It’s Not All About A“Second Appeal”

By N. Ajith, Advocate, High Court of Kerala, Ernakulam

04/03/2022

It’s Not All About A“Second Appeal”, But..........

(By N. Ajith, Advocate, High Court of Kerala^[1])

Code of Civil Procedure, 1908 deals with both procedure and some substantive rights like ‘right of appeal’ alike[2]. However, Code omitted to define the word ‘appeal’. Merriam Webster says that ‘appeal is a legal proceeding whereby a case is brought before a higher court for reconsideration of the decision of a lower court’. Appeal is a remedy by which a cause determined by an inferior forum is put before a superior forum to test its correctness. Right of appeal is a substantive and valuable right available to a party aggrieved by the impugned decision[3].

Right to appeal

Appeal is a continuation of the suit[4]. The legal pursuit of a remedy, suit, appeal and second appeal are steps in a series of proceedings, all interconnected byan intrinsic unity and regarded as a single legal proceeding. Right of appeal is not a mere matter of procedure, but is a substantive right. Vested right of appeal to enter the superior court accrues to the litigant and exists as on and from the date the lis commenced. Such a right can be taken away only by a subsequent enactment, if it provides so expressly or by necessary intendment and not otherwise. Right of appeal, where one exists, cannot be denied even in exercise of the discretionary powers of the High Court[5].

Powers and jurisdiction of an appellate court must be circumscribed by the words of the statute. A court of appeal is a ‘court of error’ with a normal function to correct the decision appealed from and its jurisdiction is co-extensive with that of the trial court. It cannot and ought not to do something which the trial court was not competent to do. There is no fetter on its power to do what the trial court could do[6].

What is a question?

Question means anything inquired and an issue to be decided. A question may be a ‘question of fact’, ‘question of law’, ‘mixed question of fact and law’ and even a ‘substantial question of law’. A ‘question of fact’ is a factual dispute between parties which need be resolved by the jury at trial and conflicting views on the factual circumstances surrounding the case. A ‘question of law’ is related to an issue regarding the application or interpretation of law on a particular set of facts[7].

Substantial question of law - What is?

The word ‘substantial question of law’ is also not defined in the Code, though such an expression is found in Art.133 of the Constitution, Section 260A of the Income Tax Act, Section 30 of the Workmen’s Compensation Act, Section 55 and so on.

The word “substantial” prefixed to “question of law” does not refer to stakes involved in the case, nor is it intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between parties. “Substantial questions of law” means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 C.P.C., any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by the Supreme Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by the Supreme Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by the Supreme Court (or by the High Court concerned), but lower court has ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by the Supreme Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by the Supreme Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the legal position enunciated needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot be a straitjacket definition as to when a substantial question of law arises in a case[8].

To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. “Where neither such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained.” An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. The general rule is, that High Court will not interfere with concurrent findings of fact by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where, (a), the courts below have ignored material evidence or acted on no evidence; (b). the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (c). the courts have wrongly cast the burden of proof[9].

A question of law which affects right of the party to the suit will be ‘substantial’, if it is not covered by any specific provision of law, or settled legal principle emerging from binding precedents of High Court concerned, Privy Council or Supreme Court[10]. The proper test would be whether the question of law “is of general public importance or whether it directly or substantially affects the rights of the parties, and if so, whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion or alternative views”. The question of interpretation of a particular section directly and substantially affects the rights of the parties and it is an open question in the sense that it is not finally settled by the Supreme Court and it is, therefore, clearly a substantial question of law within the meaning of this test[11].

A second appeal lies only on a substantial question of law. Where no question of law, nor even a mixed question of law and fact was urged before trial court or first appellate court, a second appeal cannot be entertained unless such a course is absolutely warranted[12].

It is the ‘substantial questions of law’ and not a ‘mere question of law’, which is essential condition for maintaining a second appeal. The phrase ‘substantial question of law’ has not been defined in the Code. The proper test for determining whether a question of law arose in the second appeal is substantial or not would be whether it directly and substantially affects the rights of the parties and whether it is an open question in the sense that it is not finally settled by the superior courts. If the question has been settled by the highest court, the general principles to be applied in determining the question are well-settled and the question is merely of the application of those principles, the question will not be a substantial question of law[13].

The rationale

The rationale behind allowing a second appeal on a question of law is that, there ought to be some tribunal having a jurisdiction which would enable it to maintain, and, where necessary, re-establish uniformity throughout the State on important legal issues, so that within the area of the State, the law, insofar as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. That is implicit in a system where the higher courts have authority to make binding decisions on question of law[14].

‘Involved in the case’ - meaning

Section 100 (1) C.P.C. says that a High Court can entertain a second appeal provided that it is satisfied that the case “involves’ a substantial question of law. The word ‘involves’ suggests that such a question must arise in the case and an answer to the question is necessary to decide it. The To be a question of law “involved in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal.

An entirely new point raised for the first time before the High Court is not a ‘question involved in the case’ unless it goes to the root of the matter[15]. A considerable degree of necessity is presupposed.[16]

Effect of 1976 Amendment

Priorto the Amendment in 1976 the scope of second appeal was very wide. The Statement of objects and reasons for the amendment clarifies the situation well. “In dealing with second appeals, the courts had devised and successfully adopted several concepts, such as, a mixed question of fact and law, a legal inference to be drawn from the proved facts, and even the point that the case has not been properly approached by the courts below. This has created confusion in the minds of the public as to the legitimate scope the second appeal under Section 100 and had burdened the High Courts with an unnecessary large number of second appeals”.

The Shah Committee, on arrears of cases in High Courts, observed that, “it is necessary to provide a stricterand better scrutiny of second appeals and they should be made subject to special leave, instead of giving an absolute right of appeal limiting it to a question of law”. Later, the Law Commission in its 54th Report, p.187, reviewed the position, recommended that the right of second appeal should be confined to cases where a), a question of law is involved, and b). the question of law so involved is substantial. The reason for the change is to ensure that the second appeal may not become a ‘third trial on facts’ or ‘one more dice in the gamble’.

The amended Section 100 made the scope of a second appeal narrow. Sec.101 provides that no second appeal is maintainable except on the grounds specified in the Code. No second appeal is permissible under Sec.102, from a suit where the subject matter of original claim for recovery of money is less than twenty five thousand rupees. The conjoint reading of these three provisions and the cumulative effect of the restrictions imposed therein would establish the fact that an entry to a second appellate court is not for the mere asking, but extremely qualified and limited. After the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the First Appellate Court without doing so[17].

While entertaining a second appeal, the Courts should not over-look the change brought about by the 31st Amendment Act of 1976 restricting or limiting the scope of second appeal drastically and now it applies only to appeals involving substantial question of law, specifically set-out in the memorandum of appeals and formulated by the High Court. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine- qua-non for the exercise of jurisdiction under the provisions of Section 100 of the Code[18]. It is the obligation on the Court of Law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same. High Court cannot ignore the statutory provisions of Section 100 of the Code and re-appreciate the evidence and interfere with the findings of facts unless the substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

Interestingly, there is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse[19].

The High Court, after having admitted the second appeal and having formulated the substantial questions of law, could not have disposed of the same by only stating its satisfaction on findings of first appellate court[20].

Hearing of an appeal without formulating substantial questions of law is illegal and without jurisdiction. The High Court cannot proceed to hear a Second Appeal without formulating the substantial questions of law involved in the appeal[21].

If the Court does so, it is abnegation or abdication of the duty cast on the court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under Section 100 of the Code. But, the power of the High Court to hear any other substantial question of law not earlier formulated is not taken away if the case involves such question and the court records reasons for its satisfaction.

The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction to technical, of no substance or consequence, or academic merely. However, the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Article 133(1) (a) of the Constitution.

The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance[22]. If a question of law has already been settled by the highest court, that question, however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties, would not be regarded as a substantial question of law.

By importing the expression substantial question of law, the Commission can be said only to have sought to eliminate frivolous, flimsy and fragile second appeals and exhorted the High Courts to be on the strictest vigil against entry of appeals on inconsequential but ingenious grounds. It does not by its own avowal preclude admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence. This predicates that facts found upon such misconduct of the proceedings and misapplication of the procedure with regard to evidence will necessarily be a question of law touching the legality of inference on proved facts. If the law is settled but is not applied to a set of facts despite the finding warranting its application, it is not perceivable how the legislature could conceive of barring the High Court from setting right the erroneous application. Where the finding of fact is on no evidence, then it will be either on assumptions, or on surmises, and conjectures. This will bring the judicial system to discredit before the people. How such a situation shall be allowed to go unremedied where it leads to the denial of justice?[23] Finding of fact, however erroneous, cannot be challenged in a second appeal. But a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness cannot be accepted as a finding that is conclusive and cannot be touched in Second Appeal. Where the findings stand vitiated by wrong test and based on assumption and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Perversity itself is a substantial question of law. What is required is a categorical finding on the part of the High Court as to perversity[24].

Circumstances under which High courts can interfere with the findings of lower courts or concurrent findings of fact are explained in detail in Nagarajappa’s case[25].

Common mistakes in dealing with Section 100 C.P.C. In actual practice, while deciding second appeals, mandatory as well as statutory requirements are seldom borne in mind and second appeals are being entertained without conforming to the discipline[26].

Some of the oft-repeated errors relating to scope of second appeal and procedural aspect of second appeal, are enumerated as follows: (a) admitting a second appeal when it does not give rise to a substantial question of law; (b) admitting second appeals without formulating substantial question of law; (c) admitting second appeals by formulating a standard or mechanical question such as “whether on the facts and circumstances the judgment of the first appellate court calls for interference” as the substantial question of law, (d) failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal, (e) rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law; (f) reformulating the substantial question of law after conclusion of hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law; and (g) deciding second appeal by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to the Supreme Court and remands by the Supreme Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law[27].

Dealing with a Second Appeal

Memorandum of appeal must state the substantial questions of law[28].

It is neither proper nor permissible to raise all new grounds in second appeal[29].

A new plea of limitation, which is not merely one of law, but a mixed question of fact and law, cannot be raised for the first time in a second appeal[30].

The counsel who appeared and filed vakalath for the respondent subsequently died. No vakalath seen filed for the legal representatives of the deceased respondent. It is evident that the High Court disposed of the appeal without giving an opportunity to the legal representatives of the deceased respondent of being heard. The judgment is set aside and remanded[31].

There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal[32].

In Ram Prasad’s case[33], Supreme Court held that existence of substantial question of law is a sine-qua-non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether need of the landlord was bonafide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record. Similar view has been reiterated in a series of cases[34].

A question of law, though available based on pleadings and evidence, if omitted to be raised in early stage, can be raised later[35].

Where the High Court, just referred to grounds A to E raised in the memorandum of appeal as the substantial questions of law, set aside the concurrent findings of the Courts below, the Court did not fulfill the mandate of law[36].

Second appeal can be heard only on substantial questions of law formulated by the High Court. Second appeal can be dismissed on objection raised by the respondent that the questions so formulated do not arise in the case or the same are not substantial questions of law. Any substantial question of law not initially framed but in the opinion of the Court does arise in the case, such questions can be framed subsequently by assigning reasons[37].

Scope of interference in second appeal

A second appeal cannot be disposed of without framing a substantial question of law.

Cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in appeals and legal principles applicable to the case, cannot be countenanced[38].

Words ‘prima facie perverse and error apparent on the face of the record’ are not a ‘mantra’ and cannot be employed to permit High Court to do in second appeal what the law enjoins on it not to do [39]. Mere framing of substantial questions of law is not enough. Second appeal must be disposed of on consideration of and in answer to the said questions[40].

No second appeal can be entertained on a question of fact. Question of re appreciation of evidence and framing of substantial questions as to whether findings relating to facts by the court below could vitiate due to irrelevant considerations[41].

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. “ If no such question arises, it is not necessary for the High Court to frame any substantial question of law[42].

Recently, the Supreme Court has affirmed the duty of courts and said, “even if no question of law is framed at the stage of admission, at least before deciding the case, said question of law ought to have been framed”[43]. Perversity is the limit to interfere with the concurrent findings of the courts below.

In a second appeal under Section 100 C.P.C. there is very limited scope for re-appreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court. When such divergent findings on fact were available before the High Court in an appeal under Section 100 C.P.C. though re-appreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which were at variance with each other and one of the views taken by the courts below was required to be approved. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula[44].

Appellate Court in second appeal shall not assume jurisdiction to interfere just because another view is possible on appreciation of evidence[45]. Generally the High Court shall not interfere with the concurrent finding of fact under Section 100[46]. Concurrent finding on a material issue should not be upset[47]. But, it is liable to be interfered with when a very important piece of evidence in the nature of an admission by the defendant has been overlooked by the Courts below[48].

Where the substantial question of law had already been decided by the Authority which is binding on the other Courts like the judgments of the Supreme Court under Article 141 of the Constitution is binding on all other Courts etc., it does not remain a substantial question of law since there remains nothing more to interpret on the point[49].

Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in Second Appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But, where it is found that the First Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the Second Appeal, treating it as substantial question of law. Where the First Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in Second Appeal[50]. Under no circumstances, question of limitation be said to be irrelevant and academic[51]. An order admitting appeal or one formulating a substantial question of law is not final orders[52]. Court cannot partly admit the appeal and reject it partly[53]. High Court has no power, once the appeal is admitted to file to dismiss it without hearing on merits, subject ofcourse in the teeth of Section100 C.P.C.[54]. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage[55].

In a mortgage by conditional sale or sale with a condition of repurchase, the nature of transaction was considered as a substantial question of law[56]. A question of law where there are conflicting views, a finding without evidence on record, disregard, or non-consideration of relevant and admissible evidence, misconstruing of evidence and documents etc. are considered as substantial.

Finding of genuineness of a Will is ofcourse a question of fact and an interference in Second Appeal is bad[57]. Objection as to the validity of a gift deed is taken as a mixed question of fact and law. Concurrent finding of courts below cannot be lightly interfered in a routine and casual manner by substituting subjective satisfaction[58].

Readiness ad willingness to perform the contract is a mixed question of fact and law[59]. But, in a suit for specific performance of agreement to sell property, the trial court framed an issue regarding the readiness and willingness of the plaintiff to perform his part of the contract and that issue of fact was concurrently found in his favour. It was held that the High Court cannot take a different view in second appeal by re-appreciation of evidence, treating the issue as a substantial question of law[60].

Construction of documents is a substantial question of law and that proposition is settled long back by the Privy Council[61], and affirmed and followed by the Supreme Court in a series of cases[62].

“Most of the second appeals succumb at the threshold itself”.

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Foot Note

1.@: najithmenon@gmail.com

2.Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation (2009 (3) KLT SN 57 (C.No. 59) SC = (2009) 8 SCC 646); Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat (1969 KLT OnLine 1036 (SC) = (1970) 1 SCR 322 /AIR 1970 SC 1); Dayawati v. Inderjit (1966 KLT OnLine 1216 (SC) = (1966) 3 SCR 275 = AIR 1966 SC 1423).

3.Bolin Chetia v. Jogadish Bhuyan (2005 (2) KLT 418 (SC) = (2005) 6 SCC 81 = AIR 2005 SC 1872); Transmission Corporation of A.P. v. Ch. Prabhakar & Ors. ((2004) 5 SCC 551).

4.Purushotham Reddy v. K. Satish (2008 (3) KLT 590 (SC) = (2008) 8 SCC 505; Bhagmal v. Munsi ((2007) 1 SCR 111).

5.Garikapati Veeerayya v. N. Subbaiah Choudhry (1957 KLT SN 54 (C.No.137) SC = AIR 1957 SC 54 = 1957 SCR 488); Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto (1978 KLT OnLine 1065 (SC) = (1979) 1 SCC 92/AIR 1979 SC 1352); Pranab Kumar Mitra v. State of W.B. (1959 KLT OnLine 1416 (SC) = 1959 Supp.(1) SCR 63/AIR 1959 SC 144); Darshan Singh v Ram Pal Singh (1991 (1) KLT OnLine 1041 (SC) = 1992 Supp. (1) SCC 191 = AIR 1991 SC 1654).

6.Shankar Kerba Jadhav v. State of Maharashtra (1969 KLT SN 22 (C.No.43) SC = (1969) 2 SCC 793 = AIR 1971 SC 840); Tejinder Singh Gambhir v. Gurpreet Singh (2015 (1) KLT SN 39 (C.No.54) SC = (2014) 10 SCC 702).

7. Union of India v. Ibrahim Uddin (2012 (3) KLT SN 73 (C.No. 79) SC = (2012) 8 SCC 148).

8. S.B.I. v. S.N Goyal (2008 (2) KLT Online 1143 (SC) = (2008) 8 SCC 92 = AIR 2008 SC 2594).

9. Nazir Mohamed v. J. Kamala (2020 (4) KLT Online 1153 (SC) = (2020) SCC Online SC 676).

10. Hero Vinoth v. Seshammal (2006 (2) KLT Online 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Madan Lal v. Bal Krishan (2005) 13 SCC 555 = AIR 2006 SC 645; Jwala Singh v. Jagat Singh (2006) 10 SCC 148; Lankeshwar Malakar v. R. Deka (2006) 13 SCC 574; Patrik JJ Saldanah v. Anthony MM Saldanha (AIR 2007 SC 2620); Boodireddy Chandraiah v. Airgela Laxmi (2007 (4) KLT SN 40 (CNo. 41) SC = (2007) 8 SCC 155).

11. Mahindra & Mahindra Ltd. v. Union of India (1979 KLT OnLine 1076 (SC) = (1979) 2 SCC 529 = AIR 1979 SC 798); Chunilal V Mehla and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. (1962 KLT OnLine 1121 (SC) = AIR 1962 SC 1314); Pankaj Bhargava v. Mohinder Nath (1991) 1 SCC 556 = AIR 1991 SC 1233; Rajeshwari v. Puran Indoria (2005) 7 SCC 60; M.B Ramesh v.K.M.Veeraje Ors. (2013 (2) KLT SN 107 (CNo.136) SC = (2013) 7 SCC 490/ AIR 2013 SC 2088).

12.Sundaraganeshan v. Ramesha Menon (2021 (2) KLT 892).

13.Damjibhai Bijibhai Vasava v. Ranchodbhai Zinabhai (2000) 3 SCC 22 = AIR 2000 SC 1000.

14. Gurdev Kaur v. Kaki (2007) 1 SCC 546 = AIR 2006 SC 1975.

15. Hero Vinoth v. Seshammal (2006 (2) KLT Online 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Govindaraju v. Mariamman (2005) 2 SCC 500 = AIR 2005 SC 1008.

16. Santhosh Hazari v. Purushottam Tiwari (2001 (1) KLT SN 74 (C.No. 90) SC = (2001) 3 SCC = AIR 2001 SC 965); Pankaj Bhargava v. Mohinder Nath (1991) 1 SCC 556 = AIR 1991 SC 1233.

17. Sheel Chand v. Prakash Chand (1998) 6 SCC 683 = AIR 1998 SC 3063; Tahera Khatoon (dead) through LRs v. Salambin Mohammad (1999 (1) KLT Online 922 (SC) = (1999) 2 SCC 635 = AIR 1999 SC 1104); Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) through LRs. (2000 (1) KLT OnLine 921 (SC) = (2000)1 SCC 434 = AIR 2000 SC 426); Kundan Singh v. Salinder Kaur 2010 (6) Supreme 32; Kichha Sugar Co. Ltd v. Roofrite Pvt. Ltd. (2009) 16 SCC 280; Babulal v. Shankarlal (2008) 17 SCC 638; State of Punjab v. Amarjit Singh (2010) 15 SCC 535; Syeda Rahimunnisa v. Malan Bi (2016 (4) KLT OnLine 2048 (SC) = (2016) 10 SCC 315 / AIR 2016 SC 4653); Thiagarajan v.Venugopalaswamy B.Koli (2004 (2) KLT 358 (SC) = (2004) 5 SCC 762 = AIR 2004 SC 1913); Apparaju Malhar Rao v. Tula Venkalaiah (2017 (4) KLT OnLine 2083 (SC) = (2017) 8 SCC 827); Union of India v. Diler Singh (2016 (3) KLT OnLine 2019 (SC) = (2016) 13 SCC 71 = AIR 2016 SC 3131); SNDP Sakhayogam v. Kerala Atmavidya Sangam (2017 (4) KLT 866 (SC) = (2017) 8 SCC 835).

18. Municipal Committee, Hoshiarpur v. Punjab SEB (2010 (4) KLT SN 58 (C.No. 67) SC = (2010) 13 SCC 216).

19. Jagdish Singh v. Nathu Singh (1991 (2) KLT Online 1044 (SC) = AIR 1992 SC 1604); Smt. Prativa Devi (Smt.) v. T.V. Krishnan (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v.Brijesh Kumar (1998 (2) KLT OnLine 1245 (SC) = (1998) 6 SCC 423); Ragavendra Kumar v. Firm Prem Machinary & Co. (AIR 2000 SC 534); Molar Mal (dead) through Lrs. v.M/s. Kay Iron Works Pvt. Ltd. (2000 (2) KLT OnLine 1010 (SC) = AIR 2000 SC 1261); Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors.,( 2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685); and Dinesh Kumar v. Yusuf Ali, (2010 (3) KLT SN 16 (C.No. 20) SC= (2010) 12 SCC 740); Dinesh Kumar v. Yusuf Al (2010 (3) KLT SN 16 (C.No.20) SC = AIR 2010 SC 2679); Municipal Committee, Hosiarpur v. Punjab State Electricity Board & Ors. (2010 (4) KLT SN 58 (C.No. 67) SC = JT 2010 (11) SC 615); and Bharatha Matha & Anr. v R. Vijaya Renganathan & Ors. (2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685) (See also- Kailash Paliwal v Subhash Chandra Agrawal ( 2013 (3) KLT Suppl. 60 (SC)= AIR 2013 SC 2923); and Laxmibai (Dead) thr. L.Rs. & Anr. v. Bhagwantbuva (Dead) thr. L.Rs. & Ors., (2013 (1) KLT SN 82 (C.No. 66) SC = AIR 2013 SC 1204).

20. Ram das Waydhan Gadlinge v. Gyanchand Nanuram Kripalani (2021) 4 KLJ 243 (SC).

21. K.Raj v. Muthamma (2001) 6 SCC 279 = AIR 2001 SC 1720; Roop Singh (dead) by LRs v. Ram Singh (dead) by LRs (2000) 3 SCC 708 = AIR 2000 SC 1485; Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999 (1) KLT Online 942 (SC) = (1999) 2 SCC 471/AIR 1999 SC 864); Ragulavalasa Chiranjivi Rao v. State of A.P. (2009) 13 SCC 33; Jaskaran Singh v. Punjab Ministry of Home Affairs (2009 (4) KLT Suppl. 916 (SC)= (2009) 9 SCC 59); Kamla v. Gaurav Kumar Gupta (2009 (4) KLT Suppl. 807 (SC) = (2009) 13 SCC 253).

22. Santhosh Hazari v. Purushottam Tiwari (dead) by LRs. (2001 (1) KLT SN 74 (C.No. 90) SC = (2001) 3 SCC 179 = AIR 2001 SC 965.

23. Ratanlal v. Kishorilal (AIR 1993 Cal.144).

24. Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs. (2001 (3) KLT Online 1003 (SC) = (2001) 4 SC 262 = AIR 2001 SC 1273); Arjan Singh v. Kartar Singh 1951 SCR 258 = AIR 1951 SC 193; Sugani v. Rameshwar Das (AIR 2006 SC 2172); H.P Pyarejan v. Dasappa (2006 (2) KLT SN 82 (C.No.102) SC = (2006) 2 SCC 496 = AIR 2006 SC 1144); Hero Vinoth v. Seshammal (2006 (2) KLT OnLine 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Town Planning, Municipal Council v. Rajappaa (2008 (4) KLT Suppl. 78 (SC) = (2008) 2 SCC 593); Bakhtiyar Hussain v. Hafiz Khan (2007) 12 SCC 420 = AIR 2007 SC (Supp.) 947; Maria Colaco v. Alba Flora Herminda D’Souza (2008 (3) KLT Suppl.1466 (SC)= (2008) 5 SCC 268 = AIR 2008 SC 1965); Tallam Gangadharaan v. U Ismail Sahib (2009) 17 SCC 389; Dr. Ramnath Murti v. Ramappa (2010 (4) KLT Suppl. 115 (SC) = (2011) 1 SCC 158); SC Jindal v. UHBVNL (2011 (2) KLT Suppl. 61 (SC) = AIR 2011 SC (Supp.) 516); Shiv Cotex v. Trigun Auto Plast Pvt. Ltd. (2011 (3) KLT Suppl. 20 (SC) = (2011) 9 SCC 678).

25. Nagarajappa v. Narasimha Reddy (2021 (5) KLT Online 1137(SC) = AIR 2021 SC 4259.

26. Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. (1997 (1) KLT OnLine 1077 (SC) = AIR 1997 SC 2517).

27. S.B.I. v. S.N.Goyal (2008 (2) KLT Online 1143 (SC) = (2008) 8 SCC 92 / AIR 2008 SC 2594).

28. K.K.Kannan v. Koolivathukkal Karikan Mandi (2010 (1) KLT Suppl. 159 (SC) = (2010) 2 SCC 239 = AIR 2010 SC (Supp.) 194).

29. G.Suryakumari v. B. Chandramouli (2010 (1) KLT Suppl. 160 (SC) = (2010) 2 SCC 254 = AIR 2009 SC (Supp.) 2133.

30. Banarasi Das v. Kanshi Ram (1963 KLT OnLine 1275 (SC) = AIR 1963 SC 1165 = (1964) 1 SCR 316).

31. Kanth Shri v. Munna (2010) 2 Scale 582.

32. Union of India V. Ibrahim Uddin & Anr.( 2012 (3) KLT SN 73 (C.No. 79) SC = (2012) 8 SCC 148).

33. Ram Prasad Rajak v. Nand Kumar & Bros. & Anr. (AIR 1998 SC 2730)

34. Tirumala Tirupati Devasthanams v. K.M.Krishnaiah ((1998) 3 SCC 331); State of Rajasthan v. Harphool Singh ((2000) 5 SCC 652); Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & Ors. (AIR 2000 SC 2108); Santakumari & Ors. v. Lakshmi Amma Janaki Amma( 2000 (3) KLT SN 45 (C.No. 49) SC = (2000) 7 SCC 60); Satyamma v. Basamma (Dead) by LRs, ((2000) 8 SCC 567); Santosh Hazari v. Purushottam Tiwari, (2001 (1) KLT SN 74 (C.No. 90) SC = AIR 2001 SC 965); Kulwant Kaur & Ors. v. Gurdial Singh Mann (2001 (3) KLT OnLine 1003 (SC) = AIR 2001 SC 1273); M.S.V. Raja v. Seeni Thevar, (2001) 6 SCC 652; Hafazat Hussain v. Abdul Majeed & Ors., (2001) 7 SCC 189; V. Pechimuthu v. Gowrammal (AIR 2001 SC 2446); Neelakantan & Ors. v Mallika Begum (AIR 2002 SC 827); Md. Mohammad Ali (Dead) by L.Rs. v. Jagdish Kalita & Ors. (2003 (3) KLT OnLine 1239 (SC) = (2004) 1 SCC 271); Rajeshwari v. Puran Indoria ((2005) 7 SCC 60) and Bharatha Matha & Anr. v.R. Vijaya Renganathan & Ors. (2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685).

35. Mohamad Laiquiddin v. Kamla Devi Mishra (2010) 2 SCC 407.

36. State of Himachal Pradesh v. Milkai Ram (2007) 15 SCC 750.

37. Shivaji Balaram Haibatti v. Avinash Maruti Pawar (2017 (4) KLT OnLIne 2122 (SC)/(2018) 11 SCC 652).

38. Bismillah Be v. Majeed Shah (2017 (1) KLT OnLine 2117 (SC)/(2017) 2 SCC 274 / AIR 2017 SC 206).

39. M.C Hegde v. Vasudev D. Hegde (2000) 2 SCC 213.

40. Kunwar Lal v. Deva Bai (2004) 13 SCC 535.

41.BharathaMatha v. VijayaRenganathan (2010 (2) KLT SN 65 (C.No. 62) SC/(2010) 6 SCALE 53/ AIR 2010 SC 2685).

42. Kirpa Ram v. Surendra Deo Gaur (2020 (6) KLT 574 (SC) /2020 SCC Online SC 935).

43. Seethakathi Trust Madras v. Krishnveni (2022 (1) KLT OnLine 1128 (SC) = AIR 2022 SC 558 = AIR Online 2022 SC 34).

44. Balasubramanian v. M. Arockiasamy (2021 SCC Online SC 655); Kulwant Kaur v. Gurdial Singh Mann (2001 (3) KLT Online 1003 (SC) = (2001) 4 SCC 262) = AIR 2001 SC 1273); Union of India v. Ram Prakash (2010 (3) KLT Suppl. 36 (SC) = (2010) 7 SCC 93); Sheel Chand v. Prakash Chand (1998) 6 SCC 683/ AIR 1998 SC 3063.

45. Veerayee Ammal v. Seeni Ammal (2002 (1) KLT OnLine 1028 (SC) = (2002) 1 SC 134 / AIR 2001 SC 2920).

46. Ranjit Singh v. Jaimal Singh (2001) 10 SCC 474.

47. Udham Singh v. Ram Singh (2007) 15 SCC 728; United Church of Northern India v. Jibral Narjiary (2007) 15 SCC 728.

48. Deva v. Sajjan Kumar (2003) 7 SCC 481 = AIR 2003 SC 3907; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003 (1) KLT OnLine 1131 (SC) = (2003) 2 SCC 91 = AIR 2003 SC 761); Sha Babu Lal v. Melaram (2002) 10 SCC 146.

49. Ram Kishan Dalmia v. Justice Tendolkar (1958 KLT OnLine 1302 (SC) = AIR 1958 SC 538); and Mohammed Haneef Quareshi v. State of Bihar (AIR 1958 SC 731); Bhagwan Swaroop v. State of Maharashtra (1964 KLT OnLine 1278 (SC) = AIR 1965 SC 682).

50. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999 (2) KLT OnLine 1006 (SC) = (1999) 3 SCC 732 = AIR 1999 SC 2213).

51. Padmanath Goswami v. Banamali Das (2004) 13 SCC 651.

52. S.B Minerals v.MSPL Ltd. (2010) 12 SCC 24 = AIR 2010 SC 1137.

53. Ramji Bhagala v. Krishnarao Karirao Bagra (1982) 1 SCC 433 = AIR 1982 SC 1223.

54. Jhanda Singh v. Gram Sabha of Village Umri ((1971) 3 SCC 980.

55. Hasmat Ali v. Amina Bibi ( 2021 (6) KLT 1167 (SC) = 2021 SCC Online SC 1142).

56.Ramlal v. Phagua (2006 (1) KLT SN 45 (C.No. 60) SC = (2006) 1 SCC 168 = AIR 2006 SC 623).

57. Aparsini (dead) through LRs v. Atma Ram (1996) 8 SCC 321= AIR 1996 SC 1558.

58. Brij Raj Singh (dead) by LRs v. Sewak Ram (1999) 4 SCC 331= AIR 1999 SC 2203; Karnataka Board of Wakf v. Anjuman -E-Ismail Madris -Un-Niswan (1999 (3) KLT SN 39 (C.No. 39) SC = (1999) 6 SCC 343 = AIR 1999 SC 3067).

59. Ram Kumar Agarwal v. Thawar Das (dead) through LRs (1999 (3) KLT SN 39 (C.No. 39) SC = (1999) 7 SCC 303 / AIR 1999 SC 3248).

60. Veerayee Ammal v. Seeni Ammal (2002 (1) KLT OnLine 1028 (SC) = AIR 2001 SC 2920); Saraswati Devi Gupta v. Harnarayan Johri (2006) 1 SCC 729; Ramlal v. Phagua (2006 (1) KLT SN 45 (C.No. 60) SC = (2006) 1 SCC 168 = AIR 2006 SC 623); Haryana State Industrial Corporation v. Corporation Mfg.Co.(2007) 8 SCC 120, Shakuntala v. Lt. Col.Mukhtiyar Singh (2008) 11 SCC 42, Madan Kishore v. Major Sudhir Sewal (2008) 8 SCC 744= AIR 2009 SC (Supp.) 978; Shyam Lal v. Sanjeev Kumar (2009 (3) KLT Suppl. 307 (SC) = (2009) 12 SCC 454 / AIR 2009 SC 3115); Waheed Baig v. Bangi Lakshmamma (2008) 14 SCC 435; United Church of North India v. Jibhral Narjinary ((2008) 15 SCC 728).

61. Guran Ditta v. Ram Ditta (AIR 1928 PC 172/55 IA 235 / ILR 55 Cal.944).

62. Kochukakkada Aboobakkar v. Allah Kasim (1996) 7 SCC 389 = AIR 1996 SC 3111; Neelu Naarayani v. Lakshmanan (1999) 9 SCC 237 ; Santaakumari v. Lakshmi Amma Jaanaki Amma (2000 (3) KLT SN 45 (C.No. 49) SC = (2000) 7 SCC 60 = AIR 2000 SC 3009); Hero Vinoth v. Seshammal (2006 (2) KLT OnLine 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234).

‘STATEMENTS’ Alone can be Proved by ‘CERTIFICATE’ Under Section 65B Evidence Act....

By Saji Koduvath, Advocate, Kottayam

21/02/2022

‘STATEMENTS’ Alone can be Proved by ‘CERTIFICATE’

Under Section 65B Evidence Act

Other ‘information’ like photo, audio/video CD, etc. cannot be proved by ‘Certificate’

(By Saji Koduvath, Advocate, Kottayam)

What is brought about by Section 65B, Evidence Act?

1. Section 65B of the Evidence Act enables a litigant to prove computer output (derived from original – secondary evidence) ‘without further proof or production of electronic record’ (original), provided the conditions laid down in S.65B(2) are fulfilled (such as: the computer was operating properly, the electronic record is derived from such information fed into the computer in the ordinary course of the activities, etc.). S.65B declares that the computer output (copy or print out) ‘shall be deemed to be also a document‘.

*The (general) provision, in the Evidence Act, to admit a copy of a document is S.65. Under S.65, it must be proved by evidence – oral evidence or affidavit – that one of the conditions laid down in the section, for production of copy, is satisfied (that is: loss of original, original with other side and notice given, etc.). S.63, Evidence Act lays down the sorts of admissible copies (such as: certified copies, copies made from the original by mechanical processes etc.).

2. Still simpler provisions are introduced to prove ‘statements‘ (call-records of phones, bank-account-statements, etc.), inasmuch as:

* ‘Statements’ can be proved by a mere ‘certificate‘ provided under S.65B(4).

* [Note: It is not made applicable to ‘information’ like CCTV Footage, photo in a

pendrive or video in a CD (Contra view in Court decisions)].

3. There is presumption as to correctness (not truth) of the computer output (copy or print out) under S.65B(5)(c), as it provides:

‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

Does the duo by S.65A & 65B Evidence Act Oust the Operation of S.63 & 65?

That is, whether ‘computer output’ (secondary evidence of the ‘electronic record’) can be proved only by S.65B, and it Constitute a ‘Complete Code’?

The Answer is No.

Then, what does the non-obstante clause (‘Notwithstanding anything’) denote? It is clear that S.62 to 65 are independent from the new provisions, S.65A and 65B; and S.62 to 65 can also be invoked to prove ‘computer output’ (secondary evidence of the ‘electronic record’). It is definite that the non-obstante clause (‘Notwithstanding anything contained in the Act .. .. ’) in S.65B does not oust Sections 63 and 65 of the Evidence Act in proving a computer output (secondary evidence). Because:

1. Section 65A is an introductory provision to S.65B.

2. Section 65A does not control S.65B.

3. Section 65A directs only an (enabling) method to PROVE (not the only one method) the CONTENTS of electronic records – by print/copy – invoking S.65B.

* (Section 65A reads: The contents of electronic records may be proved in accordance with the provisions of Section 65B.)

* Thus, S.65B is an Enabling or Added provision; and, other enabling (existing) provisions in the Indian Evidence Act, to prove documents by secondary evidence invoking S.63 and 65, are not taken away.

4. Section 65B(1), further lays down that the computer output (copy) shall be “deemed to be ALSO” an (original) document, if the conditions in S.65B(2) are satisfied, “notwithstanding anything contained in the Act”.

* That is, S.65B, does not bar proving a print/copy (as secondary evidence) by satisfying the conditions laid down in S.65, by oral evidence or affidavit, as to loss of original, original with other side and notice given, original not easily movable, etc., as the case may be.

5. Section 65B deals with ‘ADMISSIBILITY’ of ‘computer output’ (derived from original) alone.

6. The conditions in S.65B(2) (such as: computer was used regularly and operating properly, information was regularly fed into in the ordinary course, etc.) have to be satisfied by oral evidence or affidavit. In case of ‘statements’ alone, it can be had by the ‘certificate’ provided under S.65B(4).

In short, compliance of this enabling provision is not an invariable or imperative condition precedent to the admissibility’ of ‘computer output’ (secondary evidence); and it does not stand in the way of proving a secondary evidence of the contents of the ‘electronic record’, invoking the usual method laid down in S.65 read with S.63 of the Evidence Act – that is, satisfying the conditions laid down in S.65, by oral evidence or affidavit. (Note: Contra view in: Arjun Panditrao v. Kailash Kushanrao (2020 (4) KLT OnLine 1143 (SC) = (2020) 3 SCC 216).

‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under S.65B

Section 65B(4) reads as under:

“(4) In any proceedings where it is desired to give a statement in evidence, by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record CONTAINING the STATEMENT and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;

and for the purposes of this sub-section

it shall be sufficient for a matter to be stated to the best of the knowledge and belief the person stating it.”

What is a “Statement” in Evidence Act?

According to Evidence Act, ‘statement’ is – that which can be expressed in the form of ‘oral evidence’. Because, “Evidence” is defined in S.3 of the Evidence Act as under:

“Evidence means and includes—

all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.”

Whether the Limbs of Section 91 Cr.P.C. can be Extended to Include an Accused : An Overview in the Digital Era

By M.P. Madhavan Kutty, Advocate, HC

19/02/2022

Whether the Limbs of Section 91 Cr.P.C. can be Extended to Include an

Accused : An Overview in the Digital Era

(By M.P. Madhavan Kutty, Advocate, High Court of Kerala)

1. A moot question assuming much relevance during present times. After booking a person as an accused for one or more offence, does the investigating agency have any right or authority to direct production of evidence from the person who is so arraigned? The Constitutional principle in this behalf is enshrined in Article 20(3) of the Constitution of India which says that “No person accused of any offence shall be compelled to be a witness against himself”.

2. It is the law that a confession made by an accused to a police officer cannot be proved against him and similarly, a confession made by an accused while in custody of police unless it is in the immediate presence of a magistrate shall not be proved against that person. These are the safe guards provided to an accused under Sections 25 and 26 of the Indian Evidence Act. Whereas, an exception to the said rules have been carved in Section 27 of the Indian Evidence Act whereby when an information received from an accused in the custody of a police officer leads to the discovery of a fact or material which might have been used in the commission of an offence, so much of such information is however permitted to be proved and treated as admissible evidence in so far as it relates distinctly to the fact or material so discovered.

3. The Code of Criminal Procedure, 1973, (hereinafter referred to as the Code) elaborately lays down the procedure and conditions with specific mandate to be followed in various situations governing criminal jurisprudence and in what manner the same has to be exercised for the purpose of investigation, inquiry, trial and other aspects related thereto. It stipulates the powers of Courts, investigating agencies, extent and nature of their powers, the procedure to be followed etc. The Code also deals with the ways and means which can be adopted in order to identify the offender. In fact, the Code grants wide discretion and powers to the investigation officers, and the same has been recognized as a realm outside the purview of Courts. Albeit, such recognition not being absolute and is restricted for the purpose of investigation alone. The Superior Courts in our country has time and again held that the Court shall not in any manner interfere with the investigation unless there exists gross arbitrariness or grave violation of procedures. Otherwise, an investigating officer enjoys a wide range of freedom and discretion while carrying on an investigation into the commission of an offence and even adopting various methods to identify an offender during such process of investigation.

4. During the course of investigation, inquiry, trial or other proceedings, under Chapter VII, the Code delineates the process to compel production of things. The emphasis in this article is in respect of the powers and authority of a police officer for compelling such production of things. Section 91 of the Code authorizes an officer in charge of a police station to issue an order to the person in whose possession or power a document or thing is believed to be, if such officer considers it necessary or desirable for the purpose of any investigation. In fact, it grants power to such police officer to order any person to produce anything, if he thinks that the same is required for an investigation. This brings us to the topic which is the subject matter being dealt herein. So, will it be just to extend the limbs of this section so as to include an accused person also within the term ‘person’ used in Section 91 of the Code? Whether a police officer can direct an accused to produce a document or thing which is believed to be in his possession? Whether such an order violates the right guaranteed under Article 20(3) of the Constitution of India?

5. Section 91 of the Code which has been enacted with a view to enable a police officer to require any person to produce any document or thing before him, which is kept in the custody of such person. One of the objectives of this provision is to minimize the time lag in an investigation. But at the same time, the power provided under this Section cannot be said to be unfettered or absolute. Perhaps, thinking of absolute power, one might get reminded of a common adage “Power tends to corrupt and absolute power corrupts absolutely.” Law has been carefully made by not empowering an investigating officer with unbridled power which might lead to arbitrary, unfair and unjust investigation. Therefore, even the power conferred under Section 91 of the Code to the officer in charge of a police station has its limitation and cannot be exercised so as to compel an accused person to produce things which would be transgression over his rights guaranteed under the Constitution of India.

6. The word ‘person’ as seen in the language of Section 91 is of general and wide connotation. A literal interpretation of the said provision might state that even an accused person comes within the ambit of Section 91. However, when tested at the anvil of the Constitutional guarantees and the Rules of Interpretation, the word ‘person’ referred hereinbefore would certainly lead to ambiguity. It is the settled proposition of law that if a provision is ambiguous, then the literal interpretation shall be done away with and what was the intention of the legislature for enacting such a provision has to be identified. On a close reading of Section 91, we can see that there are some indications to show that the term ‘person’ under Section 91 exclude an ‘accused’. Under Section 91, the officer can require a person to ‘attend and produce’ a document or a thing. The provision would be odd if it enables an officer to issue an order to an accused who is already in his custody. A person forms part of the criminal investigation the moment an FIR is registered against him. An investigating officer is even authorized to arrest an accused and interrogate him under custody. Any statement given by the accused under police custody is inadmissible in evidence [1] . In fact, the Code makes little or no distinction between an accused who is in custody and who is not. Since Section 91 of the Code cannot apply to an accused under custody, we can construe that it cannot be made applicable to an accused not in custody also.

7. In addition to that, if we construe that Section 91 takes within its ambit an accused as well, it is most likely to cause violation of his fundamental rights and can subject him to prejudice and undue and unsurmountable hardships for him in order to defend himself as the same keep him at bay from a free and fair trial. The Hon’ble Supreme Court in State of Gujarat v. Shyamlal Mohanlal Chokshi and Others [2], while considering Section 94 of the old Code (In pari materia with Section 91 of the present Code of Criminal Procedure) held that construing Section 94(1) to include an accused person is likely to lead to grave hardship for the accused and make the investigation unfair to him. The Court also observed that Section 94 should receive a narrow construction. The Apex Court in the above mentioned judgment was pleased to observe that “The argument pressed on us that the ‘person’ referred to in the latter part of Section 94(1) is broad enough to include an accused person does not take into account the fact that the person in the latter part must be identical with the person who can be directed to produce the thing or document and if the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law, the generality of the work “the person” is of no significance”. The Hon’ble Supreme Court thus concluded that Section 94 of the Code (similar to Section 91 of the Code) on its true construction, does not apply to an accused person.

8. Following the above judgment, a Full Bench of the Hon’ble High Court of Kerala in Gopalakrishnan Nayanar v. Sasidharan Nambiar [3] upheld the proposition that an order under Section 91 of the Code cannot be issued to an accused person. Thus, from the aforementioned judgments, we can conclude that the scope of power envisaged under Section 91 does not extend to requiring an accused person to produce a document or thing in his custody. There are several other judgments of various High Courts which also uphold the view that Section 91 cannot be extended to include accused persons within its ambit [4]. This is the proposition of law which holds good now.

9. However, the decision of the Hon’ble Supreme Court of India in State of Bombay v. Kathi Kalu Oghad [5] relates to the examination of scope and ambit of the right conferred under Article 20(3) of the Constitution of India. In the above judgment, the question before Hon’ble Supreme Court was whether the taking of impression of palms and fingers of the accused for comparison with images of palms and fingers retrieved from a shop that was burgled would amount to self incrimination. In the said judgment, the Apex Court was pleased to hold in paragraph 46 that “We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art.20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of S.73 of the Indian Evidence Act”. Therefore, the limited question considered by the 11 Judge bench in the aforementioned judgment was relating to taking of finger print, specimen handwriting etc of the accused. The Hon’ble Supreme Court in M.P. Sharma v. Satish Chandra [6] was pleased to observe that “There has been some debate before us whether Section 94 applies to an accused person and whether there is any element of compulsion in it. For the purpose of this case it is unnecessary to decide these points. We may assume without deciding that the section is applicable to the accused as held by a Full Bench of the Calcutta High Court in a recent case in Satya Kinkar Boy v. Nikhil Chandra Jyotisho Padhaya AIR 1951 Cal.104”. Thus it is clear that the Apex Court has not decided whether an accused person comes within the ambit of Section 94 of the old Code of Criminal Procedure. On the other hand, the later judgment of the Hon’ble Supreme Court has laid down that an accused person will not fall within the ambit of Section 94 of the Code [7]. Therefore, the law, as declared by the Hon’ble Supreme Court that Section 91 of the Code will not intake an accused person stands the ground even today.

10. The observation in Virendra Khanna v. State of Karnataka & Ors.[8] that notice under Section 91 can be issued even to an accused person cannot be said to be a good law for the reason that the said observation is contrary to the dictum laid down by the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Chokshi & Ors.[9].

11. We are living in an era of technology where anything and everything is available at the tip of our fingers. The technological evolution has brought the whole world of information in a chip of a square centimeter. The mobile phones, laptops and such other electronic devices have become indispensable in our routine daily life much less part of our lives. Several electronic gadgets like mobile phones and other equipments which are being used on day to day basis do contain several information relating to personal, family, professional lives and umpteen other information which touches the privacy and lives of many individuals from all walks of life, all locked up in some manner or the other in the digital format. The meaning and scope of the term ‘life’ has been expanded by the judiciary to great extends. Recently, the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India [10], has recognized that the right to privacy is as sacrosanct as human existence and is inalienable to human dignity and autonomy. The Hon’ble Supreme Court in paragraph 325 of the above judgment was pleased to hold that “An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii)proportionality which ensures a rational nexus between the objects and the means adopted to achieve them”. The concept of right to privacy was reiterated by the Supreme Court of India in Manohar Lal Sharma v. Union of India [11] also. While upholding the importance of right to privacy, the Hon’ble Supreme Court was pleased to observe in paragraph 33 that “Although declared to be inalienable, the right to privacy of courts cannot be said to be an absolute, as the Indian Constitution does not provide for such a right without reasonable restrictions. As with all the other fundamental rights, this Court therefore must recognize that certain limitations exist when it comes to the right to privacy as well. However, any restriction imposed must necessarily pass constitutional scrutiny”.

12. In the light of these observations made by the Hon’ble Supreme Court, we have to analyze whether an investigating agency can direct any person to produce a thing including a mobile phone or such other electronic gadgets in exercise of the power under Section 91 of the Code. To answer the question, we must strike a balance between the authority of investigating agency with the right to privacy of an individual.

13. We cannot say that an investigating agency is not empowered to require a person to produce an electronic gadget before him, or his power to search and seize mobile phones or similar devices. But at the same time, such authority cannot be exercised in an unfettered manner and any such direction for production or seizure must not intrude into or denude any person of his or her right to privacy guaranteed under Article 21 of the Constitution. It is true that Section 91 of the Code of Criminal Procedure lays down a procedure to be followed, and therefore, even if an investigating officer intrudes into such realm of rights, the same must certainly stand the test of legality and propriety even if he may justify that he had done so by following the procedure.

14. At the same time, on a strict reading of Section 91, the language used are ‘…. A written order…’ can be issued by a police officer to produce a thing or document. From a mere reading of Section 91 itself, we can conclude that the officer has to pass an order directing the person to produce certain thing, and such an order should enumerate reasons for issuing such an order. As has been held by the Hon’ble Supreme Court of India in Maneka Gandhi v. UOI [12] the procedure laid down for intruding into right to life should be just, fair and reasonable. Therefore, the police officer or the investigating agency is not competent to direct any person to produce any document or thing without recording reasons for such demand.

15. The law has to be all the more strict when it comes to digital gadgets especially when such attempts to direct production of such gadgets are seen sporadically resorted to by the investigating agencies. A mobile phone or laptop used by an individual may contain innumerable personal information. Intrusion into such personal records amounts to violation of privacy rights. The officer concerned can require a person for specific reasons to be recorded in writing, to produce an electronic gadget, if such officer has reason to believe that such gadgets was either used to commit a crime, or contain relevant data which may throw light to the offence alleged to be committed. Such attempt, if turns out to be successful, sure has the propensity to even throw an innocent person also behind bars for the sole reason that he can be arraigned by the police for being in possession of incriminating materials. Though this might sound ridiculous, the investigating agency can always take recourse to such procedure and leave us surprised. Furthermore, it is to be considered that the mobile phones, lap tops, or such other electronic gadgets may contain voice recordings, messages, e-mails and such other statements made by the person, which emanate from the personal knowledge of such person. Recovering such statements and using the same against such person can be construed to come within the purview of Article 20(3) of the Constitution of India. A similar conclusion has also been made by the National Human Rights Commission, as evident from the following extract in the Guidelines Relating to Administration of Polygraph Test [Lie Detector Test] on an Accused (2000): “The extent and nature of the ‘self-incrimination’ is wide enough to cover the kinds of statements that were sought to be induced. In M.P. Sharma (AIR 1954 SC 300), the Supreme Court included within the protection of the self- incrimination rule all positive volitional acts which furnish evidence. This by itself would have made all or any interrogation impossible. The test as stated in Kathi Kalu Oghad (1961 KLT 74 (SC) = AIR 1961 SC 1808) retains the requirement of personal volition and states that `self- incrimination’ must mean conveying information based upon the personal knowledge of the person giving information. By either test, the information sought to be elicited in a Lie Detector Test is information in the personal knowledge of the accused”. This position was reiterated by the Apex Court in Selvi & Ors v. State of Karnataka & Another [13]. Thus, on an evaluation and exploration of the interpretations, observations and resultant decision arrived at by the Apex Court in cases referred hereinabove, it is indubitable that the investigating agency is precluded from using messages, voice records or any such other personal statements recovered from an electronic gadget as evidence to incriminate such person.

16. Thus, in a nutshell, we can conclude that it is as settled proposition of law that an accused person does not come within the ambit of Section 91 of the Code and therefore, an accused cannot be directed to produce any document or thing in his possession. Secondly, an officer, while issuing a written order under Section 91 of the Code, has to specify in writing, the reasons for issuance of such an order. Thirdly, when the document or thing ordered to be produced under Section 91 is a mobile phone, computer or similar electronic gadget, greater care and caution has to be exercised, and such an order must be passed if and only if there exists strong prima facie material, corroborating evidence or circumstance to proves that the required gadget is one which is involved in the commission of the alleged offence.

The wings of authority under Section 91 are clutched with the chains of Article 21.

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Foot Note

1. Section 161, Code of Criminal Procedure.

2. 1965 KLT OnLine 1363 (SC) = AIR 1965 SC 1251.

3. 1996 (1) KLT 83.

4. Melicio Fernandes v. Mohan (AIR 1966 Goa 23);Vinayak v. Vikram (1978 KLT OnLine 1073 (Bom.) = 1979 Cri.L.J. 71 (Bom.); M.Kalanithi Maran v. State 2004 CriLJ 1299 (Mad.).

5. 1961 KLT 74 (SC) = AIR 1962 SC 1809.

6.1954 KLT OnLine 1013 (SC) = AIR 1954 SC 300.

7. State of Gujarat v. Shyamlal Mohanlal Chokshi & Ors. (1965 KLT OnLine 1363 (SC) = AIR 1965 SC 1251.

8. 2021 (2) KLT OnLine 1090 (Karnt.) = 2021 SCC Online Karnt. 5032.

9. Supra note 2 and 6.

10.2017 (4) KLT 1 (SC) = (2017) 10 SCC 1.

11. 2021 (6) KLT OnLine 1101 (SC) = 2021 SCC Online SC 985.

12. 1978 KLT OnLine 1001 (SC) = AIR 1978 SC 597.

13.2010 (2) KLT OnLine 1101 (SC) = AIR 2010 SC 1974.

Juvenile Delinquency in India -- A Brief Analysis

By Xavier Thomas V.T., Advocate, HC

14/02/2022

Juvenile Delinquency in India -- A Brief Analysis

(By Xavier Thomas V.T., Advocate, High Court of Kerala)

Children are the most important determinant factor of the growth of the nation. They are also the determiners of the future of the world and the torch bearers of society. The civilization of men rests upon the children. It is easily predictable that the future of the country is at peril where the children have started getting involved in horrendous crimes. Unfortunately, there has been an unprecedented increase in the number of cases of crimes committed by children in most of the countries throughout the globe. India, being one of them. In India, the rate of crime committed by children is increasing at an alarming rate which is disturbing and is fatalistic to the interest of society, therefore, it is the need of the hour to find solutions to end the menace of juvenile delinquency. This paper aims at studying who is a juvenile, what juvenile delinquency means, the reasons or the causes behind the increasing rates of juvenile delinquency. Juvenile delinquency particularly in India has been discussed in the paper which is supplemented with various statistical data collected from official sources.

DEFINITION OF JUVENILE

In India before the passing of The Children Act, 1960 there was no consensus regarding the age limit of a juvenile offender and different States had their definition as to who shall be considered a “Child”.

The Juvenile Justice Act of 1986 defined “Child” as a person who in the case of a boy has not completed the age of 16 and in the case of a girl as a person who has not completed the age of 18 years. To discharge its international commitment India repealed this Act and replaced it with The Juvenile Justice (Care and Protection of Children) Act, 2000 by which the distinction between the ages of boy and girl was removed and the age of the juvenile whose actions have been alleged to be an infringement of the law of land was fixed to be not more than 18 years at the date of the commission of the said offense. However, by the Juvenile Justice (Care and Protection of Children) Act, 2015 major amendments to the earlier Act have been made, and according to this Act when in a case the age of the child whose actions have been alleged to conflict with the law of land is between 16 to 18 years then he will be treated as an adult if his actions fall within the category of heinous offenses which are those offenses which are punishable by imprisonment of 7 years or more and they include offenses like rape and murder or any other 21 types of crime.

CAUSES OF JUVENILE DELINQUENCY

Juvenile delinquency occurs in different areas and regions due to different reasons and causes. A child is the future of any nation or the world at large and therefore every child deserves the best environment and conditions to grow up to his full stature and it is the responsibility of the entire society to preserve the best interest of a child and nurture him well. But unfortunately, nowadays it is frequently seen that so many children around the globe are committing various dangerous and ghastly offenses including rape, murder, robbery, theft, etc. Various reasons are attributed for the increase in juvenile delinquency but there is a consensus that deviant behaviour is the result of a complex interplay of individual biological and genetic factors and environmental factors which are further divided under two broad categories:·Environmental and societal causes, Biological causes. Children’s interaction and communication with the societal environment in which they live in influences their behaviour to a great extent and it may be responsible for instilling antisocial and delinquent behaviour in them. Societal causes may include cultural conflicts which arise due to the mass exodus of people and results in violence between the immigrants and migrants. Family background is also an important factor as it is usually seen that children who are grown up in hostile and aggressive parenting are more likely to exhibit deviant activities which may be harmful to society. Social media and cinemas also influence young minds to a great extent as children of younger age cannot usually differentiate between reality and fiction or right and wrong. The peer group of which the child is a part has a great impact on the individual development of their personality. If a child accompanies bad people who are deviant he will be more he is more likely to indulge in criminal activities. The school atmosphere also plays a great impact on children as a child spends most of his time there. School is an institution designed to avoid delinquency in children but when the school fails to perform its duty then it turns into a major contributor to the development of delinquency in society.

JUVENILE DELINQUENCY IN INDIA

In India, out of the total population, 42% of the people are below 18 years of age making it the country with the largest youth population. It is expected that in 2022, the average age of an Indian will be 29. The present Indian society has undergone tremendous changes in terms of beliefs, thoughts, and ideologies. What was considered to be immoral earlier may not be considered the same in the present time because of the change in the belief system of the people? The facilities and the comforts of life have advanced along with that is a great advancement in the aspirations of people to get more and more. Everyone is busy in his daily grind. In this busy and fast-moving world, we have long forgotten the virtue of self-introspection and self-realization. The worst affected by the complexities of the modern world are children who at a very tender age are exposed to the harsh realities of adult life which negatively impacts their psychological, mental, and moral development. All this contributes to the increase in rates of juvenile delinquency in the country.

It is commonly presumed that minors are doli incapax and they lack the mens rea to commit a crime but recent times have witnessed some of the most ghastly and brutal crimes committed by juveniles proving that children can be as cruel as adults. Some of the infamous crimes involving juvenile delinquents are as follows:· The Nirbhaya rape case: It is one of the most brutal crimes ever, involving a juvenile delinquent. On the chilly night of 16 December 2012 the capital Delhi witnessed the brutal gang rape with a paramedical student in the moving bus. One of the convicts of the crime was a minor who was only a few days less than 18 years who walked out of the reformatory home free after spending three years of his life there. The decision was highly resented by the public including the family members of the victim but the Supreme Court expressed its helplessness by stating that “Though we feel with the parents and others our hands are tied due to lack of law in the land.” This was the case that the set ground for the introduction of the juvenile justice bill of 2015.·The Hatigaon rape case: This case took place in September 2013. In this case, the convicts included boys under the age group of 12 to 16 years who raped a minor girl whom they knew through the dark of the night.· In the year 2015, there was another incidence of juvenile delinquency which shocked and disturbed the whole nation. In this case, three juveniles indiscriminately fired in the Kakardooma, Delhi court complex killing a policeman in the same and causing fatalistic injury to their target who was a criminal who was going to be presented before the court. The 2016 Mercedes hit and run case was the first case to be resolved by the Juvenile Justice Act of 2015 in this case the teenager ran over a marketing executive while driving his father’s Mercedes. The board ruled out that the accused though was a minor but he was matured enough to understand the result and consequences of his actions and therefore his case was transferred to the city court. The kathua rape case: this case of 2018 pointed out that the earlier Acts mandating that a minor cannot be put behind the bars were greatly misused by the culprits. In this case, a minor girl was brutally raped and murdered. Two of the accused took the plea that they were juveniles. Although the court rejected the plea of one of them when a bone-ossification test for determination of the age was conducted.

According to Abraham Lincoln, “A child is a person who is going to carry on what you have started. He is going to sit where you are sitting and when you are gone, attend to those things which you think are important. You may adopt all the policies you please, but how they will be carried out depends on him. He will assume control of your cities, states, and nations. He is going to move in and take over your churches, schools, universities, and corporations. All your books are going to be judged or condemned by him. The fate of humanity is in his hands. So it might be well to pay him some attention.”

Children are the future determiners of the world. The civilization of men depends upon them. So if can do some good in the life of a child he will be able to make even the slightest positive change in the world to come. It can easily be predicted that the future of the country is at peril where the children have started getting involved in horrendous crimes. India is one such country where the juvenile delinquency rate is increasing at an alarming rate. Several steps to combat the same have been taken and many more remain to be taken. The Government of India has taken several steps to deal with the malaise of juvenile delinquency but the implementation of these initiatives, in reality, remains a big challenge till today. Even governmental initiatives are not enough. Several steps on the societal level need to be taken. Community participation and sensitization in matters related to juvenile delinquency is very important. It is very important to understand that the repentance of a juvenile and bringing him back in conformity with the notions of societal norms is more important than initiating punitive actions against him. If the members of the society are sensitized about the astray and helpless children they can play an important role in the rehabilitation of such children thus saving them from getting involved in anti-social behaviour. Some informal associations and bodies can be constituted to report those children who are indulged in deviant and peculiar behaviour raising anticipations in the mind. It has already been pointed out that family is the best institution for keeping a check on the deviant behaviour of the child by ensuring them that they are important and loved thereby deterring them from indulging in deviant activities. Children should be given fair and equal chances for their growth and development. Education is also a very important tool for the complete development of a child. The effective implementation of laws related to juvenile offenders is very important for dealing with the problem holistically. The members of the juvenile board should know child psychology and should be trained to sensitively handle the cases involving juvenile offenders. There should be a special police unit in every police station to deal with the juveniles.

CONCLUSION

“So many times we do not speak up because we do not want to risk criticism or attack. Frederick Douglas correctly upbraided those who wanted change without struggle or discomfort. We must be willing to say and do what is right for our children, whether or not it is politically popular or comfortable for our friends, foes, or peers. Children desperately need adults they can trust to fight for them without thinking of personal consequences when the going gets rough and tough decisions must be made.…It is clear that children—who do not vote, lobby, hold press conferences, or make political campaign contributions—will continue to be ignored or marginalized by those in power until a critical mass of caring adults, parents, religious leaders, child advocates, and others build a mighty movement to put children first.”

The Juvenile Justice Act of 2015 is one of the very progressive legislation by the Government of India. It is the need of the hour as more and more juveniles are getting involved in the heinous crimes while being assured of easily getting away with it. The move of lowering the age of the juveniles in conflict with the law was resented by the Justice Verma Committee as it observed that lowering the age is an attempt to reduce the age of juvenility based on the nature of the crime and the age of juvenile is a clear violation of the safeguards provided in the Constitution of India and International covenants of United Nation Conventions of the Rights of the Child (UNCRC). However, the Supreme Court did not consider this contention. It was argued that some of the juveniles committing wrongful acts were found to be matured enough to have mal intentions and completely knowing the consequences of their acts. Therefore the decision of whether the children falling under the age group of 16 to 18 are to be treated as a child or an adult is the prerogative of the Juvenile Justice Board. In India, the courts while dealing with the cases involving the juveniles keep in mind the possibility that putting the juvenile offenders with adult criminals would re-socialize them into the world of crime and there may be no turning back to the confirmed social order. However, not just in India but throughout the world there is a constant upsurge in juvenile crimes. Keeping this point in mind countries like the United States and the United Kingdom have shifted their policy from restorative to retributive. In a world with fast-growing industrialization and globalization, the familial and social ties which were good enough in the past for deterring a child from indulging in deviant behaviour are weakening and are proved to be insufficient. All this leads to an increase in juvenile delinquency rates. It is to be borne in mind that the legal system is like a subset while society is the superset. Any variation in the superset i.e. society makes the change in subset i.e. legal system inevitable. Thus when the changes in society are taking place at a fast pace the legal system must change accordingly.

Comments on the New India Assurance Co. Ltd. v. Hilli Mutipurpose Cold Storage Pvt. Ltd. Reported in 2020 (3) KLT 59 (SC) = 2020(2) KLT OnLine 1003(SC) and Dissent on the 45 Days Rule

By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission,TVM

14/02/2022

Comments on the New India Assurance Co. Ltd. v. Hilli Mutipurpose Cold Storage Pvt. Ltd. Reported in 2020 (3) KLT 59 (SC) = 2020(2) KLT OnLine 1003(SC) and Dissent on the 45 Days Rule

(By Sajeer H., Court Officer, Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

The titled case was the culmination of a reference made to the Constitution Bench of the Apex Court, and relates to the grant of time for filing response or version to a complaint under the provisions of the Consumer Protection Act, 1986. The first question referred was whether Section 13(2)(a) of the Act, which limits the time for the respondent/opposite party to file his response to the complaint to 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory or whether the District Forum has the power to extend the time for filing the version beyond the period of 15 days, in addition to the initial 30 days. The second question which was referred to it was, what would be the commencing point of limitation of the period of 30 days stipulated in the aforesaid Section.

The Constitution Bench of the Apex Court held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to the initial 30 days as contemplated under Section 13 of the Act and the commencing point of the limitation of 30 days would be from the date of receipt of the notice accompanied by the complaint of the opposite party along with the documents produced, and not mere receipt of the notice of the complaint. It has also been held that the provision aforesaid was mandatory and not directory.

The question was referred by a two Judge Bench of the Apex Court in M/s.Bhasin

Infotech and Infrastructure Pvt.Ltd. v. M/s.Grand Venezia Buyers Association (2016 (1) KLT OnLine 2790 (SC)) in the following words: “There is an apparent conflict between the decisions of this Court in Topline Shoes Limited v. Corporation Bank (2002 (3) KLT OnLine 1015 (SC) = (2002) 6 SCC 33), on the one hand, and J.J.Merchant & Ors. v. Shrinath Chaturvedi (2002 (3) KLT OnLine 1016 (SC) = (2002) 6 SCC 635) on the other, in so far as the power of the Courts to extend the time for filing of the version to a complaint is concerned. The earlier case takes the view that the relevant provisions including those of Order VIII Rule 1 of the Civil Procedure Code, 1908 are directory in nature and the Courts concerned have the power to extend the time for filing the written statement. The second takes a contrary view that the Consumer Fora has no such power”.

The Apex Court held that a bare reading of Section 13(2) of the Act makes it clear that the copy of the complaint which is to be sent to the opposite party, should be accompanied by a direction to give his version of (or response to ) the case (or complaint) within 30 days. It is further held that such 30 days can be extended by the District Forum, but not beyond 15 days.

It is reiterated that sub-section (2)(b)(i) of Section 13 of the Act provides for a complaint to be decided based on the response of the opposite party and the evidence of the complainant and the opposite party, where allegations contained in the complaint are denied or disputed by the opposite party. Sub-section (2)(b)(ii) of Section 13 of the Act provides that where no response is filed by the opposite party, the complaint may be decided ex parte based on the evidence brought forth by the complainant.

It is further observed that “justice hurried is justice buried. But in the same breath, it is also stated that “justice delayed is justice denied”. The legislature has chosen the latter and for a good reason. It is in consonance with the objective sought to be achieved by the Act, which is to provide speedy justice to the consumer. It is not sufficient time to file a response to the complaint that has been denied to the opposite party, it is just that the discretion for extension of time beyond 15 days (after the 30 days) has been curtailed and consequences for the same have been provided under Section 13(2)(b)(ii) of the Act. It may be that in some cases the opposite party could face hardship because of such provision, yet for achieving the object of the Act, which is speedy and simple redressal of consumer disputes, a hardship that may be caused to a party has to be ignored.

Let’s go through the various provisions of the Act and Regulations, to explore whether it is mandatory or directory.

No one should be a judge in his own cause and each party should be allowed to be heard are the two cardinal principles of Natural Justice. It is the general principle of law that justice should not only be done but should manifestly and undoubtedly be seen to be done. Even if the legislature specifically authorizes an administrative action without hearing or without giving sufficient opportunity for hearing, it would be violative of Articles 14 and 21 of the Indian Constitution. However, it is true that refusal to participate in an enquiry without a valid reason, cannot be pleaded as a violation of natural justice at a later stage. The courts should afford a reasonable opportunity to the party to present his/her case. This can be done either in writing or orally at the discretion of the court unless the statute under which the authority is functioning, directs otherwise. If a statute allows natural justice only in a limited manner and excludes the power to extend the stipulated time even on the principles of Act of God or unexpected incidents that may preclude a person from filing his version within time, such provision would be a definite violation of the Natural Justice enshrined in Articles 14 and 21 of the Constitution of India.

Unlike the common hierarchy of courts in India, our Consumer adjudicatory system is laddered as District Commissions at the District level, State Commissions at the State level and National Commission at the National Level. A person aggrieved by the order of the National Commission has a remedy only before the Apex Court. It is very interesting to note that the powers of punishment assigned by the Act to the first original authority, the District Commission are the same and similar to that of the highest original authority, the National Commission.

Coming to the case on hand, the Apex Court has given different interpretations for the term “endeavour” that appears in two places. First Place is in Regulation 26 of the Consumer Protection Regulations, 2005 wherein, 26(1) says that in all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908:

Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or the rules made thereunder. (emphasis supplied).

Secondly, the Apex Court travelled through sub-section (3A) of Section 13 of the Consumer Protection Act, 1986, wherein:

Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within three months from the date of receipt of notice by the opposite party where the complaint does not require analysis or testing of commodities and within five months, if it requires analysis or testing of commodities: (emphasis supplied)

Among these two provisions, the Apex Court has construed the term “endeavour” that appears in the Regulation as mandatory and in the same breath, it has interpreted the term “endeavour” that appears in Section 13(3A) of the Act as the directory.

The term endeavour means, an effort or an attempt. It is an attempt to do something, especially something new or difficult. By including the aforesaid word in Regulation 26 and incorporating it in Section 13 of the Act, the legislature has intentionally reduced the rigidity of the procedures usually followed and never intended a complete prohibition of the applicability of the Code of Civil Procedure.

On going through the Act in its entirety, it can be seen that the Act protects the rights of a person aggrieved and safeguards the principles of natural justice in letter and spirit. The only intention of the legislature is to settle the consumer disputes as expeditiously as possible, but not in a hurried manner.

It is pertinent to note that sub-section (6) of Section 13 the Act permits the procedure under O I Rule 8 and sub-section (7) of Section 13 allows the procedures under O.XXII of the Civil Procedure Code, 1908.

On a conjoint reading of all the above provisions, it can be seen that the legislative intention in inserting the word ‘endeavour’ is to construe the provisions in a directory manner.

Clause (a) of sub-section (1) of Section 13 of the Act says that, on the admission of a complaint, if it relates to any goods, refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within thirty days or such extended period not exceeding fifteen days as the case may be granted by the forum.

Nowhere in the Act the term notice or summons has been used. The provisions use the term ‘version’ only and not the term “written version”. It has used the word ‘refer’ only. When we go deep into the provision it can be seen that the legislature included the term in a liberal manner and not in the strict sense.

The Apex Court, while deciding the instant case, relied on Order V Rule 1 of the Civil Procedure Code. It says that the term ‘refer’ includes the term notice wherein, every summons shall be accompanied by a copy of plaint. It says that while issuing notice to the opposite parties the mandate in Order V of the C.P.C. shall be followed.

Order V Rule 1 of C.P.C. says that ‘when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file written statement of his defence, if any, within 30 days from the date of service of summons on the defendant’. The second proviso to O. V R1 says that “where the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the same on such other days as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than 90 days from the date of service of summons.

The Apex Court herein held that for service of notice to the opposite parties the consumer commissions have to follow Order V R.1 C.P.C. and in the same breath holds that for version or response, the provisions of C.P.C. shall not be followed. This is piecemeal interpretation and is contradictory.

It is true that the preamble of the Act mentions, for the better protection of interests of consumers, but that doesn’t mean to discard the right to be heard of the opposite parties. Sub-section (2)(b)(i) of Section 13 of the Act provides that a complaint has to be decided based on the evidence brought to its notice by the complainant and the opposite party. Sub-section (2)(b)(ii) of Section 13 of the Act provides that, the complaint may be decided ex parte based on the evidence brought forth by the complainant where the opposite party fails to take any action to represent his case within the time given by the forum. Sub-section (2)(c) of the Act, provides that where the complainant fails to appear on the date of hearing the forum may either dismiss the complaint for default or decide it on merits. When we go through this provision it can be seen that a written version or response is not a mandatory criterion for deciding a case in the forum. If the opposite party who appears on the date specified and submits that he does not intend to file a written response but wants to proceed with only oral evidence, the fora have no way other than than to proceed with the case. On the other hand, if the first part is to also be construed as mandatory, then the second part must be construed as mandatory. The Apex Court must fix a period and penal consequences for the non appearance of the complainant also. Therefore, Section 13(2)(i) and Section 13(2)(ii) and Section 13(2)(c) of the Act are to be construed harmoniously not to be read as prohibitive or negative.

In Rohitash Kumar v. Om Prakash Sharma (2012 (4) KLT SN 139 (C.No.134) SC = (2013) 11 SCC 451) the Apex Court held that hardship and inconvenience to either party concerned, or to an individual cannot be a basis to alter the meaning of the language employed by the legislature. In Patangrao Kaddam v. Pritviraj Sajjirao Yadav Deshmugh (2001 (1) KLT OnLine 1076 (SC) = AIR 2001 SC 1121) it was held that “the literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says “this is a pencil”, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean”.

Therefore if we follow the dictum in India House v. Kishan N. Lalwani (2003 (1) KLT OnLine 1154 (SC) = (2003) 9 SCC 393), the period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from on equitable considerations, then sub-section (3A) of Section 13 is also to be strictly interpreted.

In Topline Shoes Ltd. v. Corporation Bank (2002 (3) KLT OnLine 1015 (SC) = (2002) 6 SCC 33) the Apex Court has rightly observed that the Act does not provide any consequences of non-filing of version within the time stipulated. The Quasi-judicial bodies will observe the principles of natural justice in letter and spirit.

It is pertinent to note that not leaving discretion with the District Commissions for extending the period of limitation for filing version before it by the opposite parties may cause grave injustice and may lead to the early closing of the doors of justice before him. The opposite parties may become scapegoats in the hands of the complainants.

There may be circumstances beyond the control of the Opposite Parties. Compelling and unexpected circumstances may prevent the Opposite Parties from filing their versions in time. A judgment without allowing him to explain the reasons for non-filing of his version would become partial and one-sided. Equity, Law and good conscience are the three pillars of dispensing justice of all quasi-judicial bodies as they are the creatures of statutes.

Let us travel through certain circumstances which may occur beyond the control of the Opposite Parties,

Actus dei nemini facit injuriam is a Latin legal maxim. It has the meaning that an act of God does no injury to anyone. In other words, no one is responsible for inevitable accidents. It is also known as the Act of God. When an event is caused by the effect of nature without interference from humans it is called an act of God. An event foreseen cannot be considered as an act of God. If nature’s act was foreseeable and a person’s negligence led to an accident, the jury considers the extent of negligence before giving the verdict. The law gives the idea that no man is responsible for the act of God. It refers to an injury, that was inevitable, as a result of an act of God, which no law can avoid or policy prevent.

Suppose after appearing before the court on its first call, the party met with an accident or falls ill and he is bed ridden for a long period. He may not be able to attend the court for a period of three or four months without his fault. His medical certificate and his genuine explanations for the delay, as per this judgement, would fall before the deaf ears and blind eyes of justice, because of the eclipse of this decision.

Secondly, suppose the opposite party after getting notice, entrusted his brief to a counsel of his choice. The counsel without knowing the relevant direction or due to any unexpected circumstances beyond his control, such as shifting of office, illness, misplacement of files etc., fails to file a response within the stipulated time. The court will close the doors for his party even if he moots up his position before it. The opposite parties are the ultimate sufferers of these consequences as his counsel has no role in protecting his interests before the court of law.

On going through the Act in its entirety, we can see that the legislative intention is to settle the consumer’s disputes in a simple, costless, speedy and efficacious manner. With the said objective, the legislature also directs to settle the consumer’s disputes within 90 days. The legislature does not intend that a hard and fast rule should be applied for the time limit for acceptance of version and liberal view on the time limit for the settling of disputes is necessary. If the 45 days rule is to be applied in letter and spirit, then 90 days rule for the settling of cases is also to be construed strictly. So acceptance of versions in a hurry burry manner, without observing natural justice and placing it in the court files, for Kumbha Karna sleep is not a good practice.

If a person, aggrieved by an ex parte order approaches the State Commission or the National Commission as the case may be, the State Commission and the National Commission can only pull down its shutters of justice before him because of the eclipse of the Constitution Bench ruling. No adversarial system of justice can succeed unless it provides adequate representation to the aggrieved and the opponent. Proper representation is the heart of fair justice.

Thirdly, most of the complainants and Opposite Parties are daily breadwinners and not hailing from multinational companies. Sometimes the opposite parties are mere labourers of firms and companies working for low wages. In some cases, they are persons appointed on contract basis. There may be a situation where the shops of the Opposite parties may be closed due to unexpected incidents or natural calamities. It is the common practice of entrepreneurs to issue all communications in the name of their employees by giving them a fancy designation. They easily dismiss them from service without even giving notice. Such employees, while struggling for their daily bread, would have the Police after them with a warrant from the Consumer Court. They may rush to the appellate court with an appeal explaining the reason for their non appearance citing genuine reasons and saying that they were the mere employees of that institution once. Even in such cases the courts have no option, by virtue of this ruling, except to throw their defence to the waste bin and to proceed with the case.

The Consumer Protection Act is a beneficial legislation stipulating no specific procedure for redressing the grievances under it. It is simple, inexpensive, cost less, speedy and efficacious. Because of these golden features the complainants and opposite parties are directly approaching and appearing before it without the assistance of a legal professional. They won’t know the rigid procedure contemplated by the Apex Court. Indeed, the ignorance of the law is not an excuse. But prompt appearance without filing the response in time can be taken with a liberal view. In Inderpreet Singh Kahion v. State of Punjab & Ors. (2006 (3) KLT SN 21 (C.No.34 (SC)) our Apex Court held that it is the well-settled principles of law that justice should not only be done but manifestly also seen to be done. In the People’s Union For Civil Liberties v. Union of India it was held that “When there are more aspects of public interest to be considered, the Court will be in a better position to decide whether the weight of public interest predominates.” While considering the public interest no aggrieved person will be pushed out from the line of justice without allowing him to be heard.

Therefore, the need to either reconsider the matter by a larger bench of the Apex Court or revamping the Consumer Protection Act is highly necessary. Expecting that voluntary associations may moot this issue before the Apex Court.

Another suggestion is that the legislature may add a proviso to Section 13(2)(a) of the Act that “provided that the District Commission may entertain a version after the period specified if it is satisfied that he had sufficient cause for not filing the version within such period, provided also that the National Commission, the State Commission or the District Commission, as the case may be, shall record its reasons for condoning such delay.

A justice without heeding the aggrieved is not justice but injustice.

Therefore, it is absolutely necessary to reconsider the judgement dated 04.03.2020 in New India Assurance Co. Ltd v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020 (3) KLT 59 (SC) = 2020 (2) KLT OnLine 1003 (SC)), as it is too rigid an approach and would breed injustice.