Errors of Judgment-Cost and Consequences

A historical judgment came to be delivered by Hon’ble Judge Mr. John Michael D’Cunha on 27th September 2014 which halted the continuance of the office of then Chief Minister of Tamil Nadu Selvi J.Jayalalitha in an abrupt manner.  The scenes of anguish, frustration and despair exhibited emotionally by ministers and supporters of J.Jayalalitha are still fresh in the memory of the general public and television images from compilation of the past were continuously being aired in various channels whenever any ancillary proceeding occurred either in the High Court or in the Supreme Court touching upon the conduct of the appeals filed by the convicted persons including Selvi J.Jayalalitha.

On 11.5.2015, scenes of celebration and jubilation were witnessed throughout Tamil Nadu and the rest of the country after the pronouncement of the judgment of acquittal even before 11.01a.m by His Lordship Mr.Justice C.R.Kumarasamy of the Hon’ble High Court of Karnataka sitting in court Hall No.14.  What was a big build up of emotions, breathlessness, anxiety and eagerness to know the outcome of the case by the entire political circles across the country was dealt with very casually by the Hon’ble High Court of Karnataka as any another verdict of a criminal appeal is dealt with.  Normally, the Appellate court only reads out or pronounces the operative portion of the judgment passed in the impugned appeal.  The reasons, explanations, observations, findings and directions are part of the detailed judgment already written by the judge prior to the pronouncement of the operative portion, which has now been published.  The Learned Judge signs the judgment in the open court after pronouncing the operative portion and the same procedure was followed in Selvi J.Jayalalitha case on 11th May 2015 by His Lordship Mr.Justice C.R.Kumarasamy.  There is absolutely no reason to whisper or murmur or be unsatisfied with the manner in which the judgment was pronounced by the Learned Single Judge who was entrusted with the responsibility of hearing the appeal and pronouncing the judgment.

In criminal appeals, normally the presence of the accused is not necessary to conduct the proceedings and even to deliver the verdict unlike the Trial court.  A conviction by a Trial court is being tested on material appreciation by a Judge of a higher judiciary considered of having more acumen and knowledge on the subject.  This process is called appeal.  Therefore an appeal is a proceeding which deals with the records of the Lower court and in fact, the Appellate court is not permitted to conduct  trial of any nature.  Therefore the limited role of the appellate judge is to relook and re-appreciate at the reasons and findings rendered by the Trial court to record a conviction in a criminal case and if found unsatisfactory and not substantiating the charges leveled against the accused, then the Appellate court in its wisdom sets aside the judgment and grants acquittal to the accused which has been done by the Hon’ble High Court of Karnataka.  There are cases when the High Court would observe that the trial proceedings were lacking due to non production of certain oral and documentary evidences which if produced could change the course of the judgment either way.  In such cases, the Appellate court pronounces a judgment setting aside the Trial court’s judgment of conviction and sentences, and orders the conduct of fresh trial by way of an order of remand.  In this case, however the Appellate court decided to acquit the accused cleanly of all charges on the ground that the prosecution failed to bring home the guilt of the accused as per the charges leveled against the accused before the Trial Court.  Law makers, in their wisdom, amended “The Prevention of Corruption Act” thereby bringing significant changes to the maximum punishment that can be awarded under the offences punishable under Section 13 of the Prevention of Corruption Act and also made simultaneous amendment in the Peoples’ Representation Act regarding disqualification of a Member of Parliament or Member of Legislative Assembly post conviction in such offenses and removed the protection which was earlier granted to them under the Act i.e. the disqualification would come into force upon the completion of appeal proceedings.  The first person to face the wrath of the amendment to the Peoples’ Representation Act was the Mighty Chief Minister of Tamil Nadu Selvi J.Jayalalitha.  The thought behind the law makers prior to the amendment was to ensure a double confirmation of the conviction before gross injustice is meted out to a person in power.  Therefore the earlier law makers felt it wise to await the appellate court’s decision before the irreparable damage and irrecoverable loss of reputation and the huge mental agony that an accused will suffer during the pendency of appeal particularly when the appeal became successful at the end of the proceedings. That is exactly what has happened to Selvi J.Jayalalitha who has been punished and incarcerated for an offence which ultimately the Hon’ble High Court felt was not proved by the Prosecution.  The punishment already undergone can be treated as the hazards of judicial system which is operating with the legal sanction of the laws of the land and hence it can be treated as destiny of the accused to face and overcome such hazards in a judicial system containing appellate hierarchy.  The damage done to the interior of the person i.e. to the intangibles of a personality such as fame, reputation, command over the cadres, power as the Chief Minister and various other adjectives attached to the Supreme Office of the Chief Minister of a particular State and the beatings suffered to the internal self of a person during the appeal period to final victory in the appeal are all going uncompensated before our country’s judicial system.  There is no answer for such agonizing circumstances affecting the rich, influential and powerful person vis-à-vis the unnoticed alleged convict facing appeal for offences such as theft or other offences under the Penal Code.  The reputation loss and the return back to the main stream society and the acceptance of the person post conviction and after undergoing a part of sentence even though he succeeds in a criminal appeal before the High Court is almost unimaginable and impossible for the poorer segment of people.  Is it not time for the judiciary and the law makers to think of staying the operation of the judgment while suspending the sentences at least in deserving cases where colossal damage to such high offices and personalities having huge impact on the society be considered as was being done by the higher judiciary in the past.  It has become unanimous with every criminal appeal in the last few years for the higher judiciary to stay or suspend the sentence of imprisonment alone, and not stay the judgment of conviction pending appeal.  When the appeal questions the correctness of the judgment and prima-facie the higher judiciary is satisfied that there is merit in the appeal to be entertained, which prima-facie opinion is the first step taken by the higher judiciary to suspend the sentence, then why is the higher judiciary hesitating to stay the operation of the judgment.  Enforcement of law coupled with right appropriation of powers by the higher judiciary who deal with the appeals and the huge damage that can be caused to the accused which will and can never be compensated in any manner should also be considered while entertaining a criminal appeal of this nature where  socio political angles, irreparable personal loss and the possibility of fake prosecution launched to wreck political vengeance is apparent.

In a court of appeal the role of a prosecutor is limited to supporting and highlighting the correctness of the impugned judgment in comparison with the relevant oral evidence, exhibits (documentary evidence) and material objects marked before the Trial court.  The role of defense counsel who normally become the appellants after a judgment of conviction, on the other hand is to highlight and project the incorrectness and infirmities in the judgment of conviction by projecting and highlighting the oral evidence which was not considered, the exhibits which were not appreciated and the material objects which were wrongly or incorrectly appreciated by the Trial Court.  These aspects are  canvassed in the grounds of appeal by the appellant’s counsel and therefore he has a pro-active role in the appellate proceedings and the Prosecutor has in fact a passive and not so pro-active role in the appellate proceedings.  The role of a judge on the other hand in the appellate court is far different from the role of the judge who conducted the trial proceedings. The weight of evidence, the correctness in the case of the prosecution and whether the prosecution was successful in establishing the guilt of the accused have to be micro analyzed  by the appellate judge. This can be done either with the guidance of the prosecutor or by the judge himself suo motto in accordance with the powers conferred under the Criminal Procedure Code. In the proceedings before the Karnataka High Court, the Appellate Judge, His Lordship C.R.Kumarasamy remarked more than once at the appellants counsel and also the Public Prosecutor Bhavani Singh as then he was, to assist the court to understand the material evidences in the right prospective so as to come to a judicious conclusion and went on record to even make a statement that the court will not hesitate to seek assistance of outside professionals such as auditors to understand the financial records placed before him in order to arrive at a correct judgment without waiting for either the appellant’s counsel or the prosecutor to take the appellate court through the evidences. It was under these circumstances, the original intervener Mr.K.Anbalagan of the DMK approached the Supreme Court for a verdict on the validity of appointment of the then Public Prosecutor Mr. Bhavani Singh. As the first set of judges in the Supreme Court differed with each other on the validity of the appointment of the Public Prosecutor Bhavani Singh in this case, it lead to the reference of this issue to a Larger Bench and the said Larger Bench permitted the  Government of Karnataka to appoint the earlier Public Prosecutor  Mr.B.V.Achariya after striking down the appointment of Bhavani Singh as Public Prosecutor for the conduct of the appeals in the High Court.  It was also pointed out that Mr. Bhavani Singh had no locus standi to continue as Public Prosecutor after the completion of trial, since the appointment was made by the State of Tamil Nadu only to the extent of conducting trial and not otherwise.  The directives and guidelines that came to be issued by the Hon’ble Apex Court while striking out the validity of appointment of Bhavani Singh’s as Public Prosecutor in High Court proceedings whereas as follows:--

Emphasis in Para 36 of K.Anbazhagan Vs.State of Karnataka and others order dated 27.04.2015

“The appellant has submitted his written note of submissions before the trial court and, therefore, we are inclined to permit him to file a written note of submissions within 90 pages before the Learned Single Judge/Appellate Judge.  The State of Karnataka, which is the prosecuting agency, is granted permission to file written note of submissions within 50 pages.  The written submissions be filed latest by 28.4.2015. The written note of submissions filed before the trial court and the High Court along with written note of submissions of State of Karnataka shall be considered by the Learned Single Judge and the consideration should be manifest in the judgment. Written note of submissions, if any, by the 4th respondent shall not be considered by the Learned Judge.”

The faith of the general public in the judiciary on the enormous delay of prosecution in the trial stage was seriously considered by the Supreme Court while suspending the sentence of all the appellants and granting interim bail.  Therefore the Supreme Court felt the need to have time bound hearing in the appeal as two direct questions in the substratum of the minds of the general public directly connected to the faith of the people’s judiciary was weighing with the Apex Court. Whether their political leader was being indirectly eliminated from political circles by the launch of a fake prosecution by the party in opposition now (who happened to be the then ruling party at the time of launching the prosecution) and whether the convicted person will continue to claim the pendency of an appeal to proclaim that the judgment of a Trial court is not final and that the appeal verdict is yet to come etc. for years together and take advantage of the pendency of an appeal. These two questions can be properly answered only if a time bound trial is conducted and completed and for this purpose alone the Supreme Court felt that there has to be a time bound hearing of this appeal in comparison with other lakhs of criminal appeals pending hearing on seniority basis to be listed by Registries of various High Courts.  Whether a common man suffered injustice due to such prioritization or whether the interest of the entire   people of the State should be considered in order to avoid a jeopardized political situation, are the two questions that should have weighed in the wise minds of the Learned Judges of the Apex Court. Considering the overall situation the Learned Judges took a serious call over the issue to prioritize Selvi J.Jayalalitha’s appeal for an expeditious hearing.

Even though the prosecuting agency of Selvi J.Jayalalitha and three others was the State of Tamil Nadu, the entire prosecution happened pursuant to the orders of Supreme Court in the State of Karnataka which in fact gave the Karnataka High Court the jurisdiction to deal with the appeals arising out of its sub-ordinate judiciary.  The complainant is the State of Tamil Nadu.  Even though the appeal was heard in the High Court of Karnataka, the grievance if any in the acquittal of Selvi J.Jayalalitha and three others can primarily be for the Prosecuting Agency State of Tamil Nadu and may be to the De facto Complainant Mr.Subramaniam Swamy who initiated the launch of the prosecution.   As an intervener the DMK’s General Secretary Mr.K.Anbalagan can also have a grievance on the judgment of acquittal which they may feel to be wrong in law.  Whether the State of Tamil Nadu well prefer an appeal in the Supreme Court is an open secret and no lengthy legal debates will be necessary to find an answer today.  Whether the de facto complainant would challenge the appellate court’s judgment dated 11.5.2015 is again a question which will have to await answers considering various political affiliations and personal will of the de-facto complainant.  Whether the intervener alone can file an appeal in the Supreme Court challenging the correctness of the appeal can be answered by reading few excerpts of the Supreme Court Judgment.  By applying the above principles, it is almost certain that at least the intervener will be challenging the correctness of the Appellate court’s judgment in the case of Selvi J.Jayalalitha.  The main grievance of the prosecution which is now being aired in the media appears to be not providing an opportunity for putting forth oral arguments to convince the Appellate court for confirming the Trial court‘s judgment in view of certain restrictive guidelines given by the Hon’ble Apex Court intended to complete the appellate proceedings within a time frame.  Any order or judgment of the Supreme Court becomes final only if no further proceeding to cure an error apparent on the face of the judgment is initiated by the parties concerned.  This proceeding is called Review proceedings and the petition that needs to be filed before the Supreme Court is known as ‘Curative Petition’.  If such a grievance was existing for the prosecution, it was well within the prosecution’s right to have sought a review of the judgment of the Hon’ble Apex court. The complications regarding appointment of Prosecutor strangely arose in this case after the entire arguments of the appellant’s counsels had taken place for almost 1½ months.  The grievance regarding the continuation of the earlier Public Prosecutor Mr. Bhavani Singh and the legal debate surrounding it was raised before the Supreme Court perhaps far too late and the value of judicial time was one major component that came to the mind of the larger Bench while such restrictive guidelines were issued for the completion of arguments by the prosecution and the intervener before the Appellate court.  All these issues now fade to the background, and the judgment of acquittal comes to hog the limelight and attention of all persons interested in a fair judicial system and  outcome of a sensitive, sensational and historical proceedings of corruption charges against a sitting Chief Minister.   Many things have been done and many things can never be undone in this process of appeal which took 7 months from the date of pronouncement of  judgment of conviction.

A judicial error should be corrected by the hierarchy of appellate procedures.  Was the error too glaring?  Who can compensate the wrongs committed to the accused while ultimately finding out that there was an error of judgment?  Can it be lightly said that “to err is human and to forgive is divine”? Should all the accused who come out victorious become divine by forgiving and forgetting the judicial errors which damaged and ruined their lives and careers beyond recovery, or the system should become more error free because a judge is supposed to be  an incarnation of God Almighty both under the British law and even under the ancient India’s legal system.  Logically speaking if the divine incarnation commits error in the judicial system and the alleged guilty are required to become divine and forgive the judicial errors, is it not a open paradox in the system?  Why the Law Makers should not take a relook to compensate or at least dignify and reinstate the honor of an accused after he wins his appeal on merits by imposing certain fines and cost on the prosecuting agency who for their own whims or for their master’s (political or otherwise) fancies chose to lead in order to terrorize and traumatize the accused until a clean chit is given to him at a heavy cost may be after one or two decades after exhausting the complicated procedures of the  judicial system of our country.  Error of Judgment and lack of furnishing acceptable evidence to bring home the guilt of the accused are two different things. If sufficient materials whose assessment could not be done at the initial stage of the criminal prosecution when perhaps the charges were framed as against the accused did  not warrant conviction, then who will take the responsibility for the huge damage caused to the accused after his acquittal? If  material evidence was insufficient as now held by Appellate court to warrant a conviction, it simply means that the materials placed before the Trial court by the Prosecuting Agency did not make out a case for conviction, then in that case why did the  accused undergo  such traumatizing, agonizing and damage causing exercise for almost 20 years (two decades)?  Who will find answers for these questions?  Whether the mighty Selvi Jayalalitha or an ordinary man accused of any other criminal offence under the law of the land?                                 

Immediately after the publication of the judgment passed by the Hon’ble High Court of Karnataka in all the Criminal Appeal Nos. 835/2014 to 838/2014 filed by Selvi J.Jayalalitha and 3 others, all the parties in opposition in Tamil Nadu irrespective of the differences, joined together and highlighted the glaring arithmetical errors committed in the judgment which if corrected, according to them, would make it impossible for any judge to record a judgment of acquittal and therefore wanted State of Karnataka to immediately pursue the appeal remedy before the Hon’ble Supreme Court.  It is relevant to extract Section 362 of the Code of Criminal Procedure:

“ Court not to alter judgment. __ Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error”.

Under the scheme of the Code of Criminal Procedure, the Judge who passes a judgment in a case in any of the criminal courts, becomes functus officio meaning ceases to have any judicial power or authority in the said case thereby prohibiting the Judge to review his own judgment and make changes to it even if he realizes that grave errors and mistakes had occurred in his judgment.  Unlike Civil Procedure Code, there is no provision of ‘Review’ under the Criminal Procedure Code which means that the remedy available to the aggrieved is only to challenge the said errors of judgment by way of an appropriate special leave petition and Appeal to the Supreme Court.  Non consideration of certain figures enlisting the relevant accounts in a disproportionate assets case could also result in arriving at an incorrect judgment and would definitely make it a strong ground in appeal for consideration by the Supreme Court as to why the judgment of the Hon’ble High Court of Karnataka dated 11.5.2015 should not be reversed and the findings of the lower court judge Hon’ble Mr.John Michael D.Cunha be upheld and the accused be convicted as per the original judgment or by even considering imposition of lesser or enhanced punishment by varying the sentence imposed by the Trial court.  Be that as it may, the Karnataka High Court’s judgment dated 11.5.2015 is the operating judgment as of now, and until it is modified by the Apex Court, the same is valid in law and the acquittal recorded by the Hon’ble High Court of Karnataka cannot be treated as an inferior judgment in any manner de-horse the wide public opinion that is mooted in the print and electronic media by people of various cross sections.

In this Article an endeavor has been made to view Errors in a Judgment from several angles.  The Hon’ble High Court of Karnataka in its appellate proceedings has found several errors in the assessment and calculation of disproportionate assets and income of the accused which are technical and interpretable and based on evidentiary value which was incorrectly appreciated by the Trial Court.  According to the High Court, the error that is being highlighted now is incapable of interpretation and is allegedly projected as an arithmetical error at page 852 of the Judgment.  While  errors of the Trial court led to the down fall of a mighty sitting Chief Minister leading to her disqualification of even being the Member of Legislative Assembly and changed the very political scenario of the State of Tamil Nadu, the error committed by the High Court of Karnataka in computing the enlisted items has paved way for the reinstatement of the Chief Minister back into power.  Either way the consequential swing of the Errors in Judgment is so grave so as to lead to a change of destiny of the very same person to be in power and out of power.  The remedial measures for correcting the errors in the High court Judgment will be by way of Supreme Court appeal.  The time that will be consumed by the Supreme Court to consider the grounds of appeal and pronounce it judgment either confirming the Karnataka High Court’s verdict or reversing it is yet to be seen.  Another aspect is also of interest and it has to be seen whether during the pendency of the appeal in the Supreme Court, the operation of the judgment of the Hon’ble High Court of Karnataka would be stayed and whether the arithmetical calculations apparently visible on the face of the record would remain uncorrected in view of the prohibition as contained in section 362 of the Code of Criminal Procedure.  The non availability of power of “Review” by the same court under the Code of Criminal Procedure is a sufficient ground to grant stay of operation of the judgment itself by the Hon’ble Apex Court. All these important questions of law will have to be considered by the Supreme Court’s intellectual, powerful, efficient and responsible Judges.  Whether the Karnataka High Court’s judgment dated 11.5.2015 would stand good on other findings and observations by the Learned Judge including the arithmetical error highlighted now by various authorities concerned and the outcome of the judgment will not vary even if the said arithmetical errors were duly corrected and whether any other discrepancy in calculation of any other account has also been omitted as now being highlighted by the ruling party in State of Tamil Nadu pertaining to certain subscription of the party which was alleged to be considered as income by the Karnataka High Court’s Judgment are all valid legal issues that has to be analyzed by the extremely Learned Judges of the Apex court before any decision is taken affecting the interest of any person or State.  Anyhow the Hon’ble Supreme Court will never lose its sight on the responsibility imposed on it by the Constitution of India to do complete justice under Article 142 of the Indian Constitution.  It is also possible for a summary hearing before the Hon’ble Supreme Court to consider the grave allegation of arithmetical error alone committed by the Hon’ble High Court of Karnataka and record a finding to that effect by giving a time frame if it so chooses, as an alternative to hear the entire appeal on merits on all the available grounds.

M.L.Joseph

Managing Partner

M/s.Chennai Law Associates