Karnataka Judicial Academy

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1 May 2013 Karnataka Judicial Academy C rescent House, Crescent Road, Bangalore T el.: /96 Fax: : dirkjab@gmail.com r.nic.in CONTENTS From the Desk of the President Important Amendments by Parliament Important amendments by the Karnataka State Legislature Important judgments of Supreme Court of India Important judgments of High Court of Karnataka Articles Programmes of Karnataka Judicial Academy Other News

2 May 2013 From the Desk of the President PAGE 2

3 May 2013 From the Desk of the President PAGE 3

4 May 2013 From the Desk of the President PAGE 4

5 May 2013 Karnataka Judicial Academy PAGE 5 Important amendments by the Parliament (The Criminal Law (Amendment) Act 2013, Continued from last News letter) CHAPTER III Amendments to the Code of Criminal Procedure, In the Code of Criminal Procedure, 1973 (hereafter in this Chapter referred to as the Code of Criminal Procedure), in section 26, in the proviso to clause (a), for the words, figures and letters "offence under section 376 and sections 376A to 376D of the Indian Penal Code", the words, figures and letters "offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code" shall be substituted. 12. In section 54A of the Code of Criminal Procedure, the following provisos shall be inserted, namely: "Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed." 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.". 14. In section 160 of the Code of Criminal Procedure, in sub-section (1), in the proviso, for the words "under the age of fifteen years or woman", the words "under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person" shall be substituted. 15. In section 161 of the Code of Criminal Procedure, in sub-section (3), after the proviso, the following proviso shall be inserted, namely: 13. In section 154 of the Code of Criminal Procedure, in sub-section (1), the following provisos shall be inserted, namely: "Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that (a) in the event that the person against whom an offence under section "Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.". 16. In section 164 of the Code of Criminal Procedure, after sub-section (5), the following sub-section shall be inserted, namely: "(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of

6 May 2013 Karnataka Judicial Academy PAGE 6 Important amendments by the Parliament section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be crossexamined on such statement, without the need for recording the same at the time of trial.". 17. In section 173 of the Code of Criminal Procedure, in sub-section (2), in subclause (h) of clause (i), for the words, figures and letter "or 376D of the Indian Penal Code", the words, figures and letters " 376D or section 376E of the Indian Penal Code" shall be substituted. 18. In section 197 of the Code of Criminal Procedure, after sub-section (1), the following Explanation shall be inserted, namely: "Explanation. For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code.". 19. After section 198A of the Code of Criminal Procedure, the following section shall be inserted, namely: "198B. No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband." 20. In section 273 of the Code of Criminal Procedure, before the Explanation, the following proviso shall be inserted, namely: "Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused." 21. In section 309 of the Code of Criminal Procedure, for sub-section (1), the following sub-section shall be substituted, namely: "(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code, the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet." 22. In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words, figures and letter "or section 376D of the Indian Penal Code", the words, figures and letters "section 376D or section 376E of the Indian Penal Code" shall be substituted. 23. After section 357A of the Code of Criminal Procedure, the following sections shall be inserted, namely: "357B - The compensation payable by the

7 May 2013 Karnataka Judicial Academy PAGE 7 Important amendments by the Parliament State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code. section 376E of the Indian Penal Code, and shall immediately inform the police of such incident." 357C - All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or 24. In the First Schedule to the Code of Criminal Procedure, under the heading "I.-OFFENCES UNDER THE INDIAN PENAL CODE", (a) after the entries relating to section 166, the following entries shall be inserted, namely: A Public servant disobeying direction under law Imprisonment for minimum 6 months which may extend to 2 years and fine Bailable Magistrate the first class. of 166B Non-treatment of victim by hospital Imprisonment for 1 year or fine or both Non cognizable Bailable Magistrate the first class. of (b) after the entries relating to section 326, the following entries shall be inserted, namely: A Voluntarily causing grevious hurt by use of acid, etc. Imprisonment for not less than 10 years but which may extend to imprisonment for life and fine to be paid to the victim. Non bailable Court of Session. 326 B Voluntarily throwing or attempting to throw acid. Imprisonment for 5 years but which may extend to 7 years and with fine. Non bailable Court of Session.

8 May 2013 Karnataka Judicial Academy PAGE 8 Important amendments by the Parliament (c) for the entries relating to section 354, the following entries shall be substituted, namely: Assault or use of criminal force to woman with intent to outrage her modesty. Imprisonment of 1 year which may extend to 5 years, and with fine. Non Bailable Any Magistrate 354 A Sexual harassment of the nature of unwelcome physical contact and advances or a demand or request for sexual favours, showing pornography. Imprisonment which may extend to 3 years or with fine or with both. cognizable Bailable Any Magistrate Sexual harassment of the nature of making sexually coloured remark. Imprisonment which may extend to 1 year or with fine or with both. cognizable Bailable Any Magistrate 354 B Assault or use of criminal force to woman with intent to disrobe. Imprisonment of not less than 3 years but which may extend to 7 years and with fine. Non Bailable Any Magistrate 354 C Voyeurism Imprisonment of not less than 1 year but which may extend to 3 years and with fine for first conviction. Bailable Any Magistrate 354 D Stalking Imprisonment up to 3 years and with fine for first conviction. Bailable Any Magistrate Imprisonment up to 5 years and with fine for second or subsequent conviction cognizable Non Bailable Any Magistrate

9 May 2013 Karnataka Judicial Academy PAGE 9 Important amendments by the Parliament (d) For the entries relating to section 370, the following entries shall be substituted, namely: Trafficking of person Imprisonment of not less than 7 years but hiwhc may extend to 10 years and with fine. Non bailable Court of Session. Trafficking of more than one person. Imprisonment of not less than 10 years but which may extend to imprisonment for life and with fine. Non bailable Court of Session. Trafficking of a minor. Imprisonment of not less than 10 years but which may extend to Imprisonment for life and with fine. Non bailable Court of Session. Trafficking of more than one minor. Imprisonment of not less than 14 years but which may extend to Imprisonment for life and with fine. Non bailable Court of Session. Person convicted of offence of trafficking of minor on more than one occasion. Imprisonment for life which shall mean the remainder of that person s natural life and with fine. Non bailable Court of Session. Public servant or a police officer involved in trafficking of minor Imrpisonment for life which shall mean the remainder of that person s natural life and with fine. Non bailable Court of Session. 370A Exploitation of a trafficked child. Imprisonment of not less than 5 years but which may extend to 7 years and with fine. Non bailable Court of Session. Exploitation of a trafficked person Imprisonment of not less than 3 years but which may extend to 5 years and with fine Non bailable Court of Session.

10 May 2013 Karnataka Judicial Academy PAGE 10 Important amendments by the Parliament ( e) for the entries relating to sections 376, 376A, 376B, 376C and 376D, the following entries shall be substituted, namely: Rape Rigorous imprisonment of not less than 7 years but which may extend to imprisonment for life and with fine. Non bailable Court of Session. Rape by a police officer or a public servant or member of armed forces or a person being on the management or on the staff of a jail, remand home or other place of custody or women s or children s institution or by a person on the management or on the staff of a hospital, and rape committed by a person in a position of trust or authority towards the person raped or by a near relative of the person raped. Rigorous imprisonment of not less than 10 years but which may extend to imprisonment for life which shall mean the remainder of that person s natural life and with fine. Non bailable Court of Session. 376 A Person committing an offence of rape and inflicting injury which causes death or causes the woman to be in a persistent vegetative state. Rigorous imprisonment of not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person s natural life or with death. Non bailable Court of Session. 376 B Sexual intercourse by husband upon his wife during separation. Imprisonment for not less than 2 years but which may extend to 7 years and with fine. (but only on the complaint of the victim) Bailable Court of Session. 376 C Sexual intercourse by a person in authority. Rigorous imprisonment for not less than 5 years but which may extend to 10 years and with fine. Non bailable Court of Session

11 May 2013 Karnataka Judicial Academy PAGE 11 Important amendments by the Parliament D Gang rape. Rigorous imprisonment for not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person s natural life and with fine to be paid to the victim Non bailable Court of Session 376 E Repeat offenders. Imprisonment for life which shall mean imprisonment for the remainder of that person s natural life or with death. Non bailable Court of Session (f) in entry relating to section 509, in column 3, for the words Simple imprisonment for one year, or fine, or both,, the words and figure Simple imprisonment for 3 years and with fine shall be substituted. CHAPTER IV AMENDMENTS TO THE INDIAN EVIDENCE ACT, After section 53 of the Indian Evidence Act, 1872 (hereafter in this Chapter referred to as the Evidence Act), the following section shall be inserted, namely: clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. "53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.". 26. For section 114A of the Evidence Act, the following section shall be substituted, namely: '114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), Explanation. In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code.'. 27. For section 119 of the Evidence Act, the following section shall besubstituted, namely: "119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such

12 May 2013 Karnataka Judicial Academy PAGE 12 Important amendments by the Parliament statement shall be videographed.". 28. In section 146 of the Evidence Act, for the proviso, the following proviso shall be substituted, namely: "Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.". CHAPTER V AMENDMENT TO THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, For section 42 of the Proteciton of Children from Sexual Offences Act, 2012, the following sections shall be substituted, namely: 42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or seciton 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 42A. The provisions of this Act shall be in additon to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.. CHAPTER VI MISCELLANEOUS 30. (1) The Criminal Law (Amendment) Ordinance, 2013 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of those Acts, as amended by this Act.

13 May 2013 Karnataka Judicial Academy PAGE 13 Important amendments by the Karnataka State Legislature Civil Procedure (Alternative Dispute Resolution) (KARNATAKA) RULES, 2005 No.LAW 291 LAC 2005, Bangalore, Dated 29 th December 2006 Whereas the draft of the following rules which the High Court of Karnataka proposed to make was published as required by sub-section (1) of Section 122 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in Notification No. LAW 291 LAC 2005 dated: in Part IVA of the Karnataka Gazette dated inviting objections or suggestions from the persons likely to be affected thereby and notice was given that the said draft rules will be taken into consideration on or after thirty days from the date of its publication in the Official Gazette. And whereas, the said copy of the Gazette Notification was made available to the public on And whereas, no objections or suggestions have been received to the said draft rules by the High Court of Karnataka. Now, therefore, in exercise of the powers conferred by Section 89 and Section 122 read with Section 126 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) and with prior approval of the State Government, the high Court of Karnataka hereby makes the following rules, namely:- 1. Title and commencement:- (1) These rules may be called the Civil Procedure (Alternative Dispute Resolution) (Karnataka) Rules, (2) They shall come into force from the date of their publication in the Official Gazette. 2. Procedure for directing parties to opt for alternative modes of settlement:- (1) The Court shall, after recording admissions and denials at the first hearing of the suit under Rule 1 of Order X, and where it appears to the Court that there exists elements of a settlement which may be acceptable to the parties, formulate the terms of settlement and give them to the parties for their observations under sub-section (1) of Section 89 and the parties shall submit to the court their responses within thirty days of the first hearing. (2) At the next hearing, which shall be not later than thirty days of the receipt of responses, the Court may re-formulate the terms of a possible settlement and shall direct the parties to opt for one of the modes of settlement of disputes outside the Court as specified in clauses (a) to (d) of sub-section (1) of section 89 read with rule 1A of Order X, in the manner stated hereunder: Provided that the Court, in the exercise of such power, shall not refer any dispute to arbitration or to judicial settlement by a person or institution without the written consent of all the parties to the suit. 3. Persons authorized to take decision for the Union of India, State Government and others:-(1) For the purpose of rule, 2, the

14 May 2013 Karnataka Judicial Academy PAGE 14 Important amendments by the Karnataka State Legislature Union of India or the Government of a State or Union Territory, all local authorities, all public sector undertakings, all statutory corporations and all public authorities shall nominate a person or persons or group of persons who are authorized to take a final decision as to the mode of Alternative Dispute Resolution in which it proposes to opt in the event of direction by the Court under section 89 and such nomination shall be communicated to the High Court within a period of three months from the date of commencement of these rules and the High Court shall notify all the subordinate Courts in this behalf as soon as such nomination is received is from such Government or authorities. (2) Where such person or persons or group of persons have not been nominated as aforesaid, such party as referred to in sub-rule (1) shall, if it is a plaintiff, file along with the plaint or if it is a defendant file, along with or before the filing of the written statement, a memo into the Court, nominating a person or persons or group of persons who is or are authorized to take a final decision as to the mode of alternative dispute resolution which the party prefers to adopt in the event of the Court directing the party to opt for one or other mode of Alternative Disputes Resolution. 4. Court to give guidance to parties while giving direction to opt:- Before directing the parties to exercise option under sub-rule (2) of rule (2), the Court shall give such guidance as it deems fit to the parties, by drawing their attention to the relevant factor; which parties will have to take into account, before they exercise their option as to the particular mode of settlement, namely :- (i) that it will be to the advantage of the parties, so far as time and expense are concerned, to opt for one or other of these modes of settlement referred to in section 89 rather than seek a trial on the disputes arising in the suit; (ii) that, where there is no relationship between the parties which requires to be preserved, it may be in the interest of the parties to seek reference of the matter to arbitration as envisaged in clause (a) of sub-section (1) of section 89. (iii) that, where there is a relationship between the parties which requires to be preserved, it may be in the interest of parties to seek reference of the matter to conciliation or mediation as envisaged in clause (b) or (d) sub-section (1) of section 89. Explanation: Disputes arising in matrimonial, maintenance and child custody matters shall, among others, be treated as cases where a relationship between the parties has to be preserved. (iv) that, where parties are interested in a final settlement which may lead to a compromise, it will be in the interests of the parties to seek reference of the matter to Lok Adalat or to judicial settlement as envisaged in clause (c) of sub-section (1) of section 89. (v) the difference between the different modes of settlement, namely, arbitration,

15 May 2013 Karnataka Judicial Academy PAGE 15 Important amendments by the Karnataka State Legislature conciliation, mediation and judicial settlement are explained below: (a) Settlement by Arbitration means the process by which an arbitrator appointed by parties or by the Court, as the case may be, adjudicates the disputes between the parties to the suit and passes an award by the application of the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) in so far as they refer to arbitration. (b) Settlement by Conciliation means the process by which a conciliator who is appointed by parties or by the court, as the case may be, conciliates the disputes between the parties to the suit by the application of the provisions of the Arbitration and Conciliation act, 1996 (26 of 1996) in so far as they relate to conciliation and in particular in exercise of his powers, under sections 67 and 73 of that Act, by making proposals for a settlement of the dispute and by formulating or re-formulating the terms of a possible settlement of the dispute and has a greater role than a mediator. Settlement by Mediation means the process by which a mediator appointed by the Court, mediates the dispute between the parties to the suit by the application of the provisions of the Karnataka Civil Procedure (Mediation) Rules, 2005 and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them. (d) Settlement in Lok Adalat means settlement by Lok Adalat as contemplated by the Legal Service Authorities Act, (e ) Judicial Settlement means a final settlement by way of compromise entered into before a suitable institution or person to which the Court has referred the dispute and which institution or person are deemed to be the Lok Adalats under provisions of the Legal Service Authorities Act, 1987 (39 of 1987) and where after such reference, he provisions of the said Act apply as if the dispute was referred to a Lok Adalat under the provisions of that Act. 5. Procedure for reference by the Court to the different modes of settlement:- (1) Where all parties to the suit decide to exercise their option and to agree for settlement by arbitration, they shall apply to the Court, within thirty days of the direction of the Court under clause (b) of rule 2 and the court shall, within thirty days of the said application, refer the matter to arbitration and hereafter the provisions of the Arbitration and Conciliation Act, 1996(26 of 1996) which are applicable after the stage of making of the reference to arbitration under that Act, shall apply as if he pro-

16 May 2013 Karnataka Judicial Academy PAGE 16 Important amendments by the Karnataka State Legislature ceedings were referred for settlement by way of arbitration under the provisions of that Act; (2) Where all the parties to the suit decide to exercise their option and to agree for settlement by the Lok Adalat or where one of the parties applies for reference to Lok Adalat, the procedure envisaged under the Legal Service Authorities Act, 1987 and in particular by section 20 of that Act, shall apply. (3) Where all the parties to the suit decide to exercise their option and to agree for judicial settlement, they shall apply to the Court within thirty days of the direction under sub-rule (2) of rule 2 and then the Court shall, within thirty days of the applicaiton, refer the matter to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and thereafter the provisions of the Legal Service Authorities Act, 1987(39 of 1987) which are applicable after the stage of making of the reference to Lok Adalat under that Act, shall apply as if the proceedings were referred for settlement under provisions of that Act; (4) Where none of the parties are willing to agree to opt or agree to refer the dispute to arbitration or Lok Adalat, or to Judicial settlement, within thirty days of the direction of the Court under sub-rule(2) of rule 2, they shall consider if they could agree for reference to conciliation or mediation, within the same period. (5) (a) Where all the parties opt and agree for conciliation, they shall apply to the Court, within thirty days of the direction under subrule (2) of rule 2 and the Court shall, within thirty days of the application refer the matter to conciliation and thereafter the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) which are applicable after the stage of making of the reference to conciliation under that Act, shall apply, as if the proceedings were referred for settlement by way of conciliation under the provisions of the Act; (b) Where all the parties opt and agree for mediation, they shall apply to the Court, within thirty days of the direction under sub-rule(2) or rule 2 and the Court shall, within thirty days of the application refer the matter to mediation and then the Karnataka Civil Procedure (Mediation) Rules, 2005 shall apply. (6) Where under sub-rule(4) all the parties are not able to opt and agree for conciliation or mediation, one or more parties may apply to the Court within thirty days of the direction under sub-rule (2) of rule 2, seeking settlement through conciliation or mediation, as the case may be, and in that event, the Court shall, within a further period of thirty days issue notice to the other parties to respond the application, and (a) in case all the parties agree for conciliation, the Court shall refer the matter to conciliation and thereafter, the provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to conciliation under that Act, shall apply; (b) in case all the parties agree for mediation, the Court shall refer the matter to mediation in accordance with the Karna-

17 May 2013 Karnataka Judicial Academy PAGE 17 Important amendments by the Karnataka State Legislature taka Civil Procedure (Mediation)Rules, 2005; (c) in case all the parties do not agree and where it appears to the Court that there exists elements of a settlement which may be acceptable to the parties and that there is a relationship between the parties which ahs to be preserved, the Court shall refer the matter to conciliation or mediation, as the case may be. In case the dispute is referred to Conciliation. The provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to Conciliation under that Act shall and in case the dispute is referred to mediation, the provisions of the Karnataka Civil Procedure (Mediation)Rules, 2005 shall apply. (7) (a) where none of the parties apply for reference either to arbitration, or Lok Adalat, or judicial settlement, or for conciliation or mediation, within thirty days of the direction under sub-rule (2) of rule 2, the Court shall, within a further period of thirty days, issue notices to the parties or their representatives fixing the matter for hearing on the question of making a reference either to conciliation or mediation. (b) After hearing the parties or their representatives on the day so fixed the court hall, if there exists elements of a settlement which may be acceptable to the parties and there is relationship between the parties which has to be preserved, refer the matter to conciliation or mediation. In case the dispute is referred to Conciliation, the provisions of the Arbitration and Conciliation Act, 1996 which are applicable after the stage of making of the reference to Conciliation under that Act shall and in case the dispute is referred to mediation, the provisions of the Karnataka Civil Procedure (Mediation) Rules, 2005, shall apply. (8) (a) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings of the Court, opt for any one of the modes of alternative dispute resolution nor shall enter into any settlement on behalf of a minor or person under disability with reference to the suit in which he acts as mere friend or guardian. (b) Where an application is made to the Court for leave to enter into a settlement initiated into in the alternative dispute resolution proceedings on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file a certificate along with the said application to the effect that the settlement is, in his opinion, for the benefit, of the minor or other person under disability. The decree of the Court based on the settlement to which the minor or other person under disability is a party shall refer to the sanction of the Court thereto and shall set out the terms of the settlement. 6. Referral to the Court and appearance before the Court upon failure of attempts to settle disputes by Conciliation or Judicial settlement or mediation:- (1) Where a suit has been referred for settlement for con-

18 May 2013 Karnataka Judicial Academy PAGE 18 Important amendments by the Karnataka State Legislature ciliation, mediation or judicial settlement and has not been settled or where it is felt that it would not be proper in the interest of justice to proceed further with the matter, the suit shall be referred back again to the Court with a direction to the parties to appear before the Court on a specific date. (2) upon reference of the matter back to the Court under sub-rule (1) or under subsection (5) of section 20 of the Legal Services Authorities Act, 1987, the Court shall proceed with the suit in accordance with law. 7.Training in alternative methods of resolution of disputes and preparation of manual:- (1) The High Court shall take steps to have training courses conducted in laces where the High Court and the District Courts or Courts of equal status are located, by requesting bodies recognized by the High Court or the universities imparting legal education or retired Faculty Members or other person who, according to the High Court are well versed in the techniques of alternative methods of resolution of dispute, to conduct training courses for lawyers and judicial officers. (2) (a) The High Court shall nominate a committee of judges, faculty members including retired persons belonging to the above categories, senior members of the Bar, other members of the Bar specially qualified in the techniques of alternative dispute resolution, for the purpose referred to in sub rule (1) and for the purpose of preparing a detailed manual of procedure for alternative dispute resolution to be used by the Courts in the State as well as by the arbitrators, or authority or person in the case of judicial settlement or conciliators or mediators. (b) The said manual shall describe the various methods of alternative dispute resolution, the manner in which any one of the said methods is to be opted for, the suitability of any particular method for any particular type of dispute and shall specially deal with the role of the above persons in disputes which are commercial or domestic in nature or which relate to matrimonial, maintenance and child custody matters. (3) The High Court and the District Courts shall periodically conduct seminar and workshops on the subject of alternative dispute resolution procedures throughout the State or States over which the High Court has jurisdiction with a view to bring awareness of such procedures and to impart training to lawyers and judicial officers. (4) Persons who have experience in the matter of alternative dispute resolution procedures and in particular in regard to conciliation and mediation, shall be given preference in the matter of empanelment for purposes of conciliation or mediation. 8. Applicability to other proceedings:- The provisions of these rules may be applied to proceedings before the Courts, including Family Courts constituted under the Family Courts Act (66 of 1984) while dealing with matrimonial, maintenance and child custody disputes, wherever necessary, in addition to the rules framed under the Family Courts Act (66 of 1984).

19 May 2013 Karnataka Judicial Academy PAGE 19 Important judgments of the Supreme Court of India Chandrashekar (D) by LRs. & Others Vs. Land Acquisition Officer & Others R.M.Lodha, Jagdish Singh Khehar JJ SCC 390 = 2012 AIR(SCW) (2) SCJ 55 = 2012 AIR(SC) (4) KantLJ 18 = 2012 (3) KCCR 2349 While dealing with the quantum of the deductions to be made from the market value determined on the basis of developed exemplar transactions the Hon ble Apex Court has laid down that the same should not cumulatively exceed the upper benchmark of 75%. 19. Based on the precedents on the issue referred to above it is seen that as the legal proposition on the point crystallised, this Court divided the quantum of deductions (to be made from the market value determined on the basis of the developed exemplar transaction) on account of development into two components Firstly, space/area which would have to be left out, for providing indispensable amenities like formation of roads and adjoining pavements, laying of sewers and rain/flood water drains, overhead water tanks and water lines, water and effluent treatment plants, electricity sub-stations, electricity lines and street lights, telecommunication towers, etc. Besides the aforesaid, land has also to be kept apart for parks, gardens and playgrounds. Additionally, development includes provision of civic amenities like educational institutions, dispensaries and hospitals, police stations, petrol pumps, etc. This first component may conveniently be referred to as deductions for keeping aside area/space for providing developmental infrastructure Secondly, deduction has to be made for the expenditure/expense which is likely to be incurred in providing and raising the infrastructure and civic amenities referred to above, including costs for levelling hillocks and filling up low-lying lands and ditches, plotting out smaller plots and the like. This second component may conveniently be referred to as deductions for developmental expenditure/expense. 20. It is essential to earmark appropriate deductions out of the market value of an exemplar land, for each of the two components referred to above. This would be the first step towards balancing the differential factors. This would pave the way for determining the market value of the undeveloped acquired land on the basis of market value of the developed exemplar land. 21. As far back as in 1982, this Court in Brig. Sahib Singh Kalha case held, that the permissible deduction could be up to 53%. This deduction was divided by the Court into two components. For the first component referred to in the foregoing paragraph, it was held that a deduction of 20% should be made. For the second component, it was held that the deduction could range between 20% to

20 May 2013 Karnataka Judicial Academy PAGE 20 Important judgments of the Supreme Court of India 33%. It is therefore apparent that a deduction. 22. In 2009 in Lal Chand case and in 2010 in A.P. Housing Board case it has been held that while applying the sale consideration of a small piece of developed land, to determine the market value of a large tract of undeveloped acquired land, deductions between 20% to 75% could be made. But in 2009 in Subh Ram case, this Court restricted deductions on account of the first component of development, as also, on account of the second component of development to 331/3% each. The aforesaid deductions would roughly amount to 67% of the component of the sale consideration of the exemplar sale transaction(s). 23. Having given our thoughtful consideration to the analysis of the legal position referred to in the foregoing four paragraphs, we are of the view that there is no discrepancy on the issue in the recent judgments of this Court. In our view, for the first component under the head of development, deduction of 331/3% can be made. Likewise, for the second component under the head of development, a further deduction of 331/3% can additionally be made. The facts and circumstances of each case would determine the actual component of deduction, for each of the two components. Yet under the head of development, the applied deduction should not exceed 67%. That should be treated as the upper benchmark. This would mean, that even if deduction under one or the other of the two components exceeds 331/3%, the two compo- nents under the head of development put together, should not exceed the upper benchmark. 24. In Lal Chand case and in A.P. Housing Board case, this Court expressed the upper limit of permissible deductions as 75%. Deductions up to 67% can be made under the head of development. Under what head then, would the remaining component of deductions fall? Further deductions would obviously pertain to considerations other than the head of development. 25. Illustratively, a deduction could be made keeping in mind the waiting period required to raise infrastructure, as also, the waiting period for sale of developed plots and/or built-up areas. This nature of deduction may be placed under the head waiting period. Illustratively again, deductions could also be made in cases where the exemplar sale transaction is of a date subsequent to the publication of the preliminary notification. This nature of deduction may be placed under the head de-escalation. Likewise, deductions may be made for a variety of other causes which may arise in different cases. It is however necessary for us to conclude, in the backdrop of the precedents on the issue, that all deductions should not cumulatively exceed the upper benchmark of 75%. A deduction beyond 75% would give the impression of being lopsided, or contextually unreal, since the land-loser would seemingly get paid for only 25% of his land. This impression is unjustified, because deductions are made out of the market value of developed land, whereas, the acquired land is undeveloped (or not fully developed). Differences between the nature of the exemplar land and the acquired land, it should be remembered, is the

21 May 2013 Karnataka Judicial Academy PAGE 21 Important judgments of the Supreme Court of India reason/cause for applying deductions. 26. Another aspect of this matter must also be kept in mind. Market value based on an exemplar sale, from which a deduction in excess of 75% has to be made, would not be a relevant sale transaction to be taken into consideration, for determining the compensation of the acquired land. In such a situation the exemplar land and the acquired land would be incomparable, and therefore, there would be no question of applying the market value of one (exemplar sale) to determine the compensation payable for the other (acquired land). It however needs to be clarified, that even though on account of developmental activities (under the head development ), we have specified the upper benchmark of 67%, it would seem, that for the remaining deduction(s), the permissible range would be up to 8%. That however is not the correct position. The range of deductions, other than under the head development, would depend on the facts and circumstances of each case. Such deductions may even exceed 8%, but that would be so only, where deductions for developmental activities (under the head development ) is less than 67% i.e. as long as the cumulative deductions do not cross the upper benchmark of 75%. We therefore hold that the range for deductions for issues other than developmental costs, would depend on the facts and circumstances of each case, they may be 8%, or even the double thereof, or even further more, as long as, cumulatively all deductions put together do not exceed the upper benchmark of 75%. taining the market value of the undeveloped acquired land, it would be necessary to classify the nature of the exemplar land, as also, the acquired land. This would constitute the second step in the process of determination of the correct quantum of deductions. The lands under reference may be totally undeveloped, partially developed, substantially developed or fully developed. In arriving at an appropriate classification of the nature of the lands which are to be compared, reference may be made to the developmental activities referred to by us in connection with the first component, as also, the second component (in paras 19 to 22 above). The presence (or absence) of one or more of the components of development, would lead to an appropriate classification of the exemplar land, and the acquired land. Comparison of the classifications thus arrived, would depict the difference in terms of development, between the exemplar land and the acquired land. This exercise would lead to the final step. In the final step, the absence and presence of developmental components, based on such comparison, would constitute the basis for arriving at an appropriate percentage of deduction, necessary to balance the differential factors between the exemplar land and the acquired land. 27. Before applying deductions for ascer-

22 May 2013 Karnataka Judicial Academy PAGE 22 Important judgments of the High Court of Karnataka IN THE HIGH COURT OF KARNATAKA AT BANGALORE (Division Bench), ILR 2005 KAR 43 = (2005) 3 Kar LJ 359 = (2004) 4 KCCR 2925 = (2005) CriLJ 703 Judges: S.R. Bannurmath & A.C.Kabbin, Petitioner: State of Karnataka Respondent: Smt. Akkamahadevi Date of Judgment: While dealing with Appreciation of evidence in criminal trial & defects in investigation, the Division Bench of the Hon ble High Court of Karnataka has observed that the evidence that emerges during the trial shall be examined dispassionately without being swayed by surmises and assumptions: 09..In the latest decision of the Supreme Court on the question of admissibility of dying declaration in the absence of certification by the doctor as to the evidence of the mind of the declarant, in Laxman V. State Of Maharashtra AIR 2002 SCW 3479 the Supreme Court observes as follows; "Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look upto the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not ac- ceptable... What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. AIR 1999 SCW 3440, Overruled. Koli Chunilal v. State AIR 1999 SCW 3727; Approved. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit statement of mind whereafter he recorded the dying declaration." 10. In the light of the above mentioned principles, the observation of the learned Sessions Judge that the statements were not in question and answer form; that the P.S.I. has not made any effort to get her statement recorded either by the Executive Magistrate or by the doctor; that the doctor had not certified about the mental condition of the patient are not sufficient to discard Ex.P.11.

23 May 2013 Karnataka Judicial Academy PAGE 23 Important judgments of the High Court of Karnataka 21. While appreciating the evidence in a criminal trial, what has to be looked into are the allegations of the prosecution and the evidence that has been placed with regard to such allegations. The evidence that emerges during the trial shall be examined dispassionately without being swayed by surmises and assumptions. Human response differs from person to person. In cases of crimes, the behaviour of the culprit may not follow a beaten track and it may exhibit an abnormality. Unless there are facts and circumstances appearing in evidence to create doubt about the veracity of the prosecution witness or a particular behaviour or an act of the witness, it is not proper for the Court to discard the testimony of the prosecution witness, only be- cause in a given circumstance, the witness could have acted differently. The Court shall consider as to what has been disclosed and whether such matter as disclosed is trustworthy and reliable; and not what ought to have been done by a particular person or what could have happened. It may be borne in mind that lapses and omissions on the part of the Investigating Officer in properly investigating the matter may result in certain facts not being brought out in evidence, but such lapses and omissions on the part of the Investigating Officer themselves, do not nullify the facts disclosed during evidence.

24 May 2013 Karnataka Judicial Academy PAGE 24 Article (Continued from last news letter) DEFINITION OF PROVED IN SECTION 3 OF INDIAN EVIDENCE ACT, 1872 (FOR SHORT THE ACT 17. In Rama Pratap and others Vs- State of Haryana, AIR 1983 SC 680 (Para 11), the Supreme Court dealt with a case in which the prosecution alleged that R and S held the victim and M gave him stab injuries which caused his death. Though the trial court acquitted all the three accused of the charge, the High court convicted them under section 302 I.P.C. read with section 34 I.P.C. In an appeal by the three accused, the Supreme Court held as follows on the question of common intention :- The evidence is not very clear whether Rama Pratap and Satpal continued to hold the deceased even after Manmohan singh started stabbing him. (After referring to the words uttered by each of the three accused which indicated merely a desire to teach the victim a lesson). In the circumstances, we are unable to hold that the only inference possible is that Rama Pratap and Satpal shared the common intention with Manmohan to kill the deceased. No doubt they held the deceased and this facilitated the stabbing by Manmohan. But there is nothing whatever to indicate that they knew that Manmohan would cause fatal injuries. It is one of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But the benefit of any such doubt must go to the accused. In the circumstances, we conclude but not without hesitation, that the common intention of the accused has not been established beyond reasonable doubt, to be to cause the death of deceased. But it certainly was to cause grievous injuries to the deceased. The Supreme Court altered the conviction of R and S into one under section 326 I.P.C. read with section 34 I.P.C., while maintaining the conviction of M under section 302 I.P.C. I may comment that the court did not consider the aspect whether R and S were aware, immediately preceding and at the time of the commencement of the incident, that M had a knife with him and wonder whether the finding on this aspect would have persuaded the Supreme Court to a arrive at a different conclusion. This decision made no reference to the earlier constitution bench decision in M.G. Agarwal s case.

25 May 2013 Karnataka Judicial Academy PAGE 25 Article 16. In Vijayee Singh and others -Vs- State of U.P., AIR 1990 SC 1459, a threejudge bench of the supreme court observed as follows:- Para 28:-.. Section 3 while explaining the meaning of the words Proved, disproved and not proved lays down the standard of proof, namely about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, believe it to exist and secondly, in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainly to be arrived at where the circumstances before a fact can be said to be proved. This decision made no reference to the earlier Constitution Bench decision in M.G. Agarwal s case. 19. The idea expressed in Para 28 of the above decision that a fact is believed to exist when a person feels absolutely certain of the existence of the fact can lead to confusion. Absolute certainty is a standard not known to law of evidence. Absolute certainty presupposes perfect evidence. How can any court or law-person expect perfect evidence to be adduced in this imperfect world? Particularly in the case of direct testimony of eye witnesses, one always expects find some error, exaggeration, weakness or deficiency on account of substantial interval of time between the date of commission of offence and date on which the evidence of eye witness is recorded by court, which may lead to lapse of memory. Such perfect evidence is sometimes seen by courts as indicative of strenuous tutoring of the witness. Perfect evidence and absolute certainty are words relatable to mathematics or even science, and not to the realm of evidence and proof. In Inder Singh -Vs- Delhi administration, (AIR 1978 SC 1091) the Supreme Court observed as follows:- While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect evidence

26 May 2013 Karnataka Judicial Academy PAGE 26 Article Recall also the observations in C.H. Rajik Ram s case quoted in para 14 above. 20. Further, in Vijaya Singhs case (AIR 1990 SC 1459), the court did not advert to the meaning and content of the words belief or believes. Blacks Law Dictionary (A bridged sixth edition) at page 106, explains the meaning of the word belief this:- A conviction of truth of a proposition, existing subjectively in the mind and induced by argument, persuasion or proof addressed to the judgment. A conclusion arrived at from external sources after weighing probability. Conviction arising not from actual perception, but by way of inference or evidence received from other persons belief is an assurance gained by evidence, and from other persons. Suspicion is weaker than belief since suspicion requires no real foundation for its existence, while belief is necessarily based on atleast assumed facts. Advanced Law Lexicon (3 rd Edition) by P. Ramanatha Aiyar at pages 498 and 499 of volume I explains belief thus:- A persuasion of the truth of alleged fact formed in the way of inference from some other fact Belief admits of all degrees from the slightest suspicion to the fullest assurance a state of mind that regards the existence of something as likely or relatively certain To put credit or confidence in the veracity of testimony, to have belief, to satisfy, to suppose, to think The Compact Oxford English Dictionary explains the meaning of believe thus:- To accept that (something) is or (some one) is telling the truth, have faith in the truth or existence of, have religious faith or to think or suppose. Look at the range of meanings attached to the words belief or believe. The range is very wide. Therefore, it is difficult to say these words convey the idea only of the highest degree of persuasion. 21. Vijaya Singhs Case juxtaposed belief with absolute certainty ; this was done without specific advertence to the possible meaning and content of the expression belief. Belief is not different in quality from believes. One who has belief, believes; one who believes has belief. Belief does not indicate only a single degree proof,

27 May 2013 Karnataka Judicial Academy PAGE 27 Article that too at the highest level. When one uses words absolute certainty, one has in mind highest degree or level of conviction. Actually belief or belives, as we see from P.R. Aiyar, indicates a range or degrees or levels ranging from suspicion to fullest assurance. Black indicates that belief is state of mind reached after weighing probability and satisfied by assurance. P.R. Aiyar also explains Belief is a state of mind that regards the existence of something as likely or relatively (not absolutely) certain. Likelihood and relative certainty are conclusions which can be arrived at after weighing probability ; that is precisely what the second part of the definition of proved (that is, existence of a fact is it so probable that a prudent, ought, under the circumstances of the case ought to act upon the supposition that it exists) indicates. Both belief and preponderance of probability are based on probability arrived at on consideration of evidence and other matters before the Court. The two different parts of the definition have logical basis only if they involve different standards or degrees of proof. If belief arises only in case of absolute certainty, it is certainly a higher standard than preponderance of probability (second part). If, on the other hand, belief means only likely, it reflects a standard lower in degree or level than preponderance of probability. If belief connotes merely relative certainly it is nothing different from preponderance of probability. 22. In Inrewinship, 397 U.S. P.358, Justice Brennan, speaking for the majority of judges in the Supreme Court of USA observed (P.364) as follows: the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. The intensity of this belief the degree to which a fact finder is convinced that a given fact actually occurred can of course, vary. 23. I refer again to Garib Singh and others -Vs- State of Punjab, AIR 1973 SC 460, where Supreme Court observed as follows:- Section 3 of the Indian Evidence Act enables a court to employ only the standards of a prudent man in judging what is deemed to be proved according to law. The degree which proof must reach before a court trying a criminal case will convict is no doubt that which a prudent man will employ in reaching a conclusion beyond reasonable doubt whereas an accused need not prove his case to the same extent in

28 May 2013 Karnataka Judicial Academy PAGE 28 Article order to succeed. But the standards employed in judging each version are those of a reasonable and prudent man Does this decision mean that the Supreme Court was not aware that the definition was in two parts and the first part dealt with belief or believes? It is apparent that the Supreme Court found no practical difference between the burden of proof prescribed in the two parts and both parts inhered only high probability which a prudent man ought to accept. Segregation of the two parts may mean that legislature was not concerned that belief should be entertained on the basis of what a prudent ought to do, certainly an absurd idea! 24. In another case dependent entirely on circumstantial evidence, i.e., Rama Nand Vs. State of H.P., AIR 1981 SC 738, the Supreme Court held as follows: - (Para 16) It is well-settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probabili- ties, the offence was committed by the accused and none lese. 25. In Maharashtra Ed. Board Vs. K.S. Gandhi, (1991) 2 SCC 716, which dealt with proof of a corrupt practice which is treated akin to a criminal charge, the Supreme Court held as follows:- (Para 38) There must be evidence, direct or circumstantial, to deduce necessary inferences in proof of facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to be establish. In some cases, the other facts, can be inferred, as much as is practical, as if they had been actually observed. In other cases, the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral or documentary or circumstantial from which inferences can be made the method of inference fails and what is left if mere speculation or speculation. Quoting the above passage with approval, the Supreme Court in R.Puthinayanar Vs. P.H.Pandian and others, AIR 1996 SC 1599,

29 May 2013 Karnataka Judicial Academy PAGE 29 Article said (Para 7): - Therefore, we hold that to draw an inference that a fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such an inference should be drawn. The standard of proof required cannot be put in a straight jacket formula The probative force could be gauged from the facts and circumstances of the case. In this case the court also observed in para 9 as follows:- The burden of proof of the charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. 26. In M.Narsing Rao Vs. State of A.P., AIR 2001 SC 318, the Court had to consider whether an offence under the Prevention of Corruption Act, 1988 was brought home to the accused. The three judge bench speaking through K.T.Thomas.J. observed as follows in Para 15:- The word proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. (After reproducing the definition in section 3 of the Act) ----This is the definition given for the word proof in the Evidence Act. What is required is the production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends on the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. The court proceeded to quote the following observations of Fletcher Moulton. L.J. in Hawkins Vs. Powells Tillery Steam Coal Co. Ltd., 3(1911) 1 K.B Proof does not mean proof to rigid mathematical demonstration because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. The Supreme Court continued as follows:- (Para 16) The said observation has stood the test of time and can now be followed as the standard of proof. In

30 May 2013 Karnataka Judicial Academy PAGE 30 Article reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. This discretion is clearly envisaged in section 114 of the Evidence Act. 27. M. Narasing Rao s case, referred to in para 26 above recited the definition of proved occurring in section 3 of the Act (i.e. either believes it to exist or considers so probable a prudent man , but followed it by stating emphatically regarding the standard prescribed by the definition as follows (already quoted):- Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man It is obvious that the Bench did not think that the first part of the definition (believes it exist) prescribes a standard higher or lower or different from the standard prescribed in the second part, suggesting thereby that the two parts, worded differently, mean the same thing and convey the same idea. 28. The Act as also Code of Civil Procedure and Code of Criminal Procedure contains series of provisions to control the uninhabited discretion of judges in the matter of conduct of trial, receiving evidence, method of proof, burden of proof and various other matters. The object sought to be achieved is to enable a fair trial, protecting the rights of all parties to litigation. The basic objective is fairness, speedy trial, without cluttering court record with all kinds of evidence of little credibility or proof of facts which will really not assist the judges in coming to as correct a conclusion as humanly possible. Framers of the bill preceding the Act had the benefit of experience of the common law of England and did try to avoid some pitfalls. When a fact can be said to have been proved, would have been one of the matters which received their serious attention. 29. In State NCT of Delhi Vs. Navjot Sandu alias Afsan Guru, (Parliament attack case), (2005) 11 SCC 600, the Supreme Court had to, among other questions, consider the charge of conspiracy and charges under sections 120A, 120B, 121, 121A and 122 of IPC. During the course of the discussion on the aspect of conspiracy, the

31 May 2013 Karnataka Judicial Academy PAGE 31 Article doctrine of benefit of doubt. The doctrine of benefit of doubt and requirement of proof beyond reasonable doubt are two faces of the same coin. It must follow that doctrine of benefit of doubt has no role to play in the area of appreciation of evidence for the purpose of deciding whether prosecution has proved basic or primary facts or the various basic or primary circumstances whose cumulative effect requires to be taken into consideration. If in regard to any matter, proof beyond reasonable doubt is not required, in reference to proof of that matter, the doctrine of benefit of doubt cannot apply and vice versa. 30. I have referred in para 22 to the decision of the Supreme Court of U.S.A. in Inrewinship, 397 U.S The question which arose for consideration was whether the juvenile before the New York family court was a person who did any act which, if done by an adult, would constitute a crime? Section 744(b) of the New York Family Court Act provided that any determination at the conclusion of an adjudicatory hearing that the juvenile did commit such a act or acts must be based on a preponderance of the evidence (not preponderance of probability, which is quite a different matter). The Supreme Court held that even in the proceeding against a juvenile in respect of an offence allegedly comcourt made the following observations:- One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. If the last sentence is taken to mean that each of the primary or basic facts whose cumulative effect could lead to a conclusion that the charge of conspiracy (which includes the object and other relevant aspects) are required to be proved beyond reasonable doubt in the sense of charge against the accused or guilt of the accused being required to be proved beyond reasonable doubt, that would go against the decision of the Constitution Bench in M.G.Agarwal AIR 1963 SC 200. The above observation was made without noticing the conclusion of the Constitution Bench in para 18 of that judgment, which was as follows:- In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of proof of basic or primary facts, there is no scope for the application of the

32 May 2013 Karnataka Judicial Academy PAGE 32 Article In a similar vein, the court said in Brinegar Vs. U.S., supra, 338 U.S. at 174. that guilt in a criminal case must be proved beyond reasonable doubt (c) In Davis Vs. U.S., 160 U.S. at 488, the court considered the question of degree of burden of proof regarding sanity of the accused. The court said: - On the contrary, he (accused) is entitled to an acquittal of the specific crime charged, if upon all evidence, there is reasonable doubt whether he was capable in law of committing crime No man should be deprived of his life under the norms of law unless the jurors who try him are able, upon their conscience, to say that the evidence before them is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime. (d) Page 361: - (Quoted from Speiser Vs. Randall, 357 U.S. at 525, 526) Where one party has at stake an interest of transcending value as a criminal defendant his liberty this margin of error (in factfinding) is reduced as to him by the factfinder at the conclusion of the trial of his guilt beyond reasonamitted, the standard of proof of essential elements of crime is one of proof beyond reasonable doubt and this standard must necessarily apply to proceeding before the family court in respect of an act, which, if committed by an adult, would be a criminal offence; this is so by virtue of the due process clause introduced by the XIV amendment to the Constitution and the different and lower standard prescribed by the New York statute would be unconstitutional as violative of the due process clause. There are observations to the following effect in the majority judgment:- (a) Page 359: - It is now accepted in common law jurisdiction as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt. Expressions in many opinions of this court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. (b) Page 360: - Mr. Justice Frankfurter stated that (it is) the duty of the government to establish guilt beyond a reasonable doubt. This notion basic in our law and rightly one of the boasts of a free society is a requirement and a safeguard of due process of law in the historic and procedural content of due process of law.-----

33 May 2013 Karnataka Judicial Academy PAGE 33 Article ble doubt. Due process commands that no man shall lose his liberty unless the government has borne the burden of convincing the fact finder of his guilt. To this end, the reasonable doubt standard is indispensable for it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue. (e) Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 31. Here are a few observations in the concurring judgment delivered by Mr. Justice Harlan: - (f) Page 364: - I begin by stating two propositions First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened. The intensity of this belief can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of the factual conclusions for a particular type of adjudication (g) Page 365:-Mr. Justice Harlan also observed (A preponderance of evidence standard) simply requires the trier of fact to believe that the existence of a fact is more probable than it s nonexistence before he may find in favour of the party who has the burden to persuade the (judge) of the fact s existence Where one party has at stake an interest of transcending value as a criminal defendant his liberty, this margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. (To be continued...)

34 May 2013 Karnataka Judicial Academy PAGE 34 Programmes of Karnataka Judicial Academy Continuing Education Programme for Senior Civil Judges from to , to and to

35 May 2013 Karnataka Judicial Academy PAGE 35 Programmes of Karnataka Judicial Academy Two Day s Workshop for Woman Judicial Of icers on Wellness & Work Life Balance from to in 6 batches Dr.C.R.Chandrashekar, Prof. of Psychiatry and HOD, NIMHANS, Bangalore, interacting with the participants. Dr.Bharath Chandra S.N. M.B.B.S, D.Ac. (Hong Kong) F.C.I.P., Success Coach and Chairman, Winners Insitute Pvt. Ltd., during interaction with the Woman Judicial Officers.

36 May 2013 Karnataka Judicial Academy PAGE 36 Programmes of Karnataka Judicial Academy Two Day s Workshop for Women Judicial Of icer on Wellness & Work Life Balance from to in 6 batches Prof. G.Sunanda Bai, Gynecologist and Professor, Bangalore Medical College, during interaction with the Woman Judicial Officers. Dr.Jagruthi Sarnath Sr. Counselor, during interaction with the Woman Judicial Officers.

37 KARNATAKA JUDICIAL ACADEMY GOVERNANCE Patron-in-Chief Hon ble Chief Justice D.H. Waghela High Court of Karnataka GOVERNANCE President Hon ble Mr.Justice N.Kumar Judge, High Court of Karnataka Board of Governors Hon ble Mr. Justice Ashok B. Hinchigeri Judge, High Court of Karnataka Hon ble Mr. Justice A.S. Bopanna Judge, High Court of Karnataka Hon ble Mrs. Justice B.V. Nagarathna Judge, High Court of Karnataka Hon ble Mr. Justice B.V. Pinto Judge, High Court of Karnataka