24 June 2017

No Disrespect in Addressing Chief Justice of India as ‘Mr Chief Justice’

Addressing a judge in the court as "my lord", "your lordship" or "your honour" has been a matter of divided opinion many a time, not only in the Bar or Bench, but also in the Supreme Court (SC) too. However, the issue remains as such for long as it is, with absolutely no change.  

During the hearing of a Public Interest Litigation (PIL) Petition filed in 2013 by a 75 year old advocate Shiv Sagar Tiwari stating that addressing the judge as "my lord or your lordship" in courts was a relic of colonial era and a sign of slavery and pleading that the practice should be banned, the SC bench consisting of Justices H L Dattu and S A Bobde has made it clear that they do not insist on such an exclusive mode of addressing and what is required is nothing but a respectable way of addressing the Judge.

The court clarified it in unequivocal terms that one can address a judge ‘Sir’, ‘your honour’, ‘your lordship’ or ‘my lord’ as the Bar prefers to, as they are some of the appropriate terms that express due respect.  The court however declined to ban the use of those terms and issue a direction to the courts not to address the judges in such a traditional manner as pleaded for. The Bench thereon placed the contentious issue before the Bar itself stating that it is for the Bar to choose the appropriate term such as ‘Sir’, ‘Your Lordship’ or ‘Your Honour’ to address the judge.

In the year 2006, the Bar Council of India passed a resolution that nobody would address the court in India as 'my lord' and 'your lordship'. In fact the resolution was an exercise in excess of BCI’s power. The resolution did not evoke any response and the advocates continued to address judges as in the past partly out of entrenched habit and partly out of fear of falling in disfavour with the judges. In 2006, Justice Chandru of Madras High Court asked lawyers to not address him 'my lord', quoting the 2006 Bar Council resolution.

However on 12th March 1973, a full court of the Supreme Court, after considering remarks from almost all the Chief Justices of the High Court on the mode of addressing the court, held that the Chief Justice of the SC may be addressed by the Bar as ‘Mr Justice’ or ‘Mr Chief Justice’ as the case may be and the form of addressing the Court would be ‘this Honourable Court’. ( Please see 2014 KLT Journal 50 : it carries a copy of the letter dated 19th April 1973 of the then Chief Justice of India addressed to the then Chief Justices of Kerala High Court on this issue) It was also agreed that where in the course of arguments it becomes difficult to address a judge as ‘Mr Justice’, the presiding judge may be address just as ‘Sir’.  The court then decided to introduce the new mode of address from 1st May 1973 in consultation with the Bar Associations. Similar decisions were taken in relation to the Subordinate Courts too. However the advocates continue to address the judges in the same way they have been addressing them since the beginning of the court system in India.

The Bench is ready to change but the Bar is not. The Bar has to set a new standard for legal interaction between the Bench and the Bar. The ball is now in the Bar’s court. It is the duty of the Bar to take the matter forward if it wants to end this inherited colonial practice and start a new mode of addressing which goes well with our democratic tradition in our court rooms.







21 June 2017

Limited Possibility of Amending a Criminal Complaint

A civil suit, as everyone knows, can be amended as per the provisions of law but the criminal law code provides absolutely no provision for amending a criminal complaint. However the Supreme Court and some of the High Courts have read down the criminal law in some cases in such a way it allows formal amendment of criminal complaints to a certain extent.

In S R Sukumar Vs Sunad Reghuram ( Crl A No 844 of 2015) the Supreme Court held that if the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such an amendment no prejudice could be caused to the other side, the court can permit amendment of a criminal petition despite the fact that there is absolutely no enabling provision in the law code. However the court added that if the amendment is related to an incurable infirmity or it cannot be corrected by a formal amendment or if there is likelihood of the amendment being prejudicial to the other side, then the court shall not permit such an amendment in the criminal complaint.

Taking the same reasoning forward, the Supreme Court later on 18th April 2016  in  Kunnapa Reddy @ Nookaa Shanka Balaji Vs Kunnapa Reddy Swarna Kumari held that the petition of a complaint under Domestic Violence Act can be amended and court is not powerless to allow such an amendment application. But the court cautioned that the amendment should be allowed only sparingly and with utmost caution under limited circumstances. The court held that one of the circumstances where such an amendment is to be allowed is to avoid multiplicity of the proceedings. The verdict says, “What we are emphasising is that even in criminal cases governed by the Code, the Court is not powerless and may allow amendment in appropriate cases. One of the circumstances where such an amendment is to be allowed is to avoid the multiplicity of the proceedings. The argument of the learned counsel for the appellant, therefore, that there is no power of amendment has to be negated”.

Similarly, the Madras High Court in Chinnappaiyan Reddy Vs Chinnathayee, held on 3rd February 2010 that a petition for amendment of a quasi -­ civil complaint filed under Section 125 CrPC is maintainable. If the amendment sought for would not change the nature and character of the suit or proceedings the same can be allowed.

Subsequently in Mr. Amol Shripal Sheth vs M/S. Hari Om Trading Co. & Ors decided on 3/10/2012, the Bombay High Court held that the magistrate has incidental and ancillary power to allow an amendment to a petition of criminal nature filed under Section 138 of the Negotiable Instruments Act.


In short, even though amendment to a criminal complaint is not permitted by criminal law in India, the case laws allow limited and non-serious amendments so as to prevent unintended perversity in justice and reduce unnecessary multiplicity of court proceedings.
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NB: The article originally appeared at http://www.lawyersclubindia.com/articles/Limited-Possibility-of-Amending-a-Criminal-Complaint-8241.asp

13 June 2017

The Issue of Defending a Client known to be Guilty

by K Rajasekharan
Advocate, Thirssur Bar

Criminal defence advocates, defending the accused persons who have been considered by the people to be guilty in heinous crimes, are at the receiving end many a time. The public at large, a section of lawyers and even some Bar Councils have a view that the defendants suspecting to be guilty does not deserve to have the service of a defence lawyer at all.  Both in Kasab’s case and in Nirbhaya case the advocate’s body took a resolution not to defend the accused ones.  In fact the proponents of this view, guided by some misconceptions about judicial niceties, fail to recognise that the court is dealing with nothing but the legal guilt rather than the factual guilt in a trial.

A State Brief’s reluctance to defend an appellant

In an interesting incident, when a State Brief in Kerala - appointed for an appellant to prosecute a Criminal Revision Petition filed by him against his conviction and sentence under Section 302 of Indian Penal code (IPC) - sent a letter to the concerned Section of the High Court of Kerala stating that he had difficulty in conducting the case “by telling lies in the court” on his finding no merit on the side of the accused, the Division Bench of the Court issued an order - 2015(2) KLT 964 – stating that the State Brief was neither expected to tell the court about the falsity or otherwise of the allegation against the accused nor was it a duty of a lawyer to tell lies before the court while defending the accused. 

The court however made it clear in the verdict that a lawyer appearing for an accused is duty bound to present the case for and on behalf of the accused with reference to the materials on record and he need not and should not tell lies in the court.  The counsel is expected to bring to the court the facts which will go to the benefit of the accused. An advocate shall fearlessly uphold the interest of his client and shall not withdraw from his engagement for advocacy without sufficient cause. He should bear on the interest of his client by all fair and honorable means without regard to any unpleasant consequences to himself. He shall defend a person accused of a crime regardless of his opinion as to the guilt of the accused bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence as per law.

The defence lawyer’s job is not to know or decide the guilt of the accused but to defend the accused vigorously with true facts and valid reasons. It is his/her duty to defend by all fair means his client against the charges that are presented by the prosecution and nothing more.

Advocate need not foreknow defendant’s guilt  

In civil case, it is good for the defence advocate to learn everything that the client knows about the entire set of events leading to the case. The more he knows the better he can strategise the arguments. He must know too much to deal with the other side’s move. In criminal case, it is good for the prosecution to know everything relating to the crime from his witnesses to prove his case beyond a reasonable doubt.

However the defence advocate in a criminal case does not have to prove anything except the weak points of the prosecution that strives to prove the guilt beyond a reasonable doubt. Therefore the defence advocate should never ask the accused to tell him whether he/she is guilty in regard to the crime before defending it.

Don’t ask the accused whether he did the crime

If a client tells he/she is guilty and the advocate considers it as true it may not be possible for the advocate to argue in court that he is innocent. Defending someone who is known to be guilty is not a right thing for an advocate to do because in such an event he has to tell the court untruths knowing that the facts in the case are quite different from what he argues.  He cannot call him to give evidence which he knows to be false and he would become a party to his perjury.

The defence advocate, like the prosecution, has a professional duty to not mislead the court. If the defence advocate asks the defendant a particular question suggestive of a particular answer already knowing that the truth is quite different, it will be tantamount to misleading the court. If the advocate believes the client is guilty he cannot be effective at the hearing of the case because the duality between his duty to tell the court truth and the need to tell lies to save his client linger on him. So a defence lawyer should neither ask nor give chance for the accused to tell whether he/she is guilty or not. Therefore in order not to mislead the court and to retain enough freedom to test the prosecution evidence, the best approach for the defence advocate is to keep away from knowing beforehand whether the accused has really done the alleged act or not.

On the other hand, the defence lawyer should use the facts before him/her to put on the best defence possible and leave the question of deciding the guilt of the accused to the judge. It is the duty of the court to determine the guilt based on the testimony of the prosecution. Defence advocate’s job is nothing but to expose the weakness of the prosecution which needs to keep the standard of proof beyond a reasonable doubt. The defence advocate however needs to know in detail the defendants version of the story from the accused in regard to everything surrounding the crime, except whether he actually did the crime or not, so as to attack and undermine the prosecution strategies. Therefore the defence advocate in the first client interview itself should tell the client that he does not want the defendant to tell him whether he has done the crime or not.

Defendant has a range of possibilities

In fact, the defence advocate can raise a range of strategies in challenging the prosecutor’s version of the case if he can keep off from knowing the client’s guilt. In our criminal system it is up to the prosecution to prove the case and the defence has no job to disprove it but to pick holes in the version of the prosecution. If the picking of holes works well the defendant will be set free even on the basis of the befit of doubt. Therefore a defence advocate should not ask what he does not need to know during his client interview so as to avoid the accused blurting out dangerous facts.

In the client interview, it is fair for the defence advocate to weigh the information relating to the case and tell the client whether there is probability for the prosecution to prove the offence or not so as for the defendant to make up his mind whether to plead guilty if he/she did the crime. Quite contrary some of the accused may plead guilty as they don’t have enough time, tenacity and resources to contest the case or to get some favours in regard to the punishment from the court.  On the other hand people may plead not guilty because either they have not done the crime or they have nothing to lose except winning somehow.

Conclusion

In our adversarial system of criminal prosecution a defendant - irrespective of the nature of his/her crime - needs to be represented by an advocate.

A case must have arguments from both sides so that the judge can see the issue from both angles. Such a system may work well only when both sides are represented. Therefore every criminal, however heinous his crime is, needs to be defended by a professional lawyer to ensure the high standard of proof - beyond a reasonable doubt - which our criminal system has set in. 


NB : The article was originally published by Lawyers Club India site at http://www.lawyersclubindia.com/articles/The-Issue-of-Defending-a-Client-known-to-be-Guilty-8226.asp

9 June 2017

Exercise of Discretion by Courts in Deciding Bail Applications

When an allegation of a cognizable case crops up against a person, for any genuine or other reason, before the police for necessary legal action, the Station House Officer (SHO) is duty bound to register the First Information Report (FIR). Thereon the police, in a ritualistic manner as being done over the years, would arrest him/her and put in lock-up. The detention may continue for many years before the case is finally decided by the court. Later when the bail application for his/her release is moved before the court the judge will refuse to grant him/her bail in yet another ritualistic response. Denial of bail is an easy option for the magistrate in not getting into unnecessary allegation or trouble. The magistrate ignores the fact that the granting or denial of bail is to be exercised with utmost care and caution by applying pristine discretion, unequivocally granted to him by Section 78 read with 81 of the Criminal Procedure Code (CrPC).

Bail basically is the temporary release of a person from the legal custody by making an undertaking by him that he shall submit himself to the court and its judgment at the right time whenever required.
Indian criminal law classifies offences into two types - bailable and non-bailable - as per the first schedule of the CrPC. All serious offences are non-bailable in nature. This article deals exclusively with granting or refusing bail in the non-bailable offences. If an accused in a non-cognizable case is arrested or detained by the police without a warrant he/she has got the privilege (not the right) to be granted bail at the discretion of the court. Even though bail in a non-bailable offence is a matter of pure discretion it is not to be used in an arbitrary, vague or fanciful manner. It should be exercised based on sound discretion laid down by the statutes and case laws. If the order is arbitrary or capricious in nature, the appeal court can reverse it under its power of superintendence and revision. Judicial discretion in granting or refusing bail should be exercised by carefully balancing the right of liberty of the accused guaranteed by Article 21 of the Constitution and the general security of the society at large.

In our country, bail is an integral part of socially sensitive judicial process. It is the duty of a magistrate to admit the accused to bail unless there are compelling grounds to believe that the accused would not appear before the court to take the trial or judgment later. The basic reason for putting the accused in jail in general is to ensure his/her availability for trial and to take punishment. Therefore while deciding a bail application by the magistrate the granting of bail is imperative unless it is very dangerous to do so.

After 60/90 days of judicial custody of the accused for the purpose of investigation, the accused will have the statutory right to be released on bail. If an application for bail is made after 90 days even if the police report is not submitted due to some delay, the accused has every right to be granted bail. This provision puts pressure on the police to complete investigation within a reasonable time stipulated in the Code. The period of investigation comes to an end once the police report is submitted and then the question of granting bail becomes quite reasonable.

If there is no substantive ground to believe that the accused had involved in the offence, he/she shall be released on bail under section 436 of the CrPC. If there are grounds for further inquiry into his/her guilt, then also he/she can be released on bail under section 446A pending such inquiry. However the reasons for his/her release should be recorded by the magistrate. If the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence such a person shall be released on bail, unless the magistrate directs otherwise. The purpose of this section is to avoid hardship to the accused when the judicial proceedings are unduly prolonged. However, the magistrate can grant bail only when the accused is believed to be not guilty of a crime which entails punishment of death or life term. In judicial proceedings of other offences, the magistrate is endowed with unfettered discretion, but devoid of arbitrariness, in exercising the power to grant or refuse bail. The court, in exercising the above said discretionary power, should be guided by some legal doctrines or principles.

One should not forget that the precise objective of pre-trial detention is to make the accused available for trial and judgment but not to punish him/her. The law on bail favours granting of bail as the default action. A well settled judicial dictum says bail is the rule; refusal is the exception, but there exist some laws like NDPS which were carved out without following the legal dictum laid down in State of Punjab Vs Baldev Singh 1999.

The SC says the judicial officer while considering bail application should discreetly examine the following circumstances:

  • ·         the enormity of charge
  • ·         the nature of the accusation
  • ·         the scrutiny of punishment which the conviction may entail
  • ·         the nature of evidence in support of the accusation
  • ·         the danger of accused being absconding
  • ·         the protracted nature of the trial
  • ·         the  danger of witness  being tampered with
  • ·         the opportunity to the accused for the preparation of his/her case
  • ·         the health, age and sex of the accused
  • ·         the nature and gravity of the circumstances of the offence
  • ·         the position and status of the accused in the society
  • ·         the probability of accused committing more offences
  • ·         the interest of society in general 

The above given list is not an exhaustive one indicating all the factors governing the grant or refusal of bail. The previous conviction of the accused and the likelihood of repetition of the offences by him are also to be considered while taking a decision on bail. The collateral consideration that the accused is poor has no much value as a criterion. Granting bail basing on the remarks of the public prosecutor is tantamount to non-exercise of judicial discretion and held as improper by the apex court.

A refusal of bail by a lower court does not preclude one from filing another application with more detailed materials and circumstances before a higher court. But filing an application to a subordinate court after the application being rejected by a higher court is unacceptable. While granting or refusing the bail, the reasons considered for discretionary exercise must be recorded for making them known to others. While considering bail the detailed examination or analysis of evidence or merit of the case is to be avoided by the officer/court. If the offence is punishable with death or life term, the accused shall not be released on bail except when the accused is a child, woman or sick person. The High Court has concurrent jurisdiction with the Sessions Court to grant bail under Section 439 of the CrPC.  Therefore, it is considered desirable to move the lower court first, except in exceptional circumstances. If so the High Court can amend, add or abrogate the bail order of the lower court, if necessary.

Recently in Hussain & another v Union of India (Crl A Nos. 509 and 511 of 2017) the Supreme Court directed all High Courts to instruct Subordinate Courts under their jurisdiction to dispose of bail applications normally within one week. Similarly the High Court has been asked to ensure that the bail applications filed before them are to be decided within one month.

In short, bail in a non-bailable offence is to be exercised with great caution and discretion and such exercise should be devoid of the vice of arbitrariness. The pre-trial detention which is necessary in some cases should not be allowed to become a serious threat to the personal liberty of a citizen. 

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2 June 2017

On Dealing with Malicious Prosecution

K Rajasekharan
Advocate, Thrissur Bar


Malicious cases are on the increase. The educated and rich sections of society such cases are being used as an easy tool to bring someone down. One reason for this the emergence of many poorly drafted women laws enacted for the noble purpose of ending atrocities against women. Many of the cases relating to marriage and family matters are frivolous ones narrating noting but fairy tales. Males are also not reluctant in filing such cases to win somehow. Some of the males involve woman and use sexual harassment as an easy tool to settle old scores on others. Therefore it is necessary for anyone to know how one can effectively deal with malicious cases which he may be slapped with at times.
Malicious Prosecution here refers to the practice of filing of any civil or criminal cases that has neither any substantive value nor for getting any genuine relief but intended to injure the defendant or bring him to a negotiating table or to set an old score out of some egoistic clashes. In other words, malicious prosecution is the institution of unnecessary case against another without any probable cause and is an abuse of the process of the court. When such a case is ordered in favour of the defendant the defendant gets the right to initiate civil of criminal case against the original plaintiff for either punishing him or seeking civil damages. Filing a malicious case against a person with no genuine cause or to put him/her on hassles is an absolute abuse of the judicial process. It has to be dealt with seriously by the society, particularly in the context of exponential increase in the number of such cases.

The basic ingredients of a malicious case are:-

  • ·         The original case must have ended in clear acquittal of the defendant
  • ·         The case should have been on genuine grounds  or any just cause
  • ·         The case must have been pursued mainly for injuring the other.


In fact the prosecutors and the law enforcement officials have immunity from unnecessary prosecution while engaging in their official duties but if anybody can prove that the prosecutor or law enforcers have acted in excess of their normal scope of authority they cannot claim such immunity. In such a case they would also come under the charge of malicious prosecution and consequent punishment of civil and criminal nature. If a person can prove that he/she has suffered monetary loss such as lost wages, loss of employment, advocate fee paid etc in the course of any malicious prosecution against him he may be awarded the actual cost.

One can file a case against malicious prosecution not only against the prosecutor or the police, but also against the person who had set the criminal action in motion by registering the First Information Statement before the police or filing a complaint before the magistrate.

Malicious prosecution is a crime under section 211 of the Indian Penal Code (IPC) and is closely connected to the section 499 of the IPC, another crime of defamation.  Either or both criminal and civil cases can be filed against any malicious case once the malice in the case is clearly established. What the section 211 of IPC says is that if anyone institutes a criminal proceeding intended to cause injury to any person knowing that there is no lawful ground, he shall be punished with jail term of either description for two years or with fine. If proceeding is for an offence chargeable with death or life term or for seven years the punishment shall be for 7 years. The crime is a non-cognisable one, triable by magistrate or sessions judge as the case be.  

Similarly the Section 499 states whoever by words makes any imputation concerning any person intending to harm the reputation of a person is said to defame that person. The section 500 of the IPC provides for punishment for defamation.  

The person prosecuting someone for filing a malicious case must establish that the accused had intention to cause injury - section 44 of the IPC defines the term “injury” - to the reputation or property. Injury, as per the definition, means any harm caused to any person in body, mind, reputation or property. It must also be proved beyond doubt that the accused had knowledge of the fact that no just cause exists for filing the original case.  

However, if the allegation made in the case is true or conveys a caution to the society it does not fall within the ambit of defamation.   Either the inability of a complainant in the original case to prove the charges or the falling of his/her the evidence short of required standard in trial is not a valid ground to prove malice. The acquittal of a person on some technical grounds is not a valid ground for anyone to file a case against the petitioner for malicious prosecution. A statement of oath falsely supporting the prosecution case against an accused or a statement to the police, do not fall within the meaning of section 211 of the IPC. What is really required is to clearly prove the malice, injury and culpable nature of the prosecution in the original case in order to file a case against petitioner of a malicious case.

NB: This write up was originally published on Lawyers Club India site at http://www.lawyersclubindia.com/articles/On-Dealing-with-Malicious-Prosecution-8200.asp