Judicial Inquiry-- An Inquest

(By O.V. Radhakrishnan)

Introduction

‘Judicial Inquiry’ is not synonymous with ‘Commission of Inquiry’ though in popular parlance Commission of Inquiry is often called Judicial Inquiry. Commission of Inquiry is a fact finding body meant only to instruct the mind of the Government without producing any document of a Judicial nature. The Commission is not in any sense a Court. Commission of Inquiry is an extra-judicial administrative technique. Sir William Wade defined statutory inquiries as "a hybrid legal-and-administrative process"1. It does not wear judicial vestments nor does it wield Jurisdiction and powers of Courts. The Commission of Inquiry does not perform any judicial or quasi-judicial functions. The Commission of Inquiry is not called upon to decide any ‘lis’ and its decision does not bind anybody. It is bereft of finality and authoritativeness. In Jellicoe v. Basel Den (1902 (22) NZLR 343 at 361), Williams J. succinctly explained about the utility value of the report of the Commission of Inquiry as "Their report by itself has no more legal effect and carried with it no more legal consequences than an article in a newspaper". In Brajnandam Singh v. Jyoti Narain((1955) 2 SCR 955 at 975) and in Ramakrishna Dalmia v. Justice Tendolkar (AIR 1958 SC 538), the Supreme Court has held that "the Commission is merely to investigate and record its findings and recommendations without any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called." "The Commission Inquiry has no judicial powers and its report will purely be recommendatory and not effective pro-prio vigore......" An inquiry made by a Commission of Inquiry is not designed and cannot determine 'guilt or innocence of any persons'. The Courts, civil or criminal, are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision in accordance with law. It follows that 'Judicial Inquiry' is a complete misnomer for the 'Commission of Inquiry'.

Historical setting

The Commission of Inquiry has become an important facet of the administration of Government in most of the countries. A historical examination would show that the Commissions of Inquiry was first conceived in England as an administrative apparatus of Government. The exact origin of the practice of setting up Commission is obscure. Probably, the first Royal Commission in England was the Inquiry leading to the Domesday Book which was compiled on account of the Grant Inquest of 1086 when Royal Commissioners were sent out by William-I into every country to ascertain the ownership of each estate in land and its value for taxation. The above practice of utilising Royal Commissions continued during the periods of Tudor and Stuart which met with a depression during the 18^lh century but became more prevalent in the 19^th century. Royal Commissions are appointed by the Crown in exercise of its prerogative power. The statutory Commissions are appointed under the Commissions of Inquiry Act. The Commissions of Inquiry are not part of the State services nor a part of Court or Tribunal. The Commission of Inquiry became an inevitable institution in countries like Australia, Canada, New Zealand, England and India. In our country, the Public Servants (Inquiries) Act, 1850 was enacted for regulating inquiries into the behaviour of public servants. The above Act was in force in all the Provinces of India except the Scheduled Districts by the Laws Local Extent Act, 1874. The above Act merely provided for an inquiry into the conduct of Government servants who were removable only with the sanction of the Government. In order to meet the clamorous demand for public inquiries by independent and impartial authorities against history-sheeter politicians and for exposure of lapses on the part of the Ministers and in respect of matters of definite public importance, the Commissions of Inquiry Act, 1952 was enacted by our Parliament to provide for the appointment of Commission of Inquiry and for vesting such Commissions with certainpowers. To borrow the words of an eminent writer, V.R. Lakshmi Narayanan2. "The Indian Act drew the inspiration from the English Tribunals of Enquiries (Evidence) Act, 1921 but in its final design lapsed into the proverbial Indian legalese and thereby hangs many a flaw."

An overview of the Commissions of Inquiry Act, 1952

The appointment of a Commission of Inquiry is a matter of discretion of the appropriate Government but the power of the appropriate Government is controlled by the provision in Section 3( 1) of the Commissions of Inquiry Act. A Commission of Inquiry may be appointed for the purpose of making an inquiry into 'any definite matter of public importance' and performing such functions within a specified period. However, if a resolution in that behalf is passed by each house of Parliament or State Legislature, as the case may be, there is a peremptory command that the appropriate Government shall appoint the Commission for the purpose. The Commissions so appointed shall make the inquiry and perform the functions accordingly and shall make a report. The appropriate Government shall cause to be laid before each House of Parliament or as the case may be, the Legislature of the State, the Report of the Commission together with a memorandum of the action taken thereon within a period of six months of the submission of the Report by the Commission to the appropriate Government. The expression 'any definite matter of public importance' lacks descriptive precision and the Courts have not attempted to give a comprehensive or exhaustive definition to it, the existence of which is the very basis for setting the process under the Act into motion. Whether a matter is of public importance or not has to be decided essentially from its intrinsic nature. If a matter is intrinsically of public importance, it does not cease to be so, because the public did not agitate over it.

Sir, Cyril Salmon, Lord Justice of Appeal, in a lecture on Tribunals of Inquiry explained the reason and relevance of a Commission of Inquiry.-

"In all countries, certainly in those which enjoy freedom of speech and a free Press moments occur when allegations and rumours circulate causing a nation-wide crises of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public confidence can be effectively restored, for without it no democracy can long survive. This confidence can be effectively resorted only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be routed out, or that there is no foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is resorted."

Powers of Commission are provided in Section 4 of the Act, 1952 and are closely akin to the powers of the statutory Tribunals. The Commission can exercise only those powers which are specifically conferred on it. Section 5 deals with additional powers of Commission. Section 5 empowers the appropriate Government to make the provisions of Sub-section (2) or Sub-section (3) or Sub-section (4) or Sub-section (5) applicable to a Commission by issuance of Notification in the Official Gazette. Sub Section (2), confers power on the commission to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters which may be useful for or relevant to the subject matter of the inquiry. Sub-section (3) clothes the Commission or any officer not below the rank of a Gazetted Officer specially authorised by the Commission to enter any building or place where the Commission has reason to believe that any books of account or other document relating to the subject-matter of the inquiry may be found and to seize any such books of accounts or documents or take extract or copies therefrom, subject to the provisions of Section 102 and 103 of the Code of Criminal Procedure. Sub-section (4) provides that the Commission shall be deemed to a Civil Court and when any offence as is described in Sections 175,178,179,180 or Section 228 of the Indian Penal Code is committed in the view or presence of the Commission, may forward the case to a Magistrate having jurisdiction to try the same. Sub-section (5) declares that any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code (45 of 1860). Under Section 5 A, the Commission is authorised to utilise the service of certain officers and investigation agencies for conducting investigation pertaining to inquiry with the concurrence of the Central Government or the State Government as the case may be. Section 5B of the Act enables the Commission to appoint persons having special knowledge of any matter connected with the inquiry as assessors to assist and advise the commission in the inquiry. Section 6 of the Act provides that no statement made by a person in the course of giving evidence before the Commission shall subject him to or be used against him, in any civil or criminal proceeding except prosecution for giving false evidence by such statement, provided that the statement (a) is made in reply to a question which he is required by the question to answer or (b) is relevant to the subject-matter of inquiry. Section 6 prohibits the use of previous statements at the trial either for the purpose of cross-examination to contradict the witness or to impeach his credit. Section 6A expressly protects persons against disclosure of any secret process of manufacture of any goods. The Commission shall cease to exist on declaration by the appropriate Government by Notification in the Official Gazette if it is of opinion that continued existence of the Commission is unnecessary and the Commission appointed in pursuance of resolution passed by the House of Parliament or by the State Legislature if a resolution for the discontinuance of the Commission is passed by the House of Parliament or by the Legislature of the State as the case may be as provided under Section 7. Section 8 authorises the Commission to regulate its own procedure. After about two decades of the enactment of the Commissions of Inquiry Act, 1952, the legislature realised the necessity of observing the principles of natural justice during the course of inquiry into the conduct of any person or whose reputation is likely to be prejudicially affected by bringing out Act, 79 of 1971. Section 8 A to 8C were inserted and Section 8 B and C were incorporated for the observance of the principles of natural justice. Section 8B of the Act mandates that the Commission if at any stage of the inquiry considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. The above provision has been excluded in a case where the credit of a witness is being impeached. Section 8C deals with right of cross-examination and representation by legal practitioner. Section 8C recognises the right upon a person whose conduct is under inquiry or who is likely to be prejudicially affected by the inquiry of cross-examination of witnesses other than a witness produced by him. It further confers a right to be represented by a legal practitioner or by any other person with the permission of the Commission before it.

On a survey of the Commissions of Inquiry Act, 1952 what emerges is that the inquiry contemplated by it is more or less in the nature of a preliminary enquiry that is followed by a full-dressed departmental inquiry. The Courts are not bound by the report of the inquiry commission and the Government is also not bound to accept the recommendations or act upon its findings. In the decision in P.V. Jaganatha Rao v. State of Orissa (AIR 1969 SC 215)a Constitution Bench of the Supreme Court upheld the validity of the Notification appointing the Commission as it was to take appropriate legislative or administrative measures to maintain the purity and integrity of political administration in the State. In Fazalur Rahman and Others v. StateofUPandOthers ((1999) 7 SCC 683)the Apex Court was considering the complaint of inaction on the part of the Government in taking follow up action on the Justice C.D. Parekh Commission report relating to the riots which took place in Meerut in September, 1982, The report was submitted to the Government in 1988 and the State Cabinet took a decision in 1998 deciding not to take any further action on the basis of the report. In the above fact situation the Supreme Court expressed its anguish at the manner in which reports of the Commissions of Inquiry are being treated by the States and the Supreme Court observed that "on account of such inaction for a long period of time, the very purpose of the constitution of a Commission of Inquiry under the Commissions of Inquiry Act, 1952 gets frustrated and the argument that such commission are appointed under the Act only as an eye­wash acquires credibility."

A Commission of Inquiry may be appointed to assuage the agitated public or due to public outcry. In fact, political leaders particularly opposition leaders call for appointment of Commission of Inquiry as a challenge to the Government to make Inquiry relating to any issue irrespective of whether it is a matter of public importance or not. It has become a sly device to misdirect, the public attention. The warp and woof of our experience is that, many a Commission of Inquiry have proved to be a sheer wastage of public money without any result having been achieved. Some of the reports of the Commission have done irreparable damage to the reputation and political career of persons notwithstanding that their misdemeanor highlighted by the Commission was found to be totally unfounded. The reports of the Inquiry mostly are remaining in limbo after expending a huge amount from the public exchequer.

Desirability of appointing sitting judges as Commission of Inquiry

Now-a-days, there has been considerable erosion in the intrinsic sense of fairness and justice. To quote Krishna Iyer J., "It sometimes happens that judges are used by politicians inpower to pull their chest nuts out of the fire by appointing Commissions with men in robes to preside. This is regarded by some a dubious step because the credibility of such report is in controversy, political artillery from the affected side being invariably turned on the judge. Marginally, there is also a peril that the latent politics of the judge may show up when he is called upon to inquire into a quasi-political public issue". Apprehensions are likely in the minds of the public that when a judge on the verge of his retirement is appointed as a Commission of Inquiry to inquire into the conduct of a Minister or a high political figure may appease the demands of the Government especially when the judge is appointed successively as Commission of Inquiry by a succeeding Government. In Alok Kumar Roy v. Dr. S.N. Sarma (AIR 1968 SC 453) the Supreme Court held that "A judge of the High Court when he is appointed to head a Commission of this kind does not demit his office as a judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court." In Dr. Subramanya Swami v. Ramakrishna Hegde ((2000) 10 SCC 331) the Supreme Court has noted the opinion of the Attorney General that when a Supreme Court Judge is appointed as a Commissioner in a Commission of Inquiry, he does not carry with him all the powers and jurisdiction of the Supreme Court and the functions discharged by him are statutory functions independent of the jurisdiction vested in the Supreme Court. In T. Fenn Walter v. Union of India ((2002) 6 SCC 184) it has been held by the Supreme Court that "Therefore, it cannot be said that a sitting judge of High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the High Court concerned would be consulted in case the appointment is sought of a sitting judge. Normally, a judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-chairman or Member of any Commission or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation". It has been further held therein that the appointment of judges to head or chair a Commission of inquiry would create unnecessary burden on the judges and it would affect the administration of justice. It has been observed by the Supreme Court that quite often the reports of the Commissioner are ignored and no follow up actions are being taken by the Government. In some matters, when political issues are involved, even impartiality and objectivity of the Court may sometimes be questioned due to some extraneous and oblique motives. The Supreme Court accordingly exhorted that "It is desirable that the judges are not subjected to unwanted criticism on account of appointment as inquiry commission".

Legality of appointing a sitting Judge of the Supreme Court or a sitting Judge of the High Court as a Commission of Inquiry under the Commissions of Inquiry Act, 1952

A sitting Judge of the Supreme Court and the sitting Judge of a High Court belongs to the third organ of the State and is independent of the other two organs, the Executive and the Legislature((1995) 6 SCC 765). Article 131 of the Constitution deals with original jurisdiction of the Supreme Court and Article 131A governs exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central Laws. Article 132 provides the appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases while Article 133 deals with appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters. Article 134 lays down the appellate jurisdiction of Supreme Court in regard to criminal matters. Article 138 provides for enlargement of the jurisdiction of the Supreme Court. Article 138(1) provides that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. Article 138(2) provides that Supreme Court shall have such further jurisdiction and power with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court. In any event, the Supreme Court shall have further jurisdiction and powers with respect to any of the matters in the Union List or any matter relating to special agreement referred to in Article 138(2) only if Parliament by law provides for the exercise of such jurisdiction and powers by it. The jurisdiction and powers of the High Courts are governed by Articles 225, 226, 227 and 228. Articles 224 to 228 and Articles 232 to 235 speak of the High Court as a collective body. Article 225 of the Constitution of India preserves the jurisdiction of existing High Courts subject to the provisions of the Constitution and of any law made by the appropriate Legislature. Article 225 corresponds to Section 223 of the Government of India Act, 1935 and the power that is conferred on the High Court under Section 108 of Government of India Act, 1915 is kept intact and the High Courts enjoy the jurisdiction and power as they exercised under Section 108 of the Government of India Act, 1915. Under Section 108 (2) of the Government of India Act, 1915 it is for the Chief Justice to arrange for the sittings of the Court and it is for the Chief Justice to allot work to the Judges. The inherent power conceded to the Chief Justice in the matter of constitution of Benches does not extend to allocation of non-judicial functions exercisable under the Commission of Inquiry Act, 1952. The Chief Justice is not empowered to allot duties of non-judicial character to a sitting judge. Therefore, in the absence of a law made by the Parliament or by the appropriate Legislature, non-judicial functions cannot be assigned to a sitting judge like that of the functions of a Commission of Inquiry. Necessarily, a report made by a sitting judge as the Commission of Inquiry appointed by the Government in the purported exercise of the powers under Section 3(1) of the Commissions of Inquiry Act, 1952 without investiture of jurisdiction or legal authority is liable to be declared as void.

The Governments have been appointing sitting Judges as Commission of Inquiry on the basis of the assumed power under Section 3(1) of the Act, 1952 ignoring the provisions that every Judge of the Supreme Court and every Judge of a High Court shall be appointed by the President. The transfer of a Judge from one High Court to another High Court is also to be made by the President. There is no enabling provision for assignment of non-judicial work to a sitting Judge by the Government under the Constitution. Therefore, a pertinent question would arise as to whether the Central Government or for that matter a State Government is competent to appoint a sitting Judge of the Supreme Court or that of a High Court as Commission of Inquiry for the purpose of making an inquiry under the Commissions of Inquiry Act, 1952. Section 3(1) of the Act, 1952 does not empower the appropriate Government to appoint a sitting Judge of the Supreme Court or a High Court as a Commission of Inquiry. In fact, the Central Government or a State Government is not competent to appoint a sitting Judge of the Supreme Court or the High Court, as the case may be, as a Commission of Inquiry under the Act, 1952 and that too without the concurrence of the President. The provisions of the Commissions of Inquiry Act, 1952 do not confer jurisdiction or power on a sitting Judge of a Supreme Court or that of a High Court to exercise the functions of a Commission of Inquiry. Therefore, in the absence of any law made by Parliament conferring further jurisdiction and powers exercisable under the Commissions of Inquiry Act, 1952 on a sitting Judge, the appointment of a sitting Judge as a Commissioner of Inquiry under the Act is without jurisdiction and authority of law. It follows, therefore, that a sitting Judge of a Supreme Court or a sitting Judge of a High Court shall have no jurisdiction or power to function as the Commission of Inquiry under the Commissions of Inquiry Act, 1952 notwithstanding the appointment made by the appropriate Government in the purported exercise of power under Section 3(1) of the Act, 1952. The above seminal issue of law remains unaddressed and undecided.

Conclusion

The Commissions of Inquiry Act, 1952 underwent surgical operations through amendments in order to effectuate the working of the Commission. However, the Commissions of Inquiry Act in its present form also has its operational limitations. So long as the report of the Commission of Inquiry has no binding force and are not having penal provision, the whole proceedings under the Commissions of Inquiry Act would be an exercise in futility. The Government is not bound by the report and it can ignore it. The Courts are not bound by the report and it has no persuasive value even. The statements recorded by the Commission cannot be used either for corroboration or contradiction in a later judicial proceeding. In the words of Krishna Iyer J., "the Commissions have become an expensive luxury ending in futility". The report of the inquiry Commission is only in the nature of fact finding and in case the Government accepts the report, the follow up action is of ordering a Police Investigation or Vigilance Enquiry by the Police. Even the Police or Investigating Agency is not bound by the conclusions reached by the Commission of Inquiry. The appointment of a Commission of Inquiry involves a profligate use of public money compared to Police Investigation or Vigilance Enquiry by the Police. Then, what earthly benefit is achieved by obtaining a report of the Commission of Inquiry and what public good is served by expending colossal amount for the functioning of the Commission is a matter which calls for immediate attention of the legislatures and the public. Justice Krishna Iyer penned two decades ago that "the public Inquiry legislation is becoming an antiquated, impotent and dubious instrument"3.The politicians and social workers have to think twice before pressurising the Government to appoint Commissions of Inquiry to inquire into issues relating to committing suicide by a student, complaint of molestation and the like which can be effectively dealt with by the State machinery if they have any concern for public good and public interest.

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1. Administrative Law by Sir William Wade, 7^th Edition

2. Commission of lnquiry by V.R. Lakshmi Narayanan, Seminar 221 Annual, Page 42

3. Foreword by Justice V.R. Krishna Iyer to Commentary on Commissions of Inquiries Act by Ramasubramanyam.

In Search of Advocacy*

(By T.P.Kelu Nambiar, Senior Advocate, High Court of Kerala, Ernakulam)

The topic of this address is christened by me. There is an inevitable brashness in choosing this topic, 'In Search of Advocacy'. 'Advocacy at Risk' would also be an appropriate term. This topic is boldly unusual.

I am now delivering a carefully drawn up script. It is in the direction of an "Operation Save Advocacy/Legal Profession". I am on an 'Advocacy Hunt'. Where has advocacy gone; where is advocacy hiding. Let us find out, where.

Advocacy is the life-line of the legal profession. For effective advocacy, I believe, a lawyer should be comfortable in the English language. Therefore, make a strong pitch for the study of English. Try to make your mind your dictionary in English. Lord Denning said: "To succeed in the profession of law, you must seek to cultivate command of language; words are the lawyer's tools of trade. As a pianist practises the piano, so the lawyer should practise the use of words in writing and by word of mouth". Students of law are unborn lawyers; they should be taken care of, as it is done in the case of unborn children. Therefore, try to secure a higher score in English language; and make advocacy easy. Advocacy, remember, is the dynamic aspect of law practice. And, advocacy is not a commodity available for purchase.

Both hard work and neat arguments are essential. A case has to be argued with precision, without indulging in unlimited arguments. A court-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untenable contentions.

Remember, in these days some Judges order 'cut' when lawyers are performing, because they expect 'quick-fixes' in cases. Some other Judges are laid-back with immobile countenances. Some are disciplinarians with the reserve of a school-master. Sometimes, some Judges, resting on their cushion of safety in box-seat, show anger, revulsion and disgust, when hearing cases; and send sharply worded judicial missive. Some sit in suffering silence. Some Judges erase arguments by the nose, instead of chewing them. Some show hints of Hollywood. I am of the view that Judges should dot counsel's arguments in the proud pages of their judgment. They should know that a feather will turn the scale. They should realise that Judges also have their 'honourable points of ignorance', to use a learned borrowing from Shakespeare. Judges should not tie their ear to 'no tongue than their own'. The Judge is not to 'call' a lawyer like the cricket umpire calling a bowler. 'Points of weight' urged by counsel, should not be ignored.

Let me divagate to point out that a lawyer has to argue his case without servile breadth. Advocacy should not be muffled, crippled and stifled in the name of superlative importance to judicial power/independence. Judge-should not create 'no-go' zones for lawyers. I have

known a Judge who has used the maximum number of 'no-nos'. Be that as it may, a lawyer has to argue his case, without being a 'walker' in the court/profession, and resisting the 'terminator' acts of Judges. A lawyer should never give occasion to be accused of premature abandonment of his case. Advocacy is not pre-paid talk. Let the Judge know the lawyer's quality, not name.

I have memories of another day. Some old judgments are carbon copies of original advocacy. In these days, we see judgments rendered in capsules, with an eye on disposals. In those days lawyers used to care/guard their briefs like a female goose sitting over a clutch of eggs. Good lawyers are forever. They are always mindful of their language and advocacy. Today, we see advocates sans real advocacy and Judges sans original judgment. We seem to require advocacy insurance, and that, with double coverage. Advocacy seems to be looked upon as the Achilles heel of the justicing system. There is a heightened concern in the legal profession about vanishing advocacy. Nobody learns to excel. "Advocacy exemplifies the principles of freedom of expression", according to David Pannick. Pannick proceeds to say: "The Judge can only perform his function adequately if he has the assistance of counsel to present the competing arguments for each side". Famous lawyer Thomas Erskine, taking exception to judicial lateral intervention, contended that he would for ever, at all hazards, assert the dignity, independence and integrity of the Bar, without which impartial justice can have no existence.

Win or lose, advocacy succeeds. There is no use looking for a 'fast track' in justice delivery system. Chasing targets in disposals by the judiciary, does harm to real advocacy.

Junior lawyers seem to require a huge dose of self-brief. Young lawyers should not conduct themselves as 'marketing boys', or infiltrators in the profession. Law libraries are used as "De-stress Zone' only, forgetting that books are the tools of a lawyer. A lawyer studies to live, not lives to study, unlike Francis Bacon, who lived to study, and not studied to live. The importance of the library of books had been spoken of by Shakespeare, in "The Tempest" and "Titus Andronicus"; Edward Gibbon, in 'Decline and Fall of the Roman Empire'; Milton, in "Paradise Regained"; and by Lord Samuel, Martin Tupper, John Sheffield, William Cowper, Oscar Wilde and Macaulay. Therefore, a lawyer's library should contain not only Lindley, Palmer, Russell, Jarman, Kerr, Fry, Wade and Maxwell, but also Shakespeare, Galsworthy, Mathew Arnold, Hazlitte and Dr. Johnson. This aspect has to be noted especially by cub lawyers. Most of the lawyers of today seem to suffer from 'dyslexia'. The shift from print to screen has a damaging effect on reading habit.

Advocacy cannot be improved by performance-enhancing drugs. A lawyer should have a mental down-load before he argues a case. Some court-rooms look like 'riotuous inns'.

The legal profession is one that exhilarates and frustrates. Today, the legal profession seems to laugh at itself; and seems to be 'out of order'. We have to invent a better future for the profession. The search for advocacy seems to die at the starting-gate.

In good sadness, I say 'advocacy is dead'. In ardent gladness, I hail, 'long live advocacy'.

I should thank the Samatha Law Society for this opportunity. And, I thank you for your time and tolerance.

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*Special Address delivered on 28.11.2004, at Renewal Centre, Kaloor, Ernakulam on the occasion of the Sixth Annual Day Celebrations and All India Moot Court Competition of Samatha Law Society.

Advocacy Muffled, Crippled And Stifled

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

The forensic duty of the advocate was laid down, in memorable words, by Justice Crampton, in R v. O'Connell, thus: "This Court in which we sit is a temple of justice; and the Advocate at the Bar, as well as the Judge upon the Bench, are equally ministers in that temple. The object of all equally should be the attainment of justice...........Let us never forget our high vocation as ministers of justice and interpreters of the law..........An advocate gives to his client the benefit of his learning, his talents and his judgment."

On query from Boswell, Dr. Johnson said: "Sir, you do not know it to be good or bad (cause) till the Judge determines it. I have said that you have to state facts fairly; so that your thinking, or what you call knowing a cause to be bad, must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the Judge to whom you urge it: and if it does convince him, why then, Sir, you are wrong, and he is right. It is his business to Judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can

for your client, and then hear the Judge's opinion...........Every body knows you are paid for affecting warmth for your client."

Branwell B. once pointed out: "A man's rights are to be determined by the Court, not by his attorney or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their own opinions. A client is entitled to say to his counsel, I want your advocacy, not your judgment; I prefer that of the Court."

Lord Hailsham, in his Memoirs, 'A Sparrow's Flight; wrote that Bar was always his first love, because the lawyers' profession is reciprocally adversarial profession.

Lord Justice Salmon said: Advocacy is an art.

According to David Pannick, advocates earn their living by exercising the skills of persuasion; they have to present the contentions of the parties; the court can properly perform its task of deciding the issues before it only if each party has someone to speak on his behalf to put his side of the case.

According to M.C. Chagla, (in 'Roses in December'), it is the business of counsel and solicitors to tell the Judge what the briefs contain and the Judge's job is to decide after hearing them. Chagla wrote: "I think it is a mistake for a Judge to go to court after studying the case that is coming up before him. Inevitably, one makes up one's mind one way or the other after having read the papers. I agree, the decision is tentative, and one might change it after hearing counsel. But it requires a very strong mind to change an opinion once formed.................If the Judge comes to court with an open mind, I think it would be easier, and therefore quicker, to decide one way or the other..............I believe that the administration of justice is a co-operative

effort between the Judge and the lawyer. It should not become a one-sided affair. There are Judges who think that lawyers are superfluous. They know the law. They have studied the facts, and they can decide the question on their own. But grave injustice can be caused if such an approach were followed. Judges are there to decide after hearing counsel on both sides. But, I have known Judges, incredible though it may seem, who decide first, and hear counsel afterwards................Despatch is important, but despatch at the cost of justice is a complete perversion of judicial process............Counsel is paid to argue his client's case, and not to accept what the Judge may be putting to him."

I see a tendency in recent times in certain Judges to do exactly what Chagla despised. They even go to the extent of framing questions at home, and asking lawyers to answer in court even at the start of the case, forgetting that advocacy is not a quiz programme and a Judge should not act as a quizzical quizzer. Advocacy should never be muffled, crippled and stifled, is the lesson which we learn from the various opinions gathered and stated above.

Long live advocacy.

Convincing or Confusing?

(By T.M. Rajasekharan, Advocate, Calicut)

The decisions of the Kerala High Court reported in 2004 (2) KLT 833 and 2004 (2) KLT 837 are likely to create certain confusions.

Four types of Trials are prescribed in the Code of Criminal Procedure 1973 viz: Sessions Trial, Warrant Trial, Summons Trial and Summary Trial. Different procedures are laid down for each of them. In “State of Kerala v. Shaji”, the case number before the Magistrate Court is C.C. 638 of 1996; clearly showing (Considering the relevant Section of the Penal Code Read with the S.2(w) of the Cr. P.C.) that it was taken on the file as a Summons Trial case and not a Summary Trial Case.

Had the case been tried as Summary Trial under S.260( 1) (c)(i) Cr. P.C, it should have been numbered as S.T. and not as C.C, by following the Catagorisation of Nomenclature of Cases notified by the High Court. A S.T. case can be converted into a summons case or warrant case but not vice versa. Position being this, the observation of the High Court such as “the trial was a summary one” for the reason that the accused pleaded quality, would lead to confusion. A Summons Trial case would not automatically convert itself into a Summary Trial Case, on the pleading of the accused.

The line of demarcation between the gravity of offences punishable under S.304 and 304A is very thin. In both the cases, innocent lives are put to end by the act of the accused. Only difference is that of intention. As to whether a person committing a negligent act resulting in the death of another is entitled to unregulated benevolence of a more few hours of staying in the Court Hall and paying couple of rupees as fine, is a point to be debated seriously. If the Court rises soon after the judgment is pronounced, he would not even be under this "nominal imprisonment" for more than a few minutes. Sadly, the Hon'ble Judge also appears to have forgotten to apply the provisions of S.357( l)(c) R/w S.357(3) and (4) Cr. P.C. As the sentencing policy is a matter in which several rulings of the Supreme Court of India have already appeared even recently, elaboration on this aspect is not attempted to.

In Babu v. Suresh the High Court was dealing with the requirement of impleading “firm” in a proceedings under S.142 N.I. Act. Though there cannot be any difference of opinion regarding the ultimate finding in the case, paragraph 3 of the judgment would create a misunderstanding such as the “firm” also could have been impleaded in similar cases.

Mere term “firm” or “company” does not make out anything in a criminal case, though in common parlance it may be understood as an establishment of some sort. A firm or company can be brought into the array of accused only when it is an incorporated company or body corporate including a society registered under Societies Registration Act, 1860, as defined in S.305(1) Cr. P.C. A proprietary concern is not a firm or company under the Code. Hence in the instant case the so-called “firm” could not have been prosecuted at all.

With great respect may I add that it is not sufficient that the findings of the Court happens to be correct. There should be reasoning emanating from thorough study. Way back in the 17^th Century wrote John Dry den, “But the Reader will be as apt to ask the question, Why they allowed not a longer time to make their works more perfect? And why they had so despicable an Opinion of their Judges (critics) as to thrust their indigested stuff upon them, as if they deserved no better?”

Will Sajan Abraham open a Floodgate for Acquittals?

(By Justice M.R. Hariharan Nair, Former Judge, High Court of Kerala)

Sajan Abraham (2004 (2) KLT 122 SC) provides food for serious thought and leads to the question whether compelling necessity does not exist for the Govt, to specify what exactly is the quantum of one dosage unit of the psychotropic substance which occupies the shelves of medical stores under the brand name TIDIGESIC. It would appear that until that is done Sajan Abraham would provide impunity for anyone to possess as many as 25 ampoules of the substance (nay, even upto 110 ampoules and as many as three syringes for injecting them!) if only he pleads that it was kept for own consumption and make some one like a friend or relative to give evidence that he was used to the injection. Not even a prescription from a medical practitioner is a must. To me, it appears that the decision provides a gold mine not only for the Accused involved in such cases which are presently pending investigation or trial; but also to those whose Appeals/Revisions are presently pending before one Court or another. A peculiar situation indeed!

Tidigesic is the trade name given by its manufacturer for the injectible solution with International non-proprietary name BUPRENORPHINE. Undoubtedly it is an item of psychotropic substance coming under serial number 92 of the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1989. The dangerous nature of the substance is evident from the fact that 'small quantity' thereof is limited by law (See SI. No. 169 of the relevant notification) to as low a measure as 1 gram. Possession of over 20 grams of the substance would make it 'commerical quantity' inviting, under S.22(c), minimum punishment of R.I. for 10 years and fine of one lakh rupees; which is extendable even upto R.I. for 20 years besides fine of upto 2 lakh rupees or even more. Under S.22(a) read with S.8(c) of the Act, even possession of a miniscule quantity of the substance is an offence though possession of quantity of 1 gm or less (small quantity) of the substance would attract a lesser punishment of R.I. for a term of upto 6 months or fine which may extend to ten thousand rupees or both only. These limits speak for the gravity of the offence and of the potency of BUPRENORPHINE, available in medical stores as TIDIGESIC, usually in ampoules of 2 ml or4 ml.

Going by the provisions in Section 27(b) of the Act consumption (administration through injection in this case) of even one ampoule of TIDIGESIC would attract punishment of upto six months' imprisonment and fine of Rs.10,000/-; such possession being of a small quantity only. But then an exception to this culpability would be where, as laid down in S.8(c) itself such possession or consumption is for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act, or Rules or orders made thereunder.

Rule 66 of the Narcotic Drugs and Psychotropic Substances Rules 1985 is such a provision. It stipulates that no person shall possess any psychotropic substance for any of the purposes covered by the Rules unless he is lawfully authorised to possess such substance for any of the purposes mentioned in the Rules. It further states that notwithstanding this restriction, any person who is not so authorised under the 1985 rules can also possess a reasonable quantityof such substance as may be necessary for his genuine scientific requirements or genuine medical requirements or both for such a period as is deemed necessary. The proviso to this Rule further mentions that where such substance is in possession of any individual for his personal medical use the quantity thereof shall not exceed 100 dosage units at a time. What exactly is one dosage unit of TIDIGESIC is, however, not laid down in the Act or the Rules.

The Accused in Sajan Abraham was allegedly in possession of 25 ampoules of TIDIGESIC each of two ml and had been convicted for the offence under section 21. In his appeal resulting in the said judgment it was found that he was liable to be acquitted as no offence is made out; the reason being that Rule 66 above mentioned permits one to be in possession of upto 100 dosage units at a time for personal medical use. The Court held that the admission of the investigating officer as also the evidence of the accused's mother indicated that possession of the substance might have been for his personal consumption. One of the reasons for that conclusion (possibility of genuineness as regards requirement for personal medical use) as given in the judgment is that three syringes were also recovered from the appellant. It is to be mentioned here that the recovery was made not while the accused was in his residence or from a receptacle kept there; but from his person and while he was standing on the road near a busy junction. In similar circumstances, in Basheer @N.R. Basheer Vs. State of Kerala,  2004 SCCL.COM 552 (Criminal Appeal No. 1334 of 2002) the inference drawn from the fact that the Accused therein was found with contraband on a street was that he was waiting for his customers. Possibly, a similar inference was possible in the present case also. Further, it may be mentioned here that if it was for his personal consumption why should he have kept with him three syringes too? Does it not lead to the opposite inference that he was soliciting customers as drawn in N.P. Basheer aforementioned, especially when the practice of giving a shot for a price is not only not unknown, but rampant in the field of drug trafficking? May be, two views are possible and the benefit therefrom might go to the Accused. Whatever that be, the accused was found justified in possessing the 25 ampoules and his contention that it was kept for his personal use was accepted by the Court. While doing so the Court also relied (See Para 8 of the judgment) on an earlier decision in Ouseph @ Thankaachan v. State of Kerala (Crl. Appeal 1256 of 2001 of the Apex Court) where even possession of 110 ampoules of TIDIGESIC (along with two injection syringes) was held justified under the same provision namely Rule 66. The Court had held in Ouseph's case (supra) that there was nothing to indicate that even 110 ampoules of the substance would exceed 100 dosage units.

The situation, therefore, is that even in a case where possession of over 100 ampoules of the substance and holding of more than one syringe for injection on the part of the Accused is established, it would be open to him to take the defence that it was kept for his personal consumption and he need adduce only some evidence in the form of deposition of a friend or a relative to the effect that he was in the habit of taking such injections to justify an acquittal. Throwing a suggestion in that regard to the Seizing and Investigating officers and other eye witnesses also may perhaps be required. If this is the position, will not the Police and other empowered officers be wasting their time by booking persons found on the street in possession of say a hundred Tidigesic ampoules or more, unless they can get at positive evidence to show that the item was kept not for his own consumption; but for sale or distribution? In any case, there has to be certainty on the aspect as to what quantity of the substance is a 'dosage unit'. The earlier this is done, the better.

Urgent action at the hands of the Union Government is required in the matter lest the trials in similar cases would turn out to be a wasteful exercise for all concerned, if not a mockery of the justice system itself.