EPISODES 215

EPISODES:
AUTHOR’S NOTES
TABLE OF CONTENTS:
1. INTRODUCTION : 217
2. EXPECTATION : 220
3. LAW, LOGIC AND REALITY : 225
4. IGNORANCE : 231
5. UTOPIAN JUDICIAL SYSTEM : 238
6. PRACTICAL CONCEPT OF EQUALITY : 243
7. SANCTION TO PROSECUTE UNDER CORRUPTION LAW : 247
- A BANE OR BOON TO WHOM?
8. WHO WASTE THE TIME OF COURT : 252
9. TIMELY JUSTICE : 254
10. NICETY IN DEFENCE : 256
11. AWESOME REALITY : 259
12. EXPERIENCE COUNTS : 262
13. INTEGRITY THE HALL MARK : 265
14. PARTICIPATIVE JUDGE : 266
15. THE SOFT CORNER : 268
16. THE DELAY : 271
17. EROSION OF PUBLIC CONFIDENCE IN INDIAN : 276
JUDICIAL SYSTEM?
18. FORUM SHOPPING I -A REALITY : 280
19. FORUM SHOPPING-II : 282
20. FORUM SHOPPING –III : 287
21. RESPECT ENHANCED –I : 289
22. RESPECT ENHANCED-II : 294
23. THE LAUDABLE SACRIFICE : 296
24. BLACK MAIL LITIGATION : 299
25. SMART ADVOCACY : 302
26. THE PROCEDURAL MALADY : 305

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27. THE MESSAGE COMMUNICATED : 308

28. HASTY JUDGE’S PREDICAMENT : 310
29. EQUALITY A MYTH : 312
30. REWARDING THE QUESTIONABLE-1 : 314
31. REWARDING THE QUESTIONABLE-22 : 315
32. SELECTIVE APPLICATION OF LAWS : 317
33. DEMOCRACY OR DEMO-CRAZY : 320
34. ACCESS TO COURTS : 322
35. POLITICAL LEANINGS : 324
36. THRILL : 327
37. QUASI JUDICIAL PROCESS-PREJUDICES : 330
38. STANDARDS : 343
39. STANDARD AND SACRIFICE : 350
40. IRRECONCILABLE RATIOS- A CHANCE TO TAKE? : 354
41. BLOOD TEARS : 357
42. ADVOCACY- A CHALLENGE : 363
43. POLICE INVESTIGATION VS EXECUTIVE MAGISTRATE : 365
ENQUIRY- A FALLACY
44. EAGERNESS TO CONVICT : 382
45. PARTING THOUGHTS : 385

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 EPISODES 217

EPISODE – 1
INTRODUCTION:
The legal field is an ocean. New laws, new interpretations by
Courts, new thinking etc., etc has made the study of the law difficult
but at the same time interesting. Especially student community and
budding lawyers have to continuously navigate through this ocean
throughout their voyage. They cannot afford to lag behind, as they will
be thrown into a passive position. In order to achieve, several steps
have to be taken by them. Study the law in depth is the first step
towards success, particularly when they come across stray rulings
which at first sight appear to lay down a proposition which is not in
consonance with well laid principles. Certain examples are cited here to
drive home the point.
A student of law while studying the law of contracts first
understands the difference between agreement and a contract. In
Indian law every promise and every set of promises forming the
consideration for each other, is an agreement. This is almost the same
as in English law where an offer, plus acceptance plus consideration
duly supported by an intention to create legal obligations is an
agreement. The ingredient, intention to create legal obligation is
propounded by courts in England. In the Indian Contract Act this fourth
ingredient, namely, intention to create legal obligations is not
mentioned. Does it mean that such an ingredient is not necessary in
the formation of agreement in Indian Law?. The decision of the Apex
Court reported in COMMISSIONER OF WEALTH TAX, BHOPAL VS
ABDUL HUSSAIN MULLA AIR 1988 SC 1417 AND S.V.R. MUDALIAR VS
RAJABU F. BUHARI AIR 1995 SC 1607 when read at first glance appear
to convey the impression as if the fourth ingredient, namely, intention
to create legal relations/obligations is not necessary for an agreement.
However if the reader goes through the judgments meticulously, it is
clear that the SC has emphasized that intention to create legal
relations/ obligations should be in contemplation in the minds of the
parties when entering into a transaction, though the wording of the
transaction may be mentioned as gentleman understanding. Hence as
a learner one should understand that for an agreement intention to
create legal relations/obligations is a must.

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A second illustration will also be useful here. In Criminal

trial/law the police file a final report which sometimes may be for an
offence triable by sessions court. For example an offence u/s. 307 IPC
against an accused. In cases of such a nature, the Magistrate before
whom the concerned accused appears, will be given copies of all the
relevant papers as per Section 207 CrPC and the Magistrate will
commit the accused to Sessions Court to face trial there in accordance
with Section 209 CrPC. In such cases can the Magistrate on going
through the final report in the case and other papers, decide to frame
a charge u/s. 323 or 324 IPC and try the case himself instead of
committing the case? Yes is the answer if you refer to RIZWAN VS
WAQAR AHMED AND OTHERS 1993 SCC [CRL] 455. At first sight one
cannot reconcile to the proposition in the above ruling. This is because
once the Magistrate takes the final report of the police for the offence
u/s. 307 IPC on file [ by assigning PRC No. indicating that it is a
committal case] then he has no alternative but to commit it to sessions
after furnishing copies to accused as per Section 207 followed by
Section 209 CrPC. A reader should not be carried away only by
knowing this position superficially. He has to read the further
developments in law in order to present the right position before a
court. Subsequent to the above ruling the larger benches of the
Supreme Court in several cases have laid down that a Magistrate is not
bound by the conclusion of the police officer mentioned in the final
report as to what offence is made out. Instead he has to go through
the entire final report and the materials in view of Section 190 CrPC
and cognize the offence correctly. In case a Magistrate undertakes
such exercise, he may not accept the final report for the offence u/s.
307 IPC but may take cognizance of the offence u/s. 324 or 323 IPC,
try the case himself. Such a course is correct in the light of the current
legal scenario as laid down by several dictums of the higher courts. In
case he finds, on such application of mind as per section 190 CrPC that
the offence is one u/s. 307 IPC, he may take it as a sessions case and
commit it to sessions. If such an in depth study is made by the reader,
he may not only understand the position of law in a given situation
correctly, but also place his submissions before the court correctly.

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There may of course be irreconcilable rulings. One example may

be noted here in this context. The statement of a witness earlier to
police as per Section 161 [3] CrPC cannot be used for any purpose as
per section 162 CrPC except to contradict the witness in terms of
Section 145 IEA. The deposition of the witness in court is substantive
evidence and his/her earlier statement is only of a corroborative value
/ usable for showing contradictions. A conviction or acquittal cannot be
placed on such statements. In case a contradiction is successfully
demonstrated/proved in the deposition of a witness, the only use is
that the witness gets discredited in terms of Section 155[3] IEA. Thus
if a witness supported the prosecution version in his/her 161 [3] CrPC
statement, but resiles from the same when in the witness box, the
only course open to the prosecution is to treat the witness hostile in
terms of Section 154 IEA and point out contradiction in this regard as
per section 162CrPC read with Section 145 IEA. The net result is that
the witness gets discredited. Can the Court brush aside the substantive
evidence of the witness which does not support the prosecution case
and rely upon the Section 161 [3] CrPC statement which support the
prosecution case and base a conviction? Answer should be a NO.
However the reader may read the ruling reported in BHAGWAN DASS
VS STATE [NCT] DELHI 2011 CRLJ 2903 SC to the contra.
I hence would stress to the readers that in order to understand
a proposition of law, read thoroughly the subject concerned. An effort
in this direction is made in this book, though not for all topics, for a
selected few. The topics are discussed and analysed on practical
application in courts. A warm welcome is made to my readers to a
practical analysis of law.
__________

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220 EPISODES

EPISODE -2
EXPECTATION:
A lawyer, particularly one who chooses to practice on the criminal
side, has to be under some sort of stress. That too, one who choose to
practice on the trial side has to experience this stress more. In a way
this stress makes him perform better and better. He should only learn
to be more philosophical as his experience progresses, or else he has
to pay a heavy price in the form of his deteriorating health.
A trial lawyer has to face multiple challenges. His triumph lies when
he takes up the case of a really innocent person and wins it. It rarely
happens of course. He has little stress when he takes up the case of a
person who is not really innocent. Only when he takes up the case of
an innocent person he is under tremendous pressure, because the
expectations of the innocent person will match well with the underlying
confidence in the whole legal system.
The trial lawyer gets a boost when he gets encouragement from
the Presiding Judge before whom he conducts the case. There are
Judges who encourage lawyers who behave with dignity and maintain
decorum of the Court room. These Judges directly or indirectly offer
much encouragement to the lawyers who act sincerely. Unfortunately
there are some Judges who are the quite opposite to such balanced
Judges. Worst, there are Judges who consider a good trial lawyer as a
villain. These Judges think that a good trial lawyer by his skills saves
the really guilty. Such Judges conduct the trial and pass judgment with
this pre determined mind. . No doubt if you ask any such Judge, he will
only doggedly refuse having such opinion in his heart.
According to me Judges on the trial side may be grouped as
below:
(a) Judges before whom a trial is conducted appreciate the facts
and law and give a judgment uninfluenced by any semblance of bias.
[Appreciation]
(b)Judges who do not appreciate either facts or law correctly,
[due to varied reasons] and pass a judgment. [Non appreciation]
(c) Judges before whom a case is conducted meticulously,
harbouring bias of varied reasons in their mind, give tangential finding

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on facts and law contrary to the decision a reasonable man will give
under such circumstances. [Depreciation]
In cases where a lawyer with substantial experience at the bar
conducts the trial before the second type of Judges, he does not get
disillusioned, takes it lightly advising his client to go on appeal. A
budding lawyer gets thoroughly disillusioned in such cases. If he is
lucky in being a member of a good bar association, senior lawyers
advise him not to get bogged down by such instances and the lawyer
resurfaces. In course of time experience mellows him down to reality
in such cases.
The third type of judges is real threat to the system itself. It is
stated [though unauthenticated] that there are Judges who outsource
their judgment. That is they do not write the judgment appreciating
fact or law but gives it to some other person to write the judgment.
They instruct the writer to write indicating only the result, for example
acquittal or conviction. There are reasonable circumstances to accept
this though such Judges have learnt the art of keeping this as secret. A
Judge of this nature naturally pronounces judgment for other reasons.
Even if we consider that the number of such Judges are very
minimum, at present, there is a danger of such Judges increasing day
by day. We have to guard against this. I am not pessimistic when I say
this, but experience causes an alarm in my mind.
In the first category of Judges everyone gets reasonable deal,
boosting the confidence in the entire judicial system. Hence what is
needed to be done by legislators, higher courts and others is to imbibe
ethical values in the minds of judges from the start of their career. One
of such incident I would like to recall here and share the experience
with the readers.
About four decades back, I came to the office in the morning. As
soon as I opened the office, two persons came with a case bundle in
hand. One of them was an aged person and said that after retirement
from service, he is employed in an oil mill as an accountant. The
second person, a middle aged person introduced himself as working in
the same oil mill as Manager. They said that they are prosecuted by

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the Police at the behest of their employer. The allegation was that they
falsified accounts and embezzled amounts due to the oil mill. Both of
them stated that their case is coming up for hearing on that very day
before a particular court for trial. In particular for examination of PW-1
their employer. I told them that I can only come and take an
adjournment on that date, as the time is short, to discuss with them in
detail and prepare for the case. However since I heard that the Judge
of that court is a strict , upright person and that one cannot take
chances with him, I got few instructions from the said two persons [
referred hereafter as clients] , studied the papers given by them and
accompanied them to the court.
PW-1 was present and I entered my appearance. I requested
the Judge to grant me an adjournment, explaining that I was engaged
only on that day. The Judge bounced back sharply stating that this is
only a tactic adopted by my clients and they knew fully well that they
can secure postponement of the trial by engaging a new advocate. I
kept silent unable to state anything. The Judge said that he will take
up the case shortly and asked me to be prepared for cross examination
of PW-1, who was present.
After some time, he took up the case and looked at me. I bowed
politely and said that at least I must have the opportunity of seeing
the original case records in its entirety so that I can do some justice to
my client. I prayed that the court may at least grant this indulgence in
case the Court was not inclined to grant any adjournment. The Judge
relaxed a bit and said “Alright. I will take up the case post lunch.” He
instructed the Court officer to allow me to peruse the complete court
bundle in the lunch recess. I said, much obliged and came out. The
Judge was watching my mannerisms. During the lunch break in 45
minutes time I went through the entire case bundle shown to me,
made notes, readied myself to cross examine the witness.
The case was taken up post lunch. The Judge looked at my face
with an impression, that I will come up again with a plea for
adjournment. I informed that I was ready and after chief examination,
started my cross examination. The Judge was watching eagerly when

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the cross examination was going on and being recorded. After about
two hours, he stopped me and said “Mister. I think you do have some
defence. You are entitled to some time to take complete instructions
from your client. Hence I am adjourning the case to another date for
continuation.” I thought that it was a partial victory to me as I have
impressed the Judge. Thereafter on the day fixed, I completed the
cross examination of PW-1. In due course the entire trial was over and
the case was posted for questioning of the accused as per Section 313
CrPC.
On that date the Court questioned my client on the evidence and
recorded the answers. I instructed my client to state that there is no
defence witnesses on their side. As soon as they stated so, the Judge
said “Do you know that if there is no witness on your side, you should
argue today itself?” I said “Your Honour. The law does not permit me
to take adjournment for arguments alone, in a warrant trial.” He
smiled for the first time at me and said “Good. I will take up the case
shortly again and you be ready for arguments”. He called the case
again after some time. I stood facing him. He asked me to turn around
and see. I was a bit confused. He again said “Turn round and see”. I
turned and saw my clients standing with hands folded and their heads
down. I turned back at the Judge.
He said “Both of them are not innocent as you think. I just
smiled and said “Your Honour, but I have a duty to defend them.” He
said “Yes, proceed.”. I finished my arguments and after Public
Prosecutor concluded her arguments the case was reserved for
judgment.
My clients were fully satisfied and stated to me that the Judge
though a knowledgeable person, has some bad opinion about them. I
assured them not to feel so, and told them that the Judge will act
according to law. On the date of judgment, he called both my clients to
the front. He said that though he personally felt that they may be
guilty, still, he said that I [pointing towards me] have done the case
nicely by projecting a plausible defence and establishing it by
probability, at least as far as the accountant. Hence he said that he is

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acquitting the accountant, that is older man. As regards the Manager,

he said that though he is convicting him, [he again pointed to me] and
advised the Manager, “Don’t change your advocate, engage him in
appeal, you will also succeed.” All these utterances he made in Tamil
for the client to understand. He released the Manger on bail to enable
him to prefer an appeal. [As predicted by the Judge with his
experience, I won the appeal also and the Manager was set free.]
To me, it was a wonderful experience in this case. Apart from
success in the case, I also got the appreciation from the Judge. This
Judge encouraged me throughout the trial though he acted in a stern
manner and did not allow me any indulgence which the law did not
permit. However his encouragement needs to be highlighted by one
more instance. During the above trial, I pointed out a contradiction to
a witness in the box regarding his earlier statement to the Police u/s.
161[3] CrPC. The witness denied having made such statement. I
started to proceed to another question. The Judge stopped me and
said whether I know how to proceed further in this regard, that is the
contradiction which I pointed out. I just blinked. He told me “ You have
to underline the portion in the copy of the S. 161[3] CrPC statement
provided to you and put the portion again to the Investigation Officer
who recorded it to confirm that the witness stated so to the police
officer. Only then the contradiction is proved in law.” He asked me to
further read and be conversant with the law in this regard. No doubt I
did that and learnt as to how a contradiction is to be proved in terms
of S. 145 of Indian Evidence Act .The above is one instance among the
numerous encouragements I received from the Judges while
conducting cases. The above being the first important incident in my
career, I still remember. This kind of trend I feel should be inculcated ,
encouraged and is the need of the hour.
__________

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 EPISODES 225

EPISODE - 3
LAW, LOGIC AND REALITY:
As a student of law, we have read that logic should not be
equated with law. A law has to be studied as it is. Once the study is
complete, one can see that the law is in tune with some logic. To apply
in reverse way, that is if one start learning law by comparing with
logic, one can find several contradictions which will result in confusion
to the reader. One can study law, apply logic in a given situation only
to expect a legitimate result. In courts sometimes we do not meet
such contingency. Neither law is applied nor logic and the result is
devastating. In cases where such an incident happens to a case in the
final court, there is a chance for the party and the lawyer of the said
party getting disillusioned. Ours is a wonderful jurisprudence where
the lawyer comes out of this disillusion quickly and moves on to a next
case. Is he philosophical? Or has he became saintly? No. He was forced
to become practical and the in born instinct to survive makes him
reconcile with reality soon. In case this happens occasionally we can
call it stray aberration, reconcile with the client’s position as fate. Only
hope is that such instances should not happen too often, as like a
cancer, it will slowly degenerate our judicial system itself. An instance
of such nature is narrated here. The readers are left to their thinking
as to whether such instances are only stray or as the author fears,
more prevalent.
FIRST ROUND OF LITIGATION: - A husband had married
second time without the consent, concurrence or knowledge of the first
wife. According to the first wife, the second wife knew that there was a
first wife for the husband and that his two near relatives apart from his
parents also knew that the man was already married. The manager of
the temple where the second marriage was said to have performed
also knew this fact. Hence the first wife prosecuted the husband and
others stated above for the offence of bigamy in furtherance of a
conspiracy.
The complainant was given the assistance of a lawyer through
legal aid. [Though she was getting substantial rental income from the
house which belonged to her husband. She has driven away the
husband due to his alleged second marriage and was enjoying the

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rentals. Misplaced sympathy by the Free Legal aid System to Women?]

The husband alleged second wife, two of his relatives, his parents and
the manager of the temple were defended by the same lawyer. The
husband did not want to give up his second wife at any cost. The case
went on for some years. The defence of the husband was simple. The
defence lawyer has studied the legal position thoroughly [which is a
pre requisite for defence lawyers to frame a correct defence] and
found out that even if the husband admitted his second wife as his
wife, say in connected civil or matrimonial cases inter se between the
same parties in some other court, that cannot be taken as complete
proof of bigamy. In order to prove the offence of bigamy, the parties
have to prove the important point that the spouse married again
during the subsistence of the first valid marriage, by going through
all the essential ceremonies required for a marriage.
[Emphasize by author.]
In the case on hand, the complainant [first wife], from the
evidence adduced by her through witnesses, failed to prove those
ceremonies. The wife only deposed that the second marriage of the
husband was performed in the temple as per Hindu rites and customs.
To the question as to whether she has examined the priest who
solemnized the marriage, she deposed that she was not able to trace
the priest. The entire evidence adduced did not speak about the
essential ceremonies being witnessed by anyone. It ought to have
been done by examining the priest who solemnized the second
marriage. Instead the receipt for the marriage given by the temple,
signed by the Manager who was also an accused, was marked as an
exhibit. The stand of the husband was that the person arrayed as the
second wife was only a relative of him and that the case has been
wrongly filed by the wife to wreck vengeance.
During arguments, the trial Judge questioned the advocate of
the husband as to how he is going to present the arguments when he
is appearing for the husband as well as the lady shown as second wife
and others. The Counsel replied that as far as the husband is
concerned he is going to demonstrate the motive for false implication

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by his wife. Regarding others , he is going to argue on legal

technicality. The Judge heard the arguments and ultimately, in tune
with the law [as laid down by superior courts during the relevant
period] held that the essential ceremonies for a valid marriage is not
proved to attract the offence of bigamy and acquitted all the accused.
SECOND ROUND OF LITIGATION: - Not satisfied by the
judgment, the wife took up the matter in appeal to the High Court. She
appeared as party in person, to earn sympathy, though she has
engaged an advocate who assisted her off the record. [Not through
legal aid but by paying the fees]In the appeal the sympathy card
played a vital role, and the Hon’ble Judge reversed the judgment of
the lower court partially by setting aside acquittal but ordered further
evidence to be taken by complainant to prove the essential ceremonies
for the second marriage. The Hon’ble Judge observed in the judgment,
that though the complainant has not proved the essential ceremonies
of a Hindu marriage, nothing prevented the husband from asking
questions regarding the performance of said ceremonies. [It is not
understood as to how it can be expected from any reasonable defence
lawyer to field such questions which will only crucify his client.
However since the observation was made by the High Court Judge, it is
to be taken as Law!!!] It is noteworthy for the readers to bear in mind
that the Hon’ble High Court accepted the point that since the wife was
pleading her case based on a second marriage as per Hindu rites and
customs, she has to adduce evidence in this regard and for which an
opportunity was again given.
THIRD ROUND OF LITIGATION: - The case came back to the
lower court and retaining the evidence already recorded, the Court as
per the orders of the High Court gave opportunity to the wife to lead
further evidence. She examined an official of the temple by showing
the receipt. In cross examination, the official was not able to connect
the receipt with the husband since other than the name which is same
as that of the husband facing trial, other particulars were not there. To
another question as to whether such marriages are always conducted
by priest, the temple official said , that marriages are so conducted but

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not in front of the deity. The marriages are allowed to be conducted

within or outside the temple precincts, and the receipt only evidences
that a marriage has taken place in that temple on a particular date. He
was also unable to tell the name of the priest or the ceremonies for the
marriage as he has not witnessed the marriage personally. The
complainant wife did not lead any further evidence.
The Judge after hearing arguments, holding that the essential
ceremonies for a valid Hindu marriage was not proved beyond doubt,
consequently, acquitted all the accused again.
FOURTH ROUND OF LITIGATION: - The wife again went on
appeal by adopting the same strategy of appearing in person, though
an advocate has been engaged by her to file the appeal. She cried
before the Judge that her husband has ditched her, she is struggling
and the husband has happily married second time. She vehemently
pleaded that her husband should not be let off at any cost in order to
uphold justice!!!. The Hon’ble Judge, no doubt, being human, got
carried away by the tears of the lady. [For such Judges, crocodile tears
are more powerful than the law.] He confirmed the acquittal of all the
other accused except the husband. He reversed the acquittal of the
husband alone and pronounced him guilty. After passing the judgment,
he sent the case records to the lower court which acquitted him earlier,
to sentence him according to law in tune with the judgment of the High
Court. The most intriguing point is that while holding the husband
guilty of bigamy, the High Court said though the wife was not able to
prove the essential ceremonies of a second marriage, it is to be taken
as if the husband has married again as per ‘SUYAMARIYADHAI” form
in tune with the amendment to the Hindu Marriage Act. [One is at a
loss to understand as to how the High Court could have changed the
facts and nature of the case itself, unsupported by evidence to arrive
at its own finding.]
FIFTH ROUND OF LITIGATION: This time the husband was
aggrieved by the judgment and sought legal clarification regarding his
chances of appeal to Supreme Court. He was advised that since the
High Court has placed its conclusions on evidence which is not existing

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based on the averments in the complaint and the materials adduced, it

is a good case for appeal. Another legal point of interest to the readers
may also be noted. The High Court having reversed the acquittal and
convicting the accused, had to pass sentence in accordance with law,
by itself and could not relegate the case to the trial court which
previously acquitted him. This contention was supported by earlier
judgments. It was also based on logic. The trial Judge after having
satisfied himself that the accused is innocent had acquitted him. He
cannot be compelled to pass sentence on a person whom he has
already felt was innocent. [That is, he was not convinced in his mind to
punish him. To punish a person, the Judge should be convinced about
his guilt.] This is in accordance with logic and also supported by earlier
judgments, but missed probably by the High Court and later the
Supreme Court itself.
The husband spent his resources substantially and took the
matter to Supreme Court and engaged a lawyer at Delhi. A full set of
papers containing the papers of the case from inception were filed. The
lawyer in the Supreme Court had prepared elaborate dates and events
schedule and was prepared for arguments. The husband was present
in the Supreme Court eagerly awaiting justice. The case was called. As
soon as the advocate rose, the Presiding Judge thundered “Heard. No
merits: Dismissed.” The advocate could not speak any further as the
order has been pronounced and it is also not a convention generally to
speak thereafter in the Supreme Court on the same case.
SIXTH AND FINAL ROUND OF LITIGATION: The husband
came back to the lower court. The wife also appeared and bent upon
getting a severe sentence to the husband. With a smile she stood
when her legal aid counsel argued on her behalf for the sentence.
The husband having lost in the final court [can he be faulted?]
stood in the dock with heads down and folded hands. The only plus
point for him was that he was working in a private concern and his
employer knew the entire litigation and was sympathetic to his cause.
The husband pleaded for a minimum sentence.

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The lower court in its wisdom, took a lenient view and asked
as to what are repercussions for the husband if sent to jail and
whether he is a government servant. His counsel replied that he has to
take care of his aged and ailing mother and that he is not a
government servant. The Judge considering these aspects, sentenced
him to undergo imprisonment for few months. The husband went to
prison, served the sentence and came away. Luckily his wife did not
again start another round of litigation on the ground that the sentence
is meager. The husband was not terminated by his employer from
service and he was allowed to continue his employment, after his
release from prison. [What some courts failed to do i.e., justice in the
real spirit, the employer was able to do though not a court.]
CONCLUSION: - The readers may think over the issues. Logic
was not used in this case. Legal proposition was given a go by.
Sympathy card played vital. The full truth as to where the fault lies
may not be known to us. A court is expected at all levels to act
according to law and within the parameters of law. In case if the court
wanted to show sympathy, it could always do so, while upholding the
acquittal, order compensation for the so called victim. It is done in
some cases. The irreconcilable factor is how a court may convict and
punish a person contrary to principles of criminal law, swayed by
[misplaced] sympathy.
No doubt though the track of the above case was disillusioning
to the advocate of the husband, he reconciled himself over the period
of about nine years when the case was going on before attaining
finality. Only thing our judicial process could achieve is not to leave the
lawyer disappointed but make him understand the reality of the
profession. His advice to his clients thereafter was. Don’t leave the
litigation halfway. Go up to the highest court and take a chance. Who
knows? The client may be benefited. [Can all litigants afford it?]

__________

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EPISODE - 4
IGNORANCE:
Ignorantia juris non excusat - Ignorance of law is no
excuse. Ignorance of fact is always an excuse. Let us see the
application of this maxim to the decisions made by Judges. In case
they decide a case wrongly, we have to magnanimously accept that it
is due to ignorance in appreciation of the facts of the particular case
correctly. This ignorance is sought to be corrected by higher courts
sometimes. Why sometimes? Because in certain cases the ignorance
prevails there also, that is continues. Can we weed out this ignorance?
It is not humanly possible, because we have another saying to protect
such cases, that is to say “to err is human”. A wrong doer also errs.
His error will cost him dearly, either he will be mulcted with costs in a
proceedings or he will be asked to pay a penalty or he may be
imprisoned. The error which a Judge commits has to be taken as
unintentional. Hence what we can do in such cases? To eradicate the
error is not possible but one can try to reduce the error by not being
ignorant of facts and law.
A Judge may give a proposition of law which is wrong. Unless it
is set right in a manner known to law, the consequences of that wrong
proposition may haunt several cases. In cases where the litigant is not
rich enough to fight or the lawyer is not well informed the casualty will
be the client and the cause of law. Hence the lawyer has to be well
versed both in law and facts in a given case. Are not the Judges bound
to be also thorough in respect of the various principles of law while
laying down a proposition of law? Definitely they are to be. The
endeavor in this chapter is to take an example and make the readers
understand some more legal principles in tune with the object of this
Book.
Recently an interesting question of law had come up before the
Madras High Court. The question was whether an accused facing a trial
for a grave offence is entitled to summon the General Diary maintained
at the Police Station which had filed the final report against him, in
order to effectively cross examine the Investigation Officer in that
case. The Single Judge of the Madras High Court in HAJI MOHAMMED
AND OTHERS VS THE STATE 2018 – 2- L.W [Crl] 853 has laid

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down the proposition of far reaching nature, ruling that the General
Diary cannot be summoned in view of the clear provision namely,
Section 172 CrPC. He has buttressed the ruling by extensively quoting
some earlier decisions of the Supreme Court and the High Court itself.
At first reading, it may appear that he has followed the principle of
“Stare Decisis” that is the practice of following earlier ratios [rulings on
propositions of law] in subsequent cases. It may also appear that he
was following the authoritative pronouncements of the Hon’ble
Supreme Court. He has also quoted another single Judge ruling on the
same point which is contra to his ruling. In that ruling the said Single
Judge in his judgment has held that General Diary can be summoned.
The present Single Judge in spite of this, however has declared that
though in such cases the practice is to refer the matter to a division
Bench [that is, in case the single Judge is coming across a contra
proposition by another single Judge of the same High Court, he cannot
differ since the ratio of that other Judge is a conditionally authoritative
precedent.] he is not doing so holding that in view of the Supreme
Court rulings which he has quoted , the said other ruling / judgment is
per incuriam. [No doubt if really the other Single Judge’s ratio is
contrary to authoritative precedent of the Supreme Court, then that
Single Judge’s judgment is per incuriam and this Single Judge can
straightway differ and give his own ruling.]The word of caution is that
the single Judge should be convinced that the other single judge’s ratio
is per incuriam actually.]
A Judge has to be careful in such cases as a casual deviation in
such cases from the practice of stare decisis etc., will result in utter
confusion and chaos when those rulings are quoted before subordinate
courts. With due respect, in the case on hand, the Hon’ble Single
Judge has not considered several aspects before rendering his ruling.
Let us analyse them.
In a police station [reference to Tamil Nadu] a General Diary is
kept at the police station which is maintained throughout the year and
24 hours every day. As opposed to it, the Case diary pertaining to a
particular case under investigation is not maintained so. It is
maintained only when some investigation is in progress in that
particular case.

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 EPISODES 233

In Tamil Nadu the practice is that as far as metropolitan cities

are concerned there are two General Diaries, namely the Station
General Diary and the Section General Diary. In the moffusil only one
diary i.e., General Diary is maintained. However the Case diary
maintenance is same throughout Tamil Nadu.
The Madras District Police Act 1958 empowers the Inspector
General of Police [now DGP] to frame Standing Orders. Some Standing
Orders are framed by virtue of sub delegated legislative power and
such standing orders have statutory force, since they are considered
as subordinate legislation. The Police Standing Order regarding
maintenance of General Diary is an example. The Police Standing
Orders also makes a clear distinction between this General Diary and
the Case diary which is to be maintained as per Section 172 CrPC.
The Supreme Court has been consistent that the Case diary
cannot be used as “Evidence” in inquiry or trials by virtue of the bar
contained in Section 172 CrPC. The Apex Court has however in several
cases allowed the General Diary extract to be marked by the
prosecution as an exhibit. In fact in one case the Apex Court has held
that where at the instance of the defence the General diary was
summoned but not produced, an adverse inference has to be drawn
and the benefit is to be given to the accused.
The scheme of the CrPC has to be read in the backdrop of Indian
Evidence Act always. Section 172 CrPC clearly lays down that the
entries in the case diaries cannot be used as evidence but only to aid
in the inquiry or trial. The trial Judge can always summon suo motu
the case diary and get assured that the investigation has preceded in
the correct direction. Beyond this it cannot be used, particularly, as
evidence. For example on seeing the case diary, the Judge finds that
an important eye witness though examined during investigation was
not cited by prosecution as witness. The Court can suo motu using its
power u/s. 311 CrPC summon such witness and examine him. Suppose
the Trial Judge instead of doing it tries to draw adverse inference on
the prosecution, it will not be justified, because he is using it [the case
diary entries] as evidence in such case. Only if he examines the
witness by summoning him, he can take such person’s evidence in the
case.

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On the other hand, suppose a victim of a crime, immediately

after the crime, goes to the police station and tells orally the incident
to the police official who maintains the General Diary. The Police
official concerned enters the details in the General Diary. Later
suppressing this information in order to frame an innocent person as
the accused, the police official takes a complaint in writing from
another person after one or two days, registers the FIR and mentions
the delay was due to the complainant. During trial, the General Diary
is summoned by the defence and demonstrated that the FIR is not
reliable and it is one obtained later. The trial Judge can mark the
General Diary entry, rely on the cross examination based on the
General Diary entry. In such cases the trial Judge can hold that the FIR
is not admissible as it is one obtained during investigation and hit by
Section 161 CrPC. He can acquit the accused based on the General
Diary entry and the evidence based on it. It was done in several cases
before High Courts and the Supreme Court. The Entry in the General
diary in such cases will be considered as evidence. It will be used by
the Court to see whether the GD entry corroborates [as per S. 157
IEA] or contradicts [as per S. 145 of the IEA] the substantive evidence
of the witnesses in court. On the other hand if there is an entry in case
diary, it cannot be used for contradiction or corroboration as above.
This is because S. 172 CrPC states clearly that entries in the Case
diary [CD] cannot be used as “evidence.” Only when it is used by the
Police officer to refresh his memory, that portion can be used to
contradict him as per S. 145 IEA r/w. 161 CrPc.
A reference to the case of SHAMSHUL KANWAR VS STATE OF UP
1995 4 SCC 430 relied upon by the single Judge of the Madras High
Court while [ the judgment which is referred above for discussion]
delivering his judgment , clearly lays down that the police standing
orders itself lays down the manner in which case diary is to be
maintained. The Supreme Court was definitely conscious of the fact
that the Police Standing Orders mention the concept of General Diary
and Case Diary clearly. The entire judgment of the apex court clearly
speak that the case diary can be used not as evidence but only for the
purpose of Section 161 CrPC and 145 Indian Evidence Act in some
cases. A reference to paragraph 18 and 19 of the said judgment of the

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 EPISODES 235

Apex Court clearly mentions these aspects. In paragraph 20 of the said

ruling the Supreme court has held that in some states like UP there are
regulations regarding the maintenance of general diaries and case
diaries. Hence the ruling of the Apex Court in the said judgment does
not lead to any confusion. Of course there is a reference to the word
General Diary in paragraph 10 of the said ruling but if one reads the
entire paragraph, it is clearly discernible without any room for
ambiguity that the Apex Court was discussing in the context of Case
diary u/s. 172 CrPC only.
Reference was also made to LALITA KUMARI VS GOVT. OF UP
2014 1 LW CRL. 1 In the said judgment at paragraph 63 the distinction
is again brought out clearly. The Court has held that since there is a
column in the FIR regarding the General Diary entry, it is clear that the
General Diary entry and the FIR are prepared simultaneously.
A reference to the above ruling clearly points out that the Apex
Court is conscious of the fact that an entry in the GD and the FIR
pertaining to the said entry , are made simultaneously. Once the FIR is
registered [assigning Crime No for that case taken up for
investigation], then only case diary [CD] is opened for that Crime
Number for purpose of investigation.
All the above aspects can be understood by resorting to an
illustration. Suppose a man who has just witnessed a murder in which
he is also injured, rushes to police station and passes on the
information, which is entered in the General Diary immediately.
Thereafter he will be allowed to compose himself, narrate the incident
in writing duly signed by him, or the police officer will reduce it into
writing, read over and get the signature of the informant. Then the FIR
is registered, [Crime No is given] in which the entry No relating to the
GD of that date will be noted. It is only thereafter the police officer,
opens the case diary for that crime No. and questions the informant
again in detail, gets finer particulars essential for him to go about with
the investigation. This will be the first entry in the Case diary [CD] for
that crime No. but the third entry regarding the incident [first being
GD, second being FIR]
The earlier ratios of the Supreme Court may also be noted in
this connection. A three Judge Bench of the Apex Court in SADHU

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SINGH VS STATE OF UP AIR 1978 SC 1506 when turning down the

defence plea that FIR was not lodged at the time claimed by the
prosecution has held in para 7 of the said judgment as follows :-
“….A vague and general suggestion was made to PW.11 that the
First Information Report was not lodged at the time when it was stated
to have been lodged but was prepared later on after consultation. We
are not prepared to give any weight to a suggestion of this nature. The
report as soon as it was received must have been entered in the
register of First Information Reports. No cross examination was
directed to discover whether this report was not entered in serial order
in the register. We also find that the substance of the report was
contemporaneously entered in the general diary of the Police Station
an extract of which has been filed as [Link]-3. The entry in the
general diary shown that the First Information Report was received at
10.05 a.m. and that after registering the First Information Report the
Sub-Inspector accompanied by certain named constables left the Police
Station for the village handing over charge of the Police Station to a
Head Constable. As is well known entries made in the general diary
about all the events that take place in the Police Station in
chronological order and it is ordinarily difficult to fabricate false entries
in the general diary….”
The readers may note that the judgment is of a three Judge
Bench of the Apex Court. The SC relied upon the marked General Diary
entry.
Again in KALPNATH RAI VS STATE AIR 1998 SC 201 while
countering the arguments of the defence counsel that the prosecution
failed to produce the Daily Diary maintained at the Police station
stating that the entries therein may be necessary, the Apex Court
held:
“….Para.94. We do not find any force in the said contention. No
doubt Daily Diary is a document which is in constant use in police
Station. But no prosecution is expected to produce such diaries as a
matter of course in every prosecution case for supporting the police
version. If such entries are to be produced by prosecution as a matter
of course in every case, the function of the police station would be
greatly impaired. It is neither desirable nor feasible for the prosecution

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 EPISODES 237

to produce such diaries in all cases. Of course it is open to the defence

to move the Court for getting down such diaries if the defence wants to
make use of it.”
The readers may note that the Supreme Court recognized the
right of the defence to summon the Daily Diary [equivalent to General
Diary]
IN SELVI VS STATE AIR 1981 SC 1230 the Supreme Court
doubted the prosecution version when the General Diary was not
produced to substantiate that the information was received at a
particular time indeed.
Again in JAGDISH MURAV VS STATE OF UP 2007 [2] SCC [CRL]
234 , the Supreme Court has held that when a specific defence is
taken that the FIR is ante timed and this will be proved by contents of
General Diary, non production of the GD is fatal to prosecution and
doubt will arise in the story of the prosecution.
CONCLUSION: - The discussion of this Chapter is to enlighten
the readers the concepts in the Law of Precedents. The Courts have to
extensively analyze various legal provisions in the backdrop of the
facts of the particular case, consider the impact of the principle which
is going to be laid down on the conduct of pending and future cases.
Generally precedents are to be of little value in the appreciation of
evidence in a particular criminal case. This is because facts have to be
appreciated in the backdrop of various factors which vary from case to
case. However when on some issues, clarification is required,
precedents may be helpful and hence the laying down of precedents
have to be done very carefully. The Bar, both prosecution and defence
in a criminal case have also an enormous duty to appraise the court
thoroughly by doing extensive research in the particular subject to
help the court to lay down a precedent correctly. It is hoped that this
Chapter will definitely benefit the readers regarding these aspects.
__________

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EPISODE - 5
UTOPIAN JUDICIAL SYSTEM:
INTRODUCTION: Hierarchy in our, judicial system at present,
leaving of course the quasi judicial bodies, may be broadly seen here.
Apart from the Supreme Court at Delhi, which is the Apex Court, for
each state there is a High Court. For example as far as Tamil Nadu is
concerned there is Madras High Court. Below the Madras High Court
there are different courts in each district. Let us consider the
hierarchy. The District and Sessions Judge broadly decides both civil
and criminal cases. Then there is Chief Judicial Magistrate, followed by
Judicial Magistrates [in metropolitan areas the nomenclature is slightly
different]. On the Civil Side, below the District and Sessions Judge,
there are Subordinate Judges [also called as Sub-Judges] and District
Munsiffs.
Regarding the Bar, on the criminal side there are Assistant Public
Prosecutors, [APP] who are full time Government servants. They
cannot practice independently. They are amenable to the service rules
of the Government. At the District level also there are Public
Prosecutors and Additional Public Prosecutors. They are appointed on
tenure basis by the Government. Though it is claimed to be done
through a process initiated by the Collector, in practice, the ruling
political party in power appoints them. They are generally less
accountable than the regular APPs. Even an advocate with a good
experience and knowledge can get himself appointed to the post only if
he is amenable to the ruling political party and able to enjoy their
patronage. As far as the Prosecutors in High Court are concerned, now
it is seen in all most all cases, only an advocate with soft leanings to
the ruling political dispensation, is appointed to the post. I used to
wonder as to whether the recognition of such persons by the
Government is to be taken that there are no other talented person
available in the opinion of the Government. The politically appointed
District level Prosecutor, sometimes later gets appointed as the Public
Prosecutor of the State in the High Court. In most cases, he may even
get elevation as High Court Judge. This hierarchy and dichotomy of
prosecutors, is seen on the civil side also. The Government Pleader and
the Addl/Asst Government Pleaders. These persons are also appointed

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on the same consideration akin to the Public Prosecutor. Later they

also have the same fortune of climbing up the ladder and ultimately
elevation to High Court, if their clout is still maintained, with the
political boss. In several instances, a person belonging to the ruling
political party and having its membership card is considered as primary
qualification. However, we are shy to admit this and as a typical
hypocrite claim that Prosecutors and Government Pleaders are always
neutral.
No doubt there are also other persons directly elevated or
appointed as Judges at various levels. The scope of this article is not to
go into a critical study of such appointments. One can broadly accept
that there also only some get appointed and instances are rife where
the deserving fails to get the post.
An advocate usually struggles in his career in the earlier years.
Generally after seven years of standing, an advocate with moderate
skill is able to survive in the profession to a decent extent.. In case
luck favours him, he leads a comfortable life. There cannot be a
grievance for the rest of the advocates on looking at the above class of
advocates. Then such moderately thriving advocates, start
compromising with certain ideals, [in fact these are the ideals
necessary for the healthy judicial system which is never to be
compromised] and shortly becomes popular, earns well and climbs to
greater heights. An advocate, who refuses/fails to compromise as
above, is generally stuck in the profession in the forthcoming years of
his life with several misgivings. He will never get recognized by the
judicial/governmental system. There may be extraordinary exception
to this position. Let us see one ideal which we have mentioned, where
certain advocates compromise. On being a moderate practitioner, he
becomes close to some political party and starts handling the cases of
such political parties. He may have further roots by virtue of his caste.
Sometimes, he gains deeper roots in the party by sheer virtue of his
caste. In case the said political party comes to power in the next
elections, form a Government, then this advocate gets a plum post.
The ideal which he has to compromise before attaining this position, is
that earlier he should not have antagonized this political party by
appearing in cases against it or their members. He has to refuse the

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brief even if he finds that the person aggrieved because of the political
party/person has a legitimate cause. An advocate should always take
up cases without fear or favour etc., While getting enrolled, he is
taught about these so called high ideals. Young fresh enrolled
advocates get swayed by these utterances which is known to be false.
An advocate who really believes and practices these principles with
grit, finds very late in his life that he has been stupid and in fact was
fooled. On the other hand his contemporaries who have compromised
on several ideals so preached, only to mislead and make the believers
fools, become successful. The advocate who is strictly following strict
principles in life is usually mocked at by the other group [and implicitly
by the legal system]. Every right thinking person will agree that this
position is not conducive either to the judicial system or to the nation.
I hope that every reader of this chapter who agrees to the progress of
the nation, will at least dream as detailed below for reforms.
The suggestion of reform advocated though impractical in our
present democratic system, is not totally impossible. Till the possibility
is achieved, one can at least dream of such reform and get satisfied.
Probably it is only because of this our former President of India, Shri.
Abdul Kalam exhorted everyone to dream!!!. Now let us see the
proposed reform.
There can be an Indian Legal Service [ILS] or with similar
nomenclature. To this ILS young advocates with minimum three years
of standing at the Bar may be allowed to associate. It should be a
permanent service like that of a civil servant with pay and allowances
from the Government. This arrangement can be made up to the level
of a District Judge.
The advocates entering this service can be rotated every two or
three years interse, amongst to function as Public Prosecutor, Defence
advocate and as presiding Judge of a court at a particular level. For
example if A enters this service, he may be permitted to be a
Prosecutor for first two years, then asked to function as defence
advocate to defend cases which Government entrusts to them through
Legal aid etc. Thereafter this A can be asked to be a Presiding Judge
for the next two years. These rotation of six years may be first at
Munsiff/Magisterial level. Then the next six years or so he may be

REALITIES 45
 EPISODES 241

asked to function as rotation at Sub Court level. That is first two years
as Public Prosecutor of a court at Sub Judge level, two years thereafter
as defence advocate as sub Judge Court level and the next two years
as a Sub Judge.
After such 12 years or so of service, A can be rotated in the
three categories at the level of District Judge. Thus an advocate may
be exposed to the rigours of all the three streams of legal service. Of
course, this two years may be extended by one or two years
depending on certain factors. An advocate thus at about the age of 45
years may become qualified in the three streams of functions. Eligible
persons from this stream may then be considered for elevation. Of
course the control of the advocate when he functions as Judge may be
placed under the High Court.
At present, the Prosecutors face certain difficulties, which are
peculiar. So also the defence advocates and the Judges. There is a
feeling that defence advocates sometimes adopt unethical means to
achieve their ends. So also it is felt that sometime a judicial officer
compromises with the necessary quality of being a non partisan Judge.
The Public Prosecutors also are found sometimes either lacking skill or
not sticking to the required standards of Prosecutor. By making the
above arrangements, of course with further fine tuning, the person
entering the service may realise the rigours of all the three positions. A
person functioning as a Judge will think that he has to conduct himself
in such a position and manner, realizing that tomorrow he may be
defence advocate or the Public Prosecutor. Good advocates may be
identified and groomed so that litigants may approach them for their
grievance redressal through the State sponsored Boards/ institutions.
Private practice may also be checked unlike at present, where affluent
people approach certain advocates not due to their advocacy but due
to their ability to manipulate in so many ways.
Of course proper mechanisms should be evolved so that the
control is not vested solely with the Government or the Higher courts.
The control may be vested with the Government cum Higher courts
cum independent persons. The independent persons may be from the
cadre of erstwhile legal service personnel.

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242 EPISODES

The above suggestions are only minimal. It may be debated and

more properly tailored to suit the system. The underlying idea however
is to make a stream of talented advocates who gain systematic
experience at all levels and reach the highest judicial service. Such
persons may later be utilised for building a healthy, effective legal
system.
CONCLUSION: The above thinking is for betterment of the
judicial system as a whole. A public prosecutor [cadre based not
political appointee] just slogs as a prosecutor till his retirement. One
fine day, he retires, tries his luck as a private practitioner, realizes the
sad truth that he is fish out of water. He goes back to the retired life,
ekks out his life with the pension. An advocate as we have seen earlier
depending on his nature of practice as an advocate scales to great
heights never wanting to turn back. On the other hand, an advocate
with principles and morals, by stint of hard work and meager luck
leads a career without an alternative. An arduous advocate, with
principles and morals, but with no luck, feels dejected at the end of the
day. We have seen on several occasions, Judges of the higher courts
lamenting that affluent persons get justice [without realizing that
sometimes they themselves are the cause for this]. Political leaders
lament about affluent and powerful persons getting access to justice
easily, but their lamenting is akin to crocodile's tears. Day in and day
out we see that persons who have risen to a position of recognition,
preach about morals, hiding the fact that they themselves have risen
to such position by giving a go by to the preachings they make. The
author hopes that soon things will change, towards a better tomorrow
.We can think about these and dream for the present. After all
dreaming is the only birthright and possibility of every right thinking
person born in India.!!!
__________

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 EPISODES 243

EPISODE - 6
PRACTICAL CONCEPT OF EQUALITY:
INTRODUCTION: - A cherished concept in our Constitution is
Equality before law and equal protection of law. An ambitious student
of law studies this concept deeply with all its exceptions. On his day of
enrollment a sermon is given by the dignitaries about the glory of the
sacred profession [Honestly, no more sacred to a majority of persons
now]. This author has also experienced this situation and his nostalgic
memories goes back about 46 years when he heard such sermon from
the then Governor of Tamil Nadu [who was a political person basically]
at the time of his enrollment. Amongst other things the concept of
equality was spoken in the context to stress that advocates as a group
are classified separately. It was advised that lawyers should strive to
uphold this concept of equality. Of course the recent developments is a
great disappointment to this author which he likes to share with the
readers here. Some instances are narrated here.
TWO INCIDENTS: - One involving a former Union Minister and
the other involving an Inspector General of Police are narrated here.
Let us first see the relevant legal position before we discuss these
instances.
FIRST INCIDENT:- As per Section 438 Criminal Procedure
Code, a person expecting arrest can move a petition for anticipatory
bail .Though there are several legal precedents as laid down by higher
courts on this subject , some of them are very relevant. In one such
case the Supreme Court has held that the Courts can grant
anticipatory bail with necessary conditions or dismiss the petition
seeking relief. However it was held that courts cannot issue a direction
“Not to arrest”, keeping the petition for anticipatory bail pending. In
PARVINDERJIT SINGH VS STATE 2009 [1] MLJ [CRL] [Link] it was
laid down by the Court that Interim order not to arrest should not
be passed and if passed ,it amounts to interfering in the investigation.
[In re Adri Dharan Das, an earlier case of the apex court on the same
point noted and approved in this ruling also.] On the basis of the
above ruling it can be expected that an order not to arrest cannot be
issued when the anticipatory bail petitions are pending.

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Recently a former Union Minister and his family were sought to

be investigated for certain offences under the Prevention of Corruption
Act and the Money Laundering Act. The said former Union Minister and
his family has moved the court for anticipatory bail and though the
petitions were pending, the Court was periodically giving them relief
stating that they should not be arrested till the petition seeking
anticipatory bail was disposed off.
The case against the former Union Minister and his family may
be motivated or true. One do not know at the said stage. If it was
motivated and an act of vindictiveness, certainly the Courts are the
only recourse as the former Minister alleges vengeance from the
highest persons in office. In case it is true, courts may grant
anticipatory bail as it will give him relief, directing him to cooperate
with the investigation. In case the case against him is prima facie
supported by materials, then the petition may be dismissed, in case
custodial interrogation is felt necessary. It is not clear as to how an
order of “not to arrest” or interim protection from arrest be permissible
when investigation is in progress. Several questions may arise in the
minds of the readers. Will not the person try to interfere with the
investigation? Will not the police be hesitant to proceed with the
investigation fearing that if the former Minister comes back to power,
the police officer concerned may be victimized? Why in cases involving
ordinary persons, such relief is not granted when the petition for
anticipatory bail is pending? Does the former Minister and his family
facing prosecution form a separate class by themselves, warranting
deviation from the concept of equality? Several questions may arise in
the minds of the readers on these lines.
SECOND INCIDENT: - The newspapers recently reported an
incident of an Inspector General Of Police, being accused of sexually
harassing a Woman Superintendent of Police working in the same
department of Police. Both the alleged offender and the alleged victim
are in the rank of IPS Officers. {Indian Police Service Officers}. The
complaint of the woman officer was not registered as a FIR initially. A
committee was set, claiming that the committee is on the lines of
Vishaka Committee to protect woman from sexual harassment in work
places. The Committee was later found to be not properly constituted

REALITIES 45
 EPISODES 245

as it consisted of only persons from the Police Department. No

reasonable man can digest the answer that the Government committed
a mistake. In case the Government after several years of the ruling in
Vishaka still is not competent to even constitute a committee properly,
such a Government is not fit to discharge its constitutional obligations
to the citizens. There is a strong belief that this was done only to delay
the progress in taking action on the complaint of the woman police
officer.
The officer accused, was able to get certain reliefs which the
Courts itself later found intriguing and doubtful. Ultimately the Court
cleared the position by ruling that the newly constituted committee can
proceed with the enquiry and simultaneously the police can also
proceed with the FIR [registered after considerable delay].
The readers may note that the Government and the police may
have a laudable object in doing the above things: namely to protect a
honest officer from being accused of grave wrong doing. Does it mean
a woman, that too a police officer, that too a dutiful Indian woman will
go to the extent of falsely accusing a superior police officer of sexual
assault? Usually courts observe so when an ordinary person is accused
of sexual offence. Of course in once instace, the Court while dismissing
the bail petition of the Professor accused of sexually assaulting his
research scholar working under him, observed “ The accusation against
the Professor is like that of “fence eating the crop”. In its eagerness to
dismiss the bail petition, the court went to the extent of holding that
the accusation is true. The Professor was arrested and kept in jail for
about 45 days though the enquiry conducted by the College at the
behest of the University has held that the allegation against the
Professor appear to be false.
The Professor was accused of sexually assaulting the lady
research scholar in the college premises in his room. The Professor was
arrested though the complaint was lodged after considerable delay.
Not only that, the Professor was convicted by the lower court
completely brushing aside the evidence which established that the case
is false. One of the reasons adverted to by the court was that no Hindu
woman [the alleged victim was a Hindu] will come out publicly with
such an allegation, unless it is true.!!! Only the appellate court

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acquitted him, in appeal. By the time all these happened, the Professor
has reached the age of superannuation. His prospects of being the
Principal of the College and the possibility of being the Vice Chancellor
also were ruined. The Professor is a Dalit.
The readers may now ponder. Does it mean that a person who is
highly influential can be protected differently through legal process as
against persons not so placed. Do the courts make laudable
observations only when it comes to ordinary accused persons and keep
silent when highly influential persons are accused of offences? The
readers may come across instances of Judges and Courts lamenting
that Judges are being targeted by words when they discharge their
duties. Yes. Judges cannot be attributed with motives. One cannot,
however say that judgments should not be criticized.
The concept of equality is differently applied to highly influential
accused as against ordinary persons accused of offences. Persons
accused of offences are to be put in a class as against others who are
not accused of offences. This is a classification, based on an intelligible
differentia, having nexus to a rational sought to be achieved as
propounded by the Courts while discussing the concept of equality
under Article 14 of the Indian Constitution.
The idea of narrating the sequence of events above is only to
stress the point that in order to infuse confidence in the minds of the
general public and to boost the prestige of Courts, the Judges should
apply concept of equality in a fair manner. The Courts also should
refrain from passing comments in bail petitions prematurely. Above all
apply the law equally. In case the Courts feel that a person is
vindictively sought after, the courts can grant straightway pre arrest
bail, that is, anticipatory bail. On the other hand if the court finds that
the relief is not warranted on legal grounds, dismiss the petition
straightway. The image of courts will rise in the minds of the public. No
doubt if a person is influential, even after dismissal of the anticipatory
bail, the police may not arrest him. This seems to be approved as a
legally acceptable one. Arrest is only discretionary as held by the
courts. In case Courts apply the rule book without any consideration
emanating from grounds not germane to law, no one will have an
opportunity to even criticize the judgments, leave alone the individual
Judges who penned the order. One step in this direction may be to
apply the doctrine of equality as ordained by law.
__________

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EPISODE - 7
SANCTION TO PROSECUTE UNDER CORRUPTION LAW:
A BANE OR BOON TO WHOM?
In our country the Prevention of Corruption Act 1988 is the
forerunner of the laws to check and punish corruption amongst public
servants. At the same time protection is sought to be given to honest
public servants by the legislation. This is done by way of a check, that
is, obtaining prior sanction to prosecute the public servant concerned.
There appears to be no yardstick in the legislation for grant or refusal
to give sanction. Once sanction is given the public servant has to
establish only before the Court of law that the sanction given in his
case is “invalid”.
The purpose of this article is to make the readers understand as
to how the judicial process can be manipulated to suit their needs, of
course, through the same judicial process. Courts are there to interpret
the law in such a manner that there is consistency in the way in which
things will happen in courts. However the law relating to sanction is
so excellently [?] interpreted time and again, that there is total
inconsistency leading to chance litigation. Not only that there are also
instances where the influential are getting away with the help of the
‘confused’ interpretations. Readers of this article, if lawyers, can also
readily refer to the citations given in this article to appreciate and
understand the situation better.
Higher Courts have held that consistency is cornerstone in the
administration of justice. Refer [Link] AP [Link] 2000(8)
SCALE 181. OFFICIAL LIQUIDATOR VS DAYANAN 2008 [13] SCALE
558 SC DB [3].
The legal position in prosecution of public servants under the
Prevention of Corruption Act 1988 [ Act 1988 for short] is that the
prosecution before laying final report, that is charge sheet, against the
public servant in service is to get sanction from the competent
authority. The said authority should be both competent to grant
sanction and also should have applied its mind to grant sanction.
Invalidity on either of these grounds leads to the sanction itself being
declared invalid by Courts. While competency can be assessed at the

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threshold without evidence being let in, application of mind can be

established only during trial, that is, by examination of the sanctioning
authority. DINESH KUMAR VS AIRPORT AUTHORITY OF INDIA
2011[13] SCALE 132.
Having stated the law thus, the Courts are faced with a situation
where the public servant agitates the invalidity of the sanction on the
ground that there is non application of mind. To establish this, he has
to wait for the trial to proceed, that is after framing of charges. Hence
when the public servant is able to demonstrate during trial that the
sanction is invalid due to non application of mind, can he get a
discharge? The answer is NO as the Courts hold that once trial begins
there is no discharge .K. SELVAM VS STATE CBI 2010 [2] MLJ [CRL]
1064 MAD].
A public servant who has successfully demonstrated invalidity of
sanction during trial, has to necessarily wait as per the above ruling.
To What result?. When ultimately the Court at the time of judgment
holds that the sanction is invalid, it cannot pronounce an acquittal or
conviction but can only discharge him. See STATE OF KARNATAKA VS
[Link] 2005[8] SCJ 319. Worse the prosecution after
such a prolonged trial as per the above judgment of the Supreme
Court, can again get fresh sanction and prosecute the public servant
for the second time. This is so because a discharge is not a bar for
second trial.
On the other hand , the Court can declare that the sanction is
invalid but give a conviction on the premise that sanction only lifts the
bar for taking cognizance and once the court scans the entire
evidence and is satisfied that the public servant is guilty based on
proved facts, it can convict him. CBI VS [Link] 2001 SCC [CRL]
358 = AIR 2004 SC 5117. The only rider for this is that the accused
public servant should have failed to raise the question of sanction at
the earliest point of time. The earliest point of time to establish that
the sanction is invalid on the ground of non application of mind is trial
which the public servant would have done, but then it is no use if the
evidence establishes his guilt.
One more dimension is whether it is possible to prosecute a
public servant in case, the competent authority refuses to grant

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sanction even though there is enormous evidence pointing to the guilt

of the public servant. The Courts can only be spectators of this
situation. See STATE OF PUNJAB VS MANINDER SINGH 1997 [1]
MWN [CR] 380 SC [ Where the Supreme Court was unable to do
anything when the Government did not want to grant sanction and
wanted to help corrupt public servant.]. Can any individual set the law
in motion then? The answer is no. The Supreme Court has held that
even for getting an order to investigate from the Court in a case of
corruption, there should be prior sanction. See DR. SUBRAMANIAM
SWAMY VS DR. MANMOHAN SINGH 2012 I CCR 266 SC. It is a big
question mark as to whether sanction in such a case is again required
as per Section 19 of the Act of 1988 after investigation and before
laying charge sheet. It is totally not understandable as to whether
there has to be two sanction orders, one to get an order for
investigation and again a second one for laying charge sheet. [The
recent amendment to the PC Act mandates so, on the lines of this
ruling.]
The Prevention of Corruption [Amendment] Act 2018 with effect
from 26.7.2018 has introduced some more changes. Now as per
Section 17A newly introduced, the position is that in respect of certain
offences, even investigation, inquiry or enquiry is not permissible
unless previous approval of the sanctioning authority is obtained. This
amendment is a sequel to certain judgments of the Courts on the lines
that even for registering FIR and to commence investigation, prior
approval of the competent authority is mandatory.
Thus the position which emerge is:
10. A public servant has to raise the question of sanction at the
earliest point of time.
11. What is earliest point of time is not answered in a
categorical manner by any judgment.
12. Prior to framing charges invalidity on the ground of
competency only can be proved; invalidity on the ground of non
application of mind has to wait. It can be only established during trial
after framing of charges.

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13. In case non application of mind is established during trial,

then also the public servant cannot claim discharge as the stage for
discharge is crossed, since charges are already framed.
14. Even at the end of trial, if the court finds that sanction is
defective, it can only discharge, which is no bar for a second trial on
the same set of facts with a fresh sanction. On the other hand the
court may hold that the sanction is defective but pronounce a person
guilty on the premise that the evidence establish the offence. Here the
judgments in STATE OF KARNATAKA VS [Link] 2005[8]
SCJ 319. and CBI VS [Link] 2001 SCC [CRL] 358 = AIR 2004 SC
5117. are quite contradictory to each other.
15. The judgment in DR. SUBRAMANIAM SWAMY VS DR.
MANMOHAN SINGH 2012 I CCR 266 SC. has further added to the
confusion by the interpretation placed in respect of sanction. This is
further compounded by the amendment made in 2018.
A reader should also bear in mind that practically the sanction
has become an empty formality by the judgments rendered in this
connection. In practice also sanction in most cases is given as a matter
of course or due to extraneous considerations not germane to the case
and the legal position. It may be noted that while certain persons get
relief from the case on the ground of invalidity of sanction, others may
not be successful when the judgments on the above lines are shown
and relief claimed.
The recent case makes the law much more confusing. The
reference case law is this.
“Whether a public servant who is not on the same post and is
transferred [whether by way of promotion or otherwise to another
post] loses the protection under section 19 [1] of PC Act though he
continues to be a public servant, albeit on a different post-? ...Held
Yes.”
L. NARAYANA SWAMY VS STATE OF KARNATAKA 2016 [8]
SCALE 560.
Though it is not to be openly accepted, in many cases involving
public servants, the Central Bureau of Investigation, writes official
letters to the Vigilance Commissioners to get a public servant

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transferred from post which the CBI feels he has abused. They
investigate such case and lay the charge sheet. In the meanwhile,
departmentally the public servant is transferred from that post on the
letter from CBI to some other post. The recent judgment quoted above
makes the task easier for the investigation agency in that now no
sanction is required in the case of this public servant!!!
In Tamil Nadu one more peculiar feature exists. A public servant
may be booked under the PC Act for demanding and accepting illegal
gratification. FIR will be registered prior to the trap proceedings and on
the trap being successful, the arrested public servant will be remanded
to judicial custody. One may expect logically that the police officials
will file final report before the competent court against the public
servant after investigation. It is to be noted that even after completion
of investigation, positive final report cannot be directly filed in court.
The police has to get sanction to prosecute from the authority
competent to appoint/remove [that is Sanctioning authority] the public
servant concerned. Here as per the PUBLIC SERVANTS [INQUIRIES]
ACT 1850, the Sanctioning authority/Government may refuse the
sanction and instead proceed with the inquiry under the Act 1850 by
appointing its own Commissioner of Inquiry. At the end of the inquiry,
the public servant may be departmentally punished. No prosecution at
all in such case before the Criminal Court!!!
In the case of Central Government servants, /other public
servants, the prosecution may still be stalled by refusing sanction and
instead proceed with departmental enquiry alone.
The upshot of the above short discourse leaves us with a
surprise. In spite of the above position, there are many persons who
are able to manage and get exonerated from their cases through
courts on the ground of “Invalidity of Sanction”. Thanks to our system
and we need to be ever grateful to our courts and system, that
resourceful public servants are rewarded, if they are smart! Probably
Darwin’s theory of “Survival of the fittest” operates with full force here.
The only question is who is “fittest”. It is felt, not definitely a person
with honesty, morals etc.
__________

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EPISODE - 8
WHO WASTE THE TIME OF COURT:
Courts, particularly the High Courts and Supreme Court, often
thunder that the advocates or the litigants waste the [golden] time of
the court. The courts do very rarely, utter such words against the
Government or the Government law officers in Court like, Government
pleader, Public Prosecutors etc. Actually what exactly is the position?
In the 14-6-2018 dated newspaper, an incident in court was reported.
The said incident is in connection with a lady reporter having filed a
case against the Chennai City Police Commissioner. The case pertains
to a prayer to take contempt action against the Chennai City Police
Commissioner.
An actor in a media program uttered a controversial point
regarding lady reporters. The police registered a case against the actor
on the complaint of the lady reporter. The actor filed an application for
anticipatory bail before the Madras High Court. It came for hearing
before a Hon’ble Judge. The said Judge dismissed the anticipatory bail
of the actor. The Court further ordered the arrest of the actor in
relation to the said case!!!
The settled position of law is that no court can direct the arrest
of an accused when the case is under investigation. Even in cases
where the anticipatory bail is rejected, there cannot be a direction to
arrest the offender. The Investigation officer of the case only has to
decide whether arrest is necessary even in such situations. [It is not
comprehensible as to whether this position of law is not noticed]. So
also it is not understandable as to whether the Public Prosecutor
appointed by the Government to the highest court in that State also
was unaware of this legal position. OR having known it deliberately
failed to state the position before the Court? These questions will
always be never answerable? As believers in mythology say it is
“Brahma rahasiyam “]
One cannot deny the fact that this position is advantageous only
to the actor concerned, for him to approach the Supreme Court.
However even before the actor’s petition can be taken by the Supreme
Court, the State managed to finish the investigation and file the final
report before the Court. [Such intelligent strategies are known to the

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State law officers and Government also. Equally they will keep the
investigation pending for years together if they deem fit. This is
because there is no time limit for investigation generally.] Courts also
does not enforce the rules uniformly. The Supreme Court hence, as per
the established position of law, dismissed the petition of the actor and
directed him to approach the trial court where the final report is filed
and obtain bail.
The Supreme Court also did not specifically rule that the
direction of the Madras High Court “To arrest” is incorrect. Under the
said circumstances only the contempt petition [stated earlier in the
opening paragraph] came to be filed. No doubt the readers can easily
appreciate that the contempt petition is as such not maintainable at
all. Hence the readers can form their own opinion as to who actually
waste the golden time of Courts.
In the light of the fact that several cases are pending, and
thousands of people await as to when they will get verdict in their
case, the above said case demonstrate that such cases are nothing but
wasting the time of the court. Hence readers may ponder as to
whether in such a situation, the cry of the Judiciary and the politicians
that additional courts are necessary, is right and justifiable?
__________

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EPISODE - 9
TIMELY JUSTICE:
The Courts have to be aware of the police practices in defeating
the rights of persons sometimes. Unfortunately, this author has
witnessed several instances where Courts do not look into such
practices and come to the aid of the person in distress. This flaw
sometimes has a far reaching effect. The damage done may not be set
right. Timely intervention of the Court and correct exercise of
discretion can easily and readily solve this type of malady. The
following episode is illustrative of this.
FACTS: - A Contractor “M” had political leanings and was an
upcoming functionary in the political party to which he belonged. The
neighbor of M was working in the Secretariat and was able to wield
influence with this back drop. He was jealous of M. On a particular day
M complained to his neighbor that the tree overhanging his house had
its base in the neighbour’s house and was causing nuisance to him. He
asked the neighbor to cut the overhanging branch alone. The neighbor
did not pay heed and the nuisance continued unabated. Hence on a
particular day, M with his men, climbed over the neighbour’s tree and
cut off the intruding branches. The neighbor was annoyed by this act
of M. He gave a complaint to the police narrating the above. This act of
M would if at all, legally attract the offences of simple trespass and
mischief punishable u/s. 447 and 427 IPC. The offences are bailable,
that is, the police on arrest of M may themselves release M on bail.
The neighbor wanted to see that M is detained at least for one
day. Hence he influenced the police to see to it that something is done.
The police succumbing to pressure and influence of the neighbor,
registered the case u/s. 447,427 and 506 IP C. 506 IPC is offence of
criminal intimidation and is non bailable in the State of Tamil Nadu.
Though the section was quoted in the First Information Report [FIR],
the ingredients to attract 506 IPC were absent in the complaint.
[Actually the first information and FIR registered thereon.]The police
arrested M, and brought him in custody stating to M that the offence is
non bailable.

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IN COURT: - The author had also witnessed that in such cases,

in spite of the argument of the Counsel, the Courts will remand the
prisoner, issue notice to the Prosecution on the bail application and
grant bail usually after 2 or 3 days. The detention for these days in the
prison, thus becomes inevitable. The case of M was brought before a
Magistrate. This Magistrate, patiently heard the Counsel of M and
noticed that there are no ingredients to attract the non bailable section
of 506 IPC as per the complaint and the remand report. Hence he
passed a speaking order, releasing M, holding that the offences alleged
are only bailable. The ignominy of detention was thus averted by the
timely and correct intervention of the Magistrate.
SUMMING UP: - The act of the Magistrate in the above
instance is an example of the correct intervention of the judicial
process to avert a flaw. Had this not been done by him, the liberty of a
man would have been at stake. It is noted that in several instances,
this is not done by the Courts, fearing protest from the Bar. The Bar
members claim that if you release in one case, you have to release in
all such cases and this is taken as one reason to remand the prisoner.
Though this is not uniform in all the Bar associations, in some cases, it
does happen. With due regard to the advocate fraternity in general, it
is not a healthy practice.. Courts also should not encourage this
practice. The neighbor in the above instance did not pursue the case
further, having been defeated in his designs. In course of time, M
flourished both in his business and politically also, which would not
have probably happened, had he been incarcerated on that day.
__________

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EPISODE - 10
NICETY IN DEFENCE:
INTRODUCTION: - An advocate practising on the criminal side
has to be versatile with the bare provisions of law, nuances which are
the outcome of the judicial pronouncements, smart thinking etc. One
such trait which he has to develop is to intelligently formulate his
defence so that he can elicit the facts during trial from the witnesses
and documents to gain strength for his defence. The following is one
such instance.
Section 138 of the Negotiable Instruments Act [NI Act for short]
was introduced by the Amendment Act 66 of 1988 with effect from 1-
4-1989 to the NI Act. The provision created a new offence. ‘Dishonour
of cheque’ was made a punishable offence on satisfaction of certain
conditions relating issuance of notice of demand, and institution of a
complaint, within a time frame etc.
[Author’s Note: It is disheartening to note that in India, laws are
passed sometimes at breakneck speed without taking into
consideration certain ground realities and experience. In its eagerness,
the Government introduces bills which are to become laws. Being
Parliamentary democracy, such laws are usually passed to gain
popularity or assuage the feelings of certain quarters. Section 138 of
NI Act is one such instance. There need not have been an amendment
to the NI Act creating substantive penal provisions for dishonour of
cheques with procedural provisions which may sometimes be in conflict
with the procedural provisions already contained in CrPC. These and
other shortfalls has led to a spate of case laws which of course, is
helpful to legal practitioners. The object of the enactment is lost.
Section 418 IPC, etc are aggravated forms of cheating found in IPC.
On the same lines an amendment to IPC providing for offence of
dishonour of cheques would have been a better option instead of
amendment to NI Act.]
Now coming to our point, the practice which was prevalent prior
to 1988 and which is still prevalent is Financiers whether private
money lenders or institutions used to get several signed undated
cheques from the borrowers and keep it with themselves. Such
cheques prior to 1988 were used to be filled up and used as an

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evidence in suits for recovery of money. In some cases, such cheques

were used for prosecuting the drawer for the offence of cheating on
dishonour of such cheque. Such prosecutions were not very fruitful as
the borrower/drawer could easily establish that he had no means rea
to cheat and that the cheque was given with a bonafide belief that
funds could be arranged to honour the same. This was a valid defence
for prosecution under IPC. The NI Act introduced draconian
presumptions in the amendment and a reading of the same it could be
inferred that the concept of means rea was totally ruled out in such
offences. Only the preconditions were to be satisfactorily fulfilled. This
would result in a conviction leading to both imprisonment and fine.
[Author’s Note: - The amendment was a boon to practising
advocates both on the civil and criminal side. In some cases the Police
were also in a way benefitted? / burdened as new area for litigation
opened up.]
One J was prosecuted immediately on the amendment Act
coming into force. J has borrowed a loan and gave a signed undated
cheque long prior to 1988 to his creditor. J claimed that he has already
repaid the entire cheque amount. The Creditor on the other hand
contended that some substantial amount of principal and interest was
still due, filled up the cheque with the date [after 1-4-1989] and
amount, got it dishonoured. The Creditor gave a notice of demand,
fulfilled the conditions and filed the prosecution. J took light of the
notice of demand but only wrote a letter to the creditor that the entire
amount was paid and there was no outstanding.
J received summons from the court and he was constrained to
appear and defend himself. Then what could be his defence. In case he
states that the amount was filled up by the creditor, the law is that
when a cheque is signed in blank and issued, the payee can fill up the
particulars of amount validly. The draconian presumption u/s. 139 is
that a cheque is issued by the drawer only towards discharge of his
liability. J approached his advocate and asked him to defend the case.
The advocate meticulously studied not only Section 138 NI Act
but the entire law regarding negotiable instruments. He came across a
brilliant question of moot importance. It is “When a cheque is said to
be drawn?” Is it on the date when the cheque leaf is signed and

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handed over to the Payee? OR is it the date which the cheque bears?.
He did not find any direct decided case on the point. Hence he stuck
upon the defence and maintained it. It is that J gave the undated
cheque prior to 1-4-1989, but the creditor has put the date after 1-4-
1989. The contention of the advocate in particular was that the cheque
was drawn [i.e. signed] six months prior to the date which is put by
the creditor on the cheque. Hence the rule that the cheque should
have been presented for encashment within 6 months from the date
on which it was drawn is violated.
The advocate knew very well that to dislodge the presumption
u/s. 139 NI Act it is no use to just contend the above point but to
prove the same. Hence he called the bankers of J as his defence
witness. The banker produced the statement of accounts pertaining to
the account of J. It was established that the cheque [Ex.P-1 concerned
in the case] could have been given only six months now three months
prior to the date it bears. This is because the subsequent numbers of
the cheques which were given after Ex.P.1 date were long back issued,
and cleared long prior to 1-4-1989.] The case ended in favour of J.
CONCLUSION :- No doubt after a long interval the higher
courts ruled that a cheque is said to be drawn only on the date which
it bears and not the date when it was actually signed and handed over
in blank. Six months have to be calculated only on that basis, from the
date of the cheque! However the readers may note that the advocate
of J has used his skills in carving out a permissible defence in law to
save his client.
Nowadays, it is noted with regret that most of the Judges rue
those skills rather than appreciating them. It is to be noted that in
India we follow the legal system based on English jurisprudence, as
opposed to our native jurisprudence. We follow the rule “Justice
according to Law” based on such English Jurisprudence, rather than
the rule “Justice according to Truth” which was our original system.
Our Courts and Judges often forget these nuances, but when it comes
to individual Judge, he wants to have his status and benefits like that
in English system. Most of us do not want to have “Nyayalaya” where
the Judge or middlemen do not get any salary or fringe benefits like an
English/Indian Judge.!!!
__________

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EPISODE - 11
AWESOME REALITY:
INTRODUCTION: - An advocate who looks up to the profession
as a noble one, follows the best practices while he carries on the
profession. Naturally he expects reciprocity from the Judges and others
in respect of such practices. A Judge in spite of being honest, truthful
etc may pass an order erroneously. No one can fault such a Judgment.
In fact higher courts are there only to remedy such stray errors. What
can be the answer when a Judge consciously pass a wrong order fully
knowing the correct legal position or even after he is appraised of the
correct legal position. ? Added to this when the matter is taken to the
knowledge of the higher court, we are unable to understand what
happens behind the screen and the lower court Judge is left Scot free
after in house deliberations in the Chambers of the higher court Judge.
No one can rectify such situation. We can only comfort ourselves
saying these are stray instances. One forgets the point that what is a
stray incident today may proliferate and grow in future with the result
that erroneous/ wrong orders may become the rule and genuine and
correct orders will become exception. Even the deadly disease cancer
commences as a small aberration of cell in tissues, only to be a deadly
one as it progresses. Timely intervention by higher courts in
accordance with law without fear or favour only will uphold the Rule of
Law. There is no point in crying from rooftops or in public platforms
that Rule of Law shall prevail without actually trying to enforce judicial
discipline. The following incident is an example of this.
INCIDENT: - An accused was arrested and remanded in respect
of a charge of murder [Section 302 IPC.] Even after 90 days of arrest,
investigation was not concluded. Hence on the 90th day morning, an
application for bail as per Section 167 CrPC was filed before the
concerned Magistrate. It was not a printed or typewritten application
but cleanly written in hand by the advocate. In the said petition, the
legal position was clearly stated with the name of the case law relied in
support of the legal position. It was specifically mentioned that no
notice to the prosecution is contemplated and if before the closing time
of the court on that date [that is expiry of 90 days] final report is not

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received, the Court is bound to release the accused on bail,

irrespective of the merits of the case.
The advocate as usual having done his professional duty
expected too much from the Magistrate [that is he expected him to act
according to law.] The Magistrate on receipt of the application for bail
and numbering it, in a cool manner said “Counsel it is offence u/s. 302
IPC. Non bailable. Hence I am issuing notice to the prosecution
returnable in two days. Call on.........[ i.e. after 2 days.] . The
advocate tried in vain to impress the Magistrate on the legal position
but it was of no avail. [In retrospect the advocate now realizes and
recalls that the body language of the Magistrate was rather
nonchalant.]
After two days when the application was called, it was found that
the Learned Public Prosecutor made an endorsement “Offence u/s 302
IPC. Investigation is pending. Hence strongly objected.] By this time
the advocate was prepared for the result. Hence he wrote another
petition mentioning that the dictum of Supreme Court and High Court
was consistent that no notice is contemplated and release is
mandatory irrespective of merits in such cases. It was also mentioned
in the petition that ratios of higher courts shall be followed by lower
courts as per decided case laws. He kept the petition with him till the
case was called. On the calling of his application for bail, the advocate
stated the legal position and sought bail. The Magistrate again
reiterated the position that it is a serious offence and there is strong
objection by the prosecution. Hence he will only dismiss. Then the
advocate filed the petition and requested for suitable orders. The
Magistrate just smiled after going through the petition, kept it with the
case records and dismissed the petition for bail!!!.
The advocate was young and had few years of practice at the
Bar. He did not know the reality and foolishly believed that it is a fit
case to take up the matter to the High Court so that at least the
Magistrate will be censured for his way of handling the case. Usually on
dismissal of the bail application by the lower court i.e. Magistrate one
has to file a bail application only in the Sessions Court. High Court
cannot be approached without moving the Sessions Court. Hence the
advocate after doing legal research [ we have to pity him for this],
filed a petition for direction as per Section 482 CrPC. [ Section 482

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CrPC clothes the High Court only with inherent powers to pass certain
orders in some cases. The readers may refer to the said section.] In
the said petition before the High Court, the advocate narrated all the
details, enclosed copies of his petitions and order of dismissal. His
prayer was to direct the Magistrate to pass orders of bail in accordance
with law.] The said petition was numbered and notice was served to
the Public Prosecutor. The Public Prosecutor was an experienced
person. He called the advocate and said “Brother nothing will happen
by such petition. Reality is otherwise. You withdraw the petition and
file a petition for regular bail. I will not oppose it and you will get bail.”
Our advocate said that he is proceeding with his petition u/s. 482
CrPC.
At the hearing of the petition, the advocate argued his petition.
The Judge just said even without hearing the Public Prosecutor “List
the matter at 2.30 PM tomorrow.” The advocate was perplexed. He
looked at the Public Prosecutor who gave a wry smile.
The next day at 2.30 PM when the case was called, the Judge
again without hearing the Public Prosecutor, passed an order stating.”
Released on bail with a bond for Rs...... with two sureties for a like
sum to the satisfaction of ............Court.” No mention was made in the
order about the merits of the case.
The advocate became curious and made enquiries. That day he
learnt a lesson. It is no use to only know law, follow it and practise it
with the best standards. One must know what happens in reality
behind the screen also. It was revealed to him that the lower court
Magistrate came to the Chambers of the Hon’ble Judge during lunch
time, that is before 2.30 PM when the case was listed. He had a brief
talk and went away. The advocate also came to know that the
Magistrate was a powerful person and was in the good books of the
Judges. [Not due to his knowledge of law definitely.] . The advocate
only did not understand as to whether these qualities are capable of
bypassing the law and ignore the sufferings of the litigants. No action
being taken, when the advocate approached the same Magistrate and
gave sureties, he just smiled and accepted the same.
It was subsequently learnt that the Magistrate was still passing
such questionable orders nonchalantly. Thanks to the Higher Courts.
__________

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EPISODE – 12
EXPERIENCE COUNTS:
INTRODUCTION: - The mind of a person plays a vital role in
his decision making process and judgment. This is known to everyone.
In the case of the Judge unlike a common man, his decision making
process is to be in tune with the judicial process resulting in his
judgment. Then, it is seen in majority of the cases that no two judges
come to a same judgment after undergoing through the decision
making process via the present judicial process. The effects of this is
multi fold. It may affect a particular client, it may reflect on the caliber
of the advocate, a doubt arising in the system itself etc. The following
episode is to highlight this.
FACTS: The author was then an advocate with about four years
standing at the criminal trial side bar. Two cases were entrusted to him
by his respective clients. In the first case [let us hereafter call it as
assault case], the accused was charged with causing grievous injury to
the victim by stabbing him in the stomach. The case of the accused
was that he is an handicapped person, with a deformity in one of his
legs. The victim, a rowdy, picked up quarrel with him and as a sequel
to it, trespassed into his house. The victim in a fit of animosity, threw
a big stone, which damaged the cycle of the accused. With an iron
spoke, he attempted to inflict injury to the eye of the accused and
when the accused ducked, the spoke, caused injury to one of the eyes
of his younger brother. His younger brother was squirming in pain. The
victim also pushed aside the aged father of the accused who fell down
on the floor. Unable to bear all these, he [accused] went inside the
kitchen of his house, brought the knife from there and stabbed the
victim in his abdomen. The victim was in hospital for about 45 days
and discharged. The accused was charged for the offence of voluntarily
causing grievous injury, punishable as per Section 326 IPC.
In the second case [let us hereafter call it as modesty case] one
R was a local functionary of a political party. He was prosecuted for the
offence of outraging modesty of a woman belonging to rival political
party. The case of R was that the case was a false one, to wreck
political vengeance and to spoil his upcoming career. He was charged
for the offence u/s. 354 IPC, that is, outraging the modesty of a

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woman. [In fact the police themselves told the Counsel unofficially that
it is a false complaint but because of pressure they have filed the
case.]
COURT HEARINGS: Both the cases were tried before a Judge N
in the first instance. The cases were going on simultaneously on
various dates. The defence in both the cases were unfolded through
the examination of witnesses. In fact Judge N at one of the hearing in
the assault case, commented that the accused should not have
exceeded his right of private defence. This gave a reasonable
indication that the Judge is inclined to convict N, though he may be
lenient in the sentence.
During the course of the examination of the complainant lady
and the eye witnesses in the modesty case, Judge N made a comment
that these days to settle political scores vague things happen. This
gave an indication that Judge N was not ready to believe the modesty
case charge.
Judge N was so cordial and affable to everyone, that no one
took such comments in a serious way. At a time when trial was nearing
completion, Judge N got promotion and was transferred. Judge A came
to his place and the trial in both the cases proceeded before him.
FINDING AND JUDGMENT: - A few more formal witnesses and
investigation police officers were examined thereafter before Judge A
and the trial came to an end. The Judge concluded the assault case
first and posted it for judgment. On the date of judgment, the
Investigating Police officer, as a precaution brought several policemen
for escorting the accused to jail, as he was sure that in the light of the
private defence plea being taken, the Judge is sure to convict the
accused as having exceeded the right. The Judge called the accused,
Public Prosecutor, Police Officer and the author who appeared for the
accused inside his Chambers at about 5 PM. He told the accused why
he should be so temperamental, advised him not to do things with
anger, consider his family and his career, etc and ultimately cautioning
him not to indulge in such acts in future, acquitted him of the charges
upholding his right of private defence. The Police Officer was
flabbergasted.

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Some days after, the trial in the modesty case concluded and
was ripe for judgment. The Judge on the date of judgment called the
accused and this author as his advocate inside his Chambers at 3 PM
and said that he has found R guilty of the charge and sentencing him
to 3 months Rigorous Imprisonment. The Judge said that he will only
view offences against woman seriously. [The author requested the
Judge to give the accused at least 3months and one day as it will
enable him to file an appeal, thereby enabling him to get the sentence
suspended to facilitate the release of the accused on bail by the trial
Court itself. The author then was under the impression that the
provision in S. 389 CrPC enabling this course is available only if the
sentence awarded enables the accused to file Appeal. In case of 3
months or less sentence, no appeal lies and only revision lies as per
law. On explaining this position the Judge A said “Alright 6 months RI
then”. The request of the author that even one day above 3 months
will serve the purpose was of no avail. The Judge then suspended the
6 months RI on application of the accused and released him on bail, to
enable him to prefer appeal.]
[It is of ancillary importance that even this conviction was reversed by
the appellate court when the author took the case on appeal and R was
ultimately relieved of the charges.]
CONCLUSIONS: - The author leaves it to the reader to
conclude as to where the wrong actually lies. Is the decision making
process under the present judicial process, faulty somewhere? In
analyzing the standard as to proof, the law uses the yardstick of a
prudent or reasonable man. Can there be two different prudent men
with two divergent views on the same matter functioning as Judges?
May be. But then when the liberty of a person is involved, is this
standard not questionable?
__________

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EPISODE - 13
INTEGRITY THE HALLMARK
INTRODUCTION: - Magistrate ‘S’ was known for his
uprighteousness and honesty. Anyone could freely meet him while at his
Chambers. In case it is tea time, the visitor including the advocates will
get tea at the expense of ‘S’. No one could take advantage of him. In case
, any one starts speaking about the pending case in that court, he will
deftly avoid the conversation and his nature and conduct will force the
visitor or the advocate to leave his chambers. However it all done with a
smile!. The author remembers one of the episodes connecting with this
‘S’.
INCIDENT:- There was a criminal complaint filed against a VVIP
and pending with ‘S’. The question was whether a sanction was required
before taking the case on file or such sanction is not required. The
advocate who filed the criminal complaint , as usual went to his Chambers
and being tea time, ‘S’ offered tea. At that time ‘S’ himself asked the
advocate as to what he expected ‘S’ would do in the case.
The advocate honestly replied that as a friend of ‘S’ he would prefer
that the case be not taken on file till sanction was obtained. To this ‘S’
stated that such stand would be against the client of the advocate. The
advocate once again stated that as a friend that was his course though it
may be against his own client. To this ‘S’ asked the advocate as to what
will be his answer as an advocate ? To this the advocate replied “Sir.
Have an open mind and come to the Court, hear my arguments and then
decide for yourself either way.” ‘S’ smiled and promised to do just that.
ORDER :- The advocate argued the matter at length, convincing ‘S’
with citations and points of law that sanction is not required. ‘S’ shot out
his legal doubts and the advocate answered and cleared his doubts. At the
end in the open court, ‘S’ dictated his order holding that sanction is not
required and that he was convinced by the arguments of the advocate.
CONCLUSION:- This episode will demonstrate as to how the
Bench and the Bar has to maintain ethics. Judges are humans and
interaction with public in certain cases becomes inevitable. It would be
advisable for them not to be carried away by having preconceived
opinions but be open minded. So also the advocates should restrain
themselves in the conduct of their profession. But, alas instances as above
are rare !!!
__________

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EPISODE - 14
PARTICIPATIVE JUDGE:
INTRODUCTION:- A study of our procedural laws on the
criminal trial side like Indian Evidence Act, Criminal Procedure Code
etc., raises one important question. What is the role of the trial judge.
Is he to just mechanically record the evidence or he has to be
participative ? There cannot be any doubt on this. The trial Judge is
not an evidence recording machine. He has to be observing,
participative, control and manage the entire trial process in the course
thereof. At the same time he should not be an intervention Judge. The
trial Judge has to delicately balance all this . A Judge gets this by
experience over the years. A well seasoned Judge will so effectively
manage these aspects, as to see the wheel of justice smoothly moving.
On the other hand an ill balanced Judge may mismanage things,
leading to parallel proceedings like revision, transfer applications,
complaints against him etc. One such instance where the Judge rightly
stepped in is recollected here.
FACTS OF THE CASE:- A police constable who was assigned
the job of police jeep driver was prosecuted by the police department
itself for criminal breach of trust, falsification of accounts etc. The case
was investigated by an officer of the rank of Dy. Superintendent of
Police and charge sheet was filed against the constable. The constable
claimed that he was innocent and the trial process went on for some
months ultimately resulting in the DSP who laid the case being
examined as the last witness for the prosecution.
During the cross examination, by reference to a register filed as
prosecution exhibit, the DSP was asked by the defence counsel a
question. The question was as to what is the figure mentioned against
a particular date in the exhibit. This was crucial as the figure
mentioned in the exhibit was favourable to the defence but the police
officer wanted to be evasive. The cross examination went on like this :
Question:- Sir, please see this exhibit and the entry pertaining to this
particular date. What is the figure mentioned therein.
Answer by DSP :- I am not able to read right now.
Question :- Can you tell why ?

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Answer :- I have not brought my spectacles.

Question:- Can you use this spectacle ? [The counsel gave a spectacle
which is generally a reading glass with nominal power].
Answer :- No . I don’t want this. I Can’t read with this.
[ At this juncture the Judge watching this line of cross
examination, stepped in and asked the counsel as to what he wants
from the witness. The counsel explained that the witness is
deliberately refusing to see the exhibit and tell the figure as it is not
favourable to the prosecution. The Judge then asked the witness [DSP]
as to whether he can see the Exhibit and tell. The DSP said he is
unable to do so.]
[ At this the Judge asked for the exhibit and saw the entry
pointed out to him by the Counsel for defence. He then promptly asked
the typist to open a bracket in the deposition recorded so far and
dictated as follows ]
The defence counsel wanted the witness to see the entry in the
Exhibit and tell the figure for which the witness exhibited his inability.
This Court has seen the exhibit and the figure found there in is……..
[ He asked the typist to close the bracket and asked the Counsel
to proceed further.]
CONCLUSION:- Usually in such cases many of the Judges
would have asked the Counsel to suggest to the witness that though
he is able to see the figure as ….., he is refusing to do so as it is
unfavourable to the prosecution. This may not be always correct as
there are certain judicial pronouncements to the effect that
suggestions are not evidence by themselves. On the other hand when
the Court sees the document and records the facts found therein as in
the present case, they are evidence. There are several instances like
the above which usually crop up in the trial proceedings and an
efficient management of the above will ensure a proper trial. The
Judge in the present case just did that as a truly participative Judge.
__________

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EPISODE – 15
THE SOFT CORNER:
INTRODUCTION:- The prosecutors in subordinate courts in
Tamil Nadu are two fold. One set of prosecutors , namely Assistant
Public Prosecutors are full time Govt. Servants. In Districts for
conducting cases in Sessions and additional Sessions Courts, Special
Courts, Public Prosecutors are appointed directly from the Bar. Their
tenure is for a fixed period. [Usually it is till the particular political
party which heads the Government is in office.] Some Judges, not all,
usually have a soft approach while dealing with such Prosecutors.
Sometimes the accused and defence counsel feel the Judge is inclined
towards the prosecution more favourably. It is to highlight this aspect
one incident is narrated in the following episode .
FACTS:- The husband , A, and his family members were
prosecuted for the offence of dowry harassment, dowry death and
cruelty to the wife of A. The husband and most of the family members
who were arrayed as accused were highly qualified and well placed in
society. The case of the husband is that they are harassed by the
family members of his wife , though his wife has died not because of
cruelty or harassment. The evidence adduced by the prosecution also
did not fare well in the cross examination and hence the Counsel for A
and A were confident of getting a judgment of acquittal. The case
reached the stage of arguments.
HAPPENINGS IN COURT:- The case was tried by a Senior
District & Sessions Judge as Judge of Mahila Court. The prosecution
was taking adjournments to argue, even though the defence was ready
and expressing willingness to argue. The Judge, however as per the
request of the prosecution, permitted some adjournments. On a
particular day, he told the prosecution and the defence sternly in the
Court that this is the last adjournment and that at the adjourned date
both should argue without fail, or else he will post the case for
judgment on that date. The counsel for A , submitted that he was
always ready and willing to argue the case and that if permitted , he

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will argue then itself. The Judge told “Both of you argue positively at
the next hearing without fail, as I want to hear the arguments of both
sides on the same day simultaneously.”
On the adjourned date, the case was called. The defence
counsel said he was ready to argue. It is the convention that the side
which has closed its evidence has to commence the argument. Hence
in that case, the Prosecutor had to commence the case as the accused
had already reported that he does not wish to adduce any evidence.
The Judge asked the Public Prosecutor to commence arguments for the
prosecution. The lady Public Prosecutor [Political appointee] submitted
to the Court that let the defence counsel argue first and that she will
reply on the same day. The Judge readily granted the request and
asked the defence counsel to argue. The defence counsel argued for
about one hour and put forth all his points of facts and law. After he
finished, the Judge asked the PP to reply. The PP requested the Court
to adjourn the case stating that she will reply at the next hearing. The
Judge without a murmur, readily adjourned the case.
Outside the court hall, A and his family members asked the
Counsel as to why the Judge has acted so, particularly when he had
given a stern warning on the previous hearing to both sides to argue
today. They also had a doubt that the Judge may be biased about their
case. They asked their counsel as to why he had not protested to this.
The Counsel took pains to convince them not to be worried and
stated, probably the Judge would have after hearing our [defence]
arguments , thought of giving a reasonable opportunity to the PP. He
also advised that it is not advisable to question the wisdom of the
Court in such matters as it would be counter productive. Though A and
his family were not convinced about this assurance, they left quietly.
The subsequent happenings even bewildered the Counsel for A.
The lady PP took three more hearings to argue . Out of the three
hearings, she was on leave on two occasions and asked her Junior [ It
is not known as to whether the PP can have a Junior of her own.
Courts have allowed such practice when the PP is a political appointee,

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it permits his/her junior even to conduct cases!!!] to pray for

adjournments on the said two occasions. The Judge patiently gave the
dates as desired by the PP without even showing or expressing
discontent. Ultimately the PP argued and the judgment was
pronounced. A and his family members were found not guilty of the
charges and were acquitted.
CONCLUSION:- Though the defence has no grievance to
grumble about in reference to the judgment, still is it not a duty of the
Judge to conduct himself in such manner as to leave no room for doubt
? When he has issued stern directions when it came to the defence,
why he was having a soft approach towards the prosecution ? There
appears to be no remedy for the defence counsels in such cases. Their
client’s interest being of paramount importance , they cannot protest ,
which may jeoparadise the interest of their clients. Probably trial side
defence counsels must learn to swallow this type of soft approach in
the best interest of their clients !!! Probably this is what is called as
court craft.
__________

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EPISODE -16
THE DELAY:
INTRODUCTION:- Our judicial system is based on the pattern
of English judicial system. The Criminal trial process is largely
regulated by the Code of Criminal Procedure 1973. This law postulates
five different kinds of trials. They are Trial before a Court of Sessions,
Trial of warrant cases on a police report, Trial of warrant cases filed on
the basis of a private complaint, Trial of summons cases and Summary
trial cases. Over the years it has been largely demonstrated by
practice that these type of trials add only to further delays in the
culmination of a criminal case. Though several factors are attributed to
the delay in disposal of cases and piling up of arrears, some causes
are definitely identifiable and can be resolved by simple measures.
Unfortunately this is unnoticed by both the law makers and the law
enforcers. The following episode demonstrates as to how a criminal
case which could have been disposed off in just a period of months,
dragged on for almost two decades.
FACTS:- One RM was the director of the Chennai Snake Park
Trust [for brevity called as SPT] which housed various snakes, lizards
and some reptiles for public viewing as a Zoo. He had two research
associates with him in the pursuit of his research on snakes. This RM
was widely popular as a specialist in snakes and has made
appearances in TV and other media explaining about snakes and
dispelling some wrong notions about the snakes in the minds of the
public. There was some infighting amongst the trustees of SPT and
some persons who were inimical according to RM were bent upon
removing him from the post of director of the SPT. They hence made a
complaint to the Wild Life Warden with an allegation that RM and his
two associates are killing snakes and lizards of rare variety and selling
their skins, extracting venom and selling them etc.
The Chief Wild Life Warden broke open the office of RM under
the pretext of search and found many varieties of snakes and lizards
dead and stored in solutions. The warden sealed the office of RM and
filed a complaint for violations under the Wild Life Protection Act. They

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are serious offences which may result in imprisonment for several

years if the case is proved. However this is not a police case and the
case is to be tried as one of “Warrant case instituted on a private
complaint”.
THE TRIAL PROCESS: - The above case is to be conducted in
two phases. In the first phase all the evidence on behalf of the
prosecution is let in and the accused may cross examine them then or
wait. Based on such evidence, the Court may frame charges against
the accused. In the second phase, the witnesses already examined
shall be recalled for cross examination by the accused [ even if they
have cross examined earlier before charge framing, they have a
statutory right to cross examine again.]. After such cross examination,
remaining witnesses for the prosecution shall be examined. Thereafter
the accused will be generally questioned [ which in several cases is a
mere ritual by the way in which it is done in Courts]. The accused will
then have a right to examine his defence witnesses. Arguments will
thereafter be heard from both sides and judgment rendered.
In this dreary trial several impediments can be made to delay
the trial in the present system. The accused on his appearance after
receipt of summons, can ask for copies of documents and delay the
trial. Before framing of charges , on the basis of evidence let in so
far, he can ask for discharge and go for a second round by way of
revision , if unsuccessful. These are only some ways to drag the trial
and there are other ways which smart advocacy can achieve .[ The
readers may bear in mind that filing of frivolous petitions is wrong but
finding out legal means to stall the progress of the trial is permissible
because the judicial process itself allows such way in many cases].
In the case pertaining to RM all the means were adopted . One
such method adopted was that during the progress of the trial in the
pre charge stage, a petition was filed by the prosecution to mark the
seized dead varieties of snakes and lizards. The prayer was that since
it will be difficult to bring them to the court, permission was sought to
visit the snake park trust and identify them there for marking. This
was strongly objected and this resulted in several hearings before the

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 EPISODES 273

petition could be decided. It was ultimately allowed and

identification/marking were done . Thereafter the case reached the
stage of framing of charges after more than a decade. It is pertinent to
point out that some of the witnesses including the main witness , the
Chief Wild Life warden was subjected to cross examination even
before framing of charges. Cross examination was conducted without
confronting them with the main material in favour of the defence. [
This it is later understood was due to the fact that the defence counsel
did not interact with RM and others about the nature of the case and
try to get the relevant information. As far as the author is concerned,
even if the advocate had such conference and got the relevant
information, he would not have placed them in the pre charge stage.
The reason is explained later.] The Charges were framed and at that
stage the defence counsel handling the case expired and hence RM and
others engaged another advocate. “R”.
THE DEFENCE: - R on taking up the brief , had a conference
with RM and others. During that meeting, R learnt from RM, that RM
was an expert and researcher in fauna [ fauna is the Zoological term
for animal kingdom], particularly reptiles like snakes etc., The Tamil
Nadu Government had issued a notification enabling him to possess
certain kinds of snakes and reptiles dead or alive for his research
purposes. R also noticed from the evidence adduced so far that other
than the charge relating to possession of dead varieties of snakes and
lizards, the prosecution was not able to adduce evidence regarding the
allegations of his selling venom, skins of animals etc. In fact such
allegations were false and the prosecution mainly banked upon his
possession of dead animals in his office room at SPT.
R hence asked RM to produce the Government notification issued to
RM. He promptly produced the same. On going through it the advocate
R noticed that the Government has mentioned the Family name of
snakes and lizards which RM is authorized to possess, either dead or
alive for his research purpose. The important aspect is that the
Taxonomy [ Study of the divisions and classification of the animal
kingdom] of snakes and lizards in the case on hand was not properly

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understood till then, by one and all. R noticed that the snakes and
lizards authorized to be possessed by RM were mentioned by their
family name. [Family is the division under which there are several
genus of snakes. Under each genus there are several species of
snakes. Hence in a particular family of snakes there may be more than
100 kinds or varieties of snakes. For instance the Indian Cobra is
known by the Zoological name “Naja Naja” . It belongs to the family
called “Elapidae”. The first Naja in the name is the genus and the
second Naja is the species. Hence the Indian Cobra Naja Naja is one of
the several varieties of cobra all over the world and they are all falling
under one family namely Elapidae .]. In the case of RM the prosecution
has not examined any Taxonomist to identify the specimen of snakes
as belonging to particular family, genus or species.
Noting the above features, R requested the Court to recall the
Chief Wild Life Warden the prime witness alone. He was cross
examined and the Government Notification in Gazette in favour of RM
was marked. R requested the Court to adjourn the matter and permit
further cross examination which was requested to be done in the
presence of the animals lying at SPT premises. The Judge readily
agreed to such examination by a spot visit to SPT and conduct of trial
at the SPT premises. This made the work easy for the Judge also. The
Judge and others visited the SPT premises and the cross examination
was over there. [ A smart lawyer on getting his hands on the
Government Order mentioned above, would not have used it at the
precharge stage. This is for the reason that if he submits them at that
stage and prays for discharge, he may not be successful as the trial
Courts always tend to lean in favour of the prosecution and refuse to
discharge considering the seriousness of the offence charged. Also the
lawyer can legally drag on the case for more hearings to charge more
fees , all in a legal and justifiable way!!!”]
CONCLUSION: - R gave a pictorial chart to the court explaining
how the animal kingdom pertaining to reptiles like snakes and lizards
are categorized. R also gave the necessary literature and convinced
the Court that in the light of the Government Order, the possession of

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 EPISODES 275

the varieties of snakes and lizards are not offensive and that the
prosecution has not understood the dimensions of the case properly .
This was accepted by the Court, resulting in benefit of doubt to RM and
others. The Court accepted the contentions and all the accused were
acquitted. It is pertinent to mention that R took only a short span from
the time he assumed the brief to finish the trial by himself readily
agreeing to curtail the procedural delays.
The State realizing the true nature of the case by now had
decided not to file an appeal against the exoneration of RM and others
from the case. It is left to the readers wisdom to conclude as to how
the delay had occurred in the above case. Is it because of the
procedural flaws, or because of the way the advocates handled the
case or the way prosecution handled the case?.
One more aspect is to be noted by the reader . A criminal side
trial lawyer cannot be rest content with only being thorough with
substantive and procedural criminal laws. He has to study, learn and
master the other fields unconnected with law as the brief handed over
to him involves an understanding of the said subject to conduct the
trial entrusted to him in the best manner. A Judge is not expected to
be thorough with everything. A Judge is expected to be neutral,
listening eagerly , understanding the facts and law involved in the case
to enable him to write a judgment. Judges are not expected to be
experts nor the same is needed. On the other hand the defence lawyer
is expected to be thorough in all fields involved in the case. He will cut
a sorry figure while cross examining an expert in the relevant field, if
he [the lawyer] fails to do his homework properly. The above case
study is an illustration of all these aspects.
__________

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EPISODE - 17
EROSION OF PUBLIC CONFIDENCE ON INDIAN JUDICIAL
STRUCTURE: AN INSIGHT
Most widely spoken and debated concept in the legal circles is
the concept and experiment of ADR [ALTERNATE DISPUTE
REDRESSAL ] mechanism. Alternate to what ? As a layman one can
very easily state that it is understood, may be wrongly also, as
alternative to the conventional judicial system prevalent in this
country. Viewed from this angle it is an implied acceptance of the fact
that the present conventional judicial dispensation mechanism is failing
or failed. May be one can also state that it is not so , but a new
innovative technique for quicker justice. Realism is otherwise. If it is
considered as an innovative technique, what is the need for such
technique? Naturally the answer is inevitable that it is an acceptance of
the reality that the conventional judicial hierarchy has disappointed the
common man in its justice delivery system.
Genuine reasons for delayed justice and arrears of cases like
increase in population, more litigations, lack of adequate number of
courts, lack of infrastructure, etc may be true. The other aspect or
dimension is lost sight of while viewing the above aspects alone. They
are higher judiciary promotes ancillary litigation, [understood by the
common litigant public as another case in higher court], not fully and
finally settling the position of law, allowing individual judges to render
verdicts according to their own whims and caprices unchecked. Has
anyone really taken up the task of finding out the path that it takes
after the case, has been instituted ? Though we speak of equal justice
to all: it is only a myth and not a reality. The case of richer and
powerful litigants takes a different turn at each level as opposed to the
case of a poor litigant. The following example , a real incident, will
establish this fact.
REAL SITUATION:- A is prosecuted for forgery and cheating of
the post office , say , by surrendering fake National Savings
Certificates and encashing them. A is a poor man driven out of
compelling circumstances to commit the fraud. He engages a junior
lawyer to defend him as he cannot afford to engage an experienced
and resourceful lawyer. The result : The lawyer may allow the case to

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 EPISODES 277

go in for trial soon and complete the examination of witnesses. It is an

open and shut case for the prosecution and hence it will end in
conviction soon. A may be convicted and sentenced to undergo
imprisonment for say 2 years with fine.
In the exact fact situation, if A is a rich person [who has
become rich due to dubious means though] , his first concern will be to
protract the trial in such a way that the longer it drags , he can be safe
and indulge in further activities whether lawful or unlawful to amass
more wealth. Hence he engages a resourceful lawyer with good
experience. The procedural laws at present allow him so much means
to drag on the trial. For instance he can raise certain grounds and file a
discharge petition before framing of charges. On dismissal of the
petition, he may file a revision in the higher courts and with his
lawyer’s standing and reputation/contacts can manage to get a stay of
the proceedings. Suppose the revision petition is dismissed, one may
think the trial is to commence. But the legal ocean of precedents, is
such that A can invoke the jurisdiction of the High Court under Section
482 CrPC to quash the proceedings itself. His contacts, his lawyers
reputation, etc are factors which may help him to further delay the
proceedings. ‘A’ may get the case itself quashed on some technical
grounds or even if he is unsuccessful there, he is really the successful
litigant since he has stalled the trial till then. Then of course there are
other ways to drag on the trial which the reader would definitely be
aware. This singular instance establishes as to how the status of A is
important. Still we say law is equal to all. Whom we are deceiving?
UNCERTAIN RATIOS- The next important factor which has
contributed to the menace expressed in this topic, is the uncertain
ratios. Some principles enunciated by higher judiciary in our country in
this regard as follows:-
(1) Precedents have lesser relevance in constitutional matters
(2) Rethinking and reconsideration is the art of intelligent living.
(3) Ratios should not be applied as Euclid theorem.
(4) One small fact here or there will make a vast difference
between the ratios.
(5). Judges should not take reported SHORT NOTES OF CASES
but read the entire text. [ Then why journals publish such texts?]

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(6). Two conflicting decisions rendered by Supreme Court by

bench of equal strength. Which one the subordinate courts to follow?
The above list is not exhaustive but only a few. The result is that in a
given situation there is an incorrect ruling giving rise to ancillary
litigations. [ Ancillary litigation is one where though the original case is
still pending in the first court, revision, quash petitions etc being filed
in higher courts.]
The following real situation will explain one such instance.
REAL SITUATION:- A criminal trial is in progress. The accused
files a petition to recall some prosecution witnesses already examined
stating that some more aspects are there to be elicited from them.
Such a petition is filed u/s.311 CrPC. The lower court after due hearing
, dismisses the petition. A criminal revision case is filed [ancillary
litigation] before the Sessions Court. Is the revision maintainable.
Legal jargons are coined to distinguish such orders as interlocutory,
intermediate or final orders. If it is held as interlocutory, then revision
is not maintainable. Some High Courts have held that it is interlocutory
but other High Courts have held that it is not interlocutory. Some
sample rulings on this confused state of things are as below:
REVISION AND FRAMING OF CHARGE – Is order of moment – Not
interlocutory- Revision will lie.
1992 CrLJ 810 A RAJASTHAN
Order dismissing petition for interim release of vehicle –
Revision will lie- On revisional order section 482 petition also will lie.
1992 CRLJ 723 RAJASTHAN
Against interlocutory order HC cannot interfere in revision.
JAGDISH PRASAD GARD VS THE CORPORATION OF CALCUTTA AND
OTHERS 1980 FAJ 162 CAL
Order passed in 311 application is interlocutory – No revision.
STATE VS INDIRAKUMARI 2003 MLJ [CRL] 852 – ALSO 2005 [1] CCR
270
[But see RAMALINGAM VS STATE 2006 I CTC 705 MAD WHERE
the same HC J HAS ALOWED REVISION AGAINST AN ORDER
DISMISSING 311 PETITION IN A TRAFFIC CASE.]
INTERLOCUTORY AND INTERMEDIATE ORDERS- DIFFERENCE

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When an order, though an interim order, decides the issues on

merits and determines the issues affecting the rights of the parties, it
cannot be an interlocutory order. In other words, any order pending
disposal of the case passed by the trial court as an interim
arrangement, which does not decide the issue, or right can certainly be
called as an interlocutory order.
Order passed u/s. 457 CrPC is deciding the right to possession
of the property – Hence intermediate order and not interlocutory
order- Revision will lie.
STATE VS RENUKADEVI 1999 CRLJ 2955 MAD.
REVISION AGAINST DISCHARGE – Petition u/s.239 CrPc filed
and a finding invited on such petition.-Hence revision lies.
PREMA VS STATE 2000 MLJ[CRL] 189 MAD.
397 AND 482 – Inherent powers of the HC are vast-However
these are circumscribed and could be invoked only on certain
principles-These powers are not a substitute for a second revision
u/s.397[3] CrPC.
RAJATHI VS [Link] 1994[4] SCALE 191
INHERENT POWERS AND REVISION – Second revision after
dismissal of first by sessions court not maintainable – Inherent powers
cannot be utilized for exercising powers expressly barred by the code .
DEEPTI VS AKHIL RAI 1995 SCC [CRL] 1020 – ALSO IV 1995 CCR 20
SC –GANESH NARAYAN VS [Link].
CONTRA 482 WILL LIE – DISITINGUISHED IN KRISHNAN VS
KRISHNAN 1997 SCC [CRL] 544 DB 3
Revision to sessions court – Second revision to HC by its
inherent powers- cannot be made.
DHARAMPAL VS RAMSHRI AIR 1993 SC 1361
When the Sessions Court or the High Court take up such
revision, it has to consider the plethora of rulings as cited above before
deciding the issue. This takes time and the purpose of delay of the trial
before lower court is achieved
__________

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EPISODE - 18
FORUM SHOPPING: A REALITY
INTRODUCTION: - Litigants and the general public often cry
about forum shopping and corruption at various levels of judiciary.
What bothers us is this. In some cases a particular case is listed
before a particular judge. For some reason the case does not reach the
stage of hearing. After the change of the judge, the case has to
necessarily come before the successor Judge in the same portfolio.
This does not happen and the case is never listed. In case the previous
Judges come bract to the portfolio or some other Judge is stated to
hear the case of such class, then this case surfaces in the list. The
reason is unknown.
In this connection let us note an instance. An article in the “THE
HINDU” dated 26.5.2007 chennai edition, under the title “Rs.2, 630
Crores bribes paid to lower judiciary: report - Delays and Corruption
lead to cynicism” was narrated to highlight the issue of corruption in
lower judiciary. Some thoughts are shared in this regard.
The article quotes two decisions as a prelude to its contentions.
First the Gujarat communal riots case and secondly the Jessical Lal
case. Probably whoever has conducted this survey and been
instrumental to the publishing of this article is either afraid to state
and face the real truth or has been guided by oblique motives in
highlighting the above two only. To buttress this point, what will be the
answer to the case ending in acquittal in TANSI land deal involving a
VIP? Though lower court has convicted, the higher court has recorded
an order of acquittal. How the cases against a Chief Minister of Tamil
Nadu during 1970s were successful dragged in Courts and ultimately
nothing came out of it. Take the case of former Prime Minister Shri
Narasimha Rao. Take the trial involving the former Chief justice of
Madras Sri. K. Veerasamy. The article states as if delay is only in
lower court and it is one of the factors for corruption and people losing
faith. In sri. K. Veerasamy case t is evident that the trial did prolong
for nearly more than two decades. The prosecution was at the behest
of the country’s premier investigation agency, the CBI. The ultimate
acquittal was also a low key affair. What would have been the pain
and loss of reputation suffered by the said person in all those cases?

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Did any media agency even whisper about the said trial till date?
Because of the long passage of time, the trial was only a formality to
be concluded. What about Bofors case? The media which gave so
much hype to the case was seeing quietly as to how the case was
dragging in the courts for years together to be ultimately forgotten.
How the case against Ministers and chief Minster keep pending in the
higher courts for years together so that ultimately it loses its sting?
One thing is certain i.e., in our country every true Indian is happy in
reading about others affairs, finding fault with others, favouring one
body against another due to various reasons like fear of opposing
openly, expecting favours by praising someone etc. The so called
research agencies are also no exceptions to this. Where the so called
Research agencies crying for reform in judiciary have gone then? One
can list our instances like this. But to what effect?
The very argument that corruption is only in lower judiciary and
not in higher judiciary is not with a sprit to cleanse the system. One
can list out doubtful order of high courts, most of which have been
reversed by the Supreme Court. One such case is the instance of Rajiv
Ranjan @ Pappu Yadav in Bihar who was granted bail by the High
Court but strongly viewed with disfavor and reveres by the Supreme
Court. Has anyone questioned as to why the High Court granted bail?
Hence if anyone is really interested to clean the system and rid
it of corruption then first thing one has to do is to approach the issue
without blaming only one quarter. One has to be open minded, broad
minded, courageous and frank to invite criticism. More so one has to
be magnanimous to accept legitimate criticism without throttling such
voice. Will that happen? Also, it is only a distant dream and one has to
be in utopian world for it to happen.
_________

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EPISODE -19
FORUM SHOPPING-II:
INTRODUCTION: The intention behind recalling several
instances of the past in this book is only with the fond hope that it may
help in eradicating these evils. Every one of us, it is hoped, will agree
that if one wants to eradicate the evil, one should first know and
acknowledge the existence of such evil. In case we cry hoarse by
saying that it is contempt or disgrace to profession etc. by narrating
such evils, we are to be aptly called as ‘HYPOCRITE”. This fact has
been highlighted in the initial episodes of this book. It is again
reiterated here for better appreciation.
ADVOCACY OR FORUM SHOPPING OR HYOPROCRICY OR WHAT?
Several instances of aberrations in the judicial system can be
pointed out. Two of such instances are highlighted here
INSTANCE - A rickshaw puller [A hereafter] was prosecuted for
the offences under sections 366 and 376 IPC. On days when he is
wanted as a helper in masonry job by a contractor, ‘A’ used to go and
work as helper as he found that it was much more lucrative than his
rickshaw pulling. ‘A’ was smart looking and well built. On one such
occasion, he was asked to work for some days as a helper in a house
under construction. In the adjacent house, there lived a couple with
their teen aged unmarried daughter. The daughter was short of 18
years, by a few months only at the time of the incident. Both her
father and mother were working and will leave their house by 8.30 am
in the morning and return only by 6 pm on all working days. The girl
was a college student. During her vacation, she was alone at house,
when she first saw A and instantly took a liking for him. [Probably the
saying that love between a man and woman has no eye, ear, logic etc
has come true.] She became friendly at first with A and developed
conversation. A was wary of this as he was well aware of the status,
caste difference, qualifications etc among them. The girl however,
persisted with her activities everyday on seeing him, inviting him for
water, coffee etc during recess at work. A first refused but the girl was
compelling him every time. In due course A started talking to the girl
little by little. During one such time, the girl expressed her love for A.
Shocked A advised her against it. She was adamant. She persuaded

REALITIES 45
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him stating that there is nothing wrong in it as she liked him and that
there is no strong reason for A not to like her. A however, was
constantly advising her against this and tried to convince her to shed
off such thoughts.
The girl started pestering A that they should marry. A initially
refused flatly but she started pleading, coxing etc over the days. A
stated that she is still a minor and she should not talk of such things at
that stage. The girl retaliated and tried to persuade A by stating that
she was having sufficient maturity to decide such things. Over the
period her insistence and persuasion became more and more. At one
point of time, she told A that if A does not accompany her to marry
her, she may take the extreme step of ending her life. Often she did
certain acts to confirm her threat and instill a fear in A that she may do
as she threatened.
One day the girl stated to A that he should wait at a nearby
temple by next morning and tie thali to her. A was totally frightened.
The girl said that if A does not turn up, he can only see her dead.
Fearing A went to the temple the next day .The girl came having
dressed nicely. A persuaded her not to take such decision or compel
him to do things like tying thali. She flatly told him that he can tie the
thali and see her alive. She will not tell anyone, but go home and wait
till she attains majority. In case A fails to heed to her words, she will
go home and end her life as no one will be at home to stop her. She
has brought a simple thali for him to tie also. Frightened, A tied thali at
the temple. He then asked her to go home as promised. She suddenly
turned the tables and flatly told him that now that she has become his
wife, he has to take her immediately to a separate residence or else
she will carry out the threat of ending her life. [Of course, being a
young man, A also would have inwardly had a desire.] Having no other
alternative and unaware of legal consequences, being not well
educated, A did not know what to do. The girl asked him to accompany
him and find out a hut at least for them to live. A tried his last chance
to convince her to go back. She said that it was enough and any more
advice, will result in her death. A had to meekly [words stated by the
girl herself during remand of A subsequently in court] accept. They

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started living in a rented hut near the house of A where he originally

lived with his parents.
On the complaint of parents of the girl, A was arrested after a
few days and produced before a Magistrate for remand for the offences
of kidnapping of minor girl and seducing her to illicit intercourse. The
allegations amounted to offences u/s. 366 and 376 IPC. The girl was
also produced. The girl narrated all the events stated above to the
Magistrate and pleaded with the Magistrate to release A so that they
can live happily. The Magistrate expressed his inability to do so and
sent A to prison. The girl was asked as to whether she is ready to go
with her natural guardian, that is, her parents present in court. She
refused to do so stating that her parents have done the wrong thing of
separating them. The Magistrate hence sent her to a Government Care
home for her to remain there. She remained there for a few days and
was set free on attaining majority.
A was released on bail after some months and faced trial for the
offences alleged against him.
A approached several advocates to defend him. They turned
him down for two reasons. One was that he does not have the capacity
to pay and the other was that he has no defence at all in view of the
decided case law of the Supreme Court in Vardarajan Vs State of
Madras. AIR. 1965. SC 942 .They, however pitied his plight. The girl,
his wife, was unable to help him financially as her parents disowned
her and she was living in the slum area in a hut which belonged to
some well wishers of A.
A having been released on bail approached an advocate [Let us
call him as N hereafter] and pleaded with him to defend A. The girl,
wife of A also accompanied A to his advocate and pleaded. The
advocate who was young and an upcoming person took up the case as
a challenge. He, however told the girl not to accompany A and see him
[N] thereafter, as she is a victim as per prosecution and defence
advocate should not converse with her. She agreed. [It is debatable as
to whether in such cases the advocate can meet the victim in the
peculiar circumstances of the case. Logic however cannot prevail in
such cases. Our courts and legal system blindly follow the law and
advocates ethics and command that such things are not allowed.]

REALITIES 45
 EPISODES 285

N was dissuaded by the advocates that he is taking up a case

which he is bound to loose 100%. Some advocates advised N to meet
good seniors and confirm this also. However N without being bogged
down by all this, made an extensive research on the law relating to
kidnapping and found that subsequent case laws of the Supreme court
[for instance Thakorelal D. Vadgama Vs State of Gujarat AIR 1973 SC
2312, had clarified as to the meaning of the word “Take or Entice”
found in the Section relating to kidnapping a minor. He understood
that if the girl narrates the truth, and questions are fielded to her
properly to elicit certain answers, he can get a favourable verdict. N
did that of course.
It is to be accepted [though with extreme pain] that in most of
the cases, fine niceties or a good defence will not weigh with a Judge.
Worse if the Judge had girl children or if any of them have eloped and
married, then he will brush aside all the defences and convict the
offender. The point is that such Judges do not show their innate bias
and the facts or events surrounding such bias. The result is that an
innocent like A will be the sufferer.
In the instant case the luck of A prevailed. The Judge who tried
the case of A was an Assistant Sessions Judge with substantial
experience as a Judge. He had lost his wife in
an incident. [There was a rumour that the Judge had something to do
with the incident] In those days there was no Section 498A IPC or
304B IPC. In fact Section 306 IPC was also not used in such cases. The
death of wife of the Judge hence passed away as a low key affair and
forgotten by everyone in due course. N gained knowledge of not only
this aspect but also that the temperament of the Judge was that he
was always a bit against womenfolk in general.
Having gained knowledge of these facts, N did not waste any
time but conducted the case without any delay on his part. He
requested the Judge to expedite the hearings as the accused was
suffering. The Judge had a soft corner for A and completed the trial
quickly, beautifully appreciated the subtle legal distinction and
acquitted A of all the charges levelled against him.

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The moot question is whether the legal defence of A won the

case or the background about the disposition of the Judge earned him
the acquittal.? OR was it both?
CONCLUSION: - Several such cases come in the process of
one’s career. In a corruption case against public servant, there were
instances when the accused public servant was convicted for taking
bribe or corruption , by a Judge who himself was corrupt. In fact some
of the Judges of that calibre who have sentenced public servants for
corruption and then sent them to jail were themselves later hauled up
and dismissed for corruption. So also some Judges were terminated for
other misdemeanors. Of course such Judges may be only a few. True.
It may be claimed that several Judges of good quality and skill are
there. Let it also be true. The question is: Whether we should open up
some forum whereby such conduct/deviations of the Judges could be
openly discussed and thrashed out at least by the role players of the
system. The above instances show that a case is won not by good
defense alone or by laying the truth before the courts and Judges. An
element of forum shopping, bias etc are definitely involved. We are not
gracious enough to accept the same. The minute some one tells
something about a Judge, hue and cry is raised. This attitude should
change. In case some one says that defence advocates are always
bad. A good, honest defense advocate should not get offensive but
should try to ask that someone, the reasons for his opinion. He should
think of taking steps to dispel the opinion of that person. Such should
be the attitude when it comes to Courts and Judges. Is it the correct
way which we follow presently? No doubt open public debate is bad as
instead of facts only views will be expressed. Actual news will not be
projected. However some forum has to be created for such discussion
away from the media glare to strengthen the system. It is the need of
the hour. Else forum shopping, bias and other evils will continue to rule
the roost.
__________

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 EPISODES 287

EPISODE - 20
FORUM SHOPPING –III:
INTRODUCTION: - The unhealthy practices narrated in the
previous chapters, happen even after several years is clear by a recent
event which happened after 23 years of the event narrated in the
previous chapter.
FACTS: - A young advocate was defending an application
moved by his opponent for cancellation of the bail granted to his client.
The youngster filed a counter contending that bail granted to his client
should not be cancelled. There was another person who also was
granted bail as co accused and whose bail was also sought to be
cancelled by the same petition. He [the co accused] did not enter his
appearance before court as he was not served.
This petition was listed along with numerous other petitions for
similar prayers before a Hon’ble Judge AA. On the particular day when
the matters were taken up, he made an observation hinting that he
was not inclined to entertain such petitions, but due to paucity of time
on that day, directed them to be posted on the next day. On the next
day, the petition which the young advocate was defending was not
listed in the cause list. The petitions of similar nature of other
advocates were however, listed. Though he made a representation to
the Hon’ble Judge, he said that the matter is to be followed up with the
office. Subsequently Hon’ble Judge AA got his portfolio transferred.
This Judge however dismissed the petitions filed for cancellation of bail
as devoid of merits.
The petition of our young advocate, now came up before Hon’ble
Judge D. The other side knew that Judge D also may not be inclined to
cancel the bail granted. Hence when the case was taken up for
hearing, the other side represented that one of the
respondent/accused could not be served. The Judge said that he will
hear the matter only when all the respondents are served. The young
advocate’s request that his arguments may be heard as he is ready
was not acceded.
CULMINATION: - The Judge D was transferred of his portfolio
and the matter was listed now before Hon’ble Judge X. Even by then

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the co accused/other respondent was not served. The young advocate

somehow got a feeling that Hon’ble Judge X may cancel the bail and
hence as soon as the matter was taken up, made a submission that
one of the respondents/accused who was granted bail was not served
and hence the Hon’ble predecessor Judge has directed service of notice
to him before taking up the petition for hearing. The young advocate
thought that there will be consistency in the views of the Hon’ble
Judges while making the above submissions. The Hon’ble Judge X said
that non service of one of the respondents/accused will not deter him
from hearing the matter. The young advocate did not have a choice
but to argue in defence of his client. The Hon’ble Judge giving reasons,
cancelled the bail granted to his client and saw to it that his client is
sent to prison.!!!
CONCLUSION: - The young advocate was unable to reconcile to
the situation. He had questions like as to why there has not been
consistency in the stand amongst the Hon’ble Judges and why their
views differ. No doubt the youngster knew the legal position that the
judicial views of each Hon’ble Judge may differ, still he expected
consistency on some basic issues, like the non service of notice on a
respondent. Equally the young advocate was thinking aloud as to
whether he should have taken some intelligent steps [one can infer
that such steps include doing dubious things also] to avoid listing of
the matter by convincing and taking appropriate steps to impress the
Court office that as per the observation of the earlier Hon’ble Judge,
the matter cannot be listed before service on the respondent?. The
young advocate was also wondering as to whether his other side
Counsel with good experience and standing at the Bar is more Court
crafty than him? Of course the young advocate was advised by his
seniors not to entertain such extra legal thoughts but to concentrate
on legal issues, though the Senior members of the Bar knew that the
feelings of the young advocate was not totally without justification. In
fact our courts have followed the rules of succession/inheritance in
such matters correctly; that is, inconsistency has been passed on
consistently from one generation of Judges to the succeeding
generation of Judges!!!
__________

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 EPISODES 289

EPISODE - 21
RESPECT ENHANCED: I
Presiding Judges/ Magistrates in courts are also human beings
but their conduct in court proceedings and their utterances will have
utmost significance. Hence extra care has to be there in conducting
themselves. Only by such conduct, they will contribute to enhancing
the image of the Court over which they preside. This kind of quality is
lacking with substantial number of judicial officers. In this chapter we
will see one such instance by which the Presiding Magistrate had
upheld the image of the court and the prestige of the institution.
In some criminal trials there will be expert evidence which will
be projected by the prosecution. [The Chapter on Expert Evidence may
be looked into by the readers.] Both the prosecutors and the defending
advocates do not take this evidence seriously. Prosecutors usually
bank upon the expert himself and they do not strain themselves to
learn the requisite field of science/art etc pertaining to which the
expert is going to depose. The Prosecutors in such cases allow the
expert to depose and the expert readily agrees, as he takes pride in
the prosecution placing such reliance on him. [On the lighter side it
can be stated that the expert is really an expert in giving evidence
[though not in his subject] as he has gained experience by deposing in
several cases.]
The stand of the prosecution being as above, the defence
advocates also do not take pains to learn the relevant subject /field.
They are usually content with the ratios of the higher courts regarding
the weightage to be given to the expert’s testimony. In fact they arm
themselves with those decisions and try to convince the court during
arguments that the expert’s evidence is not believable. In some cases
they bank upon the argument that expert evidence by itself is not
sufficient to believe the prosecution.
The attitude of the prosecution and the defence advocates being
as above, the Courts impression about such evidence is also
noteworthy. Courts usually do not expect the defence advocates to
cross examine the expert. Even in cases where the defence wants to

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cross examine the expert, some of the Presiding officers in court pass
a comment in an offhanded manner as to what is there to cross
examine the expert. In cases where the defence advocates pray for
supply of some materials based on which the expert has given opinion,
the Courts usually view such requests as an excuse to delay the
proceedings or to inconvenience the expert. Some Judges in such
cases threaten that they will recall the expert only on application by
the defence undertaking to pay batta [requisite charges] for the
expert. Nowadays there are certain Judges who quote a SC Court
ruling to the effect that chief and cross examination should take place
on the same day and case cannot be adjourned for cross examination
alone. [In spite of this ruling one can see the courts granting number
of adjournments to the prosecution for completing the chief
examination at the mere request of the prosecution without demur. Of
course the defence cannot demand such privilege stating that as per
equality principle, the defence is entitled to same number of
adjournments as the prosecution. In this process the courts fail to see
that the respect/prestige of the courts suffer a dent. People will start
thinking that courts lean in favour of the prosecution always. The SC
ruling that adjournments cannot be given for cross examination with
respect it is submitted, cannot be taken to be precedent/ratio. If so
taken then it will run counter to the Parliament mandate in the Code
allowing deferring of cross examination. Such judgments, if interpreted
as authoritative precedents, it is submitted, will be per incuriam.]
The readers will now see the attitude of the expert. Emboldened
by these attitudes of the different role players in a criminal trial, the
expert in respect of a prayer for adjournment, taking a cue from the
happenings some time state that he has to come from Delhi, Calcutta
etc and he is entitled to air travel etc. He does not readily agree for a
date stating that he has got to give evidence in other trials etc. Some
of the judges on seeing the plight of the advocate whose client cannot
afford such expenses, feel inwardly happy and joyous but outwardly
keep a neutral face. [Only few judges are like that. But then it is no
answer to say that judges are fallible like ordinary human beings. The
position and the training given to Judges should at least inculcate a

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 EPISODES 291

sense of uniformity among the judges. Courts are looked upon as

temples. If so the Deity/ God therein cannot be different. The conduct
of a Judge should be developed in such a way that one can be sure
that in any court the judge will behave in the same way. This can be
ensured only by higher courts and its judges. However if they
themselves conduct like above?]
Amidst these scenario, there are few good judges who by their
conduct of themselves and the proceedings, enhance the image of the
judiciary. This illustrious conduct is even seen at the most subordinate
level of judiciary and conversely, in most cases equally missing at the
highest level. One such subordinate judge/ first level of judiciary where
this conduct was displayed is seen below.
An accused was prosecuted for the offence of house breaking
and theft from the cash box of a school. The charge was one under
section 457 & 380 IPC. There was no direct evidence in the case. One
vital evidence was that the specimen finger print of the accused
matched with the chance print found on the box. [There were other
prints on the cash box but no scientific analysis was done to examine
them. Prosecution brushed it aside saying that they are prints of
employees working in the school. The accused has no connection with
the school and hence the Investigation Police Officer did not proceed in
any other direction.]
During investigation on the arrest of the accused, specimen
finger prints were taken from him and sent to the expert for
comparison. The expert compared them with the chance prints found
over the cash box and gave opinion that they match each other. The
Investigation Officer has only collected the report of the expert which
stated that they matched each other and that he found six points of
similarity in them to come to the conclusion. During chief examination,
the report was marked through the expert.
The advocate for the accused rose up and made a prayer that
the enlarged photographs or photographs of the prints used for
comparison have not been furnished to him along with copies furnished
to him as per Section 207 CrPC. The defense advocate had a standing

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of about only 4 or 5 years at the bar during the said period. Even
before the Presiding Judge could tell something regarding the
prayer/request of the defence advocate, the Public Prosecutor rose up
and told the court that furnishing such copies is not contemplated and
that even otherwise the defense is making such request only to delay
the proceedings. The Presiding Judge, though a fine man, made a
comment,” Mr. Counsel even if such copies are furnished, I have not
seen any defence counsel cross examining the expert. They only put
some suggestions. [The Prosecutor was a senior person with several
years of experience as a prosecutor. The Learned Presiding Officer was
also a fairly senior Magistrate.] The defense advocate because of his
young age felt offended and hurt. He however politely stated that he
would like to study and learn from such prints which may reveal any
useful information to cross examine the expert provided, the copies
are furnished to him. Though the Presiding Officer passed the above
comments, he acted judiciously. He stated to the prosecutor to give
the copies immediately. He directed the defense counsel to cross
examine the expert, next day itself. The request for at least two or
three days was sternly turned down.
The advocate obtained the copies. He rushed to the booksellers
in the city and collected two or three books on the Science of Finger
Prints and their comparison. He also purchased a magnifying lens. The
advocate spent the entire night studying the books to familiarize
himself with the subject. He also studied the photographs furnished to
him. He was able to single out 6 points of dissimilarities in the chance
and specimen prints.
Next day when the court commenced, the prosecutor asked the
advocate as to whether he is going to report no cross. The advocate
smiled and kept quiet. The case was called
and the expert entered the box nonchalantly. The cross examination
went on for two hours. The expert was grilled. He even found it
difficult to explain immediately, technical terms like “island” “fork” etc
associated with the Finger Print Science. He was forced to admit most

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of the dissimilarities found amongst the two prints. A suggestion was

finally put that his opinion was faulty and not reliable which he denied.
The heartening note was that the Presiding Officer was keenly
following and wrote the evidence in his own hand.[ During that time 40
years back, the evidence will be recorded by the Judge in his own
handwriting in subordinate court up to Sub Judge level.] The Presiding
Officer even asked to slowly spell out the technical words so that he
can record. He never interfered in the cross examination noting the
way by which it was taken forward.
During arguments, the Prosecutor in a casual way stated that 5
points of similarity is enough and that experts differ in some cases.
The Presiding Officer promptly asked the Prosecutor as to what is his
answer for the dissimilarities pointed out. He had no answer but gave
feeble reply. The case was posted for judgment. The accused was
acquitted and in the Judgment the Magistrate fully discussed the
evidence relating to the finger print!!!.]
[P.S. The approach of the Learned Magistrate changed thereafter
whenever the above said advocate appeared before him. He would
listen politely. He even used to seek clarification on some academic
doubts from this young advocate. He used to ask the advocate to work
on them and help the court. The Magistrate was hailed as one of the
best soft spoken, stern neutral Magistrate by one and all.]
__________

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EPISODE - 22
RESPECT ENHANCED - II:
The readers would have read the chapters in this book relating
to expert evidence. As already stated in the earlier chapters, the
Presiding Judge only enhances the prestige and majesty of the Court
by the conduct of himself and the proceedings. The following is one
more illustration of the same.
In a case of offence against property, a finger print expert was
cited as witness. The prosecution in this case had filed not only the
report of the expert but also the photographs of the chance and
specimen finger prints. Each of the three accused in the case were
defended by three different advocates. At the time of examination of
the expert, two of the advocates appearing in the case left it to the
third advocate amongst them to cross examine the expert witness.
The Presiding Judge was an officer who encouraged advocates
coming up with good arguments and intricate points of law. He was
eager to participate in the proceedings but without unnecessarily
interfering. The accused in that case were lucky to get such a Judge for
their case.
The advocate who was asked to cross examine, had already
studied the chance and specimen finger prints. He was surprised to see
that some basic points in comparison were not at all indicated in the
photographs or in the report of the expert. He developed a doubt as to
whether the witness had actually done any scientific investigation of
the prints or had given his finding as a matter of routine. The advocate
hence braced himself up for the challenge.
[The defense advocates as mentioned should develop skills
apart from learning the facts and points of law involved in the case. He
should to a certain extent master the field of science where an expert
has to be cross examined in connection with such science. He must be
able to foresee as to what will be the answers of the expert if he is
cornered in cross examination.] In the instant case on entertaining a
doubt that the expert would not have scientifically analysed the prints,
the advocate spent money of his own and purchased a small
magnifying glass which can be fixed to the eye of the reader to study
the photographs in a magnified form. The advocate already had a
magnifying glass of good proportion. These equipment were indicated
in all the books on the Science of Finger Prints as a requirement to

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analyze the prints. The advocates cross examining the witness should
always spring surprises and learn to corner the witnesses in an
unguarded moment. The advocate hence hid these equipments in his
robes pocket and started to cross examine the expert.
The expert was asked to first identify the center point in both
the prints because the expert has not noted the same. The witness
replied that he has not noted the center points. He was then asked as
to whether the ridges, fork, island etc are identified with regard to the
center point. The witness agreed and said yes. Thereafter the witness
was asked as to whether he can now place the chance and specimen
prints in juxtaposition before the court and point out to the court the
center point? The witness was a little baffled and he said that he
cannot now point them. Next he was asked as to what is the difficulty
in pointing them now in court. The witness stated that he required
necessary equipments.
The witness was then asked as to what is the meaning of
equipment which he referred. The witness by this time was
uncomfortable as he was not sure as to where the cross examination
was heading. To ward off any uncomfortable further questions, stated
that he required a magnifying lens for comparison. Immediately the
advocate pulled up the larger magnifying lens from one of the pockets
of his robe and gave it to the witness. He pulled up the new
sophisticated [then available] magnifier which can be fixed in the eye
and gave it to the expert. The Learned Presiding Officer smiled and
commented “Good Challenge.”. The witness now felt completely
helpless and answered as follows:-
“The lens alone is not sufficient; I require a separate room, calm
environment, a table etc for analysis.”
The Presiding Judge was now irritated and warned the witness
that he is recording his answers as deposed by him. . The Judge
recorded accordingly. The advocate stated that he can now with the
use of the equipment demonstrate the dissimilarities in the two prints.
The expert, feeling utterly helpless stated some untenable answer. His
cross examination was completed with a suggestion that he did not do
proper analysis in this case and his opinion is faulty; to this he denied.
The Judge ultimately did not place any reliance on the expert
testimony. On analysis of other evidence he acquitted all the accused.
__________

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EPISODE - 23
THE LAUDABLE SACRIFICE:
INTRODUCTION: - Various types of criminal cases come before
the courts. Most of the cases may not attract media attention nor they
will be sensitive cases. Some cases may involve VIPs or the magnitude
of criminal act may be severe. It is those cases which attract media
attention and public outcry. There is a famous saying, “Public memory
is short lived”. This is very true as seen in several instances. The sad
state of affairs is that in such cases, one fails to realize that the values
of judicial process is sacrificed. A wrong message is communicated to
the effect that the rich, wealthy and the mighty may get away with
rank perjury. The following incident is an example.
FACTS: - A powerful political person was prosecuted for various
offences including corruption. The said person’s political opponent
came to power and saw to it that this person faces a spate of criminal
cases in order to ruin the person’s political career. Several rumours
were doing the rounds to the effect that the Special Judges chosen to
try the cases against the person were handpicked at the instance of
the ruling regime. One does not know whether they are factually
correct. Happenings during the case were suggestive of those being
true.
The person [referred hereinafter as accused] being also
politically powerful and wealthy had the necessary strength and
capacity to delay the case. This was so because the accused knew
[rightly also] that unless the political scenario changes the chances of
winning the case is bleak.[ Readers may find this conflicting with the
concept of Rule of Law and that courts are impartial or that justice is
rendered without fear or favour.] In one of the cases the crucial
evidence was that of a senior bureaucrat. [Senior IAS Officer].The said
witness gave a graphic detail of the transaction and the involvement of
the main accused and others. He also deposed as to how the accused
pressurized and threatened him to make notes/sign in the files during
the relevant time. He added that he has earlier during investigation
also given a statement before the Police Officer.
STRATEGY: - The case was at a crucial stage. By now some
years had elapsed and the ruling regime was not in the good books of

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the public in general. There was a widespread opinion that in the

ensuing elections, the party headed by the main accused person will
emerge victorious. Sensing this, the accused stated to the Judge that
they do not intend to cross examine the bureaucrat witness then. They
reserved their right to recall the witness. The bureaucrat witness
stated that he is going abroad and that he will return to India only
after some months. The Judge allowed the witness to be recalled.
CRITICAL CHANGES: - The witness who has gone abroad did
not return to India as stated by him. He took several months and
hence the case was getting delayed. In the meanwhile, elections were
held and the party headed by the main accused person came out
victorious and captured power. It was widely believed that the witness
was made to stay for a longer period using the might of the accused!.
Ultimately the witness came to depose in cross examination.
THE U- TURN: - The witness to the questions in cross examination
gave a complete go by to his evidence in chief examination. He
deposed now that the notings in the files were correct and the
procedure was correctly followed. He stated categorically that none of
the accused pressurized/threatened him at any point of time. He then
added that only the police during investigation threatened him by
stating that he will also be booked as accused if he does not give
statements implicating the main accused and others. The usual
practice in such cases is that the public Prosecutor will treat the
witness as hostile and cross examine him. In this case the Prosecutor
did nothing of that sort. The evidence of the witness was allowed to
stand as it is. The Prosecutor was now a different person. This is so
because the Prosecutors in cases like this are tenure prosecutors. They
resign with the party in power losing election and going out of power.
The Party which comes to power appoints its own prosecutors. In this
case the Party headed by the main accused, came to power in
elections and appointed its Prosecutor. The irony is that, as the
Prosecutor is appointed by the then ruling party, he will definitely be
loyal to the ruling party and in this case it is the party headed by the
main accused itself.!!! Long live our democracy and the rule of law
which we have borrowed from other systems. Sad part is that the High
Court and Supreme Court knows this reality but they remain silent

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spectators generally. Some of those persons who remain silent to all

these happenings, have become Judges of higher courts or got
lucrative posts, post retirement with the blessings of the Government]
The court shortly thereafter relying upon the cross examination of the
witness and other materials, acquitted all the accused. The disturbing
feature was that the Court did not proceed against the witness for the
perjury committed by him obviously having in mind the legal issues
involved. The legal issue is that a witness on oath ought to have made
quite contradictory statements implying that one of them is false. In
addition to that the Court should be satisfied that it is expedient in
public interest to proceed for perjury. In the instant case, the first
question was satisfied but obviously the Court thought on other
considerations that it is not in public interest to proceed. [The trial
Judge used his wisdom by using the unruly horse namely “Public
Interest”. It is high time that we realize that it is not public interest but
political interest.]
CONCLUSION: - Two questions which would cross one’s mind
is as follows:-
(20). Why the Prosecutor failed in his duty to treat the witness
hostile and cross examine him when he resiled from his chief
examination?
(21). Why the Court allowed the matters to rest when there was
a clear perjury committed by the witness?
The inference is irresistible. If you are well connected and
powerful, you can achieve results from anyone- the judicial process is
no exception to this. Then the persons who sailed with them in the said
process will also get suitably rewarded. [It is better to leave the
matters to rest there.] Only such persons are respected always in our
democracy
__________

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EPISODE – 24
BLACKMAIL LITIGATION AND EXTORTED SETTLEMENTS:
INTRODUCTION: - Every newspaper and media were aplenty
with news of sexual assault and unwelcome sexual advances by men in
public life. A prominent media personality was booked on criminal
charges pressed by his own colleague journalist and landed ultimately
in jail. A retired Supreme Court Judge was sought to be indicted for
unwelcome sexual conduct by an in house enquiry body comprising
three Sitting Supreme Court Judges. Demands were being made for a
regular police case against the indicted Judge. All these developments
coincided with recent legislations like the Prevention of Children from
Sexual Offences Act 2012, amendments to the Indian Penal Code and
the Bill on Prevention of Sexual Harassment to Women in Work Places.
APPREHENSIONS: - The news item has triggered certain
thoughts. Leave alone the cases above referred to. The recent
legislations contain certain provisions which are draconian in nature.
Particularly certain provisions stating that an accused shall be
presumed to be guilty until the contrary is proved and that the
culpable mental state of the accused shall be presumed and such a
presumption can be dislodged not by a mere preponderance of
probabilities but by proof beyond reasonable doubt.
The law makers have taken note of prevailing menace of sexual
harassment but the real dimensions are missed. The following small
example will demonstrate this:
A woman is stranded on the high road during night hours due to
her vehicle having suffered a break down. Three persons X, Y and Z
who are basically good people happen to pass by her and in spite of
her waving hands for help do not stop. This is due to a fear that if they
stop to help but the woman happens to be a con woman, she can
always turn the tables and accuse the person of sexually assaulting her
or for passing unwelcome sexual words. These common man run away
from the scene out of an innate fear of the laws being misused. [One
cannot dispute such situation. There are several cases where a victim
of hit and run in a vehicle accident is not helped by other motorists
due to the fear that the police may later on fix them as responsible for
the accident itself.] The fourth person one S a bad element stops and

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in the guise of helping her, abducts her and violates her body. The
innocent lady suffers in spite of stringent laws in existence.
The incident can be looked at in another angle. Suppose the
lady is a con woman and one of the passers by, X or Y or Z stops to
help. He may land in trouble later on by being accused of unwelcome
behavior towards the woman. In such event to save honour, the
passerby has to enter into an extorted settlement out of court to
escape blackmail litigation.
The pertinent question to ask in such a case is why the
concerned person is not able to fearlessly face the police investigation
or the subsequent trial?
OUR SYSTEM AND LAWS: - An innocent who is faced with
such a situation first undergoes the ignominy of arrest. The question is
why the police arrest? In majority of the cases it is only to appease the
public opinion such arrest is made. No one questions the police officer
as to why the need for the arrest of the accused in such cases. Many
years after when the trial ends and in case the accused is acquitted,
even then court does not comment of its own accord as to the
necessity of arrest. By that time the accused becomes wary of starting
another litigation for the malicious prosecution.
Secondly, the trial process is dreary and protracted. The courts
only censure the accused in case he adopts dilatory tactics but not the
prosecution. In many cases the prosecution drags its feet in bringing
witnesses. The accused fails to get even a moral satisfaction ultimately
even if he succeeds. The case may end up in his favour but court does
not even observe in the judgment that the accused was not protracting
but the prosecution has done so. Had there been such observation, at
least the accused would have had some moral satisfaction.
Thirdly, the media publicity and the hype. The electronic media
and the newspapers instead of giving news only, give their views.
Sometimes they even go to the extent of analyzing the situation,
circumstances and the evidence and thus create an impression in the
minds of the viewers that the offence is proved. The newspapers brand
the person facing the trial, with a prefix to his name, thus adding to his
agony.

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Fourthly, the trial Courts, in several cases misconstrues the

extent of the presumption contemplated under the law. Inevitably they
tend to lean in favour of the prosecution. They tend to hold that the
version of the prosecutrix alone is sufficient and convict the person
concerned. The appellate court reverses the finding that an overall
reading of the evidence tends to show that the version of the
prosecutrix does not inspire confidence to act upon. By this time the
accused becomes a wreck practically and leaves the matter at that,
utterly shattered.
NEED OF THE HOUR: - The above are only some instances and
not exhaustive. Even if some of the accused suffer as narrated above,
law cannot give an excuse that it is only marginal. A real offender
getting out of the clutches of law is no doubt a bad precedent and the
system can be faulted for this. Much grave is the situation where the
innocent is convicted or dragged into a lengthy criminal trial for no
fault of his. This may cause a scar on the system itself and there can
be no excuse to it.
Turning back to the draconian laws passed at present, the above fears
loom large. No doubt the legislation has tightened the grip to infuse
fear. But fear in whom? We have the maladies narrated above in the
previous part of this episode still lingering. None of the legislations say
that the court is called upon to give a verdict which may be a relief to
an innocent person accused of an offence. The laws while taking much
care about a victim of sexual assault which is no doubt laudable, has
not taken equal care about the plight of an innocent who is falsely
accused of such crime.
The above backdrop and the system as of now existing will definitely
lead to only one course in majority of the cases.,
BLACKMAIL LITIGATION AND EXTORTED SETTLEMENTS OUT OF
COURT.
__________

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302 EPISODES

EPISODE – 25
SMART ADVOCACY:
INTRODUCTION: - In our Courts the role of the defence
advocate is of utmost importance. Certain persons, including Judges do
not appreciate good and efficient advocates. These persons think that
defence advocates usually utter falsehood to save their client for the
fee they receive. While in certain cases, it may be true, a generalized
statement of this nature may not be correct. A defence advocate apart
from the professional competition from his colleagues, sometime face
hostile court atmosphere. It is with these tough challenges, an
upcoming advocate needs to survive. In prosecutions, though it is
often said that prosecution is to be fair, rarely it is done or exhibited.
Most of the time, they withhold evidence and an intelligent defence
advocate has to foresee this and act smart. The following episode
demonstrates this.
INCIDENT: - A temporary bus driver of a transport corporation
was asked to drive and operate a mini bus on a shuttle service from
Airport. The bus driver while coming towards a signal junction, applied
brakes only to realize that the brake has failed. In spite of his best
efforts, there was an accident resulting in a death and injuries to
certain pedestrians. The bus driver promptly gave a complaint to the
police station and surrendered. He was released on bail.
Coming out on bail, he went to the depot and intimated the Time
Keeper about the incident and also the fact that there was a brake
failure. On inspection, it was found that there was a mechanical defect
in the vehicle which could be remedied only by opening the brake
chamber. These aspects were noted in writing in a book maintained by
the Time Keeper at the depot in the regular course.
The next day the bus was removed by the Corporation
mechanics to the Motor Vehicle Inspector [MVI] for inspection. In due
course the bus driver was charged before a court for the rash driving,
causing death etc., under the relevant sections of law. Copies of the
charge sheets and documents were given to the driver who was the
accused in the case. The driver and his advocate were astonished to
find that the MVI on inspection of the vehicle certified that the accident
did not happen due to any mechanical defect in the vehicle!!!.

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SMARTNESS OF THE COUNSEL: - The bus driver instructed

his counsel that the MVI report is wrong and that if the book kept by
the time keeper is produced, the real truth will come out. Of course
this is easy as a petition as per S. 91 Criminal Procedure Code, [CrPC]
can be filed to summon the said document. However the said
document is not a document kept under any statutory requirement,
but only as a matter of fact and convenience by the time keeper.
Hence there were chances that the document may be either be
secreted or reported as not available/traceable.
The Counsel hence smartly advised the bus driver to approach
the Time Keeper first and manage [!!!] to get a Xerox Copy of the
entire book. It is hoped that the reader will understand the meaning of
the word ‘manage’ in the given context. The driver did the same and
handed over the Xerox Copy of the book which he obtained to his
advocate. The advocate thereafter filed the necessary application u/s.
91 CrPC to summon the document. Though the Court allowed the
same and summoned the document, for several hearings the
document was not produced. In the meanwhile the Time Keeper was
transferred and the incumbent time Keeper was instructed to go over
to the Court and inform that the document was not traceable and
hence could not be produced. This was done. On further query by the
court, the official stated that there are no likelihood of the document
being traced and produced. The advocate contended that the Court
may issue a search warrant since the Corporation is not willing to
produce the summoned document. Though it can be ordered, the court
said that it was not willing to order a search warrant as it would not be
productive. The Court directed the trial to proceed.
On the conclusion of the prosecution, the defence cited and
examined the time Keeper, who was originally in that post. On his
being shown the Xerox Copy of the book written by him, the
Prosecution objected on the ground that it was a Xerox Copy. The
Court overruled the objection since the original was summoned to be
produced but not produced and hence permitted the defence to mark
the Xerox Copy. The Xerox Copy was marked and the Time Keeper
gave evidence that before the vehicle was sent to MVI, he had noted
the brake failure and the fault was entered in the book. The Court

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hence came to the conclusion that the accident was due to the
mechanical defect, namely brake failure. The Court also found that the
defect was rectified before the inspection by the MVI. The driver was
exonerated of the charges.
The readers may appreciate the fact that the smartness of the
Counsel in first procuring the Xerox Copy got his client exonerated.
The question to ponder is this; In case the defence Counsel was not so
smart, his client would have been convicted. The prosecution which
ought to have done a fair investigation and place all materials before
the Court, would have succeeded in procuring a conviction of an
innocent through dubious means. The question is why the Courts, the
Hon’ble Judges and the Jurists etc while placing so much reliance on
the Prosecution turn a blind eye to episodes like these where there is
not only unfairness of a single individual but unfairness of the
institution? The recent trend experienced by some Judges, which are
shared in private, reveal that Judges are advised not to antagonize the
State [ including police, government and Prosecutor etc] or pass
adverse comments on them. Such advice is given due to the fact that
it may otherwise jeopardize the interest of the individual Judge.
Instances of such persons having suffered in their career are aplenty.
One such instance is where a good, honest but outspoken Judge was
not given important courts to manage, his subordinates got elevation
to the High Court and he was forced to go and pay courtesy call to
such of his juniors on their elevation. In retrospect, it is painfully felt
that probably this is what our System wants.
__________

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 EPISODES 305

EPISODE– 26
THE PROCEDURAL MALADY:
INTRODUCTION: - A small and trivial issue may sometimes be
blown out of proportion, resulting in a criminal trial spanning over
several years. In fact some prosecutions at the behest of specialized
prosecuting agencies, are drawn over a long time when the issue on
hand could have been decided within a short duration. Though several
factors are attributable to this type of malady, some of the most
disturbing factors are the over confidence of the prosecution, over
hype given to the said case, partisan investigation, over reliance on
prosecution by Judges, etc. One such instance is quoted here.
BACKGROUND:-
Corruption is a serious malady in our system. Of the several
offences relating to corruption, one is abetment, of making a public
servant accept illegal gratification. The abetment if proved, will result
in mandatory term of imprisonment and fine.
One J was running a small factory unit making spare parts for
supply to its customers, one of whom is a Government Organization. J
has bagged some tender contracts from this Government Organization.
J used to give compliments to his customers, Officers etc during new
year.
INCIDENT: - On a particular day during January month, J took
a bunch of black purses meant to be New Year compliments. After
distributing some, he gave one purse to an Official of the Government
Organization which was awarding contracts to him. He came off. After
two days, he was called by the official over phone, stating that there
was money in the purse. The official is said to have stated that J
should come and collect the purse and money, which J promised to do
on the next day. Unknown to J the official has already given a
complaint to police, who after registering a case of abetment to bribe a
public servant, has also recorded the conversation. As promised, J
went the next date and while collecting the purse with money, was
arrested by the police who were secretly monitoring the place. This
incident was also audio / video graphed according to the prosecution.

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306 EPISODES

The contention of J was that he is innocent. If he had guilty

intention, he would not have voluntarily gone the next day to collect
the purse. Moreover according to J, the purse was given by mistake to
the official as it was meant to be given to another of his customer X, to
whom he owed money. He intended to give this purse with money to
the said customer X. By mistake this purse with money was given to
the official and to his customer X he had given an empty new purse
which was meant to be given as a compliment to the official. J also
maintained that in the purse containing money was a visiting card of
the customer X and this could be cross checked. Also his customer was
ready to vouch for these facts. J narrated these facts to the police
officer, according to him.
PROJECTION OF THE CASE BY THE PROSECUTION: - The
prosecution apart from the oral evidence of witnesses, relied upon the
audio and video cassettes said to have been recorded
contemporaneously. It is a fundamental principle that such cassettes
being material evidence, the accused J is entitled to duplicate cassettes
as of right. But the prosecution has not furnished copies nor requested
the Court to provide the same to J. J was constrained to file an
application and after nearly several months got the said duplicate
cassettes. Only on playing the said video and audio cassettes, he found
that material portions were not properly video graphed nor audio
recorded. Hence what J told the arresting police officer at the time of
the recording was missing. It was a great handicap for J. He had no
other alternative but to proceed with cross examining the several
witnesses projected by the prosecution which took some years. Now
there remained only one way for J to establish his innocence. That is
by summoning and examining his customer X. Here again J was
handicapped as the prosecution has not cited X at all on the ground
that their investigation did not reveal the part of X. The fervent
appeals of J to the Court that the audio and video if properly recorded
would have clearly revealed the factum of J telling the name and
details of X at the time of his arrest itself was not considered by the
Court. The Court took the view that since trial has already started, J
has to wait for his turn when the case reaches the defence evidence
stage. Hence J had to wait for a few years before his turn came to
examine defence witness. J promptly examined X and X withstood the

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 EPISODES 307

sustained cross examination of prosecution to discredit him. Ultimately

the Court found J not guilty and exonerated him of the charges relying
upon the evidence of X.
SOME QUESTIONS TO PONDER: - J could have been cleared
of the charges, had X been examined at the earliest point of time. This
was not possible as J has to wait till the case reached the stage of
defence. In the case of J it took nearly 5 years. Suppose by that time
the witness had died or could not be found what would have been the
plight of J? Should he lose his freedom?
A suggestion may be that J can in advance take an affidavit
from X about the true facts which he may rely later on. This also is not
possible due to the fact that such practice of getting affidavit from
witness in advance has been deprecated and forbidden by judgments
of courts. The higher Courts always have a view that whatever accused
does, it is only by improper means to benefit him. Readers may refer
to the “Hostile Witness” topic and related case laws where courts
nowadays take the view that the witness turn hostile and the only
beneficiary is the accused, implying that accused always indulge in
such practices. Even if one demonstrates to the hilt the evil designs of
the prosecution in a case, Courts are soft. It is understandable because
the present scenario is one where only persons holding such views will
be rewarded. Sad State of affairs anyhow.
Hence it looks as if an accused has to count on his stars and
hope that the witness is alive and capable of giving evidence at the
proper time.
In the case of J had the prosecution been fair in getting a
contemporaneous audio and video recording done properly, it could
have demonstrated what J stated at the time of his arrest, the mistake
that has occurred, the role of X etc. Why the prosecution should have
arranged to project a defective recordings to suppress the real truth.?
The Court did not come down heavily on the prosecution for their
lapses.
SUGGESTION: - One valid suggestion considering the case of J
is that an accused should be given an option of examining his witness
at the beginning of the trial itself, if he is able to convince the Court of
the importance of such evidence. Conversely on the accused
convincing the court of the feasibility of such course, the Court itself
can examine such witness or take such evidence as Court witness.
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EPISODE - 27
THE MESSAGE COMMUNICATED:
INTRODUCTION: - We have inherited the English system of
jurisprudence. One of the principles in the said system is that if a
Judge commits wrong, it can be remedied through higher forums. In
case of misdemeanor, it has to be administratively dealt with. There
cannot be open criticism of a Judge in the conduct of his judicial
functions either by an individual or by the media. These principles are
enunciated in order to make the administration of justice free and fair
and that Judges are able to discharge their duties fearlessly. A
question of academic importance is that if a person by himself or
through media states or communicates something against a sitting
Judge with an intention to incite violence against him, is it not sheer
contempt?. Should not the higher courts take Suo motu action against
the erring individual?. What if the person who perpetrated the wrong is
a powerful personality? In case no action is initiated, what message is
communicated to the general public? The above questions are
illustrated by an happening narrated herein below.
NEWSPAPER ITEM: - In a Tamil daily ‘DINAMALAR” dated 11-
2-2013, Chennai edition a news item was reported which is the subject
matter of this episode. In Kerala there was a sensational case of a
serial rape of a ninth standard student. In connection with the said
case some 35 accused were prosecuted and convicted by the trial
court. All of them preferred appeal to the Kerala High Court and the
High Court reversed the conviction and acquitted all the accused in the
year 2015. Subsequently on further appeal to the Supreme Court, the
Kerala High Court judgment was reversed and fresh hearing was
ordered.
The Judge who heard the appeal originally in the Kerala High
Court was one Shri. B. A sting operation was said to have been done
by a private TV Channel, in which Judge B was stated to have
commented that the girl in the serial rape case was a prostitute and
that there was a consent by her in the entire episode of rape. Several
people are stated to have seen this episode. In this connection in a

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public meeting, a former Chief Minister of Kerala is stated to have

uttered that Judge B has got some secret help for saving the accused
in the case. He was further stated to have spoken that about ten
young women should hold his one cheek and slap him in the other
cheek.
Leaving aside the merits of the case, a former Chief Minister of a
State spoke in such a manner as to incite violence against a Judge of
the High Court pertaining to his judicial functions. This was also
published in the newspaper. To the knowledge of this author, no action
was initiated against the said former Chief Minister. No follow up news
also were published in the dailies.
VIEWS: Was the incident allowed to rest because the person
who incited violence was a powerful politician and a State leader? Or
was it felt that the said Ex CM with his background may get support
not only from within India but also from abroad? Does it mean that if
powerful persons commit contempt of Court, the Courts will turn a
blind eye? Is the adage that law is equal to all and that the long arm of
law will reach anyone are all just sayings to only discipline ordinary
citizens and not powerful citizens? It is to be taken [in a lighter vein]
that the long arm of law at times gets fractured/paralysed during such
happenings? [OR] Does our entire judicial system thought that the
utterances of the ex CM was correct and that the concerned Judge
deserved such a treatment? The readers are left to ponder on these
questions.
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EPISODE – 28
HASTY JUDGE’S PREDICAMENT:
INTRODUCTION: - Judges do sometimes assume or prejudge
issues, not substantiated by any material for such assumption. Instead
of patiently listening and taking decision, which is the required hall
mark of a Judge, these type of Judges hastily act and put spokes in the
smooth functioning of the Decision making process. One such event
happened as narrated below, when the Judge having acted hastily, did
not know how to undo the mistake he has done, while at the same
time apprehensive that he may commit further mistakes, if he tries
anything further..
FACTS: - A senior Sub Judge was trying a white collar offence of
fraud against an accused. A Manager of a Bank from Bombay was
summoned as the first witness through whom several documents were
marked. The Public Prosecutor inadvertently marked certain
documents which were not listed in the final report of the police, but
were sent to Court in a box along with the documents relied on by the
prosecution. The defence Counsel waited for the marking of documents
and made an objection that he was not furnished copies of the same
and they were not listed in the final report also. Usually in such cases,
the Judge will stop the evidence, direct the prosecution to file a
petition to include the additional documents, by giving copies of the
same to the accused. This will entail in the case being adjourned for
continuation of the witness to some other date, as the accused has to
be given an opportunity to peruse the copies of the documents
furnished to him. This is the legal procedure.
The Judge in the present case acted differently. As soon as the
defence counsel objected to the marking of documents not listed, the
Judge commented that these are delaying tactics. He stated to the
defence counsel that he will not adjourn the case stopping the
evidence in the middle. He also stated that he will eschew the portion
of the evidence relating to the documents which were not listed in the
final report but marked.
[During the relevant time of the case, computers were not in
use and evidence will be typed only manually. Hence the recorded
portion of the evidence should be bracketed and mentioned as

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eschewed or it has to be struck out by over typing asterisk over the

said portion. This was an advantage as there will be proof of the
evidence being struck off or eschewed. Now even this is not possible
as computers being used, the said portion can be deleted without a
trace!!!.] We have in the guise of advancement and improvement
paved way for dubious practice by Courts also.
The Judge in the above case, bracketed the portion of the
evidence and directed the typist to type that the bracketed portion is
eschewed. It was done. The defence counsel immediately stated to the
Court that it has no power to eschew and such power is only vested
with superior courts. He also said that he will file a petition narrating
the happenings. The Judge was upset, rose up and retired to his
Chambers. The Bench Clerk, later, on instructions from the Judge told
everyone in the Court that the Judge will sit after lunch. By the time
the Judge resumed after lunch, the defence counsel was ready with the
petition. In the said petition, the defence counsel stated the events
and submitted that his client/accused intends to challenge the order of
eschewing evidence before the Hon’ble High Court. Hence by the
petition, an adjournment of the case was prayed for. The Judge was
little upset which was visible openly. He dismissed the petition and
concluded the evidence of PW-1. He noted as “No Cross” in the
deposition and adjourned the case.
SUBSEQUENT EVENTS: - The Judge in the subsequent
hearings of the case simply adjourned the case to different dates. No
witness was examined for nearly six months till the Judge was
transferred. It was reliably learnt that the Judge has consulted some of
his colleague Judges and ascertained that he had no powers to eschew
the evidence. Hence without knowing what to do, he left the case as
such till his transfer. The defence Counsel also did not pursue the
matter in higher forum as his purpose was served. On the transfer of
this Judge, a new Judge came and asked the defence counsel about
the matter pertaining to this case. It was explained. The Judge
suggested a simple solution. He told the defence counsel, that he will
recall PW-1 without any formal petition and that the counsel can cross
examine him. It was accepted, PW-1 came and was cross examined.
The case itself got over within three months. It resulted in acquittal of
the accused of the charges.
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EPISODE - 29
EQUALITY A MYTH:
The well said concept is ‘There shall be equality before the
law and equal protection of laws’ to everyone on Indian soil. How
far this is practiced?. The present article is in respect of a news
item reported in a Tamil Daily “DINAMALAR” dated 5-10-2012 and
6-10-2012. A college going girl enroute to her sister’s house where
she was staying has suffered a harassment at the hands of a
person who later turned out to be a top ranking Forest Officer. The
girl alighted at Erode from Neyveli for boarding a bus to her sister’s
place. The Forest officer in an inebriated state according to the
newspaper reports, teased her and boarded the bus along with her.
He sat next to her and continued to harass her. At Andhiyur bus
stop, having been alerted by the girl through a SMS from her
mobile, the relatives of the girl, caught hold of the Forest Officer
and handed him over to the police. The officer however, was
promptly let off by the police without any case.
THE REPORT: - Conflicting versions emerge from the
newspaper reports. According to the Forest Officer, he was falsely
implicated as he was against some smugglers of sandalwood who
got him fixed in the episode relating to the girl. He also claimed
that the relatives of the girl were ready to compromise the issue.
The report states that the police have not registered the case since
the person was an IFS Officer! The newspaper report also states
that the Officer has gone on long leave thereafter much to the relief
of the persons who have been victimized by his action in curtailing
smuggling of sandalwood.
INFERENCES: - One thing remains certain. The Officer was
let off without any case being registered in spite of the girls
relatives and the girl having caught the officer and handed him
over to the police. In case the complaint of harassment is false, the
Officer has every right to be vindicated after due investigation and
the police have to file a case against the complainant girl for having
given a false complaint. On the other hand if the complaint of

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 EPISODES 313

harassment is true, it cannot be compromised at the police station

as the incident has happened at the public place, ie., bus stand and
bus and it is a menace against society. Why the police have failed
to act.
CONCLUSION: - Harassment of a woman in a public place is
punishable with mandatory minimum imprisonment and the offence
is non compoundable as per law. One may get a wrong signal that
if he is able to pull strings with the police, he can escape from the
clutches of the law even without a case, provided he is a high
ranking official, a politician, wealthy person etc. This instance is
one among the many, as many such instances go unreported.
Hence it may conclude that equality stated in law is available only
in theory.

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EPISODE - 30
REWARDING THE QUESTIONABLE:
In the case of public servants usually we observe that when they
come under a cloud on the accusation of having done a misconduct, they
are either suspended or dismissed or not allowed to superannuate. In the
case of our justice delivery system, the author has noted with disdain
several instances where the Judges, Police officers or law officers of the
State escape with impunity though they are guilty of misdeeds. Worse,
they are sometimes rewarded also.
CASE OF A JUDGE: - There was a Judge, whose conduct is
highlighted in this and the next episode. The Judge, M, was a senior
District Judge. In one case he was trying the offender for the offence of
murder. The Charge was one u/s. 302 IPC. After the trial was over, this
Judge convicted the offender for the charge u/s. 302 IPC. Following the
ritual of questioning on sentence [as he usually does], he recorded that
the accused pleaded for leniency. He then sentenced the offender to
rigorous imprisonment for ten years. [The punishment provided for the
offence of 302 IPC is either death or imprisonment for life and nothing
below that can be awarded.]
FOLLOW UP: - In due course the accused appealed against this
judgment. The appellate court noticed this grave error of a senior Judge,
but without any serious action, heard the appeal on merits and acquitted
accused/appellant. [It is needless to state how the Judge M would have
appreciated the evidence, when he was so careless in seeing the rule
book, that is, IPC, while awarding sentence.] Naturally the appellate court
reversed his [Link] no action was even initiated against Judge M.
The author recalls another instance. Similar error as was done by M
was alleged against another Judge. The High Court reversed the conviction
of 10 years for the offence u/s. 302 IPC ordered by the trial Judge. The
High Court also directed departmental action on the said trial Judge.
The inferences can be the following for a layman if appraised of the
above two episodes. He may say that M was influential to get away but not
the other Judge. OR he may reckon that every case, even of its own
officers is handled with different yardstick by the High Court.
One thing is certain. Both the inferences should not be true as it is
not healthy to the judicial system of a Nation.
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EPISODE - 31
REWARDING THE QUESTIONABLE:
Recording evidence in a criminal case is of vital importance. The
importance is such that generally in appeals/revisions, the higher
courts do not generally substitute their conclusion to the one arrived at
by the trial court from the evidence recorded. The trial Judge is
supposed to be a participative Judge in the trial process. The standard
of participation is that one should not interfere in examination but at
the same time ensure that the deposition is keenly watched, properly
recorded and inadmissible evidence is not allowed to be recorded. The
trial Judge in this process watches the demeanor of the deponent, so
as to reach a right opinion on the evidence adduced. It is for this
reason that appellate courts do not generally substitute their
conclusion except when the reasoning of the trial judge is perverse. In
the last episode the functioning of Judge M was narrated. This episode
also relate to the same Judge M. This Judge rose from the lower rung
of the judiciary and became one of the senior District & Sessions
Judge. He had a few months to retire when he was presiding over the
sessions of Dowry death cases.
FACTS: - The prosecution during the trial summoned one W as
its witness. As per the prior statement of this witness to the police
during investigation , he has gone to the place where the deceased
was laid on a bed after her death and he heard from the persons
assembled there that it was a not a natural death. His prior statement
did not even reveal as to from whom [by name] he heard such a
statement. Hence W was clearly a hearsay witness and could have
been dispensed with by the prosecution. The defence did not object to
his examination since, it is settled law that a witness can depart from
his prior statement to police and speak of any relevant fact. The
witness can in such circumstances be only cross examined to establish
that he is not a truthful witness.
DEPOSITION AND MANNER OF RECORDING: The witness
was asked formal questions by the prosecutor. Then he was asked to
narrate as to what he knew about the case. He stated that on that

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particular day, he saw a female body lying on a cot and that several
people were assembled there .[ The rest of the deposition as recorded
is reproduced in question and answer form for the readers
appreciation, though only the answers were recorded , and not the
questions, as is the normal practice.]
QUESTION – What did you hear there?
ANSWER: - So many people there were talking so many things.
QUESTION: - What they were talking?
ANSWER: - They were talking about several things.
[At this stage the defence counsel objected to the recording of the
answers as they were merely hearsay and not relevant to the issue on
hand. The Judge M promptly replied – I cannot do anything .What the
witness says is being recorded. You can argue later.]
The evidence was then concluded without any relevant fact being
elicited.
CONCLUSION: - Luckily for the accused, the trial did not
conclude before Judge M and he was transferred. The Judge M was
allowed to retire a few months later in spite of his functioning as above
with full honours and benefits.

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 EPISODES 317

EPISODE - 32
SELECTIVE APPLICATION OF LAWS:
INTRODUCTION: - Very often a question arise. That is,
whether our existing laws are insufficient to deal with a particular
situation or though the laws are adequate, the situation is not
effectively tackled because of the improper application of the laws.
Instances are aplenty where there is selective application of the laws
resulting in defeating its very purpose. Usually the police are primarily
responsible for this. Publication in Newspapers are an evidence of this
malady. The following episode highlights one such instance.
NEWS ITEM: - The newspaper “Dinamalar” Chennai Edition
dated 9-12-2012carried a news item as follows: - A Sub Inspector of
Police, Ramanathapuram District was given a farewell party on his
transfer. The SI in an inebriated state went thereafter to the nearby
Fishermen house and pulled the hand of a woman by name Saathayee.
He created a ruckus there. When he was questioned by one Vadivel, he
was stabbed, obviously by the SI. The news item went on to add that
the public apprehended the SI and handed him over to the Police. He
was arrested and released on his own bond.
QUESTIONS : - Leaving aside the truth or otherwise of the
incident, the first question is when there was misbehaviour of a person
towards a woman, then he has to be booked under a proper section of
law. In this case the apt section would have been S.4 of the TN
Prevention of Harassment to Women Act 1988. [TN Act 1988]Had this
been done, the SI could not have been released on bail at the police
station. This is so because the offence under that section of law is non
bailable. Even if the police intends to release him by their powers
under S. 437 CrPC, the police officer so releasing, should state his
special reasons for so doing. There could not have been any special
reasons in the case of the arrested person as the special reason is
really against him, he being a member of the police force and also
drunk.!!!
In such cases, the police usually register the case also under S.
506 IPC as the same is non bailable. However if the police intends to

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318 EPISODES

save a person from being remanded, they can always register the case
under section, 341, 324,354, & 294[b] IPC. The police can tell the
gullible public that the SI was booked under four sections of law. The
people may think that the accused has been severely dealt with. But
one fact which is unknown to them is that all the four sections of law
are bailable.!!!
LEGAL POSITION: - A woman whose modesty is outraged,
may make her assailant answerable either u/s. 354 IPC or S. 4 of the
TN Act 1988. The TN Act makes the offence non bailable and the
punishment is also stringent, calling for a minimum punishment of jail
term. S. 354 IPC which punishes the same offence, is much lenient.
The offence is bailable and the punishment may be imprisonment or
fine [at the relevant point of time.] Though there is no yardstick for
registration of the case in such cases, still the practice is to book the
case under a stringent law. However, if the same is not done, it cannot
be legally questioned till a person is knowledgeable about the nuances
of the two sections. In a routine manner the FIR in such cases without
the bail bond goes to the jurisdiction Magistrate. The Magistrate’s
office keeps such FIRs on its file thinking that there was no arrest.
Hence the selective application of the laws is evident in such
cases. In the case of persons whom the police wants to be put behind
bars at least for certain days, they register the cases about such
incidents u/s. 448, 324, 294[b], 506IPC and S. 4 of the TN Act 1988.
The offences u/s. 506 IPC and S. 4 of TN Act are non bailable. The
Magistrate before whom the arrested person is produced does not
immediately release him on bail, but releases him after some days and
after hearing the prosecution. Thus the police can selectively apply the
laws resulting in favouritism and other corrupt practices. Though the
jurisdictional Magistrates [Most of them] are aware of all these, and is
also empowered to question it at the appropriate time, they for
reasons best known do not do so. “Reasons best known “is left to the
imagination of the readers, under a premise that they will always
imagine wrong things correctly.]

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 EPISODES 319

CONCLUSION: - The above such situations are exploited by

every role player in the system. Some of the police personnel uses
these tricks to make money or earn the goodwill of local politicians etc.
Some of the defence advocates use these to their advantage to make
more money than what normally is payable in such cases. Some of the
public prosecutors get their due share in case the offences are classed
as non bailable offences. Some Court staff get quick money only if the
accused is remanded and released on bail through Court. Some of the
Presiding Officers are also not an exception as they also are parties to
such instances for their own considerations.
It is disheartening to note that some Presiding Officers express
views stating that it is their policy to release the accused only after one
week or 10 days in case the offence is one u/s. 506 IPC. Again some
Officers declare that they will only dismiss the bail application if it is a
case of pick pocketing [u/s. 379 IPC]. Bar does not stand up and
question these, obviously for two reasons. One they don’s want to
antagonize the Presiding Officer. Second it is beneficial to them many
a time. The Public Prosecutor on their part either do not question the
Police Officers or even if they have a tendency to question, they are
suitably tempered by their Superiors/ Police Officers themselves.
Ultimately they fall in line as a prudent man!!!.
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320 EPISODES

EPISODE - 33
DEMOCRACY OR DEMO-CRAZY- AN INTROSPECTION
This Article is written in response to the news item in the Press
Relating to the Comments of the Hon'ble Supreme Court regarding the
deployment of Para- Military forces to provide Security to Madras High
Court. It is learnt that the Supreme Court has observed that if this also
proved insufficient ([Link] Security Cover) then other forces may be
called (understood as reference to Military?) The Events and the news
item is no doubt very disturbing to a person who nurtures great
respect to our democracy. One may, however truly and conscientiously
introspect as to why this situation has come to pass. In the past the
following things went unnoticed or deliberately not noticed by our
Hon'ble Judges, viz:
Pandals were erected inside High Court Campus to celebrate the
birthdays of Political Leaders.
Sweets were distributed on such occasions, followed by slogan
shouting eulogising such leaders.
Some of such leaders were during their days preaching
communalism which was directly/indirectly allowed to be propagated
inside the campus.
Strikes/Boycotts were held, where a few advocates with muscle
power and mouth power (shouting level) silenced majority of right
thinking advocates.
These minority advocates went around court halls shouting
slogans and Judges quietly recused themselves, ignoring it.
Though it is said that advocates should fight cases boldly (which
they can only if they don't owe loyalty to any political outfit) a good
chunk of advocates are polarized due to political affiliations. This is
evidenced in their silent non-participation when another group
sponsors court boycott.
Courts did not have the courage to issue directions to ban
boycott totally, emboldening and encouraging the minority group of

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advocates, thereby indirectly putting the majority advocates who are

good, to untold sufferings.
Courts were dead silent on agitations done and gathering inside
the campus when a sensitive political issue had arisen.
Advocates with political affiliations are considered for
appointments to posts like public prosecutors, government pleaders
etc. It paves the way for their ultimate elevation to the Bench. Thus
courts indirectly recognize political attachments encouraging the small
group of advocates to take political stand on every issue.
I have highlighted only a few of the instances for us to
reminisce. These are the factors which has deteriorated the standards
in advocate profession. An advocate who practices with lofty ideals is
not able to survive and scale to heights whereas an advocate with
political attachments and bereft of ideals, thrives and rises in career.
Who has to be blamed for all these. The answer everyone knows but
hesitant to answer. Let us really think over and act. Else ours will not
be democracy but it will become demons-crazy, or demo-crazy [Crazy
demonstrations]
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EPISODE - 34
ACCESS TO COURTS:
The readers at the outset may note that this topic is connected
to ‘OPEN COURT/LOCKED GATE “topic and “TRYST WITH DANGER
IMMINENT” topic under the heading ‘FLAWS”.
Nowadays there is lot of security in Courts. Policemen in
uniform, stop everyone, even advocates many a time, get their details
and permit them only thereafter. The public are allowed only after
issuing a pass to them. The control of security system is fully given to
the police forces or police forces co ordinate with the special security
forces posted at the entrance of the gates to courts. One should never
forget that a true policemen is loyal only to his department and will
dodge the law at the first opportunity, if need be for that purpose.
Persons in power, that is ministers, are basically politicians. We
deceive ourselves by thinking and saying that once a person becomes
a Minister or Chief Minister, he/she will act as a Minister beyond
political compulsions. In this scenario court is the only place where
their power could not and should not be allowed to wield. Allowing
policemen who are loyal to their department and in turn to the
Government which control the police department, is an unsavoury
situation and has proven so as stated in earlier connected episodes
mentioned at the beginning.
A real incident on this point is narrated below.
Some years ago, the Chief Minister and the Chief Minister’s aide
wanted to intercept a person [let us call him N] before he surrendered
in court. N sensed the design of these persons and knowing that a case
has been registered against him, decided to surrender in court directly
instead of getting arrested by police. He had instructed his advocates
to make necessary arrangements in court for his surrender. The police
got a scent of these developments. The court complex which housed
about 7 courts has two gates. The northern side gate was near the sub
jail which was within the campus. There was another gate on the
southern side. Both the gates were to be kept open always for
unfettered access to courts by the public.

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 EPISODES 323

On that particular day, as per the orders of superior police

officers, the police officials closed completely the Northern side gate on
the ground of security. Police officials were posted there. Policemen
partially closed the southern side gate also and were monitoring it. It
was needless to state that police have no power to do this and the
Presiding Officers of the court also knowingly/unknowingly did not
question the police.
At about 11 am, a car carrying N approached the Southern side
Gate. Noticing N inside the car, the police hurriedly closed the gate,
forcing the car of N to stop outside the gate. N was asked to get down
and whisked away in a police vehicle before his advocates could rush
there. They immediately sent telegram about this atrocious act of the
police. N was taken to some destination and was produced before one
of the courts inside the same court complex in the evening showing as
if he was arrested at some other place.
Several incidents happened in connection with this. They are not
necessary to be discussed in this topic. In due course a contempt
proceeding got initiated before a Division Bench of Madras High Court
and the police officials were shown as contemnors.
It is left to the reader’s conclusions as what would have
transpired. Ultimately the Division Bench relieved the contemnors on
the ground that they over acted. Their apology was accepted. The
court did not decide as to how the police could show the arrest
elsewhere than the gate of the court premises where the arrest
actually was effectuated. There was no categorical finding that the
ingress/egress to court premises should not be in any way controlled
by police. Obviously in due course the police now start completely
monitoring and controlling the entry of litigants in courts.
The readers may ponder as to whether this could be healthier
position in the long run. The decision of the Division Bench of Madras
High Court can be referred to by readers in the reported case
RAJENDRAN &23 OTHERS CONTEMNORS 1 TO 8 VS
RESPONDENTS/POLICE OFFICERS CONTEMNORS 9 TO 24
/ADVOCATES OF SAIDAPET BAR. 1995 [2] LW [CRL] 723.
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EPISODE – 35
POLITICAL LEANINGS:
Generally it is felt that Politicians have scant respect for
advocates and process of law in general. This may be true to a great
extent. Equally the role players in the judicial process namely,
Prosecutors, advocates and Judges are also to be blamed for this
situation. It is not as if all politicians are bad always. Persons,
situations and institutional failures are the causes to be identified as
the true catalyst for politicians to be arrogant.
The following incident is an example for this. One R, V and B
were practicing jointly as advocates. Civil cases used to be handled by
V, whereas criminal cases were handled by R and B.
One K was their client. He has taken a shop on rent. The
landlord was trying to evict K from the shop. The case filed by the
landlord was weak and he knew that he may not surely win the same.
Hence the landlord approached one S, a local powerful personality
owing his allegiance to a political party which was also the ruling party
in power at that time. S assured the landlord that he will take care of
the situation and ensure that K is evicted, irrespective of the pending
civil case.
On a particular day in the evening, K went to the office of V to
discuss the case. The colleague of V, namely R and B were not in the
office at that time. Only a junior advocate and typist were in the office
at that time with V. K was discussing with V about the case.
The politician S on finding that K was not in his shop, learnt his
whereabouts and came with a few of his followers to the advocate’s
office, situated in the first floor of a nearby building. S first sent one of
his followers to fetch K downstairs. He went up and informed K curtly
that S is waiting down and that he has to come down immediately. K
who was aware of the background of S got tense and jittery. His
advocate V asked K to remain in the office for some more time, so that
he thought that S would go away.
S, after waiting for a while, became impatient and barged into
the advocate’s office. Without even paying any formal greetings to V,
the advocate, S touched the shoulders of K and menacingly uttered,

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“K, You should remember our importance always” and went down
abruptly. V, the advocate, the stenographer of V and junior advocate
of V present in the office at that time witnessed the incident. V
immediately contacted his colleague R and informed him about the
happenings.
R, requested his colleague V to move the Civil Court next day
itself for contempt against S. R asked K to come and wait in the office
next day morning by 8 AM for further action. R told his colleague V
that he will file a complaint against S at the police station and give him
proof of it to enable V to file the contempt petition.
Next day morning at 8 AM, R took K to the nearby jurisdiction
police, met the Inspector of Police, appraised him of the incident and
gave a complaint. The Inspector was hesitant to take action against S
and the hesitation was evident in that the Inspector was not even
ready to receive the complaint in the first instance. This was because
of the close proximity of S with the local ruling MLA. R told the
Inspector bluntly that he is not expecting any favours but expects the
Inspector to respect the law and act according to law. [ A police officer
in such cases, irrespective of the merits of the complaint has to
register the happenings at the station in the General Diary of the police
station according to police Acts. He should number the complaint in a
Community Service Register [CSR for short] and give a receipt with
the serial number]
On being sternly appraised, the Inspector had no other
alternative but to comply with the legal formalities and gave a CSR.
[There is still an unhealthy convention among some police
officers. The police station Inspectors of a particular assembly
constituency make a formal courtesy call , almost everyday to the
MLA’s house in the morning and greet the MLA. The Inspector
mentioned in this chapter was one such Inspector. Hence he knew that
S was close to the MLA and was hesitant to act. ]
Some of the followers of the political parties will always be
present in the police station for certain issues. The followers of S and
the MLA who were in the police station on that date went forthwith to
the MLA and appraised him about the advocate R coming personally to
the police station to lodge a complaint against S.

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The MLA knew R and his non affiliation to any political party. He
ascertained that S was at fault. Hence he called S and reprimanded
him. The MLA directed S to go and apologize to R. Having no
alternative, S went and apologized to R in the court premises as R was
in court at that time. R told him that S must only apologize to V. It was
because the attitude of S in threatening K in the presence of V is an
insult to V alone. R also told S firmly that they do not mix politics with
profession. In fact when a day comes and the party of S, being no
longer in power, is hunted for vengeance by his rival political parties, S
should only turn to Courts and advocates like them to protect him. S
agreed and told R that in fact the MLA also told him the same words
and promised to apologize to V also. S tendered his apology to V the
same day evening by meeting V at the advocate’s office.
It is worth mentioning that B, colleague of R and V though had
strong political leanings with the political party in power, did not in any
way interfere but allowed the issue to be handled legally.
Advocates will have the respect if they pursue the profession
without expecting favours from the politicians. In fact advocate R and
B have defended the MLA himself in some cases, before he became
MLA.
__________

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EPISODE - 36
THRILL:
A criminal side trial lawyer experiences more thrills in his
profession than the lawyers practising in other branches of law. He
faces challenges and gets euphoric on achieving results. A sense of
pride may sweep him when he succeeds in a sensational case. Equally
the disappointments he may face in his career will be deep and
devastating. It is difficult to be philosophical and detached at all times.
However being detached and philosophical at times, may ultimately
lead him to quickly get over the agony and become balanced. He may
feel happy when he achieves something. He should be however be
certain of one thing. Only when he wears the robe or prepares for a
case he must feel that he is an advocate. Not all times. Otherwise he
will be making things difficult for himself and he cannot blame anyone
else for this.
The personal experience of the author is shared with readers
here. About three and half decades before, the author was defending a
notorious offender [Let us call him AN] There were several cases of
rioting, murder, attempt to murder, robbery etc against AN. Some of
the cases were true and some were foisted on him to pin him down in
police records. The robbery case is one such case, so also the murder
case. AN has himself confessed to his advocate about his involvement
in the several other cases. Of course he had a justification, as per his
perception, in the commission of each such case.
This AN had two trusted aides. Let us call them X and Y. They
are actually the henchmen of AN operating in different areas. AN had
one friend S who used to help AN in his needs. AN was denied bail
because of his antecedents. There was also a talk that the then Chief
Minister of the State was also disturbed as he considered AN was a
hindrance to his political activities. AN used to be brought to court in a
chained state. Of course on return from courts, the chains will be
removed and in fact he was allowed to visit his mother and other
acquaintances during that interval. This was allowed by the police
escort personnel as a concession for AN and of course there was quid
pro quo.

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AN was approached by an Ex Minister who was facing elections

in his constituency. Like in a cinema, he wanted some disturbances to
be created prior to and during election time, so that he can win by
terrorizing his opponents. The ex Minister belonged to a political party
which was rival to the ruling Chief Minister’s Party. This fact was
unknown to the author as the advocate of AN. AN knew that his
advocate is a man of principles and will not defend him if he knows
these details since he does not like them. The author took up the case
of AN since some of the police officers also asked the author to take up
the Case of AN.
There was a hearing at a district court, in one of the case
against AN. The author returned to Chennai after attending the hearing
of the case against AN. The author was returning late night to his
home after his other works for the day, when he found a posse of
policemen intercepting and searching vehicles etc. The author on
noticing some of the police officers who were known to him stopped his
bike and enquired. The police officers smilingly asked him as to
whether he does not know that his client AN has escaped from
custody. Surprised the author enquired whether all these checks are
due to this. The police offices stated yes, adding that the superior
Police officers, have a doubt that AN may come to meet his advocate
ie., the author. It was the turn of the author to smilingly tell that AN
will not dare to come and meet him having done this thing, but they
[Police Officers] are welcome to even search or monitor his house. The
police officers said that it is not necessary as they know about the
author but then they have to obey the orders of their superiors. For
some months nothing happened.
The author was also a visiting professor in law and went to
another district in connection with his teaching. The author was staying
at the Guest House provided to him. By night fall, he went for a stroll
before retiring to bed. He noticed foot steps behind him, turned to see
AN there. He asked AN as to what he was doing there. AN apologized
to him for escaping from custody and stated that it was at the behest
of a political bigwig to help him in his election. He also stated that
elections were over and he worked [?] for the said politician. [It was
then the author recollected that the said referred person won the
election indeed, but there were lot of rioting and disturbances in the

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constituency prior to the election date.] The author did not say
anything. AN again apologized and said he has been asked to be in
hiding for some more time by the politician whose party has now
come to power . AN asked the author, as to whether he can be of any
help to the author.. The author/advocate sternly told him that he has
neither enemy nor considered anyone as his enemy. He asked AN not
to believe politicians, but to go and surrender in some remote
magistrate court first. AN promised to do that and requested the
author to continue to defend him in the pending cases. He told the
author that new cases will not be filed against him since the political
bigwig was helping him. The author stated “surrender first; I will
continue to handle the cases entrusted to me by you always. Don’t act
against the law.”
It was a thrilling experience for the author when such an
incident as above took place. He however kept AN at arms length and
did not revel in the thrill. In due course, the author successfully
defended AN in most of the cases. In some of the cases, he was
convicted but lesser sentence was given. He served the sentence and
was released.
CONCLUSION: - AN on release met the author and thanked
him. Now that all cases being over, the author advised AN to turn a
new leaf and lead a peaceful life. AN promised to do so. The author
later heard that AN has taken a liking to Christianity and was regularly
visiting church. AN organized and conducted blood donation camps.
The author was happy to note that AN has not indulged in any
wrongful activities. Some years passed by. The author’s happiness was
short lived.
AN unarmed [Now that he does not indulge in any wrongful act
and hence was not carrying arms] went for a compromise talk. One of
his enemies of yesteryear and bearing a grudge, waited so long and
took this opportunity to brutally murder him on the public road with
knives.
The saying was “one who wields a knife is bound to die due to
the same knife”. The author was pained to note that this saying once
again has come true.
__________

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330 EPISODES

EPISODE -37
QUASI JUDICIAL BODIES- PREJUDICES:
Many legal brains say that development of quasi judicial bodies,
which are also in some cases referred to as Tribunals are created for
the purpose of deciding cases under specialized branches of law and
are to be manned by Presiding Officers/Chairman/President who are
having good knowledge in the relevant field. How far it is true is a
moot question. The author personally differs from the above argument
put forth in favour of quasi judicial bodies. The other side of the coin
also need to be seen. The persons manning these bodies in very many
cases do not possess the required legal knowledge. Their bureaucratic
disposition/inherent prejudices etc i.e. negative traits for a Presiding
Judge are often lost sight of. The readers can have an insight into the
advantages and disadvantages of quasi judicial bodies by a reference
to any standard text book on the subject. [The author personally feels
that the legal profession as a whole did not stand up to fight in unison
against the development of QJ bodies due to some vested interest.
One such interest is the opening of the new floodgate of litigation in QJ
forums, which benefit the legal fraternity. This includes of course
Judges also. The other reasons are left to the surmise of the readers
as the author feels that it is not the scope of this book.]
In this article, the readers are given instances of prejudices
displayed by the Presiding Officers of such bodies.
INSTANCE -1
A particular litigation was necessitated to be filed and heard only
before a land revenue Commissioner [IAS Officer]. Being designated as
a Presiding Officer of the QJ [ Tribunal] body, the then Commissioner
of LR [Let us call him R] thought that he was equivalent to a High
Court Judge presiding over a Court and that advocates should show
him the due regard as they do to a Hon’ble High Court Judge. No
doubt, being an authority under a particular branch of Law, advocates
will give him due respect; but it is expected that he showed the same
respect and maintained decorum. [this R is officially an IAS officer
without initials. There was a rumor [a fact?] that he had a tiff with his
father and by a Gazette notification removed his initials.] On a
particular day, an advocate went at 10 AM to his office to present the

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case papers seeking a remedy for his client. The advocate went in
advocate robes. An assistant to the IAS officer took the advocate’s
visiting card and went inside to the chambers of the IAS officer, gave
him the card and told the details. The IAS officer instructed his
assistant to tell the advocate to wait. The Assistant communicated
accordingly to the advocate. The advocate waited for about one hour.
Then feeling embarrassed, the advocate asked the assistant as to why
he was made to wait and that he has other matters in court. The
Assistant said that the IAS Officer has just returned from camp duty
and is resting. The advocate waited another half an hour. Then the IAS
Officer called him through the Assistant. On entering the advocate
found the IAS Officer in a very casual dress, listening to music in a
tape recorder. There were no files or papers on his table. The advocate
while waiting outside noticed that after the Assistant first went and
told him about the advocate’s visit about one and half hours before, till
then no one was seen going to his room nor any file or papers sent.
This infuriated the advocate inwardly but he kept his cool. On entering
he greeted the IAS Officer and took a seat available before him. The
IAS Officer did not have the basic courtesy of acknowledging the
greeting nor offered a seat. The advocate sat down and presented the
papers. The IAS Officer did not look at the papers and the conversation
went on as follows:-
IAS Officer: - Yes. What is the matter?
Advocate: - It is an appeal under …… statute by which appeal is to be
before your good self.
[The facts were explained and the remedy prayed for was stated.]
IAS Officer: - Do you want me to put a board at the entrance of my
room stating that advocates shall stand and address their case?
[The advocate decided to give a befitting reply]
Advocate: - In Courts, sometimes we do sit and tell something and
courts are not sensitive or conscious of such trivial things.
[This infuriated the IAS Officer which was clear from his body
language.]
IAS Officer: - All right, what can you do if I dismiss the appeal
straightaway saying that it does not have merits.?

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332 EPISODES

Advocate: - You can do so and I will be pleased. However you can

instruct the office to furnish the copy of the order of dismissal today
itself to me?.
IAS Officer: You can take it as dismissed. I cannot instruct my office to
give you the order copy today itself.
Advocate: - You compared this forum with a court. In courts we
request for order copy on the same day and the Judges do grant such
copies on the same day by instructing the office. They are not on
formalities.
IAS Officer: - [Visibly angry and shaken but controlling them]. OK.
Anything else?
Advocate: - Nothing else.
[Advocate came out]
The IAS officer by his sheer arrogance dismissed the appeal
even without issuing notice to his department and hearing their views.
The order on the face of it disclosed this. [QJ body which is expected
to follow Natural Justice principle gave a go by to it.] If one thinks that
the IAS Officer was unaware of the procedure of “audi alterem partem”
[Natural Justice principle of hearing both sides which is inherently to
be followed by QJ bodies] it is horrible because such an incapable
person was given such an important post as head of QJ Body to decide
the rights of individuals.
The advocate however, managed to get the copy of the order
on the same day through his office. His office staff co operated since
many of them did not like the cranky officer. The advocate moved a
writ of Certiorari thereafter against the order in the High Court,
obtained interim stay and ultimately got the remedy also.
INSTANCE -2
The Workmen Compensation Act 1923 envisages that in case a
workman is injured by an accident which occurred in the course of and
out of employment resulting in death or disablement, the employer is
liable to pay compensation to him/his dependants. To a certain extent
vicarious liability concept in a slightly different form is statutorily
embedded in section 12 of the said Act. In cases where the employer
engages a contractor, then in case of any injury to a workman, the

REALITIES 45
 EPISODES 333

contractor no doubt is liable as employer. The principal employer who

has engaged the contractor, in such cases also is liable in the first
instance. He has to pay compensation to the worker though there is no
privity with him, but he can claim indemnity from his contractor later
with whom he has privity [that is bound by contract]. There is a rider
for this liability. The principal employer should be carrying on a trade
or business and for that purpose he must engage a contractor for
application of the above liability stated in Section 12 of the Act.
Coming to the instant case, a friend of the author had a house.
For digging a well in the house to be used for his personal residential
purpose, he engaged a contractor. One of the contractor’s man was
injured while digging the well. The house owner on humanitarian
grounds rendered all help including financially for the worker to meet
the situation. The worker on recovery filed a claim under the Act for
compensation against the house owner, terming him as principal
employer, and adding the contractor as a necessary party also. The
claim in such cases has to be filed before the Workmen’s
Compensation Commissioner [Let us call as WCC] and civil suit cannot
be filed. The WCC is usually an officer of the State Labour Department
to be designated as WCC. In the instant case the claim, hence was
filed before the WCC.
On receipt of the notice, the friend of the author approached the
author and asked him to fight out the case as he was named as
Principal Employer. The author having already a bitter experience in
appearing before QJ body once, declined to take up the brief. However
the friend persuaded him and he was constrained to help him. He took
up the case, preferred an application on jurisdictional aspect. That is
the house owner [termed in the claim petition] as Principal employer
was not carrying on trade or business to attract liability and the case
against him hence deserves to be dismissed at the threshold on the
ground of jurisdictional issue.
The argument in favour of QJ bodies instead of courts amongst
other aspects, is that these QJ bodies are manned by persons from the
same line of subject in which a litigation occurs and hence have the
necessary expertise to effectively handle such matters than courts. To
be precise in case the WCC which is supposed to be having necessary

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expertise, is entrusted with such cases, it may on the threshold itself

take up only cases where there appears a prima facie liability on the
respondent [person against whom claim is made]. In the instant case
the above point of argument proved to be utterly wrong. [The WCC
has not only numbered, sent notice to the house owner and also
refused to entertain the jurisdictional issue to dismiss the claim as
against the house owner at the threshold itself]. No doubt to err is
human and the QJ body is no exception to this rule. However the
attitude and expectation of such QJ bodies are very disturbing. [In fact
the legal fraternity has also to be blamed for this situation, as already
stated.]
Coming back to the case, the author ascertained that the WCC in
the instant case was recently promoted as Assistant Commissioner of
Labour [ACL] He was previously a clerk in the labour department.
There was no dress regulations for appearing before ACL and hence
the author went, clad in a decent pant and shirt. He was surprised to
see that except one or two advocates who came in casual dress like
the author, the majority of the advocates came with full advocate’s
robes [The author learnt later that the advocates knew the psychology
of the WCC who desired the advocates to come in full robes. The
advocates knew this dirty trick [Professionalism? Or Craft?] that if they
please the WCC by going in full robes, they can easily get discretionary
or other orders in their favour.
The WCC did not come to the hall where the hearing is to take
place till all the advocates assembled there. He ensured first through
his Assistant that the advocates have assembled and waiting, then
entered the hall. He was clad in ordinary pant and shirt. The persons
assembled there including the advocates rose up and greeted him by
folding hands like they do in court. [Such greeting is in tune with the
Indian culture. The same when done in court by advocates and others
on the Judge entering the court hall in his full robes is distinguishable.
The Judge also reciprocates the greetings by greeting the bar with
folded hands. The WCC just entered and took his seat without even
reciprocating the above gesture. He took up the case one by one. The
author noticed that the WCC was cordial when the advocates in their
full robes rose to address him “MY Lord” or “Your Honuor”. The

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 EPISODES 335

advocates knew very well that “My Lord” is the way to address only
the HC or SC Judges or equivalent persons. Not subordinate Judges
and definitely QJ Heads. There is also another way of seeing this. The
advocates used to address ”My Lord” implicitly conveying that they are
accustomed to it as if they invariably appear only in High Courts. It
may be true but definitely not correct.]
The turn of the author came when his matter was called. The
displeasure in the body language of the WCC suggested that that he
did not like the casual attire of the author. To add to this the author
addressed him only as “Sir”. This was enough for the WCC to be
discontented and displeased. He did not show it by words though. He
kept a stone face and queried as to what is the case? The author
explained and gave him the objection petition. The WCC even without
going through the petition stated that he cannot entertain it but fixed
the next date of hearing. [No doubt it may be argued in a highly
technical manner that the WCC had no legal power to undo what has
been done in such cases. However if the same thing occurs in courts ,
the courts courteously say that it cannot give the relief as it has no
power and will advise the advocate/litigant to approach the proper
higher court for relief.]
{Probably if the author has gone in advocate’s robes, and
addressed the WCC as “My Lord” the WCC would have acted differently
and courteously.]
The author came back, filed a writ of “Prohibition” before the
High Court to get his [client] house owner relieved from the
proceedings before the WCC. Till the disposal of the writ, stay was
obtained for the WCC proceedings and hence the author never had the
misfortune or [pleasure?] to appear before the WCC again.
INSTANCE -3
The experience of the author in appearing before QJ bodies has
made the author to decide not to appear before the QJ bodies
anymore. He confined his practice to courts. [This decision forced the
author to decline in taking many such briefs which naturally was a loss
to him financially since some of the said briefs were really highly
lucrative. Then principles and wealth do not always go together most
of the times. The author did not want to give up his principles.. Least
the author was aware that our legal system is such that irrespective of

REALITIES 45
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realities, persons have to compromise or ready to loose monetarily.

The author has no regrets on this count.] In spite of the reluctance of
the author to desist from appearing before QJ Bodies, the author was
constrained to appear one more last time before such authority
because of request which he could not refuse.
The author was the panel counsel for a statutory board relating
to cases of the Board which came up before High Court. The Chairman
of the Board was a senior IAS Officer. [The author had no reservations
in interacting with him, since the IAS officer was acting only as
Executive and not as QJ Body. Hence he interacted with him freely.
Probably there appears unpleasant thing only when IAS
Officer/bureaucrats are clothed with QJ powers elevating them to the
status of courts.]
An application came to be filed before the State Consumer
Disputes Redressal Commission [SCDRC for short] against the
chairman of the Board, seeking to punish him for non compliance of
the order of the SCDRC given earlier [before the present chairman
assumed the post of chairman of the Board]. This present incumbent
chairman is not in any way responsible as the entire case and
noncompliance was during the regime of his predecessor. No doubt the
non compliance existed even during the present chairman’s tenure and
to some extent he was also responsible for non compliance. He wanted
to place these facts before the SCDRC through the author who was one
of the Panel counsel, as already stated, though only for High Court
cases of the Board.
The author stated this position to the Chairman and also his
stand of not appearing before QJ Tribunals. The Chairman was a soft
spoken good gentleman. He prevailed upon the author to appear for
him. He stated that it is true that the author was not bound to take up
matters before SCRDC as he was entrusted only with High Court
matters. It was his [IAS Officer’s] personal request to appear for him.
The IAS Officer stated that he also felt that the other panel counsels
cannot effectively handle the issue. He further said that though the
two members of the SCDRC forming the panel are not Judges in the
strict sense, the Chairman/Presiding Person of the SCDRC is a retired
High Court Judge. Finally the Chairman said that since he was
personally sought to be punished for non compliance, he wanted the

REALITIES 45
 EPISODES 337

author to defend him. The author was constrained to relax his principle
and appear for the Chairman. The Chairman was directed to personally
appear before the SCRDC on the hearing date by the Commission.
Advocacy involves not merely reading the law, having expertise
in law etc. Advocacy is linked to success in cases. Hence something
more than preparation, [study of facts and law of the case] or
expertise is needed. There is however a border line between advocacy
subject to etiquette and fair practice as opposed to advocacy [i.e.
success] at all costs. Advocates many a time cross this fine distinction
from fair practice to success at all costs, by indulging in unfair/corrupt
practice.
An example can make the readers understand this better. An
advocate apart from studying his case facts, law etc., has to as part of
his advocacy, learn how to present the case depending on the mood of
the Judges, their nature, disposition etc. These are incidents of fair
practice / good advocacy. Gathering details like whether the Judge can
be influenced monetarily or otherwise to get favourable orders
[success] is not good advocacy or fair practice.
In the instant case while preparing for the arguments filed on
the petition against the chairman, the author simultaneously gathered
some collateral facts. He knew the Chairman of SCDRC as a Judge
already and hence to some extent knew his moods, disposition etc.
Out of the two panel members, one was a retired police officer, who
held top post in the Indian Police Service. The other panel member
was a doctor who was still practicing medicine. The author wondered
as to how these two persons can appreciate the nuances of law. They
can utmost decide the matter like a panchayat by Judging what they
feel. Anyhow the author now has to be before them to argue the case.
On the hearing date, the Chairman came to SCDRC and was
given a seat. IAS Officers always see police officers, particularly IPS
officers as only secondary to them cadre wise and it is also the real
position. Hence for the Chairman to go and stand as a party before the
IPS Officer who is placed in the pedestal of being a Judge was
embarrassing. Similarly the Police Officer will inwardly feel elated on
seeing the IAS Officer stand before him facing a proceeding where he
is in the decision making place deciding his liberty. The doctor on the

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338 EPISODES

other hand, is not concerned with these but is pleased to see a senior
IAS Officer coming before him/her as a party.
The case was called. The author rose up to argue. During his
submissions, he only looked at the Retired Judge/Chairman straight,
made his submissions and did not look at the other two members. Two
or three occasions, the police officer [Member] intercepted and posed
some questions. The author, paused then, lowered his head, listened
but while answering the queries posed, lifted his head and addressed
the Chairman only. He throughout addressed the Chairman alone as
“My Lord” by always looking up to his face only. This had the desired
result. The Judge was pleased inwardly as his body language
suggested. Equally the body language of the Police Officer [Member]
was suggestive of displeasure at this. The other panel member
[Doctor] kept the hand on the cheek throughout and was gazing
somewhere as if the proceedings had nothing to do with the said
member. The desired result came from the Chairman. He ruled that
the IAS Officer [Chairman of the Board] was relieved from the
proceedings. He was however directed to comply the order at least
now within a time frame. The Chairman promised to do it.
The much relieved chairman thanked the author but was shrewd
to ask him about his attitude shown towards the Police Officer
[Member]. He explained and the Chairman thanked him again for his
efforts.
In fact sometime later, the simmering differences between the
Presiding Judge and the Police Officer [Member] came out in the open
through newspaper clippings.]
The author thereafter never appeared before any QJ
Body/Tribunal manned by persons or having persons in them who are
not judges basically.
The concept of bias has to be understood in the correct sense.
Courts and Judges are fully competent and can analyse any subject
and give a correct verdict, if they devote their time and energy
correctly. It is not necessary to create QJ Bodies or vest bureaucrats
with powers to decide on the premise that they know the subject they
deal with in a better manner than a regular Judge. The readers are
given an actual event where this was well illustrated.

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 EPISODES 339

CASE:-Some officials along with a private person were

prosecuted for fraud under the relevant sections of IPC and Prevention
of Corruption Act. The officials are public servants. The charges were
one under Section 420, 465, 468,471 IPC r/w Section 13 of the
Prevention of Corruption Act. The case involved among other things
several complex facts relating to the subject of ‘ACCOUNTANCY’ The
advocate who appeared for the officials, took the pains to converse
with accounting experts and got inputs to cross examine the
witnesses. Of course, his client is an accountant, but to rely solely on
him may not be wise as he may not be able to help in highlighting
aspects adverse to him. The witnesses were cross examined with these
inputs and a good defence was built and established through evidence.
The prime concentration was that the acts of the accused were the
outcome of vital mistakes committed by officials at head office in the
accounting. This facilitated in an incorrect picture for the accused to
authorize payments from his office while processing which proved
wrong resulting in loss to the concerned corporation wherein the
officials were employed.
The accounting pattern/mode of the corporation was complex,
being a big corporation. The corporation of course was audited
ultimately by the Comptroller and Auditor
General of India {C&AG]. Before C&AG audit, the internal and external
auditors audited the accounts of the corporation. These audits did not
highlight the erroneous account treatments at head office for more
than a year which was as already stated, one of the major contributing
factors for the accused to err.
The case of the defence was on three main premises. One, on
the accounting aspect which involved complex questions on
accountancy which were brought out through the cross examination of
witnesses. The second, is the legal aspects of auditing the accounts.
The third, on the investigation Officer having been conscious and
aware of these aspects while embarking on the investigation of the
case.
The first aspect was strengthened by laying down the foundation
through answers of witnesses. The second aspect [Internal, External
and C&AG audits] was brought out when the corporation’s internal
auditors were examined as witnesses. The entire gamut of the

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complexities were thus laid before the Court before the examination of
the Investigation Police Officer [IO].
The IO was a man from one of the prime investigation agency in
the country. He had a track record of being a good investigator
throughout. During the course of cross examination, he was cross
examined on the various complexities of Accounting & Audit as
narrated above. To most of them he was constrained to state that he
did not know the complexities. He was then asked as to whether he
took the help of any expert in accountancy during investigation. He
answered “NO’ adding that he himself was aware of the accounting
procedures. Then he was cross examined on the intricate aspects of
accountancy pertaining to the case on hand and to most of them he
said he was not aware and that he did not know them. A suggestion
was put to him that he was biased in the investigation. The IO took
exception to the use of the word “bias” and the Judge expressed his
surprise also which was visible in his eyes. However, he did not say
anything openly. The advocate smilingly said that by bias, he meant
not personal, pecuniary or other ill motivated bias. He meant,” Bias as
to subject matter” that is a person may presume that he knows a
particular subject thoroughly though it may be incorrect”. In the
instant case, the advocate submitted, that though several complex
accounting aspects and accounting aspects linked with law particularly
in a big corporation was involved, the IO has decided to investigate
them himself without taking the assistance of any accounting expert.
This shows that the IO was biased in respect of the said subject
matter. The bias was that the IO thought he knew all the complexities
but his assumption was wrong and hence amounted to bias. The IO
relieved at this explanation, denied the suggestion posed to him earlier
regarding this aspect of bias. The Judge recorded the denial.
The Judge in his judgment discussed various aspects of
accountancy as brought out in evidence, legal aspects of accountancy
etc. He also discussed the legal position of the error in the
investigation leading to the final report being filed against the officials
erroneously. He exonerated the officials of any criminality. His
Judgment was upheld in appeal also.

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The readers may note that a Judge is fully competent to analyse

any intricate subject and aspects relating to it, though it is not related
to law pure and simple. In extreme cases, he can take the assistance
of experts in the relevant field if need be. Hence the argument that
creation of QJ bodies/Tribunals is a necessity to deal with cases of such
nature cannot be accepted. Experience has shown that lots of
questions erupt leading to filing of multiplicity of proceedings against
the QJ bodies or their procedure.
An example is the Consumer Protection Act where against the
District forum’s decision the appeal lies to State Commission. Then
appeal to National Commission is provided from the Stations
Commission’s order. Thereafter further appeal lie only to Supreme
Court as per Article 136 of the Constitution. Though the proceedings
before the High Courts are to be taken as not provided for by the
Consumer Protection Act, the flood gate of Writ Jurisdiction was
opened, saying that the Constitutional remedy cannot be excluded.
Readers may note that an appeal is a creation of Statute. It
means one should show a specific provision of a statute for preferring
an appeal. In case there is no specific provision, there is no scope for
appeal.
There is no scope to invoke Section 115 of Civil Procedure Code
to prefer a civil revision as QJ bodies are not civil courts.
Thus ordinary statutory [i.e. Acts} remedies are not possible
unless provided in the statute itself. A Constitutional remedy stands in
a different position. It is traceable to Constitution and not to any
regular statute [i.e., Act of Legislature.] Hence Writ jurisdiction can be
invoked in such cases.
Experience now show that creation of many QJ bodies/Tribunals
have only added to the case load instead of controlling them. Further
there is no proper flow stream for those cases as on one side appeal
may be preferred in some cases and in certain other cases writ
jurisdiction is invoked. Thus the case load for High Courts also gets
increased.

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It is felt that a common man/litigant will be definite if there is a

single hierarchy of courts. Any number of courts can be created
whether permanently or on temporary basis to meet the case load as
per the need. There can be steady flow of these cases from one court
to another in the hierarchy which will ensure definiteness and ultimate
ending/finality. There can be increase in the number of courts in the
hierarchy at every stage., i.e. first court, first appeal, second appeal
etc. Most of the unpleasant situations like what we have seen can be
avoided while ensuring definiteness and steady flow of justice. There is
no necessity of QJ Bodies/Tribunals manned by non Judicial members.
One cannot think of a Judge being given power to function as IAS/IPS/
Bank Officer etc., whereas those officers are elevated to the status of
Judges. An anomaly hard to digest?
__________

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EPISODE - 38
STANDARDS:
In various parts of the small endeavour in this book, the readers
are introduced to various dimensions of the profession of law, judicial
standard etc. The conduct required of a person holding high position
should be one above partisan considerations and has to be of such a
standard that others emulate them. Our country and society gives
blind, unquestionable and absolute respect towards someone who is
placed in an adorable post/position. No doubt unquestionable devotion
has to be there but not in all cases. In case a disciple devoted to his
Guru notices some shortfalls in the Guru’s conduct, the disciple on
noticing the said shortfalls [may be his opinion/assumption also which
may be wrong] he has to keep it in himself and should not question
the Guru. A Teacher has to teach everything he knows which a student
has to learn, without withholding anything. In case the teacher feels
that he must have something surprise in him to counter the student, if
he betrays him later, he is not a good teacher. The student on his part
should never even think of betraying the teacher at any point of time.
The point sought to be made is that a “standard” is expected
from every person. Suppose a person often participate in a duel to win
and show their valor or for money etc. The winner is not supposed or
expected to reveal the secret tactics he has in respect of his rivals.
There the degree of disclosure and truthfulness does not play
absolutely. On the other hand if an erstwhile contestant of a duel
decides to don the mantle of teacher then the standard requires that
he must teach all his disciples/students equally and teach them all he
knew. Fall of standards over the period is not good for the society and
the people. Apart from law which regulates conduct of people, the
attaining of standards alone will bring good to the society. In this
article, the standard in two different situations are narrated for benefit
of readers.
INSTANCE -1 A former Chief Minister of a State and his
erstwhile education Minister were prosecuted separately by two cases.
The allegations were that they burnt the Constitution of India in a

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protest. One of the charges was u/s. 285 IPC which is the offence of
negligently handling fire or inflammable substance in public. It is a
cognizable offence [empowering police officer to arrest the offender
without warrant. As per Section 151 CrPC the police officer has a duty
to prevent the commission of any cognizable offence when he sees a
person preparing or attempting to commit a cognizable offence.]
The ex CM and the Ex Minister denied the offence. A defence
was taken, namely that they burnt only copy of the constitution and
not the Constitution itself!!! Burning the Constitution or copy either
way does not matter for the charge u/s. 285 IPC as the question is
only whether fire in a public place was dangerously handled or not.
The prosecution was not a bonafide one as is the usual case in
all democracies which are political democracies. The ruling
Government was headed by a party which was a rival to the political
party headed by the ex CM. The purpose of prosecution was not to
prevent actually any crime or punish them but only to give political
mileage. The ruling Government appointed a Senior Counsel and
former Public Prosecutor of State as a special counsel for prosecution.
The defence was handled by an equally experienced senior Counsel.
The case in fact, was not a complicated but a simple case. No
intricate points of fact or law was involved. The full time Assistant
Public Prosecutor [i.e. an APP who is not holding prosecutor post at the
pleasure of ruling party but a Government servant.] was fully
competent to conduct the prosecution. The state was expected to
adopt a ‘STANDARD” of being uniform to all cases and in its treatment
to all its citizens, including those who are accused of offences, was
however, not adopted. [It is unfortunate that even Courts do turn a
blind eye to such brazen anomalies.]
The trial went on and the stage came for cross examination of
the Investigation Officer. On conclusion of Chief examination, the
defence counsel started cross examination. One of the contentions of
the defense was that the IO himself was on the dias where the accused
did the act of burning the Constitution and that he did not try to
prevent it. Hence the assumption was that the police officer did not

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reckon the act of burning as a serious one or negligent one to attract

an offence u/s. 285 IPC. It was also suggested that the IO saw buckets
of sand and water kept ready on the dias.
The defence counsel during cross examination asked him as to
where he was when the act of burning copies [according to the
defence] took place. The IO assertively said that he was about 30 feet
away from the dias. The defence then confronted him with a question
that he was on the dias only at that time and that it can be established
by a video recording of the same in their possession. [The IO got
visibly disturbed as could be seen from his body language.] The
defence counsel said he was ready to run the video recording in court
and confront the IO.
The prosecutor acted smartly. He noticed the discomfort of the
IO in respect of this question. He raised a preliminary objection that
the video cannot be displayed as such now and that it is not relevant
at that stage to confront the IO. According to him it can only be
projected as defence evidence. The precondition that it was a proper
recording etc has to be done first to establish admissibility i.e.
reception of such evidence. The idea of the Prosecutor was to gain
time for the time being so that the IO could gain composure and he
can be prepared for answering the said question. The Prosecutor knew
fully well the situation that if the IO is asked to answer the question
posed then and there, [by playing the so called video recording or
without it] the IO will fumble and the same could be disastrous for the
prosecution in respect of this vital aspect. The defence counsel went
onto say that he can ask any question from any material available with
him and he need not wait till the defence stage of the case. [ The
learned defence counsel, with respect, it is submitted did not hit the
bull’s eye in quoting the exact provision of law and to challenge stating
that if the court still felt that it is inadmissible at that stage, the court
can record the question and disallow it without recording the answer.]
[The position of law then was to follow the above procedure. The
present position of law in such cases is that the question and answer
will be recorded subject to objections, the objections and its grounds

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will be recorded. Then the issue will be decided either way at the time
of judgment.]
[Author’s Note: - Even this is not followed fully or followed
partially by trial courts. Even if followed the objection is not finally
decided or discussed in the Judgment in most of the cases. Worse,
there is not even mention of all these aspects of objections etc in the
Judgment. The higher courts, unfortunately is unconcerned mostly
about these aspects when brought to its notice resulting in the rule
losing all its relevance. The trial court Judge by the time the appeal
ends, would have retired happily rendering the entire issue
unaccountable.]
Coming back to the incident on hand, after the learned defence
counsel made his submissions, the Public Prosecutor rose and
gracefully submitted that the court can follow one course, namely, ask
the defence to file a petition regarding admissibility of the said video
evidence, that he be given an opportunity to counter it, and the court
may rule on it. The cross examination may be stopped for now. The
defence fell to the trap and agreed for the same. The Court stopped
the Cross examination and on the defence counsel praying for time to
file the petition, the case was adjourned. The Public Prosecutor had his
purpose served after all.
The author accosted the Prosecutor when he came out of the
court and said “Sir, can I ask a question.?”. The Prosecutor, a very
senior person, was bemused and said “Yes”. The author asked him,
“Sir, is not the question posed by the defence relevant at that stage
itself in view of section 11 [1] of the Indian Evidence Act. The said
section states that every fact which is inconsistent with a relevant fact
or a fact is issue is in itself relevant. [The existence of the video
containing clipping showing the IO on the dais which inconsistent with
a relevant fact that is, he was away from the dias and hence could not
prevent the design to commit a cognizable offence. Hence asking the
question at that stage is relevant. Only if the IO denies the existence
of the video or its contents, there is necessity to wait till the defence
stage to bring the video evidence on record. Putting a question relating

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to a fact inconsistent with a fact in issue or relevant fact at that stage

cannot be curtailed.] The Prosecutor looked at the author for a minute,
smiled and said “It was for our friend [the defence counsel] to have
stated thus.]
The Prosecutor knew the real position of law but the “Standard”
required of him was such that it was legitimate for him to act as
above. He was not expected to tell something which is not helpful to
him but useful to his opponent. In a war if the opponent does not use
the correct weapon in his armory at the right time, it is not for the
person opposing him to advise him of the position. Hence the standard
adopted by the Prosecutor in the instant case was fully and perfectly
correct.
INSTANCE: - The Andhra Pradesh Chief Minister by letter dt.
6.11.2020 wrote to the Chief Justice Of India levelling certain
allegations against one of the Senior most Judge of the Supreme
Court. The said Judge is due for elevation as CJI in the normal course
when the present CJI was set to retire. The Personal Secretary of the
CM released the contents of the letter to the Press, whereby people
became aware of it [Otherwise it would not have surfaced also.]
The CJI or the office of CJI has not given any detail including
receipt of the letter dated 6.10.2020 written to the CJI.
The grievance of the CM is that the Judge in question was close
to his political rival and former CM of Andhra Pradesh. We need not go
into other details here.
In this backdrop, a practising lawyer has sought permission from
the Attorney General of India seeking his consent to take action for
contempt against the CM. The said consent was refused by the AG by
his letter dated 2.11.2020
Let us see the role of the persons and offices involved in this
issue. The CJI is the top most constitutional functionary as regards
judiciary in India. The CM is the constitutional functionary as regards
the State of AP. The Attorney general, another Constitutional authority
is to represent Union of India and is appointed based on the
recommendation of the Government at the center which is headed by a

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particular political party which secured majority in the elections. The

Judge in question against whom the allegation is made is also a
Constitutional functionary.
Under the Contempt of Courts Act the consent can be asked
from the Attorney General or the Solicitor General of India. It is not
known as to why the advocate approached the AG instead of the SG.
Both are of course constitutional functionaries.
Be that as it may, the AG can either consent or refuse sanction.
Either way it is to be classed as an administrative decision which must
meet the test of fairness and there is no need for following principle of
natural justice. Hence fairness requires that reasons may have to be
stated for either consent or refusal.
In the instant case, by letter dated 2.11.2020 the AG has
refused consent and the concluding reason stated is that the CJI is
seized of the matter and hence it would not be appropriate for him
[AG} to deal with the matter.
The first doubt which arises is that the CJI or his office has not
officially confirmed the receipt of the letter of CM dated 6.10.2020.
That the CJI was having knowledge of the letter is a different aspect
[as the contents of letter has already come out in the media] The reply
of the AG hence points out something beyond knowledge on the part of
the CJI when the reply states that the CJI is “seized of the matter”.
Then if the CJI was seized of the matter, then it behoves that
the AG does not express any opinion on the merits of the matter.
Unfortunately, the AG opined that primafacie the conduct of the said
persons [CM and his PA] was contumacious. Propriety demands that
the AG ought not to have given his opinion on the CM’s letter and its
contents as above. The question was why the AG a learned person and
Chief law officer of the Union acted in this fashion?
Common man [like the author] feels that in a political
democracy like ours in India, important postings like Public Prosecutor
, Advocate General etc is given only to an advocate who is sympathetic
with a particular Government [Read political party] This sympathy will
be in one’s heart always. The CM alleges in his letter that the person

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named in his letter has held posts in the previous Governments. The
same requires some probe as, if it is true, and this “Sympathetic”
factor is still in him, it may amount to a certain extent as bias dis
entitling him from hearing matters where political factors have a play.
It is left to the readers to analyse this case in the light of the
above aspects and decide whether the AG’s reply letter can be termed
as fully “neutral”. It is felt that when AG has decided to deny consent
on the sole consideration that the CJI is seized of the matter [ it is a
sufficient reason] then he ought not to have made observations
regarding timing of the letter of the CM, that the letter prima facie is
contumacious etc.,. The AG is a well known and highly learned
experienced person and when he decides administratively to deny
consent, it is to be taken that he was fully conscious and aware of
what contents or reasons he gives in his reply denying consent. The
standard adopted in this case deserves to be dwelt upon.
__________

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EPISODE - 39
STANDARD AND SACRIFICE:
The readers would have gone through some chapters of this
book regarding the standards expected by the role players in the
judicial proceedings. It is difficult to self restrain oneself, while keeping
up the standards. Sometimes the advocate who endeavours to keep
such standard has to sacrifice the client and the brief itself. Judges
also experience such difficulty while trying to uphold standards. There
were instances where the Judges were at the receiving end and were
forced to forego promotions, important postings in their career etc
while keeping up the standards. Prosecutors who try to maintain such
standards are sometime not liked by their superiors and suffer silently
because of the same. [This does not apply to tenure prosecutors who
get their posting because of their political affinities. It only applies to
cadre prosecutors, i.e. who are regular Government servants.]
Judges and Prosecutors [being Government servants] may keep
up standards and refuse to indulge in unfair practices because of their
inbuilt disposition. This will last for them till their superannuation or
retirement. Certain other Judges and Prosecutors [being Government
servants] are constrained to maintain them because of fear of action if
detected. These category of persons may become emboldened to
violate the standards at times, particularly before retirement. Only if a
person maintains the standard and integrity up to the date of
superannuation, he can be said that he is a man of integrity and his
disposition is naturally like this.
Advocates, being private practitioners are not controlled by any
rules like Government or public servants, which instill fear in them to
keep up the standards. They to a certain extent are uncontrolled and
hence their conduct of keeping up the standards must be inbuilt in
them. Such persons must be ready to sacrifice several things in their
life. They may go unnoticed always .Still if those persons maintain
standards it has to be appreciated.
An instance in this regard is recalled to memory and shared with
readers.

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A particular case involving a cine actress, an Engineer and a

Police officer was directed by the High Court to be heard by the
subordinate court and disposed off, within a time frame. Though time
frame is fixed, it is not adhered to always, and the time is periodically
extended by the High Court. In the case on hand also such things
happened and the case was heard by more than one subordinate
Judge before it came up before a particular Judge.[Let us call him N].
There was a chance for this N to become a High Court Judge, but it
was not known as to what happened resulting in his non elevation to
the post of High Court Judge. N was known to be a man of integrity
.His services were utilized by the judicial system whenever a
sensational case was to be decided where the Government and the
Judiciary expected no one to interfere. N maintained the standards.
The case was a criminal prosecution instituted by the actress
against the Engineer [arrayed as A-1] and the Police Officer [arrayed
as A-2]. The case has progressed substantially and the Engineer was
very happy with his advocate for the excellent way by which the case
was handled and points favourable to him were brought on record by
his advocate. The Engineer [A-1] was in arrears of some substantial
amount of fee to his advocate, which was about to be paid by him in a
short time as he was expecting funds. The following incident happened
at this stage.
There was a petition pending before the Judge N in the above
case. The advocate of the actress has moved the High Court against N
deciding the issue. In fact just one day before the hearing of the case
before N, the actress was able to get an order from the High Court
directing N not to decide the issue till the High Court disposed off the
petition by the actress. The order has reached the Court of N also but
in routine way the Bench clerk has kept it separately instead of
enclosing the same with the case bundle. [It is still not known whether
this was deliberately done at the instance of the Counsel for the
actress]. The order of the High Court was not known to the counsel for
A 1 and 2 also. On the date of hearing a senior counsel appeared for
the actress and pleaded more time for making some additional

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submissions on the issue which is to be decided by N. . N stated that

he has already given much time and is proceeding to decide and pass
an order. The Counsel for the actress kept quiet without even
whispering about the order of the High Court. N called the
Stenographer and started dictating the order. It was clear that the
order of N will be favourable to the accused only. Half way down when
N was dictating the order, the Counsel for A-1 noticed that the counsel
for the actress was sitting silently with a mischievous smile. The
counsel for A-1 suspected something and went to the Bench clerk and
enquired as to whether any order has been passed by the High Court
on the petition moved by the actress, and whether the court [that is
the court of N] has received any communication in this regard.
N noticing this interaction, asked the counsel for A-1 as to what
was the matter. The Counsel for A-1 stated that he was enquiring as to
the pendency of the petition in the High Court. Immediately, N stopped
the dictation and asked the Bench Clerk as to whether any
communication was received from the High Court. The Bench Clerk
then took out the order and submitted it to N. N asked why it was not
put up with the records, for which the Bench Clerk apologized stating
that she has forgotten about the order and hence did not put up. N
visibly shaken, told the Bench Clerk that he will take action against her
later in this regard. N went through the order. He was shocked. He
openly declared that if the Counsel for A-1 has not interfered timely,
he would have completed the dictation of the order and would have
also pronounced it which would have landed him in deep trouble, may
be even for contempt. The Counsel for A-1 apologized for interfering in
the middle when the order was being dictated for which N said , he has
done the right thing and the court is thankful for the same. He asked
the steno not to type the unfinished order. He turned to the Senior
Counsel of the actress and said ‘Sorry, I did not expect this type of
attitude from a Senior like you.”. The Senior Counsel said Sorry which
was not accepted by N. N adjourned the hearing.
The counsel for A-1 came out of the court hall. A-1 went after
him and said “You need not have alerted the Judge. After all, the order

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would have been in our favour.” Immediately the Counsel for A-1 said,
“My duty is first to the court and justice. I cannot mislead a
court/Judge to pass a wrong order to get benefit for me. Alright you
can either come personally or send your authorized representative to
my office in the evening to collect the bundle. I am not appearing for
you anymore in this case. You can engage another counsel” and
walked away. A-1 was shocked and stood there.
In the evening, A-1 having lost his face, through some well
placed persons interested in him, contacted the Counsel. Those
persons tried to persuade the Counsel not to give back the brief but
continue to defend A-1 by pardoning him for his conduct. They said
that A-1 will also pay the arrears of fees immediately. The Counsel
sternly replied to them not to further talk about the subject. He told
them that the matter is closed and he neither require the arrears of
fees from A-1 nor will continue to defend him. Having no other
alternative, but embarrassed to meet his counsel, A-1 sent his
representative with an authorization letter to collect the bundle. In the
said letter, A-1 promised to send the arrears of fees shortly. The
counsel was not bothered about it and handed over the entire case
bundle with a consent for change of counsel.
The Counsel long after N got transferred from that court, had an
occasion to meet him. N enquired about the case and the Counsel
narrated all the happenings. N said though he has exhibited good
advocacy and standard, he need not have forgone the brief and the
money. Counsel thanked N and replied that he wanted to uphold
certain standards. N appreciated the same.
__________

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EPISODE - 40
IRRECONCILABLE RATIOS- CHANCE TO TAKE?
The Code of Criminal Procedure governs the conduct of
investigation, inquiry and trial. The readers would have by now got a
fair idea about the concepts relating to cognizance of offences,
summoning of accused by issuance of process and framing of charges.
The procedures for the five type of trials contemplated by the Code is
also briefly stated.
It is to be noted that the stage of cognizance,issuance of process
,that is summons or warrant to the accused, furnishing of copies to the
accused on his appearance are steps which are common to all the five
types of trials. Hence basically up to the stage of trial the standards
are uniform for all cases.
In this backdrop the word cognizance of offences have been
subject matter of various cases resulting in definite ratio decided to be
followed in future cases. At the stage of taking cognizance, the court or
Magistrate has to only see whether an offence has been committed
from the materials placed before it or him. The cognizance is hence a
subjective satisfaction to a great extent but of course based on
objective considerations from materials gathered during investigation
or placed before the court. So also if a prima facie case is made out
against the person arrayed as accused by the police report or
complaint, then process will be issued to such a person .It is to compel
his presence before the court and face the trial for the offence alleged
against him. It is only at the further stage after that, that is, framing
of charges, the court scans the materials placed before it to a certain
permissible limit to ascertain as to whether there are sufficient grounds
to frame a charge or the charge alleged is groundless. These principles
on consideration of various provisions of the Code and interpretation of
the same, were laid down as ratios in decided cases by, the superior
courts to be followed by subordinate courts in future cases. We still
follow the principle of stare decisis, that is applying the well
established precedents [ratios] while deciding the present case on
hand. The Supreme Court itself on more than one occasion declared
that only by these methods consistency can be achieved. It will go a

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great way in infusing confidence in the system or else there will be to a

certain extent anarchy.
Coming back to the issue on hand, the ratios have evolved a
principle that strong suspicion is enough to frame a charge against an
accused. Hence for the previous two steps prior to the framing of
charges, that is, taking cognizance or issuing process to the accused,
even this strong suspicion is not required. Further no separate order of
the court is required for summoning an accused, that is to issue
process after taking cognizance.
To put it in another way, once a Magistrate has applied his mind
to take cognizance of the offences, then summoning of the accused
concerned is bound to follow and the Court or Magistrate is not to
embark upon an exercise of sifting and scanning the materials to
ascertain as to whether they are capable of being converted in to legal
evidence or whether they are sufficient to frame a charge. An
illustration will be useful here.
ILLUSTRATION
Prior to the commission of a particular offence, there are
materials to show that A, B and C have had a series of meetings. They
are neighbours interested in certain common things of the locality
where they reside.
Subsequently an incident happens leading to an offence. One of
the building in their neighborhood is burnt to ashes on a wrong notion.
Evidence gathered show that there is a direct involvement of A. The
prior meetings of B and C would have been either a routine one or it
could be in furtherance of a conspiracy to commit an offence. The
case is filed against A, and C with the above materials for the offence
of criminal conspiracy u/s. 120B IPC. The Magistrate takes cognizance
of the offences. Now the question is whether he is to summon B also
as the allegations against C is same as that of B. Once the court has
taken cognizance and issued process against C, there cannot be any
justification or reason to leave out B. The probative value of their
meetings as neighbours, its value or object etc is one for trial.
The above discussion given to readers is to ponder over two
rulings of the Supreme Court given below.

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STRONG SUSPICION – Enough to frame charges- stage of

taking cognizance and framing charges- considerations required
pointed out.
At the stage of taking cognizance and summoning the
Magistrate is required to apply his judicial mind only with a view to
take cognizance of offence- At this stage the Magistrate is not required
to consider the defence version or materials or arguments nor is he
required to evaluate the merits of the materials or evidence of the
complainant.
SONU GUPTA VS DEEPAK GUPTA 2015 [1] MWN [CRL] 321. SC
= 2015 [2] SCC [CRL] 265.
Criminal conspiracy cannot be inferred on the mere fact that
there were official discussion between the officers of MOF and that of
Dot and between two ministers, which are all recorded.
Suspicion, however, strong cannot take the place of legal proof
and the meeting between PC and [Link] would not by itself be
sufficient to infer the existence of a criminal conspiracy so as to indict
PC.
Petitioner submit that had the MOF and the PM intervened, this
situation could have been avoided, might be or might not be. A wrong
judgment or an inaccurate or incorrect approach or poor
management by itself, even after due deliberations between
Ministers or even with PM, by itself cannot be said to be a
product of criminal conspiracy.
SUBRAMANIAM SWAMY VS [Link] 2012 [7] SCALE 520.
[Portions highlighted by the author for emphasis.]
The readers are requested to ponder and arrive at their own
conclusions.
__________

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EPISODE - 41
BLOOD TEARS:
Laws are enacted mainly for bringing in orderliness in society.
Over the years, some shortfalls are noted in the process of law making
in India. Let us see some of them here.
The foremost is that we do copy the principles underlying a
legislation and as a sequel the legislation itself from a foreign country.
We fail to note that the countries from where we copy has different
traditions, culture, level of literacy etc. Further ours is a quasi federal
type of polity, where people are divided on caste, communal, racial,
nativity etc and of course on all possible factors. We may of course
proclaim from the roof top that ours is plurality in unity. We can no
doubt boast that it is a pluralistic society but the issues crop up when
we apply the same law throughout for everyone. Take for instance the
law relating to rape. The amendment made in connection with the laws
relating to rape is in a way most severe. The amendment itself was
rather a knee jerk reaction to a particular incident.
Any forceful or deceitful violation of a female is definitely
detestable and to be condemned as rape. The amount of force is
definitely the same in the case of rape of a village girl and city based
woman. A woman is forcibly ravished in the same way and it is
demonstrable by signs of violence and injuries on the body of the
victim. There cannot be a case of consensual sex in cases where such
injuries are found on the body of a person. The case of deceitful
consent and rape differs due to variety of reasons. Let us see some:
ILLUSTRATION - I
A woman with modern outlook and thoughts, joins a group of
men at a club during late night hours. She consumes liquor and
thereafter the next day complains that those accompanying men
ravished her.
ILLUSTRATION - II
A woman working alone in an office, asks the office assistant to
fetch her coffee, since she has severe headache. The Assistant mixes
some drug in the coffee, gives it to her. She drinks the same, becomes
dizzy and the man ravishes her. She later complains of rape.

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ILLUSTRATION - III
A college going girl falls in love with a man and in an intimate
moment succumbs to sex with the man. Later he rejects her. She
complains of rape.
One can see that in all the above illustrations there is vast
amount of difference in facts. We may quote very many illustrations.
One thing common in all these is claim of absence of consent.
ILLUSTRATION - IV
A man hires a maid to work in his house as a helper. The
woman in dire need of money always, pesters the man for money
often. The man is much elder to the woman. He is also living alone. He
slowly asks the woman to satisfy his lust by doing certain acts which
does not amount to sexual intercourse fully. [Refer Section 375 [a]
IPC] The woman agrees since it will not pose any complication like
unwanted pregnancy. Later she slowly starts black mailing him. On his
refusal to budge, she claims that she was raped.
The above illustration IV can be read in the background of the
law we have enacted. The laws on such reading can be easily
understood that they can be used not only for complaints of genuine
rape [i.e. all kinds of forceful rapes] but also can be equally abused
fully when it comes to deceitful consent or no consent rapes. Support
for such false complaints by law is demonstrated by a reading of
Section 114A of the Indian Evidence Act. It says, in a prosecution for
rape under clause [a] to [n] of Subsection [2] of Section 376 IPC,
where sexual intercourse by the accused is proved and the question is
whether it was without the consent of the woman alleged to have been
raped and such woman states in her evidence before the court that she
did not consent, the court shall presume that she did not consent.
The explanation in Section 114 A of IEA state that “sexual
intercourse” shall mean any of the acts mentioned in Clauses [a] to [d]
of “Section 375 IPC.
The illustration IV if seen in the light of the position of law
stated will high light the disastrous effect for the elderly man. It will be
very difficult for the old man to dislodge the presumption. Added to

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this legal fiasco, the bias of the Presiding Judge may loom large in
such cases as seen in several instances. A male Judge with a village
background may have inborn sympathy towards the woman who
claims that she was very poor and hence was exploited. A moderately
urban brought up male Judge, will differently view and may have soft
corner for the man. In case of a lady Judge again these factors will
have a play. It is easy to say that Judges are neutral and have the
capacity to balance law and reality to write a judgment in such cases.
The majority of the Judges, it is to be admitted, do not have the said
disposition.
The complexity of the laws and effects arising therefrom as
narrated above in some cases have another dimension in a given
situation. A real victim may not get proper redressal but a powerful
man may easily thwart the law. One may say that such thoughts are
baseless. One has to only experience such realities to accept [if they
have the heart to accept] this position. The following incident is an
example.
A lady and her husband were having a son studying 8th
standard in school. Their marriage was an arranged one by elders. The
husband was doing the work of a cook and has no definite income. The
wife hence went for work. The work was managing a book stall selling
religious and spiritual books inside a temple premises. The temple is
under the control of Hindu Religious and Charitable Endowments
department of the Government. In due course, the owner of the book
stall on becoming old and infirm, left the stall to be run by the lady.
The owner sympathizing the lady’s position, gave permission to her to
get a licence in her own name on the expiry of the current period of
permission granted by the department.
The time came for fresh tender to grant license for the shop on
the expiry of the license period. The woman applied complying all
necessary formalities and due to her existing experience was certain to
get the license. [But then in our country they alone are not sufficient
and something more is needed. Such practice goes on every now and
then, though our law makers, Judges, lawyers and politicians will get
wild when truth is stated and deny the same vehemently.] In the case
on hand, that something if it was money, the lady would have begged

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or borrowed and gave it to the official concerned who had say in

accepting the tender to grant license. It was something else. [The
author has no caste bias. In a related chapter in this book, an incident
has been highlighted as to how an innocent dalit Professor was
victimized. ] In the present case the woman belonged to the so called
forward class [Actually there is no such thing as forward class. Every
person becomes noble by his acts and deeds and not by caste alone.]
The officer concerned was a man belonging to a different caste.
The concerned officer [Public Servant] became lust driven on
seeing the lady and explored to know her weak background. He came
to know that the husband of the lady was a soft person and God
fearing [May be coward as per the thinking of the officer]. He also
learnt that there was no strong male relative to support her. [Of
course God will never come to her rescue and he knew how the men
who man the legal process, which is considered as Demi God in this
world could be managed.] . Hence he demanded a type of sexual
favour. [Beyond this, it cannot be elaborated here] from her stating
that if she does not oblige then he will use his power to see that she
does not get the licence. The most condemnable part was that he
asked the lady to entertain him [Officer] in her house by somehow
sending away her husband and their son. He said that he did not want
the undue attention of meeting for his purpose in a hotel or lodge.
The lady was shock stricken at the depraved mind and thinking
of the Officer. She was not able to comprehend what to do or how to
act. She told this to a person whom she was treating him like a
younger brother. [Of course she did not, and could not due to
modesty, elaborate to him the depravity of officer’s lust]. Let us name
this person as X. X advised her to complain to police and came forward
to accompany her to police station. Her husband, though appraised of
the full facts by her, was afraid to stand up to the situation but stated
to his wife to be cautious and not very aggressive.
X and the lady, with their limited knowledge approached the
local police station and lodged a complaint. [We have made laws so
complex without realizing that most of our people are rustic or lack full
knowledge. It is to be admitted that it suits many of us though not all
of us] She only requested the police to warn the public servant

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suitably. To the police official it was a boon. He assured her that he will
register a case and protect her from the public servant concerned. He
registered a FIR for certain non bailable offences. The public servant
was not arrested but got an anticipatory bail from the court. [Probably
the police official himself would have helped him, as the circumstances
of the case suggest, though this particular allegation cannot be
substantiated.]. The police did nothing further and the official was
moving around freely and boldly.
The lady and X approached an advocate. The advocate advised
them that they can go and approach the Vigilance and Anti Corruption
department against the public servant as under the newly amended
Prevention of Corruption Act [2018] even demanding sexual favour for
doing an act or duty is corruption.
The readers may pause here for a moment and notice certain
disturbing features. Suppose one questions as to why the local police
station did not book the case under the Prevention of corruption Act,
the answer is that only the specialized police wing and that too , a
deputy Superintendent of Police can register such cases. The lady
cannot be faulted for not knowing this. We may conveniently press the
rule, ignorance of law is no excuse. A concept of English Jurisprudence.
We have inherited as a rich tradition and will use it against such
gullible victims. We will say the lady is to be blamed.
Then what about the police officer of the local station? Was he
not supposed to appraise the lady about the development of law and
direct her to vigilance and anti corruption wing? We will not press the
rule of ignorance of law, but we will say that the police officer has done
substantially his duty [of registering a weak case] and even go to his
rescue by saying that the lady can take steps to get the case
transferred to V & AC wing. We will not accept that the hapless lady
having suffered mentally, will not have the wherewithal to seek further
legal course.
Leaving these aside, when the anticipatory bail was moved, the
Public Prosecutor should have told the court and instructed the police
of the current legal position. [But then he is a political appointee for
whom ignorance of law is always an excuse.] As for the Judge who
granted the anticipatory bail, he may say, what if? The lady can now
move the High Court for getting redressal. For the fault of everyone

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and the system, the lady has to suffer monetarily and mentally.
Excellent judicial process!!!
Now coming back to the case of the lady, as advised by her
advocate she approached the V & AC wing. The advocate highlighted
the issues in her representation, quoting the legal provisions. She
accordingly went to the V & AC Office. She was not even allowed to
meet any official. She was asked to leave her representation. She did
so. Nothing happened thereafter.
The husband of the lady advised her to leave the matter at that
and not to go for the said book store anymore. She also felt that it is
the only way, left the book stall, pursuing the tender etc. She started
to help her husband in his cooking work. The lady has now only
become worldly wise, having learnt a lesson [in a bitter way] from our
judicial process and law.
[Everyday some intellect, activist, Judge etc deliver speeches in
public platforms that women should be empowered. Such utterances
alone will not empower women. It is like describing various delicious
food items in a book and ask a hungry, starving person to just read it
to feel his stomach full. They all cry about “Access to Justice for
Women “only in words and not in action. They make such laudable
statements in public platforms for their own upliftment in career and
become popular at other’s expense.]]
Experience has shown that leaving violent or physical rapes
where consent can 99.99% taken to be absent, in rapes involving
absence of consent due to deceitful means, different yardsticks and
provision of law is to be applied. Judges instead of becoming emotional
and swayed by different views, has to be extra careful in deciding such
cases. Laws have to be made accordingly to render real justice instead
of boasting that there is a proper application of laws. Claim of proper
application of laws without justice being done is akin to a student
memorizing and repeating his lessons without understanding it really.
Till all these take place, right thinking persons [few in India who
have no right to live here] can only shed blood tears on noticing
injustices like the one which has happened to the lady.
__________

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EPISODE - 42
ADVOCACY- A CHALLENGE:
Throughout this book I have expressed some of my views. There is
no necessity or expectation that readers have to accept them. The readers
are fully entitled to their own views. This is repeated again before the
reader starts reading this narration.
An advocate has to take up any case which his client gives to him.
Particularly this applies to young, upcoming advocates. Nowadays there is
a tendency as if an advocate commits a sin, when he takes up the case of
certain types or which have been sensationalized by the media. The sad
truth is that there are some Judges who see an advocate with disdain
when he takes up such cases. Such displeasure is either exhibited in
words or expressed by their body language. In fact we can even accept
that a Judge can pass an order contrary to justice, but at least he does it
in a manner which gives an impression that “justice seems to be done”.
We fail in our duty if we do not mention some Judges who act as real
judges and also does real justice in their orders not swayed by any other
factor. [Those few Judges deserve our salutations from our hearts.]
Coming back to the subject, the author feels that an advocate can
and should decline to take up the brief of a person who is not a citizen of
India and accused of an offence against the interest of India [e.g. Terrorist
act etc.] Both the underlined factors should co exist. Suppose an Indian is
accused of a terrorist act, he can be defended in India on the premise that
he may not be guilty till the court pronounces him guilty. Similarly a
foreigner accused of any other crime like, theft, rape etc can also be
defended on the same premise. Hence barring these instances an
advocate should not hesitate to defend anyone. This is the personal view
of the author. An incident is shared with readers here in this connection.
One B belonged to a political organization and a movement which is
against God. [They claim that there is no God but still will hurl invectives
at that non existing person. They are rational however as widely known.]
[So also a person will claim as God fearing and highly religious but do all
wrong things with the excuse that God will forgive him and protect
him.]This B on a particular day in an inebriated state, went to a place
where people gathered and offering their prayers to Lord Iyappa. [To the
persons gathered there he is Lord and also God.]. B hurled abusive vulgar
words, [Both on unseen Iyappa and actual devotees who can be seen!!!]

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created a ruckus there, pulled down the photo of Lord Iyappan and
smashed it. Infuriated the people there, roughed him up and handed him
over to police. He was booked under all possible non bailable sections of
law and remanded. [The police know all techniques in booking a person.
In a case of 5 or more offenders they will book them u/s. 147,
148,323,324,447 and 292[b] IPC. They are all bailable and even S. 324
IPC prior to the year 2005 was bailable. The police however, tell the public
that the offenders were booked under six sections of law giving an
impression that they acted tough. While in the same case, if they really
want to be extremely tough they will register u/s. 148 and 307 IPC but tell
the concerned persons that only two sections are invoked and they can
get bail easily through court. This however, is not correct and section 307
IPC is punishment for attempt to murder which is a serious non bailable
offence.]
The case of B was not taken up by many lawyers who were
approached by relatives of B. Some friends of B hence approached the
author, with an hesitation as to whether he will accept the brief. The
author unhesitatingly accepted the brief, took B on bail. Final report
[Charge Sheet] was filed against B and the author defended him. Most of
the advocates, particularly seniors [the incident happened about 40 years
back] to the author advised him not to take up the brief. The author did
not heed their words. The case was heard before a Judge, who throughout
the trial did not show his dissent or displeasure at any point of time.
Ultimately the Judge acquitted the accused B. [The Judge in fact was a
God fearing person.]
The present narration is wound up with two subsequent
happenings. The first one is that the Judge concerned got transferred after
some months and the author went with the advocates to bid farewell to
him. The Judge cordially interacted with them and finally told the author
to advise his client [hinting B] not to indulge in such acts. [Hence the
Judge in his heart felt that B is guilty but he not only decided the case on
merits but also never gave an idea of his real impression in his mind.
Great quality of a Judge.
The second after some years B himself, became staunch Lord
Iyappa devotee and started going to Sabarimala every year till his death.
After all who are we to decide or declare as to whether a person is rational
or theist or atheist etc?
__________

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EPISODE – 43

POLICE INVESTIGATION VS EXECUTIVE: MAGISTRATE

ENQUIRY- A FALLACY
The Criminal Procedure Code clothes the Revenue officials, i.e.,
Executive Magistrates certain powers of “Inquiry”. The “Investigation”
is relegated to the police. The “Trial” is held by courts. Of course
Courts also conduct Inquiry in certain other cases [Eg. Section 200 to
203 CrPC.] In dowry death cases, the above distinctions can be
manifestly noticed.
The “Inquiry” by revenue officials dates back to the colonial
[British] rule. This is continued under the present system also. It is
believed that in dowry death cases, an independent [?] inquiry by
revenue officials will be feasible, since the investigation, it is believed
may have short falls. This is proved to be a baseless assumption if one
comes across real life cases. We clothe the revenue officials the wide
powers of magistrates only to get utterly disappointed. In a democratic
set up, functioning of the constitutional machinery, the police is under
the control of State [a Minister of a political party in reality] and so is
the revenue officials. Hence the first factor we have to accept is that
these officials may easily be made to fall in line in certain cases where
the state [political party heading the Government] does not want the
truth to come out.
Persons may argue excellently and with vigour against this
thinking by fancy statements. They will say that just because in some
stray instances/cases it happens so, one should not generalize all
cases like that. Certain other persons may say such a view is
pessimistic and that we should trust that such officials will act
fearlessly or bereft of any favouritism. However even all these persons
will accept one basic thing. It is, that there are stray cases [in their
estimation] where these flaws may occur.
Next we see in real life cases, the police and revenue officials do
not sail together. They have their own perspectives, level of influence
that could be brought upon them etc. In dowry death cases, we see in
certain cases that the police investigation may conclude that there is

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no element of dowry demand, whereas the revenue inquiry may

conclude that there was a dowry demand. Again people may say that
such cases are few and ultimately the courts will take care of such
situations. True, but here also one accepts that there are such cases.
Then we see the legal complications and issues. The police are
required to enquire an accused in such cases and record his statement.
This statement is fully useless and valid only to the extent of a
confession leading to discovery. Then also a small portion of such
confession is admissible. Then why the police have to examine the
accused? Well it is to demonstrate later that police was fair in their
investigation in applying natural justice principle. Opportunity of
hearing both cases or versions? May be. Really it is however totally
useless. As far as the revenue officials are concerned, they do not
examine the husband in some dowry death cases or even if they
examine they do not fully record all which the husband states. They
only record the statement in a narrative form. In case the husband
takes the stand that he has told several vital facts in the enquiry but
were not recorded, the courts generally state that such claim is
baseless and an afterthought, as revenue officials are not like police
officials. It is not understandable as to how such an opinion is correct.
Some Judges may just brush aside such claims stating that it is only at
the advise of the defence counsel on legal advice for the purpose of
the defence. The value attached to the version given before revenue
officials are greater as against version given to police during
investigation. Hence this may also work against the accused.
The faith which the law places on the revenue officials may
prove wrong in very many cases. Courts do not accept them so easily
unless the long experience tells them otherwise. Then, of course very
lately, they wake up and observe this malady, which lead the
Parliament or Legislature to amend the laws. [Example. Previously
even death in custody cases were probed by revenue officials only.
Now the law stands amended to place this task of enquiry on Judicial
Magistrate. Experience has taught us as to how far the revenue
officials being an arm of the executive [political boss] can be believed.]
The revenue officials have to act independently and issue a
summons to witnesses for their examination as per the revenue laws.

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They never do it. They ask the concerned police officials to bring the
witnesses. The police often tutor them to suit their case. The courts in
spite of all these, lean in favour of the findings in the revenue enquiry.
One may go on multiplying such short falls. People often,
including courts, reject them outright, stating that small aberrations
are being blown out of proportions. In case a defence lawyer
meticulously work out those points and project them, the court [Judge]
reluctantly accepts them [if he is a Judge who has no bias]. Such
Judges are rare. On the other hand many Judges feel that they are not
material ones to affect the case. [Here he has already “Judged” the
accused and only pens the reasons to support it. It should have been
really vice versa.] Over the years, prosecutors who faced such salvos
from a defence counsel never took up those issues to the
administrators for rectifying them at least in future cases. They have
their own reasons for that.
A few of such cases are shared here with the readers.
CASE -I
A head constable of a police station was prosecuted for the
offence u/s. 302 IPC. The allegation was that a person brought to the
police station by some policemen, complained of chest pain while being
at the police station, rushed to the hospital but died on way. The head
constable was at the station during the relevant time. The allegation
against the head constable was that because of the beatings given by
him, the deceased suffered heart attack and died en route to hospital.
There was an enquiry by an Executive Magistrate [revenue
official] as per the TN Police Standing Orders.[Now a Judicial
Magistrate holds such inquiry as per S. 176 CrPC. w.e.f. 23.6.2006
Even now revenue officials hold such enquiries in dowry death or
suicide or other cases of unnatural death of a married woman. We still
believe the revenue enquiry though from 23.6.2006 we decided not to
place reliance on the revenue enquiry as regards death in custody
cases. [It is commendable that at least we have now admitted that
revenue enquiry is not believable in custody death cases. As usual we
will satisfy ourselves by stating that all those who suffered by such
enquiries in the past was due to their destiny.] The revenue enquiry
[by a Revenue Divisional Officer] concluded that the head constable

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was the cause for the death of the deceased and recommended his
prosecution to the collector. Later the Personal Assistant to the
Collector, on the strength of the sanction given to him, launched
criminal proceedings u/s. 302 IPC against the head constable.
The Head constable requested the author to defend him. On
being asked about the facts, the head constable narrated as to what
actually happened. The deceased was a habitual drunkard. He used to
create nuisance always in an inebriated state and he was a rowdy also
as per Police Station records. There were pending cases against him.
Numerous complaints were against him from the residents of the
locality. One such instance was from the nearby Church authorities
[unofficially]. It was reported by them that on a particular day, the
deceased in a drunken state has raped a church comer, an elderly lady
of about 80 years by dragging her to a desolate place. She did not
want to complain. The church also did not want to complain officially
because of the lady’s request, requested the police to enquire. Based
on such and other complaints, the deceased was brought to the station
by some policemen on the instructions of the Inspector of Police. The
deceased complained of chest pain on his being brought to the station.
The Head constable being on duty, arranged for taking him to the
hospital for treatment. He died on the way.
The head constable was not a graduate. He entered police
service as a constable and rose to the level of head constable. He had
only one or two years of service left and had a chance to get
promotion as a Sub Inspector, which could have fetched him some
more benefit to his pension. It was at that stage, he was prosecuted.
As a sequel to this, he was promptly suspended. The head constable
was not able to work out through higher officials to get the suspension
revoked after some time. [Other police personnel in similar situations
got their suspension revoked, pending the case.] Had it been done, he
could have got his promotion also. He did not go through such
methods [left to the readers to infer what those methods are because
to tell it openly is a taboo in our system.] He did not have the
monetary capacity to approach the High Court to get his suspension
revoked. [ It is doubtful as to whether he would have got relief as
many Judges will thunder that death in custody is a despicable act and

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 EPISODES 369

deserve no help or sympathy to the person burdened with such

accusation.]
The head constable thought [foolishly] that unlike his own police
department, the revenue officials [Executive Magistrates!!!] will
conduct impartial enquiry and exonerate him as he was convinced in
his conscience that he never bet the deceased. He hence went to the
Inquiry before the Executive Magistrate [hereafter referred as M] when
directed to appear before him. [M was a powerful revenue official who
was able to get closer to the powers that may be. Later he got the
designation of IAS conferred on him and held plum posts in his
career.] This M was younger in age than the head constable. Still when
the head constable appeared before him, he ill-treated the head
constable by hurling invectives and did not even allow him to sit.
[The head constable told about this maltreatment to the author only at
a later point of time.] M enquired the head constable and sent him
away. He later examined the other officials of the police station and
some witnesses. The Inspector [Law and Order} was able to manage
[?] M by getting a statement recorded from him to the effect that at
the material time, he was not in station and hence did not know what
happened. On conclusion of enquiry, M filed a complaint as stated
above.
The head constable believed that the Sessions court to where
the case got committed, will conduct the trial swiftly and give him
relief. The author as his advocate, was not optimistic to this thought.
Not to disillusion the head constable, he assured the head constable to
do the needful. The case was pending in sessions court for nearly one
and half years without any progress and by this time, the head
constable reached the age of superannuation. He was not given
pension or other benefits as he was in suspension still. The head
constable pleaded with the author to defend him though he does not
have the means to pay. The author did so because he learnt about the
honesty and integrity of the head constable through his enquiries. [of
course only if you are a legal aid panel counsel, you will be recognized
for such work but if you do it privately, no one will recognize it.
Actually many judges think that a private defence counsel will never do
free services. The legal aid counsel would have at least got some fees,

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though meager for such services. Some of such legal aid panel
counsels were able to utilize it for getting posts later, including
elevation to High Court as Judge. Of course one would have to move
for such posts, but having been in legal aid panel will help them.]
Coming back to the case, the case in sessions court was
attended by a clerk of the Collectorate on behalf of the complainant PA
to Collector, that is M. [M being a public servant who set the law in
motion need not appear personally for all the hearings in view of
Section 200 CrPC. In case he files a genuine case, he is said to “act”
and if he files a case malafidely or by mistake etc, he is “purporting to
act”. But not a hapless head constable. One does not know what
message we want to communicate to the society for future.] Repeated
submissions to the Judge to direct the appearance of M fell on deaf
ears. [The Judge was due to retire and hence was disinterested. He
was worried about his retirement, benefits etc. Of course it is
understandable.] Ultimately on the repeated pleadings of the author,
the Judge posted the case “Finally” for appearance of M. The head
constable once again believed [idiotically] that the Judge will dismiss
the case [?] if M fails to appear. The head constable stated so in spite
of his counsel [author] advising him not to be hopeful. [in lighter vein,
the popular saying in Tamil that a goat believes only a slaughter man
at the abattoir comes to the mind.]
The fixed date came. Again M was absent and this time even the
clerk from the Collectorate was not present. The author submitted that
the case was posted finally. The Judge quietly started to write his
notes paper and adjourned the case to another date. The author again
submitted to the Court that the case was posted finally and some relief
may be given. The Judge in a very cool manner replied “What to do?
The Complainant is absent and hence I have to adjourn.” The author
became furious. He turned to the head constable standing in the dock
and told him.” The Court thinks that you will die in due course and he
can then conveniently close the case.” Even this did not invoke any
response, action or reaction from the Judge.!!! [Probably the Judge
inwardly felt that what was uttered by the author was true. However
most of other Judges would have been unable to digest the truth but
would have warned the author of Contempt of Court., a weapon which

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 EPISODES 371

could be used to scuttle even truthful statements!!!! Legacy of

British!!!]
A decision was taken by the Judicial Administration to create
Fast Track courts as a novel method to fast track the decision of cases.
Luckily for the head constable, his case got transferred to one such
court. The Judge there was dynamic and really fast tracked the
case. He was so strict and capable of enforcing his writ, M was forced
to appear soon and depose.
The author has studied the case thoroughly in the backdrop of
the instructions given to him by the head constable. The doctor who
conducted the post mortem on the deceased has noted the features at
the post mortem on the body and one such feature was vital. He has
stated in medical terms a condition of the penis [male private organ]
of the deceased. In the opinion, he has concluded that forcible sexual
intercourse before a few hours of his death would have resulted in the
heart attack. The doctor opined that it could have been the cause of
his death. M in his enquiry prior to the institution of the case has not
highlighted this factor at all. In fact he has recorded the statement of
the doctor in a general manner without even ascertaining the meaning
of the medical terms as stated above.
M deposed in chief examination. In cross examination, he was
asked by the author to read the medical terms in the post mortem
report in respect of the condition of the penis of the deceased and
explain the same. [M was not able to read the medical terms at all and
naturally could not explain its meaning.] He however rudely said that
he need not know such things. The Judge took the report and read it.
He was satisfied about the relevancy of the question and rebuked M to
be polite and answer the question. The Judge also observed that
deceased does not appear to be a noble man, but still unfortunately M
had a soft corner for such person. M was thus made to eat a humble
pie and he meekly accepted that he was unable to read the medical
terms and also he could not understand it.
On that day evening, the head constable met the author at his
office. With tears in his eyes, he thanked the author for getting the
answers and teaching a lesson to M. It was then he told the author as
to how M was rude and treated him during the earlier enquiry.

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372 EPISODES

In due course, within a few days of conclusion of trial, the head

constable was acquitted of the charges. He thanked the author and
promised to pay some small fees on his getting his monetary benefits.
The author knew that it will take a long time and that no one knows
what will happen in the meantime. He did not say anything. The head
constable never met the author thereafter. The author was at least
happy that he has done something for the really deserving person.
CASE II:
H, a husband, his father, mother and brother in law [sister’s
husband] were prosecuted for the offence u/s. 304B & 498A IPC. The
husband and brother in law were promptly arrested on lodging of FIR
itself. The mother and father of the accused H were however allowed
magnanimously to secure anticipatory bail.
The case of the prosecution was that the wife of H was
harassed for extracting more dowry. The wife died within 5 years of
marriage. The parties were north Indians. During the enquiry as per S.
176 CrPC, the Executive Magistrate conducted the Inquiry and
submitted a report that the death of the wife was due to dowry
demand and in unnatural circumstances. Leaving the husband and his
brother in law, the father and mother were enquired by the Executive
Magistrate. The husband and brother in law were already in remand
and the RDO did not take any measures to produce them before him,
for examination.
The investigation to a major portion was on the same lines as
that of the RDO’s report. The post mortem report indicated that the
deceased had adrenaline cyst which burst, probably due to a kick given
by the husband in the abdomen of the deceased as per the
prosecution.
The husband and his brother in law were given bail by the
court after nearly one month. By this time, as already mentioned the
RDO’s enquiry was concluded. The husband did not know the impact of
the RDO enquiry. After some time all the four got summons from the
Magistrate Court and they appeared through a local advocate. They
got copies of the final report etc,. The case was committed to sessions
court and it was then that the husband and others approached the
author to defend them.

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 EPISODES 373

The author asked the husband details based on the post

mortem findings. The husband then told the author that they never at
any point of time demanded any dowry. His mother used to chide the
deceased, whenever she did not properly do the household chores. His
wife, used to complain of severe stomach pain. She was taken to a
specialist doctor about one year prior to her death. The doctor on
thorough examination and tests concluded that she may be suffering
from adrenalin cyst. The doctor advised his wife to undergo an
operation at the earliest. The doctor gave some medicines. His wife
found relief in the medicines and was reluctant to undergo the
operation. Though he assured his wife, she was afraid to undergo
surgery. [At the request of his wife, the husband did not tell these
facts to his father and mother.]
On the particular night, [prior to the next day morning when the
wife was found dead] there was a cricket match and himself, his
brother in law and wife were watching it. Their house is a big one. His
mother, father and sister went to bed in another room. His wife after
some time, told him that she is also feeling sleepy and hence going to
their bedroom. The husband told her that he will sleep in the hall itself
as the match will go on late past midnight. The brother in law had
another room. His wife [according to the husband] went inside their
bedroom, bolted the door inside and went to sleep. Next day morning,
she did not open the door even after repeated knocks on the door.
Hence they [he and his brother in law] forced open the bedroom door
to find his wife on the bed motionless. They asked their family doctor
for help. He came and on examination found her dead. Hence the
husband, informed his in laws who were living nearby. [The north
Indians families settled in Chennai mostly resided nearby to each
other.] The in laws and relatives came ans saw his wife. They raised
hue and cry alleging that he [husband] and others murdered her. This
led to a police complaint, arrest etc.
The author asked the father and mother of husband as to why
they did not tell these details to RDO. They said that they were not
fluent in Tamil and the RDO just asked about the marriage, the
stridhan given etc. To a question by the RDO as to how the deceased

REALITIES 45
374 EPISODES

died, they said that they do not know the reason. They only said that
they never demanded any dowry or treated the deceased with cruelty.
The author found certain aspects supporting the version of the
husband. He hence asked the husband to bring in the doctor’s
prescription and the other details regarding the treatment given to his
wife earlier. Medically, the bursting of adrenaline cyst could have been
natural leading to anaphylactic shock. [The author got this input from
his close friend who is a doctor.] It will lead to sudden death. No doubt
the bursting may be also due to a kick or force on the abdomen.
The RDO during his examination was asked as to why he has not
taken steps to examine the husband and his brother in law. The law
stipulates that the RDO has to issue summons for such examination.
The RDO stated that since they were in prison, he did not take steps to
examine them. He only doggedly maintained that his inquiry pointed to
unnatural death within 7 years of marriage and there was dowry
demand.
The Investigation Officer was asked during his cross examination
about an important aspect in the Observation mahazar at the Scene of
Occurrence. It indicated that the latch inside the bedroom door was
broken. This suggested that the version of the husband that he forced
opened the door was true. The Investigation Officer had no explanation
for having failed to investigate on these lines.
The post mortem doctor in chief examination deposed about the
bursting of adrenaline cyst and opined that it was the cause of death.
The doctor also gave opinion that the bursting of the cyst could have
been due to a kick or force to the abdomen. In cross examination the
doctor accepted that the adrenaline cyst could have burst due to
natural reasons. He also accepted the suggestion that the bursting will
cause anaphylactic shock leading to sudden death, giving no room for
the deceased to cry or ask for any help. The post mortem doctor fairly
conceded that if the deceased was aware of the cyst and was taking
treatment, the doctor who gave her the treatment on diagnosis can
give better opinion in this regard.
The doctor who treated the deceased during her life time was
examined in defence. The reports with findings and her prescriptions
were marked through the doctor. The doctor opined that in one year

REALITIES 45
 EPISODES 375

time, the cyst would have grown to a great extent posing a danger of
getting burst at any time naturally and suddenly. The doctor also
stated that her medicines were only to lessen the pain and it will not
have the effect on the cyst. Surgery was the only solution.
The other witnesses on dowry demand and cruelty were not
cogent and convincing in their deposition. The Investigation Officer
earlier in his deposition stated that he has no knowledge at all about
the prior medical condition of the deceased. The Judge ultimately
acquitted the husband, his mother and his brother in law. The father of
the husband has already expired during trial.
The court did not comment anything [magnanimously] on the
mode of conducting the RDO enquiry or the investigation in its
judgment.
CASE III:
The public caught a cell phone snatcher [thief]. The person was
handed over to the police by the owner of the cell phone along with
the snatched cell phone. The Inspector arrested the person, enquired
him. A confession was recorded and he was taken to places pointed
out by him. More cellphones were recovered. He was brought back to
the station with the seized cell phones. The police constables on duty
were asked to keep him in the lock up and also to keep a watch on the
person during the night. The Inspector stated that he will enquire him
again in the morning and send him to remand. The Inspector went
home.
The police constable in charge of lock up during night hours [let
us call him X] put the person in the lock up. Later during early morning
a policeman from Intelligence Section [IS} visited the station, saw the
thief and enquired him as to whether he needed a tea. The thief stated
to him that the other policemen on duty have given him tea already.
In the morning, the lock up in charge policeman X got relieved
from duty and one K took over charge from X. This is a routine
happening at police stations. Three more constables A, B and C also
came with other policemen for morning duty relieving the existing
policemen.

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376 EPISODES

At about 8.30 AM, the Sub Inspector asked C to go and get the
thief as Inspector was due to arrive for enquiry. C went and told K and
when C and K went near the lock up, they found the thief hanging
from the window inside the lock up room. On their alarm the Sub
Inspector rushed there. The lock up was opened and the SI on
touching the thief noticed, he was still alive, cut the noose and took
him to hospital along with C. The other policemen informed the
Inspector on phone about the happenings. He rushed to station. In the
meanwhile at the hospital the doctors declared the thief as “brought
dead” on their arrival. The SI informed about this to the Inspector who
instructed him to finish the formalities at the hospital and come back.
In the meanwhile the Inspector reported the incident to the
Deputy Commissioner of Police belonging to that range. He also came
to the station. A FIR was registered, as per S.174 CrPC and the
Executive Magistrate [Revenue Official] was intimated as per S. 174
and 176 CrPC. The lock up room was secured to be kept in the same
condition.
REVENUE [EXECUTIVE MAGISTRATE] ENQUIRY: - The
incident happened prior to the year 2005. Now after the amendment to
CrPC in 2005, such enquiries are held by Judicial Magistrate. The
enquiry by the revenue official was held in accordance with S. 176
CrPC r/w the TN Police Standing Orders. The Personal Assistant [PA] to
the Collector holds such enquiries in metropolitan city of Chennai.
In every police station there will be some policemen who may
have differences with the Inspector of Police. Such persons are
ascertained and their statements are taken as gospel truth by the
revenue officials. The Inspector [L & O] is the person responsible for
the entire station including the lock up. The Sub Divisional Officer
[Assistant Commissioner or Deputy Superintendent of Police as the
case may be] has to visit the police stations under their control and
supervise/check. One of such checks is to verify as to how many
accused are in lock up and whether there are entries in the relevant
books of the police station in this connection. These are mentioned in
the TN Police Standing Orders and while Inquiry the Executive
Magistrate [EM] has to verify these aspects.

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 EPISODES 377

In the instant case, the EM during Inquiry recorded the

statement of a police constable. This police man stated that though it
was the duty of X as person in charge of lock up to make entries in the
relevant registers [Sentry Relief Book] for putting the person in lock
up, he did not make such entry. X confirmed while he was confronted
with the relevant entry in this regard that it was the Inspector who
made the entry.
At this stage, the statement of a disgruntled policeman of the
station was recorded. He stated that only the next day morning, after
the death of the thief at the hospital, the Inspector inserted the entry
in the Sentry Relief Book., as if it was made the previous night. The EM
thought that the Inspector has no such power to make entries in the
Book at all and only X had the power. The EM hence thought that
something happened at the police station which resulted in the lock up
death. This basic non understanding/erroneous/wanton belief led the
EM to proceed throughout with a partisan mind. He [EM] then recorded
the statement of K as to whether he saw the thief before taking charge
from X. K innocently and truthfully replied that though he was
supposed to physically verify, in routine manner it is not done
generally. He accepted that he took charge without verifying
physically.[ This may amount only to misconduct on the part of K and
definitely not an offence.] The statement of C confirmed that along
with the SI he cut the noose and took the thief to the hospital. He also
stated that both of them felt that the thief was alive and could be
saved. The presence of A and B was proved .[ In fact they did not
dispute as being present in the station on that date.]
The EM visited the lock up and prepared the mahazar. He
secured the cut elastic rope [used by the thief from his underwear].
The Inquest on the body of deceased revealed no external injuries at
all on the body. The post mortem doctor clearly opined that the elastic
shown to him could have been used as a noose and it is capable of
causing the death of a person. The PM doctor stated to EM clearly that
the deceased could have died of asphyxia due to hanging. The doctor
was confronted by the EM that the height of the window at the lock up
was a little lesser than the height of the thief. To this the PM doctor
stated that a person can successfully commit suicide by folding his legs

REALITIES 45
378 EPISODES

which is known as partial hanging and that it was sufficient to cause

death by asphyxia. The statement of all policemen indicated that the
thief was in a kneeling position with noose around his neck in the lock
up.
The EM earlier instructed the PM doctor to video graph the post
mortem. It was done and the CD was given to EM. The EM asked the
doctor to take the tissue beneath the skin where the noose mark was
there and send it to histopathological examination. The PM doctor did
this also. [The EM assumed to himself more experienced in post
mortem techniques than the PM doctor himself!!!]
The EM concluded the enquiry and gave a detailed report. He
has concluded in the report that there were lapses on the part of the
Inspector of Police, X and two other policemen who were on night duty
when the thief was brought to station. He recommended department
action against them. [It is not known as to how he has stated so
though his report clearly accused the Inspector of inserting /making
false entries in the Sentry Relief Book to screen the so called incident.]
In respect of the SI, K, A, B, and C [five of them] the EM concluded
that they have to be prosecuted for murder and screening the murder,
that is 302 and 201 IPC. He concluded that it was a custodial death as
the incident happened due to negligence of the police officials [i.e., the
5 persons.. It is noteworthy that the minute the EM concluded that
there was negligence, then it cannot be culpable homicide or for that
matter murder. In case he thought that their negligence led to death,
it can be termed only as a case of suicide as there were no injuries at
all. Still he recommended prosecution and the Court also took
cognizance of the offences.
One may assume or justify that the EM may have only
committed error. This was demonstrated as incorrect during trial.
The trial [went on for more than 10 years]. Some of the
policemen, i.e., A, B and C retired pending trial. The SI already expired
even before filing of the complaint by the EM. The post mortem doctor
gave a clear cut opinion that it was a suicide. In cross examination his
expertise in conducting post mortem was brought out. He deposed that
collection of tissue below the skin where the noose was there is not
required. Still he did it because of the direction of the EM. The doctor

REALITIES 45
 EPISODES 379

clearly said from examination of underlying tissues, they can conclude

as to whether it is suicide or not. Only in cases of suspicion/doubt on
such examination, they collect the tissue and send for histopathological
examination. In the instant case, he was certain on examination of the
tissue during PM that it was suicide only.
The EM during his deposition got his ignorance exposed. He
admitted that he has never conducted any PM [he cannot actually] and
hence cannot tell the effect of examination of underlying tissues in the
neck. He has not filed the CD of the post mortem, the histopathological
report, for which he had feeble and untenable excuses. His ignorance
on the TN Police Standing Order was further exposed when he
admitted that he did not know the rule in the standing order
empowering the inspector also to make entries in the Sentry Relief
Book. He was asked to explain as to why there was no prosecution of
the Inspector and non examination/prosecution of the concerned
Assistant Commissioner of Police. He had no answer. He feebly claimed
that they were not necessary.
The readers may note certain features here. The role of the
Inspector as per the report of EM was that he inserted[ i.e. to falsify]
the entries in the Sentry Relief Book to show as if the thief was put in
the lock up the previous night itself. This by itself show screening the
offence which attracts punishments under section of IPC [S. 201 IPC].
Apart from this the Inspector’s action may amount to abetment or
conspiracy to commit murder. Still the EM has not held him responsible
for S. 302 IPC or S. 201 IPC. Similarly the Assistant Commissioner’s
[Sub Divisional Officer] role, if any, in not noticing the fact that a
prisoner was kept in the lock up without entries in the Sentry Relief
Book during his night visit, was not probed at all. The said officer will
also be liable for the offences as abettor etc. Worst, he was not even
identified for departmental action, if any.
In trial, a defence lawyer faces piquant situations in such
instances. A pro prosecution Judge does not relish questions based on
those lines. The minute a question is fielded as to why the Inspector, if
actually has done the acts, was left out, even before the witness
answers, such Judges will retort,

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380 EPISODES

“Do you want the court to prosecute such persons also? We are
here to Judge whether the accused before us is guilty or not.”
Two views are possible here. A Judge without fully
understanding the implications of the questions may react as above. It
is excusable. Certain other Judges knowing fully the implications of
such questions and its legal permissibility will react as above. It is
deplorable in such cases and evidence of the fact that the Judge is
biased. [Defence lawyers have to be polite in both the above cases as
they have to maintain decorum!!!]
The purpose of the question will be to show that no such entry
was made belatedly by the Inspector as the Inspector is fully justified
in making entries in the Sentry Relief Book and he did make the entry
at the relevant time itself. Similarly it will be suggested that because of
the proper entries, the Sub divisional officer [ACP] who will vouch for it
was not examined by the EM. These questions and suggestions are
fully relevant as per the provisions and scheme of the Indian Evidence
Act. [Sections 9 and 11 of IEA.]
K, A, B, and C were finally acquitted by the trial Judge. Of
course this Judge [a lady, who assumed the role of trial Judge in the
middle of the trial,] fairly accepted the issues raised in the case
including the conduct of EM. They were fairly appreciated in the
judgment. In retrospect, it is to be mentioned here that the case which
was pending nearly for about 14 years from the date of incident, was
expedited only by this Judge who delivered the judgment. It was done
within one year and the Judge pronounced the judgment. Thus the
episode was over in 15 years from the date of incident.
The above three cases are only a few. Several such cases
involving the inquiry by Executive Magistrates can be quoted. Have
they in any way increased the quality of the justice delivery system?
We should have the heart to accept that it is not. Actually it has to be
agreed that in some cases, such inquiries should have helped unearth
facts which the police either fail to unearth or unable to unearth. The
purpose of this narration is not to criticize these procedures. It is for
identifying the evils arising from them in order to rectify it. Let us see
some of these in the three cases we have seen above.

REALITIES 45
 EPISODES 381

In the first case, the head constable was sought to be made

liable for custodial death. Till the entire trial was over there was no
remedy for him. People may say there will not be smoke without fire.
This will be their reaction, when the case is in the first stage of
institution of the case.
In the second case, one may say the north Indians do have a
custom of demanding more dowry and also because they are business
people mostly.
In the third case, one may say though the case failed the EM has
no interest but has faulted in his work.
The above are only a few. Now irrespective of the reasons, one
common factor is the concerned persons suffers silently for decades.
Has the law, our courts and Judicial process, ever thought as to how
an ordinary constable receiving meager salary will face such a
prosecution? Particularly even when he is denied salary due to
suspension? Do we inwardly assume that all constables are corrupt and
they can afford to face such a situation? Such issues lead to one result,
namely people tend to become corrupt.
__________

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382 EPISODES

EPISODE - 44
EAGERNESS TO CONVICT:
In Courts we do sometime see a particular Judge or presiding
officer more inclined to convict offenders facing trial before them.
These Judges can be classified into two categories., namely one
category of such Judges being morally convinced about the case,
resort to conviction of the offender. In case these Judges are honest
and cannot be influenced in any other way, it will be difficult to the
defence, but will be a boon for the prosecutor. This is because
conviction is 100% certain. In the other category we see, that Judges
though morally convinced about the guilt of the accused because of
certain factors, will not by pass the evidence and if the evidence is
insufficient, will grudgingly acquit the accused. In respect of this
second category of Judges or Presiding Officers, whether they are
honest or not is not the question.
The first category of Judges, with respect, is definitely not
suitable to our judicial process. The author has come across such
persons. The experience of the author in interacting with one such
Judge is worth mentioning. This Judge was friendly otherwise and will
freely interact with everyone both inside and outside the court. During
one such conversation, he told the author that in one case, he faced a
situation where the evidence was insufficient but still he convicted the
accused because he was morally satisfied. The author then asked him
casually as to what he will do in a case where the evidence is foolproof
but he feels that the accused is innocent actually. The Judge said that
he will convict the accused as he cannot by pass the evidence. The
author smilingly but bluntly told the Judge that the net result of
conducting a case before him is that a conviction is certain in all cases.
The Judge shaken a little, however kept quiet. He has however, not
changed his attitude or perspective throughout his career as a Judge.
The author would like to share with the readers one incident
involving the second category of Judges. There was a Judge who in
open court will say that if the evidence is strong and believable, he will
not show any leniency but will convict and punish the offender in a
severe fashion. The Judge, however, was a good Judge in that he will
help both the prosecution and the defence equally in the conduct of

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 EPISODES 383

the case using his rich experience as a trial Judge. The author
conducted a case before the said Judge some 35 years back. The case
was one of grievous assault and grave injury caused by the accused to
the victim. The case of the prosecution was that the left hand of the
victim was broken due to a assault by the accused with a casuarina
stick. The motive was a property dispute. The stage of the trial got set
and the victim was examined as PW-1. In chief he narrated as to the
motive, the manner, date and time of the assault etc in correct detail.
In fact he pointed to his left hand above the elbow and showed the
situs of the fracture. The Judge in the deposition in brackets recorded
that the victim has lifted his left hand and showed the situs of the
fracture. On conclusion of the chief examination, the Judge told the
author to cross examine adding that he was satisfied that the evidence
is natural and strong enough against the accused. The author politely
bowed in respect and proceeded to cross examine the victim and
elicited the answers. The Judge of course, did not remember the
details which happened during the examination in subsequent hearings
of the case. There were several cases of similar nature which were
tried by him. Nearly after one and half years, when several other
witnesses were examined in the case, the doctor who treated PW-1
and gave the opinion was produced by the prosecution. The Judge
recorded his evidence. [Those days, the Judge will record the evidence
in his own handwriting unlike now.] The doctor stated that he
examined PW 1 [name and other details] who was sent with a police
memo. He stated that the victim stated that he was assaulted by a
known person with a stick and the blow landed in his right arm above
the elbow and it was fractured. The X ray which was taken as part of
the treatment revealed that there was a mild fracture on the right
hand above the elbow and he certified that the injury was grievous in
nature. The X ray was marked. The wound certificate issued by the
doctor was also marked. The author cross examined the doctor by
affirming that the doctor personally attended the case of PW 1, he
studied the X ray and wrote the opinion in his own handwriting. A
suggestion was put in a routine manner as to whether the fracture
may be due to a fall to which the doctor said it was possible.

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384 EPISODES

Some more months passed and after examination of the

investigation officer and defence stage, the case was posted for
arguments. The Judge during arguments read the evidence of PW-1
and remembered the happenings when PW-1 was examined. He
immediately told the author that there is a fool proof evidence to
convict the accused. The author politely replied that the court cannot
come to the conclusion that merely the evidence of PW-1 is sufficient
to base a conviction. It must see the medical evidence. Then he
pointed out that PW-1 emphatically deposed that the fracture was to
left hand above elbow, whereas the medical evidence duly proved by
both oral and documentary evidence shows [wound certificate and X
ray] that injury was to the right hand. The author told the court that
this material flaw cannot be explained by the prosecution and the
benefit of doubt should go to the accused. The Judge on noting this
turned to the prosecutor and stated that though he wanted to convict
the accused, he cannot now do the same because of the contradictory
evidence which is direct. He told the prosecutor as to how this has
happened. The prosecutor was helpless. The Judge acquitted the
accused ultimately.
CONCLUSION: - Over the years, the author has noted the
declining standards. In similar situations, conviction is based on an
explanation that the contradiction is not material and may be by
oversight. There are Judges who write saying that flaws in the
investigation cannot affect the case. Certain other Judges write a
judgment explaining that in case of conflict between occular and
medical testimony or evidence, occular testimony is to be believed. No
doubt the higher courts have given such judgments but based on
different set of facts where the contradiction is explainable. There are
still Judges who go by the rule book and will base their judgment only
based on evidence and law. In case all Judges act uniformly like that,
the prosecution, police and the defence will learn how to project their
cases correctly based on law and evidence. Of course this is not the
real situation.
__________

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 EPISODES 385

45. SOME PARTING THOUGHTS

A few loud thinking thoughts are being shared with the readers
here. The readers are personally thanked by the author for patiently
reading the contents of this book so far.
The amendments to the Negotiable Instruments Act is first
taken here. This amendment has come into force with effect from 1-4-
1989. It was already noticed that, in the case of a cheque, dishonour
of the same by the bank on which it was drawn, may lead to criminal
proceedings ie., apart from civil liability as noticed above.
The prosecution u/s. 138 NI Act is meant to be a quick and
faster remedy. The Act originally provided for imprisonment or fine up
to twice the amount of the cheque or both in case the offence is
proved. The object and purpose behind providing for a fine upto twice
the amount of cheque, is with respect submitted, was not understood
in the fullest sense by us. The object would have been as follows:
Suppose a cheque for Rs. 2,500/- gets dishonoured. The trial for the
prosecution of the cheque dishonour on ending in conviction may lead
to imposition of fine upto Rs. 5,000/- as fine with a direction that half
the amount, i.e., Rs.2,500/- being the amount of cheque should be
paid to the complainant as per section 357 [1] CrPC.
A novel idea to give more strength to use of cheques in
commercial transactions was the driving factor for enacting S.138 to
142 [as it was originally]. The unexpected part was that it was not
done foreseeing several factors or rather several factors were lost sight
off. Let us see some of them presently: The NI Act provided for fine up
to double the amount of cheque. As per CrPC read along with NI Act,
prosecution u/s. 138 NI Act has to be instituted and conducted only
before a Magistrate of the first class in muffusil and Metropolitan
Magistrate in Metropolitan Cities. Section 29 of CrPC mandates that
such Magistrates can only impose a fine up to Rs.5, 000/- [after the
year 2005 up to Rs. 10,000/-. This was the first handicap in
sentencing. The result: the case may end up in imprisonment and fine
but no real remedy to the complainant. [In cases of cheque amounts
exceeding Rs. 5,000/- or Rs. 10,000/-] Later Section 357 [3] was
pressed into service to get over this, but there were certain other
difficulties then. Summary trial proceedings was stated to be a solution

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but it also posed some difficulties. One after another these difficulties
manifested in collateral proceedings, that is quash petition, revisions,
etc in higher courts, leading one simple case of cheque dishonour to
several cases [collateral proceedings inclusive]. The ultimate result,
arrears and pendency of cases.
There was another curious instance in the beginning. Several
money lenders prior to the NI Amendment Act 1988 have advanced
loans and obtained cheques from the borrowers. In most of the cases,
undated signed cheques were so obtained. Those creditors/money
lenders could have used the cheques in a civil suit only. The
amendment Act came as a boon in several instances to those
unscrupulous money lenders. They got those cheques dishonoured and
filed prosecutions. They handed over cheques to others for using it etc.
The debtors were taken by surprise. The Legislature, unfortunately did
not foresee this malady which could have been averted.
The Legislature ought to have said that only certain cheques
[issued by bankers after 1-4-1989 obviously with some prominent or
distinguishing description indicating the issuance of such cheque leaves
after 1-4-1989] can if dishonoured be the subject matter of S.138 NI
Act. Borrowers would have known as to the effect of issuing such
cheques. The other cheques in the hands of creditor could have been
used only for filing civil suit as per the original position.
The readers must bear in mind that when one resorts to the
available judicial remedies [like filing revision etc] he cannot be faulted
for contributing to the arrears. Similarly as per the existing procedural
laws, Courts cannot be faulted always for entertaining them, though in
some cases courts could have averted such litigations, it cannot be
attributed as a major factor. It has however, substantially contributed
to the arrears of cases in courts. The law makers should have foreseen
these aspects. Then it is still not known as to what type of
consultations /advices the legislatures receive before embarking to
enact such legislation. Largely they borrow from the jurisprudence of
other countries. It has already been emphasized elsewhere in this book
about the faults in following such a course.
We can note certain aspects here. The Indian Evidence Act 1872
is common to both civil and criminal proceedings. The Indian Limitation

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Act also contains limitation aspects in respect of both civil and criminal
cases. Only the procedural laws, namely Civil Procedure Code 1908
and Criminal Procedure Code 1973 are different for civil and criminal
proceedings.
One can note certain other aspects here. The introduction of
Section 138 NI Act prosecution, has added to the existing case load by
opening up a new avenue of litigation. Prior to this cheque dishonour
cases may be the basis of criminal case in certain cases only as per
Section 420 Indian Penal Code. Otherwise the cheque could be used
only in the civil litigation. A small statistics may be seen here.
Suppose there are 100 prosecutions under section 138 NI Act
pending before a Magistrate Court. One can foresee that almost the
same number of 100 civil suits or a slightly less number will be
pending on the loan or other liability in respect of which the cheque
was given. Is it not possible to have one common procedure to solve
both the cases at the same proceedings? This way if one lakh ,Section
138 NI Act cases are pending in criminal courts, with another one lakh
civil cases on the civil side, they can be brought to one lakh totally
reducing the tally from two lakhs.
It is the author’s view that we should leave aside the archaic
procedural laws like CPC or CrPC in such cases. A comprehensive
hybrid procedural laws may be thought off which contains both civil
and criminal procedural aspects in one enactment which a court can
apply. It should be so enacted that there should not be any necessity
to have reference to other procedural laws. An illustration may explain
better:
ILLUSTRATION:
A and B enter into a commercial loan or other transaction in
which a cheque is given by A to B. The same is dishonoured. In case
the matter is not resolved after issuance of statutory notice a
comprehensive case can be filed in court. The prayer in the case will be
A] to punish the opponent party
and / or
B] pass a decree for the amount due and claimed as per the
case.

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A fixed court fee can be affixed for institution of the case. The
court may receive the loan documents during the trial of the case,
allow examination of witnesses and ultimately may
a] dismiss the case , or
b] Convict the opposite party for the cheque dishonour and
decree the amount claimed , or,
c] acquit the opposite party for offence u/s. 138 NI Act but
decree the amount claimed. Etc, and
D] Such other reliefs.
In case the decree is passed, the Court can ask the claimant to
deposit the additional court fee in addition to the court fee paid in the
first instance at the time of instituting the proceedings.
This will avoid certain maladies. The criminal courts in most
cases convict and sentence the drawer with no remedy to the holder.
The holder is again relegated to the civil court. There, in the civil court,
new defences are taken and the suit is prolonged. In certain cases,
anticipating relief from criminal court, the party may lose limitation
period thereby losing the remedy of civil suit itself. The holder of the
cheque, sometimes is benefitted by recovering the entire amount
without paying court fee which is the due share of the State.
This HYBRID PROCEDURAL LAW can be equally applied in
another instance also. It is in traffic accident cases. The proceedings
for criminal liability in respect of the accident and the claim
proceedings before the Tribunal can be clubbed by resorting to such
hybrid procedural laws. We can think of more such cases.
It is noteworthy to mention here that we have already
proceeded on these lines, but it is felt, without proper vision. The
Consumer Protection Act is an example. The Consumer who feels
aggrieved can invoke the single law, i.e. CP Act to get civil redressal by
way of compensation, proper services, replacement of defective goods
etc. The person who sold the goods or rendered defected service can
also be punished in some cases. Those, actually are not cases for
punishment for rendering such deficient services or selling defective
goods. It is only for a limited extent of punishing the trader or seller
for non compliance of the order of consumer forums. This law hence

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though could be seen as welcome attempt, cannot be taken as an

example of a comprehensive hybrid procedural law. This is because of
the following;
1. The consumer if defrauded and cheated by the trader can still
file a criminal complaint.
2. The trader or the person rendering service etc, has no
remedy before consumer forums, if he has a cause of action., ie.,
example non payment of sale price etc.
3. The third drawback is that the CP Act only opened a new
forum by partially closing the existing forums. It has partially closed
the doors of civil court [for consumers] but still the civil court and Civil
Procedure Code can be resorted to by traders. Thus the result is it is
not comprehensive in respect of cases of a particular subject matter.
The object behind every law is ‘UBI JUS IBI REMEDIUM”, that is
where there is a right, there is a remedy. This remedy should be actual
and real. It should not be like a mirage. The complexity of the laws,
the level of competency of the advocates taking up the cases, dreary
procedures have made the remedy a distant dream for the litigants.
There are instances where a victim of [genuine] rape, gets the
offender punished after decades. A corrupt public servant who has
amassed and secreted the ill gotten wealth is the beneficiary of the
system. An accused wrongly accused of a grave offence may get
incarcerated for several years in prison and ultimately gets released
but with no compensation for the suffering. Thus remedy becomes
fruitless and possession of the right alone remains only on paper.
Throughout this book, the readers were taken through some similar
instances in real life happenings.
PIECEMEAL LEGISLATIONS:
The idea of every first court which a litigant approaches should
be to give him a complete remedy for his cause and a quietus to the
case subject matter. A litigant who suffers wrong, if he proves his case
should get, civil remedies, remedies for a crime committed, etc all in
the same court he approaches first. Similarly in case a litigant comes
to court with a false case then also the remedies given to the affected
party by such false case, should be comprehensive. The case should be

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dismissed, the person who filed the case or the cause for the filing of
the false case should be burdened with costs or punishment for filing
the false case. The state which sponsored [filed final report] such false
case should be directed to give adequate compensation to redress the
injury to the person falsely charged etc. All to be done in the same first
court.
One or two right of appeal upto the highest court may be
provided in law, but on the same above said principles and analogy.
Reality is that we have not done it though we have experienced such
situations. The Labour Laws in our country is an example of piecemeal
legislation. Every time a subject or cause arises like wages, social
security, welfare, etc a law is passed. Different forums are created but
remedy was going far and far away. We realized it very late and now
we are trying/passed comprehensive labour laws.
We require “Ubi jus ibi remedium” ie., where there is a right
there is a remedy. Not a situation of “Injuria sine damnum” i.e. injury
without damages. [used in the context that if remedy for an injury is
non existent if it cannot literally be obtained or seen in near future.]
ARCHAIC LAWS:
There can be progressive society only if there are dynamic and
not archaic laws. This should not be understood as merely to pass
more and more laws. There should be complete rethinking, moulding,
scrapping etc of existing laws, while passing a new law.
An idea is being shared with the readers here. The advocate
profession [independently practising advocate and not full time
advocate/law officers of Government] is termed as noble. We have
already seen the reservations for such a view. Let it be. The ground
reality is that advocates have to basically think of their livelihood, i.e.,
earnings to sustain themselves and their families. First, we come
across young; advocates have to even forego their lunch sometimes
for the sake of their clients, as the court generally can not be made to
wait. There are no uniform timings, though it is stipulated. One Judge
may rise late but sit early on the dias etc. Secondly the advocates in
their early career can only get paltry fees and in some cases even no
fees, in order to retain the client and the brief. Thirdly, he may not get
work to keep him engaged throughout 24 hours. The minute Court

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closes for the day, if he has no Chamber work, he is idle. Fourthly even
during the day, he may have few hours of work and remain idle for the
remaining day. Fifthly, the profession is highly competitive. Sixthly, we
falsely eulogize the persons taking up advocacy and one get carried
away by that only later to realize that such eulogizing will not feed
him. The causes may be multiplied. Advocates entering Government
service as full time law officers or firms, companies etc as full time
employees may at least be guaranteed to a certain extent of their
livelihood. They can remain idle after working hours since they have a
guarantee of livelihood in the form of salary. Judges / Prosecutors /
Government Pleaders can utilize their time by reading, enriching their
knowledge etc in a way they can spend their time [not idling] as they
are also guaranteed of their livelihood. Even some independent
advocates [who have lands of their own for agriculture] can use their
timing, as agriculture is allowed as per Conduct rules of the Bar
Council. In case a first generation advocate with a poor or mediocre
back ground enters the profession, he has to suffer silently.
The recent pandemic of Corona has left several of such
advocates to the verge of penury. They still cannot get employed even
for a meager earning. The Bar Council rules, etiquette etc., expect an
advocate not to indulge in other employment, business etc.
No doubt, the above situation of imposing restrictions may be
proper in western countries and even in India for advocates coming
from affluent background. Not for a majority of advocates as already
stated. Does the State want them to be eulogized only to suffer due to
poverty in silence. We cannot boast ourselves of a progressive,
socialistic society etc really. It is high time that this archaic law or
restriction is scrapped. The concerned advocate should be free to get
employed and earn simultaneously while practising as an advocate. It
is for him to decide as to how much time he can work elsewhere, his
strength and capability and how he can carry on profession efficiently
etc. Thus full time independent advocate should be the rule of
feasibility and not a statutorily imposed restriction.
We allow teaching for an advocate on the premise that
imparting education is not a business of profit but a sacred vocation.
Hence advocate as per Bar Council restrictions are allowed to take up
teaching. We fail to understand that education is no longer a sacred
one as we hypocritically claim but it is one of the modern flourishing

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business. [Deemed Universities, private colleges etc.] This may also be

considered as one of the reasoning to remove the restrictions on
employment by an advocate. There were and of course there are some
who still teach on the meager income they derive or get. They do not
take up private coaching/tuition etc to get more income. They are
again examples, to show that nobility is not to be attached to any
activity, profession, business, vocation etc., but to the person who
practises such nobility.
The degree of law should be made accessible to everyone, if
one wants to have a level playing field on competition basis. There
may be a person on a small employment having studied well upto even
post graduation. We see such cases in actual life. [We preach that
there is nothing wrong in such employments as one should take pride
in doing any work with devotion. Usually one can see such preachers,
preaching in fact a false sense of vanity in others, while holding high
positions. Most of them are also corrupt in mind, body and
monetarily.] Then if such person wants to study law, we restrain him,
stating the Bachelor of Laws should be full time course. You allow such
persons to join Law Course removing the restrictions and see. Some of
them will come up fully learned and as wonderful advocates. We are
shy to accept that a full time student is compelled to attend classes
even when majority of such classes are boring. The students are forced
to attend due to attendance requirements. Remove these restrictions
but make the standard of education tough and difficult. Leave the
students to attend or not to attend by scrapping the rule of
attendance. Give them teaching which is really useful, interesting and
worthy. Students will flock the lectures voluntarily. Best results could
be achieved.
Readers may ponder over these issues and decide for
themselves leaving partisan considerations aside. The ideal of
everyone having an interest in law, can study and qualify in it and no
one will starve. This may be one way to get over difficult situations like
pandemic corona, achieve equality to all citizens in India etc in the real
and full sense.
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