Why the SC Wants Ex-Judge Katju to Participate in an Ongoing Proceeding

Katju has been asked to appear in person before the apex court to point out the “fundamental flaws”, as claimed by him, in the Soumya murder case.

Markandey Katju. Credit: PTI

Markandey Katju. Credit: PTI

The Supreme Court has issued a notice to its former judge Markandey Katju to appear in person to participate in the proceedings of the Govindaswamy review case on November 11 to debate his criticism of the September 15 judgment in the case.

In the case, the conviction of the accused, Govindaswamy, and his death sentence, for the murder of a young girl, was set aside, for want of reliable evidence.

The bench, comprising justices Ranjan Gogoi, Prafulla C.Pant and Uday Umesh Lalit, issued a notice to Katju because it felt his criticism, expressed on his Facebook page, needed to be resolved before it decided the review petitions filed by the state of Kerala and by Sumathi, the mother of the deceased girl, Soumya.

The court, in its September 15 judgment, had set aside Govindaswamy’s conviction for Soumya’s murder under Section 302 of the IPC and altered it to one of causing her grievous hurt under Section 325 of the IPC. Accordingly, the court altered his death sentence to one of rigorous imprisonment for seven years.

The court, however, maintained his conviction and life sentence imposed by the trial court and confirmed by the high court for the offence of rape.

Govindaswamy was found guilty of assaulting Soumya when she was alone in the ladies compartment of the Ernakulam-Shornur passenger train on the night of February 1, 2012, and of raping her after she fell off the train. As Soumya died as a result of these events, Govindaswamy was held guilty of murder and sentenced to death by the trial court and the high court.

Katju expressed two reservations about this judgment on his Facebook page and on his blog.

According to him, Govindaswamy should have also been charged under ‘thirdly’ of Section 300 of the IPC. Under this provision, culpable homicide is murder if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

Katju is of the view that the Supreme Court has totally ignored this third part of Section 300. His view is based on the nature of the first injury suffered by Soumya while on the train. This injury was caused by the repeated banging of her head against the compartment wall by the accused.

However, Katju appears to have ignored the evidence of prosecution witness 64, namely, Dr. Sherly Vasu, who conducted the postmortem examination on Soumya. Vasu’s evidence is extracted in the September 15 judgment thus:

“Injury No.1 is sufficient to render her dazed and insensitive….These wounds may not be of the nature of exclusive cause of death….Need not become total unconscious. But can do nothing. The injury described in No.1 is caused by hitting 4-5 times against a flat surface holding the hair from back with a right hand.”

The accused is handicapped and has no left hand.

How the bench held it is not a murder

The bench then noted in its judgment that the death of the deceased was occasioned by a combination of injury No.1 and injury No.2, which was caused by her fall from the running train, and complications arising therefrom, including aspiration of blood into the air passages resulting in anoxic brain damage.

The death of the deceased, in Vasu’s opinion, occurred due to the fact that she was kept in a supine position for the purpose of sexual assault by the accused.

The bench found that the accused had neither the intention to kill her by keeping her in that supine position (as his intention was sexual assault), nor had the knowledge (such knowledge can only be attributed to a medical practitioner) that keeping her in that position would lead her to death.

In the absence of these two factors in the offence of murder under Section 302, the bench found the accused innocent of the charge of murder.

To apply ‘thirdly’ of Section 300, the injury caused by the accused must be singly sufficient to result in her death in the ordinary course of nature. In view of the clear medical evidence that her first injury was not such an injury, the bench could not have applied it.

Thereafter, the bench examined whether the accused was responsible for her injury No.2, which was caused by her fall from the running train. The bench concluded that unless her fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, the liability of the accused for her second injury may not necessarily follow.

The bench was conscious of the possibility that in view of her impaired mental reflexes at that point of time, it might not have been possible for Soumya to decide to jump out of the train. In fact, the bench agreed that this proposition need not necessarily be incorrect.

But the bench had before it, the evidence of prosecution witness 4 and prosecution witness 40. The two witnesses, who were travelling in the compartment ahead of the ladies’ compartment, heard Soumya’s cries and said that they were told by a middle-aged man, who was standing at the door of the compartment, that the girl had jumped out of the train and had made good her escape.

Katju, in his Facebook post, calls the statements of prosecution witness 4 and prosecution witness 40 as hearsay evidence because they did not see Saumya jump off the train. Katju says that hearsay evidence is inadmissible as evidence vide section 60 of the Indian Evidence Act (IEA), except in certain limited circumstances, for instance, a dying declaration or the opinion of an expert.

“None of those limited circumstances existed in this case. So, how could the Court rely on this hearsay evidence?”, asks Katju, and adds:

“This was a grave error in the judgment, not expected of Judges who had been in the legal world for decades. Even a student of law in a law college knows this elementary principle that hearsay evidence is inadmissible.”

While the tone and tenor of Katju’s criticism may indeed sound harsh and could have hurt the bench, it needs to be seen if his criticism has any merit.

Section 6 of IEA

While Katju is correct as far as Section 60 of the IEA is concerned, he overlooked a key exception to it, namely, the principle of res gestae, as enunciated in Section 6 of the same Act. Under this section, the statement of a person may be proved by another person who appears as a witness if the statement is a part of the transaction in issue.

Katju probably did not notice Section 6 of IEA since the September 15 judgment did not refer to it. But on October 7 when the bench heard the review petitions, Lalit justified the judgment, by virtue of Section 6. He also read out the illustration, given under Section 6 as follows:

“A is accused of the murder of B by beating him. Whatever was said or done by A or B or by the by-standers at the beating, or so shortly before or after it has to form part of the transaction, is a relevant fact.”

Therefore, Lalit observed, on behalf of the bench, that the testimonies of prosecution witness 4 and prosecution witness 40 could not be ignored as hearsay.

The middle-aged man, whom these witnesses quoted as saying Soumya jumped off the train and escaped, was a bystander who made that statement so close to the incident and therefore attracted Section 6 of the IEA.

Lalit explained that the spontaneity and immediacy of the bystander’s statement left no scope for concoction and the fact that it was made contemporaneously with the offence or immediately thereafter fulfilled the ingredients of res gestae an exception to the hearsay rule.

Both on October 7 and on October 17, when Attorney General Mukul Rohatgi argued on behalf of the state of Kerala, the counsel could not convince the court why the statement of this ‘middle-aged bystander’ – who could not be identified subsequently – could not be relied upon under Section 6 of the IEA, more so because two prosecution witnesses had cited it.

Just as the counsel for the state of Kerala and Sumathi could not convince the court on this question, Katju, too maintains a mysterious silence on it.

It is possible to suggest that the court overreacted by summoning Katju to debate the issue. But it could also be attributed to its justified concern that if Katju had a better explanation than the review petitioners on why ‘thirdly’ of Section 300 of the IPC would apply or Section 6 of the IEA cannot apply to the facts of this case, the bench would be able to correct itself.

If the bench had not issued a notice to him, it may have been deprived of the benefit of his insight, which is possible only if he appeared before it and debated the issue.

Is Article 124(7) attracted?

Katju, while expressing his readiness to appear before the court in the case, has, however, drawn attention to Article 124(7) of the constitution, which says as follows:

“No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”

This provision would be attracted only if Katju appears as a counsel on behalf of someone else, and not as a concerned citizen himself, in response to a notice issued by the Court.

Surely, if Katju’s freedom of expression to articulate his view on his blog is sacrosanct, the Supreme Court too must be admired for taking due note of his view and inviting him for a debate by participating in its proceedings, before it decides the review petitions.

But the words “shall plead or act in any court” in Article 124(7) gives rise to a doubt whether the Supreme Court’s notice to Katju to appear before it and participate in a proceeding would violate the article. While Katju may not “plead” by accepting a brief of a party before the court, he will certainly “act”, in response to the notice, it could be pointed out.

However, the principle of ejusdem generis would tell us that the word “act” used in the article must be understood in relation to the word “plead” used prior to it. The general word “act” would then necessarily take the meaning of the specific word “plead” which precedes it.

Secondly, as the Supreme Court itself has issued the notice to Katju to appear before it, it can be assumed that the court does not think that the bar of Article 124(7) would come in the way of his appearance. In other words, the notice itself carries an implicit answer that it is not a bar. After all, the constitution is what the Supreme Court says it is .