Experts CornerSiddharth R Gupta

Publicity is the very soul of justice, it plays a vital role in the rule of law. Open justice is a safeguard against judicial arbitrariness or idiosyncrasy and maintains the confidence of the public in the administration of justice. Where there is no publicity, there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the Judge himself whilst trying under trial.

Jeremy Bentham, Jurist[1]

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The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to  found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

Lord Atkinson in Scott v. Scott[2]

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What proved to be a groundbreaking verdict by the Supreme Court in 2018 in Swapnil Tripathi v. Supreme Court of India[3], it could translate into reality only recently with very few of the High Courts of the country following suit and starting real-time live streaming of proceedings with the Karnataka High Court being the latest entrant in the fray. Though the constitutional necessity of live streaming of court proceedings was pronounced in 2018, it was only in the later half of 2020, when Gujarat High Court pioneered in practice by starting live transmission in October 2020. As on 15-5-2021, the said YouTube channel live streaming the court proceedings of Chief Justice’s Court had been touching around 35 lakh views, with a whopping 60 thousand odd subscribers approx. This globally available channel has 100 (odd) videos available to be accessed anytime by anybody for its viewers.

 

In two parts of this article, we thus trace out the nuances associated with live screening of court proceedings; the sinking challenges and opportunities brimming with the possibilities of transforming the Indian justice dispensation system into an affordable, accountable, accessible and acceptable one for the citizens of the country. The article shall be staggered under the following heads to the make the whole read interesting and engaging.

 

Part I

  1. The Prelude – “Open Courts” and “Publicised Justice”
  2. Indian Context to “Open Courts”
  3. Statutory Canons recognising “Open Courts”
  4. Innovative Instances from Early 21st Century
  5. Swapnil Tripathi Judgment and its Trail in 3 Years
  6. Exceptions to Live Streaming and Visibility of Courts
  7. Video Conferencing Rules of Various High Courts
  8. Oral Proceedings and the Right to Report of Journalists
  9. The Epilogue

 

  1. The Prelude – “Open Courts” and “Publicised Justice”

Under the Indian Constitution, the courts, especially the constitutional courts like the High Court and the Supreme Court have an eminent role to play. The Indian Constitution was nurtured in the glory of common law ushered in by the British along with them, which had always followed the venerated practice of “open courts” and “publicised justice”.

 

 Common law has always treated court as a “seat of service” rather than as a “place of status” . In India neither the Civil Procedure Code, 1908, Criminal Procedure Code, 1973 nor for that matter General Clauses Act, 1897 defines the content of the term “court”. However, a profound research aimed at discovering its meaning leads one to the general glossary of the Legislative Department, Ministry of Law and Justice, defining “court” as a “place” where justice is administered. Section 3 of the Evidence Act, 1872 defines “court” to include all Judges, Magistrates and all such persons legally authorised to take evidence. Section 20 of the Penal Code, 1860 succinctly explains “court of justice” as – a Judge who under law is empowered to act judicially alone or a body of Judges to act judicially as a body, and when such Judge or collegium of Judges acts judicially.

 

The dictionary of the US Federal Judiciary elaborates “court” as a government entity authorised to resolve legal disputes, whilst Black’s Law Dictionary states it to mean a governmental body consisting of one or more Judges sitting to adjudicate disputes or a place where justice is judicially administered. It is, therefore, beyond any cavil of doubt that the lowest common denominator of all the definitions across the globe imply “court” as a government entity comprising Judges handling the administration of justice. Ergo “court” is a “seat of service” rather than a “place of status” or a position. To this “seat of service”are attached duties and obligations, much higher than other wings of the executive, obliging its incumbents to act judicially with a scintillating conscience for administering justice.

 

“Open court” had thus been the bedrock of the British system, wherein originally all trials were held “ostis apertis” i.e. with open doors and windows. The practice of “open court” or “open judicial proceedings” was established during the 17th century, when in 1612 AD, Lord Coke lauded the great principle that all causes must be heard, ordered and determined openly. An “open court” with a “transparent justice” has always been trusted to deter judicial arbitrariness idiosyncrasies in the delivery of justice, a problem which the judicial system of every developing country has to pass through to mature. “Open court” principle is supported for three reasons: firstly, it assists in the search for truth and is informative and educational for the public. Secondly, it enhances accountability and deters misconduct on those delivering justice. Thirdly, it has a therapeutic function offering a mental assurance that justice has been done. “Open justice” had its origins in England before the Norman conquest, when free men in the community participated in the public dispensation of justice.

 

2. Indian Context to “Open Courts”

In India, “open courts” with a “publicised justice” system came to be judicially acknowledged emphatically in Naresh Shridhar Mirajkar v. State of Maharashtra[4], where the Court was addressing the submissions of the journalists that they had a fundamental right to attend the proceedings of the Court under Articles 19(1)(a), (d) and (g). A nine-Judge Bench of the Supreme Court then underscored the efficacy of open trials/courts as a means for bolstering the legitimacy and public confidence in the society. Vide para 22, the Constitution Bench did not mince any words whilst observing that “open courts” subject the whole institution to a public scrutiny and gaze, acting as a potent check against judicial caprice or vagaries, infusing fairness, objectivity and impartiality in the overall administration of justice.

 

The tangible takeaways from the judgment of Mirajkar[5] were thus: “open courts” with a publicised judicial process act as a vital instrument of inspiring public confidence in the administration of justice; the soul of justice demands it to be vocal, visible and veritable: the aforesaid requirement, however must yield to necessity of restricting public access to the proceedings if so required in the special facts of any particular case.

 

The next stop for this avowed principle of “open courts” was after almost two decades in Olga Tellis v. Bombay Municipal Corpn.[6], wherein a Constitution Bench of the Supreme Court led by the then CJI late Justice Y.V. Chandrachud went on to say that dialogue with the person likely to be affected by the proceedings (or the final outcome of the same) meets the fundamental requirement of “justice must also be seen to be done”. The Court held that such a participative process of decision making and hearing exalts the stature of institution delivering justice. Quoting Justice Frankfurter, the Court stated that propriety and the moral authority of any conclusion largely depends on the mode by which it was reached. Never a better way has been devised for arriving at truth, than to give a person in jeopardy of a serious loss, an opportunity to participate in its decision-making process. Thus, in case of justice not only the ends are important, but also the means through which it is achieved or delivered are of equal importance, one of them being its due and adequate publicity.

 

In the long line of judgments, which joined the dots completing the picture subsequently reiterating the same principle are LIC v. Manubhai D. Shah[7], Mohd. Shahabuddin v. State of Bihar[8], through which the Supreme Court from time to time contributed its bit in affirming the lesser known saying that “courts exist primarily to provide justice to its citizens against the might of the State”. A tension between the court and the executive is always healthy for a vibrant democracy and therefore the discourse which goes on as a part of resolving this tension cannot be far removed from the lives of individual citizens whose livelihood depends on the decision-making executive.

 

Thus, much before their formal incorporation in the statutes or the Constitutions of the world, “open courts” and “publicised justice” had been pre-existing in the legal narrative. These principles have been cast in stone through judicial recognition in almost every decade of our legal history.

 

3. Statutory Canons Recognising “Open Courts”

“Open courts” as an imperative constitutional necessity has been embedded in the Indian Constitution vide Article 145(4), which reads that the judgments of the Supreme Court of India shall be delivered only in “open court”.

 

Article 145(4) of the Constitution of India speaks:

(4) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court.

 

Somewhat similar expression of a “publicised justice” occurs under Order 18 Rule 4 CPC, 1908, which mandates that recording of evidence of witnesses in any civil proceeding to be administered orally only in “open court” in the presence, direction and under the superintendence of the Judge; Section 153-B CPC, 1908 in the same breath designates any place where a civil court is held for trying any suit (civil) shall be deemed to be an “open court”, where public shall have an access, subject to infrastructural convenience. The criminal laws of our country are not behind and Section 327 CrPC, 1973 also mandates the courts to be open, subject to the discretion of the Presiding Judge or the Magistrate.

 

Section 153-B CPC, 1908 speaks:

153-B. Place of trial to be deemed to be open court.—The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them:

 Provided that the Presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

 

Section 327 CrPC, 1973 speaks:

Court to be open.— (1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C,  Section 376-D or Section 376-E of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court:

Provided further that an in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

 

If one intends to look at the international scenario, then there also the said norm has been firmly entrenched with international acceptance in the form of Article 6(1) of the European Convention on Human Rights, which provides as follows:

 

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

 

It would therefore not be out of place to mention that the Constitution-makers as also the Parliament itself has always believed that dispensation of justice must receive a comprehensive public attention, dialect and participation in the said exercise by the citizens for whom it exists. The courts in India not only interpret the law, but interpret it purposively and constructively to take the legislative intention forward to such an extent that it makes the working of such enactments and the machinery thereunder coherent and productive in the interests of its subjects.

 

4. Innovative Instances from Early 21st Century

Enthusiasm to ensure that justice is dispensed publicly has always been present in varying proportions amongst the Members of the Bench and there had been instances which displayed innovation and ingenuity of its novelty by the Judges concerned towards ensuring that what they do is so done under full public gaze. Some of the instances which I could discover from my tiny expanse of research can be quoted hereinbelow:

 

  1. As far back as in 2005 down south, the Hyderabad High Court (erstwhile Andhra Pradesh High Court) allowed the entry of television media with live video recording in the courtroom when special judicial assignments were being taken up in select few courts. However this initiative died down after receiving a lukewarm reception of successive Chief Justices of the High Court, who preferred sticking to the status quo than changing to demanding expectations of the organic society.
  1. Justice B.K. Somasekhara in an inimitable style of his own allowed the court hearings to go live, when he was conducting proceedings as a Head of the Judicial Commission inquiring into the land acquisition scam of construction of the Yeleru Canal laid between Visakhapatnam and East Godavari Districts. Not to forget, Justice Somasekhara was a sitting Judge when he was heading this inquiry in 1996. The video recordings cross-examining the erstwhile Ministers of Finance and other Cabinet Ministers of the State, especially those at the helm of the creamy portfolios became a subject of intense debate. The inquiry was constituted by the High Court in a spate of writ petitions, more than 100 in number alleging irregularities in payment of compensation. Initiative of Justice Somasekhara to ensure live transmission of the proceedings on national platforms like Doordarshan through the Ministry of Information and Broadcasting could not muster political support. Eventually all the birds of the same feather flock together and failed the next gen efforts of Justice Reddy.
  1. Through yet another off-the-cuff practice, Justice B. Subhashan Reddy as the Chairman of Andhra Pradesh Human Rights Commission allowed live telecast of his court proceedings in 2005 in cases involving human right infringements. To its viewers, it was a delight to have watched Justice B. Subhashan Reddy’s strict handling of the delinquents in these proceedings, especially government officers, when questions to them elicited squeamishly mumbled answers.
  1. In 2015, a Division Bench of Madras High Court headed by Justices S. Tamilvanan and C.T. Selvam also live streamed the court proceedings in the contempt case against Bar representatives Advocates Dharmaraj and A.K. Ramasamy. The duo were served with contempt notices for opposing the mandatory helmet ruling through a rally taken out by lawyers in Madurai. The live streaming was arranged through a large sized LED television for the general public.

 

Thus flame to be transparent and visible to the common man in the judicial process has always remained ignited in some of the incumbents of the high judicial offices, but it was only in Swapnil Tripathi[9]that for the first time all the flowers were garlanded into a comprehensive dicta by the Supreme Court. A judgment for all generations to come was thus handed over to the nation led by the then Chief Justice of India Justice Dipak Misra.

 

The discussion on the remaining heads shall be undertaken in the subsequent part of this article. As an incomplete discussion would have not done justice with the issue at hand, therefore the next part shall be completing the full round by providing insight into the Swapnil Tripathi[10] judgment and its trail of events. A bird’s eye view of the video conference rules framed by the various High Courts and the ills they are plagued by shall also be undertaken.

 


† Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

†† Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.

 

[1] John Bowring (ed.), The Works of Jeremy Bentham, Vol. VI (London, 1843) 351–352. Also see, Garth Nettheim, The Principle of Open Justice (1984) 8 Tasmanian Law Review 25.

[2] 1913 AC 417, 463.

[3] (2018) 10 SCC 639.

[4]  AIR 1967 SC 1 : (1966) 3 SCR 744.

[5] Ibid.

[6] (1985) 3 SCC 545.

[7] (1992) 3 SCC 637.

[8](2010) 4 SCC 653.

[9] (2018) 10 SCC 639.

[10] Ibid.

Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., held that

Protraction and prolongation of litigations affecting women can never be encouraged by the Courts.

Husband and wife used to live in Singapore and when a misunderstanding arose between the two, the husband stated that the respondent/wife deserted him in the year 2018. Hence, the husband sought the relief of Restitution of Conjugal Rights by filing a petition in the Family Court, Chennai.

Wife had filed a Domestic Violence Complaint against the husband and further filed the maintenance seeking maintenance.

Under the above-stated circumstances, an instant transfer petition was filed to transfer the Domestic Violence Act case.

Questions of Legal Importance

Whether the High Court in the exercise of power of superintendence under Article 227 of the Constitution of India transfer the criminal proceedings from the Criminal Court to the Family Court, when the powers of transfers of cases are already conferred on the High Court under the provisions of the Criminal Procedure Code and Civil Procedure Code?

Presuming, the powers under Article 227 of the Constitution of India is exercised, in order to transfer a criminal case to a Civil Court or Family Court, what would be the consequences and the provisions governing such transfers and the Constitution of Special Courts under the Special enactments?

Whether the decision of this Court in Mohana Seshadri v. Anuja, CDJ 2020 MHC 944, can be followed as a precedent in the present matter?

Analysis

The above case cited by the petitioners need not be relied upon for the purpose of entertaining a transfer petition under Article 227 of the Constitution of India. In the present petition, this Court has to consider the provisions of the Special Acts namely the Domestic Violence Act, Family Courts Act and also the Code of Criminal Procedure for the purpose of forming an opinion.

Domestic Violence Act

Provisions of the ‘DV Act’ are unambiguous that an application is entertainable before the Judicial Magistrate Class I or the Metropolitan Magistrate as the case may be for seeking one or more reliefs under the Act.

Proceedings under the ‘DV Act’ are regulated under the Code of Criminal Procedure as contemplated under Section 28 of the ‘DV Act’. Thus, a complaint registered under Section 12 of the DV Act is criminal proceedings on the criminal side of the judiciary and accordingly the said proceedings are to be regulated under the Criminal Procedure Code.

Generalia Specialibus non derogant (when there is a conflict, general and special provision, the later will prevail)

It is to be held that Special Act will prevail over the General Laws.

Therefore, when a Special enactment is in force to deal with certain specific offences, in the present context, Domestic Violence Act, then the other general laws cannot have any application and all such Domestic Violence’s are to be tried by following the procedures as contemplated under the Special Enactment and this being the legal principles, the application under

Section 12 of the Domestic Violence Act cannot be construed as a civil natured proceeding.

Family Courts Act, 1984

Applications which are all filed seeking maintenance for wife, children and parents alone shall be tried by exercising the powers conferred under Section 7(2)(a) of the Family Courts Act, 1984. Hence, with regard to the jurisdiction as contemplated under the DV Act, the Family Courts/Civil Courts are not having jurisdiction to deal with certain offences defined under the provisions of the DV Act.

Criminal Procedure Code

Section 407 of the Criminal Procedure Code provides Power of High Court to transfer cases and appeals.

 Hence, the High Court is empowered to transfer the case from one Court to another Court as the case may be as contemplated under the provisions of Section 407 of the CrPC.

Civil Procedure Code

Under Section 24 of CPC, Civil Proceedings can be transferred from one Civil Court to another Civil Court.

 However, Criminal Proceedings cannot be transferred from one Criminal Court to a Civil Court/Family Court.

Article 227 of the Constitution of India

In the Supreme Court decision of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, there was an elaborate consideration of High Court’s Power of Superintendence under Article 227 of the Constitution.

Power of High Court

High Court’s power under Article 227 to be plenary and unfettered but at the same time, the High Court should be cautious in its exercise.

“…in cases, where the High Court exercise its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claiming it as as a matter of right.”

Jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Jurisdiction under Article 227 is exercised by the High Court for the vindication of its position as the highest judicial authority in the State

Scope of the power under Article 227 of the Constitution cannot be exercised overriding the provisions of the Special Enactments, wherein the specific reliefs are provided for redressal.

Thus, the proceedings instituted under the Family Courts Act before the Family Courts are to be regulated in accordance with the provisions as contemplated.

Equally, an application filed under Section 12 of the Domestic Violence Act is to be regulated under the provisions of the ‘DV Act’ and the application registered under Section 12 of the Domestic Violence Act is a criminal proceedings and the entire provisions of the ‘DV Act’ unambiguously portrays that the nature of proceedings are under criminal law. The procedures as contemplated under the Criminal Procedure Code is to be followed for trial of the cases under the ‘DV Act’.

Thus, there is no reason to form an opinion that application filed under the ‘DV Act’ is a “Civil natured proceeding”.

Bench added that when the scope of Article 227 does not permit the High Court to entertain a transfer petition to transfer a criminal case to a Civil Court or a Civil case to a Criminal Court, then conversion of such power under Article 227 for transfer of cases is certainly beyond the scope of the principles settled by Supreme Court decisions.

Transfer not Traceable

The power of transfer conferred under the Code of Criminal Procedure and the Code of Civil Procedure are expected to be exercised by the High Courts and such power of transfer is not traceable under Article 227 of the Constitution of India.

Multiple options are provided under the special enactments, facilitating the aggrieved women to redress their grievances which are to be dealt in accordance with the provisions of such enactments and speedy disposal being the paramount importance, Courts are bound to ensure all such cases, affecting women must be disposed of at the earliest possible.

Proceedings under the Domestic Violence Act

Further, the Court added to its elaborative analysis that the initiation of proceedings under the Domestic Violence Act with reference to the bodily injuries contemplated under the provisions of the Act, are Criminal acts and therefore, the Domestic Violence proceedings are criminal in nature and to be tried by the competent Judicial Magistrate.

Offences/Bodily Injuries as contemplated under the DV Act are against the society at large and therefore, the proceedings are criminal and competent criminal Court of Law is empowered to try those cases.

In view of the above discussion, Court concluded that criminal proceedings instituted under the Domestic Violence Act cannot be converted as Civil proceedings nor construed as proceedings of civil nature, so as to transfer such criminal proceedings before the Civil Court or Family Court by exercising the supervisory powers under Article 227 of the Constitution of India.

Therefore, any transfer petition, if at all filed to transfer a case registered under the Domestic Violence Act must be entertained only under the Code of Criminal Procedure and certainly not by invoking power under Article 227.

On transferring the DV Act proceedings to Family Court, the appropriate reliefs are depraved.

Hence, the objections regarding the maintainability of the transfer petition raised by the Registry, High Court of Madras, is perfectly in consonance with provisions of law and said objections stands confirmed. [P. Arun Prakash v. S. Sudhamary, 2021 SCC OnLine Mad 1954, decided on 01-04-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

OBJECT AND INTERPRETATION OF SECTION 14 OF THE IBC

The expression “institution of suits or continuation of pending suits” is to be read as one category, and the disjunctive “or” before the word “proceedings” would make it clear that proceedings against the corporate debtor would be a separate category.

“What throws light on the width of the expression “proceedings” is the expression “any judgment, decree or order” and “any court of law, tribunal, arbitration panel or other authority”. Since criminal proceedings under the Code of Criminal Procedure, 1973 are conducted before the courts mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding being conducted before a Magistrate would certainly be a proceeding in a court of law in respect of a transaction which relates to a debt owed by the corporate debtor.”

A quasi-criminal proceeding which would result in the assets of the corporate debtor being depleted as a result of having to pay compensation which can amount to twice the amount of the cheque that has bounced would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation, or execution of a decree in such suit in a civil court for the amount of debt or other liability.

“Judged from the point of view of this objective, it is impossible to discern any difference between the impact of a suit and a Section 138 proceeding, insofar as the corporate debtor is concerned, on its getting the necessary breathing space to get back on its feet during the corporate insolvency resolution process.”

Hence, the width of the expression “proceedings” cannot be cut down so as to make such proceedings analogous to civil suits.

THE INTERPLAY BETWEEN SECTION 14 AND SECTION 32A OF THE IBC

“A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned.”

If the expression “prosecution” in the first proviso of Section 32A(1) refers to criminal proceedings properly so-called either through the medium of a First Information Report or complaint filed by an investigating authority or complaint and not to quasi-criminal proceedings that are instituted under Sections 138/141 of the Negotiable Instruments Act against the corporate debtor, the object of Section 14(1) of the IBC gets subserved, as does the object of Section 32A, which does away with criminal prosecutions in all cases against the corporate debtor, thus absolving the corporate debtor from the same after a new management comes in.

NATURE OF PROCEEDINGS UNDER CHAPTER XVII OF THE NEGOTIABLE INSTRUMENTS ACT

“Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law.”

It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law.

Further, as the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, it becomes clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.

Under Section 139, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced which, on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved.

Section 140 states that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section, thus making it clear that strict liability will attach, mens rea being no ingredient of the offence.

Section 141 makes Directors and other persons statutorily liable, provided the ingredients of the section are met. Interestingly, for the purposes of this Section, explanation (a) defines “company” as meaning any body corporate and includes a firm or other association of individuals.

A cursory reading of Section 142 makes clear that the procedure under the CrPC has been departed from. First and foremost, no court is to take cognizance of an offence punishable under Section 138 except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. Further, the language of Section 142(1) (b) would again show the hybrid nature of these provisions inasmuch as a complaint must be made within one month of the date on which the “cause of action” under clause (c) of the proviso to Section 138 arises.

“The expression “cause of action” is a foreigner to criminal jurisprudence, and would apply only in civil cases to recover money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is a chapter dealing with the jurisdiction of the criminal courts in inquiries and trials. When the jurisdiction of a criminal court is spoken of by these Sections, the expression “cause of action” is conspicuous by its absence.”

Under Section 143, it is lawful for a Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding INR 5,000/- summarily. Hence,

“… the payment of compensation is at the heart of the provision in that a fine exceeding INR 5000/-, the sky being the limit, can be imposed by way of a summary trial which, after application of Section 357 of the CrPC, results in compensating the victim up to twice the amount of the bounced cheque.”

Under Section 144, the mode of service of summons is done as in civil cases, eschewing the mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section 145, evidence is to be given by the complainant on affidavit, as it is given in civil proceedings, notwithstanding anything contained in the CrPC. Most importantly, by Section 147, offences under this Act are compoundable without any intervention of the court, as is required by Section 320(2) of the CrPC.

CONCLUSION

“The gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply.”

The Court, hence, concluded that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a “proceeding” within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding.

[P. Mohanraj v. Shah Brother Ispat Pvt. Ltd., 2021 SCC OnLine SC 152, decided on 01.03.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearances before the Court by:

For Appellants: Senior Advocate Jayanth Muth Raj

For Respondent: Advocate Jayant Mehta

Case BriefsHigh Courts

Delhi High Court: While dismissing the matter, Suresh Kumar Kait, J., stated that a very unpleasant situation came before the Court during the hearing of the present case.

Bench stated that ceratin unidentified persons joined the proceedings and caused hindrance in the submissions of counsels and proper justice dispensation.

Hence, in view of the above stated, the bench directed the Registry/Court Master to not provide the link to video conferencing to any other person or correspondent and the same shall be provided only to the advocates concerned, IO, parties in person in case the petition is filed for quashing and to the persons specifically directed by the Court to join the proceedings.

Court also made it clear that no advocate shall share the link with anyone else except the Senior Advocates or the advocates appearing on their behalf. [Satyam Kumar Sah v. Narcotics Control Bureau, 2020 SCC OnLine Del 1263, decided on 21-09-2020]

Hot Off The PressNews

Due to an acute shortage of staff because of heavy rains in Mumbai today, the Benches are unable to take up the matters on their respective boards.

Judicial Proceedings for the day have been suspended. Those matters on the board today will be taken up tomorrow, i.e. 24th September, 2020.

Please refer the notice here: NOTICE


Bombay High Court

[Notice dt. 23-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition where the issue discussed was related to Section 311 CrPC, it was stated that the Section gave an exclusive power to the Court as defined under the CrPC that it may at ‘any stage’ of an inquiry, trial or other proceedings, and the Court may summon any person as a witness or examine any person in evidence though not summoned as a witness in the earlier set of proceedings.

The counsel for the petitioner challenged the order passed by the Special Judge, POCSO in another case State v. Anand Rana, where the court in trial, exercised its power under Section 311 CrPC for purpose of summoning of the witnesses. It was further alleged that, at the stage, when the proceedings were pending consideration before the court, the prosecution had moved an application, by invoking the provisions of Section 311 CrPC for summoning some of the witnesses at the stage when the trial was pending consideration before the Sessions Court, before it came to any logical conclusion with regard to the offences, which were levied against the accused revisionist.

On the contrary the respondent contended that by the application, preferred under Section 311 of CrPC gave an avenue and ample of powers to the Trial Court to exercise its domain at any stage of the proceedings, to call upon the witness, which the Court considers it to be necessary to be considered for the purposes of better elucidation of the controversy and for settling of the offences as against the present accused persons by their examination and considering their statements before drawing any logical conclusion.

The Court observed that the arguments of the petitioner was not sustainable because it ran contrary to the very spirit and purpose for which legislature had drafted Section 311, “it gave ample of power to the Trial Court to summon and examine the witness which were necessary for the purpose of determination of the issue involved before in the trial at any stage of the proceeding, which according to the Court, included the proceedings even after the closure of the prosecution witnesses or the stage of 313 CrPC.

Another argument raised by the petitioner was that to invoke an application under Section 311 there has had to be a reasonable ground which had to be expressed by the prosecution, to this the Court observed that, it was always a subjective matter for consideration, which depended upon the perception of each and every court as per the requirement of the case and, according to its own wisdom and the intellect which the Court possessed. The Court was of the view that irrespective of whatsoever the logical reasoning was assigned by the prosecution for the purposes of invoking Section 311 CrPC, the accused, who was apprehending the examination of additional witnesses for the purposes of establishment of the offence levied against him, it became inevitable for him to take a stand that the reason given in the application did not justify the invocation of the provisions contained under Section 311 CrPC.

The Court, further mentioned that it did not want to interfere in the challenge because the basic purpose and intention as per the language of Section 311 CrPC was to equip the Court with sufficient power to summon witnesses.

Lastly the argument raised by the petitioner was that the invocation of Section 311 CrPC by prosecution cannot be utilized to fill in the lacunae of the evidence which had already been adduced before the Trial Court by examination of additional witnesses by summoning them under Section 311 of the CrPC the Court to this particular contention stated that at the stage when the Court was under consideration of the application under Section 311 CrPC and considered the justification of summoning the witnesses at the stage when Court decided to summon a witness under Section 311 CrPC, it cannot be a stage where a petitioner had an argument that the prosecution intended to fill in lacunae of the trial, which was pending consideration before the Court. Hence, the revision was dismissed.[Kaushik Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 794, decided on 30-07-2019]

Case BriefsHigh Courts

Bombay High Court: V.M. Deshpande, J. dismissed an appeal filed against the order of the trial judge whereby he rejected the appellant’s application for condonation of delay in filing a complaint for an offence under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881.

Firstly, a complaint was filed for offence under Section 138 of the Negotiable Instruments Act by the appellant. Thereafter, he filed an application under Section 143(b) and the said was registered separately.

Notices on the said applications were issued. No step was taken by the appellant to serve the non-applicants. Not only that, he remained continuously absent. Consequently, the trial judge found that the appellant was not interested in prosecuting the case and, therefore, dismissed the application for condonation of delay as well as the complaint. Against the said, the present criminal appeal was filed.

The High Court observed: “When the complaint and/or proceedings are filed by the litigant before the Court of law, it is the onerous duty to prosecute the same diligently. The applicant cannot be dormant for years together as observed in the present case.” The Court opined that unless and until the non-applicants were served in the proceedings before the trial court, the said proceedings could not proceed further. Since it was a private complaint, it was the duty of the appellant to take all necessary steps to serve the non-applicants. It was said: Unnecessary filing of complaints and/or after filing of complaints, no step is taken and, therefore, the Courts are unnecessarily burdened and learned Judge below is unable to devote time for the litigants who are diligently prosecuting their proceedings has to remain in the queue.”

In such view of the matter, the Court dismissed the present appeal imposing costs of Rs 5000 on the appellant. [Ramzan Khan v. Khadim Tours and Travels, 2019 SCC OnLine Bom 709, decided on 24-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J., allowed withdrawal of an appeal with the liberty to file a fresh petition on account of “technical defect”.

In the present case, the counsel for the appellant submitted that the client actually intended to file a petition under Section 13 of the Hindu Marriage Act. And the cause of action and ground for the petition are entirely different from Section 12 of the same Act, which forms the subject-matter of the present appeal. Therefore, on account of “technical defect”, the appeal is bound to fail. However, the counsel for the respondent submitted that the very basis for withdrawal of the appeal is some kind of medical report that is available on the record and has been submitted in compliance to the orders passed by the learned Mediator in the case. Although, the same has not been open yet.

The Court allowed the application dismissing the present appeal as withdrawn with liberty to the appellant to file appropriate proceedings under Section 13 of the Hindu Marriage Act. And directed that report submitted before the learned Mediator shall not be used as evidence by either of the parties, however, that will not debar them to proceed in accordance with law for having either of the parties medically examined under the law.[Ajay Kumar v. Anjana Verma, 2019 SCC OnLine HP 279, Order dated 08-03-2019]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising of Vipin Sanghi and I.S. Mehta, JJ., pronounced an order in regard to the action report of the Delhi Police, that in accordance to display of immense credibility of performance on the part of the Delhi Police, digital recording of the proceedings should be conducted.

The action report pointed out some very pertinent issues, that the existing technology would soon become obsolete and the devices which are used for storage now, won’t be operable in the near future, which would make retrieving the data an impossible task. The retrieval mechanism as suggested in the report was that it needs to be set with huge capacity which would need “cloud computing technology”.

The High Court while addressing the issues stated that they do not seem to be insurmountable and with the involvement of the experts all the stated issues in the report could be resolved easily.

Further, the Court suggested that digital recording of the proceedings be conducted by the police, inter alia, Section 161 CrPC should completely take over the existing mechanisms/procedures. Court also opined that the storage of digital media in whichever way it is stored is far less space-consuming than the space required for preservation of manually recorded proceedings/statements on paper. In regard to funds needed to adopt such methods, State would be responsible to arrange the same, either by Government of National Capital Territory of Delhi or Central Government.

The matter was further listed for 10-09-2018. [Rakesh Kumar v. State (NCT of Delhi), CRL.A 395 of 2000, Order dated 20-08-2018]

Case BriefsSupreme Court

Supreme Court: A bench of Dipak Misra and Shiva Kirti Singh, JJ, while relying upon Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613, held that the previous proceedings would operate as res judicata only in respect of issues of facts and not on issues of pure questions of law when the subsequent proceeding is based upon a different cause of action and in respect of different property though between the same parties. The Court further observed that the principle of estoppel operates against parties and not the court and hence nothing comes in the way of a competent court to decide a pure question of law differently if it is so warranted.

In the instant case, it was contended that when, in a petition of 1966, it was already held that the illegitimate sons of a person were not entitled to inherit his property, the court was barred from adjudicating same because the previous judgment would operate as res judicata. Allahabad High Court observed that the previous judgment between the parties was in respect of another subject matter/property, and moreover its finding that illegitimate children of a person are not entitled to inherit his property being finding on issues of law would not operate as res judicata in the subsequent proceedings in respect of other properties. The Court, hence, stating that no equitable principle or estoppel can impede powers of the Court to determine an issue of law correctly in a subsequent suit which relates to another property founded upon a different cause of action though parties may be same, upheld High Court’s reasoning, . [Satyendra Kumar v. Raj Nath Dubey, 2016 SCC OnLine SC 478, 06.05. 2016.]