Karnataka Judicial Academy

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1 December 2012 Karnataka Judicial Academy C rescent Hou se, 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 PAGE 2 From the Desk of the President

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5 PAGE 5 Important amendments by the Parliament The Indian Evidence Act, 1872 [SECTION 3:-.. Evidence.- Evidence means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) *[all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. *Substituted by Act 21 of 2000 Section 92 and Schedule II 1(A), for all documents produced for the inspection of the Court (with effect from ). [the expressions Certifying Authority, ** [electronic signature], **[Electronic Signature Certificate], electronic form, electronic records, information, secure electronic record, secure digital signature and subscriber shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).] ** Substituted by Act 10 of 2009, sec. 52(a), for digital signature and Digital Signature Certificate respectively (with effect from ). ***[SECTION 45A:- Opinion of Examiner of Electronic Evidence. When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79-A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation. - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert;] ***Inserted by Act 10 of 2009, section 52(b) (with effect from ) SECTION. 47A. Opinion as to ****[electronic signature] when relevant- When the Court has to form an opinion as to the ****[electronic signature] of any person, the opinion of the Certifying Authority which has issued the *****[Electronic Signature Certificate] is a relevant fact. **** Substituted by Act 10 of 2009, section 52(c)(i), for digital signature (with effect from ). ***** Substituted By Act 10 of 2009, section 52(c)(ii), for Digital Signature Certificate (with effect from ). SECTION 67A. Proof as to ******[electronic signature].- Except in the case of a secure ******[electronic signature], if the ******[electronic signature] of any subscriber is alleged to have been affixed to an electronic record the fact that such ******[electronic signature] is the ******[electronic signature] of the subscriber must be proved. ****** Substituted by Act 10 of 2009, sec.52(d), for digital signature (with effect from ). SECTION 85A. Presumption as to electronic agreements.- The Court shall presume that every electronic record purporting to be an agreement containing the *******[electronic signature] of the parties was so concluded by affixing the *******[electronic signature] of the parties. ******* Substituted by Act 10 of 2009, section 52(e), for digital signature (with effect from ). SECTION 85 B. Presumption as to electronic record and ********[electronic signatures].- In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. In any proceedings, involving secure ********[electronic signature], the Court shall presume unless the contrary is proved that the secure ******** [electronic signature] is affixed by subscriber with the intention of signing or approving the electronic record; except in the case of a secure electronic record or a secure ********[electronic signature], nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any ********[electronic signature].] ******** Substituted by Act 10 of 2009, section 52(f), for digital signature (with effect from ). SECTION 85 C. Presumption as to ********* [Electronic Signature Certificates].-The Court shall presume, unless contrary is proved, that the information listed in a *********[Electronic Signature Certificate] is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber. ********* Substituted by Act 10 of 2009, section 52(g), for Digital Signature Certificates (with effect from ). SECTION 90 A. Presumption as to electronic records five years old.-... the court may presume that the **********[electronic signature] which purports to be the **********[electronic signature] of any particular person was so affixed by him or any person authorised by him in this behalf. **********Substituted by Act 10 of 2009, section 52(h), for digital signature (with effect from ).

6 PAGE 6 Important amendments by the Karnataka State Legislature The Registration Act Section2: (2) book includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book *[and the information, storage devices like floppy disk, hard disk or compact disk, etc., microfilm or any other device]; *Inserted by Karnataka Act No. 32 of 2001, Section 4 (with effect from ). **[PART XI-A REGISTRATION OF DOCU- MENTS BY MEANS OF ELECTRONIC OR OTH- ER DEVICES 70-A. Application of this part.- This part shall apply only to the areas in respect of which a notification is issued by the State Government under Section 70-C. 70-B. Definition.- In this part, Process of Registration of documents by means of electronic or other devices shall mean and include scanning and preservation of documents with the help of computers, scanners, compact disks, printers, micro-filming and any other device used for the purpose of storage and retrieval when required. 70-C. Process of registration of documents by means of electronic or other device in the areas notified by the State Government.- (1) The state Government may by notification direct that to any District or Sub-District specified in this behalf process of registration by means of electronic or other device shall be applicable and the documents admitted for Registration under this Act may be scanned or Micro-filmed and their images stored and preserved with the help of electronic or any other device. (2) On the issue of such notification, it shall be pasted in a conspicuous place at each registration ***[office] affected by the notification.. 70-E. Evidentiary value of copy of certain documents registered through the process of registration by means of electronic or other devices or by other methods.-notwithstanding anything contained in this Act or any other law for the time being in force, a copy of any document registered through the process of registration by means of electronic or other devices or by any other method and certified or attested by the Registering Officer in charge of the office shall also be received in evidence of any transaction as is described in the said document. 70-F. Saving.-Nothing in this part shall apply,- (1) to any document which in the opinion of the Registering Officer is not in a condition fit to be processed by means of electronic or other devices; (2) in the case of unforeseen eventuality like break-down of the electronic or other devices of registration: Provided that the Registering Officer shall record in writing the reasons therefor. Provided further that the Registering Officer shall ensure that the data and images of the documents registered during the period of nonapplication of this part due to a break-down of electronic or other device are duly incorporated into the system, after the same is restored in the manner specified in the rules by the Inspector General of Registration. 70-G. Powers of the State Government under this Chapter.-Where for any reason, the State Government is satisfied that, the process of Registration by means of electronic or other device is not possible in respect of all documents in any office to which this chapter applies, may direct by notification published in the Official Gazette to copy such documents in the books kept in the office and in accordance with the rules made for this purpose.] **Part XI-A and Section 70-A, 70-B, 70-C, 70-D, 70-E, 70-F and 70-G substituted for Part XI-A and Sections 70-A, 70-B, 70-C, 70-D, 70-E, 70-F and 70-G by Karnataka Act No. 32 of 2001, Section 4 (with effect from ). ***Substituted for the words offices by Karnataka Act No. 22 of 2002, Section 2 and shall be deemed to have come into force with effect from

7 PAGE 7 Important Important amendments judgments by of the the Karnataka Supreme State Court Legislature of India (A.Shanmugam v Ariya Kshatria Rajakula Vamshasthu Madalaya Nandhavana Paripalanai Sangam) Dalveer Bhandari and Dipak Mishra, JJ SCC (6) 430 While considering the scope of grant or refusal of temporary injuncion and the duty of the court to find out the truth, the Apex court has laid down the following principles:- A. In Maria Margarida Sequeria Fernandes, this Court examined the importance of grant or refusal of an injunction in paras 83 to 86 which read as under: 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. 84. In order to grant or refuse injunction, the judicial officer or the Judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give a short notice on the injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an exparte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. 85. The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties. 86. Ordinarily, three main principles govern the grant or refusal of injunction. a) prima facie case; b) balance of convenience; and c) irreparable injury, which guide the gard. Court in this re- In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play a vital role. (Para 33) B..1. It is the bounden duty of the Court to uphold the truth and do justice. 2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. 6. The watchman, caretaker or a servant employed to look after the property can never acquire interest in the property irrespective of his long possession. The watchman, caretaker or a servant is under an obligation to hand over the possession forthwith on demand. According to the principles of justice, equity and good conscience, the Courts are not justified in protecting the possession of a watchman, caretaker or servant who was only allowed to live into the premises to look after the same. 7. The watchman, caretaker or agent holds the property of the principal only on behalf the principal. He acquires no right or interest whatsoever in such property irrespective of his long stay or possession. 8. The protection of the Court can be granted or extended to the person who has a valid subsisting rent agreement, lease agreement or licence agreement in his favour. (Para 43)

8 Page 6 Important judgments of the Supreme High Court Court of Karnataka of India Mohan Shantanagoudar, V.Jagannathan, Ravi Malimath JJJ ILR(KAR) :2011-LAWS(KAR) (STATE OF KARNATAKA, BY CIRCLE IN- SPECTOR OF POLICE vs. HOSAKERI NINGAPPA) Head notes The full bench of Karnataka High Court has laid down the following principles regarding case and counter case:- A....The procedural laws are designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along with certain well established and well-understood principles that accord with our notions of natural justice. If there be substantial compliance with the requirements of law providing the accused a full and fair trial in accordance with principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. The procedural laws are designed to sub serve the ends of justice and not to frustrate them. The test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule or procedure. In judging the question of prejudice, Courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial; whether he knew that he was being tried for; whether the main facts sought to be established against him were explained to him fairly and clearly; and whether he was given a full and fair chance to defend himself. (Para-13) B. To sum up, the procedure to be adopted in case and counter case is that the investigation should be conducted by the same Investigating Officer and the prosecution should be conducted by two different Public Prosecutors. The trial should be conducted by the same Court. After recording the evidence and after hearing the arguments, the judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments should be heard in the other case. It is needless to observe that the arguments in both the matters shall be heard by the same Learned Judge. The judgments should be pronounced by the same Judge simultaneously i.e., one after the other. In deciding each case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into. The Judge shall not be influenced by the evidence or arguments in the cross case. However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case. (Para-16) C. In view of the foregoing reasons, we answer the points referred to us as under: (a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs. State of U.P. (Supra) and in the case of Sudhir and others vs. State of M.P (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise the proceedings are protected under Section 465 of the Code. (b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case. (c) If the Trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated....(para-18)

9 Article PAGE 9 Citizenship-Rights and Duties Excerpts from CITIZENSHIP- RIGHTS AND DUTIES by JUSTICE E.S.VENKATARAMIAH, JUDGE, SUPREME COURT OF INDIA, (Justice R.K.Tankha Memorial Lecture, 1988 delivered under the auspices of the Central India Law Institute, Jabalpur) THE CONCEPT OF CITIZENSHIP In essence, citizenship is a bond. Man, when he comes into this world, is born with a physical bond. This is towards his parents. Though biological in origin, it has a deeply rich emotional content. As he grows, he comes to form a number of other bonds. Some of these are extra-legal and purely emotional, such as the bond of friendship. A few of them have both legal and emotional aspects, such as the bond of marriage. A few of them, again, have only legal aspects, such as the bond arising out of contract. But the one bond that arises on birth and flowing from the law, may govern the life of an individual throughout his or her existence is the bond of citizenship. This aspect does not become prominent in our static life - a proposition which might be true of many other legal links. It is only when a problem of some difficulty arises or a controversy of some magnitude emerges, that the strength or weakness of the bond and the manner in which it is binding, becomes crucial. The concept of citizenship has fundamental links with the development of political thought throughout the centuries. The present day word citizen itself is derived from the French root word citoyen. As at present understood, it has two meanings. According to the first meaning, it is linked with a particular city, for example, as when one speaks of citizen of Paris. In the second meaning, it carries connection with the State or the nation and indicates a certain type of relationship with a particular nation. It is for this reason that the word nationality is often used in other countries to denote the political and legal link that exists between a particular State and those who owe permanent allegiance to it. However, the one disadvantage of the expression nationality is that it has a negative and disjunctive quality about itself. It indicates a sociological affinity. It emphasizes the demarcating barrier between one nation and another and makes subordinate the philosophical link between a State and its own nationals. The modern nation States owe their origin to the idea of nationality like, the French, the Germans or the Dutch. The idea that a person who is not a member of a nation can also be a citizen is overlooked. In contrast, the word citizen makes it possible to hint at the fact that within a geographical territory organized as a political entity, there could be a number of persons between whom and the political organisation there is affinity. Citizenship in this case may be acquired by birth or by naturalization. The present day United States of America is an ideal illustration to explain this concept. People who originally belonged to different nationalities have now become citizens of the United States of America. Citizenship in this case is an affinity that makes them care for the political organisation and also makes that organisation care for them. It is thus a cementing tie, positive in its content and constructive in its approach. The fact that citizens may, if necessary, take up arms for the State to which they belong and may be called upon to do so is incidental to this relationship. What is of primary value is that in their daily life and conduct, they owe obligations to the State. It is to the Greeks that we owe the basic concept of citizenship. The Greek States did not have large territories. Mostly, they were small city States, ruled by monarchy or, at times, by some other form of Government. But the fact was that persons permanently residing within the geographical territories or units owed an obligation to the State and enjoyed certain rights and they brought into the forefront the intimate relationship between the State and these residents. Thus was born the concept of citizen. The fact that the States were also cities might have something to do with the origin of the word. But once the concept was evolved, it lost the purely local colour and came to occupy an important place in the history of philosophical thought. Athens was a model city State. The period between 460 B.C. and 430 B.C. during which Pericles ruled was perhaps its best period. Those years have been ideally called as the classical Greek period during which period the Greek culture blossomed. It gave a stimulus to the entire European world in all departments of life and art literature, philosophy, art, sculpture, drama, science and medicine. This was followed by the era of Aristotle and Alexander.

10 PAGE 10 W.H.Auden writes: There could be no stronger proof of the riches and depth of Greek culture than its powers of appeal to every kind of personality. It has been said that every one is born either a Platonist or an Aristotelian; but it means to me that there are more contrasted and significant divisions than this, between for instances, the lovers of Ionia and lovers of Sparta, between those who are devoted to both Plato and Aristotle and those who prefer Hippocrates and Thucydides to either. Proceeding further Auden said: Had Greek civilization never existed, we might fear God and deal justly with our neighbours, we might practice arts and even have learned how to devise fairly simple machines, but we would have never become fully conscious, which is to say that we would never have become, for better or worse, fully human. This is the tribute paid by a modern European to the ancient Greek civilization which was dependent on the practice of good citizenship and observance of equality in political life. This Greeks themselves were great thinkers. Unlike the modern intellectuals, they did not divide life into segments. Nor did they divide knowledge into compartments. They regarded life as one integral whole, to be lived to the full. It was a rich life, not devoid of pleasures of the senses, but, at the same time, not wanting in the refinements of civilisation. The body, the mind and the soul went together. The family, the society and the State supplemented each other. With this approach towards life, it was inevitable that knowledge was also regarded as integral. It was to be an instrument for living the full life, enriched with subtle thinking and occasional philosophical excursions. It was in this climate that Greek drama, history, poetry, rhetoric and other intellectual achievements were born and took shape. This naturally made it possible for the Greeks to accept the thinking of philosophers who offered deep insights into reality and a co-ordinated approach. The famous trilogy of Greek philosophers-socrates, Plato and Aristotle-wonderfully enriched Greek thinking. Each of them viewed life as a whole and took all knowledge as his province. Socrates stood for free thinking. Plato s thinking which probably will survive for a few more centuries, has a stamp of originality and depth, of which the finer nuances have not yet been grasped, even though a hundred generations have passed. Aristotle, the last of these three great philosophers, tried to systematize, collect and co-ordinate knowledge. He had the advantage of the abstract doctrines of Plato and could make concrete many of the abstractions. Covering almost all branches of knowledge, Aristotle did not leave out politics and ethics. In Book III of Politics Aristotle tries to give some idea of the organisation of the State. A portion of the discussion is devoted to the citizen. Here, he mentions the essential attributes of a citizen as one who takes part in the process of judgment and in the deliberations of the Assembly. Because of the peculiar nature of the city States in Greece, Aristotle s emphasis on these two functions is understandable. Even though the citizen in the modern State has no direct role to play in law-making or in the making of political decisions by representative assemblies, Aristotle s formulation about the citizen has not lost its significance. It serves to highlight the basic postulate of a democratic State, namely, that every citizen has some part to play in the governance of the country. Similarly, Aristotle s mention of the role of the citizen in the administration of justice, though it may now appear to be only of historical value, serves the important function of reminding us that the administration of justice is an essential function of the State. It also reminds us that even if a court of law may be primarily concerned with disputes between the individuals who are parties to the dispute, every citizen is interested in the process of justice. Academic though it may appear, this aspect has been known to assume considerable practical importance from time to time, in modern legal doctrines and decisions. Not unoften, legal controversies arise as to how far the principle of open trial can be properly departed from. Legal controversies inevitably arise as to the considerations on which exceptions, if any, could be made to the principle that the proceedings of a court shall be open to the public (including the press) and the reporting of judicial proceedings is to be regarded as a matter, not only of legal right, but also of relevance as a means of education and information for the citizens. * * * * * *

11 PAGE 11 Programmes of Karnataka Judicial Academy For Civil Judges Batch, VI and VII three days Refresher Course was conducted from to and to Judicial Of icers participated in each Refresher Course. IX, X and XI 3 days Refresher Courses for Senior Civil Judges was conducted from to , to and to Judicial Of icers participated in each Refresher Course.

12 PAGE 12 Other News 2 days workshop for Judicial Of icers on Persepctives of Marginalized Women and Law on and at Karnataka Judicial Academy. Two-days workshop for Judicial Officers on ``Perspectives of Marginalized Women & Law: was conducted at the Karnataka Judicial Academy on and The workshop was organized by Karnataka Health Promotion Trust under a Project called Samvedana, in partnership with the National Law School of India University and Karnataka Judicial Academy. More than 165 judicial officers attended the inaugural event. Hon ble Justice Nadoja Dr. V.S. Malimath, Chairman of Karnataka State Law Commission, while inaugurating the programme said that ``no woman enters prostitution by choice and most of them are either forced, tricked or trafficked into the profession and are rendered helpless victims. ``This kind of a workshop is very important to sensitise the judges as their role is not just interpretation or implementation of law, but to provide dignity while delivering justice to the marginalized women, said Justice Malimath, former chairman of National Human Rights Commission. ``After watching the brutal assaults on their rights and life in an incident in Goa, I have interacted with them and realized how they live on the fringes without access to any entitlements. On that occasion as chairman of NHRC, I have stopped their houses from being demolised, he added. Justice N Kumar, President of Karnataka Judicial Academy & Hon ble Judge, High Court of Karnataka, said that the workshop would provide clarity and better understanding of the role judges can play in providing protection to sex workers who face violence. ``The main goal is to give the judges a first-hand view of the plight of sex workers so that they can be sensitive in providing dignity to marginalized women while delivering justice to the victims he said. Dr Sarasu Esther Thomas, Co-ordinator, Centre for Woman and Law, National Law School of India University said that ``Sex workers do not get access to simple social entitlements like ration cards or voter identity cards and are usually seen as illegal citizens. The Indian constitution is more for the poor and marginalized sections and it is our duty as members of society to provide dignity and respect to these victims. Earlier, Dr Srinath Maddur, Project Director, Karnataka Health Promotion Trust, who introduced the project said: ``Any kind of violence is a human rights violation and a public health issue especially in the context of HIV. Mr Ashokanand, IAS Director (Advocacy), welcomed the guests and judges.

13 PAGE 13 Other News 2 days workshop for Judicial Of icers on Persepctives of Marginalized Women and Law on and at Karnataka Judicial Academy.

14 GOVERNANCE Hon ble Mr. Justice Vikramjit Sen Patron-in-Chief Hon ble Chief Justice, High Court of Karnataka Hon ble Mr. Justice N. Kumar President Hon ble Mr. Justice Ashok B. Hinchigeri Hon ble Mr. Justice A.S. Bopanna Hon ble Mrs. Justice B.V. Nagarathna Hon ble Mr. Justice B.V. Pinto Board of Governors