Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e, the CBI or an investigating agency different from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C, rules a Division Bench of the High Court of Kerala

A Division Bench of the High Court of Kerala comprising Acting Chief Justice Ashok Bhushan and Justice A.M. Shaffique setting aside the judgment of a learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation files, has held that a Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. 

The writ petitioner had two sons, namely, Vino George, and Vipin George. On 30.8.2009 at 1.30 a.m, while they were riding on a motor cycle, they met with an accident on the road in front of Pala Bishop House on the Pala-Ettumanoor road and both of them succumbed to the fatal injuries while undergoing treatment in the General Hospital, Pala. The First Information Report was lodged by one Sri.Thomas, a relative of the writ petitioner. Investigation was conducted by the local police. The case thereafter was handed over to the Crime Branch Police, which took over the investigation on 24.9.2009. After questioning 42 witnesses and recording their statements and getting the statement of the occurrence witnesses under Section 164 of Code of Criminal Procedure (Cr.P.C), the Crime Branch Police submitted factual report before the Judicial First Class Magistrate Court, Pala on 29.4.2010 to the effect that death of the two youngsters was accidental. The petitioner had suspicion that while his sons were riding the motor cycle, the police jeep hit them from back, due to which they died. The petitioner sent a complaint dated 8.9.2009 to the Home Minister of Kerala, which was produced as Exhibit P8 to the Writ Petition. In the said complaint the petitioner made a request that necessary investigation may be ordered against the accused to render justice. He also made allegations against the son of his elder brother, who had altercation with his sons on previous day and who conspired with Police. Under these factual circumstances, the Writ Petition was filed seeking a direction from the High Court to get the case further investigated by the Central Bureau of Investigation

The learned Single Judge disposed of the writ petition holding as follows: 

"In the light of Sakkiri Vasu v. State of Uttar Pradesh 2008 (1) KLT (724) SC and Thomas V.C v. Achama Thomas and another 2009 2 KHC 693, the forum to be approached by the petitioner for further investigation is the Magistrate concerned, who is the J.F.C.M Court, Pala. The petitioner may move the said Magistrate for appropriate directions. In case the Magistrate after perusing the investigation files comes to the conclusion that this is a case for further investigation, the Magistrate will be entitled to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C as directed in Kashmeridevi v. Delhi Administration (1988) SCC Criminal 864." 

It was assailing the said judgment of the learned Single Judge that the Central Bureau of Investigation filed the writ appeal to the Division Bench. Standing Counsel for the Central Bureau of Investigation, the appellant contended before the Division Bench that no Magistrate, in exercise of power under Section 173 (8) Cr.P.C, can direct investigation by Central Bureau of Investigation,  when   the    investigation    is   being conducted by Police/Crime Branch of the State, and further that, the decision in Kashmeridevi v. Delhi Administration (supra) relied upon by the learned Single Judge was not applicable to the facts of the case. 

The State Government filed a counter affidavit stating that no Court subordinate to the High Court can be empowered to issue any direction to the Central Bureau of Investigation to investigate a case. 

The Division Bench held that Section 173 clearly delineates that further investigation, which is contemplated in the sub- Section is by the "officer in charge of the police station", i.e., the officer, who has undertaken the investigation and submitted a report under sub-Section (2) of Section 173 Cr.P.C. Section 173, thus, contemplates further report/reports by the officer in charge of the Police Station, who is entrusted with the investigation. Thus, Section 173(8) Cr.P.C contemplates further investigation by the same Police Officer, who has conducted the investigation and submitted a report under Section 173(2) Cr.P.C. Section 173(8) Cr.P.C cannot be read in a manner as to empower the Magistrate to direct any central agency to conduct a further investigation, said the Division Bench. 

Relying on the decision of the Apex Court in Central Bureau of Investigation, Jaipur v. State of Rajasthan (AIR 2001 SC 668) the Bench  held that a Magistrate, in exercise of power under Section 173(8) Cr.P.C, cannot direct investigation to be conducted by a central agency, i.e., Central Bureau of Investigation and that the power under Section 173(8) Cr.P.C can be utilised for further investigation by the same investigating authority, who has submitted report under Section 173(2) Cr.P.C. The Division Bench also held that the order of the Apex Court in Kashmeri Devi's case (supra) relied on by the learned Single Judge, is referable to exercise of jurisdiction by the Apex Court under Article 142 of the Constitution, and that in the said judgment no such ratio was laid down that the Magistrate, in exercise of power under Section 173(8) Cr.P.C, can direct for further investigation by a central agency, the Central Bureau of Investigation, i.e., different agency from the one which has already conducted the investigation.

The Bench observed that while in Kashmeri Devi's case (supra) the Supreme Court, after noting all the events and incidents of the case, came to the opinion that effort has been made to protect and shield the guilty police officers, and it had formed an opinion that it was a fit case for directing fresh investigation through an independent authority, in the case at hand, neither did the learned Single Judge record his satisfaction after considering the materials on record that present is a fit case for issuing a direction to the Central Bureau of Investigation to take over the investigation, nor was the Division Bench of the view that there are enough materials on record on which any direction can be issued to the Central Bureau of Investigation to conduct investigation, "especially when more than five years have elapsed from the accident, which took place on 30.8.2009".

The Division Bench accordingly held that the Magistrate, in exercise of jurisdiction under Section 173(8) Cr.P.C, cannot direct for investigation by a central agency, i.e., Central Bureau of Investigation, or a different investigating agency from the investigating agency, which has already submitted a report under Section 173(2) Cr.P.C. The power under Section 173(8) Cr.P.C has to be exercised for further investigation by the same investigating agency, which had conducted investigation and submitted a report under Section 173(2) Cr.P.C. "The direction of the learned Single Judge giving discretion to the authorised Magistrate to direct for further investigation by Central Bureau of Investigation was clearly erroneous and cannot be sustained", ruled the Division Bench of the High Court of Kerala, and set aside the second direction of the learned Single Judge permitting the Magistrate to refer the case to the Central Bureau of Investigation under Section 173(8) Cr.P.C if he came to that conclusion after perusing the investigation file. 

Court Fees Act: the purpose for which the property is being put to use, and not the nomenclature of any document, is material in determining whether court fee is to be paid on the basis of market value under Section 7(2) or 7(3), holds the High Court of Kerala

Relying on the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair¹  that the predominant purpose for which the land is used is material in determining whether sub-section (2) or sub-section (3) of Section 7 Kerala Court Fees and Suits Valuation Act would apply in the matter of determination of market value for the purposes of paying court fee, the Kerala High Court in Soudamini v. A. Padmanabhan Namboodiri² has held that the purpose for which the property is put to use, rather than the nomenclature shown in any document, is to be the basis for the purpose of fixing court fee under Section 7 of the Kerala Court Fees and Suits Valuation Act ("the Act" for short). 

Sub-sections (1), (2) and (3) of Section 7 of the Kerala Court Fees and Suits Valuation Act are extracted below:

7. Determination of market value.-(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint:

(2)The [“market value of agricultural land”] in suits falling under section 25 (a), 25 (b), 27 (a), 29, 30, 37 (1), 37 (3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.

 (3) The market value of the building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.

  [“(3A). The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit.”]

In Soudamini (supra), in a suit for injunction, when the defendants disputed the title of the plaintiff over the plaint schedule property, issue on title was framed and the court below directed to remit court fee under Section 27(a) of the Court Fees and Suit Valuation Act. The plaintiff calculated the market value of the property under Section 7 (2) of the Act treating the suit property as agricultural land and claimed that he is only bound to pay court fee on that basis. This stand of the plaintiff was disputed by the defendants by pointing out that the property in question is a garden land with a residential building therein and if that be so, court fee will have to be paid under Section 7 (3A) of the Act. The Trial Court upheld the objection of the defendant and passed the impugned order directing the plaintiff to pay court fee under Section 7 (3A) of the Act.The plaintiff assailed the said order in the High Court of Kerala. 

Mr. P.V. Kunhikrishnan, the Counsel for the petitioner/plaintiff assailing the order passed by the Trial Court contended that merely because the property is described as garden land in the plaint, it does not mean that it cannot be used for agricultural purpose. Relying on Narayanan Nair v. Dr.Lokeshan Nair  (supra), he contended that the court below has to ascertain the purpose for which the property is put to use and fix court fee on that basis and not on the basis of nomenclature shown in any document. Nomenclature of the property shown in any of documents is not the sole criteria. But the actual purpose for which the property is put to use should determine the issue. The Counsel for the defendants, Mr. T. Sethumadhavan, Senior Advocate, on the other hand supported the order passed by the trial Court. He contended that having shown the property as garden land in the plaint and without amending the plaint, it cannot be now termed as agricultural land. It was also pointed out that the petitioner had assigned a portion of her property to her daughter in which too, the property is shown as garden land, and that it is an admitted fact that there is a residential building in the property. These facts cannot be lost sight of and if these aspects are taken into consideration, it follows that the property is not an agricultural property, contended the learned Counsel for the respondents/defendants. 

The High Court of Kerala speaking through Justice P. Bhavadasan accepted the contentions of the petitioner/plaintiff in the light of the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair  (supra) that Sub-section (3) of Section 7 of the Court Fees Act would apply only where the property consists of the building and not where a building is situated in an agricultural land. In that case, the High Court had held thus:

"The predominant purpose for which the land is used is material in determining whether sub-section   (2) or sub-section (3) would apply. If a commercial building  is  situated   in   a  property   and   the   predominant purpose is to generate income from the building and not from the land, it would be a case where sub-section (3) of S.7 of the Court Fees Act would apply.  On the other hand, when the predominant purpose is agricultural operation or agricultural operation-cum-residence, I am of the  view that sub-section (2) of S.7 of the Court Fees Act would apply. Sub-section (3A) of S.7 of the Court Fees Act would apply only when sub-sections (2) and (3) of S.7 would not apply."

Answering the contention of the respondents that in the documents executed by the petitioner assigning portion of the property to her daughter, the property was shown as garden land, the High Court of Kerala said that as long as agricultural land is not defined under the Court Fees and Suits Valuation Act and given the fact that there is no prohibition that garden land cannot be used as agricultural land, the dictum laid down in Narayanan Nair v. Dr.Lokeshan Nair  (supra) squarely applies to the facts of the case and held that nomenclature of the land as specified in the plaint or in the document may not have much relevance in the context."

The High Court of Kerala accordingly, held that the Trial Court had erred in directing the petitioner to pay court fee under Section 7 (3A) of the Court Fees and Suits Valuation Act, and going by the decision in Narayanan Nair v. Dr.Lokeshan Nair (supra), the property qualifies as agricultural property and that the petitioner needs to pay court fee under Section 7 (2) of the Act.

_____________

1. 2014 (2) KLT 868

2. O.P. (C).No. 1435 of 2014 (O) decided on 30.10.2014

AGM of Kerala High Court Advocates' Association to be held on December 1

The Annual General Meeting of the members of the Kerala High Court Advocates' Association will be convened on the 1st of December, 2014, to consider the following agenda:

"1. Annual Report regarding the working of the association during the year 2014;
2. Accounts and Auditor's report, for passing the same;
3. To appoint the Returning Officer for the ensuing election to the Executive Committee -2015; and
4.any other matters with the permission of the Chair"

The Executive Committee of the Kerala High Court Advocates' Association has requested that all members attend the AGM on 01.12.2014.

Alarmed at falling standards, Bar Council of India notifies rules intended to improve standards of the legal profession

With  the express object of achieving "better and effective administrative and disciplinary control of local Bar Associations, State Bar Councils and the Bar Council of India over advocates entered on the Rolls of advocates being maintained by different State Bar Councils under section 22 of the Advocates Act and further in order to weed out advocates who have left practice", the Bar Council of India, in the exercise of powers conferred on it by section 49(1) (ag), 49 (ah) 49(i) of the Advocates Act, 1961 and by all other enabling and residuary powers vested in it, has notified, in the Gazette, the “Bar Council of India Certificate of Practice and Renewal Rules, 2014” on 29.10.2014. Except for Rule 7 which prescribes the minimum experience required for practice before High Courts and Supreme Court, all the other provisions of the Rules would come into effect from the date of publication of the notification.

The Statement of Objects and Reasons of the Rules refers to concerns expressed in a Joint meeting of the representatives of all State Bar Councils and Bar Council of India that the trend of Advocates switching over to other professions/services/business without any information to the State Bar Council has reached alarming proportions and that this trend is endangering the legal profession as a whole. Referring to this trend, it says, "It has also made a dent in its sanctity and standards. Names of such advocates continue to be included in the “Roll of advocates” being maintained by the State Bar Councils, notwithstanding the fact that they have left the legal profession or have since died. Though under section 19 of the Advocates Act, the State bar Councils are under legal obligation to send a copy of the Roll of advocates prepared by it under section 17 of the Act and subsequent alterations/additions thereto but practically no state bar Council has observed this mandatory provision of the Act up till now". The Bar Council of India has also candidly admitted that the All India Bar Examination introduced to improve the standard of legal profession has also failed to fully achieve its objective. 

Salient Features of the Rules

1. Commencement:

Except for Rule 7 of Chapter III which would come into force on such date as the Bar Council of India notifies in the Gazette of India, all the other provisions of the Rules take effect at once.

2. Certificate of Practice:

Rule 5 lays down that "An advocate shall not be entitled to practice law unless he holds a valid certificate of practice issued either under All India Bar Examination Rules or under these Rules"

3.  Registration in local Bar Association:

 

The Rules require an advocate, after having obtained a Certificate of Enrollment to get himself registered as a member of the Bar Association where he ordinarily practices law or intends to practice law. In case an advocate leaves one Bar Association and joins another by reason of change of place of practice or by reason of change of field of law, he/she shall have to intimate such change with all the relevant particulars to the State Bar Council, of which he is a member. The Rules also mandate that such fact of leaving as well as of joining should be independently intimated to the said Bar Council  within a period of one month. The Rules also lay down criteria for recognition of Bar Associations. 

4.  Minimum experience required for practice in High Courts and Supreme Court

For the purposes of Rule 7 and prescribing the minimum experience required to pratice in Courts of law, the Bar Council has classified the Courts of law into three tiers: District & Sessions Courts and courts subordinate to it, High Courts and Supreme Court. 

 

Rule 7 (not notified yet) by the Bar Council of India lays down that an advocate enrolled after the commencement of the Rules and after having obtained certificate/renewal of practice can  practice law only before such Courts of Law as are equivalent to Sessions Judge or District Judge and such other Courts in specific field/s of law that are exercising original jurisdiction in the matters covered by such fields of law and all other Courts which are subordinate to them.  

Only after completing two years of practice in such Courts/Tribunals equivalent to District/Sessions Court or Courts subordinate to them or Courts exercising original jurisdiction, can an advocate enrolled after the commencement of the Rules and after having obtained certificate/renewal of practice, "be entitled to practice law before a High Court and such other Courts in specific fields of law that are exercising appellate or revisional jurisdiction in the matters covered by such fields of law and all other Courts which are subordinate to them." Therefore, should Rule 7 be notified by the Bar Council of India, 2 years of experience in trial Courts/Tribunals would be a mandatory prerequisite for being eligible to practice in High Courts.  

Further more, the Rules lay down that an advocate enrolled on the roll of advocates after the enforcement of the Rules would be entitled to practice before the Supreme Court only after gaining 3 years of experience in the High Court. 

5. Application for grant of “Certificate of Practice" 

Rule 8 lays down the conditions to be fulfilled for grant of a Certificate of Practice. An advocate who has obtained graduate degree in law before the academic year 2010 enrolled on the “Roll of Advocates”, is required by the Rules to apply for issuance of “Certificate of Practice” from the State Bar Council in which he/she is enrolled as an advocate under this rule within a period of 6 months of the enforcement of these Rules/date of enrolment. An advocate who graduated in the academic year 2009-2010 and thereafter enrolled on the "Roll of Advocates" on or after 12th June, 2010 is required by the Rules to apply for issuance of Certificate of Practice under the All India Bar Examination Rules, 2010 from the respective State Bar Council in which he/she is enrolled. 

6. Validity of Certificate of Practice

Rule 9 lays down that Certificate of Practice issued under the Rules, and the renewal thereof, shall be valid only for a period of 5 years., and is therefore, liable to be renewed every 5 years by filing an application for renewal in advance within a period of 6 months before the validity period expires. Applications for grant/ renewal of “Certificate of Practice” of Advocates,would be scrutinised  by the Office of the Bar Council and placed along with personal file of applicant before the Administrative Committee for passing appropriate order, either allowing or dismissing the application. Such an application would be dismissed by the Committee if the applicant has left practice and it is found that he/she has no bona fide intent and interest in continuing in future also. Such an applicant would be treated as a non-practicing advocate under the Rules. Adverse orders would however not be passed without affording an opportunity of being heard to the applicant concerned.

7.  Consequence of failure to make application for grant of Certificate of practice/renewal

The Rules lay down that were an advocate fail to make an application for grant of Certificate of practice/renewal within the period prescribed, it would be presumed that such an advocate has left law practice and has no bona fide intent and interest in continuing in future also. The Office of the State Bar Council has been charged under these Rules with the obligation of preparing a list of such defaulting advocates who have failed to make an application for grant of Certificate of practice/renewal within the period prescribed, and to intimate such advocates of the fact of their inclusion in such a list. Applications for grant of Certificate of Practice/renewal received from such advocates whose names have been included in the 'List of defaulting Advocates' would have to be accompanied by late fee and thereafter processed.

8. Consequence of failure to respond to intimation issued by State Bar Council 

Failure to respond to the intimation sent by the State Bar Council of the inclusion in the 'List of defaulting Advocates', can entail the name of the advocate concerned to be included in the 'list of Non-Practicing Advocates'.  Non-practicing advocates are barred under the Rules from practicing law before any Court of law/Tribunal. 

9. Appeal and Revision

The Rules provide for the constitution of an Appellate Tribunal for each State Bar Council comprising three members headed by the member of the Bar Council of India from the State Bar Council concerned,  for consideration and disposal of appeals under the Rules. The Bar Council of India has been vested with revisional powers under the Rules.

The Rules notified by the Bar Council of India has evoked a  mixed response from members of the legal fraternity, and at least one writ petition challenging Rule 7 laying down minimum experience needed for practice in High Court and Supreme Court has already been filed (in the Madras High Court).