Parts of hostile witness’s evidence can be used: Supreme Court

NEW DELHI: Judges should not treat as totally erased the evidence tendered by a witness whom the prosecution terms as hostile during a trial, the Supreme Court has said. “It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him,” the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said Monday.

“The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof,” Justice Chauhan said.

The judges said that “the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence”.  The court said this while upholding the Allahabad High Court’s verdict by which it reversed the acquittal of Ramesh Harijan in a case of rape and causing the death of a minor child in Uttar Pradesh in 1996.

The high court by its March 23, 2007 order reversed the acquittal decision of an additional district and session judge in Basti district Feb 2, 1999. The apex court said “even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate the grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end”.

“The maxim falsus in uno, falsus in omnibus (false in one, false in all) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop,” the court said. The judgment said “it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well”.

Referring to the evidence tendered by three hostile witnesses in Harijan’s case, the apex court said: “Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses… however, it is the duty of the court to unravel the truth under all circumstances.”

“A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense”, the apex court said, upholding the high court’s verdict setting aside the acquittal of Harijan by the trial court. In Harijan’s case, the five-year-old victim was first buried by her family under the belief that she died of paralysis. But her body was later exhumed and sexual assault and death due to shock was confirmed in a medical test.

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Harish Salve explains SC powers on contempt

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: If a person is found guilty of committing contempt of Supreme Court, will the apex court’s constitutional power to punish him be circumscribed by the Contempt of Court Act (CCA) provisions?

Senior advocate Harish Salve, appearing in the application filed by Vodafone complaining about misreporting during the hearing of its case, said CCA only provided the guiding principles and would in no way limit the apex court’s power on quantum of punishment, which in appropriate cases could exceed what is provided in the statute. The response came to a query from a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar whether Article 129 of the Constitution, which provides that “the Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself”, meant it was bridled by the CCA.

After hearing Salve’s view, the CJI said though the bench had not taken any final view, it was of the opinion that provisions of a statute could not limit the Constitution-vested powers of the apex court. In the midst of long deliberation on the necessity of framing media reporting guidelines to protect right of an accused to reputation and dignity as well as preserve sanctity of fair trial, the bench asked for Salve’s view on restricting press freedom derived from right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution and whether it could only be done through parameters specified under Article 19(2).

The senior advocate said, “The Supreme Court need not deal with the restrictions specified under Article 19(2) because it is only engaged in an exercise to define the contours of press freedom in reporting pending investigation or trial of a case and balancing it with the right of the accused to dignity and reputation.”

Salve said these days it was common to find TV channels standing outside a house being raided by investigating agencies and telecasting minute by minute details of the search operation. “This surely besmirches someone’s reputation. What happens if the agency does not find any incriminating material or does not press any charge at the end of the investigations? Can he not move the constitutional courts seeking relief on the ground that such reporting was destroying his reputation,” he asked.

“The media should be beyond government regulations except acceptable censorship. But to argue that media is beyond all regulation is the limit,” he said. Salve also objected to media using unnecessary hyperboles to describe intense questioning by a bench in serious issues.

He said, “Judges ask sharp questions to get the best out of lawyers. There is no pulling up, tearing into or lambasting involved in the oral argument-based judicial scrutiny system in India. There is a talk of restraining judges from making comments on institutions. If anyone has to exercise restraint, it is the reporters who cover the courts, not the judges nor the lawyers who must not be inhibited in any manner from free and frank exchange of views.”

Counsel Nitya Ramakrishnan said the investigating agencies had been regularly leaking information to media to prejudice an accused branding him as a terrorist though ultimately he might get acquitted in a trial. Appearing for Rajasthan government, counsel Manish Singhvi said a state producing clear and cogent evidence of consistent media misreporting could seek temporary deferment of publication for a limited period.

“However, the order for postponement of publication must be direct, proximate with investigation and must be least intrusive to the freedom of press/electronic media. Thus, the press has a right to report even criminal sub-judice matters as long as they do not impair or destroy fair investigation,” he said. Singhvi said subordinate courts had sovereign power to dispense justice and hence, they had inherent powers to pass appropriate orders to secure the ends of justice.

Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an...

Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.

Judiciary can’t regulate press freedom: Jethmalani

Parks, sanctuaries on mining no-go list soon

NITIN SETHI IN THE TIMES OF INDIA

NEW DELHI: A panel set up to review norms for no-go areas that will protect certain areas from commercial activity is likely to recommend mining should be disallowed in all national parks and wildlife sanctuaries in the country.

Sources in the government told TOI that the committee, headed by the Union environment and forests secretary, is likely to close the debate over no-go areas as it is not inclined to reassess protected areas in view of existing legal protection provided to national parks and sanctuaries that has been supplemented by orders of the Supreme Court.

The committee was set up after a Group of Ministers (GoM) on coal asked the environment ministry to reconsider parameters for no-go areas, where mining is not permitted. They were renamed inviolate areas and the ministry asked to set new norms to be put before the GoM.

The panel’s decision can make it difficult for any relaxation of a policy that has come under pressure from some central ministries and state governments. While ministries like coal and mining have been keen that the no-go policy be made less rigid, the committee does not seem to favour any dilution.

The panel, sources said, feels that parks and sanctuaries provided a higher level of protection under the Wildlife Protection Act, 1976, should not be re-evaluated for their forest value. The head of the Wildlife Institute of India, Forest Survey of India and other senior forest officers from the Centre and select states are the other members of the committee.

There are 661 such protected areas comprising of 100 National Parks, 514 Wildlife Sanctuaries, 43 Conservation Reserves and 4 Community Reserves that add up to roughly 5% of the country’s geographical area. This includes the tiger reserves as well.

The committee is likely to recommend that patches of forest be measured for their forest cover as well as biodiversity values. The panel has not considered the implications of the Forest Rights Act as yet. Under the existing rules, the ministry cannot allocate forest lands to development projects until the rights of the people under the FRA have been settled and the village councils of the affected area agreed to the diversion of forest.

Once the committee’s recommendations are considered by the GoM and approved, the ministry would be asked to again demarcate the no-go zones for mining, but this may happen only after the cases of Mahan and Chhatrasal blocks in Madhya Pradesh, which the GoM has pushed hard for clearing, are reassessed.

Reporting guidelines: Supreme Court expands scope of deliberations

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

A petitioner has pleaded the Supreme Court to frame guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

 NEW DELHI: The purview of the Supreme Court’s deliberations to frame guidelines for how media should report sub-judice matters, which arose from indignation over a news report on “leaked” privileged communication between the counsel of Sahara Real Estate Corporation and Sebi, has now been expanded to include related cases which had been pending in the apex court since 1999.

While hearing Sahara’s application, a five-judge bench headed by Chief Justice SH Kapadia had directed that “any party, who desires to make submissions in the matter, may do so by way of intervention”. This prompted several public spirited lawyers and organizations to intervene in the deliberations.

During the discussions, the court had appeared to narrow down the issue before it to a debate on the framing of guidelines for reporting of criminal trials to guard against violation of Article 21 guaranteeing right of an accused to reputation and dignity and to ensure that his trial does not get prejudiced, and the witness protection mechanism is not impacted.

However, on April 4, the court ordered inclusion of four more media guideline-related petitions, two of which were pending since 1999 and 2000, within the zone of consideration by permitting the parties involved to make submissions on “framing of guidelines for reporting of cases in media” when the matter is taken up for hearing on April 10. This at once broadened the scope of the exercise.

The issues raised in these four petitions include norms for news coverage in electronic media, norms and guidelines to minimize presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of accused before police and making police liable for damages for tarnishing the reputation of an accused by releasing details of investigation into a case.

In Criminal Appeal No. 1255 of 1999 titled PUCL vs State of Maharashtra, the News Broadcasters Association had desired to intervene and assist the apex court on the issue of “what norms should govern news coverage by the electronic media”. On November 5, 2008, a bench headed by Justice Dalveer Bhandari had issued notices to all state and Union Territory governments.

The writ petition (civil) No. 387 of 2000 titled Common Cause vs Union of India last came up for hearing before the court in July 2009. The relief sought by the NGO was to “prescribe definite norms and guidelines for minimization of presentation of scenes of violence and sexual abuse in serials and programmes telecast by TV channels for avoidance of undesirable mental impact on the viewers, particularly children”.

In the transfer case 27 of 2011, NGO Anhad had sought initiation of contempt proceedings against two senior journalists for “publishing confessional statements of accused before police and thereby prejudicing or tending to prejudice the due course of judicial proceedings of those accused”.

Ban sought on cops leaking case information

Anhad had also sought a direction to the government to lay down guidelines “to be followed by both police and media regarding release of evidence or information and its publication against the accused claimed to be obtained by police during interrogation or investigation when the matter is sub-judice”.

The fourth petition included in the list was a writ petition filed by Dr Surat Singh in 2008 in the aftermath of media reporting of UP police’s version of the Aarushi murder case and the role of the accused. He had sought a complete ban on police leaking any information to media about pending investigations. He had also requested the court to make police officers personally liable for rushing to media and “making adverse comments or character assassination of an accused or his family members/friends or about the victim”.

Singh had sought framing of guidelines and norms for coverage of criminal cases pending investigation “so that the right of privacy and to live with dignity is not at the mercy of irresponsible press or media as has been done in the case of the recent Aarushi murder case”.

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Cannot ban news as it is perishable, Supreme Court told

NEW DELHI: As Supreme Court Wednesday explored the option of postponing the publication of court proceedings in sensitive matters, including criminal cases, it was told that news was a perishable commodity which lost its value, if banned.

“We are not banning but are invoking the doctrine of postponement. It is a question of the timing” of the reporting of court proceedings, Chief Justice S.H. Kapadia told counsel Anup Bhambhani who appeared for News Broadcasters Association ( NBA).

While evaluating the option of postponing the publication of the court proceedings, the court indicated that it may frame guidelines as had been done in some specific cases. The postponement of the publication of the ongoing court proceedings in a case would amount to ban for a certain period thereby rendering it useless, Bhambhani told the apex court‘s constitutional bench of Chief Justice Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar.

“News is a perishable commodity. If its publication is banned then it would lose its news value,” Bhambhani told the court adding that the “practical effect of what the court is contemplating would be something it had not even thought of”.

The court asked “can media analyse the evidence even before the court had done and prejudice the case of the accused facing trial”. The judges said this on an application by the Sahara India Real Estate Corp agitating its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it had mopped up from the market.

On an application by Sahara, the court said it would frame guidelines for reporting of sub-judice matters. Bhambhani said an accused facing trial in the 2G case could in future approach the court saying the media should be restrained from reporting the court proceedings in his case as it was affecting his business interest. “It (postponement) will open a Pandora’s box.”

He favoured putting in place guidelines as the broadcasters had already done for themselves under the stewardship of former chief justice J.S. Verma. Senior counsel Fali Nariman, appearing for Sahara, told the court that under Article 19 of the constitution people had a right to know and the right to be informed.

He said that live telecast of parliament proceedings were the satisfaction of the right to know and the right to be informed. Every citizen has a right to know what their elected representatives were doing in parliament even if they were staging a walkout, Nariman told the court, suggesting that the court proceedings could not be shielded from the people.

Addressing the court’s option of postponement of publication of court proceedings, Nariman said that there could not be any preventive relief.

He said that courts were not empowered to make such guidelines nor was there any statutory empowerment for then to do so. The court asked Nariman if he could suggest how to balance the freedom of press with the right of an accused facing trial. The court said that in Canada they do have some law and Ireland has guidelines that restrain one-sided reporting that causes prejudice to the accused.

No more leniency to govts in delayed appeals: SC

Supreme Court of India

TIMES OF INDIA

NEW DELHI: For long, government and its departments have been getting away lightly in the judiciary as courts have been lenient in viewing the delay in filing of appeals by them. But, the Supreme Court on Friday put an end to it and decided to treat government with the same yardstick used for other litigants when it comes to filing of appeals after the statutory deadline. Dismissing an appeal filed by the chief of the Post Master General against Living Media India Ltd; after 427 days of the statutory period of limitation, a bench of Justices P Sathasivam and J Chelameswar said the apex court was no more willing to buy the stock response of government departments – delay was due to red-tape and pendency of file on a bureaucrat’s desk for long.

“The law of limitation undoubtedly binds everybody including the government,” the bench said refusing to accept the contention that delays in filing of appeals by government departments are due to impersonal machinery and inherited bureaucratic methodology of making multiple notes. “Why the delay is to be condoned mechanically merely because government or wing of the government is a party before us?” the bench asked.

“It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona-fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape,” said Justice Sathasivam, who wrote the judgment.

This could hit governments hard as they are the biggest litigant before the judiciary accounting for about 40% of total cases pending in various courts either as petitioner or respondent. The sheer volume of work and lack of enough equipped manpower often leave the decision of whether to file an appeal in a limbo till higher-ups take a view of it. Besides, the decision to reduce government litigation has not trickled down.

Justice Sathasivam said: “The government departments are under a special obligation to ensure that they perform their duties with due diligence and commitment. Condoning of delay is an exception and should not be used as an anticipated benefit for government departments.”

He said the law must weigh every litigant on the same scale and “should not be swirled for the benefit of few”. On the case at hand, the court slammed the postal department, saying “From day one the department or the persons concerned have not evinced diligence in prosecuting the matter to this court by taking appropriate steps”.

http://timesofindia.indiatimes.com/india/No-more-leniency-to-govts-in-delayed-appeals-SC/articleshow/12039556.cms