Public Nuisance - Revisited

(By K. Balakrishnan, Research Scholar, School of Legal Studies, Cusat, Kochi)

Visitors to God's Own Country may be shocked to find people smoking cigarettes and beedis at most public places right under or in the vicinity of a board that reads: 'As per the judgment of the Hon’ble High Court of Kerala in O.P. No. 24160 of 1998 dated 12.07.99 smoking of tobacco in public places is prohibited and is punishable' (K. Ramakrishnan v. State of Kerala 1999 (2) KLT 725; AIR 1999 Ker. 385). Even if a visitor makes the smoker to read the board, the latter may continue to smoke, as he may be addicted to the practice. Others, who stand by - the passive smokers, may not be tempted to stop him either. Nor could a lawyer find it easy to convince the smoker the morality or legality of the judgment.

This is so in spite of the laborious reproduction of the reports made by various medical bodies by the Court in order to buttress its judgment. One may appreciate the high sense of alacrity shown by the Court in the ever-worsening scenario of the air being polluted from various sources thereby endangering the fundamental right to life guaranteed under Art. 21 of the Constitution of India. No doubt, the points discussed in the judgment do lead to the incontrovertible conclusion that is arrived at, ie., smoking of tobacco in public may become a public nuisance. So far so good. One wonders if the Court sidestepped from this point onwards. It did not stop after observing that such an act would come within the ambit of S.268 of the Indian Penal Code. May be, it was the benign wish of the Court to adopt a means to ensure in a foolproof manner that their declaration does not remain a dead letter of law, a commendable object.

The question is whether the judgment is in consonance with the time-tested principle of separation of powers and the rulings of the Apex Court. Apparently, the decision results in judicial legislation, which has already been deprecated and forbidden by the Apex Court in State of Himachal Pradesh v. A. Parent of a Student of Medical College, Shimla (2AIR1985 SC 910). The relevant portion has been reproduced in para 22 of the judgment. The Apex Court was categorical in stating thus:

'The Court certainly cannot mandate the executive or any member of the legislature to initiate legislation, however, necessary or desirable the Court may consider it to be .... If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court, can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains Public Interest Litigation.... But at the same time the Court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it to assume to itself a supervisory role over the law making activities of the executive and the legislature.'

It is interesting to see how the Court uses the ratio of this decision. After a verbatim reproduction of the above, it is stated so:

'Thus, from the above observation of the Supreme Court, it is clear even the Supreme Court found that Himachal Pradesh High Court had exceeded the limits of judicial power in ordering relief in Public Interest Litigation (3atp.393AIR).'

Ironically, however, the Court in the instant case observes that the Court acting as the sentinel on the qui vive can certainly interfere and grant relief by way of mandamus to the Government and its officials including police to enforce the existing laws which is quite sufficient to safeguard the interests of the public against the wisp of environmental tobacco smoke (ETS). In the words of the Court, when laws are there to deal with nuisance the law has to be enforced by the law-enforcing agency of the State.

It is not clear whether the Court is presuming that the legislature is wantonly ignoring its duty to protect the fundamental right of its citizens in not legislating to the effect that smoking in public amounts to public nuisance. But it certainly minces no words in saying that the executive has failed to discharge its duties properly. It is necessary to search if the executive, in this case the Police, were under any express or implied duty to restrain or proceed against persons smoking in public places. Hitherto, it appears that there is no law to this effect that could have been stated to be in vogue imposing such a duty on a police officer. When there if no such law in existence, it is hard to conclude that the executive failed in their duty. However, astonishing is the presumption on which the Court proceeds further.

Quoting from R. v. Metropolitan Police Commissioner ex p Blackburn (4(1968) 2 QB 118), the Court observes that the fact situation here is exactly the same as observed there- 'in the extreme cases where it was shown that they (the Police) were neglecting their duty, the Court would interfere'. It is pertinent to note that in the same judgment, it was clearly stated that the courts should not interfere with the discretion of executive (the Police).

It is doubtful if any of the District Magistrates (DM) (or Sub Divisional Magistrates (SDM) as the case may be) had been approached for an order to be passed under S.133 of the Cr. P.C. requiring any person not to smoke in public. There is no evidence of any DM having neglected any such duty. Apart from that, it is doubtful if before this judgment was passed, any DM may have considered smoking in public to be a public nuisance violating any of the citizens' fundamental rights. In any case, it would squarely be the arena of the Parliament to declare it to be so. However, it may be stated that, in the light of smoking in public being discussed in such manner in this judgment no DM, who may have been approached subsequent to this judgment under S.133 of the Code of Criminal Procedure, could come to a different conclusion other than that it amounts to one of public nuisance and the orders would be necessitated on the same lines.

If, say for the sake of argument, it is visualised that an order is refused treating it as not amounting to a public nuisance, there is always the check of judicial review. But, in the instant case, there was no question of the DM exercising his discretion (as contemplated under S.133 Cr. P.C.) and coming to any conclusion, whatsoever. The Court already arrives at the conclusion and a DM is only to pass the particular order. In other words, it is not just a question of requiring them to pass appropriate orders but mandating them to pass a particular order. This would be a blatant usurpation of powers conferred on the DM.

In the absence of substantive law or a practice of the executive under the analogous law, the Court tries to read executive powers in S.268 and 278 IPC. Though, at a glance, S.268 may point towards the feasibility of bringing an ingredient into the same since the Section is worded widely, it cannot be lost sight of the fact that it forms part of criminal law, which has to be construed in a strict manner by the Courts. The Court further observes that offence under S.278 IPC is a non-cognizable one and, therefore, the police have no authority to arrest the offender without an order from a Magistrate or without a warrant. It is a 'petty case' since the offence is punishable only with fine up to Rs.500/-. The Court makes certain observations as to whether a police officer can file a complaint before a Magistrate regarding such an act, which may be sought under S.278 IPC. The Court observes that a complaint includes the report of a police officer in a non-cognizable case, and therefore, the police can file a complaint before the Magistrate against the offender for the said offence. But, it may be noted that the report of a police officer could be considered as a complaint under Ss.(d) and 190(l)(a) only if at the commencement of the investigation the police, officer is led to believe that the case involved a commission of a cognizable offence or if there is doubt about it and investigation establishes only commission of non-cognizable offence. If at the commencement of investigation it is apparent that the case involved only commission of a non-cognizable offence, the report followed by investigation cannot be treated as a complaint under S.2(d) or S.190(1)(a) of the Code of Criminal Procedure (P. Kunhumuhammed v. State of Kerala 1981 Cri. L.J. 356 (Ker. HC)).

The Court says that it is not necessary that the offence complained of is cognizable to enable the police to file a complaint. To substantiate, the Court points to S.153(2), a reading of which, according to the Court, shows that the police can file a complaint to the Magistrate in a non-cognizable case. S.153, however, deals with 'Inspection of Weights and Measures'. S.153(2) deals with the power of the police to seize the objects mentioned therein and give information of such seizure forthwith to a Magistrate having jurisdiction. A reading of S.153(2), therefore, does not seem to show that the police can file a complaint to the Magistrate in a non-cognizance case.

The Court further observes that when the complaint is made by a public servant in discharge of his official duty the Magistrate need not follow the procedure under Ss.200 and 202 Cr. P.C. in which case the Magistrate can straightaway issue process to the accused. What Ss.200-203 envisage is a mechanism of check intended to be exercised compulsorily in order to avoid frivolous complaints. It is exclusively applicable in cases where cognizance is taken on a complaint. If any report of the police officer is to be treated as a complaint as discussed in this judgment, it is not clear as to how the procedure contemplated under Ss.200-203 can be ignored. But, where a report is submitted by a police officer regarding a non-cognizable offence after investigation relating to a cognizable offence, this special procedure need not be adopted1. Of the offences where the procedure need not be adopted, only the one under S.188 IPC is a cognizable offence. In other words only such an offence would entitle the police to arrest a person without a warrant. In the light of the above, one wonders how a police officer can arrest a person smoking in public which is not even an offence, not to talk of a cognizable one.

Though there is no discussion of the above points in the Judgment, the Court proceeds to ensure that anyone committing an offence of smoking in public should be arrested without warrant, elevating the offence to a higher level of culpability not intended by the legislature, and for the purpose it commands S.133 Cr. P.C. to its aid. But it is a fundamental principle that nemo potest facere per obliquum quod non potest facere per directum.

It is doubtful whether the Court could tamper with the procedures contemplated under S.133 to 143 of Code of Criminal Procedure. S.133 Cr. P.C. talks about 'conditional' orders to be passed by DM or SDM for removal of nuisance. It speaks of conferment of power by the State Government on DM or SDM to make a conditional order requiring the person causing such nuisance to remove such nuisance (other parts deal with unlawful obstruction, conduct of any trade or occupation, construction of any building, dilapidated buildings, danger from tank, well or excavation and dangerous animals which are irrelevant in the present context). S.133(1)(a) speaks about unlawful nuisance in a public place under which the act of smoking in public place is brought in by the Court. What is contemplated and empowered under S.133 Cr. P.C. is passing of a preliminary order, which should be a conditional order by the DM or the SDM. The Court seems to proceed on the basis that the Magistrate at the first instance itself can pass a final order.

In (1996) 7 SCC 71, C.A. Avarachan v. C.V. Sreenivasan & Anr., the Apex Court held that:

"In our opinion the omission on the part of the SDM to draw up a preliminary order, which is a sine qua non for initiating proceedings under S.133 of Cr. P.C. and without following the procedure provided for by S.138 Cr. P.C. the order made by the SDM on 13.01.88 is unsustainable and vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceeding under S.133 Cr. P.C. Neither the order of the High Court nor that of SDM can therefore be sustained."

The powers under S.133 are to be used in such a manner as to give an adequate opportunity to the person against whom it is made etc.2 It is a clear position that no final order can be passed unless a conditional order had been passed in the beginning (H.K. Chindaiah v. M.K. Gopala Iyer 1987 Cri. L.J. 1264 (Karn.). The Magistrate has to afford an opportunity to the person against whom an order is made to appear before him for the purpose at a time and place to be fixed by the conditional order. The person proceeded against has thus to be directed to remove the obstruction or nuisance, or appear before him or some other Executive Magistrate at any time and place fixed under the order. The Magistrate cannot inform him that if he did not obey the order, he would be proceeded against under S.188 of the IPC. Any such direction would be illegal (S. Appanna Gowda v. V. Appanna Shetty (1963) Mys. L.J. 273). It is clear, therefore, that the Magistrate can only pass a conditional order in the beginning and thereby give an opportunity to the other party. If no opportunity is granted, a person cannot be proceeded against under S.188 IPC. An order for removal of a nuisance does not become absolute until an opportunity is given to the person affected by it to show cause why the order should not be carried into effect.(Rai Mohan v. Emperor ILR 44 Cal. 61).

Further, an order under S.133 must be issued and also addressed to a particular person or persons and not to the public at large as in the case of orders under S.144 Cr. P.C. (Parbutty Charan Aich v. Queen Empress ILR 16 Cal. 9). No order can be passed against persons who are not parties to the proceedings under S.133 (Jokhi Ram v. Mukh Ram 1977 Raj Cr. C. 159). A general order or proclamation prohibiting nuisances cannot be issued under this Section. The order must be directed to any special class or an individual; otherwise its disobedience will not be punishable under S.188 IPC.(Queen Empress v. Manekchand Ratanlal 342) The Magistrate should first issue a conditional order in Form No.20 of the Code calling upon the respondent to remove the nuisance. If the respondent objects to do so on his appearance, he should be asked to show cause for the order not being made absolute. Thereafter, the Magistrate has to take evidence in the matter as in a summons case, and only thereafter, if he is satisfied, he will make the order absolute (Executive Officer v. A. Satchidanandan 1983 Mad. L.J. (Cri.) 279).

It is clear from the above discussion what the import of S.133 Cr .P.C. is. The Section is designed to afford a rough and ready procedure for removing public nuisances, and is intended to be used in urgent cases (37th Report of the Law Commission of India, p. 91). The proceedings are just to maintain peace and tranquillity and the orders rendered under these Sections are merely temporary orders (Bhaba Kanta v. Ramachandra 1987 Cri. L.J. 1155 (P & H)). What the Section provides for is a summary remedy for the removal of nuisances. This has been kept in view by the Court. There is no conditional order to begin with under S.133. The order contemplated, and in almost all cases passed, (presumably because of the concern of the Damocles sword of contempt proceedings) is not passed against any particular person or a class of persons (except for the class of those persons who smoke in public, which one might say was not contemplated by the legislature). Under the scheme of criminal procedure, the Magistrate has to order the removal of the nuisance. No such order is contemplated by the judgment. Absolutely no opportunity is to be given to the person to be proceeded against under S.188 IPC, consequently, to be condemned unheard. And as icing on all these, the Magistrate's power of discretion being completely usurped except of course to the extent of formal passing of an order. There is no question of the Magistrate exercising any discretion (howsoever restricted it would be in the light of new ingredient of public nuisance). A mandamus not to the effect of asking the Magistrate to pass appropriate orders but to pass a particular order. Does the element of immediate public interest justify the means adopted?

The judgment tries to buttress the approach it has taken by calling to aid the ratio in Ratlam Municipality v. Vardhichand (AIR1980 SC 1622) (para 24 at p. 396). It is from this judgment that the Court attempts to chart a course for the proper implementation of their judgment. Merely because S.133 Cr .P.C. and S.188 IPC appear in the paragraph does not mean that a court would proceed on to make an order under S.133 usurping the powers of the Magistrate and that if disobeyed such persons could be proceeded against under S.188 IPC.

In Ratlam, what was in dispute before Apex Court was whether the order the Magistrate passed under S.133 was appropriate or not. As identified by the Apex Court, the key question they had to answer was whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis (Id. para 1 at p. 1623). The duty that was under consideration was specifically cast under S.123 of the M.P. Municipalities Act, 1961. The SDM was moved to take action under S.133 Cr. P.C. since the Municipality failed to fulfil their obligation under the Act. The Magistrate found the facts proved and made the direction sought. The Apex Court appreciated the activist application of S.133 Cr. P.C. for the larger purpose of making the Ratlam Municipal body do its duty under a statute and abate the nuisance by affirmative action.

In that case, the Magistrate after hearing the parties and being satisfied on the facts granted conditional order against non-applicants under S.133 of Cr. P.C. Later, after taking evidence, the Magistrate passed an order giving certain directions to the Municipality for the abatement of nuisance. This was taken up on appeal before the Sessions Court, High Court and finally before the Supreme Court. The Apex Court proceeded on the footing that the malignant facts of the municipal callousness to public health and sanitation, held proved by the Magistrate, are true (i.e., absolutely no reappreciation of facts). The only question was the consideration of the legal pleas to absolve the Municipality from the Court's directive under S.133 Cr. P.C. (Id. para 8 at p. 1627). The Apex Court found no difficulty in locating as to who has the obligation to abate the public nuisance caused by absence of primary sanitary facility. It then reproduced S.123 of the M.P. Municipalities Act 1961, the location of the statutory obligation. It is in this statutory setting that the Apex Court proceeded to decide upon the propriety of the orders passed by the Magistrate under S.133 Cr. P.C. Thus, the settings in Ratlam Municipality case was totally different from the present case at least on the following points:

(a) The Apex Court was considering whether by affirmative action a court can compel a statutory body to carry out its statutory duty to the community;

(b) Whether there were any legal pleas to absolve the Municipality from the Magistrate's directive under S.133 Cr. P.C. in the light of its statutory obligations;

(c) The Court had no difficulty in locating the obligation to abate the public nuisance and it found the same under S.123 of the M.P. Municipalities Act, 1961;

(d) It justified the Magistrate's order passed in exercise of his discretion under S.133 Cr. P.C. by laying down that when there are jurisdictional facts to his satisfaction to justify an action, the Magistrate would be obligated to issue directions calling for abatement of nuisance;

(e) The magistrate had exercised his powers under S.133 Cr. P.C. and had passed a conditional order, which, after taking the evidence and affording opportunity to the parties, was made absolute.

In para 24 of the present judgment the Court while discussing the Ratlam ratio, observed thus:

"Where there existed a public nuisance this Court require the executive under S.133

Cr. P.C. to abate the nuisance by taking affirmative action on a time bound basis. Otherwise, it will pave the way for a profligate statutory body orpachydermic governmental agency to defy the law by wilful inaction(P.396 AIR)". (emphasis supplied)

The above observation is perceived to be in line with the ratio in Ratlam, which, it is submitted, it is not. The Court, by the above observation, is usurping the discretionary powers of the Magistrate under S.133 Cr. P.C, which was never in the contemplation of the Apex Court while deciding Ratlam. After observing as above, the Court then proceed to reproduce the observations of the Apex Court with regard to the manner in which the judicial discretion is to be exercised:

"Judicial discretion when facts for its exercise are present, has a mandatory import. Therefore, when the Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The responsibility of the Magistrate under S.133, Cr. P.C. is to order removal of such nuisance within a time to be fixed in the order."(Para.24atp.396 AIR)

It is clear from the above observation that the Apex Court was scrutinising the exercise of judicial discretion by the Magistrate under S.133 Cr. P.C. It never contemplated that any other court could usurp the powers of the Magistrate. The Apex Court was dealing with the nature of discretion of the Magistrate and was categorising the Magistrate's discretion as an obligation when the facts for its exercise are present according to him (the Magistrate). It is in this context that the Court observed that judicial discretion when facts of its exercise are present has a mandatory import.

In the light of the above discussion, it is clear that the Court in the instant case cannot bank on the ratio in Ratlam as a precedent for exercising, all by themselves, the powers vested on a Magistrate under S.133 Code of Criminal Procedure.

Further, there are serious doubts whether the Court can do so, since it is in direct conflict with other fundamental rights of citizens ie., the right to liberty (hopefully not diluted merely because a person is a smoker in public) and right to livelihood, ironically coming under the ambit of the same Article. When fundamental rights are in conflict, the question as to which one should be given more weight arises. There is no discussion about such a possibility in the whole of the judgment. It may be presumed that the Court considers right to life under Art.21 of the Constitution of India to be more important than right to liberty under the same Article, arguably a correct approach. The second limb is, however, more grave. It is common knowledge that thousands of families are directly and indirectly dependent upon the vocation of making the poor man's cigar, the beedis. Their livelihood is undoubtedly going to be affected by this judgment to a considerable extent though there is no mention about this in it. It merely speaks about and counters the argument as regards the possible impact to the State exchequer. When the livelihood of such a vast majority is about to be snatched, it would only be appropriate that at least some schemes are envisaged in the direction of rehabilitating such families lest it should violate the fundamental right to livelihood of such families. This right has been repeatedly upheld by the Apex Court in a plethora of decisions as the most fundamental one since otherwise right to life would lose its meaning. The question of formulation of any scheme for rehabilitation would have come only if such legislation had been brought by the legislature since it would have got the opportunity to look upon the problem in wider perspective. The Courts undoubtedly lack the expertise, all the more a reason to argue that the legislature is the appropriate organ to consider the matter.

Fundamental rights apart, it is pertinent to note that the judgment ought to be viewed from different points. First in the instant case, an act of a person is sought to be brought within the ambit of an offence already defined and in the manner interpreted here it amounts to an addition of a new ingredient. It is necessary to consider whether the Court can, directly or indirectly through the executive, indulge in such an act. It would amount to legislation. And where it is done by the executive as required by the judgment, it amounts to unconstitutional subordinate legislation in the field of substantive criminal law. Do the Courts or the executive have such powers? More so when the offence contemplated is categorised as a cognizable one, at least going by the procedure to the adopted in dealing with such acts. On this count alone the orders envisaged are against the basic principles of criminal law and the solemn spirit of our Constitution.

To sum up, the Court declares that public smoking of tobacco in any form is illegal, unconstitutional and violative of Art.21. The District Collectors are required to pass the particular orders prohibiting public smoking and the police is to take appropriate and immediate measures to prosecute all persons found smoking in public places treating the said act as satisfying the decision of 'public nuisance' as defined under S.268 IPC, in the manner indicated in the judgment by filing a complaint before the competent Magistrate.

As mentioned earlier, the facts as reproduced in the judgment to justify treating public smoking as a nuisance. The means to restrict the same mentioned is, however, anomalous, both substantively and procedurally, as they may not seem appropriate in the light of our statutory and constitutional settings. The net result would be, of course, abridging the liberty of a citizen and violation of the right to livelihood, which are held to be precious and sacred, without following the procedure established by law, a straightforward violation of Art.21 of the Constitution of India. While appreciating the spirit that inspired the Court to come out with this judgment one has to mention that it was not for it to do so. It is for the legislature to do the needful.

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1. In all other cases, exceptions from S.200 are granted when complaint is in writing and made by a public servant in discharge of his official duty only under S.195 read with S.340 Cr. P.C. They deal with restriction of powers of Magistrates with regard to prosecution for contempt of lawful authority of public servants -offences under S. 172 to 188 IPC or in relation thereto.

2. Mohanlal v. State of M.P. (1988) 1 Crimes 614 (MP); KLP Ltd. v. Municipal Commr. of Kamarhati Municipality 1985 Cri. L.J. 26 (Cal); Sukhdev Singh v. Sub Div. Magistrate 1976 Cri. L.J. 462; S. Appana Gowda v. V. Appanna Shetty (1963) Mys. L.J. 273; Mod. Narayana Rai v. State of Bihar 1963 Bih. L.J.R. 279; Dashant v. State (1961) 2 Cr. L.J. 403; Rai Mohan v. Emperor ILR 44 Cal. 61.

'Training Trials' - Judicial Reflections

(By P. Nandakumar, Advocate, Ernakulam)

1. 'Justice delayed is justice denied' is a maxim which is often quoted in legal as well as common parlance for quite a long time. Our Constitution has guaranteed the right for protection of life and personal liberty under Art.21, which has been given wide meaning and covers a vast horizon of rights as has been explained in various decisions of the Supreme Court. The terms 'Life' and 'Liberty' also find place in the 5th and 4th amendments to the U.S. Constitution. These terms were explained by Justice Field in Munn v. Illionis1 that "By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world....................... By the term 'liberty', as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a person". The 6th amendment to the U.S. Constitution declares that "in all Criminal prosecutions the accused shall enjoy the right to a speedy and public trial”. But this right is not expressly provided in our Constitution. On the other hand originally in A.M. Gopalan v. State of Madras2 the right to speedy trial was not recognised as a fundamental right until R.C. Cooper v. Union of India3 upheld the said right.

2. The guarantee enshrined under Article 21 is that no person shall be deprived of his life or personal liberty except according to procedure established by law'. In what manner should the 'procedure established by law' be construed is dealt with by the Supreme Court in Maneka Gandhi v. Union of India4 wherein it is held that what has been contemplated in Art.21 is a 'fair and reasonable procedure'. In Raghubir Singh v. State of Bihar5 the Supreme Court further held that the question whether the right to speedy trial has been infringed is ultimately a question of fairness in the administration of criminal justice, relying on the principles laid down In Re H.K. (An Infant)6 that even 'acting fairly' is of the essence of the principles of natural justice.

3. In Barker v. Wingo7 the United States Supreme Court held that where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been sufficient to quash a conviction or to stop further proceeding. The same view is also taken by the U.S. Supreme Court in other decisions like Strunk v. United States8, United States v. Mac Donald9, United States v. Hawk10 etc. In Bell v. Director of Prosecutions, Jamaica11 the Privy Council has also considered the question of delay and the circumstances attributable like the negligence of the prosecution or defence tactics, and the likelihood of prejudice caused to the accused.

4. The question whether the right to speedy trial forms part of the fundamental right to life and liberty guaranteed under Art.21 has been answered in the affirmative in various decisions of the Supreme Court right from Hussainara Khatoon (I) v. Home Secretary, State of Bihar12. The same dictum was also followed in catena of decisions like State of Maharashtra v. Champalal13, Kadra Pahadiya (I) v. State of Bihar14, Kadra Pahadiya (II) v. State of Bihar15. Again in Sheela Barse v. Union of India16 also the Supreme Court reaffirmed the principle that the right to speedy trial is a fundamental right implicit in Art.21 of the Constitution and if the same is violated its consequence would be that the prosecution would liable to be quashed.

5. In A.R. Antulay V. R.S. Nayak17, a Constitutional bench of the Supreme Court, after exhaustively considering all the decisions on this aspect, further clarified that apart from Art.21, right to speedy trial is also embodied in S.309 of the Code of Criminal Procedure. Further, the Supreme Court also gave 11 propositions meant to serve as guidelines inspired by the principle that the right to speedy trial flows from Art.21 and encompasses all the stages. The court also quoted with approval the observations of Justice White in United States v. Ewell18:

"......the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and' whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances."

6. In Kartar Singh v. State of Punjab19 while considering the validity of the Terrorist and Disruptive Activities (Prevention) Act, another Constitutional bench of the Supreme Court further affirmed that right to speedy trial forms part of Art.21 and ensures a reasonable, just and fair procedure. In "Common Cause" A Registered Society (I) v. Union of India20 the Supreme Court issued revolutionary guidelines for the release of under trials languishing in jail for long periods, which was further modified in "Common Cause" A Registered Society (II) v. Union of India21.

7. Recently in Raj Deo Sharma (I) v. State of Bihar22 the Supreme Court issued further guidelines supplementing those laid down in A.R. Antulay's Case17 which was further clarified in Raj Deo Sharma (II) v. State of Bihar23.

8. In short, on an evaluation of the dictum laid down in the above referred decisions, it could be safely concluded that right to speedy trial, though not enumerated as a fundamental right in the Constitution, is part of fair, just and reasonable procedure implicit in Art.21 and is reflected in S.309 of the Code of Criminal Procedure, 1973 and encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial.

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1. (1876) 94 U.S. 113.

2. AIR1950 SC 27:1950 SCR 88.

3AIR1970 SC 564 : (1970) 1SCC 248.

4. AJR1978 SC 597 : (1978) 1SCC 248.

5. AIR1987 SC 149: (1986) 4 SCC 481.

6. (1967) 1 All. ER 226 : (1967) 2 QB 617.

7. (1972) 407 U.S.514.

8. 37L Ed.2d 56 (1973).

9. 56 L Ed. 2d 18(1977)

10. 88 L Ed.2d 640.

11. (1985) 2 All E.R. 585

12(1980) 1 SCC 81 : AIR 1979 SC 1360

13. AIR 1981 SC 1675 : (1981) 3 SCC610

14AIR 1981 SC 939

15. A1R1982SC1167

16. (1986) 3 SCC 632

17. AIR 1992 SC 1701 : (1992) 1 SCC 225

18. 15 L Ed. 2d 627.

19. (1994) 3 SCC 569.

20. AIR 1996SC 1619 : 1996 (2) KLT 820 (SC)

21AIR 1997 SC 1539:1997 (1) KLT 366 (SC)

22. AIR 1998 SC 3281 : 1999 (1) KLT 173 (SC)

23. (1999) 7 SCC 604 : 2000 (1) KLT 463 (SC). 

John Deserved a Conviction Itself

(A dissenting Note on the comment on 1999 (2) KLT 699 John v. George)

(By V. Sathyaseelan, Advocate, Haripad)

The meaning of receipt of information obtained in proviso (b) to S.138 of the Negotiable Instruments Act, 1881 had been discussed in detail in page No.29 of the Journal Section of KLT 2000 (1) Part 13 issue by Advocate Shri. M.R. Rajendran Nair expressing his valuable view on that point. Receipt of information according to him is not one which shall be in writing, but it can be had orally, visually or on any other mode of communications. My humble view is that, but the boot is on the other leg. The dictum in 1999 (2) KLT 699 was laid down by his Lordship Mohamed Shafi concluding his analysis on the point referring to different authoritative lexicons too. I feel that the view taken by the honourable Judge is absolutely the righteous. In addition to the discussion made by his Lordship, I may add a word more to distinguish the meaning of the words "receipt of information". As the lexicons refer the word receipt is one which is rooted on a document. So it is unnecessary to say "a written receipt of information". When "receipt" itself is a word which is one implied to be in writing, the legislators were conscious enough to put the English language in its pure and proper form and not make it upright down by inserting a word "written" just before the word "receipt".

The case would have been different if the proviso ran as follows "within 15 days of receiving information". Then the interpretation given by Shri. M.R. Rajendran Nair would have been correct, because receiving information can be by oral, visual or on any other mode of communications. Therefore, the condition precedent for applying S.138 exists. In a nutshell, John deserved a conviction and conviction itself.

Rape and Punishment

(By M.V. Rajesh, Advocate, Chalakkudy)

Rape is as old as any other offence known to mankind. It is a heinous offence which involves invasion of most dignified aspects of womanhood which shakes the foundations of the victim's life. A rapist should be awarded with appropriate punishment and he deserves no clemency. Our penal provisions prescribe life imprisonment as maximum and also provide specified minimum if there is no reason for a lesser punishment. The existing provisions are comprehensive and exhaustive. Widening vistas of death penalty without considering its consequences will affect the whole philosophical basis and may defeat the very object of criminal justice system.

The suggestion to award capital punishment for rape was rejected by the Draft Committee of Indian Penal Code for some well founded reasons. Our penal system is built upon certain values and sanctity of life is the most prominent one. Lord Macauly pointed out that if punishment for murder and rape are equalised there is a danger of developing a tendency to do away with the victim, who will otherwise become the most detrimental piece of evidence against the accused. The distance between rape and murder will be substantially reduced. Such a position is not desirable in a balanced criminal justice system. The legislative object for not awarding death penalty under S.376 is preservation of life of the victim rather than that of the accused. This reasoning is not extinguished now, instead it has been further strengthened in course of time.

The 'mens rea' for murder and rape are entirely different. Our penal statutes are systematically arranged so as to include the ingredients of offences in several distinct Sections. 'Mens rea' varies from offence to offence. Suppose in a hypothetical situation, immediately after rape is being committed, the victim challenges the accused that she will take revenge by ensuring him death sentence. Annoyed and scared by hearing this, the accused kills her in order to save himself by destroying evidence. Here the apprehension of punishment of one offence acts as an abetment for the commission of another offence. The legal consequences intrinsically transforms his 'mens rea' while choosing for a better option. If punishment for rape and murder are made identical this danger will be the result.

In modern times, suicidal squads are more frequent and often human bombs strikes. If death penalty is imposed for rape there is every chance for its probable misuse. If a woman wants to execute a person for whatsoever reason, she can trap him if she decides so. Suppose, after inducing and submitting herself for sexual intercourse, in case she denies 'consent', it is virtually impossible to rebut the presumption, if it is well planned. People may adopt this method by using hired woman for high reward in order to assassinate character and person of their enemies. This could be the most modern sophisticated technique for eliminating a person from the face of the earth in a 'legalised' manner. This possibility cannot be turned down by simply stating that Indian women are not prone to such kind of self-humiliation. In puranas, if Devendra can successfully depute Menaka to flatter his rivals, in these days where even corporations are constituted to evade criminal liability, there is even chance for invoking state sponsored execution.

The object of punishment is manifold. It is not merely to console the victim. If any punishment is formulated without taking into account of the causes, then it will be ineffective. Hon'ble Union Minister Mr. L.K. Advani suggests capital punishment for the offence of rape stating the reason that 'Raping a woman is a much more heinous crime than murder because rape reduces a woman to a state of living corpse'. This incentive legislative steps had been recommended to avoid her from becoming a living corpse and the ultimate result will make her into real corpse.

Earlier, 'Sati' was approved by society so that a widow can have a terrible death instead of a horrible life. Divinity was also attributed and reward was offered when she reaches the other world. The value uphold was sanctity of death rather than that of a miserable life. The reports from Sathpura clearly indicates that this social evil is still persisting in the minds of the people. Recently, Dr. Rastogi, an associate of Sangh parivar declared with pride in his autobiography that he had shot dead a Woman during the Indo-Pak partition period. The incident occurred when some Hindu communalists led by him started fighting between themselves while claiming for a beautiful Muslim woman. In order to save her from ravishment, he found this solution of killing her at once. He never made any attempt to prevent his fellows from causing the offence. Is it justificatory under the lesser evil theory?.... Now, the very same renovated neo-hindutva principle is being extended for converting rape into a capital offence. . Thus, women are elevated and treated as symbols of Goddess and what happens in reality is that the other world comes closer to her. 

The Need for Accountability in the Administration of Justice

(By Sunil Kumar Cyriac, Guest Lecturer, School of Indian Legal Thought)

'Ubi jus Ibi remediam' is an important legal maxim which means that where-ever there is a right, there is a remedy. It is the remedy which makes the right real. If there is no remedy there is no right at all. Our constitution makers gave due emphasis to the maxim and utmost importance was attached to "the right to constitutional remedies" amongst fundamental rights. Similarly every statute creating a right provides for the forum for its enforcement and speaks of the remedy in case of violation. With the development of the society new rights in the forum of consumer rights, human rights, intellectual property rights and environmental rights etc. are gaining recognition and importance. New fora for the enforcement of such rights are established and eminant jurists are heading such fora for the enforcement of such rights. People from different walks of life also now form the quorum of such courts and tribunals.

But if a person approaches the judiciary for the redressal of any dispute or for the administration of justice and if he happens to suffer some injury due to the negligence of the judge presiding over, there, then there arise a question whether such person has any right against judicial negligence? If such person has any such right whether such right is protected? Or whether any remedy is provided for the violation of such rights? Answers to these questions are very complicated. The English system of administration of justice was such that a judge has a right to decide the case either rightly or wrongly. Our legal system owes much to the English legal system and such a system was followed in India also. Subsequently the Judicial Officers Protection Act, 1850 (Act 18 of 1850) and the Judges Protection Act, 1985 (Act 59 of 1985) were enacted.

Judicial Officers Protection Act provides that "No Judge, Magistrate, justice of peace, Collector or any other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in discharge of his judicial duty whether or not within the limits of his jurisdiction provided that, he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of, and no officer of any court, or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate or justice of peace, Collector or any other person shall be liable to be sued in any civil court for the execution of any warrants or order which he would be bound to execute, if within the jurisdiction of the person issuing the same"(Sec. 1 of the Judicial Officers Protection Act, 1850).

Therefore under the provisions of the Judicial Officers Protection Act, a judicial officer is not liable for anything done by him in his judicial capacity provided that he had jurisdiction in that matter. "The protection given to the judicial officers are absolute, and no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly or without reasonable or probable cause suffices to found an action. But the protection does not extend to acts purely extrajudicial or alien to the judicial duty of the defendant. Any act which is not done in discharge of his judicial duty is outside the section. The protection offered to the judicial officers rests on public policy. To secure that protection it must be shown.

1. That the defendant was acting judicially

2. That he made that order in discharge of his judicial duty.

3. And that it was within the limits of his jurisdiction or even without jurisdiction, he in good faith believed himself to have jurisdiction to do or order the Act complained of” (H. W. F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

In order to give additional protection to the judges and others acting judicially, the Judges Protection Act, 1985 was enacted and the provisions of the Act provides that "No action either civil or criminal shall be entertained against a person who is or was a judge for any act, thing or word committed, done or spoken by him when or in the course of acting or purporting to act in the discharge of his official or judicial duty or function"(Sec.3 (1) of the Judges Protection Act, 1985).

Therefore we can see that "an act done or ordered to be done by a judicial officer in the discharge of his judicial duty is within the limits of his jurisdiction he is protected even if he discharges that duty wrongly, irregularly or even illegally and the question of good faith does not arise. Even if his act is outside his jurisdiction, still he is protected, if at the time of doing or ordering it, he in good faith believed to have jurisdiction to do or order it."(H.W.F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

Therefore after perusing the statutes and judicial precedents in this behalf, we can rightly infer that a person, at present does not have a legal right against judicial negligence, because, there is no remedy what so ever for a person against judicial negligence. Another important point to be noted is that wide discretionary powers are given to judges for the administration of justice. In many such cases even guidelines are not fixed for the proper exercise of such discretionary power. Therefore there are great chances that such discretionary power may be exercised arbitrarily. Judiciary being the sentinel of the quivive the guardian and protector of the fundamental rights as well as other rights, every action and every decision of it should be in compliance with the principles of non-arbitrariness. If the judicial discretion is subject to arbitrariness much of its efficacy may be eroded and people may lose faith in the administration of justice. It is only on the judiciary the people trust now-a-day s and people believe that judiciary is the only way leading to the temple of justice.

Of course if a person is aggrieved by the decision of a particular judge, or if he feels that he is a victim of judicial negligence, he can prefer an appeal and get the impugned judgment corrected by the appellate Court. But the majority of people in Indian are poor and are unable to prefer and appeal due to some reason or other, and get the judgment reversed at the appellate stage. It is also to be noted that the remedy by way of appeal is only to correct the wrong decision and he has no right nor remedy against the concerned judicial officer at whose instance the wrong decision has been pronounced nor has he any right to get compensation for preferring an appeal and to get the wrong decision corrected by the appellate Court. Adequate steps are to be taken to fill the lacuna and to deal with the matter. It is advisable that notice of every appeal shall be given to the lower court or to the particular judge whose decision is appealed against and if the judgment was reversed in appeal and the appellate court found that there was gross negligence or wilful disregard to law, precedent or accepted principles of justice, the party who preferred an appeal shall be adequately compensated by the State. Though the compensation must be paid by the State, the notice of appeal, the appellate judgment and the details regarding compensation etc. must be sent to the particular judge to serve as a reminder. Every appeal memorandum shall be allowed to be drafted in such a way to claim compensation for the injury suffered due to judicial negligence.

As statutes and precedents stand now there is absolute and complete immunity to the Judges for everything done or spoken in the course of administration of justice. Even if the judge who does anything illegally, arbitrarily, mala fide or even fraudulently his action is protected as per the provision of the Judicial Officers Protection Act or the Judges Protection Act. The judicial officers are the only category who are protected completely from liability for whatever said or done by them in the course of their duties. It is time to make necessary changes to these statutes to take away the complete immunity of the judicial officers. It is true that reasonable immunity and protection are necessary for the Judges for acts done by them in the course of administration of justice. But such immunity and protection in no case be absolute and complete. They should be reasonable in every respect. "As stated in 30 Halsburry (Simonds) 707, the object of judicial privilege is not to protect malicious or corrupt judges but to protect the public from the danger to which the administration of justice would be exposed, if the persons concerned there in were subjected to enquiry as to malice or to litigation with those whom their decision might offend. It is necessary that such persons would be permitted to administer the law not only independently and freely and without favour but also without fear". Otherwise as it was once said "No man but a beggar or a fool would be a judge" (H.W.F. Dsouza v. Chandrika Singh AIR 1966 M.P. 223).

"In an ordered community the Courts are established for the specific settlement of disputes and nor the maintenance of law and order. In the general interest of the community it is imperative that the authority of the Court should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned their own dignity, it is because the very structure of the ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted." (Bata Abdul Khan v. A.D. Sawanth J.M.F.C. Nagpur 1994 Cr. L.J. 2836).

There was a time when all the medical practitioners were kept outside the purview of the consumer protection laws and from liability for the acts done by them in the course of their medical practice considering the nature of the acts done by them. But now the situation was changed and they were also made liable under the consumer protection laws since it was found that the ultimate interest to be protected is that of the whole society and not that of a small class of the society. Likewise necessary changes are to be made in the field of administration of justice also.

There is an argument that unless immunity and protection are given to the judges while administering justice, they cannot do their duties without fear, favour, affection or ill will. It is true and every one would agree that reasonable protection and immunity are necessary for the administration of justice. What is to be taken away is the absolute and complete protection for the judges and judicial officers. Likewise there is no rationale in the argument that if complete protection is not offered highly qualified and meritorious persons will abstain from choosing judicial profession, because judicial profession is now-a-days a highly competitive profession and there is no basis for such a fear. It is to be noted that even after bringing the medical practitioners within the purview of the consumer protection and various other laws, all most all the infirmities are cured, complicated and delicate surgeries are performed day-by day and the researches in the above field are augmented with increased vigour and there is no threat wither to the society or its members due to that. But it is a fact that the medical practitioners are now-a-days taking more care in dealing with their patients since they lost their immunity to legal action. Likewise when absolute immunity and protection of the judicial officers are taken away and when they are made accountable for the injury suffered due to their negligence, they may take utmost care and caution in discharging their duties in accordance with law, precedent and accepted principles of justice.