oO wi erat wet art JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P. 1/19, Vishwas Khand, Gomti Nagar, LUCKNOW First Year 1995 Issue - 2 April-JuneSS a>» First Year April - June, 1995. issue No 2 See eee SSS J.T.R.I. JOURNAL CONTENTS ‘Dur Chief Justice Advice to Judicial Officers Justice AL Rao “Nearest Magistrate” in Article 22 of the Constitution Justice ULC. Srivastava ‘Of Precedents dustice Brijesh Kumar Expanding Horizons of Fundamental Rights and Courts’ Obligation Justice A. B. Mehrotra Law, Religion and Politics Justice M. Katju Cruelty as a Ground for Divorce or for Judicial Separation under the Hindu Marriage Act, 1955. Justice AK Srivastava Consumer Protection Act, 1986, Need for Further Changes, Some Suggesiions Justice VK. Mehrotra Some Do's and Dont's for Judicial Officers Justice K. N.Goyal Quiz - No. 2 Justice KN. Goyal ‘Outline of Criminal Jurisprudence Justice S.C. Mohapatra 7 31 4 a714 19. Training of Magistrate - Strategy Justice J.K Mathur Consent to Surgery P.M. Bakshi Compensation for Violation of Fundamental Rights, A New Remedy In Public Law, Distinct From Relief of Damages in Tort VK. Sircar Right to Property and Compensation under the Indian Constitution ML. Singhal Criminal Appeals Bhanwar Singh Between The Two Wheels PD. Kaushik “Proceedings-in-Camera™ Azitur Rahman Doctrine of “Legitimate Expectation” AK. Srivastava Identification of Finger Prints & Law CK Johari Publications of the Institute A. Brochures B. Books 61 72 at 2 o7 10 Pointed et: SHIVAM ARTS, 211. Sth Street Nehaigan) Lucknow , Ph. 386389OUR CHIEF JUSTICE Hon'ble Mr. Justice A. Lakshmana Fao, Chief Justice, Allahabad High Court (Since April 10, 1995)ADVICE TO JUDICIAL OFFICERS” Justice A. Lakshmana Rao (Chief Justice, Ailahebed High Court Brother Justice Brijesh Kumar, Justice UC. Srivastava, Chairman ot the Institute, Justice Goyal, Mr, Singhal, Diroctor, my esteemed learned brathers and sisters, distinguished invitees and learned members of the judicial traternity It, indeed, gives mea greal pleasure ta be present amidst you this morning in connection with the inauguration of the refresher course for the judicial officers ‘Of the rank of District Judge and Additional District Judge. This is my first visit to this Institute. | know something about this institute because | was for sometime the Chairman of the Andhra Pradesh Judicial Academy which Is run on the same Nieves. tis needless to mention that it is essential for the members of the jucticial ‘service to update their knowledge from time to time in order to enable them to perform their onerous judicial functions to the satisfaction of one and all. The Credinlity of the judicial institution and the confidence of the people in the justice delivery system depend upon the way the Judicial Officers and the judges Conduct themselves inside and outside the Court. The Judicial Officers presiding in the various subordinate Courts in the State, have an opportunity, in a way, to deal directly with the litigant public and it is the Subordinate Courts at the grass toot level to which people have a direct access. They have an opportunity to observe and watch the way the judicial proceedings are conducted in a Court. it bs not so In the case of High Court and Supreme Court because very few Itigants will have an opportunity to visit these Courts and mostly it is the advocates that argue the cases before these Courts. It is thalmpression gathered by the litigant public that goes a long way in establishing the credibility of the judiciary. Therefore, it Is. very essential that a Judicial Officer should imbibe the quaities which help him in conducting himset! in a dignified and decent manner ‘while he sits in the Court as well as he moves outside the Court A training institute like this, should concentrate ‘on providing an ‘opportunity to learn about these things apart from updating knowledge on the Judicial side and the administrative side. A Judicial Officer ot any other Judge for that matter Is always a learner. Just because we know something, it is not safe to presume there ts nothing more to be learnt. Law is an ocean, it should be our endeavour and effort to learn from each and every advocate and every * Address at the inaugural ceremony ol the Fetreuher Training Course tor Additienal District tend Senor Judges on Bord 25,1905 ot te Juciclal Trg B Pesssrch neve, UP. Lucknow.2 T-ALL JOURNAL member of the stall, on various aspects. If a Judicial Oificer is thorough with the procedural laws as well as certain important substantive laws with which he has to deal with, having regard to the area in which he has to function, he will be in a better position to perform his functions satisfactorily showing higher rate of disposal of cases. Ithas also to be borna In mind that the Courts cannot function without the co-operation of the members of the Bar. It should be our endeavour to maintain cordial and harmonious relationship between the Judicial Officers on the one hand and the members of the Bar on the other. By this, | do not mean, that while seeking the cordial co-operation of the members of the Bar, the Judicial Officer should be elther subservient or submissive to the dictates of others. A Judicial officer should be polite and courteous. He should be humane but at the same time he should be firm. You must knaw how to deal with a problem that arises, ina firm but at the same time in a polite, decent and dignified manner. ft ls not necessary for us to alienate the feelings of the Bar. We must provide an Opportunity to the learned members of the Bar to ventilate thelr genuine grievance. If tis necessary, we should not hesitate to sit together, negotiate and try to settle the problems if any, in an amicable manner, Neither the members of the Bar nor the members of the judicial fraternity, should think of confrontation. i you do not keep pace with the march of Law by keeping abreast with the decisions of the High Court and the Suprema Court, you will be committing grave errors in disposal of cases which necessitate the litigant public to carry the matter in appeal of revision and it will load to multiplicity of litigation. If the judgments are given In accordance with the latest decisions, normally an Advocate will advise the client not to file appeal or revision. Updating of knowledge will create a good impression in the minds of the members of the Bar about an officer, if it is realised that a Judicial Officer is thorough, and wll ‘Conversant with the fundamental legal positions, naturally, such an officer will command the respect ol the members of the Bar. Some Judicial Officers like District Judges have to perform administrative functions alsa. Administrative is something different from judicial efficiency. Hf an officer is found to be lacking in administrative efficiency, the members of the staf will try to take advantage of the weakness of an officer, tis very essential that a Jucicial Officer ‘should also be conversant about administrative functions of the Court. If the members of the staff come to know that you know the fundamentals of administration, then they would keep themselves within their limits and you can very successfully carry on your administrative functions. With all your experience as Judicial Officers, itls not necessary to impress Upon you the need and necessity of maintaining the dignity of the high office you hold, Administration of justice Is a solemn and sacred function. It is not like ‘executive function. The people of this country have entrusted to the JudiciaryADVICE TO JUDICIAL OFFICERS: a ‘very onerous responsibilities, tt is forthe higher Judiciary to maintain the balance between the Executive, the Legislature and tha Judiciary. Ina society governed by the rule of law, Judiciary has a vital role to play. Itis forthe Judiciary to protect ‘the fundamental rights of the citizens as their custodian and guardian. It is for us ‘to. ensure that a citizen is not denied of his right of life, liberty and property except in accordance with the law. The functions which are entrusted to the Judiciary are of utmost importance and their significance has to ba borne in mind by each of you. May be, you may not be performing the functions of a Constitutional Court. but the way you conduct the proceedings in the Court, in an adversarial system, creates the confidence in the people, al the grass root level which ultimately strengthens the functioning of the entire Judicial system. I thank the Chairman and Director of this Institute for providing me this ‘Opportunity, hope and trust that you will make best use of the opportunity to equip yourselves with the latest knowledge that is required to enable you to perform your functions satisfactorily, Thank you ail“NEAREST MAGISTRATE” IN ARTICLE 22 OF THE CONSTITUTION Justice U.C. Srivastava Chairman J.TAL, UP. The question, whether the Constitutional provisions regarding arrest and detention guaranteed under Article 22 of the Constitution could be interpreted in favour of state action, deviating trom the language used, was recently posed in one of the training courses conducted by this Institute. The question was raised particularly with reference to judgment of Division Bench of the Alahabad Court in Amamath and another v. Union of India and others (1990 Al. Cri A. 634), in which the Bench, although hald that the provisions of Article 22 (2) Including production before nearest Magistrate within 24 hours are imperative, yet observed elsewhere in the judgment that the question of nearest Magistrato would be relevant only whan person arrested and detained is produced before another Magistrate beyond! 24 hours and the benefit of travelling period is Claimed which benefit is available only when production is before "nearest Magistrate’, The Bench witimately held that In its view, the detention of person detained in the interior of District Gonda who was produced before a Magistrate at Allahabad within 24 hours itself and not before any Magistrate in any of the intervening Districts, was not vitlated. The question whether the ‘nearest Magistrate’ means the Magistrate noarest to the place where a person is arrested and taben in custody or where he is produced by the police within 24 hours, was ralsed before the Supreme Court in Rajendra Agarwal v. Chief Metropolitan Magistrate, 1595 (Supp.) §.C.C. 607, but the Court did not decide tha question, as the accused by that time had been released, observing that the question is not free from difficulty anc! ‘pauires consideration at depth The relevant portion of Article 22 of the Constitution reads as under :- “(1) No person who Is arrested shail be detained in custody without being informed as soon as may be of the grounds for such arrest nor ‘shall he be denied the right ta consult, and to be defended by a legal Practitioner of his choice. (2)Every person who is arested and detained in custody shall ba produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the Journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority ‘of a Magistrate.”“NEAREST MAGISTRATE” IN ARTICLE 22 5 Tha provisions of Article 22 (1) and (2) are mandatory in nature but so far 85 phrases ‘as soon as may be’ in Article 22(1) and ‘the nearest Magistrate’ in Article 22(2) are concerned there appears to be some room for interpretation: otherwise the language of Article is quite clear and unambiguous. Article 22 puts check on arbitrary and illegal arrests and gives certain protections and Quarantees fo the person arrested and taken in custody, also puts a check on police detaining a person for longer period and producing him before a Magistrate of their choice without adhering to the Constitutional provisions limiting the time for production of the person so detained. A look at legislative history regarding Art. 22 may be of some assistance In the matter of interpretation of phrase ‘the nearest Magistrate’. Although external aid in interpreting a provision can be taken yet the views of mover of a Bil are never conclusive in the matter, Article 22 clause (2) was not in the draft Constitution but at the close of Geliberations of the Constituent Assembly it was sought to be added. Dr, Ambedkar, The Chairman of the Oratt Commission explained the clrcumstances which led him to introduce Article 154 (present Article 22(2). He stated:- “tt merely lifts from the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justica, By making these parts of the ‘Constitution, we are making a fundamental change because we put a limitation on the authority of both Parliament and State Legislatures not to abrogate these two provisions because now they are part and parcel ‘of tha Constitution itself. the provisions contained in this are sufficient ‘against Hegal or arbitrary arrests.” During the course of discussion an amendment was made by Shri Pataskar who wanted that belore the word ‘Magistrate’ the word ‘First Class’ may be added. The amendment was opposed by Dr. Ambedkar who gave his reasons for the same. Or, Ambedkar stated “Well, | find some difficulty in accepting the words Suggested by him for two reasons, We have in clause (2) used very important words, namely,"the nearest Magistrate” and I thought that was very necessary because otherwise it would enable a police officer to keep a man in custody for a longer period on the ground that a particular Magistrate to whom he wanted. to take the accused or the Magistrate who would be ultimately entited to try the accused was living at a distance far away and therefore he had a justifiable ground for detaining him for the longer period. In order to take away any such argument, we had used the words, "the nearest Magistrate”. Now supposing we were to add the words "the noarost First Class Magistrate”; the postion would be very difficul. Thera may be “the nearest Magistrate” who should be6 T-ALL JOURNAL ‘approached by the police in the interests of the accused himself in order that his case may be judicially considered. But he may not be a First Class Magistrate. Therefore, we have realty to take a choice: whether we shall give the accused the earliest opportunity to have his matter decided and looked into by the Magistrate near about or whether we should go in search of a First Class Magistrate. I think “the nearest Magistrate” is the best provision in the interests of the liberty of the accused. | might also point out to my Friend, Mr. Pataskar, that even if | were to accept his amendment ‘the nearest First Ciass Magistrate”. it would be perfectly possible for the Government of the day to amend the Criminal Procedure Code to confer the powers of a First Class Magistrate onany Magistrate whom they want and thereby cheat the accused. I do not think therefore that his amendment Is ether desirable or necessary and | cannot accept kt” ‘Thus according to the mover of this provision, the expression ‘the nearest Magistrate’ was introduced as a check on the police in detaining a person bayond 24 hours, seeking its justification on the ground that nearest Magistrate ‘Of ona who ultimately was entitled to try the case was not available within this Period. It ls apparent that the intention of the mover of this provision was not to Give police a free hand to produce the person detained before a Magistrate of thelr choice or'only before the Magistrate wha would have jurisdiction ta try the Case which at the stage was not required at alll The principles of interpretation of Constitutional provisions are that they are tobe interpreted broadly and liberally and not ina narrow and pedantic sense but at the same time its language cannot be stretched or perverted. if the language is plain and unambiguous it Is the duty of Court to adopt that meaning Only and the provision is to be interpreted as it is and not as it ought to be. In the case of State of Punjab v. Ajaib Singh, AIR 1953 SC 10, the Supreme Court Observed... "that if the language of the Article is plain and unambigucus and admits of only one meaning. then the duty of the Court is to adopt that meaning irrespective of tha inconvenience that such a construction may produce. If, however, two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the ‘other which will lead toabsurdity or give rise to practical inconveniance or make well established provisions of law nugatory”. Article 22 gives protection in cases of arrest without warrant issued by a Court on the accusation that the arrested person or the suspected person was or ls suspected to have committed or is likely to comma an act of criminal nature ‘or some acthvity prejudicial to state interest. The expression ‘nearest Magistrate’ 's preceded by the word ‘the’ which also finds place belore the expression“Court ‘ol the Magistrate’ in the same Article 22(2). The word ‘the’ Is definite article and denotes a particular person or thing. The Supreme Court in Consolidated CoMee“NEAREST MAGISTRATE” IN ARTICLE 22 7 ld. v. Cotee Board, AIR 1980 SC 1468 also particularised the word ‘agreement” in view of use of word ‘the’ before It. The period of twenty four hours fixed for production excluding the time spent for travelling is for the production before ‘the court of the Magistrate’. The word used is again ‘the’ and not ‘a’, which means before the court of the said nearest Magistrate. The ‘nearest Magistrate’ Is to be nearest from the place of arrest. The use of word ‘such’ between the words ‘within a period of twenty four hours’ and “arrest'clearty spells out the same, as well as the place from where ‘the nearest Magistrate’ Is to be found out. This provision in the Constitution is obviously for checking legal and arblirary arrest and detaining a person for longer time and restraining the police to produce a person within 24 hours, may be after torturing the person, before a Magistrate of their choice or from whom they expect liberalism. In Amar Nath's case (Supra) apparently no stress was laid on the use of ‘word ‘tha’ at two places and it appears that no difference was sought tobe made between ‘the’ and ‘a’ and that Is why production before a Magistrate after crossing several Districts was taken to be in conformity with Article 22 of the Constitution of India. it may be that some record was produced before the Court and the Bench was satisfied that in the circumstances of the case the same was sufficient compliance with the provisions of Articia 22(2). ‘Occasions may arise when production of a person arrested and detained before ‘the nearest Magistrate’ may mot be in public interest and create ‘situtation of “law and order’, the maintenance of which Is the Sovereign function of State. The intention and purpose of the Articla could not be that if the production of the person detained before ‘the nearest Magistrate’ Is fraught with danger or is not possible the detention would be legal and the person so arrested is to be released. The Constitution of India which is the basic law of the country, when framed could not have envisaged circumstances which were not existing or which may arise in future and many difficulties which may arise in future could not have been seen. In the case of Francis Coralie Mullin v, Administrator, Union Tetrtory of Delhi, AIR 1981 SC 746 (at Page 7S2) k was observed -- This principle of Interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense, but In a wide and liberal manner 50 a5 to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution.”8 J,T.AUL JOURNAL Similarly, in the case of Video Electronics Pvt. Lid, v State of Punjab AIR 1990 SC 820 at page B37, it was observed “Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a Particular situation arises. It is not that with changing times the meaning changes but changing times illustrate and Eluminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour involving dynamic situations”, ‘These principles of interpretation of Constitution keep gates open for flexibility and taking inta consideration fiexibility and administrative difficulties particularly that of law and order without doing violence to the language of the provision. it is to be noticed that production before any other Magistrate is not foreign to the language of Article 22(2) and at one place it has been expressly Provided viz. the subsequent production after first production of a person arrested can be betore any other Magistrate, a3 provided in later part of Article 22(2), wha ls competent to deal with the matter and not necessarily any nearest Magistrate. Sometimes adverse situation, like ‘law and order‘ problem, safety and the ‘security of the accused, may crop up justifying production, of detained person not before ‘the nearest Magistrate ', but before any other Magistrate. Then in those compelling circumstances, taking recourse to such a procedure, may obviously mean sufficient compliance of the provisions of Article 22(2). lf such Production is not designed to legalise legal arrest which Article 22(2) checks of Is intended to detain the person arrested for longer period on any excuse and for producing him before a Magistrate chosen by the police for the purpose without any special reason of compelling circumstances itself or on the dictates ‘of some superior authority, the production before any other Magistrate other than nearest from the place of arrest would not be vitlated. It ts thus clear that production is to be before ‘the nearest Magistrate’ from the place of arrest but under certain compelling circumstances as mentioned betore, if it Is before any other Magistrate, the same could also be deemed to Production before ‘the nearest Magistrate’ and it will ba a substantial compliance cof the Constitutional provisions not dofeating its object and purpose.OF PRECEDENTS Justice Brijesh Kumar, Senior Judge, Allahabed High Court, Lucknow Bench ‘Precedents’, also called rulings, are searched and cited at the Bar and analysed and scrutinised in Courts, throughout tha proceedings, so much as that, ft has become a matter of routine in the system. Undoubtedly, however, this routine exercise plays a very Important part in decision making process in tha system of dispensation of justice. It is safer to tread a tried path, is not the onty consideration, bul many others too, behind the sanction of the doctrine of precedents. It is endeavour ol any civilized society to be governed by rule of law. It necessarily requires ‘law’. Precedents have been recognized as one of the sources of law, Judges make law is now an acknowledged concept A reference ‘on the point may be made to a decision, reported in AIA 1991 SC 101, Delhi Transport Corpn. vs. DTC Mazdoor Congress and others. Precedents are one of the sources of law, Is found to be held in AIA 1988 SC 1325, All India Reporter \Karmachar| Sangh and others v. All India Reporter Lid. and others. An important limb of "Rule of Law’ is the even application of laws. By following precedents this object of Rule of Law’ Is also achieved. An important feature of the administration of justice is that Tike cases should be decided alike’, to avoid any kind of discrimination in the matter ot application of laws in similar cases, though may be decided by different Courts in any part of a State or the country. It is possible only through binding judicial pronouncements. As a matter of public policy, it is also important that there must be some degree of certainty in the laws so that people may conduct their attairs and plan their future accordingly. In one of the decisions reported in AJR 1968 Alid. 100, Ram Manohar Lobia and others v, State of U.P, and others, it has been observed that It is necessary to maintain judicial uniformity and judicial discipline. Precedents maintain judicial uniformity and judicial discipline by which disharmony in the application of laws is well avoided. The observations made in one of the English decisions clearly highlight the importance and use of precedents. The following observations were made by Lord Gardener LC in Davis v. Johnson, (1978) 2 WLA 162: “their Lordships regard the use of Precedent as an indispensable foundation, upon which, to decide, what is the law and its application to individual cases. It atleast provides some degree of certainty upon which Individuals can rely in the conduct of their affairs as well as a basis for orderty development of legal ries.”10 T-ALL JOURNAL Broadly speaking, doctrine of precedents, to a great extent advances the cause of ute of law, the ingredients of which as envisaged by Dicey have been construed to moar “Thus the law affecting individual liberty ought to be reasonably certain or predictable: where law confers wide discretionary powers there should be adequate safeguards against their abuse: like should be treated alike and untair discrimination must not ba sanctioned by law. a Person ought not to be deprived of his liberty status or any other Substantial interest unless he bs given the opportunity of a fair hearing before an impartial tribunal,” (Oe Smith -Constitutional and Administrative Law, 6th Edition; Page 19) Yet another important aspect of binding precedent is that in mast of the judicial systems, there is hierarchy of Courts, that is to say, the Original or the Trial Court, the Appellate Court, Ravisional Court etc. For working of such a system it is necessary that judgments of the higher Courts are followed Unreservecty, otherwise, there may be a judicial chaos; each Court entirely going ts own way, In this connection, observations made in 1972 AC 1027, Caspol Co Lid. v. Broome, may usefully be quoted, which read as follows: “_n hlerarchal system of Courts it is necessary for each lower tier to accept loyally the decision of the higher tiers. ttis inevitable in hierarchal System of Courts that there are decisions of Supreme Appellate Tribunal which do not attract the unanimus approval of all members of judiciary, But judicial system only works Hf some one is allowed to have the hast word, which once spoken, is loyally accepted.” Earlior, it appears thore has not been any statutory provision about the binding nature of the decisions of the Courts. The only sanction was through tha decisions of the Court. In AIA 1925 P.C. 272.Kr. Mata Prasad and another v. ir. Nageshar Sahal and others, was held that law laid down by the Privy Council was applicable with binding force upon all Courts in India. Later, in the two Gecisions of the Nagpur High Court, namely, AIR 1943 Nagpur 340 (FB), O.D.Bilimoria, Electric Contractor v.Central Bank of india Limited.and AIR 1944 (FB). Vinayak shamrao Vs. Moreshwar Ganesh Padhe and others, it has been held that binding nature of precedent is an unwrinen ne based ‘on judicial comity. Inthe meantime the Government of India Act, 1935, Section 212 provided for the binding nature of the decisions of the Federal Court and the Privy Council upon all Courts, and ultimately doctrine of precedents recelved Constitutional fecognition under Article 141 of tha Constitution of India while providing that the law declared by the Suprema Court shall be binding on all courts and tribunals ‘wthin the territory of India. The law laki down by tha Supreme Court Is binding on all Courts and tribunals ‘of tha Country. In 1995 (3) SCC 17, Union of india v. Kantllal Hematram Pandya, where the Central Administration Tribunal noticed