Thursday, August 28, 2014

There could be another way of citing judgments of HC/SC


In my limited understanding of the things, I write…

1.      The HC/SC, everyday, lays down so many propositions of law, while they interpret the laws.

2.      It is well settled that HC/SC interpret the provision of any law, in its letter and spirit, and, ordinarily, they don’t invent or legislate; and therefore, ordinarily, the law laid down in any of the judgments are applied retrospectively, suggesting that, “the law laid down” was in fact the intent of the law at the time of its enactment, and said proposition has not emerged by reason of court judgment.

3.      In our pleadings / arguments before the Court, invariably, we rely on, one or the other HC/SC judgments, advancing the proposition of law illustrated in the said judgment.

4.      My proposition is: In our pleadings / arguments, instead of stating / arguing that “HC/SC has said this, or has laid down the said proposition of law”, the “proposition of law” laid down may be stated /argued in the first instance, and then, it may be stated / argued that, the said proposition of law was reinforced and affirmed by the HC/SC in their judgment.

5.      There is a fundamental difference in these two things – in one case, the argument is advanced on the footing of a judgment; and in another case, the argument is advanced, founded on a reasonable / sound proposition of law.

6.      It is experienced that, judgments cited before the Courts are hastily overlooked or are summarily and arbitrarily dismissed by saying that, “does not helps the party” advancing it.

Sandeep Jalan

Advocate.

Sunday, August 17, 2014

What is the “test” to measure the effectiveness of Collegium Scheme of Appointment


What is the “test” to measure the effectiveness of Collegium Scheme of Appointment

1.      In this write up, I am trying to invent a “test” to measure the effectiveness of Collegium Scheme of Appointment of Judges at High Courts and at Supreme Court of India.

2.      The Collegium scheme of Appointment, the center of controversy, first of all, it must be understood, and in my view, is opposed because of complete lack of transparency in its process, and is not opposed per se.

3.      Whereas the current CJI R. M. Lodha defends the “indefensible” this Non transparent system, I ask myself, what could be the authentic test to measure the effectiveness of this scheme. And why I say it is "indefensible", is because, said "opaque Scheme" is justified in the backdrop, where "open court" is the hallmark and chief attribute of any justice dispensation scheme.

4.      I believe, for this, we should be vising Article 50 of our Constitution, the premise on which this system was engineered. The Article reads as – Separation of Judiciary from executive: The State shall take steps to separate the judiciary from the executive in the public services of the State.

5.      Therefore, broadly speaking, the whole idea of engineering this scheme was to restrict the interference of Executive Government in the functioning of judiciary, so that the Judges so appointed, may safeguard the Constitutional mandate, norms and standards, without any influence /  “fear or favour” emanating from the Executive Govts.

6.      Therefore, the authentic test, in my view, is WHETHER the Judges appointed under the said “Collegium System” have been able to – “Generate fear” among the deeply corrupt Executive / Bureaucracy of India, in their brazenly frustrating Constitutional mandate / norms and standards.

7.      I believe, the Executive Govts / Bureaucracy, assumes “NO FEAR” from present tribe of Judges who are appointed under the Collegium system; and they brazenly and with near impunity frustrate the Constitutional mandate / norms and standards.

8.      There would be countless precedent from the Apex Court itself, assailing the brazen and never ending deceitful behaviour of Executive Govts. & Bureaucracy of India. The “Police Reform” judgment, which is passed in the year 2006, is a demonstrative illustration of brazen defiance of Apex Court Orders, by all Executive Govts. The Corruption, is lingering restlessly in the social atmosphere like an unfinished question [some of the said observations are listed at the end of this write up].


Sandeep Jalan
Advocate.

Observations made by Apex Court in respect of criminalization of Politics in India, in the case of Union Of India Versus Association For Democratic Reforms [2002 (5) SCC 294 : AIR 2002 SC 2112]  –

In Para 2: During the course of hearing, we got an impression that learned counsel for all the parties, including the Union of India and the Election Commission of India, are agreed that there is a need to check criminalization of politics and misuse of money or muscle power during elections. So far as this aspect is concerned, therefore, all the parties appear to be in agreement.

Para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows:-

"6.2 Like the Director CBI, the DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrats/Government functionaries at the local levels, politicians, media persons and strategically located individuals in the non State sector. Some of these Syndicates also have international linkages, including the foreign intelligence agencies. In this context the DIB have given the following examples _

(i) In certain States like Bihar, Haryana and UP, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the year get themselves elected to local bodies State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people;

(ii) The big smuggling Syndicates having international linkages have spread into and infected the various economic and financial activities, including havala transactions, circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre of the country. These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of Investigating and Prosecuting agencies extremely difficult; even the members of the Judicial system have not escaped the embrace of the Mafia;

(iii) Certain elements of the Mafia have shifted to narcotics, drugs and weapon smuggling and established narco-terrorism networks specially in the States of J and K, Punjab, Gujarat and Maharashtra. The cost of contesting elections has thrown the politician into the lap of these elements and led to a grave compromise by officials of the preventive/detective systems. The virus has spread to almost all the centres in the country, the coastal and the border States have been particularly affected;

(iv) The Bombay bomb blast case and the communal riots in Surat and Ahmedabad have demonstrated how the India underworld has been exploited by the Pak ISI and the latter's network in UAE to cause sabotage subversion and communal tension in various parts of the country. The investigations into the Bombay bomb blast cases have revealed expensive linkages of the underworld in the various governmental agencies, political circles, business sector and the film world".

Para 11: Mr. K.K. Venugopal, learned senior counsel appearing on behalf of Election Commission exhaustively referred to the counter affidavit filed on behalf of Election Commission. At this stage, we would refer to some part from the said affidavit. It is stated that issue of persons with criminal background' contesting election has been engaging the attention of the Election Commission of India for quite some time; even Parliament in the debates on 50 years of independence and the resolution passed in its special Session in August, 1997 had shown a great concern about the increasing criminalisation of politics; it is widely believed that there is criminal nexus between the political parties and anti-social elements which is leading to criminalisation of politics; the criminals themselves are now joining election fray and often even getting elected in the process. Some of them have even adorned ministerial berths and, thus, law breakers have become law makers.

Para 48: In Dinesh Trivedi, M.P. and Others V/s. Union of India and Others [(1997) 4 SCC 306], the Court dealt with a petition for disclosure of a report submitted by a Committee established by the Union of India on 9/07/1993 which was chaired by erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be popularly known as Vohra Committee. During July, 1995, a known political activist Naina Sahni was murdered and one of the persons arrested happened to be an active politician who had held important political posts and newspaper report published a series of articles on the criminalisation of politics within the country and the growing links between political leaders and mafia members. The attention of the masses was drawn towards the existence of the Vohra Committee Report. It was suspected that the contents of the Report were such that the Union Government was reluctant to make it public.


(Congress + NCP Govt.) In the case of State of Maharashtra  versus Sarangdharsingh Sihivdassingh Chavan  (2011) 1 SCC 577, the Apex Court observed to say that –

Para 36 We cannot shut our eyes to the stark realities. From the National Crime Records Bureau (NCRB), it is clear that close to two lakh farmers committed suicide in India between 1997 and 2008. This is the largest sustained wave of suicides ever recorded in human history. Two thirds of the two lakh suicides took place in five states and those five states are Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Chhattisgarh. Even though Maharashtra is one of the richest state in the country and in its capital Mumbai twenty five thousand of India's one lakh dollar millionaires reside, the Vidarbha region of Maharashtra, in which is situated Buldhana, is today the worst place in the whole country for farmers.


Para 54 However, what has happened in last few decades has given rise to serious apprehensions whether we will be able to achieve the objectives which were in the mind of the makers of the Constitution. The gap between 'haves' and 'haves not' of the society which existed even in pre- independent India has widened to such an extent that it may take many decades before even a token equality is restored. A small fraction of the population has evolved a new value system which is totally incompatible with the values and ideals cherished by the Indian society for centuries together. They believe in achieving their goals without regard to purity of the means.


Para 56 ….However, the cases involving pervasive misuse of public office for private gains, which have come to light in last few decades tend to shake the peoples' confidence and one is constrained to think that India has freed itself from British colonialism only to come in the grip of a new class, which tries to rule on the same colonial principles. Some members of the political class who are entrusted with greater responsibilities and who take oath to do their duties in accordance with the Constitution and the law without fear or favour, affection or ill will, have by their acts and omissions demonstrated that they have no respect for system based on rule of law.

(BJP Govt.) In the case of Nandini Sunder versus State of Chhatisgarh (2011) 7 SCC 547, the Apex Court observed to say that –

Para 3 As we heard more and more about the situation in Chattisgarh, and the justifications being sought to be pressed upon us by the respondents, it began to become clear to us that the respondents were envisioning modes of state action that would seriously undermine constitutional values. This may cause grievous harm to national interests, particularly its goals of assuring human dignity, with fraternity amongst groups, and the nations unity and integrity. Given humanity's collective experience with unchecked power, which becomes its own principle, and its practice its own raison d'etre, resulting in the eventual dehumanization of all the people, the scouring of the earth by the unquenchable thirst for natural resources by imperialist powers, and the horrors of two World Wars, modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state's violence against any one, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual. Through the course of these proceedings, as a hazy picture of events and circumstances in some districts of Chattisgarh emerged, we could not but arrive at the conclusion that the respondents were seeking to put us on a course of constitutional actions whereby we would also have to exclaim, at the end of it all: "the horror, the horror."


Para 4 People do not take up arms, in an organized fashion, against the might of the State, or against fellow human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is encoded in our collective conscience, we seek an order. However, when that order comes with the price of dehumanization, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt. That large tracts of the State of Chattisgarh have been affected by Maoist activities is widely known. It has also been widely reported that the people living in those regions of Chattisgarh have suffered grievously, on account of both the Maoist insurgency activities, and the counter insurgency unleashed by the State. The situation in Chattisgarh is undoubtedly deeply distressing to any reasonable person. What was doubly dismaying to us was the repeated insistence, by the respondents, that the only option for the State was to rule with an iron fist, establish a social order in which every person is to be treated as suspect, and any one speaking for human rights of citizens to be deemed as suspect, and a Maoist. In this bleak, and miasmic world view propounded by the respondents in the instant case, historian Ramchandra Guha, noted academic Nandini Sunder, civil society leader Swami Agnivesh, and a former and well reputed bureaucrat, E.A.S. Sarma, were all to be treated as Maoists, or supporters of Maoists. We must state that we were aghast at the blindness to constitutional limitations of the State of Chattisgarh, and some of its advocates, in claiming that any one who questions the conditions of inhumanity that are rampant in many parts of that state ought to necessarily be treated as Maoists, or their sympathizers, and yet in the same breath also claim that it needs the constitutional sanction, under our Constitution, to perpetrate its policies of ruthless violence against the people of Chattisgarh to establish a Constitutional order.


Para 5 The problem, it is apparent to us, and would be so to most reasonable people, cannot be the people of Chattisgarh, whose human rights are widely acknowledged to being systemically, and on a vast scale, being violated by the Maoists/Naxalites on one side, and the State, and some of its agents, on the other. Nor is the problem with those well meaning, thoughtful and reasonable people who question those conditions. The problem rests in the amoral political economy that the State endorses, and the resultant revolutionary politics that it necessarily spawns.      


Para 6 That violent agitator politics, and armed rebellion in many pockets of India have intimate linkages to socio-economic circumstances, endemic inequalities, and a corrupt social and state order that preys on such inequalities has been well recognized. In fact the Union of India has been repeatedly warned of the linkages. In a recent report titled "Development Challenges in Extremist Affected Areas", Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008), an expert group constituted by the Planning Commission of India makes the following concluding observations:
"The development paradigm pursued since independence has aggravated the prevailing discontent among the marginalized sections of the society.... The development paradigm as conceived by policy makers has always imposed on these communities.... causing irreparable damage to these sections. The benefits of this paradigm have been disproportionately cornered by the dominant sections at the expense of the poor, who have borne most of the costs. Development which is insensitive to the needs of these communities has inevitably caused displacement and reduced them to a sub- human existence. In the case of tribes in particular it has ended up in destroying their social organization, cultural identity and resource base.... which cumulatively makes them increasingly vulnerable to exploitation.... The pattern of development and its implementation has increased corrupt practices of a rent seeking bureaucracy and rapacious exploitation by the contractors, middlemen, traders and the greedy sections of the larger society intent on grabbing their resources and violating their dignity." [paras 1.18.1 and 1.18.2, emphasis supplied]


Para 7 It is also a well known fact that Government reports understate, in staid prose, the actuality of circumstances. That an expert body constituted by the Planning Commission of India, Government of India, uses the word "rapacious", connoting predation for satisfaction of inordinate greed, and subsistence by capture of living prey, is revelatory of the degree of human suffering that is being visited on vast sections of our fellow citizens. It can only be concluded that the expert body, in characterizing the state of existence of large numbers of our fellow citizens, in large tracts of India, as "sub- human," is clearly indicating that such an existence is not merely on account of pre-existing conditions of significant material deprivation, but also that significant facets that are essential to human dignity have been systematically denied by the forces and mechanisms of the developmental paradigm unleashed by the State. Equally poignantly, and indeed tragically because the State in India seems to repeatedly insist on paying scant attention to such advice, the Expert Group further continues and advises:
"This concludes our brief review of various disturbing aspects of the socio-economic context that prevails in large parts of India today, and that may (and can) contribute to politics such as that of the Naxalite movement or erupt as other forms of violence.


Para 8 Rather than heeding such advice, which echoes the wisdom of our Constitution, what we have witnessed in the instant proceedings have been repeated assertions of inevitability of muscular and violent statecraft. Such an approach, informing the decisions of the Government of Chattisgarh with respect to the situations in Dantewada, and its neighbouring districts, seemingly also blinds them to the fact that lawless violence, in response to violence by the Maoist/Naxalite insurgency, has not, and will not, solve the problems, and that instead it will only perpetuate the cycles of more violent, both intensive and extensive, insurgency and counter-insurgency. The death toll revealed by the Government of Chattisgarh is itself indicative of this. The fact that the cycles of violence and counter-violence have now lasted nearly a decade ought to lead a reasonable person to conclude that the prognosis given by the expert committee of the Planning Commission to be correct.


Para 14 What is ominous, and forebodes grave danger to the security and unity of this nation, the welfare of all of our people, and the sanctity of our constitutional vision and goals, is that the State is drawing the wrong conclusions, as pointed out by the Expert Group of the Planning Commission cited earlier. Instead of locating the problem in the socio-economic matrix, and the sense of disempowerment wrought by the false developmental paradigm without a human face, the powers that be in India are instead propagating the view that this obsession with economic growth is our only path, and that the costs borne by the poor and the deprived, disproportionately, are necessary costs.


Para 15 As if the above were not bad enough, another dangerous strand of governmental action seems to have been evolved out of the darkness that has begun to envelope our policy makers, with increasing blindness to constitutional wisdom and values. On the one hand the State subsidizes the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfilling its obligations to provide adequate cover to the poor through social welfare measures. On the other hand, the State seeks to arm the youngsters amongst the poor with guns to combat the anger, and unrest, amongst the poor.


Para 16 Tax breaks for the rich, and guns for the youngsters amongst poor, so that they keep fighting amongst themselves, seems to be the new mantra from the mandarins of security and high economic policy of the State. This, apparently, is to be the grand vision for the development of a nation that has constituted itself as a sovereign, secular, socialist and democratic republic. Consequently, questions necessarily arise as to whether the policy makers, and the powers that be, are in any measure being guided by constitutional vision, values, and limitations that charge the State with the positive obligation of ensuring the dignity of all citizens.

(BJP + Congress + JD(U) + JMM) The Apex Court in the case of State Of Jharkhand & Anr vs Harihar Yadav & Ors. on 22 November, 2013 CIVIL APPEAL NO. 10515 OF 2013 (Arising out of S.L.P. (C) No. 30291 of 2011) [(2014) 2 SCC 114)

Para 2. How does a constitutional court respond to a situation when a human problem of great magnitude frescoed on constitutional canvas gets painfully projected with intense sincerity, possibly realizing pain is one of the “sovereign masters of mankind”? How is the Court required to react in law when the workmen are forced to grapple with a colossal predicament of sense of belonging due to a situation created making them feel that they are neither here nor there? We consider it as an unbearable tragedy faced by the unfortunate employees warranting serious attention of this Court, for some employees have breathed their last due to starvation, constant stress being unable to meet the keen demands of appetite, and the impecuniosity that hampered them to avail timely treatment, and some families have been unwillingly driven to a state of unmeaningful survival – an animal existence – sans proper food, sans clothes and sans real shelter. It is not because of any natural calamity beyond human control but because two States, namely, State of Jharkhand and State of Bihar deliberately have chosen to create an Everstine catastrophe by their act of abandonment of responsibility to pay despite availing work for some years and thereafter disowning them and nonchalantly shifting the burden to other’s shoulder and ultimately arguing in chorus that Jharkhand Hill Area Lift Irrigation Corporation (JHALCO) and Bihar Hill Area Lift Irrigation Corporation (BHALCO) being companies registered under the Companies Act, 1956, it is open to the aggrieved employees or their legal representatives to initiate necessary winding up proceedings to get their dues. We can only say that the stand and stance so adroitly put forth by both the States are shorn of their constitutional accountability and statutory answerability. In a way, it seems to be orchestrated by some kind of abstruse and unfathomable idea fostered in fertile mind that loves to keep helpless and hapless people in a state of despair where hope dies an unceremonial death or it lives in a state of “Trishanku”. It indubitably depicts a startlingly unhappy situation commanding urgent surgical intervention so that the injury does not become malignant.





(Samajvadi Party ) Supreme Court holds Akhilesh govt guilty of negligence, orders arrest of all Muzaffarnagar accused
Indian Express
Written by Utkarsh Anand | New Delhi | March 26, 2014 10:22 pm



In the case of Prakash Kadam versus Ramprasad Vishwanath Gupta (2011) 6 SCC 189, the Apex Court observed to say that –

Para 30: Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word `Matsya' means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide `History of Dharmashastra' by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony's speech in Shakespeare's `Julius Caesar' quoted at the beginning of this judgment.
This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said "whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law," which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.

Para 31 Kautilya says, `if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak'. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.

Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:-
"Raja chen-na bhavellokey prithivyaam dandadharakah Shuley matsyanivapakshyan durbalaan balvattaraah"

This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker ones, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.

Para 33 We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of matsyanyaya.

Wednesday, August 6, 2014

Registration of F.I.R.


Registration of F.I.R.

What is FIR

F.I.R. is the most common and easy device to “fix” an innocent person, for variety of reasons. Therefore, it may be essential to know its dynamics and attributes.

The word F.I.R. per se is not defined under CrPC, 1973. Elementary meaning of F.I.R. is – “first information” furnished relating to the commission / occurrence of a cognizable offence.

What is meant by “Cognizable offence”, is defined under CrPC, 1973, and it means a “case” in which the Police officer may arrest the person suspected of the commission of the alleged offence, without warrant.

Registration or the non-registration of FIR is a big business in India. It is notoriously of everybody’s knowledge that the Police register FIR of those cases which it wants to register; and the Police does not register FIR of those cases which “it does not want to register”, despite there being repeated affirmation and reiteration of High Court and Apex Court rulings, that Police must register FIR, where the complaint discloses “cognizable offence”.

Issue before me

In this write up, I have not concerned myself to the issue of “Non-Registration of FIR; and rather I am concerning myself to the issue of Registration of FIR, i.e. to say “what is meant by “where complaint discloses commission of a cognizable offence”. In this write up I am trying to apprise myself, what is the exact mandate of S.154 in respect of the registration of F.I.Rs.

The mandate of section 154

Section 154 of CrPC, inter alia, mandates that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

Therefore, for the registration of FIR, the complaint / information furnished to the Police must relate to the “commission” of a cognizable offence.

Any inquiry into the alleged “commission” of an offence must begin with the contemplation in our mind, the definition of “offence” as contained in General Clauses Act, 1897.

Section 3(38) of the said Act defines "offence" means any “act or omission” made punishable by any law for the time being in force”. The definition is quite simple to apt and does not require any elaboration.

The word “act or omission” is defined in the said Act in section 3(2) as –"act", used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions. This definition is also simple enough to apt, with suffice to say, that when “specific act and / or omissions” attributed towards the person, would make the person liable for his alleged act and / or omissions, and mere allegations, suspicion and speculation are of no use to initiate any action in law, against any person.

It is submitted that, therefore, in any case of allegation of commission of an offence, whether Cognizable or Non-cognizable, the complainant has to assert and attribute certain specific “acts and omissions” which are alleged to have been committed by the person, and where those acts and omissions constitute an offence under the law.

Then we may proceed to look at the substantive definition of the offence, which spells out as what bundle of “acts and omissions” would be deemed as commission of an offence, under the law of the land.

Therefore, every lawful and valid criminal complaint, whether u/s 156(3) or FIR u/s 154 or complaint u/s 200, as far as possible, must aptly spell out the bundle of “incriminating acts and omissions” attributed towards the person concerned, wherein the said acts and omissions would constitute a particular offence.

I would go on to say that, generally, it is not the province of the complainant to say that Mr. X has committed theft or robbery or has committed rape or murder. The province of the Complainant is to assert and attribute specific “acts and omissions” of Mr. X, which may constitute the act of “theft / robbery” etc.; and it is the province of the Police machinery to examine the acts and omissions alleged, and after having due regard to the ingredients of the offence, to invoke appropriate section of “theft” or “robbery”, as the case may be.

Misuse of stricter penal laws

Our Govts is found fascinated to enact stricter Penal laws, making vulnerable their citizenry the gross and rampant misuse of those laws which is a common phenomenon in our country.

The injury caused by the general and vague allegations, which are sometimes scandalous, offensive and derogatory accusation, goes beyond the sphere of society and does extend to business and commercial interests. Once besmirched by such unfounded accusation, a reputation can be damaged forever. 

Honour and reputation are treasured attributes of individual personality and the law recognizes the right of each man to the unimpaired possession of his reputation and good name.

Reputation entails credibility and trustworthiness in society. The loss of reputation, by injury or by misconduct, is the loss of one’s goodwill.

As observed by Hon’ble Supreme Court in the case of Deepak Bajaj versus State of Maharashtra – (2008) 16 SCC 14 and Sukhwant Singh versus State of Punjab – (2009) 7 SCC 559 – The reputation of a person is his valuable asset and is a facet of his right under Article 21 of the COI.

As observed in the case of Mustaq Ahmed Mir versus Akash Amit Bhat – AIR 2010 J & K 11, before Jammu & Kashmir High Court, “A human being is entitled to lead respectful life in the civilized society. Our society is already adrift in the ocean of debasing human values. Conscious efforts are to be made to ensure that there is no further deterioration.

In the case of Geeta Mehrotra Versus State of Uttar Pradesh (AIR 2013 SC 181), the Apex Court observed to say that –
Para 24 However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
Para 27 We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

The solution

Not for a moment, it can be argued that FIR may not be registered, but it is argued that, now it is a high time that “Law officers” now should be appointed in every Police station, who will appreciate and examine the “first information” supplied; and after due examination of the “nature of acts and omissions attributed towards a person” and after having due regard to the “the ingredients of the offence set out in the Penal code”, appropriate sections of the penal code may be invoked, against a person in the FIR.

If the information furnished attributes “acts and omissions” constituting / satisfying the ingredients of any cognizable offence, then only, the F.I.R. should be registered, in respect of the concerned penal section. And, in my view, this is also the mandate of section 154.

The bottom line is: For a lawful F.I.R. to be registered in respect of any particular cognizable offence, the acts and omissions attributed towards any person, must correspond with the ingredients of the offence, charged with.
Thank you.

Sandeep Jalan
Advocate
Mumbai.


Some important and relevant links


registering FIR; and what if Police refuse to Register FIR


WHEN POLICE UNLAWFULLY SUMMONS WITNESSES / ACCUSED FOR INTERROGATION


WHEN  POLICE  ILLEGALLY    ARREST


WHEN  POLICE    NEGLECTS    TO    INVESTIGATING    THE    CASE


WHEN FALSE FIR IS REGISTERED


LEGAL OPTIONS FOR AN “INNOCENT PERSON” WHO IS ACCUSED OF HAVING COMMITTED A CRIMINAL OFFENCE


WHERE  A  FALSE  COMPLAINT  HAS  BEEN  FILED  IN  THE MAGISTRATES  COURT  AND  THE  MAGISTRATE  HAS  ISSUED  SUMMONS  /  OR  WHERE  A  GENUINE  COMPLAINT  HAS  BEEN  FILED  BUT  THE  MAGISTRATE  HAS DISMISSED THE SAID COMPLAINT




Sunday, May 4, 2014

SECTION



The  section-alization  of Injunctions of Law indicates that every Injunction of law has defined territory (four corners).

Whereas every section deals with a specific kind of situation / issue, the said  Section-alization  also gives distinct identity to the concerned Injunction, to the exclusion of other Injunctions, notwithstanding the fact that Acts of Legislature are always considered as a “scheme”, and a  section cannot be completely read in isolation with other Injunctions of the said Act, or other Acts.

And when the Injunction has invariably consigned a definite territory, it hardly gives any discretion to the administering person, for, the mandate of Law is always couched in “COMMAND”;

And I would go on to say that “Law” and “Discretion” are mutually inconsistent terms, for, if we have a mandate of law for a particular issue, one ceases to have any discretion, except to the extent, wherein the Injunction itself confers some “defined” degree of discretion to the administering authority; also exception to the extent, the “Inherent powers” of the Courts to do “justice”, for, when there is a conflict between the “Law” and “Justice”, the “Law” shall yield to the “Justice”, for, codified Laws comes into being to serve humans, and not the other way.

And, therefore, when the “material facts of the case” are not in controversy, the administering person hardly has any discretion while applying Injunctions of Law to the undisputed facts of the case, provided, its applicability to the facts of the case, is not in question.

Thus, I say, the section-alization of Laws, invariably indicates that there should be objectivity in the delivery of justice.




Saturday, May 3, 2014

Securing effective Redressal to our issues / Complaints / Representations …



Securing effective Redressal to our issues / Complaints / Representations …

A satisfactory reply to complaints is of fundamental importance in the Administration – Citizens Relationship.

Good governance signifies the way an Administration ameliorates the standard of living of the members of its society, by creating, and making available the basic amenities of life; providing its people security of life and the opportunity to better their lot; instills hope in their hearts for a promising future; affording participation and capacity to influence, in the decision-making in public affairs; sustaining a responsive judicial system which dispenses justice on merits in a fair, unbiased and meaningful manner; and maintaining accountability and honesty in each wing or functionary of the Government administration.

Forms of accountability may differ but the basic idea remains the same that the holders of Public Office must be publicly able to justify their exercise of power not only as legally valid but also socially wise just and reasonable, chiefly designed to add something more to the quality of life of the people.

Every Society & every Individual Citizen has certain basic assumptions to take it for granted from the State that-

(i) His Life & Property will be protected and his liberty will be preserved;

(ii) He can appropriate for his own use what he has created by his own labour and what he has acquired under the existing economic order;

(iii) That others will act with due care and will not cast upon him an unreasonable risk of injury;

(iv) That others will not commit any intentional aggression upon him;

(v) That people with whom he deals will carry out their undertakings and will act in good faith;

(vi) That he will have security as a job holder;

(vii) That State will bear the risk of unforeseen misfortune;

(viii) That State will bear the burden of supporting him when he becomes aged;

(ix)  That, therefore, whenever, there is breach of aforesaid expectations, and the complaints is made to the “State”, it will be duly replied. Article 12 of Constitution of India defines “State” as a every Public functionary, whether State Govt / Central Govt / Municipal body / Statutory bodies / Any instrumentality / Agency of the Govt etc.

However, the experience is otherwise. Public authorities / Public officers, especially highly placed, soaked in arrogance of their powers, generally do not bother themselves to the complaint of Citizens, and their replies, whenever made, most of times, are deliberately illogical and evasive. The experience is that the holders of public offices treat the authority in their hands, as a ruler rather than one in public service.

The Officials, in the usual spirit of lawlessness, were often heard saying, (one may also call it various forms of passionate corruption) in the words of Legal learned -  Professor Upendra Baxi--

a)      As an Authority of Public Power, I have this and that power. I exercise it in this or that manner because I so wish. The only good reason which I exercise my power this or that manner is that I wish to exercise it in this or that manner;
b)      As an Authority of Public Power- I may so act as to favour some and disfavour others;
c)      As an Authority of Public Power- I may so act as to give an impression that I am acting within my powers but in reality I may be acting outside it;
d)     As an Authority of Public Power- I may decide by myself what your rights and liabilities are without giving you any chance to be heard, Or I may make your opportunity to be heard a meaningless ritual;
e)      As an Authority of Public Power- I may decide but declines to let you know the reasons or grounds of my decisions or provide reasons without being reasonable;
f)       As an Authority of Public Power- I may use my power to help you only if I am gratified in cash or in kind;
g)      As an Authority of Public Power- I may choose to use my power only after a good deal of delay and inconvenience to people;
h)      As an Authority of Public Power- I may just refuse to exercise the powers I have regardless of my legal obligation to act and regardless of social impact of my inaction.

In this essay, I seek to list some of the provisions of law, and the judgments of the Apex court and High courts, which casts duty upon the Public Authorities to “Respond”.

                                                                             
(1)   Apex Court: In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344] the SC has ruled that all public authorities / public officials must make a reasoned reply to the Notices received by it. The Apex Court, among other things, have observed and directed –

“…The Governments, government departments or statutory authorities are defendants in a large number of Cases pending in various courts in the country. Judicial notice can be taken of the fact that in a large number of cases either the notice is not replied to or in the few cases where a reply is sent, it is generally vague and evasive. It not only gives rise to avoidable litigation but also results in heavy expenses and costs to the exchequer as well.

A proper reply can result in reduction of litigation between the State and the citizens. In case a proper reply is sent, either the claim in the notice may be admitted or the area of controversy curtailed, or the citizen may be satisfied on knowing the stand of the State.

Having regard to the existing state of affairs, we direct all Governments, Central or State or other authorities concerned, whenever any statute requires service of notice as a condition precedent for filing of suit or other proceedings against it, to nominate, within a period of three months, an officer who shall be made responsible to ensure that replies to notices under Section 80 or similar provisions are sent within the period stipulated in a particular legislation.

The replies shall be sent after due application of mind. Despite, if the court finds that either the notice has not been replied to or the reply is evasive and vague and has been sent without proper application of mind, the court shall ordinarily award heavy costs against the Government and direct it to take appropriate action against the officer concerned including recovery of costs from him.”.


(2)   Bombay High Court – Failure to decide on representation – judicial notice of the fact – paras 1, 4, 5; WP (C) 6731 / 2012 – date of decision – 21.12.2012.

Para 1: The grievance made in this Petition is that the Collector, Pune has failed to decide the representation made by the Petitioner on 28th June, 2011. We are appalled to notice the laxity and indifference of the Collector in not expediting the process of deciding the subject representation even after the service of present Writ Petition. Admittedly, no decision has been communicated to the Petitioner till date. Institution or pendency of this Petition was certainly not an impediment for taking the decision. As a matter of fact, any prudent officer would expedite the process as soon as he is served with the copy of the Petition making grievance against him about his inaction. The attitude of the officer in not deciding the representation, even after service of this Writ Petition, is to say the least deplorable.

Para 4: Copy of this order be forwarded to the Chief Secretary, with a hope that the Chief Secretary would cause to issue instructions/circular, before 19th January, 2013, to all concerned departments and officers that, if any representation is made, the same should be considered and final decision thereon must be taken within the period specified in the earlier Government Circular No. SKN – 02/2010/P. No. 29/A2 dated 16th February, 2010 and the decision so taken should be communicated to the party concerned within the same time.

Further, if any Petition is filed before the Court, making grievance about the inaction of the Authority, at least upon service of copy of such Petition, the concerned officer must dispose of the representation within four weeks from receipt of notice of such proceedings and communicate the decision to the concerned party as well as report that fact to the office of the Government Pleader for bringing it to the notice of the Court whenever the matter is taken up for hearing. It must be made amply clear that failure to comply with this condition may entail in initiating departmental action against the concerned officer and serious view may be taken in the matter.

Para 5: This we are required to observe because, on any given Court working day, the Court is called upon to deal with substantial number of Writ Petitions, in respect of the subject assigned to the concerned Division Bench, directing the Authorities to dispose of the representations within specified time. This litigation is certainly avoidable, if the representations were to be decided in a time bound manner by the Authority and including to communicate the decision so taken to the concerned parties soon thereafter.


(3)   Bombay High Court: Registration of FIR – Police duty bound to reply to the complainant, if no cognizable offence is made out – Paras 5, 7, 8; WP (Cri) 3386 2012 – date of decision – 15.10.2012.

Para 5. Large number of petitions under Article 226 of the Constitution of India are being filed in this Court making a grievance regarding failure to register the offence in accordance with sub-section 1 of Section 154 of the said Code, though either complaint in writing is lodged with the concerned police station or the statement of the complainant is recorded by the Police. Such petitions are being filed only because the concerned officer of the police do not care to inform the complainants about the action taken on the complaints. In view of the decision of the Full Bench, at highest and that also in exceptional and rare cases, the concerned officer has time of two days to hold preliminary enquiry. In all other cases, the officer is expected to act immediately. Only in exceptional cases, he gets time of two days. The very fact that subsection (3) of Section 154 gives a remedy to the person aggrieved by the failure on the part of the officer to record the information shows that the duty is cast on the police officer with whom the complaint is filed, to immediately inform the complainant about the refusal to record the information referred to under Subsection (1) of Section 154 of the said Code and officer in-charge of the police station is duty bound to issue communication to the complainant of refusal on his part to record information. Only if such information is communicated to the complainant that he will be in a position to avail of the remedy under Subsection (3) of Section 154 of the said Code.

7. We are of the view that the Director General of Police should issue directions to all police stations in the State directing the officers in-charge of the police station to forthwith issue a communication to the complainants about refusal to record the information in terms of Subsection (1) of Section 154. Appropriate time limit which should be very short will have to be provided for issuing said communication so that the very object of lodging complaint should not be frustrated. If there is a gross delay in issuing communication, even the remedies provided under the said Code in a given case may become redundant. Such direction is required to be issued to ensure that complainants get opportunity to avail of the remedies under the said Code.

8. Hence, we dispose of the petition by passing following order :
 (ii) We hereby direct the Director General of Police to issue directions to all the police stations in the State as indicated in the earlier part of this order.


(4)   Bombay High Court: Deciding the representation within a reasonable time – directed the Chief Secretary to issue Dept. Instructions Circular to all the govt. depts. – and if WP is filed in respect of the concerned subject matter, and copy is served, the concerned Authority must decide the representation within 4 weeks. Circular No. SKN-02/2010 //PK-29/A-2 dated 16.02.2010. Also GR dated 18.01.2013. Prescribed time limit is 90 days. WP (C) No. 8348 / 2009 – date of judgment – 25.01.2010.

We have come across several writ petitions in which similar relief is claimed not only in respect of inaction of the authority dealing with land acquisition proceedings, but even other departments, such as Cooperative Department, Caste Scrutiny Committee, Education Department, Social Welfare Department, Zilla Parishads and the like. We find that substantial number of writ petitions, such as the present petition, which are filed in this Court, are avoidable, if the officials of the State were to discharge their statutory obligation of deciding the representation within a reasonable time. In the present case, petitioner has submitted her application almost one year back i.e. 5th January, 2009.

It is unnecessary to underscore that the applicant would have legitimate expectation of early redressal of her grievance. Indubitably, expeditious decision on the representation or application is a right ingrained in Article 21 of the Constitution of India. Even when no period of limitation to dispose of representation / application is prescribed under statute, it has to be done expeditiously within a reasonable time (see Bharat Steel Tubes Ltd. V/s State of Haryana - [ (1988) 3 S.C.C., 478 ]. That is the duty cast upon the officials, for, existence of power to decide such application / representation is coupled with duty to decide the same expeditiously.

It will not be out of place to restate the legal position expounded by the Division Bench of this Court in a recent decision in the case of Vaishali Atmaram Suryawanshi V/s the State of Maharashtra in Writ Petition No.7055/2009 decided on 16th December, 2009. Notably, due to the inaction of the Authority (officials), not only the citizen has to suffer the agony of uncertainty and delayed justice, but at the same time the State exchequer is incurred on legal proceedings, which is wholly avoidable.

In our view, the Chief Secretary of the State of Maharashtra should issue appropriate instructions or circular to all the concerned officials of the respective departments, not only to one referred to above, but a general circular, instructing all the Departments that if the officials are required to dispose of any application or representation under the provisions of law, they shall do so within a reasonable time and in any case not later than the time specified in the said circular, failing which the concerned official will be held personally responsible and may be proceeded for appropriate Departmental action including for dereliction of duty. The Government Pleader assures to convey the sentiments of the Court to the Chief Secretary for taking appropriate action, as may be advised, and report compliance to the Court within four weeks from today.


(5)   Bombay High Court: Citizen Charter – the Court directed to affix Citizen Charter on the Notice Board of all govt. depts., in compliance to the mandate of section 8 of the Maharashtra Govt. Servants Regulation of Transfers and Prevention of delay in discharge of official duties Act, 2005. Para 7; PIL No.50 / 2011 – date of judgment – 21.12.2011.

Para 7: It is important to note that provisions of Citizens Charter by the Administrative Departments of the Government must be made known to the common man for whom it is meant. It is no doubt true that Citizens Charter which was published, though put on the website, however, in order to apprise the common man about the Citizens Charter, we direct each Administrative Department of the State Government to affix copy of Citizens Charter prepared by that Department on the notice board to be placed on the front lobby of the Department or at such a place which is easily visible to members of public who visit the Department. The entire exercise must be completed by each Department within a period of two months from today. We also expect the State Government to finalize the Rules to carry out purpose of the Act without further delay and notify the same in the official gazette.


(6)   Bombay High Court: Online Publication of Approved Plans – the Court directed the State to cause online publication of Approved Plans before allowing construction activity – Para 30 – BHC – WP 4045 / 2005 – date of judgment – 10.12.2013.


(7)   Disposal of File within 7 working days – An Office Memorandum was issued by Ministry of Personnel, PG and Pension, Dept of Administrative Reforms and Public Grievances, No. 46013 / 7 / 2000 / O & M, dated 08.09.2000 /, inter alia, states that, as a general rule no official shall keep a case / file pending with him / her for more than 7 working days, unless higher time limit is prescribed for specific types of cases.

      The Central Secretariat Manual of Office Procedures, Thirteenth Edition, Ministry of Personnel, Public Grievances and Pensions, Department of Administrative Reforms and Public Grievances. September, 2010 mandates on Page 39, paragraph 66. (www.darpg.gov.in) that proper replies to all communications from citizens should be sent within 30 days.

(8)  Bombay High Court: Importance of serving of statutory Notice – section 527 of MMC Act, 1888 and section 164 of MCS Act, 1960 – BHC – Noor Mohd. Shami Shaikh Versus Maharashtra Housing & Development Board - 2014 (1) BCR 860

Para 8 Pre-suit statutory notice as required under Section 527 of MMC Act, as also under Section 164 of MCS Act, 1960, required to be addressed to the Registrar before initiating suit clearly served public purpose underlying the mandatory provisions. When such notices are issued and served upon public authorities, they get reasonable opportunity to avoid unnecessary litigation and also to avoid unnecessary expenses which may have to be spent in a long drawn out legal battle.

Object of pre-suit statutory notice is to furnish an opportunity to the Public Authority to know before hand about the prospective plaintiff, particulars of his name, address, grievance, cause of action etc., so that Public Authority can reconsider its legal position and may resolve to take steps to settle the claim at pre-litigation stage. The provision is therefore intended to save the valuable public time and money.


(9) Mahila Lok Divas at – Maha GR dated 04.03.2013
Taluka Level – 4th Monday of every month
District Level – 3rd Monday of every month
Divisioner Level – 2nd Monday of every month
Mantralaya – 1st Monday of every month


(10) Constitution / Establishment of Police Complaint Authority at the State and District level – Maha GR No. PCA – 1013 / CR – 109 / Pol – 3 – dated 15.07.2013.


(11) Bombay High Court: Guidelines laid down as in what manner the hearing is to be conducted and orders are to be passed by Quasi-judicial authorities – Para 17 – BHC – (2009) 4 MhLJ 883.

Procedural Guidelines for Quasi-Judicial Authority:

Para 17. This Court in exercise of powers conferred under Articles 226 and 227 of the Constitution of India prescribes the following procedure to be adopted by quasi-judicial authorities including the Ministers, Secretaries, officials and litigants while hearing and determining appeals, revisions, review applications and interim applications etc.:

(1) Memo of appeal or revision, review and or any application shall specifically mention under which enactment and/or under what provisions of law the said appeal/ review/ revision or application is filed.

(2) The appellant/ applicant shall give a synopsis of concise dates and events along with the memo of appeal or revision.

(3) The appeal, revision and/or application shall be filed within a period stipulated under the law governing the subject from the receipt of the order/ decision which is impugned in the above matter. In the event of delay, it should only be entertained along with application for condonation of delay.

(4) At the time of presentation of the appeal, review or revision, the applicant shall, if, filed in person, establish his identity by necessary documents or he shall file proceedings through authorized agent, and/or advocate.

(5) The application shall be accompanied by sufficient copies for every opponents/ respondents and also supply 2 extra copies for the authorities.

(6) For issuance of summons to the opponents/ respondents, court fees/ postal stamps of sufficient amount shall be affixed on the application form/ memo of appeal or revision as the case may be.

(7) In addition to service through the authority, appellant/ applicant may separately send the additional copies to each of the opponents/ respondents by registered post acknowledgement due and may file affidavit of service along with evidence of despatch. The postal and acknowledgment alone should be treated as evidence of service in the event of service through postal authority.

(8) In the event of an urgency of obtaining an interim relief like stay, injunction/ other interim order or direction or status-quo etc, a specific case of urgency should be made out in the application, which the authority may entertain subject to the brief reasons recorded. The said order shall also be communicated immediately to all the effected persons. The proof of timely despatch of the Registered A.D.s and all the acknowledgments shall be separately maintained.

(9) If there is real urgency, the concerned authority may grant ex parte interim/ ad-interim relief for the reasons to be recorded for a particular period only within which time the service on the concerned opponents/ respondents shall be effected. Appellant/ applicant should file affidavit of service, if such party requires early hearing or continuation for interim relief or of an appeal, revision or review.

(10) The competent authority shall also communicate the next date of hearing to all the parties along with time and place and shall, as far as possible, adhere to the said date and time of hearing.

(11) The concerned official in every department should be asked to remain present at the time of hearing and assist the concerned authority in the matter.

(12) Reasonable sufficient time be provided between the date of receipt of notice and the actual date of hearing. If any party is unable to remain present at the time of hearing for a sufficient cause, one further opportunity should be given to such party for hearing.

(13) The authority hearing quasi-judicial matters shall duly fix a date, time and venue for such hearing. Such authority shall refrain from interacting with third party during the course of hearing either in person or on phone and shall not do any act which would tend to affect or prejudice fair hearing.

(14) A speaking order shall be passed by the authority hearing the matter as early as possible after the hearing is concluded and, as far as possible, within a period of four to eight weeks from the conclusion of the hearing, on the basis of the record before it as well as the submissions made at the hearing. The order must contain reasons in support of the order.

(15) The authority shall not receive information or documents after the hearing is concluded and/or shall not pass the speaking order on the basis of such documents and/or information unless such material is brought to the notice of the parties to the proceedings following rules of natural justice.

(16) The order passed by the quasi-judicial authority on the hearing shall be forthwith communicated to all the parties by Registered A.D.

(17) No application or request or prayer from the political worker, Member of Legislative Assembly, Member of Parliament or third party shall be entertained in the quasi-judicial proceedings unless such person is a party respondent or intervenor in the proceedings.

(18) The order pronounced shall be communicated to the parties immediately.

(19) Record of hearing shall be meticulously maintained in a separate Roznama.

(20) The notings of concerned officials/ law assistants to assist the authority shall include only content of facts and legal provisions along with case laws, if any.

(21) The notings made by the law officials/ concerned officials shall not be in the form of order.


(12) In the case of Legrand (India) Private Limited Versus Union Of India [2008 (2) BCR 387 : 2007 (6) MhLj 146], the Bombay High Court have held that the Public authorities / persons may be held guilty of contempt of the Court, if, in the regular discharge of their duties, they knowingly disregard the law laid down by the said Court. By virtue of this judgment, a private individual / private entity may also be compelled to adhere to the law laid down by the High courts / Apex court.

It was a case where, despite being specifically brought to the knowledge of the law being laid down by the Bombay High Court, the Public officer acted in breach of the law laid down; and the High Court, in the Writ jurisdiction, initiated Contempt proceedings against the said officer. The Court held that –

(a)   It is immaterial that in a previous litigation the particular petitioner before the Court
 was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;

(b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;

(c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in S. 2 (b) of the Contempt of Courts Act, 1971.

I am hasten to add here the critical observation of the Apex court in the case of State Of Uttaranchal Versus Sunil Kumar Vaish – [(2011) 8 SCC 670] Para 18 and 19

Para 18 Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.

Para 19 Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.

I, therefore, say that whenever any representation / complaint is being made to any Public Authority / Public official, the aforesaid relevant and applicable judgment may also be expressly brought to the knowledge of the Authority concerned, thereby securing an speedy and reasoned reply.

And, in case, if the concerned public authority choose to remain silent on the received complaint, or reply in interplay of words, than, a simple letter may be recorded to the concerned High Court / Apex court, requesting it to take Su Moto cognizance (action on its own) of the contempt of the order of the court, being committed by the concerned authority / official; and the copy of said letter may also be sent to the concerned authority / official; and thereafter, after sometime, say about, expiry of about 30 days, an RTI may be filed with the concerned High court / Apex court, requesting it to furnish the details of action taken by it, on your said letter. The draft of said letter to the High court / Apex court and draft of RTI Application is annexed herewith. The Apex court and every High court have prescribed the form in which RTI Application can be made to it.

Further, the complainant may also file a Writ Petition before concerned High court under Article 226 of the Constitution of India, against the concerned public authority / official, and praying the court to direct the concerned public authority / official to make a “Reasoned reply” to the Petitioner’s complaint / Notice; and the reply shall be made in accordance with the law laid down by the Apex court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [(2005) 6 SCC 344]; with a further prayer that reasonable and deterrent cost must also be imposed on the concerned authority / official, for his / its willful failure in making a due reply;

It may further be prayed that reply of public authority / official, shall deal with the substantial points which has been raised therein in the said complaint / Notice and shall cover other relevant points; and eschew irrelevancies and reply shall demonstrate that the authority has given due consideration to the points in controversy and that decisions of the public authority / official on the issue raised in the said complaint / Notice have been reached according to law.

It may further be prayed to initiate contempt proceedings against the concerned Public official, as laid down in Bombay High Court ruling stated hereinabove.

If Writ is filed for this limited purpose, than it may be disposed of in two to three hearings; and, if any such order is passed, than that public authority / official is bound to make a reasoned and proper reply, in a time bound manner.

However, all persons, aggrieved by the acts and omissions of public authorities / officials, may not have easy access to the High Courts, leave alone Apex court. Therefore, a Civil Suit for mandatory Injunction u/s 39 of Specific Relief Act, 1963, may be filed before the District Court / City Civil Court, seeking necessary reliefs.

The law declared by Apex court, by virtue of Article 141 and 144 of the Constitution of India, is binding on all public authorities / judicial authorities, and directions so given by Apex court becomes the law of the land. And therefore, the City Civil courts, District courts, shall also have the jurisdiction to direct the public authority / official to give proper and reasoned reply to the Notice issued to it; with a further relief praying that “A Reference shall be made to the High Court concerned to initiate contempt proceedings against the concerned Public authority / official”. However, while filing this Suit, the mandatory Notice provided u/s 80 may not be given, for, the relief in the Suit is claimed on the premise that concerned public authority / official is not making a reply to the Notice, sent to it u/s 80.


I finally seek to recall an historic incident of Indian freedom struggle, occasioned with Mohandas Karamchand Gandhi (His Journey towards Mahatma). In the year 1893, when in South Africa, while holding a First Class Compartment ticket and traveling in, Gandhi was thrown out of the train, for in those times “Blacks” were not allowed to travel in the First Class Compartment, notwithstanding they hold a valid ticket. It was 9.00 in the chill night. That designated “Black” sent a Telegram to the General Manager of the Railways and registered his complaint. The Complaint of that designated “Black” was attended, forthwith, and the General Manager instructed the Station master to secure that complainant reaches his destination safely. Complainant was accommodated in the very next morning train to his destination.

And here, in the era of INDEPENDENCE and 21st Century of modern democracy, we have Citizens of Sovereign India, of whose complaints are ordinarily attended with avoidance, annoyance and sometimes with hostility.

Complaints to public authorities / officials is the most legitimate incident of a democracy, and giving of satisfactory reply, is a healthy discipline for all who exercise powers over others.

Before I conclude, I must sincerely thanks Mr. Jagdish Gai, who takes great pain, everyday, in retrieving from Newspapers etc., the important rulings of the Apex court / High Court / Consumer Courts / GRs / Notifications which are announced every day, and generously shares with the community at large. Many of the Bombay High Court rulings stated hereinbefore were furnished by him, and I have merely arranged them in proper fashion.

Pls find files attached –
1.      Draft of section 80 Notice;
2.      Draft of Letter to Apex court / High Court, requesting it to take Su Moto cognizance of contempt committed by the concerned public official of the concerned public authority;
3.      Draft of RTI Application;

For other Legal options, please see point Nos.11 and 12 of the Legal Prescriptions (Index)




Sandeep Jalan
Advocate.