A judge needs to be aware of ground realities: Madras High Court judges on tradition of conducting local inspections

On January 22 this year, a Sunday, Justices MS Ramesh and Anand Venkatesh of the Madras High Court, who had been hearing a batch of appeals and cross-appeals in the 2015 Gokulraj murder case, visited the scene of the crime for a local inspection.

The judges, along with the lawyers from both sides, inspected the Arthanareeswarar Temple in Namakkal district, where the crime took place. In the hour and a half they spent there, the judges inspected all eight CCTV cameras, the entrances and exits, and inquired about the ways to reach the Temple. They also inspected the railway tracks where Gokulraj's decapitated body was found.

The purpose of such inspection, the judges said, was to study the topography of the area so that the evidence presented in the case could be well appreciated. 

"The biggest lacunae was that the topography sketch did not show where the CCTV cameras were. The prosecution had footage of them going inside the temple, so what about the footage of them coming out? While this might be a case getting much media attention, we knew we cannot write orders based on emotions. It can be done only on the basis of evidence. Therefore, we had to satisfy ourselves with respect to the link between the place of crime and the crime itself," Justice Venkatesh said.

However, this was not the first instance where judges from the Madras High Court have conducted site inspections before pronouncing orders in a case.

With a view to ensure that justice is seen to be done, judges of the High Court in the recent past have gone to the ground level to see things for themselves.

In April last year, Justices R Subramanian, N Sathish Kumar and GK Ilanthiraiyan inspected the tracks between Ettimadai on the outskirts of Tamil Nadu and Walayar in Kerala, where 24 elephants were killed in the last three and half decades and 11 in the past 14 years.

On February 26 this year, Justice GR Swaminathan visited Lalitha, a 60-year-old temple elephant. The Madurai Bench of the Madras High Court had decided on the custody and care for Lalitha in 2020. So, when a new petition was filed by an animal rights activist saying that Lalitha was in poor health and in need of urgent medical aid, Justice Swaminathan decided to accompany the activists to visit the elephant. After finding injuries and open sores on her body, the judge passed orders securing medical aid and care for the animal.

On March 5 this year, Justice SP Velmurugan visited the tribal hamlet of Vachati in Dharampuri district, Tamil Nadu to inspect the topography of the area before reserving his orders on a batch of appeals filed by forest officials and police personnel challenging their conviction in the case that dates back to 1992.

On March 23 this year, a special bench of Justices N Satish Kumar and D Bharatha Chakravarthy, which was hearing a batch of petitions on conservation of the Western Ghats, said that it would visit the Thadagam Valley in Coimbatore district to assess environmental damage caused in the area. 

On March 18 this year, Justice M Dhandapani inspected the Thiru Vi Ka Park in Chennai's Shenoy Nagar to take stock of the restoration work undertaken by the Chennai Metro Rail Limited (CMRL), which had constructed an underground metro station there.

Speaking to Bar & Bench, Justice Dhandapani said that in conducting the site inspection at the Shenoy Nagar park, the Court had invoked its extraordinary jurisdiction under Article 226 of the Indian Constitution. 

Article 226 gives High Courts the ability to issue instructions, orders, and writs to any person or authority, including the government.

"Article 226 gives wide powers to a court to ensure justice is rendered. As judges, we must pass orders strictly in accordance with the law but while doing so, one also needs to be aware of ground realities," Justice Dhandapani said.

The judge said that by visiting the park, he merely wanted to view the scale of damage done to the green cover to get a perspective on the evidence produced in court. He also said his intention was not to pull up the authorities. The site inspection was done in the presence of lawyers from both sides and CMRL officials. 

"We work with our heart and soul to render justice. After my initial order, 220 more trees were planted. If after my visit, a few more are planted by the horticulture department, then it will be a gain for everyone. We went there just to get a clear picture and not with the intention to pull up the authorities or ground anyone," Justice Dhandapani said. 

The judge also said it was the first time that he visited a site for inspection. 

The Bench of Justices Ramesh and Venkatesh that visited the Arthanareeswarar Temple was sitting in criminal appeal, and invoked the powers granted to a court under Section 310 of the Criminal Procedure Code (CrPC). 

Section 310 of the CrPC enables a judge or a magistrate to inspect a site of crime or any other relevant spot to appreciate the evidence in the case.

Such power, Justice Venkatesh said, is applicable to an appellate Court as well.

"While from the outside this (the site inspection) might appear as something sensational, this Court was merely following the law and exercising the powers granted to it as per the CrPC. We were sitting in criminal appeal and Section 310 CrPc gives the Court the power. This power applies to the Appellate Court as well because the proceedings before such court are a continuation of that before the lower court. The appellate court also has the power to call for additional evidence and that is also something what we did in this case," he added. 

He emphasised that in 2019, a Bench led by now retired Justice PN Prakash had also conducted a local inspection. In his judgement, he had noted that the Supreme Court had affirmed in 1957 an appellate court's jurisdiction to conduct such inspection as per Section 310 CrPC.

Justice Venkatesh also said that while this power exists in every matter, a court need not go for an inspection in all matters. He said it is not necessar, or binding upon a court to make a site inspection even if one or more parties in the case make such request.

"A judge must visit a site only in such matters, where visiting the spot, examining the topography of an area, will prove significant," he said.

Advocate Chevanan Mohan, who is the amicus curiae in the Shenoy Nagar Park case, was also present at the site inspection. He pointed out that several judges of the Madras High Court have conducted site inspections in the past as well.

"There is nothing wrong in it. It was always there, not so frequent though. It is just being reported more now. It is always in public and in the interest of justice. It is never adversarial.

In the past, whenever some temple related matters were being heard, judges would visit the site.  Justice Sathyanarayanan used to put in his personal experience because he was a resident of the area, when he was hearing the hawkers matter. So, the matter only benefitted from the judge's personal knowledge," he said. 

Mohan was referring to former judge, Justice M Sathyanarayanan, who had been hearing a batch of petitions to make the NSC Bose Road in Chennai, the street opposite to the Madras High Court building, a hawker-free zone.

Former Madras High Court judge, Justice KP Sivasubramaniam, who had written to Mohan about the damage done to the Shenoy Nagar Park's green cover, said that courts or judges have the power of personal inspection even under the Civil Procedure Code.

"In short, it is not illegal. The High Court exercising powers under Article 226 has no such limitations except to conform to fairness and principles of natural justice. The ultimate aim is to find and arrive at the truth first hand instead of delegating it to another person in a sensitive matter relating to pressure from political/money power these days," he said.

Justice Sivasubramaniam said that during his tenure as a judge, he only conducted inspections as part of his administrative duties and not for judicial matters. However, in the present case, a personal inspection was necessary, given the extent of damage the city's green cover had suffered, he said. 

"This is not a criminal case where the court cannot look into anything beyond the evidence before it. This is a public issue and in the interest of the general public/residents in the area and a matter which requires to be gone into whether a public body had obtained orders by deliberately misleading and misrepresentation to the court," he said.

Sometimes, such inspections by judges can mean the difference between life and death. In March 2019, while hearing a death penalty reference, a Bench of Justices PN Prakash and V Sivagnanam had visited the crime scene in Coimbatore district after the convict facing the death penalty claimed to be not guilty.

The man had been convicted and sentenced to death by the trial court for raping and killing a six-year-old girl. After raping and strangulating the victim to death, the man had kept the dead body hidden inside his grandmother's house. His counsel had argued before the High Court that the day the man had hid the girl's body inside the house, his grandmother had also died and a stream if visitors and mourners visited the house. Therefore, it was impossible that the man would have managed to keep the dead body hidden from the mourners, he had claimed in his defence.

The Bench said at the time that while the scientific evidence in the case remained unshaken and fully established the hypothesis of the man's guilt, a serious doubt had been raised in its mind after the above argument. So, it went to the site for a local inspection, drawing its power from Section 310 of the CrPC.

The judges had then spent around two hours at the scene of crime, tallying the sketches with the actual topography. The Bench then upheld the man's conviction but commuted his death sentence to life in prison, noting that the case did not fall under the 'rarest of the rare' category.