Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., emphasised that all stakeholders in the process of administration of justice should discharge their commitments sincerely.

The High Court was set to dispose of a second appeal filed before it in a suit for malicious prosecution. The defendants in the suit had earlier filed a complaint against the plaintiff, who was acquitted by the Judicial Magistrate. Alleging that it was a false complaint filed only to victimise him, the plaintiff filed a suit for malicious prosecution claiming damages from the defendants. The trial court dismissed the plaintiff’s suit, but the first Appellate Court ruled in his favour. Aggrieved, the defendants filed the second appeal which was before the High Court.

Noting the ‘substantial questions of law’ on which the second appeal was admitted, the High Court went on to observe that the formulation conveyed no meaning, it made no sense at all.

Choosing to be frank with an eye on future“, the Court recorded that although Section 100(4) CPC states that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question, what mostly happens in practice is not in strict consonance with the statutory mandate.

The Court said:

Since Section 100(3) CPC states that the appeal memorandum shall precisely state the substantial question of law involved in the appeal, once the Judge is satisfied that a case has been made out for admitting the second appeal, instead of independently formulating the substantial question of law arising in the appeal, instruction is given to the stenographer to copy down certain particular grounds from the appeal memorandum.”

It further noted that if the counsel’s formulation is flawed and defective, the Court record also carries the same vice. Underscoring the commitment that Justice and the judicial system demands, the Court observed:

Since the judicial workload is staggering, it is not fair to expect the judges to expend too much time and energy in proof-reading. The counsel must assume greater responsibility. They must deeply study the case record. Their grasp of the legal principles must be thorough and accurate. The distilled understanding must be reflected in the appeal grounds. They must be properly drafted. There should not be grammatical and spelling errors. The role of stenographers and typists is equally significant. Only if all the stakeholders discharge their commitments sincerely, howlers like what we saw now can be avoided.

Then, the High Court reframed the substantial questions of law involved in the second appeal and decided the appeal on merits holding that only Defendant 1 (out of six defendants) was liable; and the plaintiff was awarded damages amounting to Rs 50,000 with interest. The full report of this case where the High Court has had an elaborate discussion on liability in a suit for malicious prosecution, can be read here:  LINK.

[M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of S. Talapatra and Arindam Lodh, JJ. dismissed an appeal filed against the decision of the Sessions Judge whereby the appellant was convicted and sentenced under Section 302 IPC for committing the murder of his wife.

The appellant was alleged to have poured kerosene on his wife and put her ablaze. He was accordingly convicted by Sessions Judge. Senior Advocate P.K. Biswas assisted P. Majumdar, Advocate representing the appellant challenged the dying declaration made by the deceased wife. It was argued that the dying declaration was not taken in accordance with the established principles of law and thus could not form the basis of recording conviction against the appellant. Per contra, A. Roy Barma, Additional Public Prosecutor appearing for the State submitted that the objections relate to some technical defects which should be ignored.

The High Court, on careful scrutiny of evidence, found that the signature or thumb impression of the victim could not be taken on the dying declaration as her hands were totally burnt. The Court put reliance on Inder Singh v. State (UT of Delhi), (1978) 4 SCC 161 and Pattu Rajan v. State of T.N. (2019) 4 SCC 771. It was stated: “There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.”

The Court further observed: “Another important aspect to be borne in mind is that in our country, the Executive Magistrates or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in Pattu Rajan case we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by the realistic and traditional approach  for administering justice in a criminal trial.” In such conspectus, it was held that there was no reason to interfere with the impugned judgment and the appeal was, therefore, dismissed.[Khokan Sarkar v. State of Tripura, 2019 SCC OnLine Tri 197, decided on 25-04-2019]

Case BriefsForeign Courts

Supreme Court of Singapore: A Single Judge Bench of Woo Bih Li, J., allowed the summons filed by the petitioner, whereby petitioner sought to convict the respondents under Section 3(1)(a) of the Administration of Justice (Protection) Act, 2016 for the offence of scandalizing contempt.

The respondents had posted some alleged scandalizing remarks against the judiciary which according to them was a fair criticism and hence protected under Article 14 of the Constitution of Singapore which is the supreme law of the land. The respondents further challenged the constitutional validity of Section 3(1)(a) of the Administration of Justice (Protection) Act, 2016.

The main issue that arose before the Court was whether Section 3(1)(a) of the Administration of Justice (Protection) Act, 2016 is unconstitutional and whether the respondents were actually liable for scandalizing contempt.

The Court observed that the “risk” test laid down under Section 3(1)(a) needs to be satisfied in order to charge a person for scandalizing contempt. The actions or words of the accused should be such that there surfaces a risk of loss of public confidence in the administration of justice. The Court further observed that this risk test is not a new concept and it used to prevail even before the 2016 Act came into force. Earlier the test under common law which was used in order to assess the conduct of a person for contempt was a “real risk” test. The approach of both the tests is same i.e. a question needs to be asked as to whether the conduct in question poses a risk that public confidence in the administration of justice would be undermined? This question needs to be answered objectively from an average rational person’s point of view.

The Court held that the “risk” test is a permissible restriction under Article 14(2)(a) of the Constitution of Singapore. There is a direct nexus between the object of Section 3(1)(a) of the 2016 Act and the permissible restrictions given under Article 14(2) of the Constitution. The Court further held that the offence of scandalizing contempt must be proved beyond reasonable doubt and mens rea is immaterial while charging a person for the offence under Section 3(1)(a) of the 2016 Act. The Court concluded by holding that fair criticism does not amount to scandalizing contempt and the accused can seek protection under the blanket of fair criticism but in the instant case, the actions of the respondents cannot be brought under the concept of fair criticism. The Court held the respondents are liable for the offence of scandalizing contempt under Section 3(1)(a) of the 2016 Act. [Attorney General v. Wham Kwok Han Jolovan, (2018) SGHC 222, order dated 09-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: While dismissing the revision petition filed against the order of the Addition Sessions Judge, the Court said that it is duty of the lawyer to make a balance between client’s interest and administration of justice

The Petitioner had preferred an application under Section 311 of Criminal Procedure Code (Power to summon material witness, or examine present person) to recall a witness in a rape case on the ground that the accused was not given an opportunity to take cross examination of three witnesses. The Trial Court dismissed the application on the ground that the witnesses were already cross-examined and the power under Section 311 could not be used to harass a witness in a rape case.

In the Revision Petition, the Council was asked to place on record the questions he wanted to ask the witnesses. Repeated adjournments were sought by the Petitioner, but still he did not place the document before the Court. The State Council, Mr. S.K. Yadav, submitted that such an attempt by the Petitioner is only to delay the trial.

The Court dismissed the application on the ground that the Petitioner has taken contrary stand in the lower Court and the High Court and has also given false reasons at different point of time during the trial. The bench comprising of Mrs Anita Chaudhry J., further observed that “The lawyer’s duty towards his client has to be balanced. They owe a duty to the Court and to the administration of justice. The lawyer who filed the petition and represented the petitioner till the last hearing had mislead the Court. The legal practitioner’s duty to promote his client’s interest must never transcend his duty to promote the interest of justice and truth. He also has a paramount duty towards the Court. His duty is to uphold the interest of justice and it should be of absolute condour.” [Harpreet  v. State of Haryana,2016 SCC OnLine P&H 4035decided on 03.06.2016]