Our Affidavit in WP 22585 of 2004 of which judgment has been already posted

This is our Writ Petition Affidavit in WP 22585 of 2004, the judgment of which has been posted in this blog yesterday:

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD.
W.P. No. 22585 of 2004.

Between:
I. BALAMANI, w/o I. Mallikarjuna Sharma,
H. No. 6-3-1243/156, D. Sanjeevaiah Nagar, M.S. Makta,
Opposite Raj Bhavan, Hyderabad - 500 082. … PETITIONER.
A N D
1. The Concerned Magistrate for Newspapers - presently
Mr. Ismail, Deputy Commissioner of Police,
Office of the Commissioner of Police,
Basheerbagh, Hyderabad - 500 029.
2. The Registrar of Newspapers for India (RNI), Wing 2,
West Block 8, R.K. Puram, New Delhi - 110 066.
3. Government of Andhra Pradesh, represented by its
Chief Secretary, A.P. Secretariat, Hyderabad - 500 022.
4. Ministry of Information and Public Relations,
Government of India, headed and represented by
Sri S. Jaipal Reddy, Union Cabinet Minister,
14, Akbar Road, New Delhi - 110 011. ... RESPONDENTS.

* * *

AFFIDAVIT FILED BY THE PETITIONER :

I, Smt. I. Balamani, wife of I. Mallikarjuna Sharma, Age: 38 years, Occupation: self-employed housewife; R/o H.No. 6-3-1243/116, D. Sanjeevaiah Nagar (M.S. Makta), Opposite Raj Bhavan, Hyderabad - 500 082, do hereby solemnly affirm and sincerely state as follows:

1. I am the petitioner herein and, as such, well acquainted with the facts of the case. I am filing this writ petition aggrieved by the callousness and inaction of the 1st respondent herein who is illegally demanding user-charges for even processing my application for verification of title for my proposed newspaper, of the 2nd respondent who has not verified the title despite my direct representation to him in this regard and the policy decisions and practices of 3rd and 4th respondents in this connection, all of which cumulatively infringe my freedom of expression guaranteed by Article 19 as also my right to a dignified and free life guaranteed by Article 21 of the Constitution. I am deposing to this affidavit to the best of my information, knowledge and belief, and that I believe to be true.
2. I submit that I am a postgraduate in commerce and also a self-employed housewife, undertaking occasional publications of some socially useful good books in English and Telugu as the sole proprietress of Ravi Sasi Enterprises, with the inspiration and support given by my husband who is a practicing advocate and talented writer. Recently I decided, with the idea given by my husband and encouragement and blessings of several eminent persons like
Dr. Lakshmi Sahgal, Sri V. R. Krishna Iyer, Sri B.P. Jeevan Reddy, et al who consented to be on the Advisory Board, to print and publish a fortnightly law journal to report world law decisions and developments under the title Law Animated World. And with my husband I. Mallikarjuna Sharma as Editor,
I brought out some trial issues of the same also. Along with the first trial issue I had given an application dated 16-08-2004 to the Concerned Magistrate for Newspapers enclosing application in Annexure III to the Registrar of Newspapers of India for verification of title. I requested the Magistrate who happens to be a Deputy Commissioner of Police to process the same expeditiously so that a title verification letter can be got by me soon. Such verification letter is said to be essential to me for giving a declaration concerning the proposed newspaper before the Concerned Magistrate. I had also sent a letter to the Registrar of Newspapers for India (Respondent 2 herein) dated 16-08-2004, apprising him of my application in this regard and enclosing a copy of it as well as of the trial issue of the journal.
3. But my application to Respondent 1 herein dated 16-08-2004 with Annexure III (for verification of title) had not been forwarded by him to the Office of the Registrar of the Newspapers for India, New Delhi and as such I have not got any response/verification letter from them even till date. After waiting for about 2 months, and causing enquiries in the meanwhile with the personnel in the office and also the person of the Magistrate concerned, I was convinced that the Magistrate concerned was demanding some user-charges which are not sanctioned by law and that he is refusing to send my application for verification of title to the Registrar of Newspapers for India until such user-charges are paid by me. As such I wrote him a letter-notice dated 16-10-2004 protesting against such conduct by him. Therein I made it clear to him that
I am required only to give a declaration before him as per Section 5 of the Press and Registration of Books Act, which has to be transmitted by him to the RNI (R-2 herein). The process of verification of title seems to have been introduced to prevent multiplicity of newspapers with one and the same title and is only a preliminary and aid to the requisite legal provision of Section 5. However, Respondent 1 has not carried out even the preliminary act of forwarding my application for verification and already two months have elapsed. He (R-1) was withholding the transmission of this preliminary application in Annexure III only because he insists on my payment of user-charges and he cited one G.O. Ms. 601 (Finance), dated 22-05-2002 [P-6] as giving him the authority and power in this connection.
4. With much difficulty I was able procure a copy of that G.O. [P-6] but I did not find any mention therein about any need to pay user-charges in connection with registration of newspapers. So I made it clear to the Respondent 1 in my above letter-notice that - his office slip [P-7] requiring me to pay “Rs. 2000/- user-charges for ‘police clearance certificate’ for declaration…” seems to be wholly arbitrary and illegal; that no restrictions could be imposed on press freedom, which receives constitutional protection under Article 19 and any reasonable restrictions to it have to be made by a law of the parliament alone; that in the instant case no such restrictions or requirements are made or specified by any law of the parliament and hence his action in not forwarding my application for verification of title to the Registrar of Newspapers for India so far was completely unconstitutional and illegal; and that I need not pay any user-charges to anybody for the exercise of my constitutionally protected fundamental right to speech and expression. Further I informed him that his action was causing a lot of anxiety, tension and mental worries as also loss of reputation and credit in the society to me. As such I requested him to immediately correct his blatant and arbitrary mistake and send my application for verification of title forthwith to the Registrar of Newspapers of India, with a request to him (RNI) to process my application and verify the title expeditiously - preferably within one week of its receipt by him. I also expressed my hope that he - Respondent 1 - would certainly do so and also reply to me within two weeks of receipt of this letter-petition by him about any further action he might take in this regard. I also mailed another letter dated 18-10-2004 to the RNI (R-2 herein) complaining about the illegality by R-1 and also requested him to protect press freedom by suitably advising the Magistrate concerned. I also stressed therein that it is high time that the authority and powers of verification and attestation of declarations be taken away from the police department and entrusted to any other departments. As such I requested him to cause verification of the said title on his own and issue me a verification letter for my proposed law fortnightly at the earliest.
5. However, I regret to submit that so far I have not received any response or reply from either of the two respondents 1 & 2 [except P-10]. As such I am effectively and for no fault of mine deprived of my right to publish a regular newspaper and avail the facilities extended for the publication and dissemination of such newspapers such as postal concessions. Also this whole process is causing me a lot of anxiety, mental worries and loss of reputation and credit in society. Further the chances of increasing the prestige and circulation of the proposed law reporter by enrolling more and more number of subscribers and canvassing for liberal donors and advertisers are also adversely affected since the lack of regularization of the journal is discouraging several interested readers and prospective donors/advertisers from enthusiastically supporting our proposed journal. All this has caused a definite and considerable financial loss to me. All this due to the action and/or inaction of Respondents 1 and 2, which is a certain and clear infringement of my freedom of expression guaranteed by Article 19 (1) of our Constitution.
6. I am advised to submit that freedom of press is embodied in the freedom of speech and expression guaranteed by Article 19 (1) of our Constitution and it could only be interfered with in the manner indicated in Article 19 (2), that is by way of any ‘reasonable restrictions’ in the interests of the sovereignty and integrity of India, the security of state, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. And it seems such reasonable restrictions could be imposed only by a parliamentary law. Further the publication of books and newspapers is governed by a central enactment, The Press and Registration of Books Act, 1867 (hereinafter referred to as the ‘1867 Act’), which is ‘an Act for the regulation of printing-presses and newspapers, for the preservation of copies of books and newspapers printed in India, and for the registration of such books and newspapers’. Section 5 (2) of the 1867 Act requires “the printer and publisher of … newspaper [to] appear in person or by agent authorized … before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published…” But the Proviso to Section 6 of the 1867 Act lays down that “the declaration shall not … be … authenticated unless the Magistrate is, on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State.” As such a practice has developed of sending the application of the printer and the publisher of a proposed newspaper first to the Registrar of Newspapers for India for verification of title. And only on verification of the title proposed the concerned Magistrate takes on file the declaration by such printer and publisher and authenticates it. This is a preliminary process introduced to avoid multiplicity of newspapers bearing the same or similar names and thus avoid any undesirable future litigation, injuries to the interests of concerned third parties and confusion to the public. I am advised to say that it is obviously a duty of the Magistrate concerned to get verified the title and satisfy himself about its availability for the particular applicant printer/publisher. It would not be fair or just for the Magistrate to, for the costs of carrying out his own duty, charge the applicant. Anyway there is nothing in the 1867 Act or the rules made under it either by the Central Government or the State Government stipulating any such user-charges.
7. I am legally advised to further state that it is colonial legacy and mindset to continue to endow some top police officers with the status and powers of executive magistrates and appoint them as Magistrates for Newspapers. The British imperialists in order to suppress the revolt of the people against their oppressive and plundering rule might have devised and implemented such policing measures but it is quite unwarranted to continue such practice anywhere in independent India. Fortunately this seems to be not the case all over India or perhaps even in all centres in our State. In Karnataka only a Judicial Magistrate can be appointed as Magistrate for Newspapers. Even as per the now existing law (1867 Act), Magistrate is interpreted as “any person exercising the full powers of a Magistrate and includes a Magistrate of Police.” But nowadays there are no Magistrates of Police; as per Section 3 of the old Criminal Procedure Code any reference to Magistrate of Police was to be deemed as reference to Presidency Magistrate and as per Criminal Procedure Code, 1973, this only means a Metropolitan Magistrate (Section 3). In such circumstances, I am advised to say that Respondent 1 has no jurisdiction at all to entertain my application for verification of title (for my subsequent filing of declaration). As such the Respondent 2 has to discharge the entire obligation and burden of directly verifying the title, as also receiving the subsequent declaration that would be filed by me. Or else Respondents 3 and 4 together have to devise some other way and appoint only Judicial Magistrates as Concerned Magistrates for Newspapers and authorize them to receive declarations filed by me or persons similarly situated as me.
8. In such circumstances and for the said reasons, I submit that the action of Respondents 1 and 2 in not verifying the title for my proposed newspaper as also the appointment and continuance of Respondent 1 as Magistrate for Newspapers is unjust, unconstitutional and illegal and needs appropriate intervention by this Court for the following among other
G R O U N D S:
(i) The actions of the respondents are in violation of the law of the land and infringe the fundamental rights laid down in our Constitution.
(ii) As per Press and Registration of Books Act, 1867, only a Magistrate having full powers can be a Magistrate concerning Newspapers and as such Respondent 1 being not such a Magistrate, has no jurisdiction to act so.
(iii) The imposition of user-charges or any other charges is not authorized by or even contemplated in the 1867 Act or the rules made under it. As such requiring the petitioner to pay any user-charges or withholding her application for verification of title on the ground of non-payment of user-charges is arbitrary and illegal.
(iv) The right to publish newspapers is part of press freedom, which in turn is part of freedom of speech and expression guaranteed by Article 19 (1) of the Constitution, which can only be interfered with by any ‘reasonable restrictions’ as per 19 (2). As such any other sort of interference by the State Government in this regard is unconstitutional and hence ab initio void.
(v) Right to life also contemplates right to live with dignity and freedom and is not mere animal existence. In the instant case the action of the respondents has already caused me a lot of strain, mental worry, financial loss and damage to reputation. As such the action of Respondents 1 and 2 infringes my right under Article 21 also.
(vi) The inaction, commissions and omissions of R-1 and R-2 are quite arbitrary and as such violate Article 14 too.
(vii) Such other grounds as may be urged at the hearing of this petition.
9. I submit that I am constrained to approach this Honourable Court to provide a quick and inexpensive remedy in this case by way of its extraordinary jurisdiction under Article 226 of the Constitution since I do not have any other alternative remedy in this regard.

10. I submit that I have not filed any other writ, suit or proceeding regarding the subject matter of this writ petition, in this Honourable Court or in any other court or legal forum.
INTERIM RELIEF:
11. In such circumstances, it becomes just and necessary that this Court may be pleased to direct Respondent 2 herein to immediately verify the title for my proposed newspaper as per the titles-status as on 16-08-2004, the date of my first application for verification of title, so as to enable me to file a declaration at the earliest before Respondent 2 or before any duly qualified Magistrate to be appointed by Respondents 3 and 4 or by this Court; and pass such other order or further orders as this Honourable Court may deem fit and proper in the circumstances of the case to meet the ends of justice.
FINAL RELIEF:

12. In the circumstances narrated and for the reasons stated supra, I submit my request that this Honourable Court may be pleased to issue an appropriate writ, order or direction, particularly a writ in the nature of Mandamus, to declare that any imposition of user-charges by Respondents 1 and 3 as regards the process of verification of title and filing and receiving of declarations from publishers and printers in connection with newspapers as also the appointment and continuance of top police officers by investing them with executive magistracy as Magistrates for Newspapers is unconstitutional, illegal and ab initio void, with a consequent direction for refund of all the user-charges collected so far in this connection to the respective payers/declarants; award costs of the writ petition to me and pass any such order or further orders as this Honourable Court may deem fit and proper in the circumstances of the case.
7th & last page:
Corrections:

Solemnly affirmed and signed in my presence here at
Hyderabad on this Monday, the 6th day of December 2004. D E P O N E N T.

Before me :


ADVOCATE : HYDERABAD.

WHOEVER CAN, GO TO RESCUE THE PEOPLE OF KURNOOL CITY, ANDHRA PRADESH, INDIA

WHOEVER CAN GO TO RESCUE PEOPLE OF KURNOOL CITY, ANDHRA PRADESH

Kurnool, former capital of Andhra (1953-56) and the biggest city of Rayalaseema Region of Andhra Pradesh, is in danger of total inundation due to the worst ever floods since independence. Already several parts of the city are submerged to 3-25 feet depth. One citizen of Kurnool even expressed the fear that the 17th century Saint Veerabrahmendra Swamy's (known as Indian Nostradamus) saying that "The crow sitting atop the Kondareddy Tower (a tall tower in Kurnool) would drink water there" would come true. Scores of villages have already been submerged and lakhs of people rendered homeless; more dangerously, thousands are trapped in flood waters even in Kurnool city.
So I appeal to all our facebook friends that WHOEVER CAN GO TO RESCUE THE PEOPLE OF KURNOOL CITY BY WHATEVER MEANS AT THEIR COMMAND. Doctors can go to medicate and treat the needy, Boatmen are much in demand, take light carriable rubber boats with you, etc.

Editorial: 'CRISIS CONGRESSIONAL' in the 30 September 2009 issue of LAW ANIMATED WORLD.

CRISIS CONGRESSIONAL

surely seems to have enveloped the State of Andhra Pradesh pursuant to the 2 September helicopter crash which took the life of the popular chief minister with pleas for making his son the ruler espoused by powerful sections of his party. This is no wonder in a country used to despots and dynastic succession wars and rituals but is certainly awful and unfortunate for the progress of democracy in modern days. It has also generated an illusion of a constitutional crisis. However, the majestic Constitution of India never gave its citizens the fundamental right to vote even and so to think that it would have given their representatives a basic right to choose their own leader is stupidity simple. The Governor in a State is endowed with wide powers – more so than the President of India possesses vis-à-vis his ministers, not only to use his discretion in several circumstances, but also to choose not to be bound by the advice of his ministers. And there is nothing in the Constitution except the ordaining of ‘collective responsibility’ of the council of ministers to the house of the people or the legislative assembly as the case may be, and it would require the interpretational skill of uncommon judicial minds to infer it as requiring invariably the ‘confidence of the House’. Conventions, of course, there are that the ministry has to prove such confidence in it but it is the Governor who decides the time and place and even the need for the same. Moreover, conventions old can more easily be replaced by newer ones than the provisions of the constitution. As long as the incumbent chief minister, who is a senior, experienced and talented legislator, enjoys the confidence of the Governor, and more particularly of the ‘congress high command’, which term again sounds an element of despotism no doubt, there may not be any crisis of survival for his government. The ever stinging wails and curses of their own discontented representatives cannot be avoided though, but there are more urgent problems of health, finance and floods to be confronted than this turbulent struggle for succession.

Legal troubles LAW ANIMATED WORLD had to face and still encounters

Dear Readers,
Though it is said press freedom flourishes to a great extent in India, it is a sad fact of the day that we have only inherited colonial legacy in this matter. The imperialist rulers wanted to curb press freedom to protect their own oppressive and rapacious regime, which tradition our modern brown lords are following to this day. The Constitution has not brought any radical break with the past but shamelessly proclaims continuance of all the colonial laws under the notorious Article 372. Press and Registration of Books Act, 1867 is one such colonial act shamelessly continued by our black lords. I don't understand why publishers of newspapers have to give a declaration before any Magistrate and how a police officer can be appointed to be a Magistrate for newspapers. We have challenged these provisions by way of writ petitions in the High Court of Andhra Pradesh and hereunder we give judgment in one writ petition where the Judge accepting both contentions of ours on important points of law mixed with facts - user charges cannot be levied and Dy. Commissioner of Police cannot be Magistrate for newspapers - still rejected our petition on the flimsy ground of not affixing Rs. 1/- court fee stamp even though it was submitted to him that in view of press freedom (part of Art. 19) even that stamp was not warranted and when that plea was not the real bone of controversy at all! Of course an appeal by us is pending and we hope this mistake of court will be corrected by the division bench. Please read the Judgment now:

IN THE HIGH COURT OF JUDICATURE,
ANDHRA PRADESH AT HYDERABAD.
(Special Original Jurisdiction)
MONDAY, THE TWENTY FIFTH DAY OF APRIL
TWO THOUSAND AND FIVE
PRESENT
THE HON’BLE MR JUSTICE C.Y. SOMAYAJULU
WRIT PETITION NO: 22585 of 2004

Between:
I. BALAMANI, W/o I. Mallikarjuna Sharma,
H. No. 6-3-1243/156, D. Sanjeevaiah Nagar, M.S. Makta,
Opposite Raj Bhavan, HYDERABAD - 500 082. … PETITIONER.
A N D
1. The Concerned Magistrate for Newspapers -
presently, Mr. Ismail, Deputy Commissioner of Police,
Office of the Commissioner of Police,
Basheerbagh, HYDERABAD - 500 029.
2. The Registrar of Newspapers for India (RNI), Wing 2,
West Block 8, R.K. Puram, New Delhi - 110 066.
3. Government of Andhra Pradesh, rep. by its
Chief Secretary, A.P. Secretariat, Hyderabad - 500 022.
4. Ministry of Information and Public Relations,
Government of India, headed and represented by
Sri S. Jaipal Reddy, Union Cabinet Minister,
14, Akbar Road, NEW DELHI - 110 011. … RESPONDENTS.

* * *

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction, particularly a Writ in the nature of MANDAMUS, to declare that any imposition of user-charges by Respondents 1 and 3 as regards the process of verification of title and filing and receiving of declarations publishers and printers in connection with newspapers as also the appointment and continuance of top police officers by vesting them with executive magistracy as Magistrates for Newspapers is unconstitutional, illegal and ab intitio void, with a consequent direction for refund of all the user-charges collected so far in this connection to the respective payers/declarants; award costs of the Writ Petition to the Petitioner.
Counsel for the Petitioner: MR. I. MALLIKARJUNA SHARMA
Counsel for the Respondents: MR. A. RAJASHEKAR REDDY
(ASST. SOLICITOR GEN.)
The Court made the following:
THE HON’BLE SRI JUSTICE C.Y. SOMAYAJULU
WRIT PETITION No. 22585 of 2004.
ORDER:
This petition is filed to declare the imposition of user charges for processing the application submitted by the petitioner for registration of a magazine entitled ‘Law Animated World’ to be published by her as a newspaper is bad and also for a declaration that appointment of police officers, as Executive Magistrates for purposes of Press and Registration of Books Act, 1867 (the Act) is unconstitutional.
(2) The case, in brief, of the petitioner is that she, who is a housewife with post-graduate degree in commerce, is the proprietrix of ‘Ravi Sasi Enterpreneurs’ [sic - Enterprises] and is running the same with the assistance of her husband who is an advocate and is occasionally undertaking publication of socially useful books in English, and had with an intention to print and publish a fortnightly law journal, to report decisions of court and developments in law, with her husband as editor, brought out some trial issues of the magazine entitled ‘Law Animated World’ and submitted an application in the prescribed proforma on
16-08-2004 to the first respondent for verification of title and requested him to process the same expeditiously for filing the required declaration as per the Act and sent a letter to the Registrar of Newspapers for India (second respondent) enclosing a copy of the trial issue of the journal. Since first respondent did not forward her application to the second respondent, she did not get any response from the second respondent, even after expiry of two months and when she got enquiries made she was informed that payment of user charges of Rs. 2000/- is a condition precedent for forwarding her application to the second respondent for verification, as per G.O. Ms. No. 601 (Finance), dated 22-05-2002. Since there is nothing in the said G.O. to show that payment of user charges of Rs. 2000/- is necessary for verification of title for newspapers, first respondent cannot insist on payment of user charges for verification of title. Since appointment of police officers as Magistrates is frowned upon by Courts, the Deputy Commissioner of Police being designated as Executive Magistrate for verification of title of the petitioner, is improper. Hence, the petition.
(3) First respondent filed his counter-affidavit. The allegations, in brief, therein are on 16-08-2004 petitioner submitted an unstamped application seeking permission to publish a law reporter entitled ‘Law Animated World’ at Rs. 10/- per copy with a copy of the trial issue dated 15-08-2004 and with a request to forward the same to the second respondent for title clearance. In spite of the petitioner not affixing the requisite court fee stamp to her application, her application was sent to the Inspector of Police, Special Branch City, for verification of character and antecedents of the petitioner, to avoid delay. As per G.O. Ms. No. 601, Finance (BG) Department, dated 22-05-2002 read with Circular of the DGP I.D. No. 167-7-08/V6/2002 dated 06-05-2003, an application, for verification of character and antecedents of an employee of a Private Organization/Agencies or Non-Corporate Sectors, Rs. 2000/- towards user charges has to be deposited and so petitioner was asked to remit
Rs. 2,000/- towards user charges for verification of her character and antecedents for forwarding the application to second respondent. Petitioner without affixing Court fee of Rs. 2/- to her application and without paying the user charges, cannot seek title clearance, nor start a newspaper.
(4) No counter affidavit is filed by or on behalf of second respondent.
(5) The main contention of the learned counsel for the petitioner is that though all the provisions in the Act, which was enacted when this country was under British rule, were made to prevent publication of seditious newspapers etc., and though some of the provisions of the Act have the effect of curtailing the freedom of speech and expression, which is violative of freedom of the fundamental right envisaged in the constitution, since the petitioner is not interested in questioning the constitutional validity of the provision of the Act and is interested only in bringing out the magazine as early as possible, is questioning the action of the first respondent in demanding Rs. 2,000/- towards user charges, and since designation of a police official as ‘Magistrate’ under the Act is inconveniencing not on the petitioner, but several others also due to his non-availability in the office, as he is entrusted with several other duties; law and order problems etc., as whenever a representative of the petitioner went to the office of the first respondent for information, he was being informed that first respondent is not available and is busy on some other duties, instead of designating a police official as the Magistrate under the Act, regular judicial Magistrate may be designated as the Magistrate for the purpose of the Act since in V. MOHAN RANGA RAO V. STATE OF A.P. and S. BHARATH KUMAR V. THE CHIEF ELECTION COMMISSIONER OF INDIA , the notification, appointing police officers as Executive Magistrates were struck down by this Court and since ‘Police Magistrates’ contemplated by Section 1 of the Act are not in vogue after the advent of the Criminal Procedure Code, 1973 (Cr.P.C.).
(6) The contention of the learned Government Pleader is that by virtue of G.O. Ms. No. 170, Finance and Planning (FW:BG) Department, dated 23-04-2001 read with G.O. Ms. No. 601 (Finance), dated 22-05-2002, first respondent is collecting Rs. 2000/- as user charges for verification of character and antecedents and so the petitioner has to pay the user charges for verification of her character and antecedents for the first respondent to send his remarks to the second respondent, who is the competent authority to issue the license for starting a newspaper and in any event since the application of the petitioner is not duly stamped, it is not a valid application and se the petitioner is not entitled to any relief.
(7) Though the institution of police Magistrates became obsolete,
I am unable to agree with the contention of the learned counsel for the petitioner that ‘Magistrate’ under the Act can only be a Metropolitan Magistrate, but not an Executive Magistrate.
(8) As per Section 5(2) of the Act, a declaration has to be made by the printer and publisher before a District, Presidency or Sub-Divisional Magistrate i.e. District Magistrate or Presidency Magistrate or Sub-Divisional Magistrate. Since Hyderabad is not a Presidency Town, the Magistrate under the Act can only be a ‘District Magistrate’ or a ‘Sub-Divisional Magistrate’.
As per Section 20 Cr.P.C., State Government has the power to appoint as many persons as it thinks fit as Executive Magistrates in a District or Metropolitan area and shall have to appoint one of them as the District Magistrate. Section 20(5) of Cr.P.C. empowers the State Government to confer upon a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a Metropolitan area, under any law for the time being in force. So, from Section 20(5) Cr.P.C. it is clear that the Government can confer all or any of the powers of an Executive Magistrate, on a Commissioner of Police in a Metropolitan area.
(9) Section 5 of the Hyderabad City Police Act 1348 Fasli reads –
“the control and supervision of the aforesaid police force shall, subject to the orders of the Government, be vested in officer which shall the called the Commissioner of City Police, Hyderabad for the city of Hyderabad and who may from time to time be appointed and removed by the Government.”
Section 6 of the Hyderabad City Police Act 1348 F enables appointment of Deputy and Assistant Commissioners of Police in the city of Hyderabad. As per Section 6(2) of Hyderabad City Police Act 1348 F every Deputy Commissioner of Police shall, subject to the orders of the Commissioners of City Police, Hyderabad, be competent to exercise all powers or perform some of the duties which are required to be performed by the Commissioner of City Police, Hyderabad under this Act or any other enactment for the time being in force. Obviously on the basis of the above Section 6(2) of the Hyderabad City Police Act, 1348 F, first respondent is given the power to act as the ‘Magistrate’ under the Act. But such delegation is not a valid delegation because Section 20 (5) Cr.P.C. empowers the Government to confer the powers of an Executive Magistrate only on the ‘Commissioner of Police’ in any area and such power conferred on an officer cannot be delegated to his subordinate officer. Since there can only one Commissioner of Police for Hyderabad, it is the Commissioner of Police that can exercise any of the powers of the District Magistrate, if conferred on him.
(10) Learned Government Pleader did not produce any notification to show that Commissioner of Police, Hyderabad was conferred with any of the powers of a ‘District Magistrate’ by the Government. Similarly no notification authorizing [the] first respondent to perform the duties of a Magistrate under the Act is produced. As stated early [sic – earlier], even if such a notification was issued, the same is invalid because question of the Commissioner of Police delegating powers of an Executive Magistrate vested in him by the Government under Section 20 (5) Cr.P.C. cannot be delegated by him to any other officer. So, first respondent cannot act as ‘Magistrate’ for the purpose of Section 5 of the Act. It is only the Commissioner of Police, if he is vested with the power of ‘District Magistrate’, for the purpose of the Act by the Government, that can act as the ‘Magistrate’ under the Act. (emphasis ours)
(11) V. Mohana Ranga Rao’s case, relied upon by the learned counsel for the petitioner, relates to the Government appointing Superintendent of Police, Urban Police District as Special Executive Magistrate for the Vijayawada Urban Police District and conferring on him the power to deal with cases under Sections 107, 108, 110, 133, 143 to 145 Cr.P.C., by virtue of the power vested in it by Section 21 Cr.P.C. Keeping in view the fact that Central Act 63 of 1980 took out from the Judicial Magistrates, the powers under Sections 107 to 110 Cr.P.C., and conferred those powers on the Executive Magistrates, the Division Bench in the above case observed:
“In a given case the possibility of calling upon the poets of civil society, under Sections 107, 108 and 133 or suspects or habitual offenders in a proceeding under Section 109 and 110 of the Code to furnish excessive bond so as to see that the citizen (indigent) cannot make avail of the right to be free, cannot be ruled out and as a result he has to languish behind the bars losing his legitimate fundamental personal liberty affecting his reputation. Thereby, it not only sullies the stream of justice at its source but also chills the confidence of the general public and is detrimental to the rule of law, and erosion to the efficacy thereof. Therefore, a person having an interest in the outcome of the action shall not be made a Judge,”
and struck down the notification inasmuch as a prosecutor cannot be a Judge.
(12) In S. Bharat Kumar’s case (2 supra) notification confers power to deal with a case under Sections 107 and 110 Cr.P.C. by appointing some Superintendent and Deputy Superintendent of Police as Executive Magistrates for their exercising control over the sympathizers of the leftwing extremist groups, was struck down by this Court on the ground that it suffered from three vices i.e., doctrine of vagueness, usurpation of legislative functions and violation of Article 21 of the Constitution of India.
(13) The above two decisions have no application to the facts of this case, because the role of the ‘Magistrate’ under the Act is only to take a declaration and to verify the antecedents of a printer and the publisher of a magazine. It is well known that Judicial Magistrates do not have the necessary infrastructure or the personnel to make an enquiry into the antecedents of a printer and publisher. If Commissioner of Police is vested with the power of the District Magistrate for the purpose of the Act, such vestity can, by no stretch of imagination, be said to be placing him in the position of a judge and prosecutor, as under the Act the ‘Magistrate’ does not discharge any judicial functions. He only makes an enquiry into the antecedents of the printer and publisher and receives a declaration under Section 5 of the Act. So the Government can appoint the Commissioner of Police of Hyderabad as ‘District Magistrate’ for the purpose of the Act.
(14) Except G.O. Ms. No. 170, Finance and Planning (FW:BG) Department, dated 23-04-2001 and G.O. Ms. No. 601 (Finance), dated 22-05-2002, no other proceedings are produced before me to show that the police department can collect user charges. From a reading of the counter-affidavit of first respondent it is seen that as per Circular of the DGP, dated 06-05-2003 whenever a person applies for verification of character and antecedents of employees of a private organization or non-corporate sectors, a sum of Rs. 2000/- has to be remitted to the Government as charges for verification of their character and antecedents. A person who wants to establish a newspaper is not asking for the verification of antecedents of anybody, since he after giving information about himself states that he is establishing a newspaper. Since the Registrar has to know the antecedents of the printer and publisher, for him to grant or reject the application, police have to verify the antecedents of the printer and publisher. Thus police would be assisting the second respondent by reporting to him about the antecedents of the person who wants to start a newspaper. Had the petitioner sought for the antecedents of some person or an employee in her organization, it is a different matter; the police have to perform an extra duty of finding out of finding out the antecedents of an individual, for the benefit of a private person or organization, and so they can collect some charges for rendering services to the private persons or an organization but when they are discharging the duty on behalf of the second respondent, to enable him to come to conclusion whether or not to grant permission to start the newspaper, question of the petitioner being called upon to pay user charges does not and cannot arise, because it is a part of the duty of the police to inform the second respondent about the antecedents of the petitioner. So the contention of the petitioner that first respondent has no power or authority to collect user charges has to be accepted. (emphasis ours)
(15) Since the contention of the first respondent that petitioner did not affix Court fee is not denied or disputed by the petitioner by filing a reply affidavit, it is clear that she did not affix the requisite court fee to her application. As per Section 4 of the A.P. Court Fees and Suits Valuation Act, 1956, no document chargeable with fee under that Act cannot be acted upon. The application filed by the petitioner falls either under Article 10 (K) or Article 11 of Schedule II to that Act and so application has to be affixed with Court fee stamp of one Rupee. The learned Government Pleader is not able to show the provision under which a stamp of Rs. 2/- as stated in the counter affidavit of the first respondent has to be affixed to an application filed before a Magistrate.
Since the application of the petitioner is not stamped, in view of Section 4 of A.P. Court Fees and Suits Valuation Act, 1956, first respondent did not commit any error in not acting on such application.
(16) In these circumstances, holding the first respondent has no power to act as Magistrate under the Act, and that it is only the Commissioner of Police, if he is vested with such power under Section 20 Cr.P.C. or the Collector, Hyderabad District that can act as the ‘Magistrate’ under the provisions of the Act, and holding that collection of user charges for processing an application under the Act does not hae the sanction of any law for the time being in force, petitioner is given liberty to file a proper application before the District Magistrate, Hyderabad for processing her application under the Act. The writ petition is disposed of accordingly. No costs.
Sd/- P. EKAMBARAM
ASSISTANT REGISTRAR.
// TRUE COPY //
Sd/-
SECTION OFFICER.
To
1. The Concerned Magistrate for Newspapers - presently,
Mr. Ismail, Deputy Commissioner of Police, Office of the
Commissioner of Police, Basheerbagh, HYDERABAD - 500 029.
2. The Registrar of Newspapers for India (RNI), Wing 2,
West Block 8, R.K. Puram, New Delhi - 110 066.
3. The Chief Secretary, Government of Andhra Pradesh,
A.P. Secretariat, Hyderabad - 500 022.
4. The Ministry of Information and Public Relations,
Government of India, Head, Union Cabinet Minister,
14, Akbar Road, NEW DELHI - 110 011.
5. 2 C.D. copies.
6. One C.C. to Mr. I. Mallikarjuna Sharma, Advocate (OPUC)
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Editorial, 'FLYING COFFINS' in 15 September 2009, Vol. 5, Part 2, No. 17, issue of LAW ANIMATED WORLD

FLYING COFFINS

“We design, build, and support the most proven, most reliable, and best performing aircraft in the world” – is the boastful claim of the manufacturers of Bell 430 helicopters; but two of those crashed in the jungles of Dandaka and Nallamala in recent 3-4 months, the latter taking the lives of a popular chief minister and four others on board. And noting the famous saying: "there are lies, damned lies and statistics," of Mark Twain, and with due deference to him, it was also claimed that the Bell Jet Ranger has been ‘statistically proven to be the safest aircraft ever built!’, yet it was a Bell 206 Jet Ranger helicopter crash that took the life of former Speaker Balayogi in 2002. Because the dead in these crashes are high profile figures wide attention and publicity has been received but what about the innumerable MIG (military) and other aircraft crashes in which hundreds of precious lives of pilots and passengers were lost over the recent 2-3 decades? So much so that India is said to hold the world record for air crashes with the number far exceeding 500 by now. Why is it that we always go shopping abroad spending/wasting billions of dollars on such potential ‘flying coffins’ but not yet self-reliant to manufacture safer planes attuned to our geo-climatic conditions? And when shall our bureaucrats awaken to their minimum duties and do their jobs for which they are paid hefty salaries and perks with the minimum sincerity and honesty at least? How could a helicopter be allowed to fly in the first instance when all of us knew and were experiencing heavy rains and densely cloudy skies in the first week of September 2009 and once it took off how could it be left in the lurch without provision of crucial air traffic controlling. Criminal negligence of scores of culpable officials takes away five precious lives and in addition causes crores of public moneys wasted in search operations and nobody is booked till date and not a single head rolls – not a single responsible official dismissed, or himself graciously exited. Oh all this can happen only in India. When shall we be able to overcome all this rut?

Editorial, 'BE OPEN AND DO GOOD' in Law Animated World, 31 August 2009, Vol. 5: Part 2, No. 16 issue

BE OPEN AND DO GOOD

is basically what is required of, and what people in general desire from, our superior courts’ judges to fulfill their constitutional obligations. Though not elected, and not removable save by impeachment in parliament, these judges nevertheless are public servants and as such cannot escape public scrutiny of their conduct and situation. As Theodore Roosevelt (1858-1919) had rightly said: “The public servants – legislators, executives, and judges alike – must be in every fact the servants of the people. The people must have the right to make and unmake these public servants, in order to hold them strictly accountable for their stewardship. … the people must not sur¬render to the Judiciary, any more than to the executive or legislative branches of the government…” And Frankfurter J (1882-1965) said: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities.” As such the present controversy about disclosure of assets by Judges is quite regrettable and though it is set to some rest by the recent decision of our Supreme Court judges not only to disclose their assets but also ‘net’ify those declarations, still some problems remain as judges – even Mr. Justice Kannan, the first to publicly declare his assets – have reservations as to whether the information may not be used to harass them. He asks: “Should a judge be answering everyone how he has got the wealth that he has declared? Imagine a judge enquiring into allegations of disproportionate wealth case of a bureaucrat. …what if the litigant asks the judge, ‘how did you obtain your wealth, before asking me to explain my riches?’...” and wants some further curbs on action pursuant to such declarations. The answer is, that is a common problem for all public servants, and judges already have more secure constitutional safeguards. But I am certain Kannan J would also agree with us that even judges cannot be allowed to amass assets disproportionate to their legitimate incomes, and if they do so, then they must be accountable to and actionable by the people 

Jhoot ka Saamna!?, article by I. Sasi at p. 83 in Law Animated World, 15 August 2009 issue

Young Minds Abode:

JHOOT KA SAAMNA?

Recently two litigations were launched against the show "Sach Ka Saamna" (Confront Truth) being aired on Star Plus alleging it was destroying Indian moral and cultural values. I don't know about the values position but I think the show should be banned due to some basic reasons:
First of all, the credibility of the polygraph machine, upon which the whole show is based, is questionable. Here is an excerpt from Wikipedia:
Despite claims of 90-95% reliability, critics charge that rather than a "test", the method amounts to an inherently unstandardizable interrogation technique whose accuracy cannot be established. A 1997 survey of 421 psychologists estimated the test's average accuracy at about 61%, a little better than chance. Critics also argue that even given high estimates of the polygraph's accuracy a significant number of subjects (e.g. 10% given a 90% accuracy) will appear to be lying, and would unfairly suffer the consequences of "failing" the polygraph. In the 1998 Supreme Court case, United States v. Scheffer, the majority stated that "There is simply no consensus that polygraph evidence is reliable" and "Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion..." Also, in 2005 the 11th Circuit Court of Appeals stated: “Polygraphy did not enjoy general acceptance from the scientific community.” Charles Honts, a psychology professor, states that polygraph interrogations give a high rate of false positives on innocent people.
The polygraph test is used in interrogation to obtain clues/admissions from the suspects, not as a proof… The disclaimer says that the statements revealed by participants are not to be used by a third party, but it is as useless as a "Smoking is injurious to your health" sign on cigarette packets. In a program that reaches millions of people across India one cannot control transformation of … people's perception by just a disclaimer on the bottom. One should be more responsible.
Secondly, the questions asked in the show are quite ambiguous - such as "Did you ever think of murdering your wife?" What could be the answer? Yes, he might have thought so on an occasion when he was very angry with his wife, or might have thought of it jokingly. But with heartbeat sounds in the background and close-ups of astounded faces of wife, husband and relatives, the truth is exaggerated and miscarried to the audience. His relationship is about to fall for nothing. Questions like "Did you ever think this..." do not have a particular answer. He/she may have thought it in one pressure occasion or … may have not. The type of questions asked in actual interrogation usually involve certainties like "Did you ever take drugs?" With the type of questions asked here, the credibility of the Sach ka Samna polygraph test falls below 50%.
Let us suppose a sincere and honest minister is on the show and he is asked: "Did you ever think of swindling public moneys?" What could he truly reply? May be, he may have thought about it in some extreme situations previously or may have thought about it in a lighter vein. For him the answer is certainly ‘No’. But, if the polygraph test disproves that answer the minister’s current reputation in society is finished. He will be rattled in parliament and may be he will never get elected again. The point is you should not show any bloody thing on television with putting just a disclaimer on it just as you ought not to show a girl stripping nude in public even if that really happened.
Lastly the whole point of a game show is destroyed here, since the quiz master can easily gauge for which questions the participant says the truth and for which he hesitates. So he can more or less control the endurance of the participant in the show by choosing appropriate questions. Once the quiz master knows what the participant would most probably answer for the question asked, it is not a fair game any more.
Life is a complicated thing and for many questions, one can't answer in a simple yes or no. Compelling the participants to opt for such dichotomies destroys their reputation and character in public. So, the bottom-line is, one (Siddhaarth Basu in particular) should not go copying every English show without thinking whether it is right or wrong.
- I. SASI, II yr, B.Tech., IIT, Madras.

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