Who is Protected U/s 139 of the N.I. Act ?

(By John S. Ralph, Advocate, Kochi)

The criminal courts are flooded with prosecutions under Section 138 of the N.I. Act And the courts are disposing them with the help of the presumption envisaged under Section 139 of the N.I. Act. Thanks to the presumption. But the interesting question to be looked into is that "who can avail the protection of the presumption?".

Section 139 reads "Presumption in favour of HOLDER:- It shall be presumed, unless the contrary is proved that the HOLDER of a cheque received the cheque, OF THE NATURE REFERRED TO IN SECTION 138, for the discharge in whole or in part of any debt or other liability." In order to have a thorough understanding of the section, emphasis should be given on two aspects viz. HOLDER and OF THE NATURE REFERRED TO IN SECTION 133. Holder is defined under Section 8 of the N.I. Act as "Holder of a promissory note, bill of exchange or cheque means any person entitled in his name for the possession thereof and to receive or recover the amount due there on from the PARTIES THERETO". The plural in the last two words "Parties Thereto" gives a clear indication that the Holder is a person who stands in between the Payee and the Drawer. Payee is defined under section 7 as "the person NAMED IN THE INSTRUMENT to whom or to whose order the money is by the instrument directed to be paid, is called the "Payee". In the greatest majority of the cases the cheques are Payee Cheques and not Holder Cheques.

Cheque being a negotiable instrument, it can be negotiated through indorsement as defined in Section 15 of the Act. Bereft of details the section reads......"or on a slip of paper annexed thereto...." So a cheque also can be negotiated on a slip of paper annexed thereto, without the name of the holder being on the instrument.

The basic ingredient of Section 138 of the N.I. Act is that the cheque must be issued for the discharge of a "legally enforceable debt or other liability". A cheque given as a gift, or towards a contribution etc. when bounced would not constitute liability for prosecution u/s 138 of the N.I. Act for the sole reason that it lacks the nature of being issued towards a "legally enforceable debt or other liability". This is the NATURE of the cheque in order to attract S.138. So when the HOLDER (not the payee) as mentioned above, sues a drawer, there will be no legally enforceable debt or other liability in between the Complainant and the Accused. Let us read it with an illustration. 'A' bought goods from 'B' and issued a cheque to him. 'B' for discharging his liability towards 'C negotiated the said cheque to 'C. The cheque when bounced, 'C as the Holder of the cheque, prosecutes 'A' u/s. 138 of the Act. In such a situation there will be no legally enforceable debt or other liability in between 'C and 'A'. Hence for the absence of such a liability, the case would fall out of the scope of the prosecution under section 138 of the Act. In such cases without the help of the presumption u/S.139 of the Act, the Complainant would not be able to prosecute the Accused.

There lies the importance of the words' 'OF THE NATURE REFERRED TO IN SECTION 138" occurring in Section 139. Even without those words, the presumption would stand with a complete meaning and sense. Pardon me for reproducing the section, without the said set of words, lest the reader should go back. "It shall be presumed, unless the contrary is proved that the HOLDER of a cheque received the cheque, (..............) for the discharge in whole or in part of any debt or other liability." In such a situation why those set of words viz. of the nature referred to in S.138 are inserted in Section 139? It is only to protect the HOLDER while prosecuting the Drawer where, there will be no legally enforceable debt or liability in between them. The liability in such a case would be between (1) the drawer (accused) and the PAYEE (2) the payee and the holder (complainant) and not between the complainant and the accused in the trial.

The PAYEE is specifically omitted from the presumption under S.139 for the sole reason that he is already protected under section 118 of the act and the proviso to section 118(g) is against the Holder and the burden shifts when the accused takes up any of the pleas made in the said proviso. So in view of the above mentioned two handicaps of the HOLDER, he has to be protected u/s.139. Had the intention of the Legislature was otherwise, it would have included the word Payee also in S.139. This intention further gets clarified by the fact that the 'Holder' and the 'Payee' are treated and made mention in section 138 (b) and (c) separately.

The above made observations are further strengthened by the fact that there is another presumption contained in section 118 of the N.I. Act which protects the complainant in a prosecution u/s.138. The seven limbs attached to section 118 are more than enough for a complainant to succeed in a prosecution. Section 118 is included in chapter XIII of the Act which deals which "SPECIAL RULES OF EVIDENCE". When there is such a provision, the legislature will never incorporate another presumption. The answer to the question, "then why the payee is not protected ?" is simple. The payee's claim is supported by the cheque itself which is a primary best evidence guarded by Section 118 of the Act. Hence the additional protection u/s.139 is not at all warranted.

It will also put the accused with a double burden of rebutting both these presumptions. On a reading of the rules of presumptions contained in our law, it can be seen that those legal fictions are created in order to fill up the vacuum of direct evidence. It is also worth noting that a specific bar is incorporated u/s.140 of the Act which precludes the accused from taking up a defense that he had no reason to believe that the cheque would be dishonored. Mens rea being a fundamental element of criminal jurisprudence, the state of mind of the accused assumes much importance. What makes an offence u/s.138 of the Act is not the factum of dishonour, but the positive act coupled with the mens rea of not making the payment of the amount within the statutory period contemplated in the Act. That being the only bar created by law against the possible defenses which can be taken by the accused, all other defenses are left open. So it will be an absurd position of the rule of evidence to say that the burden lies on the accused to rebut a presumption which the legislature never intended.

Though the courts in India including Apex court have repeatedly pronounced that in all prosecutions u/s.138, the presumption u/s.139 has to be drawn, this author could not find one which has considered the aspect mentioned above. To conclude, a complainant in a prosecution u/s.138 of the Act wherein the cheque is a payee cheque is well protected by direct documentary evidence guarded by the presumption u/s.118 of the Act and it is the HOLDER defined u/s.8 of the Act is the person who is protected u/s 139 of the Act.

A Skewed Educational Policy

(By P. Chandrasekhar, Advocate, Ernakulam)

Goerge Orwell held a firm opinion that 'political writing is bad writing' mostly because 'political speech and writing are the defense of the indefensible' and that 'the inflated style is itself a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details. The great enemy of clear language is insincerity'1. In contrast, judicial language has to be crisp, clear and transparent. However, of late, the people have started feeling that the difference in language is not there to see.

Educational Institutions are not business houses. They do not generate wealth. They cannot survive without public fund or private aid2. State is under obligation to establish educational institutions to enable the citizen to enjoy the right to education. The State may discharge its obligation through State owned or State recognized educational institution3. Advancement of education is a charity. Educational activity of the private educational institutions is supplemental to the main efforts by the State and that what applies to the main activity, including Article 14 of the Constitution of India, applies equally to the supplemental activity as well4. Higher education is an obligation of the State5. Education is national wealth essential for the Nation's progress and prosperity6. Right to establish and administer a recognized educational institution or an affiliated college is not a fundamental right4.

In TMA Pai the Supreme Court held that right to establish educational institution is a fundamental right under Article 19(1)(g). The proposition was founded on a conviction that education is an occupation. Occupation is an activity. Is a citizen entitled to say that he has a fundamental right to engage in an activity involving education, which is a governmental function and national wealth? There is no elaboration on the crucial aspect in TMA Pai, In fact ‘battle lines’ had not been drawn up in the correct perspective and ‘many of the aggrieved or affected parties were not before the Court’6. The observations in TMA Pai were vague and uncertain and the judgment in TMA Pai came to be rewritten by a subsequent Constitution Bench of lesser corum ‘to some extent, however little it may be’7. Nevertheless, certain observations and finding in TMA Pai continued to be 'contradictory inter se’8. Islamic Academy explained that what was prohibited in TMA Pai was 'profiteering' and not making profit, and further explained that 'profiteering' meant making 'excess' profit'. P.A. Inamdar made the position more clear and said that Article 19 (1)(g) guarantees fundamental right to establish educational institution either as a charity or for profit. P.A. Inamdar gives an impression that trade in education is a trade for the purpose of Article 19(1)(g) only if it amounted to 'profiteering'; a proposition which is too preposterous for a common mind to accept.

The Government's argument in Unnikrishnan that it had no money for higher education was readily accepted by the court. In 1968 the National Policy on Education set a target of 6% of national income on education. Most of the countries spent more than 6% of national income on education. Some countries spent more than 10%. Countries which are poorer than India spend more than 4% of national income on education. In India, the amount spent is less than 3%. As per Human Development Report 2004, India ranks 78th among 137 countries with respect the share of public expenditure on education in terms of Gross Domestic Product (GDP). Kothari Commission had suggested that more than 6% of GDP would be necessary for development of education in India. In 1994 Swamindhan Committee suggested a levy of education cess on the corporate sector for financing technical education. Common Minimum Programme of the present Government ensured that 'nobody is denied professional education because he or she is poor'. But no effective remedy has been sorted out so far. Low fees, scholarships and freeships are not at all on the agenda of the Government. Swaminadhan Committee's proposal for setting up an Educational Development Bank of India with the contributions from the Union and State Governments, the corporate sector and others has not received the favourable attention of the Government. In short, it is too tall a claim for the Government to say that it did whatever it could do to finance higher education within the limits of its capacity and development.

All judgments from Mohini Jain to Inamdar prohibit capitation fee. Capitation fee, according to Mohini Jain, is nothing but a consideration for admission. Capitation fee brings to fore clear class bias. It enables the rich to take admission whereas the poor has to withdraw due to financial inability. A poor student with better merit cannot get admission because he has no money whereas the rich can purchase the admission3. Any amount, which is charged by an educational institution for admission beyond the fee which commensurate with the service rendered by the institution has to be considered as an amount taken as consideration for admission. Huge amount charged from students by an education institution, which is beyond the reach of common men, to make good the investment made and to generate surplus for future development, would fall in the category of 'capitation'. In short, it will not be an unfair criticism to say that by allowing private educational institution to charge fee commensurate with the cost of investment, infrastructure and reasonable profit for future development, 'capitation' stands legalized. Since any amount charged beyond the fee so fixed would amount to making excess profit, which is also prohibited, there is no occasion any more for the institutions to charge any capitation fee at all. After all, in a free market economy where there is no Government control or the control is minimum, price is governed by the market forces based on the basic economic principle of demand and supply. The high price tag on medical degrees is only because medical degrees are in short supply. Even in the case of medical degrees, there would be no takers if the entire cost of investment which includes cost of 25 acres of land, cost of the building, infrastructure and the minimum bank guarantee of Rs.4 crores, is passed on to the students. Educationists cannot, therefore, be faulted when they say that in the long run the education policy laid down by the Supreme Court is neither practicable nor workable.

All professional institutions cannot be expected to maintain the same standard or quality. Quality of education may vary having regard to the eminence of the faculty and quality of the facilities provided. TMA Pai mandates private professional institutions to admit meritorious students based on common entrance examination conducted by the State agency or by the institution itself. Common entrance examination, in fact, is an elimination test. The basic qualification is a pass in the school leaving examination. Common entrance test was necessitated for avoiding arbitrariness in selection since marks awarded to students by various Boards conducting the school leaving examinations, may not conform to uniform pattern. Islamic Academy has found that students were put to undue hardships when they are asked to write several entrance tests conducted by a number of institutions. Islamic Academy, therefore, held that 'common entrance examination' contemplated in TMA. Pai is not entrance test conducted by individual institutions but common entrance test conducted by a consortium of private professional colleges and institutions. Why should not these institutions be asked to make admission based on the Common Entrance Test conducted by the State or State agency? Which right of the private educational institution is thereby affected? Islamic Academy, however, exempts certain institutions, which are 25 or more years old from resorting to Common Entrance Examination conducted by the State agency or the Association of Colleges and permits them to conduct their own examinations. It is highly illogical to say that Entrance Examination conducted by a 10 or 15 years old institution is not a common entrance test and an entrance examination conducted by an institution which is 25 or more years old is, nevertheless, a common entrance examination. There cannot be any presumption in law that all institutions which are 25 or more years old impart excellent and high quality education. When an educational institution which is less than 25 years old and which due to its excellent faculty and facilities offered, is capable of attracting best talent among the students, Islamic Academy apparently prevents it from formulating its own entrance test with a view to intake students of better merit of its choice. There is no reason why an educational institution which is less than 25 years old and imparting education of high quality or standard should not be allowed to conduct its own entrance test, if the Government or the concerned authority is satisfied about the better quality of education offered and the high quality of entrance test formulated by the institution.

When the executive fails the court is bound to intervene. The reason for the court to evolve its own educational policy is not, therefore, ill founded. But the judgment proves that Judges are poor educationists and economists. Eminent academicians and Educationists were not taken into confidence while evolving the educational policy for the future. Amrik Singh, an eminent Educationist, points out that the Judges of the Supreme Court "were far removed from the ugly reality of how primary education or even upper primary education is imparted and were, for the most part, unaware of the social reality as also the academic callousness from which most of those children suffered. When they decided to charge the lower fee in the case of the first 50%, the assumption was that parity of treatment was being extended to these children. The bitter truth was that the really poor and the disadvantaged had already dropped out at various levels of school education and it was a very small percentage of them who had managed to survive and join the higher classes9. He also points out that 'discrimination against the disadvantaged sections of the society, begins from the beginning. Either the children of these disadvantaged groups fail to get into school or drop out by the time the primary school is over. The most significant thing at that level is the dropout rate, which, on an all India basis, worked out to be more than 40%. Not each one of the children was poor though most of them were. And quite a few dropped out because teaching was substandard and the children, more precisely their parents, felt that the years spent at school were not likely to prove rewarding in any way". It was only out of these survivors that some of them qualified for admission to a professional institution. The percentage of such students are presently estimated to be roughly about 10 to 20%. According to Amrik Singh "educational policy has to be framed by those who deal with education and understand the details".

TMA Pai says that "it is well established all over the world that those who seek professional education must pay for it" and that in such matters 'economic forces have a role to play'. The Education Policy statement of USA, a country where free market economy prevails, states that 'in education service sector, Governments will continue to play important roles as suppliers of service' and that 'education to a large extent is a government function and it does not seek to displace public education systems. It seeks to supplement public education systems10. Available data do not, therefore, indicate that education has ever been fully privatized anywhere in the world.

TMA Pai gives an apparent impression that 'minority' and 'non-minority' are to be treated equally. Islamic Academy took pains to explain that this is not so. Till TMA Pai, fundamental right of non-minority institutions to establish education institutions under Art.l9(1)(g) had not been recognized and fundamental right of minority educational institutions to establish educational institutions flowed only from Article 30. Reasonable restrictions on fundamental rights permitted under the proviso to Article 19(1) (g) having brought to bear on the minority rights under Article 30, there was apparently no difference between minority rights and non-minority rights. The earlier law that 'no regulation can be cast in the interest of the nation if it does not serve the interest of the Minority as well11, having been overruled in TMA Pai, there was also no room for any doubt about the additional protection given to the minority educational institutions. The argument has been further cemented by Inamdar, holding that higher the level of education, lesser are the seats and higher weighs the consideration for merit' and therefore 'it will, necessarily, call for more State intervention and lesser say for minority'.

Reservation in favour of backward classes is not anti meritian12. The State, due to lack of fund, having abdicated its function to impart higher education in favour of private educational institutions, has a duty to ensure that the poor is not denied equal access to higher education by the private educational institutions only because they are unable to meet the financial commitment on account of fees. The share of backward classes in higher education can be ensured only by reservation of seats in their favour. There is no meaning saying that such a reservation will erode merit. Even in Indian Institute of Technology, a prestigious institution reservation of seats are provided to students belonging to Schedule Caste/Scheduled Tribe. The prestige and standard of IIT did not, thereby diminish in any way. There is also no meaning in saying that while the educational institutions could suffer erosion of merit by in take of students under quota for Non Resident Indians, erosion of merit could not be permitted by way of reservation in favour of backward classes. Reservation in favour of backward classes, after all, is in the constitutional scheme and is permissible under Articles 14 and 15 of the Constitution of India. Therefore, reservation in the interest of the nation and the society is a reasonable restriction. The argument based on cross subsidy also does not appear to be any more realistic in Indian situation. It is neither practical nor possible, at least in relation to admission to medical degree courses, to charge fees commensurate with the cost of investment and infrastructure of a private educational institution, which may run into crores of rupees. An educational institution has, therefore, to look forward to outside aid or private donations to recoup the capital expenditure. There is, therefore, no occasion for a student to pay for another. In TMA Pai, the Supreme Court directed a certain percentage of seat to be reserved having regard to local need and also keeping in mind provisions to be made for the poor and backward sections of the society. The Constitution Bench of seven Judges, in Inamdar, has virtually overruled the direction of the Constitution Bench consisting of eleven judges, in TMA Pai. stating that what the Bench in TMA Pai meant was only a consensual arrangement, which apparently did not look constitutionally permissible.

Obviously, the remedy is to go back to Mohini Jain, and start the judicial exercise all over again, 'battle lines' properly drawn, and taking educationists and academics into full confidence.

______________________________________________________________________

1. George Orwell: Politics & English Language

2. St. Stephen College v. University of Delhi ((1992) 1 SCC 558)

3. Mohini Jain (AIR 1992 SC 1858)

4. Unnikrishnan v. State of A.P. (AIR 1993 SC 2178)

5. T.M.A Pai v. State of Karnataka (AIR 2003 SC 355)

6. See the observations of Justice Variava in TMA Pai

7. See the observations of Justice Sinha in Islamic Academy of Education v. State of Karnataka (2003 (3) KIT (SC) (SN) 118 = (2003) 6 SCC 697)

8. P.A. Inamdar v. State of Maharashtra ((2005) 6 SCC 537 = 2005 (4) KLT (SC) (SN) 3.

9. Amrik Singh: The Challenge of Education.

10. Dr. Jane Knight, Trade in Higher Education Services; The Implications of GATS.

11. Rev. Sidhajbhai Sabhai v. State of Gujarat (AIR 1963 SC 540).

12. lndra Sawhney v. Union of India (AIR 1993 SC 477) 

Refund of Court Fee - A New Rule of Practice

(By V.K. Sathyavan Nair, Advocate, Kottayam)

It is submitted that the directive of the Division Bench in 'The Sree Sankaracharya University of Sanskrit v. State of Kerala reported in 2005 (4) KLT 1026 requires reconsideration. The main grounds are encapsulated below.

The Court, in the above case has framed a new rate regarding refund of court fee setting at naught the well recognised and time honoured practice hitherto followed. The Division Bench mandated that refund order should be issued in the name of party in all future cases unless otherwise ordered by the Court. The raison d'etre of the new directive has neither legal nor logical foundation, though the objective may be laudable. Moreover the observation that this will avoid misappropriation of the amount by middlemen (emphasis supplied) is unfortunate and embarrassing and casts a shadow of distrust over the integrity of the legal profession tending to unsettle the rudimentary principles governing the powers, right and privileges of counsel hallowed by usage and followed by courts.

The Court was disposing applications in Land Acquisition Appeal filed by the Appellant praying that refund order of court fee in the remanded case be issued in the name of the party and not in the name of the counsel. While allowing these applications the Division Bench issued a further direction applicable to all proceedings covered by Sections 66 to 69 of the Kerala Court Fees and Suits Valuation Act, 1959. Whenever Court Fee is to be refunded, hereafter, the refund orders should be issued in the name of the party and the Registry has been directed by the Bench to inform the Subordinate Courts also to follow such practice.

There can hardly be any doubt that if the party applies to the Court for issuing the refund order in his name normally there is no reasons for rejecting the same. The matter could have ended there. But the Court went further and framed a new rale of practice with the avowed objective of preventing misappropriation by middlemen.

Who are these middlemen referred to by the Division Bench? Obviously none other than the counsel appearing for the client. 'Middleman' means intermediary or agent. Can an Advocate holding the Vakalath of a client be properly termed as middleman by a Court of law?

Undisputably an Advocate is not a mere middleman, but a fiduciary standing in a loco parantis towards litigant. He enjoys a tripartite relationship, one with the public, another with the Court and the third with his client. Other professions or calling, K.K. Mathew J. observed in AIR 1968 Ker. 213, may include one or two of this relationship but no other has the triple duty.

'Those who know how Courts and counsel function will need no education on the jurisprudence of lawyer's position and powers' commented V.R. Krishna Iyer, J. in AIR 1975 SC 2202. The Apex Court while discussing the role of counsel and the scope of his authority has quoted K.K. Mathew J. and V.R. Krishna Iyer, J. and relied on their observations made in the cases referred to above. See AIR 1991 SC 2234, 1992 (1) KLT 368 (SC) and also 1992 (2) KLT 803.

The Supreme Court gives a very wide interpretation regarding the scope of authority of an Advocate and has even permitted him to compromise the suit on behalf of his client. It cannot be gainsaid that a member of the Bar is also considered as an officer of the Court and he is not a mere mouthpiece of his client. I am not unmindful of the fact that there are members who fail to maintain the standard and tradition of the profession. But that is the case with every profession, occupation, calling or office. There may be black sheep. Nevertheless in the case of lawyers there is a difference. Unprofessional acts invite disciplinary action and punishment. He is answerable for professional or other misconduct as per S.35 of the Advocates Act, 1961. An Advocate has no right to appropriate money received on behalf of his client. Money of the client coming into the possession by the lawyer, while the money remains with him is to be treated as trust fund. Apart from disciplinary action the betrayed client has the remedy of filing suit against the Advocate.

In this context it may be noted that complaints by clients against non-payment of refunded Court fee are very rare. In fact there has been no such complaint. Then what is the occasion for the interference by the Court.

In the new rule of practice embodied in the order of the Division Bench is stretched to its logical absurdity, the inference is that a lawyer cannot be allowed even to receive the decree-debt or other sums payable to his client in the suit or proceedings.

I may also point out that in subordinate Courts whenever a compromise petition is filed a term would be specifically incorporated that refund may be made to the counsel. When the compromise petition is accepted by the Court and a decree is passed and the authorisation made by the party in favour of his counsel becomes part of the decree. Is the new practice introduced by the Court applicable to such cases? If it does, in effect, the term of a lawful compromise decree is nullified. The point requires clarification.

A reading of Order III C.P.C., relevant rules contained in Civil Rules of Practice, Form 12 Vakalath and authoritative pronouncements or the question of authority of Advocate would undoubtedly show that the counsel is entitled to receive money on behalf of his client and the judicial approach of the Division Bench in the Sankaracharya University case is not free from doubt as the direction is based on an incorrect surmise and the implication is really disheartening. Insistence of issue of Cheques to parties may be justified under special circumstances attending an individual case or class of cases and in the present case I am unable to find any reasonable justification for the mandate that refund orders shall not be given in the name of counsel and hence the directive requires reconsideration. In concluding I may make it clear that I have only expressed my doubts regarding the rationale behind the direction and wanted to point out that it is uncharitable to bracket together counsel and middlemen and the writer is of opinion that stringent action shall be taken against delinquent counsel guilty of misappropriation of clients' money received by way of refund or otherwise.

Brain Finger Printing -- Cognizance to

Cognitive Evidence

(By Sreejith Cherote, Advocate, Calicut)

No matter how intelligent a culprit is, in vanishing the traces of physical evidence of his crime, there is an indestructible black box in him that records his every action i.e., his own brain. No evidence of the crime will be more conclusive than the evidence as to the guilt of the culprit from his own brain. The ability to identify persons, places, objects and incidents are inbuilt in the short memory of human brain. This instinctive ability is relative to personality and it emanates from the natural phenomenon of the brain function. Analysing the ability of the brain to identify particular information given to it, with scientific accuracy, for the purpose of arriving at a concrete conclusion as to the presence of particular information in brain, is what brain finger printing is all about. In short the brain fingerprinting is the method of matching the fingerprint of information in the brain with that of the actual crime scene.

When any information is given to an individual, which corresponds to the stored up information in his brain, it emanates an electronic signal in acknowledgement. Absorbing this electronic brain impulse with the aid of a device called ELECTROENCEPHALOGRAPH (EEG) and marshalling them in an algorithmic index, for arriving at a scientific conclusion as to the presence or absence of particular information in his brain is the technique of brain mapping or brain finger printing. Dr. Lawrence Farewell a former faculty of Oxford University is the inventor of the technique of brain finger printing. He has invented a patented head band which can absorb the slightest brain signals emanating from the brain in response to information put before an individual before his conscious personality can exercise any control over it.

This new technique has got a plethora of application in many fields including medical and legal fields. It can help to detect the onset of genetic diseases in a person. It can also act as an important investigative tool in criminal cases in confirming the guilt or innocence of suspects of crime. This article is an attempt to convince about the utility of the new invention in an investigation, about the innocence or guilt of a suspect of crime.

In brain finger printing texts, words, pictures or sounds describing salient features of crime are flashed on a video screen attached to a computer to the suspect, along with other irrelevant information that would be equally plausible for an innocent subject. Items which are known only to the person who has committed a crime creates a brain wave that is absorbed by the patented head band and recorded by E.E.G. The brain emits a specific brain response if only the record of the correct relevant items shown to him, there is absence of response, if it fail to recognise the item. Dr. Farewell has created a baseline electrical activity for the measurement of the brain wave. A positive response is above the base line which means the suspect identifies the information. A negative change would be opposite or below the baseline that means that the suspect has no information recorded in his brain as to the object shown to him. This brain response has been termed as P-300 MERMER (Memory and Encoding Related Multifaceted Electroencencephalographic Response), so named because it happens at 300 milliseconds after confrontation with the information familiar to the brain. The culprit would emit a P-300 hundred response if he is confronted with the particular information that is relevant to a crime scene for eg. culprits brain would emit a P-300 signal if he is shown the corpus deliciti or any other information which is particular to the crime and of which only the culprit and the investigator knows.

The application of brain finger printing in the realm of criminal investigation is not to pin point the culprit with precision but to authoritatively conform that the suspect has got in his brain the salient features of the crime.

The brain finger printing is more accurate, and advantageous than other modes of lie-detection in the sense that the true information in the brain is absorbed before any manipulation can be done to it by the conscious mind. Research has revealed that while a person is lying, there is lot of hard work for the brain. For lying the brain - has to first analyse the question, think of the correct answer and then search among a set of potential incorrect answers which will suit the question. All this is a complex procedure which demands high brain activities. EEG absorbs the brain signal at the first instance before individual's cognitive faculties could intervene in its response. While the conventional fingerprinting and DNA finger printing matches the physical evidence from the crime scene with that of the suspect, brain finger printing matches informational evidence stored in the brain of the suspect with that of the crime scene. DNA and fingerprinting evidence is available only in 1% of crime whereas the record of the crime is always there in the brain.

The net result of brain finger printing is not a confirmation as to the fact that the subject has committed the offence but an accurate finding as to the fact that he has the record of the crime stored up in his brain. Hence brain finger printing can be the ultimate answer as to the GUILTY KNOWLEDGE TEST (G.K.T) unlike the polygraph it does not rely on the measurement of autonomic arousal (measurement of heartbeat, palm sweat and other emotions) for determining G.K.T. which means that an intelligent suspect who can give a false positive in a polygraph by maintaining his calm, cannot hide the truth in brain finger printing.

Court Admissibility

Brain finger printing was for the first time taken as evidence in the United States by the Iowa Supreme Court in the famous Terry Harrington case .Terry Harrington was tried and convicted by the court for murder, the court had discarded his plea of alibi and convicted him for life imprisonment. Dr. Farewell conducted brain fingerprinting test on the convict in jail and found that the salient features of the crime was not there in his brain. The fingerprint of the crime scene did not match with the information in his brain and it did match with the plea of alibi put forth by the convict. Based on the brain finger printing report Terrie's lawyer moved the Supreme Court for a retrial. The Supreme Court reversed the conviction of Terry Harrington on the basis of brain finger printing report. The court held the brain finger printing test satisfied the criteria for accepting scientific evidence.

Brain fingerprinting as an effective investigative tool is gaining international acceptance. In the United States the brain finger printing research has been funded by the C.I.A. which has recognised its utility as an important tool in detecting both the offenders and the potentional offenders.

Indian Scenario

The admissibility of brain finger printing is a legal paradox in view of the prohibitive mandate of Art.20(3) of the Constitution against self incrimination. Even though polygraph, finger printing and other physical evidence technique has qualified the test of constitutionality, the fate of brain finger printing as admissible evidence is yet to pass through the firewalls of constitutionality. In M.P. Sharma v. Satish Chandra (1954 S.C.R. 1077) the Supreme Court has discussed in detail and prescribed guidelines with respect to the criminating evidence obtained from the accused such as finger printing, thumb impression, hand writing etc., we cannot get a dear picture of admitting brain finger printing as evidence in the present legal set up. In M.P. Sharma 's case and in Bombay v. Kathi Kalu OGHAD (1962 S.C.R. 10) the Supreme Court has concluded that 'to be a witness against himself does not include taking of thumb impression, hand writing etc., and it only applies to cases wherein the accused is compelled to give evidence against himself based on his personal knowledge. If this criterion is applied it is difficult to take brain finger printing as admissible evidence in Court. But on the logical side of reasoning if we consider the protection against self incrimination guaranteed by the Constitution to emanate from the beginning of personality, there is no hamper in its admissibility as the brain finger printing evidence is the virgin information stored in the brain, unpolluted by the individual personality and there is also no foreign pressure on the personality to incriminate against oneself.

Again brain fingerprinting can be taxed for its violation of privacy and consequent conflict with Article 21 of the Constitution. It is settled law that right to privacy is inherent in Article 21 of the Constitution and law cannot allow the privacy of an individual being violated to the extent that even his brain is not free, from the interference of the law enforcing agencies. Indeed it is a question of debate how far there can be intervention by the law enforcing agencies into the privacy of citizens. It is also the concern of the neuro ethicists to limit the human intervention in the functions of brain they have created an ethical dilemma hoisting protest over the limitless probe inside the human brain. The crisis to be answered is whether the contents of the mind should be left sacrosanct and protected from outside intervention or it should be open to analysis for the comparative good of the society. In view of the latest trend in terrorism and technological advances in the commission of crime latter alternative sounds suitable.

In a recent decision of the Supreme Court Dattu Shamrao v. State of Maharashtra (2005 Crl. L.J. 2555) even though the investigating agencies has conducted brain finger printing evidence, the court declined to comment on its admissibility blaming the prosecution that, it did not relied on brain mapping evidence. But the court opined on the admissibility of scientific evidence quoting the decision in Daubart v. Merryll Pharmaceuticals Inc. (133 Set 2786) on the following lines

(a) Whether the principle or technique has been or can be reliably tested ?

(b) Whether it has been subject to peer review or publication?

(c) Its known or potential rate of error?

(d) Whether there are recognised standards that control the procedure of implementation of the technique?

(e) Whether it is generally accepted by the community? and

(f) Whether the technique has been introduced or conducted independently of the litigation?

If we adopt the above criterion as the qualification of admitting scientific evidence, then there is no reason why we should exclude the brain finger printing evidence from its purview even though there is no direct pronouncement to the said effect by the Supreme Court.

The social pattern of the time is set in the background of necessity. Necessity in turn is the measurement of the comparative good of the society. The pressure of necessity dictates the limits to which the society can afford to protect concepts, values, and beliefs as sacrosanct and inviolable. If it is the necessity of the day that the very fountain of human activity i.e. the human brain can be a subject of surveillance disregarding the sanctity attached to it, then ethical objection against it, devoid of any practical utility will limit itself as academic ideas and class room concepts. The utility of brain finger printing as an investigative tool in harping both offenders and potential offenders has not been into focus in our country, it is high time that our investigative agencies leave the love for heritage method and adopt advance and accurate methods like brain mapping.

Reference:

www.brainwavesscience.com

www.forensic-evidence.com

H.M. Seervai -- Constitutional Law of India

Journal of Cognitive Liberties.

Non Sub Homine Sed Sub Deo Et Sub Lege

The motto that appears at the beginning of this Journal is part of a sentence that Henry of Bracton wrote in his treatise De Ligibus, a sentence of great moment in the history of British Jurisprudence. That sentence was cited by Coke in his controversy with James I; by the parliamentary lawyers who opposed the pretensions of the later Stewarts to Divine Right; and by Justice Jackson in his opening address at the trial in Nuremberg. "Not under man but under God and the Law" will, we are sure, serve as a fitting reminder of a tradition of justice higher than King or State, a tradition which alone will guarantee to the common man the "leave to live by no man's leave, underneath the law." 

Can the Court Make the Law?

(By P.B. Sahasranaman, Advocate, Ernakulam)

The order (not judgment) reported as State of Kerala v. Vishnu, reported in 2006 (1) KLT 445, contains certain directions to the Registry of the High Court as well as to the officers of the lower courts to insist for affidavit for every application or proceeding in respect of a person who is under custody. It is also insisted that affidavit shall contain an averment to the effect that the application is filed as per his instructions. The court also directed the Sessions Judges to insist for the production of Case Diary and verify the same before passing of orders. The proceedings was initiated suo motu under S.439 (2) of the Cr. P.C.

Directions to the Registry to follow up a particular procedure while filing cases can be given only by the Chief Justice who is the administrative head of the institution. Therefore the direction to the Registry of the High Court as well as to the officers of the lower courts to insist for "an affidavit" does not have the support of law.

The High Court of Kerala has enacted the Criminal Rules of Practice, Kerala, 1982 in exercise of its powers under Art.227 of the Constitution of India and S.477 of the Code of Criminal Procedure Code, 1973 which is approved by the Governor and published in the Gazette. High Court is having a rule making Committee, which meets regularly and makes recommendations for amending the rules from time to time. Now the directions issued by the Court (supra) seem to transgress the said rule making power of the High Court.

There is no doubt that the High Court can take cognizance of an issue wherein the element of public interest is involved, while dealing a private litigation. To take up and entertain the same as public interest litigation and the Court has to follow the established rules of practice and procedure consistently with the rules of natural justice. Supreme Court of India dealing with such situation has held that if the High Court is convinced, should have framed specific issues with which it proposed to deal with in public interest and then should have put the State on specific notice inviting its pleadings and documents (State of U.P. v. Satya Narain Kapoor (Dead) by Lrs. (2004) 8 SCC 430). "Any other party likely to be adversely affected and interested in being heard may have been allowed the opportunity of doing so. A larger issue involving public interest and far reaching implications should not have been dealt with so lightly, casually and hurriedly as the High Court has done ", dealing with the particular SC observed.

The present verdict adversely affects the lawyers who are practicing in criminal law who normally file applications on the basis of instructions from their client. The said lawyers have to file affidavits as referred to in the judgment. I feel that Court should have given an opportunity to present their hardships, if any, before issuing such directions. At least a notice to the Bar Association.

In his famous polemic Truth versus Ashurst, written in 1792 and published in 1823, Jeremy Bentham made a searing criticism of judge-made criminal law, which he called "dog-law".

"It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won't tell a man beforehand what it is he should not do - they won't so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it."

Courts while pronouncing judgment is not engaged in a law reform exercise, but only interpreting the existing law. The court is saying what the law is and not what should be the law.