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Tuesday, October 10, 2017

Guidelines for exercise of power U/S 156 of CRPC

Guidelines for exercise of power U/S 156 of CRPC

It is thus well settled that the law neither prescribes any particular format for application under section 156 (3) Cr.P.C. nor contemplates verbatim reproduction of the factual allegations or all the ingredients of the alleged offence. Nevertheless, it is imperative that the application undersection 156 (3) Cr.P.C should contain facts disclosing cognizable offence and further that the police has failed to exercise powers under section 154 Cr.P.C despite intimation, whereupon the magistrate in exercise of powers conferred under Section 156(3) Cr.P.C. can order investigation of the crime.
It is thus well settled that the powers under section 156(3) of the Code cannot be exercised mechanically but are required to be exercised judiciously. The magistrate is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations, nonetheless, he has to arrive at a conclusion that the application discloses necessary ingredients of the offence for which investigation is intended to be ordered. Furthermore, the reasons for arriving at such conclusion should be clearly reflected in the order.

Bombay High Court
Pandharinath Narrayan Patil And ... vs The State Of Maharashtra And Anr on 30 March, 2015
Bench: Ranjit More
Citation;2016 CRLJ146 Bom

1. Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the petitioners, respondent no.2 and learned APP.
2. The petitioners herein have invoked the jurisdiction of this court under Article 226 of the Constitution of India and Section 482 of Cr.P.C. to quash the FIR No.22 of 2014 registered against them at Kharghar Police Station under Section 367, 467, 468, 195, 406, 506, 420 and 383of IPC.
3. The petitioner nos. 1, 2 and 3 are attached to Kharghar Police Station as Senior Police Inspector, Police Inspector, and Assistant Police Inspector respectively. Pursuant to the order dated 2.12.2014 passed by the learned Magistrate, 2nd Court, Panvel, on an application filed by the respondent no.2 purported to be under Section 156(3) of Cr.P.C., Crime No.22 of 2014 has been registered against the aforesaid petitioners for offences as stated above. The petitioners have stated pps 2 of 24 that the Magistrate has passed the impugned order on a copy of the letter addressed to various authorities, without there being any complaint filed before the court and without verifying the veracity or the credibility of the allegations. The petitioners have further stated that the application filed by the respondent no.2 contains vague allegations and does not disclose any cognizable offence.
4. The respondent no.2 has filed affidavit-in-reply as well as additional-
affidavit-in-reply, wherein he has reiterated the allegations made by him in the application purported to be under Section 156 (3) OF Cr.P.C.
The respondent no.2 has denied that the petitioners are public officers and has claimed that the petitioners have acted in contravention of the provisions of law and guidelines laid down by the Apex Court and the High Court and that they are involved in several crimes such a cheating, forgery, criminal intimidation etc.
5. Heard Mr. Ponda, learned Counsel for the petitioners and the respondent no.2 in person. Shri Ponda, learned Counsel for the petitioners has urged that the respondent no.2 had not filed any complaint or application under Section 156(3) before the Magistrate.
He had merely forwarded a copy of the complaint, addressed to the President of India and other Authorities and had called upon the Magistrate to treat the same as an application under Section 156(3) of pps 3 of 24 Cr.P.C. Learned Counsel Mr.Ponda has further submitted that the learned Magistrate has not verified the authenticity of the complaint and has ordered registration of the FIR without verifying whether the same discloses any cognizable offence. He has submitted that the impugned order reflects total non-application of mind.
6. Relying upon the judgment of the Apex Court in the case of Rizwan Ahmed Javed Shaikh vs. Jamal Patel (2001) 5 SCC 7, Learned Counsel for the petitioners has submitted that the petitioners are public servants and that the FIR ig registered against the petitioners relates to the acts committed by the petitioners while acting in the discharge of their official duties. Learned Counsel for the petitioners has submitted that in the light of judgment of the Apex Court in Anil Kumar vs. M.K.Aiyappa (2013) 10 SCC 705, the Magistrate could not have passed an order underSection 156(3) of Cr.P.C. without a valid sanction by the appropriate authority. He has also relied upon the judgments of the Apex Court in Matajog Dubey vs. H.C.Bhandari AIR 1956 SC 44, Nandram Agarwal vs. S.C.Bihari AIR (SC)-1956-054, Omprakash & Ors. Vs. State of Jharkhand (2012) 12 SCC 72, Sankaran Moitra vs. Sadha Das (2006) 4 SCC 584.
7. The respondent no.2, has urged that the petitioners are not public pps 4 of 24 servants and hence the bar under Section 197 is not applicable. In support of this contention, he has relied upon the decisions of the Apex Court in Fakhruzamma vs. State of Jharkhand [2013 (15) Scale 159], and Nagraj vs. State of Mysore AIR 1964 SC 269. He has further submitted that the petitioners had refused to record the complaint lodged by the mother of a rape victim and had further threatened her not to lodge a complaint. He has alleged that the complainant/mother of the rape victim was being questioned by male officers instead of a woman police officer as required under the proviso to Section 154(1) of the Code.
8. The respondent no.2 has further submitted that the petitioners had obtained the signature of Tarabai, the mother-in-law of the complainant, on a blank paper and on the basis which they fabricated a false complaint and implicated and arrested him in the said false case. The respondent no.2 claims that Tarabai does not know the contents of the said FIR and this is evident from her audio-recorded statement. The respondent no.2 has submitted that the petitioners have misused their powers, kidnapped and arrested him and his friend Prakash Bohra and had further failed to inform his family or friends about his arrest.
9. He has submitted that the petitioners had not submitted the FIR pps 5 of 24 before the Magistrate within the stipulated time and had altered the date of submission of FIR from 27.11.2014 to 24.11.2014. The respondent no.2 has submitted that the petitioners are involved in committing serious crimes. The acts committed by the petitioners were not in discharge of their official duty and as such, the bar of section 197 Cr.P.C. is not applicable. He has relied upon the following decisions: (1) Shambhunath Mishra vs. State of U.P. (1997)2 SCR-19-1139; (2)Ramanlal vs. State of Rajasthan 2001 Cri.L.J.
800; (3) Choudhury Parveen Sultana vs. State of West Bengal (2009) 3 SCC 398; (4) Pukhraj vs. State of Rajasthan AIR 1973 SC 2591; (5) Bhagwan Prasad Shrivastav vs. M.P.Mishra AIR 1970 SC 1661; (6) Prabhakar V Sinari vs. Shankar Anant Verlekar AIR 1969 SC 686; (7) State of Tamil Nadu vs. Thirukkural Perumal (1995) 2 SCC 449.
10. We have perused the records and considered the arguments advanced by the learned Counsel for the petitioner and the respondent no.2 in person.
11. At the outset, it is to be noted that Section 156(3) of the Code, which operates at pre-cognizance stage confers powers on Magistrate, who is empowered to take cognizance of offence under section 190, to order investigation into any cognizable case. In the case of Panchabhai pps 6 of 24 Popotbhai Bhutani & ors. vs State of Maharashtra [2010 ALL MR (Cri.) 244] the full bench of this court has held that " A Petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence.
Such petition would be maintainable before the Magistrate."
12. It is thus well settled that the law neither prescribes any particular format for application under section 156 (3) Cr.P.C. nor contemplates verbatim reproduction of the factual allegations or all the ingredients of the alleged offence. Nevertheless, it is imperative that the application undersection 156 (3) Cr.P.C should contain facts disclosing cognizable offence and further that the police has failed to exercise powers under section 154 Cr.P.C despite intimation, whereupon the magistrate in exercise of powers conferred under Section 156(3) Cr.P.C. can order investigation of the crime.
13. In the case of Anil Kumar Yadav (supra) the Apex court while examin-
ing whether the Magistrate exercising powers under Section 156(3) Cr.P.C., could act in a mechanical or casual manner, has held thus:
pps 7 of 24 "The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) orSection 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted."
14. In a more recent case of Priyanka Srivastava & anr vs. State of U.P (CRIMINAL APPEAL NO.781 OF 2012) the Apex Court after considering its previous pronouncements has held that :
"24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to re- main vigilant with regard to the allegations made and the na-
ture of allegations and not to issue directions without proper pps 8 of 24 application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.
25 ... ... ...
26. At this stage it is seemly to state that power under Sec- tion 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154of the code. A litigant at his own whim cannot in- voke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to in-
voke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, ef-
forts are to be made to scuttle and curb the same. In our con- sidered opinion, a stage has come in this country where Sec-
tion 156(3) Cr.P.C. applications are to be supported by an af- fidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appro-
priate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allega- tions. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibil- ity whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if some-
pps 9 of 24 body is determined to settle the scores. We have already indi- cated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the ap-
plication and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to ca- sually invoke the authority of the Magistrate underSection 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commer-
cial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
15. It is thus well settled that the powers under section 156(3) of the Code cannot be exercised mechanically but are required to be exercised judiciously. The magistrate is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the pps 10 of 24allegations, nonetheless, he has to arrive at a conclusion that the application discloses necessary ingredients of the offence for which investigation is intended to be ordered. Furthermore, the reasons for arriving at such conclusion should be clearly reflected in the order.
16. Reverting to the facts of the present case, it is not in dispute that the respondent no.2, who is an advocate, had not filed any complaint or an application under section 156 (3) Cr.P.C. He had addressed a complaint to the various authorities, viz. the President of India, Chief Justice of Supreme Court of India, Chief Justice of the Bombay High Court, the Human Right Commission, Mumbai, Chief Secretary, Maharashtra Government, Home Secretary, Maharashtra Government, Director General of Police, District Magistrate, Alibag and Chief Judicial Magistrate Panvel Court and Commissioner of Police, Navi Mumbai, attributing certain acts, alleged to be offences, to the petitioners. The respondent no.2 had forwarded a copy of the said complaint, which was on his letterhead, to the magistrate, with a hand written note as -
"Treat this application under Section 156(3) and give direction to register FIR against accused in the below sections, 367, 467, 468, 195, 504, 506, 420, 383. Since influential police persons are involved FIR may be registered at Crime Branch, Mumbai or Navi Mumbai, or as Hon'ble Court deems fit". Below the said note, names of the alleged pps 11 of 24 accused persons were given as "P.P.Patil, Darekar, Mr. Lokhande and 11 Ors."
17. A bare look at the copy of the application reveals that the respondent no.2, who is an advocate and is well versed with the legal provisions and procedure, has invoked the judicial process in a most casual manner. He had not filed any application before the Magistrate but had forwarded a copy of a complaint on his letterhead, addressed to several authorities and called upon the magistrate to act upon it. He had not produced prior application made by him under section 154(1) and 154 (3) of Cr.P.C. Though the respondent no. 2 had alleged that the petitioners had fabricated a false complaint against him and tampered with the date of submission of the FIR, he had not produced the copy of the said FIR or the documents which were allegedly tampered with. Suffice it to say that the mere fact that the application under section 156 (3) Cr.P.C does not require any specific format certainly does not justify such casual approach.
18. The next question that arises is whether the application purport-
ed to be under section 156 (3) Cr.P.C discloses any cognizable offence warranting registration of the First Information Report against the present petitioners, who are the police officers of the Kharghar Police station.
pps 12 of 24
19. The grievance of the petitioner as voiced in the said application was that on 23.11.2014, on receipt of information of rape of a three years old child, he had visited Kharghar Police Station. He claims that the mother of the rape victim who was at the police station with the victim was being threatened by the petitioner no.3 not to lodge a com-
plaint. He had informed the petitioner no.3 that it was the primary duty of the police to register the FIR and send the victim for medical examination. He claims that in total violation of the guideline of the Supreme Court and the High Court, the mother of the victim was being questioned by a male officer instead of only a lady officer and that he has recorded such questioning on his mobile phone. He subsequently made calls to his journalist friends to inform them about the incident and asked the officer to register a complaint against the petitioners herein. Since no action was taken, he mailed a complaint to the Commissioner of Police, but got no response.
20. The respondent no.2 has further alleged that thereafter the petitioner no.2 came rushing towards him and stated that such evidence would put all the officers in trouble and told him that he had been arrested. He has stated that in total misuse of power, the petitioners arrested and kidnapped him and his friend. He has alleged pps 13 of 24 that the petitioners had not informed him of his legal rights and had not informed his family or friends about his arrest.
21. The respondent no.2 has further stated that the petitioners had obtained the signature of Tarabai, the mother-in-law of the complainant on a blank paper, which was subsequently used by the police to fabricate a false complaint. Based on the said false and fabricated complaint crime No.346 of 2014 was registered against him and his friend. He claims that initially the crime was registered for offences under Section 353, 354, r/w. 34 of IPC however, at the time of remandsections 504 and 506 IPC were added. The respondent no.2 alleged that the mother-in-law of the complainant does not know the contents of the complaint and that he has audio as well as video proof of the same.
22. He has further stated that it was mandatory to forward the FIR to the court within 24 hours. Having failed to comply with this mandatory requirement, the police altered the date of submission of FIR from 27 th to 24th November 2014. He has alleged that he was kidnapped, arrested, and remanded to three days police custody. While he was in custody, he was kept in lock up along with criminals, murderers, and robbers. He was threatened to sign a statement accepting the charge pps 14 of 24 however, he had refused to sign the same and that this fact can be ascertained from the video recording of lockup room.
23. The respondent no.2 has stated that his phone was confiscated and he was beaten and threatened that he would be trapped and implicated in cases under the prevention of Atrocities Act. The respondent no.2 has expressed apprehension that the police may tamper with CCTV footage. He claimed that the petitioners are involved in committing forgery, kidnapping, threatening, tampering with evidence etc. Hence, by this letter the respondent had requested the concerned authorities to order an independent enquiry or a judicial enquiry as regards the incident that took place on 23.11.2014.
24. Based on the said allegations, the learned Magistrate has passed the order dated 2.12.2014, which reads as follows: "Perused the complaint. Heard the complainant in person. The complainant has alleged about the cognizable offence against the accused who are the Senior PI of Kharghar Police Station, PI Crime Branch etc. Hence, the copy of the complaint be sent to concerned police station through the concerned DCP for treating the same as FIR and the PSO of the concerned police station is directed to investigate the matter under 156 (3) of Criminal Procedure Code. However in the present matter, the complainant has alleged about the cognizable offences against the pps 15 of 24 concerned Senior P.I. of Kharghar Police Station, therefore the concerned D.C.P. is directed to investigate the matter either himself or through by deputing separate investigation officer or P.S.O. as per rule and submit the report accordingly. The Complainant is directed to produce copies of complainants' application dt. 2.12.2014 and documents on record within two days to send the same to the concerned police station through the concerned DCP."
25. Pursuant to the order passed under section 156 (3) Cr.P.C., FIR no. 22 of 2014 has been registered against the petitioners herein at Kharghar Police Station for offences under section 367, 467, 468, 195, 504, 506, 420 and 383 IPC.
26. A perusal of the order dated 2.12.2014 clearly reveals that the learned Magistrate has not made any endeavor to ascertain whether the application purported to be under section 156 (3)Cr.P.C. disclosed any cognizable offence. On the contrary, the order reveals that the learned Magistrate has ordered investigation only because "the complainant has alleged about the cognizable offence against the concerned PI of Kharghar Police Station." Suffice it to state that in exercising powers conferred under section 156 (3) Cr.P.C., the court cannot act as a post office and transmit every application for investigation. The legal mandate requires judicial application of mind pps 16 of 24 to ascertain whether the facts alleged disclose cognizable offence. In the instant case the order is bereft of any reasons and reflects total non-application of mind.
27. Be that as it may, the respondent no 2 had sought registration of FIR against the petitioners, on the allegations, which can be broadly stated as follows:
a. The Petitioner no.3 had refused to record the complaint lodged by the mother of the rape victim and had threatened her against lodging such complaint.
b. The complainant/ mother of the rape victim was being questioned by a male officer.
c. The petitioners had obtained signature of the mother-in-law of the complainant on a blank paper and fabricated a false case against him.
d. The petitioners had kidnapped and arrested him in a false case.
e. The petitioners had altered the date of submission of the FIR in the court.
f. That he was beaten and threatened while in police custody.
28. The factual matrix of the present case would reveal that, the petitioners are the police officers who were on duty at Kharghar police pps 17 of 24 station on 23.11.2014. The grievance of the respondent no.2, as voiced in the said application, pertains to the acts performed by the petitioners in discharge of their official duties. At this stage, it would be apt to note that Section 197(1) Cr.P.C. affords protection to Judges, Magistrates and Public servants not removable from office save by or with sanction of the Government. This section bars the court from taking cognizance of an offence alleged to have been committed by public servants in discharge of official duty or purported to be in discharge of official duty, except with the previous sanction of the appropriate government.
Explanation to Sub-Section (1) of Section 197, which has been inserted by 2013 amendment, removes the bar, when the public servant is accused of any offence under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A - Section 376C - Section 376D and Section 509 of IPC.
Sub-section 2 of Section 197 bars cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
pps 18 of 24 Whereas Sub-section 3 of section 197 provides that the State Govern-
ment may by notification direct that the provisions of sub-section 2 shall apply to such class or category of the members of the Forces charged with the maintenance of the public order as may be specified therein and upon such notification being issued, the provisions of Sub-
section (2) will apply as if for the expression 'Central Government' occurring therein, the expression 'State Government' were substituted.
Undisputedly, the Government of Maharashtra has issued notification dated 2.6.1979, which reads as: "Notification Home Department Mantralaya, Bombay - 400 032 No. CR.P.O./78/9845/POL-3. In exercise of the power conferred by sub-section (3) of section 197 of the Code of Criminal Procedure, 1973 (II of 1974), the Government of Maharashtra hereby directs that the provisions of sub- section (2) of that Section shall apply to the following categories of the members of the force in the State charged with the maintenance of public order wherever they may be serving, namely:-
(1) All police officers as defined in the Bombay Police Act, 1951 (Bom.
XXII of 1951), other than the Special or Additional Police Officers ap-
pointed under section 21 or 22 of that Act;
(2) All Reserve Police Officers as defined in Bombay State Reserve Po-
lice Force Act, 1951 (Bom. XXXVIII of 1951)."
pps 19 of 24
29. The question whether the bar under Section 197(3) Cr.P.C. is applicable to the members of Bombay Police Force was considered by the Apex Court in the case of Rizawan Ahmed v. Jamal Patel (supra).
The Apex Court after considering the said notification has held that the said notification applies to the members of Bombay Police Force. It is further held that once it is held that the members of Bombay Police Force are the persons to whom the notification under Section 197(3) of the Code applies, and if the act which is alleged to be an offence was done in discharge or purported discharge of the duty of the accused persons, they will be entitled to the protection extended by sub-section 2 of Section 197 of the Code.
30. In the instant case, the petitioners are undisputedly the members of Bombay Police Force. Hence, even though they do not fall in the category of public servants specified in sub section (1) of 197 Cr.P.C, by virtue of notification dated 2.6.1979 the petitioners are entitled for the benefit under sub section (3) of 197 Cr.P.C. Under the circumstances, the decision of the Apex Court in the case of Fakhruzamma vs. State of Jharkhand (supra) is distinguishable and is not applicable to the facts of the present case.
31. At this juncture, it may be mentioned that the crime registered against the petitioners does not include sections referred to in the pps 20 of 24 Explanation to Sub section (1) of 197 of the Code. The grievance voiced by the respondent no.2 in the application and the offences registered against the petitioners relate to the acts performed by the petitioners in the discharge of their official duty and are reasonably connected with their official duties and would therefore attract the bar of section 197 of the Code. The decisions relied upon by the respondent are therefore distinguishable and are not applicable to the facts of the case.
32. In the case of Anil Kumar, the Apex Court after considering the principles laid down by the Constitution Bench in the case of State of U.P. vs. Parasnath Singh (2009) 6 SCC 372 and in Subramanium Swami vs. Manmohan Singh (2012) 3 SCC 64, has held that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. The Apex Court has held that the Special Judge/Magistrate cannot refer the matter under section 156 (3) against a public servant without a valid sanction order. In the instant case undisputedly, there is no such sanction order hence, the learned Magistrate was not justified in issuing order under Section 156(3) of the Code.
33. Be that as it may, the respondent no. 2 had sought investigation against the petitioners mainly on the ground that they had implicated pps 21 of 24 and arrested him in a false and fabricated case. If the respondent no. 2 was in fact aggrieved by such action, his remedy was to challenge such proceedings/FIR by filing appropriate proceedings. Instead of resorting to the remedy available under the law, the respondent no. 2 has sought to register FIR against the petitioners for registering a FIR against him. The FIR registered against the respondent no.2 is still under investigation. Subjecting the police officers to unwarranted criminal prosecution for having registered a crime will certainly peril the fair investigation of the said crime. Moreover, allowing the aggrieved or disgruntled persons to hold the police machinery at ransom by unjustifiable vexatious persecution will affect the morale and effective functioning of the police machinery which in turn will have serious and far-reaching adverse impact on the interest of the society. A situation like this therefore demands more cautious and serious judicial scrutiny of all relevant materials and meticulous application of mind to the entire facts and circumstances of the case to ascertain whether facts disclosed constitute cognizable offence.
34. At this juncture it would be advantageous to refer to the decision in the case of Lalita Kumari vs. Govt. of U.P. (2014)2 SCC 1 wherein the Apex Court has emphasized the need to hold preliminary inquiry in certain cases, not to verify the veracity or otherwise of the information received but only to ascertain whether the information pps 22 of 24 reveals any cognizable offence. The Apex Court has given the following category of cases in which preliminary inquiry may be made:
                    (a)    Matrimonial disputes/family disputes

                                                       
                    (b)    Commercial offences

                    (c)    Medical negligence cases

                                                      
                    (d)    Corruption cases

                    (e)    Cases where there is abnormal delay/laches in initiating

criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
35. The Apex Court has held that the aforesaid categories are only illustrative and not exhaustive of all conditions which may warrant preliminary inquiry. The judgment of the Apex Court therefore makes it crystal clear that in appropriate cases the magistrate can order preliminary inquiry to ascertain whether the information reveals any cognizable offence. Thus, the endeavor of the magistrate should be to weed out frivolous and vexatious complaints and send only the deserving cases for investigation.
36.In the instant case, the magistrate has passed the order mechanically without referring the case for preliminary inquiry, without examining the facts of the case and the nature of the allegations and without pps 23 of 24 ascertaining whether the information revealed any cognizable offence.
Nevertheless, in our considered view, the allegations made in the application, even if taken at face value and accepted in its entirety; do not disclose ingredients of offences under sections 367, 467,468, 195, 406, 506, 420 and 383 of IPC. Under the circumstances and in view of the discussion supra, the order dated 2.12.2014 and the consequent FIR No.22 of 2014 registered against the petitioners at Kharghar Police Station under Section 367, 467, 468, 195, 406, 506, 420 and 383 of IPC deserves to be quashed. This however will not preclude the Respondent no.2 from making a representation, if he so desires, before the Superintendent of Police, in respect of the grievances raised by him in the application. If such representation is received, the Superintendent of Police shall consider the same and take appropriate decision thereon strictly on its own merits and in accordance with law.
This shall be done as expeditiously as possible.
37. In the result, Rule is made absolute in terms of prayer clauses (a) and
(b).

             (ANUJA PRABHUDESSAI, J.)                             (RANJIT MORE, J.)

Guidelines regarding registration of FIR

Guidelines regarding registration of FIR

As a sequel to the aforesaid discussion, the following directions are issued:
i A petition under Section 482, Cr.P.C. for a direction to register an FIR on the complaint of the petitioner circumventing the time table prescribed by the Supreme Court in Lalita Kumari-IV and V is not maintainable.

ii This Court directs all the Station House Officers in the State of Tamil Nadu and Union Territory of Puducherry to receive any complaint relating to the commission of cognizable offence by a common man and if the Station House Officer wants to conduct a preliminary enquiry, he shall immediately issue a CSR receipt (in case of Tamil Nadu) or issue a separate receipt (in case of Union Territory of Puducherry) to the complainant and after making the necessary entries in the Station General Diary, as directed by the Supreme Court in Lalita Kumari-IV and V, conduct preliminary enquiry.  In Lalita Kumari-IV, the Supreme Court has directed that after conducting preliminary enquiry, if the police come to the conclusion that no FIR need be registered, a duty is cast upon the police to furnish a copy of the closure report to the complainant.  After getting the closure report, it is open to the complainant to file a petition under Section 156(3) Cr.P.C. or private complaint under Section 190 read with Section 200 Cr.P.C. disclosing the facts and persuading the Magistrate to take cognizance of the offence.  Such a petition/private complaint should disclose the closure report of the police. After taking cognizance of the offence, the Magistrate can also order police investigation under Section 202, Cr.P.C. to a limited extent. The closure report cannot be subject to judicial review under Section 482, Cr.P.C.

iii If the Station House Officer refuses to receive the complaint, the complainant shall send the complaint together with a covering letter to the Superintendent of Police/Deputy Commissioner of Police by Registered Post with Acknowledgment Due under Section 154(3), Cr.P.C.

iv If there is inaction on the part of the Station House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.

v The complaint shall be given to the Magistrate either in Tamil or in English in the form of a representation in first person addressed directly to the Magistrate.

vi The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava.

vii On receipt of the complaint, the Magistrate shall  pass orders thereon within 15 days, either issuing directions or dismissing the petition.

viii If the Magistrate decides to order police investigation, he should pass a judicial order to that effect in the record sheet.

ix A copy of the order, together with original complaint and copy of the affidavit, shall be forwarded by the Magistrate to the jurisdictional police officer for investigation.

x If the police officer does not register FIR within a period of one week from the date of receipt of the Magistrate's order, the Magistrate shall initiate prosecution against him under Section 21 read with Section 44 of the District Police Act before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be. 

xi If no FIR is registered by the police within one week from the date of receipt of a copy of the order of the Magistrate under Section 156(3), Cr.P.C., the complainant can approach this Court under Section 482, Cr.P.C.

xii If the police fail to complete the preliminary enquiry within six weeks as mandated by the Supreme Court in Lalita Kumari-V, the complainant can approach this Court under Article 144 read with Section 482, Cr.P.C.

xiii The aforesaid petition under Article 144 read with Section 482, Cr.P.C. must be accompanied by an affidavit sworn to by the complainant with satisfactory materials to show that the police have not completed the preliminary enquiry within six weeks, as mandated by the Supreme Court in Lalita Kumari-V.  In such a petition, this Court will not read the complaint, but, issue directions to the police to register an FIR on the complaint for the very failure of the police to follow the mandates of Lalita Kumari-IV and V.  The Registry of this Court shall not number the petition filed under Section 482, Cr.P.C. seeking a direction to register an FIR unless it is accompanied by an affidavit containing the above details.

xiv In suitable cases, this Court shall also direct disciplinary action to be taken against the police officer for the violation of the mandates of Lalita Kumari - IV and V.

xv If the police officer fails to register the FIR pursuant to the directions of this Court, he will be liable for contempt of Court, besides facing disciplinary action.

xvi The aggrieved party can also approach the local Legal Services Authority and the Authority shall take immediate steps to ensure that an FIR is registered or CSR receipt issued to the complainant.

xvii Every police station shall have a board giving the name and telephone number of the local Legal Services Authority.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 27.09.2016
CORAM: THE HON'BLE MR. JUSTICE P.N. PRAKASH Crl.O.P. Nos.19197, 19198, 19343 and 19359 to 19363 of 2016

Sugesan Transport Pvt. Ltd.
vs.
Assistant Commissioner of Police

These Criminal Original Petitions are filed seeking a direction to the respondents to register the petitioners' complaints dated 17.08.2016.

2 Every Judge who is assigned the Section 482, Cr.P.C. portfolio has to perforce undergo an unenviable task of dealing with petitions praying for a direction to the police to register an FIR on the complaint that is said to have been given by the petitioners.  Each Judge would devise his or her own mechanism to deal with the spate of such petitions which will be in hundreds week after week.

3 When I assumed this portfolio, I too had to deal with these petitions and the method I evolved was to read the complaints, hear the counsel for the petitioners and the Additional Public Prosecutor and pass the following orders, depending upon the facts obtaining in each case:
i Direction is given to the respondent police to register the complaint, if cognizable offence is made out and take action in accordance with the law laid down by the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and Others-IV [(2014) 2 SCC 1] (for brevity Lalita Kumari-IV);

ii If the dispute essentially appears to be civil in nature or involves money transaction, the case is closed with liberty to the petitioner to work out his remedy in the manner known to law;

iii In the event there being a counter case, the petition is closed directing the respondent police to enquire into the main case and the counter case;

iv On the basis of the petitioner's complaint, if petition enquiry is conducted and closed, the petition is closed by handing over a copy of the closure report to the counsel for the petitioner across the Bar, with liberty to the petitioner to work out his remedy in the manner known to law;

v In case the petition is sent by post, the petition is closed by directing the petitioner to appear in person before the respondent police with a further direction to the respondent police to enquire into the complaint and take action thereon in accordance with law, if it discloses the commission of a cognizable offence or drop action, if found otherwise; and

vi If FIR has already been registered, the petition will be closed by recording the factum of registration of the FIR.

4 While things were passing thus, on 06.09.2016, the present petitions, viz., Crl.O.P. Nos.19197, 19198, 19343 and 19359 to 19363 of 2016 filed for a similar relief, came up before me for admission and Mr.Nithyaesh Natraj, learned counsel for the petitioners fairly submitted that a petition under Section 482, Cr.P.C. for such a direction is not maintainable, unless the petitioner has exhausted the alternative remedies available under Section 154(1), 154(3) and 156(3) Cr.P.C., in the light of the law laid down by the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh and others [(2008) 2 SCC 409] (for brevity Sakiri Vasu ).

5 In view of the aforesaid submission made by Mr. Nithyaesh Natraj, this Court passed the following order:
  2 A reading of the above judgment, clearly shows that a petition filed under 482 of Cr.P.C. for a direction to the respondent police to register an FIR is not maintainable, unless the party exhausts all the alternative remedies available under the Cr.P.C.  However, over a period of time, this Court has been entertaining such petitions, on account of which, this practice has come to stay and it requires a careful relook in the light of the judgment of the Supreme Court in Sakiri Vasu's case (supra) and in view of the huge number of cases that are being filed for this relief, thereby, much time of the Court gets expended in deciding these petitions. This Court does not immediately want to depart from this procedure without giving an opportunity to the Bar to place its views.

3 Under such circumstances, the Registry is directed to notify the following proposition in the cause list enabling the members of the Bar to address this Court on 12.09.2016.

In the light of the law laid down by the Supreme Court in Sakiri Vasu's case (supra), can a petition under Section 482 Cr.P.C. be maintained for a direction to the respondent-police to register an FIR on the complaint given by a party without the party first exhausting the alternative remedies available under the Code?

4 The Bar members are requested to make their submissions on this issue on 12.09.2016.

Post on 12.09.2016. 

6 In pursuance of the aforesaid order, on 12.09.2016, members of the Bar appeared in larger numbers and placed their submissions.  On the directions of Mr.R.Rajarathinam, learned State Public Prosecutor, senior police officers were present in the Court and they were accorded a seat at the aisle enabling them to make note of the submissions of the Bar so that they can issue appropriate instructions to their subordinate officers.

7 During the course of hearing, this Court framed three additional questions for the consideration of the members of the Bar.
Does this Court have the power to step into the shoes of the Station House Officer, read the complaint and give a direction as prayed for?

In the event of this Court dismissing the petition, will the petitioner still have the remedy to go under Section 154(1), 154(3) and 156 (3) Cr.P.C.?

In the event of this Court coming to a positive conclusion in favour of the petitioner and gives a direction to the police to register an FIR, can this Court entertain an application filed by the accused seeking quashment of the same FIR?

8 The arguments of learned Senior Counsel, viz.,  M/s.V.T.Gopalan, S. Ashok Kumar, Arvindh Pandian and Gomathinayagam, other learned counsel, viz., M/s.R.C.Paul Kanakaraj, K.Selvaraj, N.Vijayaraghavan, R.Sankarasubbu, V.Raghavachari, T.Mohan, Nalini, Sesubalan Rajan and M. Venkadeshan and Traffic Ramasamy Party-in-person, were in favour of retaining the present procedure.

9 Contra submissions were made by M/s.I.Subramaniam and A.Ramesh, learned  Senior Counsel and Mr. Anand Venkatesh and Mr.R.Neelakantan, learned counsel.  Mr. N. Jothi, advocate, filed written submissions after the case was reserved for orders.

10 The submissions of Mr.R.Rajarathinam, learned State Public Prosecutor were more like that of an Amicus Curiae.

11 This Court does not intend to repeat the submissions and judgments relied upon at the Bar individually and make this judgment prolix and verbose.  Instead, suffice it to crystallise the propositions propounded by them.  The propositions propounded by one section of the Bar for the continuance of the present procedure, are as under:

i When the common man goes to the police station, he is treated with disrespect unless he is influential and wealthy.  Police do not even touch the complaint with a barge pole.  For example, a complaint for loss of a vehicle is not accepted on the premise that the vehicle must have been seized by the Financier.  By the time, the police is convinced that the vehicle has been really lost and FIR registered, the Insurance Companies successfully repudiate the claim on the ground of delay in lodging the complaint, resulting in serious prejudice to an honest victim. This example is one of many such genuine grievances;

ii It is the police who exhort the complainant to go to the High Court and get some direction to deal with the complaint.

iii Why should the apple cart be disturbed now when everyone is happy with the stereotype orders that are routinely passed by this Court?

iv If it is held that only after exhaustion of alternative remedies, a petition under Section 482,Cr.P.C. seeking registration of FIR is maintainable, the practice of junior advocates will be adversely affected.

v Protection money has to be paid to Bar strongmen in the Magistrate Court if a counsel from another Bar were to go there for filing a petition under Section 156(3) Cr.P.C.

vi Magistrates do not pass orders under Section 156(3), Cr.P.C. immediately and keep the petition pending for months on end.

vii Even if an order under Section 156(3) is passed, the police pay scant respect to the order.

viii The mere fact that a very large number of such petitions are being filed can be no reason to shut the doors of the Court.

ix Having accepted the onerous responsibility of a Judgeship in the High Court, a Judge cannot abdicate his responsibilities and say that he or she will not look into the complaint and take a decision.

x The fact that more number of petitions are being filed, is, by itself, a proof to show that people have not lost faith in the judiciary.

xi If an FIR registered on the directions of the High Court u/s 482 Cr.P.C. is subsequently challenged by the accused by an application for quashing under Section 482, Cr.P.C., the Judge who had issued the earlier direction should recuse himself and post the quash petition before some other Judge.

xii The judgment of the Supreme Court in Sakiri Vasu has to be declared as per incuriam.

xiii Existence of alternative remedies is not a bar to the power of the Court to entertain such petitions filed under Section 482, Cr.P.C.

xiv The judgment of the Supreme Court in Sakiri Vasu has become irrelevant pursuant to Lalita Kumari-I to V.

xv The acceptance of the judgment of the Supreme Court in Sakiri Vasu is tantamount to changing the contours of Section 482, Cr.P.C.

xvi When a victim has a fundamental right under Article 21 of the Constitution of India for investigation of an offence committed against him, the Court cannot refuse to entertain his petition under Section 482, Cr.P.C.

xvii Section 154, Cr.P.C. is the only Section which speaks about the registration of an FIR and Section 156(3) deals with investigation of a case and therefore, it is not an alternative remedy to Section 154, ibid.

xviii This Court cannot define what is an ordinary case and what is an extraordinary case for the exercise of powers under Section 482, Cr.P.C.  The Registry cannot be permitted to decide this aspect.

xix Article 144 of the Constitution of India casts a duty on the High Court to act in aid of the Supreme Court.

xx In view of the judgment in King Emperor v.  Khwaja Nazir Ahmad, AIR 1945 PC 18 (for brevity Khwaja Nazir Ahmad ), the directions of the Supreme Court in Sakiri Vasu that the Magistrate can monitor the investigation, is not sustainable.

12 The submissions of the learned counsel of the opposite school of thought are as under:
i The Court cannot arrogate to itself, the power of the Station House Officer and take a decision one way or the other.

ii Section 482, Cr.P.C. can be pressed into service only when there are proceedings before an inferior Court and not in a vacuum.

iii The judgment of the Supreme Court in Sakiri Vasu has been reiterated recently in Sudhir Bhaskarrao Tambe v.Hemant Yashwant Dhage and others [(2016) 6 SCC 277] (for brevity Sudhir Bhaskarrao Tambe ) and therefore, this Court cannot declare Sakiri Vasu as per incuriam.

iv The power conferred under Section 482, Cr.P.C. is an extraordinary one and the same cannot be invoked when there are specific powers in the Code for dealing with a situation.

v The judgment of the Supreme Court in Sakiri Vasu has been affirmed by a Division Bench of this Court in R.Ramachandran v. The Principal Secretary to Government, Home Department, Secretariat, Chennai and 2 others [2011 SCC OnLine Mad 883] (for brevity Ramachandran ) and therefore, this Court cannot refuse to follow the judgment of the Supreme Court in Sakiri Vasu.

13 The submissions of Mr.R.Rajarathinam, learned State Public Prosecutor, in nutshell, are as under:
i Usage of the expression the commission in Section 154 Cr.P.C. has to be given its due emphasis while interpreting the scope of this provision; and

ii The State is ready to strengthen the police system and address the general grievance of the common man that police officers are not entertaining complaints whenever the same are handed over to the Station House Officer.

14 The judgments cited by various learned counsel will be dealt with during the course of the discussion hereafter.

15 It was brought to the notice of this Court that an earlier attempt was made by some Hon'ble Judges of this Court to streamline these petitions in the light of the judgment in Sakiri Vasu, but, for some reason or the other, the influx of such petitions remains unabated.

16 In G.Arokiya Marie v. The Superintendent of Police, Sub Inspector of Police and another [2008-1-LW (Crl.) 484] (for brevity Arokiya Marie ), M. Jeyapaul, J., considered the judgment in Sakiri Vasu and held as follows:

"15. In view of the above, it is held that if the complaint reflects commission of murder, dowry death, attempt to murder where the victim sustained grievous injury, robbery, dacoity, rape and attempt to rape and the Station House Officer refuses to register the complaint of such allegation, then the court will have to necessarily give a direction to the Station House Officer to register the case invoking the jurisdiction under section 482 of the Code of Criminal Procedure.
16. The aggrieved persons, who complain of the commission of other offences under the Indian Penal Code and the offences under the other Acts, shall resort to sections 154(3), 190 read with 156(3) and 200 of the Indian Penal Code as the case may be. The inherent jurisdiction shall not be invoked in those cases to redress their grievance, for, alternative remedy as detailed above is very much available."

17 Subsequently, in A.Sowfila v. The Commissioner of Police, Madurai City, The Deputy Commissioner of Police, (Law and Order), Commissioner Office Chamber, Madurai and another [2008-2-LW (Crl.) 843] (for brevity Sowfila ), K.N.Basha,J., diluted the classification of offence propounded by M.Jeyapaul, J., as follows:

"55. I respectfully agree with the view of my learned Brother Judge.  In the said order, the learned Brother Judge has classified certain offences which would require immediate inspection of the scene of crime, recovery of material objects and collection of other potential evidence in heinous crimes may be highly warranted such as the commission of the offences of murder, dowry death, attempt to murder wherein the victim sustained grievous injuries, robbery, dacoity, rape and attempt to rape.  I am of the considered view that the above categorization and classification of offences are only illustrative and not exhaustive and this Court can very well exercise the power under Section 482 Cr.P.C. in order to secure to ends of justice in respect of other serious and complicated offences depending upon the facts and circumstances of each case and this Court cannot stipulate hard and fast rule by classifying certain offences.  There is no frequent grievances in respect of the petitions filed under Section 482 for the serious offence of murder, dowry death, attempt to murder, robbery, dacoity, rape and attempt to rape and only certain exceptional cases police have not taken immediate action.  Therefore, this Court cannot brush aside the undisputed fact that even in certain other offences, namely, abetment to commit suicide, forgery, cheating involving land grabbing and other offences of cheating involving huge amounts, misappropriation, kidnapping for ransom and kidnapping minor girls, etc., the police investigation is just and essential to fix and arrest the culprits and thereafter, to recover the articles and to collect the other evidence to prove the case before the Court of law, otherwise it would result in grave miscarriage of justice to the defacto complainants."

18 In the aforesaid judgment, K.N. Basha, J., allowed one batch of petitions directing the police to register FIRs and dismissed another batch of petitions, with liberty to the petitioners to resort to alternative remedies, as held by the Supreme Court in Sakiri Vasu.

19 In Kathiravan v. State rep. by the Commissioner of Police and the Inspector of Police [MANU/TN/2791/2009], P.R. Shivakumar, J., placing reliance upon the judgments in Sakiri Vasu, Arokiya Marie and Sowfila, held as follows:

"26. The offences listed in Arokiya Marie's case as heinous crimes regarding which a direction can be issued under Section 482 Cr.P.C to register a case in order to ensure that the evidence of such crime do not get erased by passage of time can be supplemented by other offences of grave nature and the offences exclusively triable by the court of sessions. In such cases also the High Court under Section 482 Cr.P.C shall exercise its discretion under Section 482 Cr.P.C to issue a direction for registration of a case. In other cases, the High Court shall not issue a positive direction to register cases.

29. In view of the foregoing discussions, it is ordered as follows:-
i ......
ii ......
iii The Station House Officer in each one of the following cases is directed to either to register a case, if he comes to the conclusion that a cognizable case has been made out by the contents of the complaint or to refer the informant to the Magistrate as per Section 155(1) Cr.P.C, if the complaint discloses commission of non-cognizable offence/non-cognizable offences alone and in case the Station House Officer comes to the conclusion that no offence has been made out either cognizable or non-cognizable, he can close the complaint and inform the informant of the fact of such closure.
....... .......

The above said direction shall be complied with within two weeks from the date of receipt of a copy of this order. The learned Government Advocate (Crl.Side) representing the respondents shall be provided with a copy of this order, who in turn, will communicate the same to all the respondents herein."

20 In the three cases referred to above, the learned Single Judges appear to have gone into the complaints individually and passed orders.  It may be relevant to state here that the aforesaid judgments were delivered prior to the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari-IV.

21 Before delving deep into the legal issues, some of the peripheral submissions are worth addressing.

22 It is an incontrovertible fact that some policemen still work with a colonial and fiercely feudalistic mindset. That is why, even after 69 years of independence, we are forced to retain Section 162, Cr.P.C. and Section 25 of the Evidence Act.  One can proclaim without fear of contradiction that the common Indian is an embodiment of simplicity, self-contentment and peace. The intriguing aspect  is, when he chooses to adorn the khaki uniform, how and why does he change his colour?   Perhaps, the  system that he enters into is the reason for this metamorphosis. The directions I propose to issue may help in marginally mitigating the travails of the common man.

23 I am in complete agreement with the submission at the Bar that a person who has come forward to accept Judgeship cannot be overawed at the size of his cause list and device specious ways and means to cut short litigations.  However, I am unable to persuade myself to agree with the  submission that mere filing of large number of such cases itself is indicative of people's faith in the judiciary.  This argument is normally touted by members of the Indian judiciary in law seminars, un-supported by any empirical data and is merely a subjective self-proclamation. On the contrary, the following sagely words of the Supreme Court in Subrata Roy Sahara vs. Union of India and Others [(2014) 8 SCC 470) would speak volumes about the actual state of affairs in this country.
  191. The Indian  judicial  system  is  grossly  afflicted,  with  frivolous litigations.  Ways and means need to be  evolved,  to  deter  litigants  from their compulsive obsession, towards  senseless  and  ill-considered  claims. One needs to keep in mind, that in the process of litigation,  there  is  an innocent sufferer on the other side, of every  irresponsible  and  senseless claim.   He  suffers  long  drawn  anxious  periods   of   nervousness   and restlessness, whilst the litigation is pending, without  any  fault  on  his part.

24 It is only the people who know the intricate working of the Indian judicial system, exploit it to their advantage and leave the poor and the needy to fend for themselves outside of the system.  An attempt by the noted jurist Fali Nariman by introducing a Private Member's Bill titled The Judicial Statistics Bill, 2004, in the Rajya Sabha for gathering real judicial statistics hit a cul-de-sac. Therefore, without any empirical data these appeals to rhetoric can lead us only to self deception.

25 The contention that junior lawyers will starve if such petitions are not entertained, is best answered in the words of V.R.Krishna Iyer, J. in his article Indian Justice Perspectives and Problems .
"I shall now address myself to the reforms that the legal profession urgently needs, although Bench reform without Bar reform may baulk Justice process reform.  The lawyer is the potential judge and the Bench is pathologically sensitive to the Bar lobby.  Moreover, although the court chariot is steered by the 'robed' brethren, the lawyers collectively do back-seating driving.  Never-the-less, I must leave the lawyer well alone here and reserve my 'submissions' to them to a later occasion.  Some day, Lawyer Power must strengthen People's power.  That will be their finest hour."

Should we continue to permit the lawyers' lobby to do the backseat driving?

26 Though Judges and lawyers are two sides of a coin, yet, they are not members of a secret cartel established to foster each other's pecuniary interests.  We must remember that the entire judicial system is for the benefit of the common man.  A young junior, in the initial years of his practice, may make immediate monetary gains, without much effort, by filing petitions under Section 482 and getting orders directing registration of FIRs.  However, in the long run, when he is ousted by freshers, he is sure to be in the wilderness.  Therefore, in their own interests, young juniors must be trained to begin their practice at the Magisterial level for providing succor to the common man who is exposed to the lowest tier of the judiciary and then graduate upwards slowly and steadily by gaining experience, which is a hard, but the best teacher. When raw and young turks with moral conviction start besieging the Magistrate Courts, the protection-money syndicate that is said to operate there will vanish.  If this obnoxious practice of Bar members demanding protection money from their brethren is not nipped in the bud at the Magistrate Court level, sooner or later, the cancer will spread to the Sessions Court and eventually to the High Court as well. This issue, if really is existing, has to be sorted out by the right thinking members of the Bar through the Bar Council which is by the lawyers; for the lawyers; and of the lawyers .  The Judges cannot fit anywhere into this scheme of things. When a lawyer makes a complaint to a Magistrate in writing that protection money is being demanded, he should send this complaint with his covering letter to the Bar Council for disciplinary action.

27 The time has now come for the members of the Bar to address these vital issues which are threatening their very survival.  This Court will be doing the greatest injustice by pampering junior lawyers instead of providing a level playing field for them in the Trial Courts to display their forensic abilities and increase their erudition. 

28 Why should the apple cart be disturbed now when everyone is happy, was one of the refrains.  Passing stereotype orders, as aforecited, may keep everyone, including me, happy, for, in the farewell address of the Advocate General, he will recount the total number of cases disposed by me and these disposals will hugely add to the numbers.  But, is this quality justice?  By my acquiescence, am I not playing a fraud on the system?  In numerous FIRs, the police candidly write that the case has been registered on the directions of the High Court by even quoting the number of the Criminal Original Petition.  If the actual order passed by this Court is read, in most cases, this Court would have only directed the police to register a case if a cognizable offence is made out.  This is misconstrued by the police as a positive direction by the Court to register an FIR.  This clearly demonstrates that the police need some order from the High Court to conveniently hide underneath.  Can we reduce the solemnity of judicial orders to pander to the needs of the police?

29 Now, coming to the arguments on law, it is quite interesting to note that the directions in Sakiri Vasu had their genesis in a Division Bench judgment of this Court in Venu Srinivasan vs. Krishnamachari, Secy., Divya Desa Parambariya Paadhukaappu Peravai, Trichy-6 and others  [2005 (2) MWN (Cr.) 35 (DB)] (Markandey Katju, C.J. and F.M. Ibrahim Kalifulla, J.). The relevant paragraphs of the said judgment read as under:
  8. We are at this stage not going into the merits of the controversy as we are of the opinion that the writ petition itself should have been dismissed on the ground of alternative remedy.

9. In our opinion, whenever it is alleged that a criminal offence has been committed, the complainant should ordinarily first avail of his remedy of filing an F.I.R. in the police station under Section 154(1) of the Cr.P.C.

10. Under that provision information relating to the commission of cognizable offence can be given to an officer in charge of the police station. Section 154(3) of the Cr.P.C. states that if an officer in charge of the police station refuses to record the information referred to in sub section (1) of Section 154 of the Cr.P.C. the complainant can send the substance of the information in writing by post to the Superintendent of Police concerned. Thus, if the Station House Officer of a police station refuses to register an FIR, the complainant has an alternative remedy of approaching the Superintendent of Police under Section 154(3) of the Cr.P.C.

11. If the Station House Officer as well as the Superintendent of Police refuse to register the FIR, or having registered it do not hold a proper investigation, the complainant then has a second alternative remedy by filing an application under Section 156(3) of the Cr.P.C. before the Magistrate concerned. On such complaint the Magistrate can direct registration of the FIR and/or proper investigation into the alleged offence, and he can also monitor the investigation, vide Devarapalli. V. Vs. Narayana, AIR 1976 SC 1672:Madu Bala Vs.Suresh Kumar, AIR 1997 SC 3104, etc.
12. Apart from that, the complainant has a 3rd alternative remedy by way of filing a private complaint under Section 200 Cr.P.C.
13. Thus, there are three clear alternative remedies available to the complainant, if he alleges that a crime has been committed, and hence it is not proper for this Court to straightaway entertain a writ petition without insisting that the complainant first avails of those alternative remedies.

30 The judgment in Sakiri Vasu was rendered by Markandey Katju,J. (for himself and A.K. Mathur, J.) and the relevant portion of the  judgment reads as follows:

  24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."

31 Sakiri Vasu is not a stand alone order. In Sudhir Bhaskarrao Tambe which was decided on 12.04.2010, but, reported in (2016) 6 SCC 277, the Supreme Court has reiterated the law laid down in Sakiri Vasu.  The judgment of the Supreme Court in Sudhir Bhaskarrao Tambe came up for consideration once again before the Supreme Court in Hemant Yashwant Dhage vs. State of Maharashtra and Others [(2016) 6 SCC 273], in which, there is a reference to the Sakiri Vasu decision. The relevant portion from Sudhir Bhaskarrao Tambe reads as under:
"2. This Court has held in Sakiri Vasu v. State of UP (2008) 2 SCC 409 that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation."
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156 (3)CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."
32 Furthermore, a Division Bench of this Court, in Ramachandran (supra), has implicitly followed Sakiri Vasu and has held as under:
"10. In such circumstances, the learned Single Judge rightly refused to entertain the writ petition and held that the appellant has not made out any case for grant of any damages on the ground of public tort. The learned Single Judge by placing reliance on the decision of the Hon'ble Supreme Court in Sakiri Vasu vs. State of U.P. [(2008) 2 SCC 409], declined to direct the CBI to investigate into the matter. As observed by the Hon'ble Supreme Court in the said decision, if a person has a grievance that his F.I.R has not been registered by the Police, first remedy is to invoke Section 154(3) CrPC and if despite approaching the Superintendent of Police under the said provision, he still has a grievance that he can approach a Magistrate under Section 156(3)CrPC. The person so aggrieved has a further remedy of filing a criminal complaint under Section 200 CrPC. In such circumstances, the Hon'ble Supreme Court held that writ petitions or petitions under Section 482 CrPC should not be entertained."

33 Long before the judgment in Sakiri Vasu, in All India Institute of Medical Sciences Employees' Union (Regd.) through its President vs. Union of India and others, [(1996) 11 SCC 582], (for brevity AIIMS Employees Union ), the Supreme Court has held as follows:
  4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complain/ evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused.
5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for.

34 In Gangadhar Janardan Mhatre vs. State of Maharashtra and Others [(2004) 7 SCC 768] and Hari Singh vs. The State of U.P. [(2006) 5 SCC 733], the Supreme Court reiterated the law laid down in AIIMS Employees' Union.

35 In Aleque Padamsee and Others vs. Union of India and Others [(2007) 6 SCC 171], a 3 Judge Bench of the Supreme Court, has categorically held as under:

  8. The writ petitions are finally disposed of with the following directions:

(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.
(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

36 In Divine Retreat Centre vs. State of Kerala and Others, [(2008) 3 SCC 542], the Supreme Court held as under:
  42 Even in cases where no action is taken by the police on the information given to them, the informant's remedy lies under Sections 190, 200 Cr.P.C. but a writ petition in such a case is not to be entertained.

37 Heavy reliance was placed upon a recent judgment dated 05.09.2016 of the Supreme Court in Prabhu Chawla vs. State of Rajasthan and another [2016 SCC OnLine SC 905]. In the said judgment, a special Bench of 3 Judges was constituted to reconcile the law propounded in Dhariwal Tobacco Products Ltd. vs. State of Maharashtra and another [(2009) 2 SCC 370] and Mohit alias Sonu and another vs. State of Uttar Pradesh and another [(2013) 7SCC 789].  The Special Bench relied upon the judgment in Madhu Limaye vs. State of Maharashtra [(1977) 4 SCC 551] and held that even though a remedy under Section 397, Cr.P.C. exists, yet, the inherent power of the High Court under Section 482, Cr.P.C. will not stand eclipsed.  On the strength of this recent ruling, learned counsel contended that the existence of alternative remedies under Section 154(1), 154(3) and 156(3), Cr.P.C. will not, in any way, abridge the power of this Court under Section 482, Cr.P.C.

38 This Court gave its anxious consideration to the aforesaid submission.  It is pertinent to point out that Prabhu Chawla relates to exercise of power under Section 482, Cr.P.C. in matters governed by revisional jurisdiction of the High Court/Sessions Court. The issue in Prabhu Chawla is not relatable to the remedy available to a person if the police fail to register an FIR.  In a catena of judgments of the Supreme Court right from AIIMS Employees' Union upto Hemant Yashwant Dhage, the categorical view of the Court is that if the police fail to register an FIR, the complainant should take recourse to Sections 154(3) or 156(3) or 190, Cr.P.C. read with Section 200, ibid.  These judgments of the Supreme Court squarely cover the issue at hand and therefore, this Court cannot afford to ignore these line of judgments and take cover under Prabhu Chawla for entertaining a petition under Section 482, Cr.P.C., notwithstanding the existence of remedies under Sections 154(3), 156(3), 190 and 200 Cr.P.C.

39 Under Section 397, Cr.P.C., the High Court has been conferred with revisional powers to call for the records of any proceedings before any inferior Criminal Court and test the correctness, legality or propriety of such an order or proceeding. The inherent power under Section 482, Cr.P.C. can be invoked in matters that are covered by Section 397, ibid. But, can Section 482, for instance, be invoked when a matter is covered by a  specific mention?  The answer to this question is an emphatic no .  Where specific provisions exist under the Code to deal with a given situation, the invocation of Section 482, is clearly barred. This has been vividly explained by the Privy Council in Lala Jairam Das and others vs. The King Emperor [1945 MWN (Cr.) 62], where, the issue before the Privy Council was whether the High Court can grant bail by exercise of its inherent power to a person whose conviction has been confirmed by the High Court and leave has been granted to move the Privy Council, pending decision of the Board. In that context, the Privy Council held that inherent power cannot be  exercised to grant bail, however, desirable it may be. The following passages from the said judgment are instructive and will dispel the doubts in this regard.
  Section 561 A of the Code confers no powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.

. . .  Finally their Lordships take the view that Chapter XXXIX of the Code together with S.426 is, and was intended to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any inherent additional power in a High Court relating to the subject of bail. They find themselves in agreement with the views expressed by Richardson J., Henderson J. and Bose J. in the three cases referred to earlier in this judgment.

. . . . Their Lordships fully appreciate the propriety and utility of such a power, exercisable by judges acquainted with the relevant facts of each case, and (if exercised) with power to order that the bail period be excluded from the term of any sentence.  But in their Lordships' opinion this desirable object can only be achieved by legislation. (emphasis supplied)

40 Reliance was placed on the judgment of the Supreme Court in Ramesh Kumari vs. State (NCT of Delhi and Others) [AIR 2006 SC 1322], wherein, the Supreme Court has held that the High Court should not have dismissed the petition for a direction to the police to register an FIR on the ground of non-exhaustion of alternative remedy.  On a careful reading of the said judgment, it is seen that in a civil litigation, the High Court had granted interim stay protecting the possession of the complainant, despite which, the complainant was dispossessed by the accused.  The complainant lodged two complaints to the police, but, to no avail.  Aggrieved by the inaction, the complainant approached the High Court in writ proceedings for a direction to the police to register an FIR which was dismissed by the High Court on the ground of non-exhaustion of alternative remedy without even indicating what was the alternative remedy available to the appellant.  Only in those circumstances, the Supreme Court had to interfere with the order of the High Court and in that context, the Supreme Court held that the High Court should not have dismissed the writ petition on the ground of non-exhaustion of alternative remedy.

41 In the issue at hand, primary remedies, viz., Section 154(3), 156(3) and 190 read with Section 200, Cr.P.C. are available in the statute and they have been reiterated by the Supreme Court in Sakiri Vasu line of cases. Therefore, a solitary judgment on the peculiar facts of a case cannot be pressed into service to dislodge the law laid down by the Supreme Court in Sakiri Vasu line of cases.

42 It was brought to the notice of this Court that Madhya Pradesh High Court, Punjab and Haryana High Court, Gujarat High Court, Delhi High Court, Karnataka High Court, Kerala High Court and Jharkhand High Court implicitly follow Sakiri Vasu and do not issue directions to register FIRs.

43 It is the prerogative of the Bar to submit that this Court should declare Sakiri Vasu as per incuriam and should, instead, follow Prabhu Chawla. Article 141 of the Constitution of India does not inhibit such arguments, but, clearly prohibits this Court from deviating from the law laid down by the Supreme Court. Any such deviation by this Court would not only amount to judicial overreach, but is also tantamount to judicial arrogance.

44 Relying upon the judgment of the Privy Council in Khwaja Nazir Ahmad, an argument was advanced at the Bar that Magistrates have no power to monitor the investigation as that would be an encroachment by the judiciary into the domain of the executive and therefore, this Court should not take note of the judgment of the Supreme Court in Sakiri Vasu.

45 It is true that in India, judiciary and the police work complementary to each other and not at cross-purposes.   Monitoring does not mean supervision .  Under Section 172 Cr.P.C., the Magistrate has the power to call for the case diary and peruse the same.   Monitoring simply means perusing the case diary and asking the Investigating Officer as to why he did not do this, that or the other and not directing him to do this, that and the other.  In this regard, it will be in the fitness of things to point out that, in Hemant Yashwant Dhage, the Supreme Court has gone one step further and has approved the action of the Pune Magistrate in issuing certain directions to ensure that the investigation is on the right lines.  To that extent, the Supreme Court has extended the powers of the Magistracy.

46 The Lalita Kumari conundrum began in 2008 and ultimately, ended in 2014. The chronology is as follows:
Lalita Kumari I (2008) 7 SCC 164
Lalita Kumari II (2008) 14 SCC 337
Laiita Kumari III (2012) 4 SCC 1
Lalita Kumari IV (2014) 2 SCC 1
Lalita Kumari

PRESENTING 25 IMPORTANT JUDGMENTS ON CONSTITUTION OF INDIA

PRESENTING 25 IMPORTANT JUDGMENTS ON CONSTITUTION OF INDIA

1.Keshwanand Bharati v. State of Kerala :Preamble is part of the Constitution of India

2.S.R. Bommai v.UOI: Secularism basic feature of the Constitution of India

3.Keshwanand Bharati v. State of Kerala:The word ‘Law’ in Article 13 does not include Amendment

4.Vishakha v. State of Rajasthan:SC guidelines on sexual harassment against working women

5.Murli Deora v. UOI:Ban on smoking in public places

6.Indira Sawhney v. UOI (Mandal Commission Case):Article 16(4) of the Constitution of India and criteria for reservation in Government Jobs

7.Sarla Mudgal v. UOI:Article 44 of the Constitution of India

8.Hussainara Khatoon v. State of Bihar:Right to Speedy Trial a FR under Article 21

9.Maneka Gandhi v. UOI:Article 21(Law should be just,fair and reasonable and not arbitrary,oppressive and fanciful)

10.Satwant Singh Sawhney v. UOI:Right to travel abroad declared as FR u/A 21 of the Constitution of India

11.Golaknath v. State of Punjab:Doctrine of Prospective Over-ruling

12.National Legal Services Authority(NALSA) v.UOI:Trans-sexuals as Third Gender

13.Suresh Kumar Kaushal v. Naz Foundation:Section 377 is Constitutional

14.Supreme Court Advocate-on-Record Association and Others v. UOI:99th Amendment Act unconstitutional

15.Shreya Singhal v. UOI:Section 66-A of the Information Technology Act declared as unconstitutional

16.Pradeep Kumar Biswas v. Indian Institute of Chemical Biology:CSIR is instrumentality of the State

17.State of West Bengal v. UOI:Constitution of India is not truly federal

18.L. Chandra Kumar v. UOI:Judicial Review u/A 32 and 226 is the Basic Structure of the Constitution of India

19.Gian Kaur v. State of Punjab:Right to Life in Article 21 does not include Right to Die

20.M.C. Mehta v.UOI (Kanpur Tanneries Case):Right to clean environment a FR u/A 21 of the Constitution of India

21.Prem Shankar v. Delhi Administration:Right against handcuffing

22.I.R. Coelho v. State of Tamil Nadu:Law placed in Ninth Schedule is open to challenge after April 24,1974

23.S.P. Gupta v. UOI(Judges Transfer Case): Concept of Public Interest Litigation (PIL)

24.R.D. Shetty v. International Airports Authority:SC guidelines on whether an agency is an instrumentality of the State in Article 13 of the Constitution of India

25.Subramanium Swamy v. UOI:Constitutional Validity of Section 499 of IPC

Contract Act - Concluded contract - Draft Agreement - - If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence

📚 Contract Act - Concluded contract - Draft Agreement - - If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence  - There was no acceptance of the proposal giving rise to a concluded contract - in order to convert a proposal into a contract, the acceptance must be absolute and unqualified - existence of a concluded contract is a must in a claim for compensation for loss/damages under S. 73 of the Act arising out of a breach of contract . (2017-4) THE PUNJAB LAW REPORTER (SUPREME COURT)
https://www.facebook.com/punjablawreporter/ 📚

Monday, October 9, 2017

Electronic record - Marking without there being a certificate u/s 65-B of Evidence Act - Objection relates to the mode or method of proof -

*IMPORTANT DECISIONS(04.10.2017)*

*Electronic record - Marking without there being a certificate u/s 65-B of Evidence Act - Objection relates to the mode or method of proof - Objection as to the mode or method of proof is procedural - Objection if not taken at the trial, cannot be permitted to be taken at appellate stage. (2017(3) Apex Court Judgments 138 (S.C.)* 

*Inquiry u/s 340 Cr.P.C. - Civil Court while conducting preliminary inquiry or conducting other proceedings under Cr.P.C., enjoys similar powers of Cr.P.C. for the purpose of inquiry or proceedings u/s 340 Cr.P.C. - Civil Court otherwise is precluded from using provisions and powers given in Cr.P.C. in conducting civil suit. (2017(3) Civil Court Cases 840 (Bombay)* 

*Tenancy agreement between employer and employee - Employee is under contractual obligation to vacate the quarter on his retirement. (2017(3) Apex Court Judgments 114 (S.C.)* 

*Translated version of document, marked exhibit in trial Court, sought to be produced in appellate Court - It is not additional evidence. (2017(3) Civil Court Cases 773 (S.C.)* 

Contract Act - Concluded contract - Draft Agreement - - If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence

📚 Contract Act - Concluded contract - Draft Agreement - - If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence  - There was no acceptance of the proposal giving rise to a concluded contract - in order to convert a proposal into a contract, the acceptance must be absolute and unqualified - existence of a concluded contract is a must in a claim for compensation for loss/damages under S. 73 of the Act arising out of a breach of contract . (2017-4) THE PUNJAB LAW REPORTER (SUPREME COURT)
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A well-educated litigant is expected to be vigilant in pursuing a case filed by or against

A well-educated litigant is expected to be vigilant in pursuing a case filed by or against

In these presents, the allegation of the appellant/defendant company is that their lawyer has stopped appearing after 10.11.2014 It is also alleged that after the impugned judgment and decree dated 31.08.2015, their lawyer told them that the suit of the respondent/plaintiff company has been dismissed and they requested to supply them copies of order and decree. These allegations are not found mentioned in the complaint lodged with the Bar Council of India. If their lawyer stopped appearing from 10.11.2014, the appellant/defendant company should have contacted their lawyer or engaged some other one in the matter or at least they should have started appearing in person but they did not bother to inquire from their previous counsel as to why he stopped appearing w.e.f 10.11.2014 If they were informed by their counsel after the decision in the suit and copy of order was not supplied, they should have gone to lawyer personally or to court to obtain copies of orders or should have taken assistance of other lawyer. But they were not serious at all.

13. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.

14. In a case before Division Bench of this court in Man Singh (deceased) through L. Rs. v. Gaon Sabha Jindpur, 2012 (4) ILR (Del) 50, it was contended that the appellants were under the bonafide impression that the matter is being properly looked after by the counsel. It was held that the litigant has to be vigilant and he should contact and take part in the proceedings with due diligence and if negligence on the part of the litigant is established in a particular case, then the courts are not to come to the rescue of such applicants. The Division Bench of this court has also cited a decision of the Apex Court, which reads as under:—

“7. The Apex Court in Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573 2001 Ind law SC 21137 made the following observations:—

“……..It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights……””

In the High Court of Delhi at New Delhi

(Before Vinod Goel, J.)

Moddus Media Pvt. Ltd.v. M/s. Scone Exhibition Pvt. Ltd.

R.F.A 497/2017

Decided on May 18, 2017

                                   Citation:   2017 SCC OnLine Del 8491

Vinod Goel, J. (Oral)

CM No. 18654/2017 (for condonation of delay in re-filing the appeal)

1. This is an application for condonation of 101 days' delay in re-filing the appeal. Heard. For the reasons stated in the application, the same is allowed. The delay in re-filing the appeal is condoned.

2. The application is disposed of.

CM No. 18652/2017 (for condonation of delay in filing the appeal)

3. This is an application under Section 5 of the Limitation Act, 1963 read with section 151 of the Code of Civil Procedure for condonation of 400 days' delay in filing the appeal against the impugned judgment and decree dated 31.08.2015 passed by the learned Additional District Judge-04 (in short ‘ADJ’), Saket Courts, New Delhi in Civil Suit No. 113/2014.

4. It is pleaded that their counsel Sh. Pradeep Kumar, Advocate, having registration no. D-2060 of 2006, resident of B-62, Ram Dutt Enclave, Uttam Nagar, Delhi and chamber no. 853, C/o Shri Shashi Kumar Shukla, Dwarka Court Complex, New Delhi, has stopped attending the proceedings w.e.f 10.11.2014 Their counsel assured them that there would not be any problem and the case would go in their favour.

5. During the pendency of the suit, the Authorized Representative/Managing Director (in short ‘AR’) of the appellant/defendant company Sh. Pravesh Kumar Mishra talked to the counsel several times. Their counsel informed him that he was taking care of the matter. It is further alleged that after passing of the impugned judgment and decree dated 31.08.2015, their counsel informed them that civil suit filed by the respondent/plaintiff company has been dismissed by the court and there is no necessity to be panicked and they requested their lawyer to provide copies of documents and the court order. It is further alleged that in the end of the year 2015, its AR again requested the counsel to give him copies of all the papers/documents and the counsel promised to supply them but despite assurance he did not adhere his promise. From the end of the year 2015 till September, 2016 the AR of the appellant/defendant company requested the lawyer several times to give him copies of documents and papers in order to know the factual state of affairs of the suit. Inspite of their several requests and reminder, their counsel did not pay any heed.

6. It is further pleaded that on 20.09.2016, the General Manager of the respondent/plaintiff company Mr. Pillai along with one court official visited them to seize the properties and at that time the AR of the appellant/defendant company was in Jaipur. Immediately thereafter they contacted the counsel, who told him that he would call him back in 10 minutes and thereafter neither he called them nor attended their several telephonic calls. He sent several SMSs/Whatsapp messages dated 01.02.2016, 04.02.2016, 20.09.2016, 23.09.2016, 10.10.2016, 11.10.2016 and 22.10.2016, but of no avail. It is alleged that their new counsel inspected the file of the case on 17.10.2016 and they moved an application under Order XXI Rule 26 of CPC before the Executing Court. They also lodged a complaint against previous counsel Sh. Pradeep Kumar, Advocate to the Bar Council of India on 05.11.2016 They applied for obtaining certified copies of all the documents and order-sheets on 16.11.2016, which were supplied on 23.12.2016

7. It is submitted by the learned counsel for the appellant/applicant that the counsel of the appellant/company has been negligent in not attending the court proceedings and not informing them about the progress of the case and for the negligence of the lawyer, the appellant company should not be made to suffer and the delay in filing the appeal may be condoned.

8. I have heard the submissions of the learned counsel for the appellant/applicant and perused the record.

9. It was a summary suit under Order XXXVII CPC filed by the respondent/plaintiff on 23.09.2011 The appellant/defendant company filed an application for leave to defend the suit on 24.02.2012 The learned ADJ granted leave to defend on 27.09.2012 The plaintiff/respondent company filed a C.R.P No. 34/2013 against the order by which leave was granted by the learned ADJ. This revision petition was dismissed by court on 12.02.2015 It is mentioned in the order that the appellant company had changed its address and the notice was served upon the counsel representing the appellant before the learned trial court. However, none appeared on behalf of appellant company.

10. It is relevant to mention that in its supporting affidavit with leave to defend application, the appellant company has given its address as C-4, First Floor, Main Market, Malviya Nagar, New Delhi-110017. In its objection dated 24.10.2016 under Order XXI Rule 26 of CPC filed before the Executing Court, the appellant company has given the address of the AR as D-76, Third Floor, Malviya Nagar, New Delhi but of the company as C-4, First Floor, Main Market, Malviya Nagar, New Delhi-110017. In its objection under Order XXI Rule 99 read with Section 151 of CPC in the execution petition, the appellant had given the address of the AR as K-36A, Green Park Main, New Delhi. It did not mention the address of the appellant company. In this present appeal, the appellant has given its address as D-76, 3rd Floor, Malviya Nagar, New Delhi-110017. In the complaint dated 05.11.2016 lodged on its letter head to the Bar Council of India against Sh. Pradeep Kumar, Advocate, the address of the appellant company is mentioned as D-76, 3rd Floor, Malviya Nagar, New Delhi-110017.

11. In the complaint addressed to the Bar Council of India dated 05.11.2016 as claimed in the appeal/application, it is nowhere alleged that after impugned judgment and decree dated 31.08.2015 their lawyer Sh. Pradeep Kumar has informed them that the suit of the respondent/plaintiff has been dismissed or they requested him to supply them copies of decree and order. It is alleged in the complaint that they have started contacting the lawyer only when the court officials visited them on 20.09.2016 They have also not alleged that their counsel stopped appearing in the case from 10.11.2014 as alleged in the application. They have also not given the details of the fee paid by them to their lawyer by cheque or cash as alleged in the present application. They have also not mentioned as to what happened to the complaint lodged in the Bar Council of India. The Photostat copies of the messages placed on record bear the date as 1 Feb 2016, 4 Feb 2016, 20 Sep and 10 Oct and on other messages no date is there.

12. In these presents, the allegation of the appellant/defendant company is that their lawyer has stopped appearing after 10.11.2014 It is also alleged that after the impugned judgment and decree dated 31.08.2015, their lawyer told them that the suit of the respondent/plaintiff company has been dismissed and they requested to supply them copies of order and decree. These allegations are not found mentioned in the complaint lodged with the Bar Council of India. If their lawyer stopped appearing from 10.11.2014, the appellant/defendant company should have contacted their lawyer or engaged some other one in the matter or at least they should have started appearing in person but they did not bother to inquire from their previous counsel as to why he stopped appearing w.e.f 10.11.2014 If they were informed by their counsel after the decision in the suit and copy of order was not supplied, they should have gone to lawyer personally or to court to obtain copies of orders or should have taken assistance of other lawyer. But they were not serious at all.

13. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree.After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.

14. In a case before Division Bench of this court in Man Singh (deceased) through L. Rs. v. Gaon Sabha Jindpur, 2012 (4) ILR (Del) 50, it was contended that the appellants were under the bonafide impression that the matter is being properly looked after by the counsel. It was held that the litigant has to be vigilant and he should contact and take part in the proceedings with due diligence and if negligence on the part of the litigant is established in a particular case, then the courts are not to come to the rescue of such applicants. The Division Bench of this court has also cited a decision of the Apex Court, which reads as under:—

“7. The Apex Court in Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573 2001 Ind law SC 21137 made the following observations:—

“……..It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights……””

15. In the present case after leave to defend the suit was granted, the written statement dated 05.12.2012 along with affidavit of Mr. Pravesh Mishra, AR was filed on 10.12.2012 The appellant company alleged that their counsel stopped appearing after 10.11.2014 and after decision of the impugned judgment and decree, they were informed by the learned counsel that the suit has been dismissed and they requested the counsel to supply them the copies of order. Though, it has been alleged that the counsel despite several requests did not supply them the copies of the documents, still the appellant, which is a private limited company having highly educated businessmen running it, should have approached the court and find out the factual position and obtained the certified copies. The appellant company has always been either negligent in its approach or knowingly did not disclose the fact of their knowledge of decretal of the suit to avoid the decree or delay the payment of decretal amount. Even the complaint dated 05.11.2016 sent to the Chairman, Bar Council of India, does not reflects that their counsel stopped appearing w.e.f 10.11.2014 or they were falsely informed about the dismissal of the suit whereas in fact it was decreed. They have also not mentioned in the complaint that they were falsely informed by the counsel and did not supply them copies. In the complaint, it is reflected that they have started contacting the lawyer when the representative of the court visited them on 20.09.2016 Such negligent litigants are bound to suffer.

16. In the facts and circumstances, it appears that either the appellant company is concealing true facts of its knowledge of dismissal of the suit or they have been careless and negligent in pursuing their case in the court of law. Be that as it may, the appellant has failed to make out any justification for condonation of delay.

17. Even if the delay is condoned, I find no merit in the appeal, which I intend to deal hereinafter.

RFA No. 497/2017

18. By this RFA the appellant company has challenged the judgment and decree dated 31.08.2015 passed by the court of learned ADJ, by which suit for recovery of Rs. 14,82,213/- filed by the respondent/plaintiff company was decreed with interest @ 12% per annum from the date of legal notice dated 24.05.2011 till realization of the suit amount.

19. The respondent/plaintiff company alleged that the defendant availed its services for installing stalls in Petrotech 2009 exhibition as the plaintiff company is engaged in the business of Architects and Exhibitions. After carrying out the work to the satisfaction of the appellant company, the respondent/plaintiff raised two invoices dated 10.02.2009 (i) for Rs. 32,93,977/- in respect of Oil India Booth, and (ii) for Rs. 13,88,236/- in respect of DGH Booth at Petrotech 2009. The total amount of the invoices was Rs. 46,82,213/-, out of which the appellant company had made them a payment of Rs. 31,00,000/-. The appellant company has acknowledged the balance amount payable by them to be Rs. 14,82,213/- vide its letter dated 31.03.2010 The respondent/plaintiff company sent a legal notice dated 24.05.2011 to the appellant claiming the balance amount with interest. Despite several requests the appellant did not make and thus the respondent claimed the balance amount of Rs. 14,82,213/- with interest @ 12% per annum as per custom in the commercial transactions from the due date till date of actual payment. The suit amount of Rs. 17,34,190/- as claimed by the respondent company includes principal amount of Rs. 14,82,213/- and Rs. 2,51,977/- as interest w.e.f 01.04.2010 till the filing of the suit.

20. In its written statement, it is, inter alia, pleaded by the appellant that the suit has been filed on the basis of the bills dated 10.02.2009 and letter dated 31.03.2010 issued by an unauthorized persons and the bills do not fall within the definition of “Bill of Exchange”. It is also alleged that the appellant/defendant company was not satisfied with the work of the plaintiff company and they have settled the entire amount with the respondent and nothing was due against them.

21. The appellant admitted the contents of Para 4 of the plaint wherein it has been pleaded by the respondent/plaintiff that the appellant have made them a payment of Rs. 31,00,000/- and last payment was made by cheque no. 286993 dated 21.08.2009 for Rs. 1,00,000/- and the appellant/defendant company has acknowledged the due and balance amount to the tune of Rs. 14,82,213/- vide its letter dated 31.03.2010 by mentioning that Rs. 32,00,000/- has already been paid. Whereas their record reflects that a sum of Rs. 31,00,000/- has only been paid and therefore a sum of Rs. 15,82,213/- was outstanding. However, the respondent/plaintiff company has claimed amount as admitted by the appellant/defendant company i.e Rs. 14,82,213/- with interest Rs. 2,51,977/- till filing of the suit. Para 4 of the plaint reads under:—

“4. That the defendant had made the payment of Rs. 31,00,000/- to the plaintiff till date and the last payment has been made vide cheque no: 286993 dt. 21.8.2009 for Rs. 1,00,000/-. The balance payment of Rs. 15,82,213/- has been outstanding since then. The defendant has also acknowledged the total amount due and also balance payment of Rs. 14,82,213/- vide letter dated 31.3.2010 on the plea that Rs. 32,00,000/- has been paid. However the record of the plaintiff shows that the defendant has paid Rs. 31,00,000/- only. Thus, Rs. 15,82,213/- has been still outstanding from the defendant to the plaintiff.”

22. Corresponding Para 4 of the written statement reads as under:—

“4. That the contents of the para No. 4 of the plaint is admitted but nothing is due against the defendant.”

23. Learned ADJ has framed the following issues on 09.09.2013:—

“1. Whether plaintiff is entitled for a decree for a sum of Rs. 17,34,190/- in his favour and against the defendant? OPP

2. Whether plaintiff is entitled for any interest? If so at what rate? OPP

3. Relief.”

24. In order to prove its case, the respondent examined its General Manager Sh. C.M Pillai as PW-1 and Sh. George A.T as PW-2. Neither the defendant company appeared before the trial court to cross-examine the witnesses of the plaintiff nor adduced any evidence and the learned trial court decreed the suit of the plaintiff for Rs. 14,82,213/- with interest @ 12% per annum from the date of legal notice.

25. It is submitted by the learned counsel for the appellant that suit has been filed on the basis of two invoices Ex. PW-1/3 and Ex. PW-1/4 and the letter dated 31.03.2010 Ex. PW-1/5. Learned counsel does not dispute that services of respondent were taken by them. He does not dispute the invoices raised. But he argued that the letter Ex. PW-1/5 dated 31.03.2010 is a forged documents and has been issued by some unauthorized person. He argued that matter was settled and they paid Rs. 31,00,000/- in full and final. But no such document of settlement has been filed either in Trial Court or with the appeal.

26. The respondent/plaintiff has placed on record two Tax Invoices (Ex. PW-1/3 and Ex. PW-1/4) for Rs. 32,93,977/- and Rs. 13,88,236/- respectively, both dated 10.02.2009 issued to the appellant company, which reflect that even the payment of VAT of Rs. 2,88,642/- and Rs. 1,21,647/- and Service Taxes of Rs. 1,18,920/- and Rs. 50,119/- have been paid. These invoices are not disputed by the appellant. The total amount of invoices comes to Rs. 46,82,213/-. The Managing Director of the appellant company Sh. Pravesh Mishra in Para no. 3 of his affidavit filed in support of application for leave to defend, pleaded that they have made full and final payment of Rs. 31,00,000/- to the respondent/plaintiff company and nothing has been due. The respondent/plaintiff has been claiming that they have received payment of Rs. 31,00,000/- and there was a balance of principal amount of Rs. 14,82,231/-. Therefore the burden to prove the payment has been on the appellant. The appellant has not filed even a single document to show the balance payment of Rs. 14,82,213/-.

27. The respondent/plaintiff company has claimed Rs. 14,82,213/- and interest @ 12% per annum from 01.04.2010 till the date of filing of the suit i.e Rs. 2,51,977/- totalling to Rs. 17,34,190/-, however the learned trial court has decreed the suit for Rs. 14,82,213/- with interest @ 12% per annum from the date of legal notice dated 24.05.2011 till realization of the suit amount with costs. In fact, on filing the suit, the suit amount of Rs. 17,34,190/- becomes the principal amount and interest @ 12% per annum would be payable on it. Decretal of suit for Rs. 14,82,213/- with interest from the date of legal notice is in fact benefited the appellant.

28. In view of above discussion hereinbefore, I do not find any infirmity in the impugned judgment and decree of the learned trial court. As such the appeal is dismissed with no order as to cost.

CM No. 18653/2017 (for stay)

29. In view of the dismissal of the appeal, this application under Order 41 Rule 5 read with section 151 CPC, for stay of the impugned judgment and decree, is also dismissed.