Malhotra Case: Marred by serious irregularities
At about 10.40 hours on 12 March 1998, Dr Krishan Kumar Malhotra was attacked at Med Point Clinic where he held his surgery, by an individual who threw acid in his face. As one would expect, he was seriously injured, with his face and eyes being severely burnt; as a result he lost his eyesight. Two persons were, after enquiry, prosecuted before the Intermediate Court. The first was accused of assault with premeditation and the second for aiding and abetting the first accused with the commission of the offence. The evidence adduced by the prosecution before the Intermediate Court was to the effect that about 1000 hours on that day, a man by the name of Ratti had asked to see Dr Pillai who was on duty at the clinic. He had in his hands a parcel. Ratti was asked to wait, which he did by pacing the corridor.
Ten minutes later Dr Malhotra called the reception and enquired about a person ‘by the name of Balloo having in his possession a parcel’. A few minutes later the nurse at the reception heard Dr Malhotra shouting for help. She then saw the doctor coming down the stairs with what appeared to be smoke coming from his face and clothes.
The suspicious individual carrying the parcel was seen leaving the clinic in haste and got in a car driven by the second accused. The judgment in the case was delivered some ten years later, on 25 July 2008 to be exact. The two accused were sentenced to six years penal servitude. It is a cause of concern that the case took so long and the witnesses who testified, including Dr Malhotra, must have relived this traumatic experience as a nightmare.
Last week the Supreme Court overturned the judgment on grounds of miscarriage of justice and has ordered that the case be remitted to the Intermediate Court for a new trial.
It is a severe blow to those of us who have faith in our justice system but the blow is devastating when the reasons put forward by the Supreme Court are looked into.
It is indeed a sad day for our justice system and the earlier we draw lessons from the catalogue of mistakes made by the lower judiciary the better for the administration of justice. But at the same time we must feel relieved that the administration of justice has its own inbuilt mechanism of checks and balances which have worked well to prohibit the unfairness of the trial to which the accused parties were subjected.
In their judgment the Judges of the Supreme Court point to four disturbing features. First, the medical files submitted on behalf of the accused were missing. Second, one ruling pertaining to a motion made by the defence was never delivered. Third, two sets of submissions made by learned Counsel for the accused and the authorities communicated by counsel were also missing from the record. Fourth, two rulings bearing no date and which dealt with the issue of abuse of process raised by the defence before the Intermediate Court were communicated to the appellate court on the eve of the appeal since there was an omission to insert them in the certified copy of the court record.
The learned Judges could hardly hide their feelings and wrote: “The whole evidence pertaining to the official record indicates that the rulings were never part of the official record forwarded by the Head Clerk of the Intermediate Court for the hearing of the appeal. …there is no indication that any of the 2 rulings had been forwarded by him (the Head Clerk who has official custody of the record) as part of the official record. Nor is there any explanation as to when these undated rulings were drawn up by the trial Magistrate and how, if at all, they were brought into the official record. The Presiding Magistrate who forwarded the rulings… to the Master and Registrar did not have any personal knowledge relating to the fate of these rulings and could not be personally aware in the circumstances that bit was through error that the rulings have not been inserted in the certified copy of the court record forwarded to the Supreme Court.”
Moreover they wrote that from the state of the record, there is clearly no reliable indication that these two rulings which suddenly appeared on the eve of the appeal hearing were read out or delivered or filed by the learned Magistrate and could thus validly form part of the official court record for the purpose of the hearing of the appeal.
The Supreme Court was of the view that there was a clear breach of the appellant’s right (the accused in the lower courts) to a fair hearing as guaranteed by section 10 of the Constitution. They quashed the conviction and ordered a fresh hearing. It is probably the case that the Judges felt that but for the miscarriage there was sufficient evidence upon which a court of law may have reasonably come to the conclusion that the accused were indeed guilty.
Whilst the order for a hearing is the sole avenue that was available to their Lordships, will there ever be justice at the end of the day? The crime was committed in March 1998 and Dr Malhotra, the victim of the crime who now lives in UK, will be asked to give evidence some thirteen years later and undergo the strain of a trial. The doctor is being made a victim for the second time since the machinery of justice has failed him.
* Published in print edition on 17 December 2010
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