) It is no part of the official duty of a public servant to commit offences such as those punishable under Sections 409,467,468, 471 I.P.C. etc and for those offences no prosecution sanction under Section 197 Cr.P.C. is necessary. The “Explanation” incorporated in Section 197 (1) Cr.P.C. has statutorily added to the above list a few more offences involving sexual inpropriety.

(iii) With regard to the other offences under the I.P.C., prosecution sanction under Section 197 Cr.P.C. is necessary even if the public servant has ceased to be such public servant provided the other conditions of Section 197 Cr.P.C. are satisfied. But under Section 19 of the P.C. Act, no sanction is necessary if the public servant is no more occupying the post which he allegedly abused. Similarly, if the public servant at the time of the court taking cognizance, is not holding the post which he allegedly abused but is holding another public office where also he may be a public servant, then also sanction under Section 19 of the P.C. Act is not necessary.

(iv) Prosecution sanction by the State Government under Section 197 Cr.P.C. will be required in the case of a State Government servant only if –

(a) he is a public servant removable from his office either by the State Government or with the sanction of the State Government; AND

(b) (i) he is employed in connection with the affairs of the State; OR

(ii) he was, at the time of commission of the alleged offence, employed in connection with the affairs of the State; AND

(c) the alleged offences were committed by him while acting or purporting to act in the discharge of his official duty.

If as per the Rules and Regulations governing such Government servant, a lower officer of the Government has been invested with the power to appoint or remove such Government servant from office, then it cannot be said that such Government servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction by the State Government under Section 197 Cr.P.C. The said provision does not, in such a case, contemplate a prosecution sanction by the delegated authority competent to remove such Government servant from his office unlike Section 19(1)(c) of the P.C. Act.

Similar criteria with necessary changes, will apply in the case of a Central Government servant.

What Prompted me

It is in my anxiety to see that a wrong judicial precedent does not fatally affect both pending and future cases, that I have strained so much as if I were sitting in appeal against the judgement. Counsel appearing before Courts also have some responsibility. The Constitution Bench decision in Gullapalli Nageswara Rao’s case (AIR 1959 SC 308)had been cited and quoted out of context to contend for the position that dismissal from service of a public servant by a delegate of the Government amounts to dismissal by the Government itself requiring sanction under Section 197 Cr.P.C. Similarly, both the appellant and his counsel had no qualms to disown the High Court verdicts which were invited by the appellant himself. I consider it my duty to ensure that the subordinate Criminal Courts are not carried away by some of the sweeping observations in the judgments of superior courts. But with utmost respect I hasten to add that no sort of ill will is meant towards the learned Judge whom I hold in great esteem and affection. After all, dispensation of justice by the Judges is a solemn function carried out in utmost good faith and errors may at times occur quite unintentionally and that is why we have the correctional remedy by way of appeal, revision, review etc. 

E- Is it “Petition Allergy”, “Application Phobia” or “Motion Disgust”?

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

A learned Judge of the Hon’ble High Court of Kerala has inter alia observed as follows:-

“13. It is noticed that numerous applications are being filed before the High Court and the Sessions Court for enlargement of time for the deposit of fine as the Trial Courts refuse to accept the fine/compensation after the period stipulated by the superior Courts, even after the decision of this Court in Girish v. Muthoot Capital (2007 (1) KLT 16).  It is to be remembered that the default sentence is not punitive, but is only a measure to enforce payment of fine/compensation ordered by the Court.  I make it clear that it is illegal, incorrect and unjust to refuse to permit the convict to deposit the fine amount after the date stipulated by the High Court/Sessions Courton the mere reason that no direction for extension has been granted by the High Court/Sessions Court.”                                                 (emphasis is mine)

(VideSubash Sait v. Sree Gokulam Chits and Finance  (2015 (4) KLT 497).

The question posed by the Judge at the commencement of the order is whether the convict can deposit the fine amount after the time stipulated by the High Court or Sessions Court, without any further direction from the High Court or Sessions Court, so as to avoid the default sentence.

The necessary facts

2.  The applicant before the High Court, was the accused who was  convicted by the Trial Court of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (“ N.I. Act” for short). It is not clear from the reported decision as to whether the sentence imposed by the lower courts consisted of a substantive sentence of imprisonment.  In a criminal revision filed by the convict, a learned Single Judge of the High Court confirmed  the conviction but modified the sentence to one of fine (`1,88,000/-) with a default sentence of simple imprisonment for 3 months.  It was also directed that the fine amount as and when realised should be given to the complainant under Section 357(1) Cr.P.C. The convict was also given the option either to deposit the fine amount before the trial Court or to directly pay the compensation amount to the complainant within six months of the order.  In the event of direct payment, the convict was ordered to produce a memo (voucher) before the trial Court.  The convict did not deposit or pay the amount within the time granted by the High Court and, therefore, he got an extension of time from the High Court.  Even within the extended period he did not deposit or pay the amount.  Subsequently he made direct payment, and that too, in instalments to the complainant without any permission from the High Court. ( It is not known whether the acceptance by the complainant of the instalment payments was with full knowledge of the time limit fixed by the High Court because, the order extending time was evidently passed in the absence of the complainant. Even the reported decision has been rendered behind the back of the complainant and the counsel who was heard on the opposite side was the learned Public Prosecutor). After belatedly effecting payments to the complainant, the convict reported the matter before the Trial Court, evidently to avert action for enforcement of the default sentence.  But the trial Court was not inclined to accept the payment which was not within the period stipulated by the High Court.  The Trial Court accordingly initiated coercive steps for recovery of the fine  or for enforcement of the default sentence.  It was under these circumstances that the convict approached  the High Court for further extension of time.  The learned Judge not only dismissed the application but also directed that the payment effected by the convict was to be treated as one made in compliance of the direction of the High Court.  The Registry of the High Court was directed to communicate the order to all the Sessions Judges who in turn were directed circulate the order among all the judicial officers under them.

WHY  THIS   RESPONSE?

3. The order passed by the learned Single Judge virtually amounts to a command   to the lower Courts to ignore or even flout the time–bound directions issued by superior Courts.  The above order has overlooked certain practical aspects of the sentencing discretion exercised by the superior Courts.

4. Prosecutions under Section 138 of the Negotiable Instruments Act are never considered to be as serious as prosecutions for offences under I.P.C. or other penal statutes.  That   is presumably why the appellate or revisional Courts while confirming the convictions under the Negotiable Instruments Act, are lenient in the matter of sentence and very often, exempt the convict from the punishment of incarceration.  Such sentencing gestures by way of moderation are shown by the appellate   or revisional Courts usually behind the back of the complainants on the justification that as long as his share of recompense in the form of adequate compensation is paid to him, he cannot dictate the nature of the punishment to be meted out to the convict.  That is the reason why some Judges while granting extension of time to the convict without even sending notice to the complainant, would take care to ensure that the quantum of compensation is enhanced with every extension so that the complainant can have no grievance. But what is important to note is that the purpose of fixing a time–limit by the Court (whether it be the trial Court or appellate Court or revisional Court) is to ensure that if the convict does not adhere to the same he should then forfeit the judicial indulgence shown to him.  This is because, ordinarily, the fine payable under a sentence of fine, is to be paid forthwith.  (Vide Section 424(1) Cr.P.C.).  While under this provision of law, the convicting Court   can grant time for a period not more than one month, the said restriction may not be applicable to the High Court.  The indulgence by way of enlargement of time, after time was once granted, also can be shown only by the High Court by virtue of its inherent power. (Vide Sreedharan v. Bharathan(2014 (1) KLT 236 (D.B.) But if the convict does not make the payment within the time granted by the High Court, then he forfeits the judicial indulgence shown to him thereby becoming liable to the self-working direction of the sentencing Court that he shall undergo the default sentence.  This consequence can be averted by him only by again approaching the High Court for a ratification of the belated payment, if any, made.  If he does not do so, he may have to suffer the consequence of facing coercive action for the default sentence.  Even in cases where the convict is given the benefit of making direct payment to the complainant within a time-frame, the convict cannot take undue advantage of such benefit by making the payment at his own leisure and beyond the period fixed by the High Court.  It may be relevant in this connection to note that the complainant while accepting the payment without any demur, may not even be aware of the enlargement of time granted by the High Court or even the time-limit fixed by the High Court for payment, all done behind his back.  One should not forget that an informed complainant can even refuse to accept the belated payment and in such case also the convict will have to undergo the default sentence because any payment effected or attempted to be effected beyond the time-limit fixed by the High Court is no payment at all.  The relevance and applicability of Sections 68 and 69 of the Indian Penal Code will arise only when the convict actually undergoes the default sentence which then will have to be terminated upon payment of the fine amount in full or part. The illustration to Section 69 of the Indian Penal Code also envisages a situation in which the convict is actually undergoing imprisonment in default of payment of fine. This aspect of the matter was overlooked in the decision of another learned Judge in Girish v. Muthoot Capital Service(P) Ltd. (2007(1) KLT 16) which has been relied on in the reported case in question.   It is pertinent to note that even if the convict undergoes the full term of default sentence, his liability to pay the fine amount is not wiped off if the Court considers it necessary to issue the warrant for special reasons to be recorded in writing or if it is the very same fine amount which is directed to be paid as compensation to the complainant under Section 357(1) Cr.P.C. (as in this case). (Vide the proviso to Section 421(1) Cr.P.C.).  Hence Sections 68 and 69 of the Indian Penal Code cannot be an answer to justify the refusal to comply with the time-bound direction in letter and spirit or for bye-passing the High Court.   Fixation of time-limit for compliance of the direction for deposit or payment within the extended period, should have some meaning.  Otherwise, it may even be possible for a convict to go abroad, mobilise sufficient funds, return to India after a few years and then deposit the amount before the trial Court and avert a default sentence.  The complainant also may have to be satisfied with the meagre amount fixed years ago. The High Court was not, in my opinion, right in blaming the lower Court for not accepting the payment which was admittedly made after the expiry of the time-limit fixed by the High Court.  The convict in the case on hand was, therefore, justified in again approaching the High Court for extension of time (really it involved a request for ratification of the belated payment).  In fact, going by the narration of facts in paragraph 2 of the reported decision, the coercive steps taken was for realisation of the fine amount which the Magistrate was entitled to take under Section 421 Cr.P.C.  (Vide Shine Varghese v. State of Kerala  (2008(4) KLT 371).   In fact,  in R. Mohan v. A.K.Vijayakumar  (2012 (3) KLT SN 46 (C.No. 47) SC)  the Apex Court put the default sentence as the common mode for the recovery of fine in a sentence of fine and for the recovery of an order for compensation.  This is what the Supreme Court has observed in paragraph 29 of the above verdict:-

“If Section 421 of the Code  puts compensation ordered to be paid by the Court on a par with fine so far as the mode of recovery is concerned, then there is no reason why the Court cannot impose a sentence in default of payment of compensation as it can be done in the case of default in payment of fine under Section 64 I.P.C”.

In my humble view, the learned Judge, went wrong in holding that it was unnecessary for the convict to approach the High Court. By means of the order in question, made “reportable”, the learned judge has blocked all petitions to be filed hereafter for enlargement of time. Is the judicial reluctance attributable to a “pendency phobia” or a “petition allergy”.What was ordered to be communicated to the lower Courts was an illegal direction.

5. Judicial personage of the superior Courts, before finding fault with their brethren at the lower tiers, should be doubly cautious to ensure that the mistakes pointed out are indeed avoidable legal infirmities.  This is particularly so in the case of those in the High Court since their orders and verdicts constitute binding precedents for the subordinate judiciary.  A good majority of errors are not committed deliberately or in bad faith unless the errant is found to be incorrigible or actuated by ulterior motives.  Omnibus directions of a general character for the lower Courts to follow, should be lawful directions consistent with the established procedure.  Otherwise, such directions may amount to a command to follow a procedure which is not sanctioned by law.

A New Legislation -- The Negotiable Instruments Amendment Ordinance -- No. 6 of 2015

Trial Jurisdiction -- Cases under Section 138 of N.I. Act

(By K.G. Joseph, Advocate, Aluva)

1. The impact of the new legislation locating jurisdiction for trial of prosecution cases under N.I. Act Section 138 as contained in the ordinance cited above is far reaching in the right direction with correct dimension. A sigh of relief from the anguish experienced by the Industrial/Commercial/Business/Trading/Banking/Economic world is visible out of their shock due to the dictum in the rulings of Hon’ble Supreme Court on Ist August 2014 with direction for trial of the Section 138 cases only at places of dishonour of cheque by the concerned paying Banks of the accused with retrospective effect. Before highlighting the salient features of the new legislation it will be highly noteworthy and most relevant that in the original Amendment Act 1988 and in the subsequent amendments there was no specific provision regarding the trial jurisdiction of Section 138 cases. As a result for a decade from April 1989 till 1999 the jurisdiction was based on the framework of I.P.C./Cr.P.C. provisions. After the dictum in the rulings in the two Judges Bench (1999 (3) KLT 440 (SC)) Bhaskaran’s case (K.T. Thomas, J.) of the Supreme Court, 5 places of jurisdiction was prevailing though with certain deviations under special grounds due to rulings/interruptions subsequent to it from Hon’ble Supreme Court/High Courts etc.

2. It may be noted that Amendment Act 1988 is keeping its distinct identity for offence under Section 138 being “deemed offence” out of the realm of mens rea - guilty mind “without involving moral turpitude”. “Technical and strict liability offence in commercial practice”. However the last judgment dated 1.8.2014 by 3 Judge Bench of the Hon’ble Supreme Court. (2014 (3) KLT 605 (SC) (Dashrath Rupsingh Rathod’ case) (Vikramajit Sen, J.) is historic/epoc making ‘in as much as trial jurisdiction of Section 138 cases has been rendered “accused centric” with I.P.C./Cr.P.C. domination as the places of Drawer’s Bank - paying Bank (Bank of the accused) was given prime importance for trial jurisdiction with retrospective effect without considering even the place of transactions between the holder and drawer which led to the issuance of dishonoured cheque and confining only to the place of Drawer’s Bank where the cheque was dishonoured. This has created innumerable hardships and untold miseries to the trading world disrupting their normal business transactions in as much as commercial world became reluctant to accept outside cheques for day to day transactions. Besides large scale transfer of cheque cases from the filing court to the new places of Drawer’s Bank especially at far distant places consequent on the rulings was a terrible blow to the business world dealing in cheques who considered it as a moral insult coupled with fatal financial injury inflicted on them for none of their fault after parting with their hard earned assets/money to the accused which has ended in cheque cases. Holders of cheque/complainant of cheque cases were confronted with disgruntlement, frustration and dissatisfaction which had adverse effects on their business mostly dealt in cheque transactions after Supreme Court rulings on Ist August 2014 fixing jurisdiction limiting only to the places of dishonour of cheque issued by the drawer.

3. The impact became most relevant/conspicuous in the legal parlour/profession of law which was found not encouraging apart from its adverse consequences on Industry and Commerce. There were Representations from Association of Industrial/financial intuitions/ trading sectors/economic field with regard to the discouraging implications of the near situations with particular reference to the industrial growth/commercial/business dynamism/trading facilities/ and over all economic growth of the country etc. Therefore comments in the Press/News papers/periodicals etc. with suggestions for remedies/solutions have been forth coming in large scale. In order to achieve the best results from the industry and business through cheque transactions the original identity of the enactment atleast prior to 1st August 2014 became enviable. The concerned authorities became aware of the new situations and ways and means were worked out at appropriate levels. The new piece of legislation in the form of ordinance became indispensable to minimize delay and to meet challenges. It is pertinent to note that ground realities based on facts findings/expertise on the subject matter have compelled the authorities/law makers to bring the present amendment which paved the way for the removal of impediments/ambiguities in the trial jurisdiction by confining/prescribing the two distinct identified places of jurisdiction under Section 142(2)(a) and (b) which is reproduced for ready reference of readers as under.

“142(2).The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction:-

(a) If the cheque isdelivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account is situated or

(b) If the cheque presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation -For the purpose of clause (a) where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account”.

4. It is pertinent to note that a fair approach towards the holder/creditor/payee complainant without sacrificing fairness to the interest of the drawer/debtor/accused are seen with specific clauses for jurisdiction for trial. Section 142A deals with “Validation for transfer of pending cases” in detail thereby making the trial of cases in its original place of filing except in certain situations mentioned therein. The inadequacy of the existing provision has been identified with the categorical status for jurisdiction with caution and vision avoiding any shadow of doubts. It needs mention/emphasis that the new legislation gives a fresh impetus to the commercial world dealing in cheque transactions for their multifarious business and they even treat the ordinance as a revival/renaissance of the original status of the 1988 enactment. It is interesting to note that business people consider it as a resurrection for their commercial activities in a newdimension/direction. A newtrend among the business people was in vogue to resort to primitive method of civil suits without availing the provisions of S.138 as a result of the 2014 1st August Supreme Court rulings. However such a trend is being changed in the light of new amendment from 15.6.2015. Reinstatement of jurisdiction to the places of Holders/payees Bank is really a salvation to the complainant in as much as he need not go after the drawers’ Bank in distant places. The interest of the honest holder of cheque is well protected under the new legislation as there is no escape to the dishonest drawer dictating the holder to go to his place for trial. The Business circle consider the new ordinance as the emancipator of the mercantile world from the encircling darkness of uncertainty regarding jurisdiction existing hitherto thereby restoring the life of the 1988 enactment with new spirit and. soul anticipated by the law makers.

5. The message in the amendment is to be understood by legal fraternity/ professionals by identifying the collecting Banker as holders’/creditors’/complainants’ Bank and the paying Banker as Drawers’/debtors’/accused’s Bank. If cheque is given by complainant to his Banker for collection the place of such Bank is the place of trial jurisdiction, when dishonoured. If the cheque is presented for payment by the complainant directly to the paying Banker over its counter the place of such paying Banker will be the place of trial jurisdiction when dishonoured. In Banking Law and practice this fundamental of banking is most relevant for the professional/legal practitioners in dealing with cases of N.I. Act under Section 138.While sharing the implications of the new ordinance regarding jurisdiction this writer feels to clarify the correct position by a speaking illustration to readers. If a Kochi Merchant gets a cheque of Aluva Bank from an Aluva Merchant the Kochi Merchant has got two options under the S.142(2). He can deliver the cheque at his Kochi Bank for collection through cheque transaction system and if dishonoured Kochi will be the place of jurisdiction under S.142(2)(a). Alternatively if Kochi Merchant takes the cheque in person and present it for payment over the counter at Aluva Bank and if dishonoured the place of jurisdiction will be at Aluva under S.142(2)(b). It is also noteworthy that any protection to defaulters of cheque against the genuine interest of aggrieved complainant is clearly removed in the new Amendment ensuring the realties of clearing under cheque truncation system and encouraging the use of cheques and enhancing its credibility for normal business transaction.

6. A blessing in disguise is noticed among business people/complainants in the context of giving retrospective effect by virtue of Amendment of Section 142A “validating the transfer of pending cases”. Actually the adverse effects on the pending cases as a result of Supreme Court rulings dated 1.8.2014 has been eclipsed by means of this section with suitable modifications in the light of S.142(2)(a) and (b). The business world has been activated and rejuvenated with a silver lining every where so as to enjoy the benefit of ordinance in business transactions with certainty/clarity of the fate of dishonoured cheque’s feature. There are positive directions and proper guidelines in the Amendment ordinance to the Bench and Bar for adhering to the ingredients relating to jurisdiction. A new ray of light has been thrown by the ordinance in the midst of encircling darkness in the areas of trial jurisdiction which is clearly removed by the amending provisions. According to the business world the agony/ordeal of the creditors came to an end with the promulgation of the ordinance with ever shining rosy petals on the glorious crown of Section 138 cases and the economic activities are started to achieve smart situations prevailed during the period prior to 1st August 2014.

7. It is noteworthy at this juncture that Mr. Markandey Katju (Chairman of the Press Council of India) made a valuable remark that “great changes were not brought by legislations made by judges, but by the power of people (the Hindu 5th March 2013). A valuable/precious relevance is attached to this statement in as much as the new legislation highlights the “power of people” in the form of ordinance after the Supreme Court rulings which is the law of the land in the matter of jurisdiction of Section 138 cases at present. It is a boon and not a bane in the present context. All the legislations by enactment/ordinance are the result of expertise on the subject matter while judicial versions on the same subject matter may not be with requisite expertise thereby warranting fresh legislation. This, writer does not incline to elaborate the subject as the circumstances led to the new legislation is widely assessed/discussed/under- stood by all concerned.

8. The piece of legislation covered by the ordinance is a golden thread binding the N.I. Act with that of the stable fabric of business norms and trading ethics resulting in normal commercial dealings encouraging ordinary economic activities with greater efficiency/expe- diency in the best interest of economic growth of the country. The spirit of the amendment ordinance is welcomed by all concerned with ovations of clapping hands and vibrant cheers without fear/anguish in the future business if cheque is dishonoured. The timely interference for settling the genuine grievances of the Industry/business/Trade/commerce with visionary zeal and without vested interest from the side of the concerned authority/lawmakers deserves felicitations/ appreciations/congratulations which are recorded herein with bouquet of fragrant flowers.

Third  Pillar  and  the  Fourth  Estate

(By K.Ramakumar, Sr. Advocate, High Court of Kerala)

Left to me personally I am all for complete freedom of the Media, occasionally even in excess. This, despite Neera Radia episode and the uninspiring Tehelka. This is because freedom of expression occupies a predominant place in our democratic country. Part III of the Constitution, which is described as its ‘soul’, gives us Article 19 guaranteeing freedom of thought, expression, belief, etc.  This is what the Supreme Court of India said about that valuable right:

“Indeed freedom of speech and expression is “life blood of democracy”, but this freedom is subject to certain qualifications”.

The American Supreme Court also shares the same view.  Justice Reid of the American Supreme Court said as follows:

“Free discussion of the problems of society is a cardinal principle of Americanism – a principle which all are zealous to  preserve. Discussion that follows the termination of a case may be inadequate to emphasize the danger to public welfare of supposedly wrongful judicial conduct. It does not follow that public comment of every character upon pending trials or legal proceedings may be as free as a similar comment after complete disposal of the litigation. Between the extremes there are areas of discussion which an understanding writer will appraise in the light of the effect on himself and on the public of creating a clear and present danger to fair and orderly judicial administration.  Courts must have power to protect the interest of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offence falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice”.

Media in India enjoys absolute freedom leading to criticism levelled at some quarters that they are exceeding the limits set for them. Trial by the media is now a familiar expression.  In some quarters it is made as a lament while in some other as a lavish praise.  The Press does not however, enjoy any extra freedom than individual Indian citizens.  Nevertheless, we find in our country an overactive, zealous and alert media.  Could we ever imagine our democratic process without the media?  Sting operations also have been justified in some cases.  Even the English Courts have departed from the orthodox view in the matter of allowing freedom to the Press qua courts. A typical example is the now famous reaction of Lord Denning.  One of the leading newspapers gave a caption “Lord Denning is an Ass”.  The learned Lord reacted – “May be, I am one”.  Indian Courts however, appear to be more touchy and sensitive even to such criticisms.  The well-known ‘Sumban’ comment was decried and derided with a counter charge of ‘worm’ which did not bring much credit to judicial institutions.

The British have gifted us a fair and transparent system of justicing.  There is a provision in the Criminal Procedure Code that all criminal courts should be open to the public though not even minimal facilities are available to them, when they go there either to sit or ease themselves.  Nevertheless, unlike earlier times, Court cases do now attract wide publicity.  What was once boring bareterous and dry court proceedings have been made lively and interesting - Thanks to the Media. The teacher community, particularly at school levels, spend more time in the corridors of courts than in class-rooms. Channel discussions are held even about pending cases.  The orthodox and traditional view has undergone a change even in India. In Narmada Bachavo Andolancase the Supreme Court said:

“We wish to emphasize that under the cover of freedom of speech and expression, no party can be given a licence to misrepresent the proceedings and orders of the Court and deliberately paint an absolutely wrong and incomplete picture, which has the tendency to scandalize and bring it into disrepute and ridicule”.

The American Supreme Court however, has always applied the clear and present danger in the following words inBridges v. California (1941):

“where the adjudicatory processmay be hampered or (the court) hindered in its calm, detached and fearless duty on the basis of what has been submitted in Court”.

The Court said “will pose an imminent danger”.

Justice Frankfurter however, has taken a more liberal view:

“But increasingly the Court has recognized that publicity may in fact help achieve a fair trial by encouraging individuals with relevant information to come forward; by deterring perjury though public scrutiny, by exposing or preventing wrong doing by the prosecution, defence, or government; by reducing crime through public disapproval of it; and by promoting public discussion of important issues.”

Publicizing by television a pre-trial investigation against the accused has not been approved even in the United States. Justice Murphy of the United States Supreme Court said in one case:

“This was strong language, intemperate language, and we assume, an unfair criticism.  But a Judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him.  The vehemence of the language used is not alone the measure of the power to punish for contempt. The fire which it kindles must constitute an imminent, not merely a likely threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.  But the law of contempt is not made for the protection of Judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular Judge and the matter pending before him as to cross the forbidden line”.

He added:

“A free press lies at the heart of our democracy and its preservation is essential to the survival of liberty.  Any inroad made upon the constitutional protection of a free press tends to undermine the freedom of all men to print and to read the truth.

In my view, the Constitution forbids a Judge from summarily punishing a newspaper editor for printing an unjust attack upon him or his method of dispensing justice. The only possible exception is in the rare instance where the attack might reasonably cause a real impediment to the administration of justice. Unscrupulous and vindictive criticism of the judiciary is regrettable. But judges must not retaliate by a summary suppression of such criticism for they are bound by the command of the First Amendment. Any summary suppression of unjust criticism carries with it an ominous threat of summary suppression of all criticism.  It is to avoid that threat that the first Amendment, as I view it, outlaws the summary contempt method of suppression.

Silence and a steady devotion to duty are the best answers to irresponsible criticism and those Judges who feel the need for giving a more visible demonstration of their feelings may take advantage of various laws passed for that purpose, which do not impinge upon a free press.”

The American attitude towards Press comments on pending trials vastly differ from the English. The American Courts have always refused to curtail freedom of the press even though there were instances where a new trial had to be ordered owing to a hostile atmosphere having been created by unrestricted publicity on the pending charges.  In England the Times Newspaper was taken to task for publishing what is known as ‘Talidomide case in contempt’.

In a later case, the Times Newspaper published a news item that the Irish Prime Minister had resigned when he really did not.  The question arose whether the publication was part of the privilege enjoyed by the Press. This led to what in English Law now is known as “Reynolds Principle”.  In Reynolds the Court declared the principle:

“The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The vital importance of this interest has been indentified and emphasized time and again in recent cases and needs no restatement here. The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function.  His task is to behave as a responsible journalist.  He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly. That is why in this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises.  Unless the publisher is acting responsibly privilege cannot arise…”

Reynolds principle was later approved in Flood v. Times Newspaper(2012).  Incidentally what is known as Auto Sankar ((1994) 6 SCC 632) on the rights of a journalist to publish has been referred by the House of Lords in Reynolds.

The English Courts as well as the Indian Courts have been adopting the view that the general obligation of the Press, Media and other publishers to communicate important information upon matters of general interest and the general right of the people to receive such information should be reckoned. The importance of the public interest in receiving the relevant information has to be weighed against the public interest in preventing dissemination of defamatory allegations with the injury that this causes to the reputation of the person defamed.  The ultimate test therefore, appears to be “is the Court likely to be influenced by the publication in determining the lis, if the answer is ‘yes’, the publication is not privilege, if it is otherwise ‘yes’.” In the well-known Sahara case it was contended that some of the media reports constitute contempt of pending proceedings and an order of postponement of the publication was obtained by the Saharas in 2012.  This is what the Supreme Court said in that case: “Open justice permits fair and accurate reports of court proceedings to be published. The Media has a right to know what is happening in Courts and to disseminate the information to the public, which enhances the public confidence in the transparency of court proceedings.  The Court, however, cautioned: “Excessive prejudicial publicity leading to usurpation of functions of the courts not only interferes with administration of justice, which is sought to be protected under Article 19(2).  It also prejudices or interferes with a particular legal proceeding”.

In another case the Court made the following observations:

“The distorted reporting of the court proceedings has the tendency of lowering the dignity of the institution and brings the entire institution of judiciary to ridicule in the eyes of the public and also shakes the people’s confidence in the independence and integrity of the institution”.

A balancing act therefore, has to be undertaken. While faithful reporting of proceedings by the Media serves a significant public performance, discussion on evidence, launching tirade against a party or system demonizing party to the case having the effect of interference with the right to fair trial. The Supreme Court declared: “Media, in that sense performs a vital public service and is a communicator and link between the courts of law and the people.”

Ultimately the Court declared the principle:

“There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which outrightly hold the suspect or the accused guilty even before such an order has been passed by the Court.  Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.  It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial”.

Even the Press has no right to intrude on the privacy of an individual, particularly when the Supreme Court is now seized of the issue whether the right to privacy is part of the fundamental rights. 

Given the enormous revolution for Information Technology, it will be unrealistic to forget the Global trends and the rapid strides in technology.  Even live televisation of court proceedings is permitted.  Rules are in place even for live blogging and twitting from the court room. Yet, in Jayalalitha’s application for Bail the visual media went wrong.

We have thus reached far ahead of the days when the Constitution was enacted and the fundamental rights enshrined. This, no doubt is an opportunity as well as responsibility on the Press. 

Before concluding therefore, I would appeal to our Media brethren:

Please continue to be as much aggressive and over-reacting as you are now. Please do not however be selective either on the basis of caste, creed or station in life of individuals. Avoid at any rate becoming regular customers in defamation courts - Regular customers get more in courts, not less.

The  Parkway  Collision--
Extract  From  1999 (1) KLT  Journal  Page No. 8

(Article by T.G. John, Advocate, Trichur)

This happened in the United States of America. In May, 1963 the Parkway Collision was the talk of New York City. In the City’s Henry Hudson Parkway, a north bound car suddenly plunged through a six foot divider hedge, skittered into the south-bound traffic and smashed head-on into another car. All of the people in the north bound car a seven year old boy, his great-grandparents, his great-aunt and a friend of the family were killed. In the midst of a gathering crowd, Gareth Martinis the driver of the other car (a young man of 23) peered into the mangled cars and advised spectators not to move the bodies. Then he ran off leaving his car parked on a nearby exit road. He was arrested a short time later but he sullenly refused to submit to the drunkometer test. He violently grabbed a Press photographer by the throat, clawed and kicked at the police struggling to pull him away and bit a cop’s finger. Martinis was charged with drunken driving, reckless driving and leaving the scene of accident. He faced a maximum penaltyof 1500 dollars and three years in jail.

Gareth Martinis was the son of Acting Supreme Court Judge Joseph Martinis who had sat as a Judge since 1950 in City Criminal Court, gaining a reputation for delivering strong reprimands to careless drivers. When New York City newspapers learned about the arrangements for Martinis’ trial before the three-Judge-Panel in New York City Criminal Court they emitted growls of protest. But the District Attorney insisted that young Martinis would not get any special favour because of his father’s position. Said the D.A. “It does not matter if he is the son of a Judge, or a President or a Governor. We treat them all alike.”

Trial started. Two policemen testified that Martinis seemed drunk when he was arrested. But three other cops testified that Martinis appeared to be sober. During the four day hearing, the prosecution case was very badly weakened by the conflicting testimony. The three judges deliberated only five minutes to find the judge’s son innocent of all charges.

The State Department of Motor Vehicles held a hearing of its own. It found out that Gareth Martinis was arrested for speeding three times in 16 days in 1959, had once got his licence cancelled and then got it back by lying about past convictions. And the Department of Motor Vehicles dealt out the hardest punishment on him, after finding that Gareth was driving while drunk and was unsteady on his feet atleast one half hour after occurrence. It revoked Gareth’s driving license. Euqene Kramon, a Manhattan slacks manufacturer who was the only survivor of the Parkway collision, heard of the penalty and murmured “Giant Punishment” and turned twice in his hospital bed.

Sometimes we feel really concerned about public morality. It is our chief and indeed our only protection against tyranny and exploitation. If we could not rely on our politicians to give an honest account of their official conduct and intentions, if we could not rely on our civil servants to administer affairs impartially, if we could not rely on our Magistrates and Judges to enforce equality before the law, if we could not rely on the police not to practice torture and not to manufacture evidence, if we could not rely on the press to make an honest attempt to ascertain the facts and to report them fairly, not only should we be deprived of any control over the conduct of public affairs but we should be denied the security which is essential for our private well being. Among all forms of official wickedness, the perversions of justice outrages us most. Not that the egoism, or even the stupidity of a politician or the corruption of a civil servant may not do more harm. But we look on the law as our protection against the infringement of what we take to be our rights. Even though the laws themselves may be oppressive or discriminatory there is some safeguard in their being honesty applied. And we feel most deeply threatened and wounded when a miscarriage of justice arises out of political, racial or communal prejudice.