Justice at the Click of the Mouse

(By Advocate P.B. Sahasranaman)

We are potentially on the road to an electronic courtroom (e-courts). In settling the issues none of the participants need be in the same place and which could result in the demise of the courtroom as we know it. The recent proposal to have e-courts in India will change the entire judicial system. Rapid adoption of courtroom technology is changing the nature of both litigation and adjudication all over the world.

We know that most of the pleadings are created using computers. One electronic information measures are implemented, the paper on which the same is normally filed can be avoided. Digital signatures can be accepted. In its most basic form, electronic filing, now being experimented in various countries, it either permits or requires that pleadings be sent electronically to the court. Simultaneous it also provide for the dispatch of copies to all other necessary parties by electronic mail. Although electronic mail easily permits the simple communication of information it is entirely inadequate. From the court's perspective, efficiency requires that name of parties, pleaders, and other data be supplied to the court in an identifiable manner that permits the court to capture that specific information for case management purposes.

The same technology is used to make the Court record. Videotaped depositions have to be used in lieu of in-court testimony or for impeachment of a witness. Combining digital audio and video with a computer- assisted transcript produces a synchronized, multimedia transcript. When such a deposition is played in Court, ordinarily from a CD-ROM disk, counsel can present the audio, video and scrolling electronic text transcript. This virtual "deposition attendance" is an important marker on the road to the digital courtroom. As trial commences, the participants blink into existence on the computer monitors that supply the only commonality applicable to them. Judges. Advocate, parties, and witnesses appear in virtual form on each person's computer monitor. Necessary evidentiary foundations are laid by witnesses with distant counsel's questions; documentary evidence is not seen by the Judges until received by the Court. The public can see the proceedings on the Internet. The superior court can directly monitor the proceedings and issue appropriate orders, if necessary.

The collateral consequences of electronic case management, filing, and related systems are of great potential importance. Scheduling a posting is another important factor. The Judge's calendar will be critical, but if the Judge isn't assigned permanently to a given courtroom, a courthouse calendar will be required as well. At the same time, efficient scheduling should involve access to all other hearings involving the same counsel. The practice of irrelevant adjournments can be avoided. When electronic filing is implemented as well, calendaring information is augmented by the actual pleading and associated legal documents, all in electronic format. Once this information is available and electronically accessible there is little or no reason to limit it to court personnel. Trials are open to the public, and the status of filed cases, including scheduled dates for hearing are available to the public.

Legal research is a critical component for any lawyer Access to electronic legal materials has changed the nature of law practice. It has created virtual law libraries and, through on-line access, has hastened the advent of the virtual law office, one which exists wherever the lawyer may happen to be. Within the high technology courtroom, counsel and Judge have immediate electronic access to nearly all legal authorities. Further, and critically, when the courtroom is properly equipped, counsel and Judge may display their authorities to each other as an important adjunct to legal argument.

The advent of electronic legal briefs carries at least three significant implications. The first is that appellate practice may be changing. These briefs are far more comprehensive than their traditional equivalents, and, if used in an appropriately wired courtroom, they permit extraordinary electronic visual interchange of legal authority among Judges and counsel. The second implication stems from economics. Electronic appellate briefs are in part compilations of materials generated at or presented during trial. To ensure the most inexpensive preparation possible, those underlying trial matters, including transcript and evidence, should originate at trial as digital information so that the "data" can be reproduced quickly and cheaply in the brief. Lastly, these briefs can be filed, exchanged, and presented electronically, laying the ground work for a virtual appellate courtroom.

In Los Angeles and Indianapolis, motorists can pay their traffic fines by dialing in to interest sites and providing credit card information. Some California offenders can go to traffic school on-line. There are even law firms which provide services through internet. The advent of high technology courtrooms in Australia has started the "virtual trials". "Virtual trial" is a trial in which all the participants and all "information", (i.e., evidence, opening statements, closing arguments, and, in jury trials, instructions) are conveyed in electronic format to all parties. US Supreme Court has heard a case in Courtroom, with two of its five Judges appearing by separate video-conferencing systems.

In India, at the instance of Patna High Court Chief Justice Ravi S. Dhawan in video­conferencing was started. In the six months since its introduction, it has delivered swift justice, becoming one of the few success stories in the State. About 200 undertrials have been released-130 from Beur Jail, 30 from Vaishali, 25 from Muzzafarpur and 30 from Bhagalpur. All were accused of petty offences or were in jail even after completing their sentences. "In a number of cases, the Courts remain unaware that the undertrials have not been produced before Court. Through video-conferencing, on awareness is created about a particular prisoner", says the Registrar of Patna High Court. The televisions have been arranged locally while the two digital video cameras, connected through Integrated Services Digital Network (ISDN), are from Patna. The Court in Sasaram, like most courts in the State, gets a huge number of cases. Every month, around 400 cases are left pending. By the third day of video­conferencing, 55 inmates of the jail want to confess to their crimes, whether they are guilty or not. The Chief Justice has now asked for funds to set up video-conferencing facilities in all the five central jails and 27 district jails in the State. The proposal is pending with the State Government. Meanwhile, the two digital cameras will continue to do the rounds of different jails, delivering instant justice. The litigants will be informed of the defects in their petitions, if any, without the peed to access individual courts, and asked to rectify. Thereafter, cases will be registered and allocated to Judges/Magistrates according to the work distribution schedule already fed into the computer and dates for appearance of the parties will be set. A chronological record of the trial of each case will be maintained on the network and the final order made available on the network. Copies of the orders can be obtained on payment from the facilitation counters.

E-courts can eliminate or at the very least greatly reduce case backlogs. With the help of network links between High Courts and other Courts, the performance of Judges can be evaluated faster without waiting for the actual performance reports. The legal profession has also benefited from these technological innovations. Legal research that once took hours or days in now available in seconds through computer and Internet databases. Clients can reach their attorneys anywhere in the world through the use of cellular and video innovations. The list goes on an on. The beginning of Web-based interactive instruction makes it clear that a e-courts based upon exchange of text is now possible.

What "improves" the administration of justice is clearly a question of judgment. Initially, decreasing the time and cost necessary to resolve a dispute would appear to be in the interests of judgment. So too should be improvement in fact finder comprehension which should lead to improved accuracy in result. If barriers to delay are lightened it may be that more cases will be disposed of. This, of course, is not necessarily bad "Justice delayed is justice denied". Crime lakes a moment but justice an eternity. The value of time has to be realised. We need change from Civil Procedure Code to Electronic Procedure Code. Instead of demanding benches and sitting at local places, time will come that we will be able to conduct cases silting in front of the Computer. We are now moving from snails court to the mouse court, where justice can be delivered on the click of a mouse.

Towering Trg

(By T.P. Kelu Nambiar, Senior Advocate)

"I am tired. Enough is enough, I feel like retiring now. I would love to retire in style. A silent resignation is creeping in". This was the wailing of that born winner, a man of forceful manner, a sterling lawyer, a lawyer of awesome reputation, the unattainable 'Meru' among lawyers, Senior Advocate Sri. T.R. Govinda Wariyar, (popularly known by the initialism 'TRG' in the legal circle), when he spoke to me a few months ago. Could I believe it, coming as it was from TRG, the living legend, the most complete lawyer package, who still has the ammunition; whom nobody could dismantle. The venturesome lawyer is his own boss, who never used to sit back in peace; who is a doer and a thinker; whose mind's antennae were always up. The most instantly recognizable lawyer in Kerala, high up in the legal profession, TRG is the first choice lawyer of the litigants; as a straight - talking lawyer; a cut above the rest; who excelled in all the shades of glory; a lawyer who walked into the profession, not crawled into it. TRG is the Great Survivor among lawyers; he has been lawyer for about fifty years, doing the same job with the same unblinking dedication to professional duty, despite changing times and attitudes. You can take TRG out of the profession, but you cannot take the profession out of TRG. I remember his victories, passions and sorrows.

A lawyer with grit, guts and glory, an advocate of renown, TRG has the ability to keep friends across professional lines, with his cool, charming, modest, warm and sociable manners.

TRG firmly believes that a lawyer's fundamental right is to argue a case forcefully and that winning a case is the high point in advocacy. A lawyer with a tidy weight, TRG runs in the race for a win. He never runs out. He never is a frothing pretender in the profession. He always maintains the body-mind-intellect personality. His arguments generated much more light rather than plenty of heat. He is one of the most precious lawyers.

In court we are explosive rivals, but in private we had developed a mutual affection, though there are almost as many differences between us as there are similarities. We studied law together.

Frank, fearless and committed, TRG is, as a lawyer. There are many landmarks to his credit. He is a lawyer who wakes up in time; a lawyer powered by the profession; a lawyer who worshipped the profession. He argues every case in real earnest. Each case fitted him like a glove. His mode of argument is substance backed up with style. He is an impregnable adversary; a giant-killer lawyer. Any win against TRG would only be surviving a scare, after getting flummoxed. He never bats with half-the-bat. He does not put his leg before the cause. He is his client's dream and his adversary's nightmare. He would make his opponents ridiculous, with his measured aggression in arguments. He is a different senior lawyer. There may be other able senior lawyers. But 'no two tigers have the same stripe pattern'.

Humility is a strong part of TRG's character. At a personal level TRG is a very kind-hearted and considerate person.

TRG is a prudential lawyer, taking care of the litigants' investment in the litigation, as safe as a bank. He never studied cases and argued them for his health. For TRG, Court is where the heart is. He is an all-in-one lawyer. His office was chock-a-block with clients.

TRG is never a lawyer making endorsements to Judges. He believed that a lawyer is not a whipping boy of the judiciary. He is unwilling to wear the logo of a Judge or of another lawyer. You.may love him or hate him as a lawyer, but you cannot ignore him. Hear TRG for a forceful discussion, back and forth between the Bench and the Bar. He never makes empty noises in court. He argues with spirit and fire, even before a 'zero tolerance' Judge. He is articulate, passionate and irrepressible, when he starts to argue. He knew every nuance of the law just like the back of his hand. He never gives sops to anybody in his professional career. In a check-list of performance of all the lawyers, TE G's name figures at the very top. This is not a concession, but his entitlement.

TRG got noticed soon in the profession- And he has celebrated Victory No. 'N'. Leadership of the Bar is the by-product of his superior advocacy. He is a symbol of the past tradition of the profession. I consider him as the designated representative of Senior Advocates. TRG is the Kerala lawyer of the 21st century. His commitment to the profession is hard to match. He had no time to rest 'under the Greenwood Tree'.

TRG never adopted a lavish life-style, though he could afford one. He is plain sans frills, unlike lawyers with Hollywood looks.

In the profession, TRG seemed to be on pins and needles all the time. His arguments are so full of life, so full of law, so full of possibilities. In him, we see the triumph of advocacy. He possesses the ABCD of a true lawyer:

Accessibility;

Brilliance;

Communicative Skill;and

Devotion to Duty.

TRG created a new grammar of advocacy.

The profile of this great lawyer will never be written about in any history book; but it is on the hard work of such lawyers the legal profession progresses.

A Comprehensive Study on 1990(1) KLT 120 and

the Relevant Statutory Provisions

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

A recent reference to the dictum laid down in the order in Manojkumar v. State of Kerala reported in 1990 (1) KLT 20 has resulted the necessity to have a meticulous reading of sub-s. (2) of S. 436 and S. 446-A of the Code of Criminal Procedure, 1973 (for short "the Code"). Though it was reported more than a decade ago, it appears that the decision may be the one curtailing the discretion of the Court or Police Officer (as the case may be) under sub-s. (2) of S. 436 of the Code to grant bail to the accused, who violated the conditions of the bail bond which once he had executed.

In the said case, scope and applicability of S. 446-A of the Code in relation to forfeiture of (he bond, which the accused had once executed and his release on subsequent appearance/ production was the main concern for decision. Accordingly, it was ruled that in cases involving bailable offences, if the bail is cancelled due to violation of the conditions of the Bond and on reappearance/production of the accused, the Magistrate will have to entertain the application for bail and grant bail in accordance with law. It was also observed in that case that there was no justification on the part of the Magistrate in refusing to accept the application for bail, since the offences involved were bailable.

But the above said position does not appear to be an appropriate or a full-fledged one in view of the provisions contained in the proviso to clause (b) of S. 446A of the Code, read with sub-s. (2) of S. 436 thereof. In other words, when we consider sub-s. (2) of S. 436 and S. 446-A of the Code together, it could be seen that even if the offences involved are bailable, on re-appearance of the accused on cancellation of the bond executed under the Code, the accused has no boundless right to get himself enlarged on bail and the Court has discretionary power in granting bail in such circumstances.

This position could be elucidated with the help of the above said two provisions, ie., S.446-A and sub-s. (2) of S. 436 of the Code.

"S. 446-A. Cancellation of bond and bail bond.-Without prejudice to the provisions of S.446, where a bond under this Code is for appearance of a person in the case and it is forfeited for breach of a condition-

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:

Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient."

So, as disclosed by the proviso to clause (b) of S. 446-A of the Code, the right conferred on an accused to get himself enlarged on bail on reappearance is subject to such restrictions or conditions contained in the relevant provision in the Code.

Now, again coming back to the words "subject to any other provision" appearing in the above said proviso, we can find that sub-s. (2) of S. 436 of the Code has relevance in the matter of granting bail to an accused who had committed breach of the conditions contained in the bail bond.

Sub-s. (2) of S. 436 of the Code reads as follows:

"(2) Notwithstanding anything contained in sub-s. (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under S. 446".

Therefore, it is very clear that the right of the accused (of the nature mentioned supra) to get himself released on bail is subject to the provision contained in sub-s. (2) of S. 436 of the Code. If it was an unfettered right conferred on the accused, then, the provision, ie., proviso to clause (b) of S. 446-A would have been drafted excluding the words- "subject to any other provision", appearing therein and sub-s. (2) of S. 436 of the Code would not have found a place in the Code. Moreover, it is also pertinent to note that both the provisions, viz., S. 446-A and sub-s. (2) of S. 436 of the Code comes under the very same Chapter - XXXIII - Provisions as to Bail and Bonds.

In Johny Wilson v. State of Rajasthan (1986 Crl. L.J. 1235 Rajastan - DB) it was held that on forfeiture of the Bond, the accused has no right to be released on bail on his furnishing fresh securities. But it would be within the discretion of the Court to release him or not to release upon the execution of fresh persona! or surety bond.

In view of the above aspects, it may be concluded that an accused involved in bailable offence, who had violated the conditions of the Bond, which once he executed under the Code, has no absolute right to get himself enlarged on bail, when on a subsequent occasion in the very same case he appears before the Court or brought in custody. In other words, in such cases discretion of the Court, as provided under sub-s. (2) of S. 436 of the Code supersedes the right of the accused. But, the Court has to exercise the discretion in a judicious way. Hope that the earlier said dictum reported in 1990 (]) KLT 120 would be reviewed in future.

Hon”ble Mr Justice T.M. Hassan Pillai

{]nbtkmZcm.....................   

Cu tZhmeb¯n³ ]Snbnd§oSsh

tXm¶p¶Xntà a\Ên¶p s\m¼cw.

thÀ]mS\nhmcyamsW¶ncn¡epw

Xm]k³ ‘IWz\p’ambnà Xm§phm³.

ImgvNbn IÀ¡i\mbv tXm¶psa¦nepw

ss\À½eyamIpw a\Ên¶pSa \o.

CÃapJkvXpXnbsÃsâ tkmZcm

F¶psa¶pÅnembv tXm¶pw hnImcamw.

X¶psS IÀ½¯n\pImbnSpw ^ew

\nÀtem`ambn«tXIoSpaoizc³

t]cp ]eXmbv AdnbpasX¦nepw

FÃmw ^e¯nesXm¶mWp \nÝbw.

IÀ½§Ä e£ys¯ km[qIcn¨nSnÂ

tXm¶nsÃmcn¡epw Ipät_m[§fpw.

Hmtcm a\pjy\pap¯ctaIWw

BbXhsâ a\xÊm£n H¶pXm³.

ÇmLn¨ntSIKpW§Ä ]eXpIp

kwibw teisa\n¡nà tkmZcm

R§Ä¡p \à kplr¯mbncp¶Xpw

F¶pw kvacn¨nSpw kt´mjNn¯cmbv.

kulrZw DÅnsâbpÅnÂ\n¶mIpInÂ

BbXn\pImIpahmNy \nÀhrXn

ZuXy§sf{Xtbm _m¡nbpImbnSmw

sNbvXp XoÀ¯oSm³ Ignbs« kpkvanXw.

\n¶psS t{]bkn X¶psS t{]cW

F¶papIms« \n³ hgn¯mcbnÂ.

im´X ssIapXembpÅ tkmZcnþ

bv¡mIpw XpW¡phm³ \n¶psS iànbmbv.

thZ\tbmsSbmsW¦nepw t\cs«

tkmZcm \n¶psS bm{XX³ awKfw.

BbpÊpamtcmKyhpw \ÂIn Cuizc³

F¶pw XpW¡s«  \· t\cp¶p Rm³.

PohnXbm{Xbn F¶pw hncnbs«

XqhWw XqIpw at\mlckq\§Ä.

F¶pw a\xÊm£n Iq«mbncn¡s«

\· sNmcnbs« \n³hgn¯mcbnÂ.

                                                                   JUSTICE A. LEKSHMIKUTTY

Beware of Costs

(By T.P. Kelu Nambiar, Senior Advocate, Emakulam)

When the judicial conscience of a Division Bench, (comprising Mr. Justice Subramanian Poti and Mr. Justice V. Khalid, as their Lordships then were), felt rankled and festered by the absence of counsel on both sides in sixteen cases in a row in the cause list, considered to be 'old cases', the Bench dismissed all the cases for default. Petitions for resurrection were filed. Those petitions were allowed on condition of payment of Rs. 250/- each to the State. The condition imposed, namely payment of money to the non-party State, thereby propitiating the Civil Government with the cling of coins, appeared, to me, curious and novel. And it prompted me to promptly write an articulate article, entitled "Rankling Costs", (published in 1980 KLT Journal, at page 87). Therein, I ventured the view that the condition imposed was not justified, by analysing the aspect in the light of the definition and meaning of 'Costs' in certain statutes, Law Dictionaries, American Jurisprudence, Corpus Juris Secundum and decisions of the Kerala High Court. I pointed out that costs are expenses awarded by court to prevailing party and payable to a party and party basis, between ihe parties to the cause.

A more curious and novel situation has now emerged, where a Division Bench has recently imposed costs on both parties to the cause, the petitioner and the respondent, and ordered payment to the Legal Services Authority. (This is not a case of cross-costs against the contesting parties, but multiple costs in favour of a non-party.) The order did not slop there. It continued: "Liberty to the petitioner and the 4th respondent to proceed against the respective counsel for recovering the costs ordered by us either by way of civil suit or by moving the Consumer Disputes Redressal Forum". This is the last sentence (or nail?) in the judgment, rendered on the 23rd day of September, 2002, in O.P. No. 18338 of 2002, by the Division Bench, comprising Chief Justice Mr. B.N. Srikrishna and Mr. Justice R. Basant. (The judgment was by the learned Chief Justice.) Advocate Sri. C.C. Thomas, for the petitioner and Advocate Sri. T.M. Abdul Latheef, for the 4th respondent, would have cursed the day on which their clients had executed the vakalaths in their favour, and it needs to be checked whether it was on the 13th of a month, being Friday as well. I, for one, abhor Friday the 13th and the black cats.

Even further curious and novel is the penultimate paragraph in the order, dated 21st October, 2002, in Review Petition No. 724 of 2002, filed by the petitioner in the O.P., rendered by the Division Bench comprising Mr. Justice K.A. Abdul Gafoor and Mr. Justice R. Basant. (The judgment was by Mr. Justice Basant.) Dismissing the Review Petition, the Division Bench observed:

"Lastly it is submitted that the observation in the last line of the impugned judgment that the petitioner and the 4th respondent are at liberty to proceed against their respective counsel for recovering the costs ordered either by way of civil suit or by moving the Consumer Disputes Redressa) Forum deserves to be reviewed as the petitioner's counsel has no contumacious responsibility. The Division Bench had not made any final pronouncement on the liability of counsel. It was only observed that the parties shall have that liberty. Needless to say, if the said parties choose to stake claims against their counsel, such claims will have to be established in accordance with law. That observation also does not in these circumstances deserve to be reviewed".

27 born, I am pushing seventy-six successfully. I have been in this profession for about fifty years. I am unaware of any direction like the one issued in the O.P., or the clarification made in the R.P. I am constrained to confess, with the utmost respect though, that all the three learned Judges concerned with the disposal of the O.P. and the R.P. are surely not right; and the orders are verily illegal, and acutely embarrassing.

What is the reason for the observation that the clients are at liberty to recover costs ordered from their counsel. No reason is stated. Is it because the Division Bench thought that the counsel had ventured a wrong legal advice? How, and on what basis, did the court draw such a presumption, if any. The Court knows not the nature of the professional communication between the clients and the counsel. The court could not have enquired into the advice given by the counsel to their clients. The Court should have known the principles under S. 126 of the Indian Evidence Act and R. 17, Chapter II, of the Bar Council of India Rules, and other principles regarding the nature and content of professional communications. Did the court take into consideration a situation in which the client/clients would have insisted that, come what may, the petition/petitions should be filed. Did the Court cast attention to the principle that an advocate cannot refuse to take up an engagement from a client, except in certain circumstances. The exceptional circumstances are not present in this case.

The only circumstance in which a counsel could be mulcted with costs (payable to his client) is where he is found guilty of professional misconduct, where the conduct of the counsel is found irregular in form and improper in substance; and is grossly improper conduct in the discharge of his professional duty.

The present is not such a case; and there is no such finding even. Strange is the direction in the last sentence of the judgment in the O.P; and odd is the consolatory clarification in the penultimate paragraph of the order in the Review Petition. Exercise of patient wisdom is one of the principles of judicatio. It requires no smart legal erudition to recognise the flaw in the judgment and order relating to costs.

To enable the bar to perform its duties effectively, both the law of the land and the conventions of the court have surrounded it with immunities and privileges. The atmosphere of complete freedom from fear can be achieved only if the bar itself is fearless.

I do not for a moment pretend that my views are unexceptionable. Ishall never feel unhappy or uneasy if somebody finds flaw in my reasoning and comes forward with a contradiction.

All the same, 1 should alert the members of the legal profession to perceive the effect of the stinging rebuke in the judgment and the order, on the legal profession as a whole.

Tail peace: The Bar's affection is a precious judicial asset.